Opposition Brief — Roach v. National Transportation Safety Board

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“tBuprents Court, U.S.

BILE D

APR 27 1888

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No. 87-1451

In the Supreme Court of the Gni

OCTOBER TERM, 1987

JOSEPH A. ROACH, PETITIONER

Vv.

NATIONAL TRANSPORTATION SAFETY BOARD, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

MEMORANDUM FOR THE RESPONDENTS IN OPPOSITION

- CHARLES FRIED

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

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TABLE OF AUTHORITIES

Cases: -

Garner v. United States, 424 U.S. 648 (1976) ............ 5

Go Leasing, Inc. v. NTSB, 800 F.2d 1514 (9th Cir. 1986) . 5

Helvering v. Mitchell, 303 U.S. 391 (1938) ............. 4

Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) ..... 4

Komjathy v. NTSB, 832 F.2d 1294 (D.C. Cir. 1987) ..... 5

Leev. CAB, 225 F.20 SSO. Cir. 1935) 2. occ eee 5

United States v. One Assortment of 89 Firearms, 465 U.S.

Na ye nee ng ie re kay ea gy ee 4

United States v. Ward, 448 U.S. 242 (1980) ............ 3

Constitution, statutes and regulations:

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Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1987

No. 87-1451

JOSEPH A. ROACH, PETITIONER

2

NATIONAL TRANSPORTATION SAFETY BOARD, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

MEMORANDUM FOR THE RESPONDENTS IN OPPOSITION

Petitioner contends that he was denied his Fifth Amend-

ment privilege against self-incrimination when he was

called as an adverse witness in a civil proceeding, and that

both the agency and the court below lacked jurisdiction to

impose a penalty in that proceeding.

1. Petitioner is the president of the Roach Aircraft

Company, which is based in Denver, Colorado. At the

conclusion of a sales demonstration flight in La Junta,

Colorado, petitioner made three passes over the airport

runway and executed a 360-degree aileron roll. At the

time, petitioner was accompanied in the plane by a

passenger, a Roach Aircraft employee. There were no

parachutes in the plane. Pet. App. A7, B15, C16.

Petitioner’s aerial acrobatics led to an investigation by

the Federal Aviation Administration (FAA). The FAA

concluded that petitioner’s flight at La Junta had violated

four sections of the Federal Aviation Regulations (FARs),

and it ordered petitioner’s pilot’s certificate suspended for

(1)

2

60 days pursuant to 49 U.S.C. App. 1429(a). Petitioner

sought review. After a hearing, the administrative law

judge (ALJ) concluded that petitioner had violated three

of the four FARs, and reduced the suspension to 30 days. !

Pet. App. A4, A6-A7. The National Transportation Safe-

ty Board (NTSB or Board) affirmed, finding “[u]pon a

consideration of the briefs of the parties and the entire

record, * * * that safety in air commerce or air transporta-

tion and the public interest require affirmation of the Ad-

ministrator’s order, as amended by the law judge” (id. at

B8-B9).

The court of appeals affirmed in turn (Pet. App.

A1-A49). In particular, the court rejected petitioner’s con-

tention that he was denied his Fifth Amendment privilege

when the ALJ permitted the FAA to call him as an adverse

witness at the suspension hearing. The court recognized

that a criminal defendant has an absolute privilege not to

take the stand at his own trial, but it found the suspension

hearing to be civil in nature because “Congress did not in-

tend revocation or suspension of an airman’s certificate to

be a criminal penalty” (id. at Al7). The court also noted

that a witness in any type of proceeding may refuse to re-

spond to questions when the answers may be incriminating,

but it explained that, “[t]o rely on this facet of the [Fifth]

Amendment’s protection, a witness must normally take

' The ALJ found that petitioner had violated FAR Section 91.15(c),

14 C.F.R. 91.15(c), by performing the 360-degree roll while Ms.

Hopkins, whom the ALJ determined was a passenger, was not wear-

ing a parachute (see Pet. App. A27-A32); that he had violated FAR

Section 91.31(a), 14 C.F.R. 91.31(a), which prohibits the operation of

civil aircraft in a manner that is inconsistent with the operating limita-

tions prescribed for the aircraft {see Pet. App. A36-A40, C29); and

that he violated FAR Section 91.9, 14 C.F.R. 91.9, which prohibits

operation of an aircraft in a careless or reckless manner so as to en-

danger the life or property of another (see Pet. App. A32-A36).

the stand, be sworn to testify, and assert the privilege in

response to each allegedly incriminating question as it is

asked” (id. at All). Here, the court found this aspect of

the privilege inapplicable because petitioner’s attorney in-

voked the privilege at the outset of the hearing, and not in

response to particular questions (/d. at Al4-A15).

