Petitioners Reply Brief — Atlas Roofing Co. v. Occupational Safety and Health Review Comm'n

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FOR ARGUMENT

IN THE

Supreme Court of the Anit

OCTOBER TERM, 1976

No. 75-748

FRANK IREY, JR... INC.,

Petitioner.

Vv.

OCCUPATIONAL SAFETY AND HEALTH

REVIEW COMMISSION, AND

JOHN T. DUNLOP, SECRETARY OF LABOR,

Respondents.

No. 75-746

ATLAS ROOFING COMPANY, INC.,

Petitioner.

Vv.

OCCUPATIONAL SAFETY AND HEALTH

REVIEW COMMISSION AND

JOHN T. DUNLOP, SECRETARY OF LABOR,

Respondents.

ON WRITS OF CERTIORARI TO

THE UNITED STATES COURTS OF APPEALS

(OR THE THIRD AND FIFTH CIRCUITS

PETITIONERS’ REPLY BRIEF

McNEILL STOKES,

IRA J. SMOTHERMAN, JR.,

Stokes & Shapiro

3920 First National Bank Tower

Atlanta, Georgia 30303

HERBERT J. MILLER, JR.

NATHAN LEWIN

| MARTIN D. MINSKER

OLIVER N. HORMEL Miller, Cassidy, Larroca & Lewin

423 Third Street 2555 M Street, N.W., Suite S00

California, Pennsylvania 15419 Washington, D.C. 20037

Counsel for Petitioners

Counsel for Petitioner, No, 75-748

OE ITO ee a a a ee

Washington. OC @ CL® PUBLISHERS ¢ LAW PRINTING CO. e (202) 393-0625

INTRODUCTION

(i)

TABLE OF CONTENTS

THE SEVENTH AMENDMENT APPLIES

TO SUITS IN WHICH THE GOVERNMENT

” oscnné kd bene beet esedes

i Se cea lea twl ee wed oe

B. The Government’s Argument From His-

ee 4 oes

1. The Interpretation of the Govern-

ment’s Key Phrases in Light of

Contemporaneous State Practices ...

The Jury Provisions and Proposals In

i TT ee eee ee

3. James Madison’s First Draft of the

Seventh Amendment ............

C. The First Judiciary Act ............

AN OSHA NON-JURY ADMINISTRATIVE

PENALTY ADJUDICATION IS NOT SUS-

TAINABLE UNDER THE GOVERNMENT'S

“ARTICLE | PLENARY POWER PUBLIC

PE «DUDE Cees nveseeeesees

A. The Government’s “Public Rights”

Theory Inescapably Encompasses the

Federal Judiciary’s Entire Article Ill

Federal Question Jurisdiction, Both as a

Matter of Original and Appellate Juris-

.nset tenn eines wae akan ue’

B. This Court’s Cases Defining the “Plenary

Power” and “Public Rights” Concepts

Expressly Limit Those Doctrines to

Subject Matter Areas Where Congress

Has Exclusive and Complete Regulatory

EE 5 n6Sabsansesehedeabens

oot NN Oe at Oe ee oe

2. The Taxation and Alien Immigration

tate das a ee ke er

BERR eweweeR BH Pee PT oe RSD es eh he oe ee mf

————- = =

(ii)

3. The “Legislative Court” Cases ......

4. The Crowell Case ........-e2 see

lll. AN OSHA NON-JURY PENALTY ADJUDI-

CATION CANNOT BE SUSTAINED

UNDER THE RATIONALE OF KATCHEN

A” SPE TELE UeT ET Te

A. The Rationale of Katchen is Not Ap-

plicable to Civil Penalty Adjudications

for Statutory Violations ............4.

B. In Any Event, a Jury Trial on Penalty

Adjudications Would Not Interfere With

the Statutory Scheme ..........+56:5

Ut eee ee ee a ee

APPENDIX A [Monthly Status Report of OSAHRC

Decisions Which Have Been Appealed] ........

APPENDIX B [Table 19; Civil Cases Pending June

30, By Nature of Suit, Fiscal Years 1968-1976] . .

TABLE OF AUTHORITIES

Cases:

Alexander v. Hillman, 296 U.S. 222 (1935) .......

Almeida-Sanchez v. United States, 413 U.S. 226

EOPTED ti rdcccicceceeawies esse eenwe ee

American Insurance Co. v. Canter, 26 U.S. (1 Pet.)

See CN 5 is 6406s coe eens ek Cee wd

Apodaca v. Oregon, 406 U.S. 404 (1972) .........

Atlas Roofing Co. v. Occupational Safety and

Health Review Commission, 518 F.2d 990

cn 6h wane eee kt eee ee eek os

Baldwin .. New York, 399 U.S. 66 (1970) ........

Baltimore and Carolina Line v. Redman, 295 U.S.

DOOR <:.cctteh ba ada eas cadereewe 6

Barton v. Barbour, 104 U.S. 126 (1881) ........

Beacon Theatres v. Westover, 359 U.S. 500 (1959)

Tree

(iii)

Page

Bivens v. Six Unknown Named Agents, 403 U.S.

re ee ry ee ee 27

Boyd v. United States, 116 U.S. 616 (1885) ........... 26

Burgess v. Gray, 57 U.S. (16 How.) 48, (1853) ......... 36

Buttfield v. Stranahan, 192 U.S. 470 (1904) ........... 39

Capital Traction Co. v. Hof. 174 U.S. 1 (1899) ... 5,24,43,44,

45,55

Cheatham v. United States, 92 U.S. 85 (1876) ......... 40

Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226

neh sh vue asa als oa ew dee had dell dee ie 31

C. J. Hendry v. Moore, 318 U.S. 133 (1943)... . 4,6,9,11,13,

15,18

Colgrove v. Battin, 413 U.S. 149 (1973) ........... 5,21

Colon v. Lisk, 13 App. Div. 195, 43 N.Y.S. 364,

aff'd, 153 N.Y. 188, 47 N.E. 302 (1897) .......... 18

Crowell v. Benson, 285 U.S. 22 (1932) ... 35,48,49,50,51,52,

53,54,55,56

Curtis v. Loether, 415 U.S. 189 (1974) ............. 7,70

Dairy Queen, Inc. v. Wood, 369 U.S. 469 (1962) ....... 60

Damsky v. Zavatt, 289 F.2d 46 (2d Cir. 1961) 22.0.0... 38

Duncan v. Louisiana, 391 U.S. 145 (1968) ............ 62

Ex parte Bakelite Corp., 279 U.S. 438 (1929) ... . 46,47,48,52

Ex parte Grossman, 267 U.S. 87 (1925) .......... 6,15,21

Foley v. Harrison, 56 U.S. (15 How.) 433 (1853) ....... 36

Gardner v, New Jersey, 329 U.S. 565 (1947) .......... 57

Gibbons v. District of Columbia, 116 U.S. 404

ee ee eee et eee ee ees 45

Glidden & Co. v. Zdanok, 370 U.S. $30 (1962) ........ 44

Guthrie National Bank v. Guthrie, 173 U.S. 528

a 48,54

Helvering v. Mitchell, 303 U.S. 391 (1938) .......... 40,47

Hollywood National Bank v. Bumb, 409 F.2d 23

TIE Taide aoe a Sd eS eens aig ey x 59

(iv)

Page

In Re Beasley - Gilbert's Inc., 285 F. Supp. 359

ec th dec eces canneeanseeres 59

Katchen v. Landy, 382 U.S. 323 (1966) ..... 2,57,58,59,60,61

Kennon v. Gilmer, 131 U.S. 22 (1889) 2. 2 ee ee ee ees 44

Kleindienst v. Mandel, 408 U.S. 753 (1972) ......4-55: 40

Kohl v. United States, 91 U.S. 367 (1876) ...... ..... 30

Late Corporation of Church of Jesus Christ of

Latter Day Saints v. United States, 136 U.S. |

tek err re ee ree Se es ee ee ee 43

Lloyd Sabaudo Societa v. Elting, 287 U.S. 329

0 Me re ee rie ee ae eee 40,54

Lynch v. Household Finance Corp., 405 U.S. 538

Pree eee ere re eee eee ee ee 40

McAllister v. United States, 141 U.S. 175 (1891) 2... 42

McElrath v. United States, 102 U.S. 175 (1880) ...... 38,47

Mountain Timber Co. v. Washington, 243 U.S. 219

SR a ane eae se ee ae ee 49 So

Murray's Leessee v. Hoboken Land, 59 U.S. (18

How.) 272 (1856) ....... 35,36,37,38,39,40,41,47,51,54

Myers v. United States, 272 U.S. 52 (1926) ........5-- 30

Nicholls v. United States, 74 U.S. (7 Wall.) 122

St iene etek ee ere ny rar oe a a ee ee 40

NLRB v. Jones and Laughlin Steel Corp., 301 U.S.

Boo ea rrr ere wy te re ee a ke 48.54

Oceanic Steam Navigation Co. v. Stranahan, 214

Ee SO EOUEED cede ded eavdovncesevees 39,40,47

Palmore v. United States, 411 U.S. 389 (1973) . 33,44,45,53,54

Parsons v. Bedford, 28 U.S. (3 Pet.) 433 (1830) ........ 36

People v. One 1941 Chevrolet Coupe, 37 Cal. 2d

y Xe e & Fiodl, | |) errr eS re es ee 79

Passe ©. Ledeen, Got UE SECTS TED oc ccccceostssan 4)

Pernell v. Southall Realty, 416 U.S. 363 (1974)... . 43,44,55

(v)

Page

Phillips v. Commissioner, 283 U.S. 589 (1931) ...... 40,41

Rasmussen v. U ited States, 197 U.S. 516 (1905) ....... 44

Rogers v. Loether, 467 F.2d 1110(8th Cir., 1972),

aff'd sub nom., Curtis v. Loether, 415 U.S. 189

PP GhSG bb lied ae ehae ened dhe ckbuscecaee 54

Schoenthal v. Irving Trust Co., 287 U.S. 92 (1932)

St. Joseph Stockyards Co. v. United States, 298

DIA cvivvcbeutewabeweshectiesec« 53

U.S. v. Ortiz, U.S. ___ (1975), 43 U.S.L.W.

ee 40

United States v. J. B. Williams Co., 498 F.2d 414

I oo 61

United States v. United States District Court, 407

I oi ot 62

United States v. Wonson, | Gall. 4 (C.C. Mass.

MP cnevgliiere hawedeneceddeekeuuney 5,6,19

Vergari v. Marcus, 26 N.Y. 2d 764, 257 N.E.2d 652

RN ER Se ee Rea ne ee aera 18

Webster v. Reid, 52 U.S. (11 How.) 437 (1851) ...... 43,44

Wickwire v. Reinecke, 275 U.S. 101 (1927) ........... 40

Wiliams v. Florida, 399 U.S. 78 (1970) .............. 3

Wiswall v. Campbell, 93 U.S. 347 (1876) ............. 57

Statutes and Authorities:

The Constitution of the United States ............ passim

Federal Judiciary Act of 1789, 1 Stat.73 ....... 4,29,30,31

Occupational Safety & Health Act, 29 U.S.C.

DN Siseeneunes neha enest aes oe 8e0-0'% 33

2 Laws ot the State of New York (1886) ............. 17

State Constitutions, Declaration of Rights and

Proposed Amendments:

Delaware Constitutional provision (1776) Section 13

ne ¢¢due nad wkkeceuae ceeee bhdee 19

(vi)

Page

Georgia Constitutional provision (1777) Art. XL (1

- PP Pere re rrr rere Teeter eT ee 20

Maryland Constitutional provision, Article XVII (1

PEE ED ce rcccesedenneesnseecececenes 18

Maryland Proposed Amendment, Article 3 (2

EE TEED cg ccccunvecerescbenessseesenes 18

Massachusetts Declaration of Rights of 1780, Article

sik” 8 > rer ree ee ee 14

New Jersey Constitutional provision (1776) Article

MB (1 Solvwartz DEG) ow wc cc ccccccvesccccvees 18

New York Constitution (1777) Article XLI (1

SS) eee ae eae ee a ee ee 17

New York Proposed Amendment (1 Schwartz 913) ...... 18

South Carolina Constitution, Article XLII (1

PEE SOUP ack cwrcece ces esecouesuevensecu 19

South Carolina Constitutional provision (1779)

Article XXV (1 Sclewartz S32) ww eee eee vees 19

Virginia Declaration of Rights Section 8 (1

PE SEE eke satu daneennneesdececseeses 16

Miscellaneous:

1 Annals of Congress 808-846 ...........00000004+ SI

1976 Annual Report of the Director of the

Administrative Office of the United States ......... 70

H. M. Hart & H. Wechsler, The Federal Courts and

the Federal System (2d ed. 1973) «2... 2. ee ee ee ee SS

Jaffee, Judicial Control of Administrative Action

Se, Ok SED io es 6 6 60.56 008s 60 wae wee 688 55

2 Legal Papers of John Adams (Z. L. Wroth & H.

es SU EE 6 ak 6 6 aac 6s teak bb 0 554.0480 0' 1S

“Monthly Status Report of OSHRC Decisions Which

Have Been Appealed” (Oct. 2, 1976) 2.0.0... ea ae 69

F. Pollack & F. Maitland, The History of English

SO Bee caer ae GUD apes neassasepuceuesess 38

(vii)

2 Records of the Federal Convention (M. Ferrand,

ed. 1937)

1 & 2 B. Schwartz, The Bill of Rights: A

Documentary History (1971). . . 14,16,17,18,19,20,22,23,24,

25,27,28,29

Dickinson & Andrews, “A Decade of Admiralty in

the Supreme Court of the United States, 36

Cal. L. Rev. 169 (1948) ow. cc cc ccc ccc ccees 6

Warren, “New Light on the History of the Federal

Judiciary Act of 1787,” 37 Harv. L. Rev. 49

A ee

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1976

No. 75-748

FRANK IREY, JR., INC.,

Petitioner,

OCCUPATIONAL SAFETY AND HEALTH

REVIEW COMMISSION, AND

JOHN T. DUNLOP, SECRETARY OF LABOR,

Respondents.

No. 75-746

ATLAS ROOFING COMPANY, INC.,

Petitioner,

OCCUPATIONAL SAFETY AND HEALTH

REVIEW COMMISSION, AND

JOHN T. DUNLOP, SECRETARY OF LABOR,

Respondents.

ON WRITS OF CERTIORARI TO

THE UNITED STATES COURTS OF APPEALS

FOR THE THIRD AND FIFTH CIRCUITS

PETITIONERS’ REPLY BRIEF

INTRODUCTION

The Government offers three arguments to justify

affirmance of the judgments below in these cases. First,

the Government contends that the Seventh Amendment

is not applicable to cases in which the Government is a

party. We respond to this contention in Section I of this

reply brief, at pp. 1-32 infra. Second, the Government

contends that Congress may permissibly bypass both

Article II] and the Seventh Amendment and delegate to

an administrative non-jury adjudicator any cases or

controversies which fall at least within the scope of

Congress’ regulatory powers under Article | of the

Constitution. We respond to this contention in Section

Il of our brief at pp. 32-56 infra. Finally, the Govern-

ment contends, relying primarily on this Court’s decision

in Katchen y. Landy, 382 U.S. 323 (1966), that these

cases may permissibly be delegated to an administrative

non-jury adjudicator because recognition of a jury right

in District Court after the administrative process is

complete will result in dismembering the statutory

scheme. We respond to this contention in Section III of

this brief, at pp. 56-70 infra. *

*In this brief we shall use the same citation forms for the

various appendices previously filed with the Court as we utilized

in our initial brief. See Irey Main Br., at 2, n. |. For the

legislative history of the Occupational Safety and Health Act

|hereinafter “OSHA” or “the Act™], we shall use the one-volume

Committee reprint utilized by the Government in its brief and

shall similarly cite this source as “Leg. Hist."’ See Gov. Br. 4, n.

2. We shall cite Schwartz, The Bill of Rights; A Documentary

History (1971), as “Schwartz” with the appropriate volume

designation. See Gov. Br. 20, n. 11.

THE SEVENTH AMENDMENT APPLIES TO

SUITS IN WHICH THE GOVERNMENT IS A

PARTY.

A. Introduction

The Government's “primary argument” (Gov. Br. at

17) is

that the Seventh Amendment was never intended

to control government litigation of any kind, in

any forum,

/d., 17-18 (emphasis in original).

