United States of America, Plaintiff-appellee, v. Donald B. Duffy, Defendant-appellant, 550 F.2d 533 (9th Cir. 1977)

Appellee, the United States, brought this action to recover civil penalties against appellant, Duffy, under the provisions of 49 U.S.C. § 1471(a) and 14 C.F.R. § 121.317(b).¹  In challenging the district court's judgment in favor of appellee for the sum of $500, appellant contends that the court below (1) improperly granted appellee's motion for summary judgment on the issue of liability²  and (2) improperly denied appellant a jury trial on the issue of the amount of the penalty to be assessed.

Appellant's own admissions unequivocally establish that he violated the particular regulation in question. As there was no material issue of fact left to be determined on the issue of liability, the district court properly granted summary judgment on that issue.

Relevant to appellant's second assignment of error is 49 U.S.C. § 1473(b) (1), which states that in a suit to recover a civil penalty under the Federal Aviation Act "either party may demand trial by jury of any issue of fact." This court must decide whether the question of the amount of the civil penalty to be imposed is an issue of fact, as comprehended by the statute, to be determined by jury trial.

Although this issue has not been squarely addressed by this court, several decisions of the federal courts have stated that the issue of assessment of civil penalties is for the judge to decide rather than the jury. See, e. g., United States v. ITT Continental Baking Co., 420 U.S. 223, 229 n. 6, 95 S. Ct. 926, 43 L. Ed. 2d 148 (1975); United States v. J. B. Williams, Inc., 498 F.2d 414, 438 n. 28 (2d Cir. 1974); United States v. Boston & A. R. Co., 15 F. 209, 212 (D. Mass. 1883). Further, in civil penalty assessments under the Federal Aviation Act, we find no case where the amount of the civil penalty has been determined by a jury; it has always been the court that has made the assessment. See, e. g., Rawdon v. United States, 364 F.2d 803 (9th Cir. 1966), cert. denied, 386 U.S. 909, 87 S. Ct. 858, 17 L. Ed. 2d 783 (1967); Aircrane, Inc. v. Butterfield, 369 F. Supp. 598, 613 (E.D. Pa. 1974); United States v. Duncan, 280 F. Supp. 975 (N.D. Tex. 1968).

We agree with the practice followed by the federal courts in the above-cited cases. We hold that the amount of the civil penalty to be imposed in Federal Aviation Act cases is not a question of fact within the meaning of 49 U.S.C. § 1473(b) (1), and therefore that the district court did not err in denying appellant a jury trial on this question.

The judgment of the district court is AFFIRMED.