Unpublished Disposition, 872 F.2d 431 (9th Cir. 1986)

MEMORANDUM^* 

Appellant Andrew Mohr ("Mohr") appeals pro se the levy of a $750 fine against him by the district court for failure to submit to security screening at the Portland International Airport pursuant to 14 C.F.R. Sec. 107.20. Mohr also appeals the district court's entry of a directed verdict in favor of the appellee, the United States, during a jury trial. Mohr alleges the district court did not have jurisdiction to decide the case, there were disputed issues of fact presented at trial which should have been decided by the jury, and the entry of a directed verdict deprived him of his right to a jury trial under 49 App.U.S.C. § 1473 (1982). Mohr further argues that the civil penalty assessed under 49 App.U.S.C. § 1471(a) (1) (Supp. IV 1986) is in fact a criminal penalty, and that it operates as an unconstitutional bill of attainder. None of these arguments has merit, and we affirm.

FACTS

On June 15, 1986, at approximately 11:45 p.m., Mohr entered Concourse L of the Portland International Airport without passing through the security screening device located at the head of the concourse. Mohr had arrived at the airport earlier in the evening on a flight from London and had left some baggage in the luggage lockers located in Concourse L. Before placing the baggage into the lockers, he had passed through the security checkpoint and had put his baggage through the baggage x-ray machine located there. Upon his return several hours later to retrieve his bags, however, Mohr did not go through the security device but instead walked around it. Two security guards immediately told Mohr to come back to the checkpoint and go through screening before proceeding to the baggage lockers approximately fifty feet away. Mohr declined, but instead told them, as he continued walking to the lockers, that he was only going to pick up his bags and would then return and leave the airport. A maintenance employee working in the concourse also told Mohr to go back to the security station. Mohr continued to the locker, retrieved his baggage, and returned to the security checkpoint. Security guards and Portland police officers awaited him there. He then passed through the screening device, his baggage was sent through the x-ray machine, and together they left the airport.

As a result of this incident, the United States filed suit in district court to recover a civil penalty from Mohr for violation of 14 C.F.R. Sec. 107.20. Mohr requested a jury trial pursuant to 49 App.U.S.C. § 1473. The United States put on three witnesses--the two security guards present on the night of the incident and a Federal Aviation Agency (hereinafter "FAA") security specialist. Mohr represented himself pro se and testified in his own behalf. At the close of evidence, the district court granted the United States' motion for directed verdict and assessed a fine against Mohr of $750 plus costs.

ANALYSIS

We have jurisdiction to hear this appeal under 28 U.S.C. § 1291 (1982). We review the decision to grant a motion for directed verdict de novo, viewing the evidence in a light most favorable to the nonmovant and drawing all possible inferences in favor of that party. Blanton v. Mobil Oil Corp., 721 F.2d 1207, 1219 (9th Cir. 1983). A directed verdict is proper when the evidence permits only one reasonable conclusion as to the verdict, without weighing the credibility of witnesses or otherwise considering the weight of the evidence. Peterson v. Kennedy, 771 F.2d 1244, 1256 (9th Cir. 1985), Yeaman v. United States, 584 F.2d 322, 326 (9th Cir. 1978). We review a decision to impose a sanction for abuse of discretion, inquiring whether it was assessed in an arbitrary or capricious manner or in a manner not otherwise in accordance with the law. Go Leasing, Inc. v. NTSB, 800 F.2d 1514, 1518 (9th Cir. 1986) (citing Butz v. Glover Livestock Comm'n Co., 411 U.S. 182, 185-86 (1973)).

The district court has jurisdiction under 49 App.U.S.C. § 1487¹  and 28 U.S.C. §§ 1345 and 1355 to adjudicate actions brought by the United States to recover a civil penalty under section 1471(a) (1). The United States is not required to exhaust administrative remedies prior to bringing an action in district court to recover a civil penalty for violation of the screening requirements. United States v. Gaunce, 779 F.2d 1434, 1436 (9th Cir.), cert. denied, 478 U.S. 1003 (1986) (prior administrative assessment mandated only in three situations enumerated in section 1471(a) (1)--where a penalty relates to transportation of hazardous materials, or is imposed for violation of provisions related to economic regulation of air carriers, or results from violations of section relating to establishment of fares and service involving Alaska and Hawaii); United States v. Duffy, 550 F.2d 533 (9th Cir. 1977).

Mohr argues that the jury should have been allowed to decide whether a "sterile" area existed at Concourse L on the night of June 15, 1986; whether he actually entered that area by going to the baggage lockers; and whether he entered the area without first submitting to security screening. Blue Brief at 17.

Mohr was fined for violating 14 C.F.R. Sec. 107.20, which states:

No person may enter a sterile area without submitting to the screening of his or her person and property in accordance with the procedures being applied to control access to that area under section 108.9 or section 129.25 of this chapter.

14 C.F.R. Sec. 107.20.

A "sterile" area is defined as "an area to which access is controlled by the inspection of persons and property in accordance with an approved security program or a security program used in accordance with section 129.25." 14 C.F.R. Sec. 107.1(a) (5). Mohr argues that the security checkpoint at the entrance to Concourse L was not operating in accordance with proper procedures and therefore the existence of a sterile area was in dispute and should have been decided by the jury. Mohr appears to assert that because he physically was able to pass beyond the checkpoint without being screened, the checkpoint must not have been operating correctly and therefore the area must not have been a sterile area.

This argument is meritless. Mohr testified that he properly went through the same checkpoint, with his baggage, approximately three hours before the incident at issue. He further testified that during the incident at issue he heard both security guards tell him to return to the screening area as soon as he entered the concourse, that he talked with them while walking to the locker, that he was also told by a maintenance worker that it was a secured area, and that he did not go back to the screening area but instead proceeded to the locker, withdrew his baggage, and then returned to the checkpoint. RT at 66-68, 70-72.