The Government's contention must be placed in the

basic context of our Constitution and the Bill of

Rights, and particularly Article III and the Seventh

Amendment. “For as every schoolboy knows, the

Framers ‘designed’ the Bill of Rights not against ‘state

power, but against the power of the Federal Govern-

ment.’ Williams vy. Florida, 399 U.S. 78, 145 (1970)

(Stewart, J., concurring and dissenting). Specifically, the

Seventh Amendment was added in direct response to

the omission of a civil jury provision in Article III of

the new Constitution, which in turn created a Federal

judicial power capable of acting directly upon the

citizens of the State in executing Federal law and

enforcing Federal interests in enumerated categories of

cases OF controversies, including those arising under the

Constitution, law and treaties of the United States,

those “‘between a state and citizen of another state,”

and those “to which the United States shall be a

party.’ In fact, the ninth section of the Federal

‘As the Government puts it (Gov. Br. at 26):

What is more, since Article III] authorized the establishment

of federal trial courts with a very wide civil jurisdiction,

there was no escaping the question whether congress

should, or should not, be left free to withhold a right to a

jury for these cases.

Judiciary Act of 1789, 1 Stat. 73, 76-77, considered

simultaneously by the same Congress that passed the

Seventh Amendment, gave the newly created district

courts,

exclusive original cognizance of all civil causes of

admiralty and maritime jurisdiction, including all

seizures under laws of impost, navigation or trade

of the United States, where the seizures are made,

on waters which are navigable from the sea by

vessels of ten or more tons burthen, within their

respective districts as well as upon the high seas;

(a) saving to suitors, in all cases, the right of a

common law remedy, where the common law is

competent to give it; and shall also have exclusive

original cognizance of all seizures on land, or other

waters than as aforesaid, made, and of all suits for

penalties and forfeitures incurred, under the laws

of the United States.

See Irey Main Br. at 23. As we noted in our initial

brief, the attempt of the English Crown to expand the

Admiralty jurisdiction as a device for evading common

law jury rights in civil penalty and forfeiture actions

arising under the Acts of Trade is what made the

deprivation of jury rights a focal point of the American

Revolution to begin with. Irey Main Br. 25-31. See also

CJ. Hendry vy. Moore, supra, 318 U.S. 133, 141

(1943).?

The Seventh Amendment reads (emphasis added):

In suits at common law, where the value in

controversy shall exceed twenty dollars, the right

of trial by jury shall be preserved, and no fact

tried by jury. shall be otherwise reexamined in any

>The Government acknowledges this much. See Gov. Br.

4041:

To be sure, it is familiar history that in the decade before

Independence, Americans inveighed against the practice of

assessing and enforcing fines and forfeitures through so-

called “‘vice-admiralty’’ courts without juries. That is

sufficiently reflected in public remonstrances from 1765

through 1776.° But it does not follow that the Seventh

Amendment was a response to that concern.

court of the United States, than according to the

rules of the common law.

In construing this language, this Court, throughout its

200 year history, has repeatedly and at length pro-

nounced as one of the most basic canons of construc-

tion, that “(t]he right of trial by jury thus preserved is

the right which existed under the English common law

when the amendment was adopted.” Baltimore &

Carolina Line v. Redman, 295 U.S. 654, 657 (1935);

Capital Traction Co. v. Hof, 174 U.S. 1, 7-8 (1899);

United States v. Wonson, 1 Gall. 4, 20 (C.C. Mass.

1812). Nor is this canon of construction the product of

careless assumption once asserted and repeated auto-

matically down through the years. Rather the principle

reflects the considered judgment of one of the Court’s

greatest scholars closest in time to the Constitution

(Justice Story), and is rooted, inter alia, in this Court’s

own review of the “legislative history’’ of the Constitu-

tional Convention and the time period preceding the

Seventh Amendment's enactment. See Colgove »y.

Battin, 413 U.S. 149, 152-56 (1973). And that canon

of construction is also rooted in a more general and

equally fundamental principle of this Court’s constitu-

tional jurisprudence:

The language of the Constitution cannot be inter-

preted safely except by reference to the common

law and to British institutions as they were when

the instrument was framed and adopted. The

statesmen and lawyers of the Convention, who

submitted it to the ratification of the Convention

of the thirteen states, were born and brought up in

the atmosphere of the common law, and thought

and spoke in its vocabulary. They were familiar

with other forms of government, recent and

ancient, and indicated in their discussions earnest

study and consideration of many of them, but

when they came to put their conclusions into the

form of fundamental law in a compact draft, they

expressed them in terms of the common law,

confident that they could be shortly and easily

understood.

Ex parte Grossman, 267 U.S. 87, 108-09 (1925).

As we have shown in our initial brief, a governmental

action for a forfeiture or penalty based on a statutory

violation was a classic instance of a “common law” suit

under English and contemporary American practice at

the time of the adoption of the Seventh Amendment.

Irey Main Br. at 32-38. Respecting governmental pro-

ceedings for forfeiture of property based on statutory

violations, this Court, in CJ. Hendry vy. Moore, supra,

extensively examined the contemporaneous American

understanding of the phrase “common law remedy” as

used in section nine of the First Judiciary Act and

concluded — based on an in-depth canvassing of cases

from Virginia, Maryland, Massachusetts, New Jersey,

Pennsylvania, New Hampshire, Connecticut, Maine, and

New York (318 U.S. 140-48) — that

In general the suits were brought against the vessel

or article to be condemned, were tried by jury,

closely followed the procedure in Exchequer, and

if successful resulted in judgments of forfeiture or

condemnation with a provision for sale.

318 U.S. at 140. See also id. at 153 (‘In all this we

perceive a common understanding of judges, lawyers

and text writers, both before and after the adoption of

the Constitution, of the common law nature of the

procedures and judgment in rem in forfeiture cases and

of its use in such proceedings in the Exchequer and in

the American common law courts’’).* See also United

States v. Wonson, \ Gall. at 14 (Irey Main Br. 39-40, n.

21) (federal governmental proceeding for penalty under

Federal Statute).

Chief Justice Stone’s opinion in the Moore case has been

described as

at once a monumental piece of erudition and a notable

contribution to the meaning of the much mooted phrase

“common law remedy.”

Dickinson & Andrews, A Decade of Admiralty in the Supreme

Court of the United States, 36 Cal. L. Rev. 169, 173 (1948).

Thus, as we asserted in our initial brief, under the

traditional criteria for determining the content of the

Seventh Amendment phrase “suit at common law,”

governmental proceedings for penalties or forfeitures

were within the very core of the constitutional concept.

Irey Main Br. at 72. See generally People v. One 194]

Chevrolet Coupe, 37 Cal. 2d 283, 231 P.2d 832

(1951).* The Government, throughout its 91-page sub-

mission never once challenges this assertion. Rather, the

Government now urges this Court to discard its funda-

mental canon of construction (see Gov. Br. at 19-20)

and to interpret the phrase “suit at common law’’ as

limited to civil suits in which the Government is not a

party.* The claimed exemption has no basis in the text

of the Seventh Amendment. Moreover, the exemption

would contradict the contemporaneous understanding

*In One 1941 Chevrolet Coupe, supra, the California Supreme

Court presents another extensive historical survey of English and

American practice in support of its holding that under the

California Constitution there is a right to trial by jury in a state

proceeding to forfeit a car used to transport narcotics. See id. at

286-98, 231 P.2d at 835-43.

‘As we understand the Government’s primary argument, the

distinction the Government urges is between civil cases in which

the litigants are private as opposed to those cases in which the

Government appears as a litigant. Under this theory, presumably

other Federal Question cases in Federal Court in which the

litigants are private persons would be governed by the Seventh

Amendment if the remedy sought were money damages in excess

of $20. See, e.g., Curtis v. Loether, 415 U.S. 189 (1974),

But the Government’s statement of its theory on this point is

not at all clear. Thus, at pp. 43-44 we are told ““[The Seventh

Amendment] dealt only with that private litigation where a civil

jury had been traditional, which the federal courts might now

entertain by virtue of diversity jurisdiction. All other cases,

including the new field of litigation involving the federal

government, were left to be provided for by legislation.”’ That

Statement implies a dichotomy identical to the ‘Article I—

plenary-public rights” theory (see pp. 32-56 infra), but the Govern-

ment seems to inform us, in the course of articulating that

theory, that the historical argument “is... limited to situations

in which the government is the protagonist.”’ Gov. Br. at 62.

of the language of the Seventh Amendment as shown

by practice in the State and Federal Courts at the time

of the Amendment's adoption. Finally, the exemption

presupposes a willingness on the part of the States to

free the Federal Government of the restraint of a

common law jury in the very class of cases where the

citizens of the respective states had actually experienced

the oppression that results when a remote central

governmental power chooses to evade the local lay jury

in pursuit of its own substantive governmental interests.

B. The Government's Argument From Historical

Evidence

The Government constructs the following argument

. . . . ** Bei , 5 P

from “the historical evidence” (Gov. Br. at 20):

|. Between 1776 and 1783 six states (Virginia,

Pennsylvania, North Carolina, Vermont, Massa-

chusetts, and New Hampshire) adopted constitu-

tional provisions concerning civil jury rights which

included a phrase like “between man and man” or

a reference to “‘controversies respecting property”

but made no reference to “disputes to which the

Government is a party’ (Gov. Br. 21-25; quote

from p. 23):

2. Five of these states (Massachusetts, New Hamp-

shire, Pennsylvania, Virginia, and North Carolina)

in their proposed civil jury trial amendments to

the new Constitution included language like “be-

tween man and man” and “controversies respecting

property’ with no reference to “governmental

litigation’ (Gov. Br. 27-30; quote from p. 27):

3. James Madison’s original draft of the Seventh

Amendment similarly included the phrase “be-

tween man and man” and its deletion trom the

final text should be construed as “stylistic im-

provement only, not change of substance.” (Gov.

Br. 30-37; quote from p. 33.)

We deal with each point in turn.

1. The Interpretation of the Government's Key

Phrases in Light of Contemporaneous State Practices —

As we have noted, this Court in CJ. Hendry v. Moore,

supra, extensively surveyed contemporaneous practices

respecting jury trials and common law remedies in State

forfeiture actions for statutory violations in Virginia,

Maryland, Massachusetts, New Jersey, Pennsylvania,

New Hampshire, Connecticut, Maine and New York.°®

See id., 318 U.S. at 14048. The California Supreme

Court, in People v. One 1941 Chevrolet Coupe, 37 Cal.

2d at 297-98, n. 18, 231 P.2d at 842, n. 18.

summarized the results of that historical survey as

follows:

Footnotes 4, 5, and 6 to the opinion in CJ. Hendry

Co. v. Moore, 318 U.S. 133, 63 S. Ct.

499, 87 L. Ed. 633, contain references to many

such cases. In Virginia by 1690 forfeiture cases

under the Navigation Acts were tried at common

law by a jury. In Maryland forfeiture cases were

tried generally in courts of oyer and terminer

acting with the jury. In Massachusetts forfeiture

cases under the Navigation Acts were regularly

tned by the Court of Assistants before juries,

apparently in the same manner as other common-

law cases. In New Jersey proceedings to condemn

forfeited property were tried in the court of

common pleas with jury as early as 1679. In

Connecticut a cargo of a vessel was condemned by

a jury in the county court in 1692. In Maine a

vessel was cleared by a jury in 1680. Idem.

footnote 4. In New York before 1691 forfeiture

cases were tried in the General Quarter Sessions of

the Peace with a jury; after 1691 in the Supreme

Court of Judicature with a jury. CJ. Hendry Co.

'. Moore, 318 U.S. 133, 63 S. Ct. 499, 87 L. Ed.

663, 670, and footnotes 5-9.

In the face of the Moore Court’s historical evidence,

it is unquestionable that the American judges, lawyers,

*The only one of the Government's five siates not covered in

the Moore case survey is North Carolina.

and scholars of the relevant time period would have

understood the phrase “suit at common law” to include

“governmental litigation” (Gov. Br. at 27) or “‘disputes

to which the Government is a party” (id., at 23). Nor

does the Government seriously maintain the contrary.

Rather, the Government relies on the underscored

verbal expressions as illustrated by the Virginia State

Constitutional provision (Gov. Br. 22-23, emphasis

added):

That in controversies respecting property, and in

suits between man and man, the ancient trial by

Jury is preferable to any other, and ought to be

held sacred.

In the Government’s view, these underscored phrases

signify a dichotomy between suits in which the Govern-

ment is a litigant and suits in which only private

persons are litigants. But no historical evidence is

tendered respecting contemporaneous practice in the

Virginia courts (or any other state court) to sustain the

Government's assertion that its “Government litigant

private litigant’ dichotomy is the true meaning of the

Fighteenth Century Virginian choice of phrases. Rather,

virtually the whole of the Government's position Is

"We say “seriously” in this sentence in the text, since at

various points in its brief the Government offers verbal onsurued

tions of its position suggesting that colonial and quaypenys

lawyers would have viewed an action based on a statute os not a

“common law” action. See Gov. Br. at 29, n. 31: (“The

exclusion of ‘federal question’ cases probably reflects the view

that causes of actions created by written laws were not suits ‘at

common law.’ which, alone, were meant to be embraced, ); id.

at 58 (“In sum, we contrast ‘public law’ and ‘common law’ *’).

Whatever the Government’s meaning in these unsupported asser-

tions (see also note 5, supra), the Government tenders ‘no

“historical evidence” to counter our showing that a civil

governmental action based on a violation of a statute and seeking

a penalty or forfeiture was a classic “common law’ action in

England and the American States for jury trial purposes.

‘

pitched squarely on a linguistic inference the Govern-

ment draws from these phrases:

This language is obviously chosen to govern

private litigation. We need hardly belabor the point

that the reference to “suits between man and man”

is inapt to describe disputes to which the govern-

ment is a party. Arguably, the category of “con-

troversies respecting property” is more open-ended,

The more natural reading, however, is that it

encompasses only private actions in rem, or quasi

in rem, as distinguished from personal actions. It is

not a formula which easily encompasses actions

initiated by the government, certainly not the

collection of monetary penalties. But we need not

finally construe the words “controversies respect-

ing property” since this clause of the Virginia

provision (unlike the description “suits between

man and man”’) was left aside by Madison when he

drafted the Seventh Amendment....Gov. Br.

22-23 (emphasis in original).

We find the Government’s “natural reading” most

unnatural. Thus the word “private” appears nowhere in

the Virginia provision, and, in particular, the expression

“controversies respecting property” is not limited to

“private’’ as opposed to “governmental” actions. In-

deed, the Moore case states, respecting Virginia prac-

tice:

*VIRGINIA: In the 1670s forfeitures under the

Navigation Acts were declared by the Council. See

Minutes of the Council and General Court of

Colonial Virginia, 1622-1632 and 1670-1676 (ed.

McIlwaine, 1924), pp. 212, 214, 216, 242-44,

445-46. But by the 1690s such cases were tried at

common law in the General Court before a jury.

Although the records of the General Court were

destroyed by fire during the evacuation of Rich-

mond in 1865, copies of some of its more

important proceedings during the 1690s, con-

temporaneously transmitted to England, have been

preserved, and are reprinted in Executive Journals

of the Council of Colonial Virginia (ed. Mcllwaine,

1925), vol. I. See the cases of The Anne &

Catherine, pp. 173-75; The William & Mary, pp.

241-43: The Content, pp. 379-80; Cole v. Three

Pipes of Brandy, pp. 204-05: cf. The Crane, pp.

233-34, 300; The Catherine. pp. 263-64; The

Society, pp. 196-97, 219, 235-36, 252-53. See also

the cases of The Elezabeth and The Mary & Ellery,

in Edward Randolph, Including His Letters and

Official Papers (ed. Toppan, 1899), vol. 5, p. 139;

The Crown, condemned by a jury at a special

court in 1687, 12 Va. Mag. of Hist. & Biog. 189.

The Governor exercised a power to commission a

special admiralty court in the cases of a prize (The

St. lenace, Exec. J., vol. 1, pp. 366-67, 368-69),

but apparently not for condemnation cases under

the Acts of Navigation. An admiralty court, for

Virginia and North Carolina, was established in

1698. Id., p. 379: Chitwood, Justice in Colonial

Virginia, pp. 71-73.

318 U.S. at 140, n. 4.

vessel in proceedings in rem. But to the generaliza-

tion that a judgment in rem was not a common

law remedy there is an important exception.