2. a. Petitioner now contends (Pet. 9-19) that the

FAA and the NTSB lacked jurisdiction over him. He ap-

pears to mean by this (see Pet. 10) that the record did not

support the imposition of disciplinary action under 49

U.S.C. App. 1429(a), which authorizes the FAA to sus-

pend a pilot’s certificate when “safety in air commerce or

air transportation [so] requires.” This contention is entire-

ly without merit. The ALJ made extensive factual findings

(see Pet. App. C1-C36); after reviewing this record, the

NTSB expressly found that “safety in air commerce or air

transportation and the public interest require affirmation

of the Administrator’s order, as amended by ihe law

judge” (id. at B8-B9). Petitioner first challenged these

findings in a rehearing petition filed in the court of ap-

peals —a petition that was denied —and there is no reason

for this Court to entertain petitioner’s factual arguments

now.

b. Petitioner also renews his contention that an FAA

license suspension proceeding is criminal or quasi-criminal

in nature, arguing that he accordingly was denied his Fitth

Amendment privilege against self-incrimination when he

was called as an adverse witness before the ALJ (Pet.

19-24). This contention was correctly rejected by the court

of appeals. This Court “has often stated that the question

whether a particular statutorily defined penalty is civil or

criminal is a matter of statutory construction.” United

States v. Ward, 448 U.S. 242, 248 (1980). To answer this

question, the Court has first looked to “whether Congress,

4

in establishing the penalizing mechanism, indicated either

expressly or impliedly a preference for one label or the

other”; “where Congress has indicated an intention to

establish a civil penalty, [the Court has] inquired further

whether the statutory scheme was so punitive either in pur-

pose or effect as to negate that intention.” In making the

latter inquiry, the Court has “noted that ‘only the clearest

proof could suffice to establish the unconstitutionality of

a statute on such a ground.’” /d. at 248-249 (citations

omitted). See United States v. One Assortment of 89

Firearms, 456 U.S. 354, 362-363 (1984).

Here, Congress plainly intended the suspension of a

pilot’s certificate under Section 1429 to be civil in nature.

As the court of appeals explained (Pet. App. A17-A18),

Congress addressed civil and criminal air traffic violations

in separate statutory provisions; violations of the safety

regulations authorized by Section 1429 cannot give rise to

a criminal penalty. See 49 U.S.C. App. 1472(a); compare

49 U.S.C. App. (& Supp. III) 1471(a) (authorizing imposi-

tion of civil penalties for violations of Subchapter VI of 49

U.S.C. App., which includes Section 1429). And the court

of appeals correctly recognized that petitioner has failed to

advance “the ‘clear proof’ necessary to override Congress’

apparent intent that the sanction applied to [him] was

regulatory rather than punitive” (Pet. App. A20). The

court noted that “[rjevocation of a pilot certificate is not

an affirmative disability or restraint, but merely revoca-

tion of an [sic] privilege conditioned on compliance with

the safety regulations of the FAA. Revocation of a

privilege voluntarily granted ‘is characteristically free of

the punitive criminal element.’ ” /bid. (quoting Helvering

Vv. Mitchell, 303 U.S. 391, 399 (1938)). The court of ap-

peals’ reasoning is consistent with this Court’s analysis of

the nature of criminal penalties (see generally Kennedy v.

Mendoza-Martinez, 372 U.S. 144 (1963)), and it accords

with the uniform holdings of other courts of appeals that

the suspension of FAA certificates is a civil penalty. See

Go Leasing, Inc. v. NTSB, 800 F.2d 1514 (9th Cir. 1986);

Komjathy v. NTSB, 832 F.2d 1294 (D.C. Cir. 1987).?

It is therefore respectfully submitted that the petition

for a writ of certiorari should be denied.

CHARLES FRIED

Solicitor General

APRIL 1988

2 In arguing to the contrary, petitioner cites (Pet. 20-23) the dis-

senting opinion in Lee v. CAB, 225 F.2d 950, 952 (D.C. Cir. 1955),

(Prettyman, J., dissenting), as well as various decisions of the Civil

Aeronautics Board. As the court of appeals recognized, however (Pet.

App. A23-A25 n.7), this Court’s more recent decisions make it clear

that penalties such as the one at issue here are not criminal. Similarly,

the NTSB noted in this case, in rejecting petitioner’s Fifth Amendment

argument, that the Board “has consistently held that its administrative

proceedings are civil in nature” (id. at B10). Petitioner also asserts that

the court of appeals held the self-incrimination privilege to be “not

available to [petitioner] in an administrative proceeding to suspend his

pilot’s certificate” (Pet. 19-20). In fact, the court made it clear that

petitioner could have availed himself of the privilege had he asserted it

in response to particular questions that would have elicited in-

criminating answers (see Pet. App. Al4-A15). This holding plainly

was correct. See Garner v. United States, 424 U.S. 648, 655 (1976).

US GOVERNMENT PRINTING OFFICE: 1988 — 202-037/60414