When deciding liability, the district court should treat with due deference the interpretation of the agency, but should not mechanically adopt an interpretation that exceeds the bounds of reasonableness. The question of reasonableness is a mixed question of law and fact. "The ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation."

United States v. Eastern Air Lines, Inc., 792 F.2d 1560, 1564 (11th Cir. 1986) (citing Udall v. Tallman, 380 U.S. 1, 800-01 (1965)). Both security guards testified that the screening area was operational at the time Mohr went through it and all of the government's witnesses testified that the concourse was a sterile area. As the district judge properly concluded, there was no dispute as to the existence of the sterile area or Mohr's transgression into it.

Under 49 App.U.S.C. § 1473, any party to proceedings initiated to collect a civil penalty under the Federal Aviation Act ("Act") may demand a trial by jury if the value in controversy exceeds $20. Mohr argues the judge's directed verdict deprived him of his right to a jury trial. It has long been established that a directed verdict does not offend a right to trial by jury. Galloway v. United States, 319 U.S. 372, 389 and 395 (1943).

Mohr contends that the penalty assessed under 49 App.U.S.C. § 1471(a) (1) is a criminal penalty, that he should have been tried in criminal proceedings, and therefore that he was deprived of due process.

The question whether a particular statutory penalty is civil or criminal is a matter of statutory construction. United States v. Ward, 448 U.S. 242, 248 (1980). We look to whether Congress expressly or implicitly indicated a preference and whether the scheme is so punitive in nature that any intent to create a civil penalty is negated. Id. at 248-49.

The Act was passed in 1958 for the purpose of establishing a federal agency, the FAA, with power to provide for the safe and efficient use of navigable air space. H.Rep.No. 2360, 85th Cong., 2d Sess., reprinted in 1958 U.S.Code Cong. & Admin.News 3741, 3741. Two sets of penalties were created--civil penalties under section 901, codified in section 1471(a); and criminal penalties under section 902, codified in section 1472. Id. at 3757. Where a section providing for civil penalties is juxtaposed with a separate section providing for criminal sanctions, the clear intent of Congress takes on added significance. United States v. Ward, 448 U.S. at 249.

Mohr argues that the civil penalty is really a criminal penalty because it is punitive in nature. The Supreme Court has listed seven characteristics to be considered when determining whether a sanction is so punitive it creates a criminal penalty:

[W]hether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment--retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned....

Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963).

Section 1471(a) (1) allows the assessment of a civil penalty up to $1,000 for violation of any provision of subchapter III of the Act. The passenger screening regulations contained in 14 C.F.R. Sec. 170.20 were comulgated by the FAA pursuant to its authority under subchapter III of the Act, 49 App.U.S.C. §§ 1356, 1357 (Supp. III 1985 & 1982), to prescribe rules and regulations necessary to protect passengers and property aboard aircraft from acts of criminal violence and air piracy. 49 App.U.S.C. § 1357(a) (1) (1982). A screening program was specifically authorized under section 1356(a), and section 107.20 was issued in January 1986. 51 Fed.Reg. 1350 (1986). The rule was promulgated to prevent disruption of the screening process by nonpassengers who refused to be screened, requiring a security response by security personnel and creating a risk that a true threat would arise during the diversion. 51 Fed.Reg. 1350.

Applying the considerations set out in Kennedy, it is clear that section 1471(a) creates a civil penalty. Any member of the public may decline to be screened in an airport. A person agrees to be screened in return for the privilege of entering a secured area. The only affirmative disability or restraint created by section 1471(a) (1) is a monetary penalty for failing to submit to screening before entering that secured area. Public safety regulations carrying penalties historically have not been regarded as punishment. There is no element of scienter involved in the violation,²  and while the penalty may promote deterrence, Mohr has presented no evidence that the penalty was assessed as retribution for his failure to submit to screening prior to entering Concourse L. At the time of Mohr's violation, there was no provision in section 1472 under which Mohr's actions could have resulted in a criminal penalty.³  Additionally, the assessment of a fine not to exceed $1,000 is not excessive for the violation of security regulations designed to protect the public.

Mohr's actions were precisely the type of nonpassenger disruption which prompted the promulgation of section 107.20. While not deciding the issue, we have always treated sanctions under section 1471(a) as civil penalties. See Go Leasing, 800 F.2d at 1518 (section 1471 provides for civil penalty); Gaunce, 779 F.2d at 1435 (same); Duffy, 550 F.2d at 534 (same). We hold that section 1471(a) creates a civil penalty for violations of section 107.20.

Mohr's allegation that the application of section 1471(a) (1) creates a bill of attainder is frivolous. A bill of attainder is a law which " 'legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.' " Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841, 847 (1984) (citing Nixon v. Administrator of General Services, 433 U.S. 425, 468 (1977)). Mohr appears to argue that assessing penalties under section 1471 for violations of section 107.20 singles out members of the public for punishment. Mohr incorrectly construes section 107.20 to apply only to those persons responsible for enforcing the security provisions of the Act. As discussed above, the legislative history and the precise language of the regulation make clear that it applies to all persons wishing to enter a "sterile" area of an airport. Additionally, persons assessed a penalty under section 1471(a) (1) are entitled to a jury trial under section 1473 and are thereby afforded judicial process. Section 1471(a) (1) is not a bill of attainder as applied to violations of section 107.20.

CONCLUSION

The district court properly granted the United States' motion for entry of directed verdict and did not abuse its discretion in assessing a $750 fine plus costs against Mohr.

AFFIRMED.