Forfeiture to the Crown of the offending object,

because it had been used in violation of law, by a

procedure in rem was a practice familiar not only

to the English admiralty courts but to the court

of Exchequer. The Exchequer gave such a remedy

for the forfeiture of articles seized on land for the

violation of law. And, concurrently with the

admiralty, it entertained true proceedings in rem

for the forfeiture of vessels for violations on

navigable waters.'’ Such suits in the Exchequer

were begun on information and were against the

vessel or article to be condemned. Under the

provisions of many statutes the suit might be

brought by an informer qui tam, who was per-

mitted to share in the proceeds of the forfeited

article; the judgment was of forfeiture and the

forfeited article was ordered to be sold. This was

the established procedure certainly as early as the

latter part of the seventeenth century.? Proceed-

ings in rem, closely paralleling those in the

Thus in Virginia governmental seizures of property

for statutory violations were triable to a jury where the

siezure was beyond the admiralty jurisdiction. This was

characteristic of most of the colonies; i.¢c., while most

in rem actions were admiralty cases, the common law

had a limited in rem procedure for seizures of property

on land defined in the main by the practice in the

English Exchequer:

Exchequer, were also entertained by justices of the

peace in many forfeiture cases arising under the

customs laws (see Hoon, The Organization of the

English Customs System, 1696-1786, pp. 277,

280-83), and the Act of 8 Geo. I, c. 18, §16,

placed within that jurisdiction the condemnation

of vessels up to fifteen tons charged with smuggl-

ing.

The commor law as it was received in the United

States at the time of the adoption of the Constitu-

tion did not afford a remedy in rem in suits

between private persons. Hence the adoption of

the saving clause in the Judiciary Act, as_ this

Court has held in cases already cited, did not

withdraw from the exclusive jurisdiction of ad-

miralty that class of cases in which private suitors

sought to enforce their claims by the seizure of a

C.J. Hendry v. Moore, 318 U.S. at 137-38.

Thus, the lawyers of Virginia (and the other states),

in drafting their Constitution, faced a need to preserve

not merely the common law remedy in in personam

actions, but also the limited common law remedy in

property seizures beyond the admiralty jurisdiction.

One way to accomplish this legislative goal is to specify

jury rights in “suits between man and man” (common

law in personam actions) and “controversies respecting

property,’ (common law in rem actions) trusting to the

judicial process to draw the line in the latter cases

between admiralty and common law in rem actions

based on then-established practice respecting “‘the

ancient trial by jury.”

Another way to accomplish this legislative goal is to

spell out expressly the admiralty and martime exemp-

tion, as in the nearly identical Massachusetts and New

Hampshire provisions:

In all controversies concerning property, and in all

suits between two or more persons, except in cases

in which it has heretofore been otherways used

and practiced, the parties have a right to a trial by

jury; and this method of procedure shall be held

sacred, unless, in causes arising on the high-seas,

and such as relate to mariners wages, the legisla-

ture shall hereafter find it necessary to alter it.

Massachusetts Declaration of Rights of 1780, Art. XV,

in | Schwartz 342.

A third possible way of expressing the same legisla-

tive goal is suggested by Maryland’s proposed amend-

ment to the Federal Constitution (Art. 3, 2 Schwartz

732):

That, in all actions on debts or contracts, [typical

in personam common law writs} and in all other

controversies respecting property, [covering pos-

sible common law in rem actions], of which the

inferior federal courts have jurisdiction, the trial of

facts shall be by jury, if required by either party;

and that it be expressly declared that the state

courts, in such cases, have a concurrent jurisdiction

with the federal courts with an appeal from either,

only as to matter of law, to the Supreme Federal

Court, if the matter in dispute be of the value of

dollars.

But the difficulty with this form of specification

(and, indeed, any attempt at specific enumeration of

cases by subject matter, party-litigant, or type of writ

in a Bill of Rights) is that the chosen language will

never be exactly congruent with the fundamental goal

of the Constitution-writer; i.e., to preserve the existing

jury right based on the historical practice and experi-

ence of the people, in light of changes to be anticipated

in the regime of law in the future. Thus, the better

draftsman’s option is the choice of appropriate generic

categories as per the Seventh Amendment (“suits at

common law’’) trusting in the wisdom of future lawyers

and judges to seek explication of the chosen termi-

nology in light of the historic legal practice and

vocabulary of the time. See Ex Parte Grossman, 267

U.S. at 108-09.

Moreover, it is in any event unlikely that the lawyers

of the Colonial and Revolutionary eras would have

intended to express a “‘government litigant” — “private

litigant’ dichotomy through verbalisms such as “‘suits

between man and man” and “controversies respecting

property.” Thus, in the area of penalties for statutory

violations, one of the particular modes of procedure

well known to lawyers and judges of the day was the

qui tam action; i.e., an informer’s action brought by a

“private’’ person “‘man to man,” as it were, to vindicate

the governmental interest. And these gui tam actions

based on statutory violations applied to in personam

actions for monetary penalties (see 2 Legal Papers of

John Adams, at 181 & n. 28 [Z.L. Wroth & H. Zibot.

eds. 1965]) and in rem forfeiture actions. See CJ.

Hendry v. Moore, 318 U.S. at 137-38. In fact, the qui

fam proceeding to enforce the governmental interest in

monetary penalty actions was one of the established

“common law” jury actions in English practice. See

lrey Main Br. at 36-37.

In sum, the government's “private litigant — Govern-

ment litigant’ dichotomy fits nowhere in the scheme of

common law writs and procedures known to contempo-

rary practitioners.*» The more natural interpretation of

the original intent of the authors of these constitutional

provisions expressed in terms of “controversies respect-

ing property” and “suits between man and man” is that

they intended to preserve the existing common law jury

*The Government seeks “confirmation” of its interpretation

of the Virginia Constitutional provision in “the 1776 | Virginia]

convention’s rejection of Jefferson’s more inclusive pro

posals..."’ Gov. Br. at 23.

Jefferson’s proposals (as reproduced in the Schwartz compila-

tion) were presented as part of his draft for the Judiciary power

section of the Virginia Constitution. | Schwartz 243-246.

immediately preceding the civil jury provision, the Jefferson

draft spells out the tenure attributes for judges of all branches of

the proposed Virginia Court system (General Court, High Court

of Chancery, County Courts and “other inferior jurisdictions.’’)

Then the Jefferson civil jury provision reads:

All facts in causes, whether of Chancery, Common,

Ecclesiastical, or Marine law, shall be tried by a jury upon

evidence given viva voce, in open court; but there [sic]

witnesses are out of colony or unable to attend through

sickness or other invincible necessity, their depositions may

be submitted to the credit of the jury.

1 Schwartz 244. That provision is “more inclusive” than the

“ancient trial by jury’’ preserved by the Virginia Bill of Rights

for “controversies respecting property” and “‘suits between man

and man” insofar as it covers non-common law courts such as

the Chancery (Equity) and admiralty jurisdictions. But there is

no historical evidence to suggest that Jefferson (or anyone else in

Virginia) viewed the difference between the provisions in terms

of the Government's “private litigant—Government litigant”

dichotomy.

Jefferson's next provision appears directed at the criminal jury

nght:

All Fines and Amercements shall be assessed, & Terms of

imprisonment for Contempts & Misdemeanors shall be

fixed by the verdict of a jury.

Compare George Mason’s original draft (Section 8, | Schwartz

242): Virginia Declaration of Rights, Section 8 (id., at 236).

night whenever a man’s purse or property is attacked

civilly either by the direct route of a personal suit

against him or the indirect route of a suit against his

property.

2. The Jury Provisions and Proposals in Other States

— We believe we have shown that the Government’s

argument from historical evidence fails on its major

premise: i.e, the inference based strictly on the

wording of six state constitutional provisions and

corresponding state proposals to amend the Federal

Constitution. However, assuming arguendo the Govern-

ment’s linguistic inference were correct, it is instructive

to compare the Government’s six states with the

contemporaneous constitutional provisions of the re-

maining eight (including Vermont) original states.

Thus, the Constitution of the State of New York

(1777) provided (Art. XLI, 1 Schwartz 312):°

XLI. And this convention doth further ordain,

determine, and declare, in the name and by the

authority of the good people of this State, that

trial by jury, in all cases in which it hath

heretofore been used in the colony of New York,

shall be established and remain inviolate forever.

And that no acts of attainder shall be passed by

the legislature of this State for crimes, other than

those committed before the termination of the

present war; and that such acts shall not work a

corruption of blood. And further, that the legisla-

ture of this State shall, at no time hereafter,

* New York's Constitution had no prefatory Bill of Rights. On

January 26, 1787, the New York legislature passed “An Act

concerning the rights of the citizens of this State’ which

included the following:

Second, that no citizen of this State shall be taken or

imprisoned or be disseized of his or her freehold or

liberties of free customs or outlawed or exiled or con-

demned or otherwise destroyed, but by lawful judgment of

his or her peers or by due process of law.

2 Laws of the State of New York, 344-45 (1886).

institute any new court or courts, but such as shall

proceed according to the course of the common

law.

Governmental suits for fines and forfeitures were

common law actions triable to a jury under this

Constitutional provision. See Vergari v. Marcus, 26

N.Y.2d 764, 257 N.E.2d 652 (1970): Colon v. Lisk, 13

App. Div. 195, 43 N.Y.S. 364, aff'd 153 N.Y. 188, 47

N.E. 302 (1897). See generally C. J. Hendry v. Moore,

318 U.S. at 141-48. New York’s proposed Amendment

to the Constitution reads (1 Schwartz 913):

That the trial by Jury in the extent that it obtains

by the Common Law of England is one of the

greatest securities to the rights of a free People,

and ought to remain inviolate.

Maryland’s constitutional provision respecting civil

jury rights reads (Art. XVII, 1 Schwartz 281):

That the trial of facts where they arise, is one of

the greatest securities of the lives, liberties and

estates of the people.

Maryland’s proposal to the constitutional convention is

set forth at p. 14, supra. New Jersey’s constitutional

provision (1776) states (Art. XXII, 1 Schwartz 260):'°

The Government states that the constitutional provisions of

New Jersey and Maryland are “vague generalities.” Gov. Br. at

21. We are told New York’s and Maryland’s proposed amend-

ments are “perhaps ambiguous.”’ Gov. Br. at 28.

These efforts at characterization depend in the first instance

on the Government’s rejection of this Court’s traditional canon

of construction for ascertaining the meaning of constitutional

provisions framed in the language of the common law in light of

the historical experience of the times. See p. 5, supra. Thus, a

jury trial right according to “tthe Common Law of England” is

hardly ambiguous on the “historical evidence” before this Court

on the point in issue ii this case: i.e., was government litigation

presumed excluded?

Moreover, the Government's attempt to avoid the force of the

proposed Maryland Amendment to the Constitution turns on the

fcontimucd )

That the common law of England, as well as so

much of the statute law, as have been heretofore

practised in this Colony, shall still remain in force,

until they shall be altered by a future law of the

Legislature; such parts only excepted, as are

repugnant to the rights and privileges contained in

this Charter; and that the inestimable right of trial

by jury shall remain confirmed as a part of the law

of this Colony, without repeal, forever.

Delaware’s constitutional provision (1776) states

(Section 13, 1 Schwartz 278):

That trial by jury of facts where they arise is one

of the greatest securities of the lives, liberties and

estates of the people.

South Carolina (1779) had the following provision,'!

Art. XXV (1 Schwartz 332):

(footnote continued from proceeding page)

factually false premise that “cases of revenue’’ were “probably

then supposed to exhaust the category of federal litigation.”

Gov. Br. at 28, n. 29. See the discussion of section nine of the

First Judiciary Act at p. 4, supra. See also United States v. Wonson,

supra. Indeed, the express provision in the proposed Maryland civil

jury trial amendment exempting revenue cases from the normal

restriction on appeals of facts in common law actions (Amend. 4. 2

Schwartz, 733) demonstrates that there could not have been a

presumed “‘government litigant—private litigant’ dichotomy in

Maryland’s case.

"That South Carolina provision is particularly interesting as a

direct response to the conflict over the expansion of admiralty’s

jurisdiction to the derogation of common law jury rights in

governmental penalty and forfeiture cases. _

We do not find in South Carolina’s Constitution the typical

pattern of parallel provisions addressed to criminal and civil

cases. But Article XLI of the South Carolina Constitution reads

(1 Schwartz 335):

That no freeman of this State be taken or imprisoned, or

disseized of his freehold, liberties, or privileges, or out-

lawed, exiled, or in any manner destroyed or deprived of

his life, liberty, or property, but by the judgment of his

peers or by the law of the land.

That the jurisdiction of the court of admiralty be

confined to maritime causes.

Finally, Georgia’s provision (1777) reads (Art. XL, 1

Schwartz 298):

Art. XL. All causes, of what nature soever, shall be

tried in the supreme court, except as hereafter

mentioned; which court shall consist of the chief-

justice, and three or more of the justices residing

in the county. In case of the absence of the

chief-justice, the senior justice on the bench shall

act as chief-justice, with the clerk of the county,

attorney for the State, sheriff, coroner, constable,

and the jurors; and in case of the absence of any

of the aforementioned officers, the justices to

appoint others in their room pro tempore. And if

any plaintiff or defendant in civil causes shall be

dissatisfied with the determination of the jury,

then, and in that case, they shall be at liberty,

within three days, to enter an appeal from that

verdict, and demand a new trial by a special jury,

to be nominated as follows, viz: each party,

plaintiff and defendant, shall choose six, six more

names shall be taken indifferently out of a box

provided for that purpose, the whole eighteen to

be summoned, and their names to be put together

into the box, and the first twelve that are drawn

out, being present, shall be the special jury to try

the cause, and from which there shall be no

appeal.

the existing jury right as interpreted in light of English

and the relevant American Colonial experience. See Ex

Parte Grossman, supra.

But, most importantly, the extraordinary range of

expressions for these states (and, indeed, all the original

states) demonstrates the basic correctness of the Court’s

interpretation in Colgrove vy. Battin, supra, of the

legislative history of the Seventh Amendment as it

appears in the Federal Constitution. In the Colgrove

case, this Court — based on its own survey of the

legislative record of the Constitutional Convention and

the ratification debates in the State Conventions —

drew the following conclusions:

But the omission of a protective clause from the

Constitution was not because an effort was not

made to include one. On the contrary, a proposal

was made to include a provision in the Constitu-

tion to guarantee the right of trial by jury in civil

cases but the proposal failed because the States

varied widely as to the cases in which civil jury

trial was provided, and the proponents of a civil

jury guarantee found too difficult the task of

fashioning words appropriate to cover the different

state practices.* The strong pressures for a civil

jury provision in the Bill of Rights encountered

the same difficulty. Thus, it was agreed that, with

no federal practice to draw on and since state

practices varied so widely, any compromising

language would necessarily have to be general. As a

In none of these six states'? is there even a shadow

of a suggestion that the jury rights the states were

seeking to preserve were somehow a function of a

“private litigant — Government litigant” dichotomy. The

provisions of all of these states, (and, we submit, the

provisions of all twelve states) are intended to preserve

"Connecticut had no applicable provision. See 1 Schwartz

289-90. Rhode Island had no State Constitution until 1842. /d.

at 95.

result, although the Seventh Amendment achieved

the primary goal of jury trial adherents to incorpo-

rate an explicit constitutional protection of the

right of trial by jury in civil cases, the right was

limited in general words to “suits at common

law.”? We can only conclude, therefore, that by

referring to the “‘common law,” the Framers of

the Seventh Amendment were concerned with

preserving the right of trial by jury in civil cases

where it existed at common law, rather than the

various incidents of trial by jury.'®

-——

413 U.S. at 153-56. If the Government's linguistic

inference were acceptable as a mode of interpreting the

relevant constitutional language of the six states the

Government relies on, this Court would then be faced

with the precise disuniformity in state practice and in

state proposals for constitutional amendments which

necessitated a uniform federal standard based princi-

pally on contemporaneous English Common Law prac-

tice in construing the Seventh Amendment.

3. James Madison's First Draft of the Seventh

Amendment — Perhaps the most glaring flaw in the

Government's argument from historical evidence is the

treatment accorded James Madison’s initial draft of the

Seventh Amendment, which read (2 Schwartz 1028):

In suits at common law, between man and man,

the trial by jury, as one of the best securities to

the rights of the people, ought to remain inviolate.

