JOSEPH A. ROACH, PETITIONER V. NATIONAL TRANSPORTATION SAFETY BOARD, ET. AL. No. 87-1451 In the Supreme Court of the United States October Term, 1987 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 Amendment 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 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. /1/ Pet. App. A4, A6-A7. The National Transportation Safety 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 transportation and the public interest require affirmation of the Administrator'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 contention 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 intend revocation or suspension of an airman's certificate to be a criminal penalty" (id. at A17). The court also noted that a witness in any type of proceeding may refuse to respond 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 stand, be sworn to testify, and assert the privilege in response to each allegedly incriminating question as it is asked" (id. at A11). Here, the court found this aspect of the privilege inapplicable because petitioner's attorney invoked the privilege at the outset of the hearing, and not in response to particular questions (id. at A14-A15). 2. a. Petitioner now contends (Pet. 9-19) that the FAA and the NTSB lacked jurisdiction over him. He appears 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 suspend a pilot's certificate when "safety in air commerce or air transportation (so) requires." This contention is entirely 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 the law judge" (id. at B8-B9). Petitioner first challenged these findings in a rehearing petition filed in the court of appeals -- 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 Fifth 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, 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 purpose 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.'" Id. 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 imposition 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 "(r)evocation of a pilot certificate is not an affirmative disability or restraint, but merely revocation 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.'" Ibid. (quoting Helvering v. Mitchell, 303 U.S. 391, 399 (1938)). The court of appeals' reasoning is consistent with the 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). /2/ It is therefore respectfully submitted that the petition for a writ of certiorari should be denied. CHARLES FRIED Solicitor General APRIL 1988 /1/ 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 wearing 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 limitations 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 endanger the life or property of another (see Pet. App. A32-A36). /2/ In arguing to the contrary, petitioner cites (Pet. 20-23) the dissenting 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 incriminating answers (see Pet. App. A14-A15). This holding plainly was correct. See Garner v. United States, 424 U.S. 648, 655 (1976).