# Opposition Brief — Roach v. National Transportation Safety Board

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1422%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1988
- **Citation:** 486 U.S. 1006

## Text

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1422%3A2. Public record. Not legal advice.