The “between man and man” phrase — which forms

the lynchpin of the Government’s entire historical

evidence argument — was deleted in Committee, and

the Amendment came to the Floor of the House in the

following form (2 Schwartz 1117):

In suits at common law, the right of trial by jury

shall be preserved. ...

The Government explains (Gov. Br. at 33):

When we compare this provision with Madison’s

draft, it is obvious the committee was condensing

and sharpening language. The florid phrase *‘as one

of the best securities to the rights of the people”

is deleted as surplusage. And the shorter and more

direct mandate “shall be preserved” is substituted

for “ought to remain inviolate.” We suggest the

omission of the words “between man and man”

served a like purpose: stylistic improvement only,

not change of substance.

But the Government’s whole historical evidence argu-

ment is built on a linguistic inference based entirely on

the supposedly unambiguous meaning of the verbalism

“between man and man” (Gov. Br. at 22-23, emphasis

in original):

This language is obviously chosen to govern private

litigation. We need hardly belabor the point that

the reference to “suits between man and man”’ is

inapt to describe disputes to which the government

is a party....

Indeed, we are cautioned by the Government that the

meaning of this verbalism is so inescapably plain that a

decent respect for the professional qualifications of the

Virginians who drafted the state Declaration of Rights

(Mason, Madison, and others) forbids our assuming the

inclusion of the phrase in the Virginia State provision

was “inadvertant” (Gov. Br. 23):

In sum, the civil jury provision in the Virginia

Declaration, on its face, is one limited to private

litigation. Considering the distinguished members

of the Committee responsible for its drafting, this

cannot be supposed to be inadvertant... .

But somehow, when we arrive at the critical step in

the adoption of the Federal Constitutional provision,

the deletion of this same magic phrase, so plain in

meaning and significant in substantive content, by the

same highly qualified lawyer, is transmogrified into a

matter of:

Stylistic improvement only, not change of sub-

stance.

Gov. Br. at 33. The severity of the Government's

problem here becomes compounded when the Govern-

ment tries to explain itself on the point.

First, we are referred to Professor Schwartz’s state-

ment: “[t] hese changes scarcely alter the fact that the

Committee version was a virtual restatement of the

amendments proposed by Madison.” Gov. Br. at 34

citing 2 Schwartz 1050. But nowhere does Professor

Schwartz adopt the Government’s interpretation of the

“between man and man phrase”’ in the original draft as

supporting an inference that Madison intended to limit

the civil jury right to cases brought by non-

governmental litigants.'”

Second, we are told that “[c]ertainly, with respect

to the provision that became the Seventh Amendment,

the committee had no reason to go further, since, as we

have seen, no state had proposed a broader civil jury

trial provision.’ (Gov. Br. at 34). That statement, we

think, is not correct. See the discussion of the New

York and Maryland proposals at p. 18 and note 10.

MWe note that prior to Madison's first civil jury proposal, his

draft included the following (2 Schwartz 1027):

Sixthly, that in article 3d, section 2, lof the original

Constitution] be annexed to the end of clause 2d, these

} > wit:

— ned coud to such court shall be allowed where the

value in controversy shall not amount to dollars: nor

shall any fact triable by jury, according to the course of

the common law, be otherwise re-examinable than may

consist with the principles of common law.

His civil jury right draft appeared in the following paragraph (1

Schwartz 1028):

In cases of crimes committed not within any county, the

trial may by law be in such county as the laws shall have

prescribed. In suits at common law, between man and man,

the trial by jury, as one of the best securities to the rights

of the people, ought to remain inviolate.

Under Madison’s original format, it would appear that the

intent was to protect the might generally to trial by jury

according to the course of the common law, and the between

man and man” phrase was simply a way of distinguishing civil

from criminal litigations. Cf, Capital Traction Co, v. Hof, supra,

174 U.S. at 16 (“By the common law, justices of the peace had

some criminal jurisdiction, but no jurisdiction whatever of suits

between man and man...’’).

Third, we are told:

Moreover, to the extent that State practices dif-

fered, or that some jury trial proposals were more

encompassing than others, the normal course of

political compromise suggests that Congressmen

would have settled on the narrow common ground.

This, of course, was all the more appropriate in

writing a constitutional rule — which could always

be expanded by subsequent legislation.

Our conclusion is confirmed when we look at

the membership of the select committee. Many

were declared Federalists,5' and all but one of the

others*? were supporters of the unamended Consti-

tution.*? And, even if any member had sought to

widen the scope of the proposed amendments, it is

sure that the committee as a whole, under the

influence of Chairman Vining, Madison and Sher-

man — its only prominent men — would have

rejected such an effort... .

Gov. Br. at 34-35.

Initially, we note that James Madison on the floor of

the House rejected the notion that the rationale for the

Federal Bill of Rights could in any way be limited by a

“common ground” of the respective State Bills or

Declarations of Rights (2 Schwartz 1031):

It may be said, indeed it has been said, that a

bill of rights is not necessary, because the estab-

lishment of this Government has not repealed

those declarations of rights which are added to the

several State constitutions; that those rights of the

people, which had been established by the most

solemn act, could not be annihilated by a subse-

quent act of that people, who meant, and declared

at the head of the instrument, that they ordained

and established a new system, for the express

purpose of securing to themselves and posterity

the liberties they had gained by an arduous

conflict.

| admit the force of this observation, but I do

not look upon it to be conclusive. In the first

place, it is too uncertain ground to leave this

provision upon, if a provision is at all necessary to

secure rights so important as many of those I have

mentioned are conceived to be, by the public in

general, as well as those in particular who opposed

the adoption of this constitution. Besides, some

States have no bills of rights, there are others

provided with very defective ones, and there are

others whose bills of rights are not only defective,

but absolutely improper; instead of securing some

in the full extent which republican principles

would require, they limit them too much to agree

with the common ideas of liberty.

More importantly, this final argument in support of

the Government's “historical evidence’ case reduces to

the proposition that this Court should read the Bill of

Rights generally as narrowly as possible because the

Federalist political party was (in the Government’s

interpretation of the Federalist political motivation)

anti-Bill of Rights. It is important to recognize that

there is no principled basis (in terms of this Federalist

political motivation argument) for differentiating the

Seventh Amendment from the rest of the Bill of

Rights.'4

In Boyd v. United States, 116 U.S. 616 (1885), this

Court responded to the Government’s argument that

Thus the Government observes at another point (Gov. Br.

27) respecting the debates at the Constitutional Convention over

amending Article II] to include a civil jury right that the

“prevailing mood of the delegates [is shown by the fact that]

every State without exception rejectied|] a civil jury trial

Amendment to Article IIL”” But the States also unanimously

rejected Colonel Mason’s motion for a committee to prepare any

Bill of Rights for the Constitution. 2 M. Farrand, Records of the

Federal Convention, 587-88 (1911).

the penalty and forfeiture statute there under considera-

tion should be exempted from the Fifth Amendment

and Fourth Amendment as not within the literal terms

of those provisions:

It may be that it is the obnoxious thing in its

mildest and least repulsive form; but illegitimate

and unconstitutional practices get their first foot-

ing in that way, namely: by silent approaches and

slight deviation from legal modes of procedure.

This can only be obviated by adhering to the rule

that constitutional provisions for the security of

person and property should be liberally construed.

A close and literal construction deprives them of

half their efficacy and leads to gradual deprecia-

tion of the right, as if it consisted more in sound

than in substance. It is the duty of courts to be

watchful for the constitutional rights of the

citizens, and against any stealthy encroachments

thereon. Their motto should be obsta_prin-

ciplis. ...

Id. at 635.

That canon of construction recognizes that the Bill

of Rights is “aimed predominantly at restraining the

Government as an instrument of the popular will.”

Bivens v. Six Unknown Named Agents, 403 U.S. 388,

404 (1971) (Harlan J. concurring). Such a restraint

depends ultimately on the spirit of interpretation which

this Court (and the independent Federal Judiciary

generally) applies to these “vague generalities.’ (Cf.

Gov. Br. at 21). But James Madison said it best in

explaining the Bill of Rights to the House (1 Schwartz

1031):

It has been said, that it is unnecessary to load the

constitution with this provision, because it was not

found effectual in the constitution of the particu-

lar States. It is true, there are a few particular

States in which some of the most valuable articles

have not, at one time or other, been violated; but -

it does not follow but they may have, to a certain

degree, a salutary effect against the abuse of

power. If they are incorporated into the constitu-

tion, independent tribunals of justice will consider

themselves in a peculiar manner the guardians of

those rights; they will be an impenetrable bulwark

against every assumption of power in the legislative

or executive; they will be naturally lead to resist

every encroachment upon rights expressly stipu-

lated for in the constitution by the declaration of

rights. ..

When all is said and done, we doubt that the

Government has been able to explain away the deletion

of the critical verbalism on whose alleged plain meaning

the Government ha itched its novel claim. Cf

Apodaca vy, Oregon, 406 J.S. 404, 410 (1972) (“Surely

one fact that is absolutely clear from this history is that

after a proposal had been made to specify precisely

which of the common-law requisites of the jury were to

be preserved by the Constitution, the Framers explicitly

rejected the proposal and instead left such specification

to the future.”’).

In fact, if the Government’s critical verbalism were

thought to have the meaning the Government ascribes

to it, the deletion of this phrase would have to cut

strongly against the Government’s position in these

cases. This would be especially so in the case of the

draftsman for the Federal Bill of Rights, since ore of

the principal arguments being made against any Bill of

Rights was that a failure to enumerate a particalar right

would be taken as an abolition of tha right. As

Madison explained on the floor of the House in

presenting his original draft (2 Schwartz 1031):

It has been objected also against a bill of rights,

that, by enumerating particwar exceptions to the

grant of power, it would disparage those rights

which were not placed ia that enumeration; and it

might follow, by implication, that those rights

which were not singled out, were intended to be

assigned into the hands of the General Govern-

ment, and were consequently insecure. This is one

of the most plausible arguments I have ever heard

urged against the admission of a bill of rights into

this system; but, I conceive, that it may be

guarded against. I have attempted it, as gentlemen

may see by turning to the last clause of the

Fourth Resolution.

The clause in Madison’s original draft that he referred

to here reads (2 Schwartz 1027):

The exceptions here or elsewhere in the constitu-

tion, made in favor of particular rights, shall not

be so construed as to diminish the just importance

of other rights retained by the people, or as to

enlarge the powers delegated by the Constitution:

but either as actual limitations of such powers, or

as inserted merely for greater caution.

It is unlikely that this lawyer would have stricken a

phrase thought to carry a “plain meaning” limitation on

a general class described by the legislative language as

within the protected zone of rights, on an assumption

that future courts or lawyers would treat the deletion

as stylistic. Nor do we think persuasive the Govern-

ment’s explanation that “the committee completed its

work very rapidly, in a single week” (Gov. Br. at 33,

footnote omitted).

C. The First Judiciary Act

Finally, the Government challenges our reliance on

the provision for jury trial in section nine of the First

Judiciary Act for “all suits for penalties and forfeitures

incurred, under the laws of the United States... .” See

Irey Main Br. 22-25; Gov. Br. at 44-50.

But the Government’s discussion of the First

Judiciary Act appears only to confirm the canon of

construction respecting that Act’s relationship to the

Seventh Amendment repeatedly enunciated by this

Court — ie., that the Judiciary Act must be taken as

important evidence of its true meaning. See the cases

cited at Irey Main Br. 22: see generally Myers v. United

States, 272 U.S. §2, 174-75 (1926).

Thus, the Government’s primary argument in this

Court is not that penalty and forfeiture cases are

somehow to be distinguished from among the general

run of government litigation, but rather that all suits in

which the government is a party would have been

presumed — on the basis of the linguistic inference of

the deleted “‘man and man” phrase — to be outside the

category of “suits at common law” within the meaning

of the Seventh Amendment. That argument, we submit,

cannot stand — as an explanation of the linguistic

frames of reference which governed the authors of both

the Seventh Amendment and the Judiciary Act'*’ — in

the face of the inclusion within section nine of the

Judiciary Act of “‘all suits at common law where the

United States sues... .”

The Government attempts to deal with this consider-

able embarrasment to its theory by citing this Court’s

decision in 1876 in Kohl v. United States, 91 U.S. 367,

which states that eminent domain proceedings could be

considered “suits at commen law” under the jurisdic-

tional provision in Section 11 of the Act which encom-

passes “‘all suits of a civil nature at common law or in

equity...” But our point is not that every time the

phrase “suits at common law” appears in the Judiciary

Act,. it follows that the Constitution requires a jury.

Rather, our contention is that with respect to the

'SOn the relationship between the Bill of Rights and the First

Judiciary Act, see Warren, “New Light on the History of the

Federal Judiciary Act of 1787," 37 Harv. L. Rev. 49 (1923).

substantive categories of cases understood on the basis of

contemporary jury practices to be preserved by the

general category “suits at common law,” the actions of

the authors of the First Judiciary Act in setting the

parameters of the jury right must have taken as signifi-

cant historical evidence. Where contemporary English and

American practice clearly demonstrated there would be

no jury trial for a given category of cases, presumably the

authors of both the Seventh Amendment and the First

Judiciary Act would anticipate that construction of these

enactments,'® and would not intend a jurisdictional

provision, standing alone, to be dispositive.'”

Finally, with respect to the Judiciary Act’s expansion

of federal jurisdiction beyond admiralty to encompass

“all seizures on land” (ninth section, Judiciary Act) see

Mr. Smith’s comments on the floor of the House at |

Annals of Cong. 828-30, and particularly his observa-

tion at 1 Annals of Cong. 829 that (emphasis added):

‘It is interesting to note the reference to contemporary

jurisdictional practices in the Court of Exchequer in England

during the course of the debates regarding the First Judiciary

Act. 1 Annals of Cong. 846.

We do not find at 1 Annals of Cong. 808, the passage

apparently referred to by the Government at Gov. Br. 46, n. 77.

Nor do we think the discussion at | Annals of Cong. 838-39,

wherein it was apparently being maintained incorrectly that state

courts could not constitutionally be given power to decide

federal questions based on Federal Statutes, offers the Govern-

ment much support.

‘Thus the exemption of eminent domain suits from the

Seventh Amendment category of “suits at common law” has

been rested by this Court on

the practice in this country and in England to ascertain by

commissioners, special tribunals, and other like agencies,

the compensation to be made to owners of private

property taken for public use, and it was not to be

supposed that the general provision in American Constitu-

tions, national and state, preserving the right of trial by

jury, superseded that practice.

Chicego, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 245 (1897).

There can be no reason why our constituents

should be displeased with the arrangement; the

district judge will be elected from among the

citizens of the State where he is to exercise his

functions, and will feel every inducement to

promote the happiness and protect the liberties of

his fellow-citizens. He will be more independent

than the State judges, holding his commission

during good behavior, and not influenced by the

fear of a diminution of his salary. Trial by jury

will be secured in all cases wherein it is provided

in the State courts. Should the district judge be

under any bias, it is reasonable to suppose it

would be rather in favor of his fellow-citizens,

than in favor of foreigners, or the United

States. ...

AN OSHA NON-JURY ADMINISTRATIVE

PENALTY ADJUDICATION IS NOT SUS-

TAINABLE UNDER THE GOVERNMENT’S

“ARTICLE I PLENARY POWER PUBLIC

RIGHTS” THEORY.

A.The Government’s “Public Rights” Theory

Inescapably Encompasses the Federal Judici-

ary’s Entire Article IIIf Federal Question

Jurisdiction, Both as a Matter of Original and

Appellate Jurisdiction.

The Government contends that under Article III and

the Seventh Amendment Congress is free to assign a

“controversy” (Gov. Br. at 62) to “an administrative

forum for the resolution of factual disputes’ (id. )

without jury participation at any stage as long as

the subject matter is one with respect to which the

legislature has plenary constitutional power.

(/d.) This “plenary constitutional power” concept is in

turn defined by the Government as encompassing any

area of regulatory power delegated to the Congress

under Article I of the Constitution (id.).'* And this

theory cannot — as the Government acknowledges — be

limited to circumstances where Congress chooses a

government agency, rather than a private individual, to

enforce its “‘plenary”’ regulatory power. /d. at 62-63.

Thus the Government’s “plenary power” test for the

permissible limits of congressional discretion to delegate

a case or controversy to a non-jury administrative

adjudicator necessarily reaches, inter alia,

all Cases, in Law and Equity, arising under this

Constitution, the Laws of the United States, and

Treaties made, or which shall be made, under their

Authority;....

to which Article III, Section 2 extends the judicial

power of the United States.

Moreover, at least within the Federal Question

category of cases, the “plenary power” test necessarily

embraces the whole of the Federal Judiciary’s “appel-

late jurisdiction both as to Law and Fact,” to which

Article III of the Constitution extends the Judicial

Power “with such Exceptions, and under such Regula-

tions as the Congress shall make.” Jd. Thus, it cannot

be contended that there is an independent due process

right under the Fifth Amendment to appellate review

by an Article III federal court at least as to questions

of “‘law” posed on an administrative record (as opposed

to “factual disputes’’). See Palmore v. United States,

411 U.S. 389, 410 (1973).

'8The Occupational Safety and Health Act rests only on

Congress’ power to regulate interstate commerce under Article I,

Section 8. See OSHA §2(b), 29 U.S.C. §651. Hence the

inescapable breadth of the Government’s “plenary power”

theory.

This “plenary power test’? ~— even within its ac-

knowledged minimal analytical contours — _ entails

so deep an erosion of the fundamental Article III

federal judicial check on abuses of Congressional and/or

Executive Power as to warrant the closest scrutiny of

the precedents and authorities advanced by the

Government in support of the theory. Yet a reading of

those precedents reveals that, for the most part, the

authorities cited by the Government affirmatively

compel rejection of the “Article | — plenary power —

public rights’’ argument for bypassing Article III and

the Seventh Amendment when Congress tries to go

beyond those special subject matter areas where Article

I (or some Constitutional doctrine) effectively gives the

legislative branch of the nation’s Government exclusive

and complete regulatory power. Specifically, this Court

has never sustained a congressional delegation of Article

Ill cases or controversies to a non-Article III tribunal

where the congressional regulatory power rested only on

the commerce clause.

B. This Court’s Cases Defining the ‘Plenary

Power” and “Pubiic Rights’ Concepts Ex-

pressly Limit Those Doctrines to Subject

Matter Areas Where Congress Has Exclusive

and Complete Regulatory Authority.

1. Introduction

The Government extracts its “Article I -— plenary

power — public rights” theory from three sources: (a)

cases defining Congress’ regulatory power predominant-

ly in the subject matter areas of taxation and admission

'%tn the ensuing discussion, we shall at times use the

shorthand “Article I—plenary power—public rights” to state our

understanding of the Government’s theory.

of aliens; (b) cases defining Congress’ regulatory power

over “legislative courts” predominantly in the territories

and the District of Columbia; and (c) this Court’s

decision in Crowell v. Benson, 285 U.S. 22 (1932).

2. The Taxation and Alien Immigration Cases

The Government derives its “public rights” concept

initially from the sentence in which this phrase is used

in the following paragraph of the decision of this Court

in Murray’s Lessee v. Hoboken Land Co., 59 U.S. (18

How.) 272, 284 (1856):

To avoid misconstruction upon so grave a subject,

we think it proper to state that we do not

consider Congress can either withdraw from

judicial cognizance any matter which, from its

nature, is the subject of a suit at common law, or

in equity, or admiralty; nor, on the other hand,

can it bring under the judicial power, a matter

which, from its nature, is not a swbject for judicial

determination. At the same time there are matters,

involving public rights, which may be presented in

such form that the judicial power is capable of

acting on them, and which are susceptible of

judicial determination, but which Congress may or

may not bring within the cognizance of the courts

of the United States, as it may deem proper.

Equitable claims to land by the inhabitants of

ceded territories form a striking instance of such a

class of cases; and as it depends upon the will of

Congress whether a remedy in the courts shall be

allowed at all, in such cases they may regulate it

and prescribe such rules of determination as they

may think just and needful. Thus it has been

repeatedly decided in this class of cases, that upon

their trial, the acts of executive officers, done

under the authority of Congress, were conclusive,

either upon particular facts involved in the inquiry

or upon the whole title.

Po \

Foley yv. Harrison, 15 How. 433;

Gray, 16 How. 48.

See Gov. Br. at 67. In this passage, the Murray Court

did not simply launch a slogan to wreak what havoc it

might on the scheme of the Constitution some one

hundred and twenty years later. Rather, the Court, in

order “[t]o avoid misconstruction upon so grave a

subject ..."’, spelled out in the terminology common to

both Article Ill and the Seventh Amendment (Le.,

“suit(s} at the common law, or in equity, or

admiralty; cf Parsons vy. Bedford, 28 U.S. (3 Pet.)

433, 436 (1830)) the limits as well as the reach of the

“public rights” concept. Thus, Congress cannot “with-

draw from judicial cognizance any matter which, from

its nature, is the subject of a suit at common law,” the

precise category covering governmental proceedings

either against the person or thing, for penalties or

forfeitures. See pp. 7, supra. Moreover, to make

absolutely certain the opinion would not be miscon-

strued on so grave a matter, the Murray Court, in the

same definitional paragraph, tenders a discussion of the

Court's cases dealing with titles to land ceded by the

government as illustrative of the “public rights”

category, in which “it depends upon the will of

Congress whether a remedy in the courts shall be

allowed at all... .’"*°

The entire content of the Murray opinion underlines

this construction of the “public rights” phrase as used

in Murray. Thus, the facts in Murray involved summary

seizure by distress warrant of the property of 4

Customs Collector in default in his accounts to the

Treasury. The congressional statute authorizing sum-

ee also Foley v. Harrison, 56 U.S. (15 How.) 433, 448

(1853). Burgess v. Grav, §7 U.S. (16 How.) 48, 65 (1853).

mary collection was challenged on both Article III] and

Fifth Amendment due process grounds. The Court

treated the two constitutional objections together as

raising

the questions, whether, under the Constitution of

the United States, a Collector of the Customs,

from whom a balance of account has been found

to be due by accounting officers of the Treasury,

designated for that purpose by law, can be

deprived of his liberty or property, in order to

enforce payment of that balance, without the

exercise of the judicial power of the United States,

and yet by due process of law, within the meaning

of those terms in the Constitution; and if so, then,

second, whether the warrant in question was such

due process of law.

Id., 59 U.S. (18 How.) at 275-76. To justify its

conclusion that summary tax process may be “due

process,” even while bypassing the courts altogether,

the Court presented an extended historical analysis of

American and English practice respecting tax collection

procedures, including the following:

It is true that in England all these proceedings

were had in what is denominated the Court of

Exchequer, in which Lord Coke says, 4 Inst. 115,

the barons are the sovereign auditors of the

kingdom. But the barons exercise in person no

judicial power in auditing accounts, and it is

necessary to remember that the exchequer includes

two distinct organizations, one of which has charge

of the revenues of the Crown, and the other has

long been in fact, and now is, for all purposes, one

Of the judicial courts of the kingdom, whose

proceedings are and have been as distinct in most

respects, from those of the revenue side of the

exchequer, as the proceedings of the Circuit Court

of this district are from those of the Treasury; and

it would be an unwarrantable assumption to

conclude that, because the accounts of receivers of

revenue were settled in what was denominated the

Court of Exchequer, they were judicial contro-

versies between the King and his subjects,

according to the ordinary course of the common

law or equity. The fact, as we have already seen,

was Otherwise.

Id., 59 U.S. (18 How.) at 281-82 (emphasis added).

It was precisely on the “judicial” side of the Court

of Exchequer where a civil governmental suit for a

monetary penalty for violation of a statute would have

been brought, strictly as a common law action with a

right to trial by jury. See generally Irey Main Br. 36-37;

Damsky v. Zavatt, 289 F.2d 46, 49-50 (2d Cir. 1961).

Summary process for collection of taxes due fell on the

“revenue side of the exchequer” — whose “functioning

has been likened to that of ‘an administrative

tribunal.’ Damsky v. Zavatt, supra, 289 F.2d at 49

quoting from 1 F. Pollock & F. Maitland, The History of

English Law, 192 (2d ed. 1889).

The category of “public rights’’ then, as carefully

delineated by the Court in Murray, in essence

encompassed those subject matters as to which

Congress’ regulatory power was so complete that

availability of virtually amy judicial remedy was

dependent in the first instance on the Congress’ consent

to allow any suit at all. /d.. 59 U.S. (18 How.) at 284.

That delineation of the “public rights” concept as the

analytical “line” setting the limits of Congressional

power to bypass Article III and the Seventh Amend-

ment meshes with this Court's rationale for holding that

suits to enforce claims against the Sovereign are not in

the nature of common law suits for Seventh Amend-

ment purposes. See Mcklrath v. United States, 102 U.S.

426, 439-40 (1889). See also Irey Main Br. 52-53.

And the same understanding of this “public rights”

limitation on the subject matters with respect to which

Congress may totally bypass the judicial power is

emphasized in practically every line of the Court's

opinion in Oceanic Steam Navigation Co. v. Stranahan,

214 U.S. 320, 339-40 (1909). Indeed, the Oceanic

Court, in its analysis of Congress’ unique “plenary”

power in these subject matter areas, expressly refers to

the difference between these powers and the regulatory

power Congress exercises when it acts exclusively under

the Interstate Commerce Clause (214 U.S. at 334,

emphasis added):

Resting, as the statute does, upon the authority of

Congress over foreign commerce and its right to

control the coming in of aliens into the United

States, and to regulate that subject in the fullest

degree, reserving for future consideration the

particular contentions advanced at bar by the

plaintiff in error, it may not be doubted that it is

not open to discussion that the statute, as thus

construed, was within the power of Congress to

enact. In Buttfield v. Stranahan, 192 U.S. 470, 48

L. ed. 525, 24 Sup. Ct. Rep. 349, considering the

subject, it was said (pp. 492, 493):

“Whatever difference of opinion, if any, may

have existed or does exist concerning the limita-

tions of the power resulting from other provisions of

the Constitution, so far as interstate commerce is

concerned, it is not to be doubted that from the

beginning Congress has exercised a plenary power in

respect to the exclusion of merchandise brought

from foreign countries; not alone directly, by the

enactment of embargo statutes, but indirectly. as a

necessary result of provisions contained in tariff

legislation. It has also, in other tariff legislation,

exerted a police power over foreign commerce by

provisions which, in and of themselves, amounted to

the assertion of the right to exclude merchandise at

discretion.”

The Murray and Oceanic cases together, then,

carefully limit the “public rights” and “plenary power”

concepts — as to those concepts relate to Article II

and the Seventh Amendment — to those subject matters

where Congressional regulatory power is complete and

exclusive. That same limitation is repeatedly expressed

in all the other immigration and tax cases cited by the

Government in support of its theory. See Lloyd

Sabaudo Societa v. Elting, 287 U.S. 329, 334 (1932)?!

Helvering v. Mitchell, 303 U.S. 391, 399 (1938),

Wickwire v. Reinecke, 275 U.S. 101, 105-06 (1927)

citing, inter alia, Nicholls vy. United States, 74 U.S. (7

Wall.) 122, 127 (1869) and Cheatham y. United States,

92 U.S. 85, 88-89 (1876). See also Phillips y.

Commissioner, 283 U.S. 589, 595 & n. 5 (1931).??

This Court's more recent cases amply demonstrate

that special rules of constitutional jurispurdence operate

in the areas of Congressional power over aliens and

tuxation. See Aleindienst v. Mandel, 408 U.S. 753,

765-66 (1972), (citing, inter alia, Oceanic Steam

Navigation Co, v. Stranahan, 214 U.S, 320, 339 (1909)),;

US. v. Ortiz, 43 U.S.L.W. 5026, 5032 (June 30, 1975):

Almeida-Sanchez v. United States, 413 U.S. 266, 272

(1973): id., 413 U.S. at 279 (Powell, J.. concurring);

Lynch vy. Household Finance Corp. 405 U.S. $38,

"The Sabaudo case also expresses the collateral development

of a Fifth Amendment due process check on Congressional

powers even within these zones of extraordinary plenary power.

See id., 287 U.S. at 335-36 limiting language seemingly to the

contrary in the Oceanic case, supra, 214 U.S. at 342. See also

Phillips v. Commissioner, 283 U.S, 589 (1931).

In Phillips v. Commissioner, 283 U.S. 589, 595 & note §

(1931) the Court relied, inter alia, on Cheatham vy. United States,

42 U.S. 85, 89 (1876) and “the ancient English practice of

summary seizure of the property of a crown debtor” (see 283

U.S. 595, n. 5) to support its view that “the right of the United

States to collet its internal revenue by summary administrative

proceedings has long been settled.” Also in Phillips, the Court

rested the Murray rationale squarely on “the need of the

government promptly to secure its revenues.” /d., 283 U.S. at

596.

54243, n. 6 (1972). See also Perez v. Ledesma, 401

U.S. 82, 126-27 (1971) (Brennan, J., concurring), and

particularly Justice Brennan’s treatment at footnote 17

of Phillips v. Commissioner, supra.

In sum, this Court has consistently taken extra-

ordinary care to spell out the limitations as well as the

reach of the “public rights” and “plenary power”

phrases as they occur in the context of Congressional

regulatory power in these unique areas. For the

Government now to urge that these cases be treated as

a basis for a “plenary power — public rights’’ equation

necessarily encompassing the whole of the Congressional

regulatory power under Article | of the Constitution is

to urge upon this Court the precise “misc nstruction

upon so grave a subject” that the Court in Murray

cautioned against.

3. The “Legislative Court’’ Cases

Much the same point can be made respecting the

Government’s use of the “legislative court” line of cases

in support of its “Article | — plenary power — public

rights”’ theory. In these cases, this Court has articulated

two relevant separate principles, each in turn expressly

confined to the special circumstances of Congressional

power under the Constitution which call the principles

into play. Within the confines of certain geographic

areas over which the Constitution accords Congress

“plenary” regulatory powers similar to those of state

government, the Congress may create non-Article III

tribunals and bestow upon them the power to decide all

Article Ill “cases or controversies” [the “Territorial

Plenary Power Principle]. Beyond those geographic

zones, Congress’ power to bypass Article III tribunals is

contined strictly to those subject matters over which

Congress has complete and exclusive regulatory power

[the “Subject Matter Plenary Power Principle” ].

a. The Territorial Plenary Power Principle — Thus, in

American Insurance Co. v. Canter, 26 U.S. (1 Pet.) 511,

546 (1828) (Marshall, J.), the Court, in the course of

holding that Congress may vest admiralty jurisdiction in

a territorial court not conforming to the requirements

of Article III, explicitly relies on the special nature of |

Congress’ regulatory powers respecting the territories,

and explicitly rejects extension of that Congressional

power to non-Article Ill tribunals in the States

(emphasis added):

Although admiralty jurisdiction can be exercised in

the States in those courts only which are

established in pursuance of the 3d article of the

Constitution, the same limitation does not extend

to the territories. In legislating for them, Congress

exercises the combined powers of the general and

of a State government.

And since Canter, this Court has carefully tied the

special powers of Congress over legislative courts in the

territories and the District of Columbia to the unique

powers of general sovereignty which the Constitution

accords the Congress in these geographical areas.”

Thus, in McAllister v. United States, 141 U.S. 175,

187-88 (1891), the Court, in rejecting the claim of a

District Judge for the territory of Alaska that he could

not be removed from office during his appointed term,

observed (emphasis added):

The absence from the Constitution of such

guaranties [of Article III judicial i: ¢ependence]

The Constitution gives Congress the power

“to exercise exclusive Legislation in all Cases whatsoever,

over [the District of Columbia]... .”

Art. I, Sec. 8, Clause 17. Similarly, Article IV, Section 3 provides

as follows:

“The Congress shall have Power to dispose of and make all

needful Rules and Regulations respecting the Territory or

other Property belonging to the United States... .”

for territorial judges was no doubt due to the fact

that the organization of governments for the

Territories was but temporary, and would be

superseded when the Territories became States of

the Union. The whole subject of the organization

of territoral courts, the tenure by which the judges

of such ‘rts shall hold their offices, the salary

they rece. and the manner in which they may

be removed or suspended from office, was left by

the Constitution, with Congress under its plenary

power over the Territories of the United States.

How far the exercise of that power is restrained by

the essential principles upon which our system of

% ernment rests, and which are embodied in tte

Constitution, we need not stop to inquire; though

we may repeat what was said in Late Corporation

of Church of Christ of Latter Day Saints v. United

States, 136 U.S. 1, 44 [34: 481, 491]: “Doubtless

Congress, in legislating for the Territories, would

be subject to those fundamental limitations in

favor of personal rights which are formulated in

the Constitution and its amendments; but these

limitations would exist rather by inference, and

the general spirit of the Constitution from which

Congress derives all its powers, than by any

express and direct application of its provisions.”

In fact, one of those very constitutional limitations “‘in

favor of personal rights which are formulated in the

Constitution and its Amendments” which has been

applied even within these unique territorial zones of

“plenary power” is the Seventh Amendment. See

Pernell v. Southall Realty, 416 U.S. 363 (1974)

(District of Columbia); Capital Traction Co. v. Hof, 174

U.S. 1 (1899) (District of Columbia); Webster v. Reid,

52 U.S. (1! How.) 437, 460 (1837) (Territory of

lowa); Kennon vy. Gilmer, 131 U.S. 22, 28 (1889)

(Territory of Montana). j

And in Palmore v. United States, 411 U.S. 389,

397-98 (1973) the Court — at the threshold of its

analysis of the question whether within the District of

Columbia Congress could delegate an Article I!I-type

Federal Question case to a non-Article III tribunnal —

expressly distinguishes between the “plenary power” of

Congress under Article I, Section 8, Clause 17 (see note

**The Government tenders the following sentence in an

apparent attempt to avoid this unfortunate embarrassment to its

reliance on this line of cases:

“This is not to say that Congress cannot decide, either by

express statutory command or pertinent silence, that a

particular adjudicator should afford a jury trial. See, e.g.,

Webster v. Reid, 11 How. 437; Pernell v. Southall Realty,

supra, 416 U.S. at 365-366, 374-75, 383. C.F. Glidden &

Co. v. Zdanok, supra, 370 U.S. at 549-551.”

Gov. Br. 80-81 (emphasis added). But Pernell’s application of the

Seventh Amendment to the Superior Court of the District of

Columbia in no sense rests on “Congressional decision”’ by either

“express statutory command” or “pertinent silence’. Rather, the

Court expressly held that it was foreclosed from reliance on

statutory construction as an alternative source for the jury right

because of the controlling decision of the District of Columbia

Court of Appeals that Congress had repealed the potential

statutory basis for the jury right. Pernell, supra, 416 U.S. at 366.

The Court then went on to place its disposition squarely on the

Seventh Amendment (416 U.S. at 363), observing that “like

other provisions of the Bill of Rights, it is fully applicable to

courts established by Congress in the District of Columbia.” See

Capital Traction Co, v. Hof, 174 U.S. 1, 5 (1894). See also

Pernell, supra, 416 U.S. at 370. If the Government’s attribution

of the result in Pernell to “‘pertinent’’ Congressional “silence”

were accurate, presumably Congress could simply reverse the -

holding in Pernell with appropriate legislation for the Superior

Court of the District of Columbia.

Respecting the doctrinal source of the jury right in the

territories, see Rasmussen v. United States, 197 U.S. 516,

§26-528 (1905).

23, supra) and the “other powers delegated to [Congress]

under Article I, §8”’ (emphasis added):

Art. I, §8, cl. 17, of the Constitution provides

that Congress shall have power “[t]o exercise

exclusive Legislation in all Cases whatsoever, over”

the District of Columbia. The power is plenary.

Not only may statutes of Congress of otherwise

nationwide application be applied to the District

of Columbia, but Congress may also exercise all

the police and regulatory powers which a state

legislature or municipal government would have in

legislating for state or local purposes. Congress

“may exercise within the District all legislative

powers that the legislature. of a State might

exercise within the State; and may vest and

distribute the judicial authority in and among

courts and magistrates, and regulate judicial

proceedings before them, as it may think fit, so

long as it does not contravene any provision of the

Constitution of the United States.” Capital

Traction Co. v. Hof. 174 U.S. 1, 5 (1899). This

has been the characteristic view in this Court of

congressional powers with respect to the District.

It is apparent that the power of Congress under

Clause 17 permits it to legislate for the District in

a manner with respect to subjects that would

exceed its powers, or at least would be very

unusual, in the context of national legislation

enacted under other powers delegated to it under

Art. 1, §8 See Gibbons v. District of Columbia, |

U.S. 404, 408 (1886).”

Then the Palmore Court holds that, within those

geographic zones encompassed by the constitutional

grants to Congress of plenary power, Congress may

delegate a federal question case within the meaning of

Article III] to a non-Article III tribunal. 411 U.S. at

400404. Finally, lest the holding be subject to

misconstruction, the Court again reiterates the /imita-

tion as well as the extent of the “plenary power” thus

recognized (411 U.S. at 407-08, emphasis added):

It is apparent that neither this Court nor

Congress has read the Constitution as requiring

every federal question arising under the federal

law, or even every criminal prosecution for

violating an Act of Congress, to be tried in an Art.

III court before a judge enjoying lifetime tenure

and protection against salary reduction. Rather,

hoth Congress and this Court have recognized that

State courts are appropriate forums in which

federal questions and federal crimes may at times

he tried; and that the requirements of Art. 111,

which are applicable where laws of national,

applicability and affairs of national concern are at

stake, must in proper circumstances give way to

accommodate plenary grants of power to Congress

to legislate with respect to specialized areas having

particularized needs and warranting distinctive

treatment. Here, Congress reorganized the court

system in the District of Columbia and established

One set of courts in the District with Art. III

characteristics and devoted to matters of national

concern. It also created a wholly separate court

system designed primarily to concern itself with

local law and to serve as a local court system for a

large metropolitan area.

b. The Subject Matter Plenary Power Principle In

Ex parte Bakelite Corp., 279 US. 438 (1929), this

Court again emphasized Congress’ exclusive plenary

power over such subject matters as claims against the

Government (as opposed to Congress’ general regulatory

powers). Thus, after tendering the consular courts estab-

lished in foreign countries as an illustration of Congress’

powers to establish legislative courts pursuant to its

exclusive powers respecting treaties and foreign com-

merce, (279 U.S. at 451), the Bakelite Court goes on to

emphasize the totality of Congressional regulatory power

with respect to these subject matters delegable by

Congress to “legislative courts” (id., 279 U.S. at 451-52:

emphasis addec ):

Legislative courts also may be created as special

tribunals to examine and determine various

matters, arising between the government and

others, which from their nature do not require

judicial determination and yet are susceptible of it.

The mode of determining matters of this class is

completely within congressional control. Congress

may reserve to itself the power to decide, may

delegate that power to executive officers, or may

commit it to judicial tribunals.

Conspicuous among such matters are claims

against the United States. These may arise in many

ways and may be for money, lands, or other

things. They all admit of legislative or executive

determination and yet ‘rom their nature are

susceptible of determination by courts; but no

court can have cognizance of them except as

Congress makes specific provision therefor. Nor do

claimants have any right to sue on them unless

Congress consents; and Congress may attach to its

consent such conditions as it deems proper, even

to requiring that the suits be brought in a

legislative court specially created to consider them.

Also noteworthy is the Bakelite Court’s discussion of

the Court of Private Land Claims as a further

illustration of Congress’ special power respecting these

subject matters. /d., 279 U.S. at 456; compare the

Murray case, supra, 59 U.S. (18 How.) at 284; see p. 38,

supra.

Thus the Canter — Bakelite series of cases, like the

Murray — Oceanic — Helvering series, confines Congress’

power to bypass Article III outside the constitutionally

specified geographic zones to those subject matters as

to which the Congress has complete and exclusive

regulatory power. The paradigm repeatedly offered as

illustrative of these subject matters is claims against the

United States, be they for money or land. See McElrath

v. United States, supra, discussed in Ex parte Bakelite

Corp., supra, 279 U.S. at 453-54. Compare NLRB vy.

Jones & Laughlin, 301 U.S. 1, 48-49 (1937) relying on

Guthrie National Bank v. Guthrie, 173 U.S. 528, 537

(1899). See generally Irey Main Br. at 49-51. These

cases, far from supporting the Government's “Article |

— plenary power — public rights” theory, compel

rejection of that theory, a _ proposition further

demonstrated by the simple fact that the Government is

not able to provide a single precedent in which this

Court has ever held Congress may delegate Article III

cases Or controversies arising under the Commerce

Clause to a non-Article III federal tribunal. The one

remaining case offered by the Government in support

of its theory is Crowell v. Benson, 285 U.S. 22 (1932).

4.The Crowell Case

Crowell v. Benson, 285 U.S. 22 (1932), was an

injunction action brought by an employer against the

Deputy Commissioner of the United States Employees’

Compensation Commission challenging an award of

compensation under the Longshoreman’s and Harbor

Worker’s Compensation Act on the grounds that the

award was contrary to law because the employee was

not employed at the time of the accident. 285 U.S. at

36-37. By amended complaint, the constitutionality of

the statute was challenged on three grounds: [1] the

Due Process Clause of the Fifth Amendment; [2! The

Seventh Amendment; and [3] “the provisions of article

3 with respect to the judicial power of the United

States.” /d., 285 U.S. at 37. The U.S. District Judge

denied a motion to dismiss “and granted a hearing de

novo upon the facts and the law, expressing the opinion

that the act would be invalid if not construed to permit

such a hearing.”’ /d. The employer won on the issue of

employment and on appeal the Circuit Court- of

Appeals affirmed. /d. The majority decision (per Chief

Justice Hughes) first breaks the issues thus posed into

questions of “substantive rights’ and questions of

“procedural requirements.”’ Jd. Under the heading of

‘substantive rights,” the Court, noting Congress’ ‘‘exclu-

sive authority” with respect to maritime law (id. at 39),

holds that the Fifth Amendment Due Process Clause is

not violated by a statute abolishing the employer’s

substantive liability for damages and creating a non-

fault remedy. /d., 285 U.S. at 39-42.*5

Then under the heading of “procedural require-

ments,” the Crowell Court first disposes of the Seventh

Amendment contention as follows (id., 285 U.S. at 45):

As the claims which are subject to the provisions

of the act are governed by the maritime law as

established by the Congress and are within the

admiralty jurisdiction, the objection raised by the

respondent’s pleading as to the right to a trial by

jury under the Seventh Amendment is unavailing

(Waring v. Clarke,...) and that under the Fourth

Amendment is neither explained nor urged. The

other objections as to procedure invoke the due

process clause and the provision as to the judicial

power of the United States.

Then the Court holds that under the due process clause,

the act constitutionally commits questions of fact

(other than cases involving constitutional rights) to the

final determination of the administrator as long as, inter

The Crowell opinion on this substantive due process ruling

compares Congress’ powers to those of the states in enacting the

Workman's Compensation laws under the Due Process Clause of

the Fourteenth Amendment, citing by way of support, inter alia,

this Court’s opinion in Mountain Timber Co. v. Washington, 243

U.S. 219 (1917). See Crowell, supra, 285 U.S. at 41-42. See the

discussion of the Mountain Timber case at lrey Main Br. 69-70,

n. 32.

alia, the findings are based on the evidence. /d,, 285

U.S. 46-48.

Next, the Crowell majority reviews the Article III

contention (285 U.S. at 48-65), upholding the statute

on its statutory interpretation deemed compelled by

Article Ill to avoid unconstitutionality — that a de novo

factual review of jurisdictional issues was compelled to

preserve the Article II] independent judicial power of the

United States and “the fundamental rights” dependent

thereon (285 U.S, 56-57; emphasis added):

In relation to these basic facts, the question is

not the ordinary one as to the propriety of

provision for administrative determinations. Nor

have we simply the question of due process in

relation to notice and hearing. It is rather a

question of the appropriate maintenance of the

federal judicial power in requiring the observance

of constitutional restrictions, \t is the question

whether the Congress may substitute for constitu-

tional courts, in which the judicial power of the

United States is vested, an administrative agency -

in this instance a single deputy commissioner—for

the final determination of the existence of the

facts upon which the enforcement of the constitu-

tional rights of the citizen depend. The recognition

of the utility and convenience of administrative

agencies for the investigation and finding of facts

within their proper province, and the support of

their authorized action, does not require the

conclusion that there is no limitation of their use,

and that the Congress could completely oust the

courts of all determinations of tact by vesting the

authority to make them with finality in its own

instrumentalities or in the executive department.

That would be to sap the judicial power as it

exists under the lederal Constitution, and to

establish a government of a bureaucratic character

alien to our system, wherever fundamental rights

depend, as not infrequently they do depend, upon

the facts, and finality as to facts becomes in effect

finality in law,

It is in the context of this holding that the Crowell

majority tendered the dictum now relied upon so

heavily by the Government in support of its “Article

I—plenary power—public rights” theory (285 U.S. at

50-51; emphasis added):*°

As to determinations of fact, the distinction is

at once apparent between cases of private right

and those which arise between the government and

persons subject to its authority in connection with

the performance of the constitutional functions of

the executive or legislative departments. The Court

referred to this distinction in Murray’s Lessee v.

Hoboken Land & Improvement Company, supra,

pointing out that “there are matters, involving

public rights, which may be presented ir such

form that the judicial power is capable of acting

on them, and which are susceptible of judicial

determination, but which congress may or may not

bring within the cognizance of the courts of the

United States, as it may deem proper.” Thus the

Congress, in exercising the powers confided to it,

may establish ‘legislative’ courts (as distinguished

from ‘constitutional courts in which the judicial

power conferred by the Constitution can be

deposited’) which are to form part of the govern-

ment of territories or of the District of Columbia,

or to serve as special tribunals “to examine and

determine various matters, arising between the

*°We note that just prior to this passage relied on by the

Government, the Crowell opinion took care to repeat the Murray

Court's statement that Congress cannot

“Withdraw from judicial cognizance any matter which,

from its nature, is the subject of a suit at the common law,

or in equity, or admiralty; nor, on the other hand, can it

bring under the judicial power a matter which, from its

nature, is not a subject for judicial determination.”

285 U.S. at 49. The Court then notes that Congress left “to the

Federal Court full authority’ (285 U.S. at 50) to pass on all

questions of law. /d. at 50.

government and others, which from their nature

do not require judicial determination and yet are

susceptible of it.” But “the mode of determining

matters of this class is completely within congres-

sional control. Congress may reserve to itself the

power to decide, may delegate that power to

executive officers, or may commit it to judicial

tribunals.” Ex parte Bakelite Corporation, 279

U.S. 438, 451, 49 S.Ct. 411, 413, 73 L. Ed. 789.

Familiar illustrations of administrative agencies

created for the determination of such matters are

found in connection with the exercise of the

congressional power as to interstate and foreign

commerce, taxation, immigration, the public lands,

public health, the facilities of the post office,

pensions, and payments to veterans.

The present case does not fall within the

categories just described, but is one of private

right, that is. of the liability of one individual to

another under the law as defined. But, in cases of

that sort, there is no requirement that. in order to

maintain the essential attributes of the judicial

power, all determinations of fact in constitutional

courts shall be made by judges. On the common-

law side of the federal courts, the aid of juries is

not only deemed appropriate but is required’ by

the Constitution itself. In cases of equity and

admiralty, it is historic practice to call to the

assistance of the courts, without the consent of

the parties, masters, and commissioners or

assessors, to pass upon certain classes of questions,

as, for example, to take and state an account or to

find the amount of damages.

This passage in Crowell occurs in the context of a

section of the Court’s opinion where the fundamental

holding is that the constitutional policy concerns

underpinning Article II] compel the conclusion that a

de novo hearing in an Article II] tribunal must be

accorded for all “jurisdictional” facts if the statute is to

be constitutional. This holding, it is critical to note,

applied with equal force as far as the Crowell majority

was concerned to proceedings in which the Government

was a litigant and proceedings only between private

persons. See id., 285 U.S. 22, 56-65. Moreover, under

Chief Justice Hughes’ analytical scheme, it is apparent

that all questions of law had to be reserved to the

Article III tribunal for disposition. See note 26 supra.

But this fundamental scheme, as laid out in Crowell,

died aborning. Thus, the Crowell holding, with respect

to the Article III requirements for de novo review of

jurisdictional facts, “has no germinal significance.’ See

H. M. Hart & H. Wechsler, The Federal Courts and The

Federal System, 399 (2d ed., 1973) and sources cited

therein at n. 14. Indeed, as Professors Hart and

Wechsler point out (/d.) Chief Justice Hughes himself

soon contributed to the internment of this part of the

Crowell formula in his decision in St. Joseph Stock-

yards Co, v. United States, 298 U.S. 38 (1936). And, as

we have noted, Crowell itself separately holds that there

is no Fifth Amendment due process requirement to de

novo factual hearings as long as constitutional claims

are not involved. Moreover, as we hive noted, there is

in fact no Fifth Amendment due process requirement

whatsoever for participation by Article III tribunals. in

any phase of litigation. See Palmore v. United States,

supra, 411 U.S. at 410.

Thus, stripped of the fundamental constraint of

Crowell’s holding on the de novo hearing point, the

dictum respecting the “government litigant—private liti-

gant’ dichotomy,?” in effect, becomes an engine for the

774s we discuss within, p. 56 infra, Chief Justice Hughes’

“private rights—public rights’ dichotomy in Crowell does not

conform to the Government's Article |—plenary power—public

rights theory; rather, the Crowell conception reflects a govern-

ment litigant—private litigant distinction.

virtual demolition of the independent federal judicial

power in all of the most important classes of cases.

That, of course, explains why the dictum has had no

germinal significance in the development of this Court’s

law in this area. Indeed, the Chief Justice himself, when

confronting the Seventh Amendment issue in NLRB y.

Jones & Laughlin, 301 U.S. 1, 4849 (1937) makes no

mention whatsoever of the Crowell case, and instead

rests the disposition of the Seventh Amendment point

on, inter alia, Guthrie National Bank yv. Guthrie, 173

U.S. 528, 537 (1899).?8 The Guthrie case holds that a

claim against the sovereign is not covered by the

Seventh Amendment because it is not in the nature of a

suit at common law. Thus did the Chief Justice return

the basic analysis to the familiar paradigm which, from

the Murray case on, has been used to confine the scope

of Congressional discretion to bypass Article III and the

Seventh Amendment to those special subject matters

where Congress’ regulatory power is truly “plenary”.

See Palmore v. United States, supra, 411 U.S. at

407-08,?°

Moreover, the Crowell dictum on its own terms

doesn’t support the Government’s “Article I—plenary

power—public rights” theory. Thus, the Government

offers the following view of this dictum (Gov. Br. at

73):

28We present our view of NLRB vy. Jones & Laughlin, supra, in

our main brief at 46-65. We agree with the Government that it is

significant that the Jones & Laughlin case was written by the

author of the Crowell case. See Gov. Br. 74. However, the

observation seems to cut against the government’s interpretation

of Jones & Laughlin, since the Chief Justice did not in any part

rely on the Crowell case and instead relied quite heavily on the

Guthrie decision. See lrey Main Brief, at 50-53.

Respecting the Jones & Laughlin case, we call the Court’s

attention to the equitable nature of a back pay award in a labor

proceeding as “restitution” to the worker. See Rogers v. Loether,

467 F.2d 1110, 1121-22 (8th Cir., 1972) aff'd sub nom, Curtis v.

Loether, supra.

29We also observe that, were this Court today “writing on a

clean slate,” cf., Kliendienst v. Mandel, supra, 408 U.S. at 766, it is

(continued)

Significantly, while the opinion went on gener-

ally to sustain administrative factfinding even in

this private-right sphere, it did so on the theory

that the commission was an integral and immediate

adjunct of Article III courts analogous to juries

and masters, not an independent agency, 285 U.S.

at 51-54. See Jaffe, Judicial Control of Administra-

tive Action 88-89 (Abr. Ed., 1965). Implicit in this

analysis is the assumption that where, and only

where, exclusively Article III private (rather than

Article I plenary public) rights are involved, the

judicial institutions inherent in Article III-—includ-

ing a jury trial where mandated, 285 U.S. at

51—must be preserved.

This view is squarely contradicted by the very text of

the passage relied upon. First, there is no way the

Crowell opinion can be read as suggesting that the

constitutional jury right automatically falls once the

Article Ill barrier to a Congressional bypass of the

Federal Judiciary in favor of an administrative tribunal

is hurdled. Thus, as we have noted, the Seventh

Amendment jury issue is expressly dealt with separately

from the “distinct question” posed by “(t]he conten-

tion based upon the judicial power of the United

States, as extended ‘to all Cases of admiralty and

maritime Jurisdiction’ (Const. art. 3). /d., 285 U.S. at

48-49. More importantly, the Crowell dictum. itself

tenders, as an illustration of the cateogry of cases as to

which Congress can bypass the Article III] judicial power,

the legislative court cases relating to the District of

Columbia, concerning which this Court has repeatedly

stated “the Seventh Amendment... [l]ike other provi-

sions of the Bill of Rights... is fully applicable. See

(footnote continued from preceding paxe)

possible that cases such as Oceanic and Sabaudo would have been

decided differently. We submit that even within zones of con-

gressional plenary power, the discretion of Congress to bypass

Article Ill should be restricted to those instances where, based on

strict historical analysis, .t can truly be said that the subject matter

of the litigation is not in the nature of a common law suit. See the

Murray case, supra.

Capital Traction Co, v. Hof, 174 US. 1, 5 (1899),”

Pernell vy. Southall Realty, supra, 416 U.S. at 370. See

generally note 24, supra. There can be no doubt as to

the Crowell majority’s cognizance of this principle,

given the quotations from and reliance upon the Capital

Traction Co, case by the Crowell majority in support of

its holding on the Article III issue. /d., 285 U.S. at 61.

Second, this Crowell passage, in any event, certainly

offers no “implicit’’ support for the Government's

“Article I—plenary power—public rights” theory. Thus,

the Government expressly acknowledges that the logic

of its theory cannot turn on the identity of the litigant

enforcing the “public right” as a governmental agent as

opposed to a private person (id. at 62-63). That concep-

tion of “public rights” is most certainly mor the

conception articulated in this passage from the Crowell

opinion. Thus, the Crowell majority distinguishes “be-

tween cases of private right and those which arise

between the government and persons subject to its

authority in connection with the performance of the

constitutional function of the executive or legislative

branches.” /d. at 50. The Crowell case, then, is using the

“public-private” dichotomy precisely in the sense the

Government expressly eschews it, a proposition con-

firmed by Crowell’s treatment of this Longshoreman’s

Workman’s Compensation case as a “private right” case

analogous for Fifth Amendment substantive due process

purposes to the state Workman’s Compensation cases

and specifically the Mountain Timber case. See note 25,

supra. See also Justice Brandeis’ dissent in Crowell, 285

U.S. at 87-88, n. 54. Compare Gov. Br. at 63.

AN OSHA NON-JURY PENALTY ADJUDI-

CATION CANNOT BE SUSTAINED UNDER

THE RATIONALE OF KATCHEN V.

LANDY.

The Government offers one last contention after

their principle arguments (Gov. Br. at 19):

3. Finally (pp. 81-88, infra), invoking Katchen y.

Landy, 382 U.S. 323, we suggest that the agency

created to adjudicate these cases is like a special-

ized statutory court of equity which can exercise

summary jurisdiction over otherwise jury-triable

issues if the interposition of a jury would dis-

member the statutory scheme. That analogy is

justified, we say, because the Review Commission’s

primary task is to grant or deny permanent

injunctive relief respecting alleged safety and

health violations endangering workers, to which

the discretionary power to impose limited civil

monetary penalties is integral.

We submit that this argument fails because: (a) the

Katchen case does not apply to involuntary defendants

in penalty proceedings; and (b) in any event, there

would be no “dismemberment” of the statutory scheme

if Congress allowed de novo jury trials in district court in

penalty cases. *°

A.The rationale of Katchen is not applicable to

civil penalty adjudications for statutory viola-

tions.

In Aatchen, this Court first sustained a bankruptcy

courts statutory summary jurisdiction over voidable

preferences, expressly limiting its holding as follows

(382 U.S. at 332-33, n. 9):

Rather, our decision is governed by the “tradi-

tional bankruptcy law that he who invokes the aid

of the bankruptcy court by offering a proof of

claim and demanding its allowance must abide the

consequences of that procedure. Wiswall ». Camp-

bell, 93 U.S. 347, 351." Gardner vy. New Jersey,

329 U.S. 565, 573. As this is the basis of our

30 . . . .

. See also the panel majority decision in the Irey case, Irey

Cert App. 86-96, n. 11.

decision, we obviously intimate no opinion con-

cerning whether the referee has summary jurisdic-

tion to adjudicate a demand by the trustee for

affirmative relief, all of the substantial factual and

legal bases for which have not been disposed of in

passing on objections to the claim.

The Court sustained the statutory power to affirma-

tively demand surrender of the voidable preference on

the reasoning that once the bankruptcy court “has dealt

with the preference issue [in ruling on the creditor's

claim] nothing remains for adjudication in a plenary

suit,” by virtue of res judicata and collateral estoppel.

382 U.S. at 334; see 382 U.S. at 334-35.

Then the Court dealt with the claim that “this

reading of the statute violates [the creditor’s] Seventh

Amendment right to a jury trial.” 382 U.S. at 336. The

Court recognized that in a plenary suit by the trustee,

the creditor would have a Seventh Amendment right to

a jury trial. /d., citing Schoenthal vy, Irving Trust Co.,

287 U.S. 92 (1932). But the Court rejected that claim

in Katchen on the reasoning that: (1) a creditor’s claim

in a bankruptcy court is an equitable claim to share on

a pro rata basis in the res of the bankrupt’s estate (382

U.S. at 336): (2) the bankruptcy court's jurisdiction to

determine the creditor’s equitable claim to a share of

the res encompasses the power to resolve the trustee’s

objection to the claim on the ground of a preference,

382 U.S. 336-37 citing, inter alia, Barton v. Barbour,

104 U.S. 126, 133-34 (1881); and (3) given the

doctrine of res judicata, the power to determine the

preference objection to the creditor’s claim encompasses

the power to order affirmative relief against the

creditor-claimant as a matter of decreeing “complete

relief’ (382 U.S. at 337-38; quote from p. 338).

Up to this point in the AKatchen opinion not a word

is said about the doctrine of Beacon Theaters ».

Westover, 359 U.S. 500 (1959) or “dismemberment” of

the statutory scheme. The Court’s holding on the claim

to entitlement as a matter of constitutional right to a

jury is strictly limited to a bankruptcy court's equitable

clean-up powers over a creditor who invokes the

bankruptcy court’s jurisdiction by submitting a claim.

In fact, because of Seventh Amendment considerations,

one court has held the Aatchen rationale cannot even

be extended to the guarantor on a creditor's note who

files a claim in bankruptcy court in the creditor's name

in order to protect the guarantor’s subrogation rights.

See In Re Beasley-Gilbert’s, Inc., 285 F.Supp. 359,

361-63 (S.D. Ohio, 1968) (alternative holding). More-

over, the Aatchen rationale also does not extend to

trustee’s attempts to bring an action for damages

against individuals for a breach of a contract relating to

the res, see Hollywood National Bank vy. Bumb, 409

F.2d 23, 24-25 (9th Cir. 1969), nor to counterclaims

against creditor-claimants “‘which do not involve a

preference, setoff, voidable lien, or a fraudulent trans-

fer, and which are wholly unrelated to the creditor's

claims.” See the lower court’s decision in the Katchen

case, 336 F.2d 535, 537 (10th Cir. 1964).

These various restrictions on the reach of the

Katchen rationale can be illustrated by considering a

hypothetical bankruptcy statute. Suppose Congress

declared that hereinafter bankruptcy trustees would

have surnmary powers to bring plenary suits against

creditors seeking (a) return of the preference and (b)

penalties in amounts of $1,000 for constructive frauds

by the creditor related to the preference and (c)

penalties of up to $10,000 for deliberate frauds. Would

such a statute conceivably pass constitutional muster

under the Aatchen rationale? We think not, even

granting Congress’ special plenary regulatory powers

under the Constitution to “establish...uniform...

laws on the subject of bankruptcy” throughout the

United States. U.S. Const. art. I, §8: see Katchen,

supra, 382 U.S at 336. A fortiori, such a statute

rested strictly on Congress’ interstate commerce powers

would be invalid.

The Katchen opinion then goes on to reject the

creditor's “final reliance... on the doctrine of Beacon

Theaters v. Westover,...and Dairy Queen vy. Wood,.. .”

382, U.S. 338. The Court observed that (id., emphasis

added):

The argument here is that the same issues—whether

the creditor has received a preference and, if so, its

amount—may be presented either as equitable

issues in the bankruptcy court or as legal issues in

a plenary suit....

The Court had, of course, just determined that Congress

could prescribe non-jury determination of the substan-

tive issue of “‘preference’ as a part of determining the

creditor-claimant’s equitable claim to the res. In reject-

ing the final contention based strictly on the Beacon

case doctrine “which is itself an equitable doctrine... .”

(Katchen, supra, 352 U.S. at 339) the Court stated that

Beacon and Dairy Queen did not involve ‘‘a specific

statutory scheme contemplating the prompt trial of a

disputed claim without the intervention of a jury” (382

U.S. at 339: see Gov. Br. at 84) and that “‘to say that

because the trustee could bring an independent suit

against the creditor to recover his voidable preference,

he is not entitled to have his statutory objection to the

claim tried in the bankruptcy court in the normal

manner is to dismember a statutory scheme which

Congress has prescribed. See Alexander vy. Hillman, 296

U.S. 222, 243.” (Katchen, supra, 382 U.S. at 339; see

Gov. Br. at 84). The “dismemberment” of the statutory

scheme would occur because the Beacon—Dairy Queen

doctrine, if extended to voidable preferences, would

necessitate a jury trial on the substantive preference

issues regardless of whether the trustee seeks affirmative

relief against a claimant who invoked the bankruptcy

court’s jurisdiction (322 U.S. at 339):

For, as we have said, determination of the prefer-

ence issues in the equitable proceeding would in

any case render unnecessary a trial in the plenary

ss <li

action because of the res judicata effect to which

that determination would be entitled.

Thus the Katchen rejection of the Beacon equity

principle follows strictly from the established power of

the bankruptcy court to decide the substantive prefer-

ence issue as a part of its jurisdiction over the creditor’s

entire “equitable” claim. Nothing in these portions of

Katchen—by “analogy” (Gov. Br. at 19) or otherwise—

would support extension of the bankruptcy court’s

summary jurisdiction to a plenary suit by the trustee

against a creditor who did not invoke the equity powers

of the bankruptcy court and who would otherwise have

a Seventh Amendment jury right in the trustee's

plenary suit. Cf. United States v. J. B. Williams Co.,

498 F.2d 414, 428 (2d Cir. 1974). Indeed, to so read

Katchen’s discussion of Beacon is to turn the Katchen

case upside down and, in effect, to use Katchen to

dismember the Seventh Amendment. See also Irey Main

Br. at 65-67.

B.in any event, a jury trial on penalty adjudica-

tions would not interfere with the statutory

scheme.

1. Assuming arguendo that the “dismemberment”

principle of Aatchen extended to the OSHA statutory

scheme, the policy arguments tendered by the govern-

ment do not justify overriding the Seventh Amendment

jury right.*' In our main brief we presented our view of

the policy interests in favor of recognition of the Seventh

Amendment jury right after the administrative process

is complete. Irey Main Br. at 71-83. Here we note that

if the government’s primary argument based on histori-

cal evidence fails, then the Seventh Amendment is

indeed to be viewed as “a strong shield against

“We submit that these cases are, in any event, governed by

the clear command of the Seventh Amendment. See Irey Main

Br. at 71-75.

governmental oppression.”” Gov. Br. at 37; see our

discussion of Duncan v. Louisiana, 391 U.S. 145 (1968)

and United States vy. United States District Court, 407

U.S. 297 (1972) at Irey Main Br., 76-79. Moreover, in

attempting to persuade this Court that the Founding

Fathers would not have deemed it necessary to guard

against federal governmental oppression in the very

category of cases that triggered revolutionary ferment

against the British Government (i.e., civil penalty and

forfeiture proceedings) the Government argues, inter

alia, (Gov. Br. at 43):

Moreover, ar independent judiciary with life

tenure was now provided for and the abuses of

judges removable at whim by the Crown were no

longer to be feared. ...

Yet, if the Government’s “Article I—plenary power—

public rights” theory is accepted, then all defendants in

civil governmental penalty proceedings will be deprived

of the constitutional guaranty of an Article III inde-

pendant judge on any issues in their cases. See p. 33

supra, 3?

Finally, we are also told that since “even criminal

fines up to at least $500 may be exacted without the

intervention of a jury” (Gov. Br. at 82) “[i]t would be

most remarkable if...the Seventh Amendment were

construed ...to require a civil jury trial where the

Sixth Amendment would not interpose a jury if the

penalties were criminal.” (/d.) This argument also cuts

the other way. Assuming criminal defendants are en-

titled to jury trials in cases where the potential fine is

above $500, it would be most remarkable, in the face

2 Conversely, we agree with the Government’s observation

concerning its “Article |—plenary power—public rights” theory

(Gov. Br. at 58):

Yet, it is not easy to reconcile such a rule with the

assumption that the Seventh Amendment was meant to

interpose a screen of ordinary citizens between the govern-

ment and the people in civil cases.

re ee ee

of the Seventh Amendment’s express protection of the

jury right in “common law” actions where more than

$20 was at stake, if that jury right could disappear by

labeling the case “‘civil.”’ Indeed, a corporate defendant

(such as petitioners here) is in exactly the same posture

with respect to exposure to penalties in any criminal

case where the maximum fine is $10,000, a sum that is

typically the maximum fine for criminal cases under

title 18 of the U.S. Code, and also happens to be the

maximum fine for criminal prosecutions under Section

17(e) of OSHA. See 29 U.S.C. §666(e).*?

Both the Seventh Amendment—limited by its terms

to cases in excess of twenty dollars—and the Sixth

Amendment pose “‘line-drawing’ problems in terms of

the minimal level of severity of punishment required

before the jury mnght comes into play. Those line-

drawing problems are present not merely with respect

to monetary penalties, but also with respect to length

of prison terms for purposes of differentiating between

petty and criminal offenses in the context of the Sixth

Amendment. £.g., Baldwin vy. New York, 399 U.S. 66

(1970). The various choices made by the Court in

resolving these issues do not provide an appropriate

basis tor setting the contours of the jury right under

either constitutional provision with respect to substan-

tive categories of cases. See Baldwin vy. New York,

supra, 399 U.S. at 73 (opinion of Justice White); Irey

Main br. at p. 61. See also our discussion of the Fifth

Circuit’s “single red sou’’ argument in the Aflas case in

our main brief at 46, n. 23.

Thus the policy considerations in favor of recognition

of a Seventh Amendment jury right remain substantial,

particularly in the context of a “civil” statute which is

the moral equivalent of a federal homicide statute for

it is the “maximum authorized penalty”’ under the statute

in question that provides the “‘line-drawing” standard for differ-

entiating “‘petty’’ from “serious” offenses under the Sixth

Amendment. See Baldwin v. New York, 399 U.S. 66, 68 (1970)

(opinion of Justice White).

employers charged with Knowingly or negligently creat-

ing homicidal risks for their workers. Turning to the

Government's “dismemberment” policy arguments, we

submit there is little basis for believing that recognition

of a de novo jury right in district court after the

administrative process is complete will interfere with

the regulatory interests represented by the statute.

2. The Government, relying on the legislative history

of OSHA, argues (Gov. Br. at 88):

That Congress rejected juries as factfinders is

unsurprising given its repeated emphasis on the

related enforcement goals of speedy final abate-

ment orders, expert determination, and nationwide

uniformity of both obligations and results. Leg.

Hist. 144, 194-195, 462-471, 845, 854. Those

goals are basically incompatible with the delays

and unpredictable ad hoc determinations of

juries... .

Of course, any law enforcement program-—civil or

criminal—may require some “expert” determinations

(c.g., insanity defenses), speedy justice, and nationwide

uniformity of obligations and results. We do not doubt

Congress desired these characteristics for OSHA, and,

indeed, for every enforcement statute in the United

States Code. But neither the legislative history nor

analysis of the statutory scheme supports the conten-

tion that a jury nght in penalty cases after the

administrative process is complete will seriously inter-

fere with these desired goals.

The Government emphasizes that (Gov. Br. at 84,

footnote omitted):

Congress created the Review Commission for the

overriding equitable purpose of assuring the swift

issuance of injunctions directing abatement of

work-related hazards threatening employees. The

Act’s raison d'etre is abatement, not penalty

assessments, which were included only to promote

voluntary abatement by employers prior to

inspection. ...

See also Gov. Br. at 84, n. 97. If that is so, then in

those cases in which penalties are sought for past

violations of the Act under 29 U.S.C., §666(a)-(c)

(rather than failure to abate under 29 U.S.C., §666(d))

there can be little risk of interference with the Act’s

raison detre (i.e., abatement, not penalty assessment)

trom a jury trial.

But the Government’s emphasis on penalties for past

violations as intended to deter future violations does

focus attention on the real policy question relating to

the Act's enforcement goals. As the House Committee

Report puts it (Leg. Hist. 853, 856), “Death and

disability prevention is the primary intent of this bill.

Although possible penalties for violation may be an

important deterrent, they are only a partial solution.”

Now who is to be “deterred” from violating the Act,

und what is necessary to achieve the legislative goal of

deterrence? The OSHA statute covers practically the

entire business world in our country. Specifically,

according to the Government, “the Act covers nearly

65 million workers and 5 million workplaces.” See Gov.

Br. at 90, n. 102. This Court needs no statistical

barrage to recognize that we are not dealing here with a

regulatory scheme aimed at just one industry, where the

employers can perhaps be presumed to share some

common “expertise” with the regulators. Nor does the

Act aim just at the powerful rich companies with the

lawyers and personnel safety experts to cope with

highly technical regulations. If OSHA is ever to work as

a deterrent to future violations, the rules and regula-

tions must be capable of self-application by the average

non-expert American businessman, operating without

teams of lawyers and safety experts to explain to him

his primary legal duties and obligations. Indeed, when it

remembered that “the Secretary’s current inspection

force stands at less than 1,300, an increase of almost

1,000 from Fiscal 1972,” (Gov. Br. at 90, n. 102) it is

apparent that in deterrent terms OSHA will be a dead

letter if the rules are not capable of self-application.

Thus the regu/ations in this statutory scheme must be

drawn with a view toward their application by lay

businessmen, This means that the expertise function

comes into play primarily in the formulation of the

regulation, a function placed by the Act in the hands of

the Secretary and which is not involved in this case.

When it comes to deterring future businessmen from

violating the Act by punishing past violations, the

critical element is to be certain that the rules are

capable of self-application by business men and their

employees, who have a great deal more in common

with lay jurors than they do with the expert regulators.

A useful role in such a statutory scheme can be played

by lay jurors who, under the careful instruction of

federal district judges informed as to the purpose of the

rule by virtue of a complete administrative record, must

then apply the rule just as the businessman-defendant

must apply it. If a particular rule or regulation is so

bound up “with the statutory and policy matmx in

which particular facts are found and are to be evalu-

ated” (Gov. Br. at 88, n. 101) that uniform application

by lay jurors is unlikely, the message to the regulators

should be to change the rule, not avoid the lay jury.

And these are the judgments which are truly re-

flected by the legislative history of OSHA. Thus, as the

Government states, Congress never even considered

juries as factfinders. Gov. Br. at 87. The portions of the

legislative history principally relied on by the Govern-

ment in support of its “dismemberment” contention

concern the choices to be made between enforcement

by the Secretary of Labor and enforcement by a

separate Review Commission. Nobody focused on the

possible impact of lay jury participation after com-

pletion of the administrative process on the legislative

goals.

More importantly, these portions of the legislative

history actually involved a simultaneous debate over

two issues: (1) where the rulemaking function should

be reposed; and (2) where the adjudicatory function

should be reposed. Thus the Williams Bill in the Senate

(S. 2193), and the Daniels Bill in the House (H.R.

16785) placed the rulemaking function and the

adjudicative function with the Secretary of Labor. See

Leg. Hist. 204, 239-46, 255-58 (S. 2193): id., 893,

940-45; 953-55 (H.R. 16785). The Steiger Amendment

(H.R. 19200, Leg. Hist. 763) would have placed the

rulemaking function in one independent agency to be

called the “National Occupational Safety and Health

Board” (Leg. Hist. 764-65, 770-76) and the adjudicative

function in another independent agency to be called the

“Safety and Health Appeals Commission.” Leg. Hist.

785-95. The compromise position (which ultimately

prevailed) was represented by the Javits Amendment

(Amendment No. 1060 to S. 2193, see Leg. Hist.

380-91). This Amendment left the rulemaking function

with the Secretary, shifting only the adjudicative func-

tion to an independent agency. Leg. Hist. 381-91,

Senator Javits, in defending his “compromise” (Leg.

Hist. at 4603), demonstrated his understanding of the

distinction for enforcement purposes between rule-

making and adjudication. Leg. Hist. 392-93; 464-65. His

remarks do not reflect any genuine emphasis on the

need for “expertise” in the adjudicative function. See

Leg. Hist. 392-93; 462-65; 471-72. ce

By contrast, the legislative materials regarding the

Steiger Amendment do reflect a concern that the rule-

making function be in the hands of qualified experts.

Leg. Hist. 877-78. That reflects the fact that this

proposal would have split off the rulemaking function.

Indeed, in defending this proposal, Rep. Steiger articu-

lated the difference between regulatory programs that

cover the whole of American business, and those that

ee ee

aim at a specific segment or industry (Leg. Hist. at

990):

It has been argued, Mr. Chairman, that Congress

has often placed all the functions of standard

setting, inspection and enforcement in one depart-

ment of the agency. Opponents of the Board cite

such acts as the Longshoremen’s and Harbor

Workers’ Safety Act, the Coal Mine Safety Act,

the Federal Railroad Safety Act and others. | must

point out that each of these acts deals with a

specific area of concern and is limited in applica-

tion. The occupational health and safety legislation

before us today deals with every conceivable type

of industry and business and | submit that such a

responsibility merits and needs a different admini-

strative approach.

In fact, the legislative history shows the real concern of

Congress in getting intelligible standards and regula-

tions capable of self-application by American business-

men. This is shown in the legislative history materials

reflecting the narrowing of the “General Duty” clause

of the Act to reach only those recognized hazards “‘that

are causing or are likely to cause death or serious

physical harm... to employees... .” 29 U.S.C. 655(a).

See Leg. Hist. 534-35; 880-81; 1092-93; 1186. Here,

too, the difference between a general regulatory pro-

gram for all of American business and a program aimed

at one industry or section was pointed out. Leg. Hist.

880-81. The importance to the statutory scheme of

intelligible standards was well understood by the Con-

gress, both for penalty purposes (Leg. Hist. 856) and

“voluntary compliance.” /d. See generally id, 857-60;

879-80.

With respect to the goal of “uniform” law enforce-

ment, the emphasis was on the need for uniform

nationwide regulations in place of state-by-state varia-

tions (¢.g., Leg. Hist. 144; 193; 513) and a nationwide

commitment of enforcement resources instead of state-

by-state variation in the level of effort and funding that

went into the programs. Leg. Hist. 513; 853-54; 865.

Nobody evaluated the impact on the “uniformity” goal

of the possible variation in results in particular instances

in those small number of cases which even get to a jury

where the regulation was sufficiently confusing that lay

juries properly instructed by district judges could not

apply it consistently to the facts.

3. In sum, there is little basis in the legislative history

for contending that a jury trial, after the administrative

process is complete, will interfere with the aims of the

Act. Nor is there any basis for concern that allowing a

jury right will crowd the dockets of the federal courts.

Thus, the Government argues that “OSHA is currently

issuing more than 100,000 citations annually, 5 per

cent or 5000 of which are contested”—a figure which

constitutes fully one-third of the administrative penalty

cases reported by Professor Goldschmid for the entire

federal establishment in 1972, and threatens to place a

large number of ‘additional cases in a [district court]

system ‘already being engulfed by a tidal wave of

litigation.’ ’* Gov. Br. at 89-90, n. 102 But examination

of the “Monthly Status Report of OSAHRC Decisions

Which Have Been Appealed,” dated October 1, 1976

(available from the Public Information Office of

O.S.H.R.C.) reveals that from May 15, 1972 through to

September 8, 1976, a total of 290 cases have been

appealed from the administrative adjudication to the

Court of Appeals.’ That represents an average of 52

cases a year.°* What kind of an increase can seriously

be projected if a de novo jury right were allowed by

Congress, especially when the average dollar amount at

stake for serious violations has been $617. for willful

and repeated violations, $409, and for non-serious

ad copy of this report is attached hereto as Appendix A.

This figure was reached by dividing the total number of

cases by five years, seven months (the effective date of OSHA

through November |, 1976) and rounding to the nearest whole

number.

violations, $12? See Gov. Br. at 82, n. 92. Indeed, what

kind of an increase can seriously be projected when, for

the past 200 years the Congress in the vast majority of

penalty cases has allowed de novo jury rights? See Irey

Main Br. at 83-86. Thus the 1976 Annual Report of the

Director of the Administrative Office of the United

States Courts, presents at p. 86, Table 19, a summary

of all civil cases pending in the United States district

courts for the past nine fiscal years, broken down by

nature of suit. See Appendix B hereto. For the year

1976, a total of 140,189 suits are pending in all U.S.

district courts, 1,692 of which represent governmental

forfeiture and penalty cases. In percentage terms, this

represents 1.2 per cent of the total. There may be a

tidal wave of litigation in our federal courts, but

nothing this Court does in this category of cases is

going to have any impact on it. More fundamentally,

these considerations are not sufficient to save the

penalty provisions of OSHA in the face of the clear

command of the Seventh Amendment. Cf, Curtis v.

Loether, supra, 415 U.S. at 198.

CONCLUSION

For the foregoing reasons, the judgments of the

Court of Appeals should be reversed.

Respectfully submitted,

McNEILL STOKES,

IRA J. SMOTHERMAN, JR...

Stokes & Shapiro

3920 First National Bank Tower

Atlanta, Georgia 30303

HERBERT J. MILLER, JR.

NATHAN LEWIN

MARTIN D. MINSKER

Miller, Cassidy, Larroca & Lewin

2555 M Street, N.W., Suite 500

Washington, D.C. 20037

Counsel for Petitioners

OLIVER N. HORMELL

423 Third Street

California, Pennsylvania 15419

Counsel for Petitioner,

No, 75-748

Pitre ee ee Petes Fin we tee

APPENDIX A

OCTOBER 1, 1976

MONTHLY STATUS REPORT

OSAHRC DECISIONS

WHICH HAVE BEEN APPEALED

Distribution NOTE: The appeal

Commissioners was filed by the

Chief Legal Counsel Respondent unless

All staff attorneys indicated. An aster-

Executive Director ist (*) beside the

Executive Secretary case name means

Director, M.I.S. that the appeal was

Director of Public Information filed by the Com-

Review Staff plainant (Secretary

Chief Administrative Law Judge of Labor).

All Judges

ibrary

SOURCE — Public Information Office of the Occupa-

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9L61/S0/T7

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“diO,) [997G Wayoyog

‘di0,) 19MOg [91 490g

‘uy Sutseay yusuidinby AqyjRrog

(12 19 QUHVSO “A “0. “ysUo_)

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‘O.) UY C1NO FY sorwHeg

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pure “Ouy sue, otuRpy

dio.) yOoq Aiq onuRNy

pure “ouy sue, onuRY

‘DUT “SALOPIAAIS FIND WZ onuepy

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‘DUT “SMOPIAIIS JiM) WIOUENLY

‘Quy “SAIOPAAaS JIN WZ onuepy

‘uy “SALOPIAIIS JIN ZW ONUENY

“uy SSMOPIAAIS JIN) YP ONUENYV

‘UY “SAOPAAIIS JIND W cuUepy

‘QUT SSAIOPIAIIS JIN) W UEP Y

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(9261 “4D 8) 8601-92

(SL61 “41D WR) CP6I-SL

(€L61 “AID ME) TRII-EL

(€L6I “JD WIS) SIPI-EL

(SL6l

“ID Pig) LOT PTA EIS

(SL6l

“ID Pig) 107 PTA EIS

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(9261 “JID WS) LOPI-9L

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€161/80/11

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€L61/¢7/6

pouty

SL61/PZ/E€

pouty Vy

SL6I/P7/€

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$261/€0/1

(¢L6l

“HD YIS) 619 PTA LRP

(€L61 “AID WIS) LTSI-EL

(€Lo6l

“ID YS) LEE PTA BBP

(VO

W16) 89~E-SL PCA

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9L6I/ET/P

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Ajddng 3 Jaquiny] Oyaes 2? yung,

‘Quy “Surueay.y Aaqy 7 Aupuney jung,

(QUHVSO “A

‘O.) ppng eu) ‘oul ‘Aueduwio) ppng

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“A 76 PUB EL S[EIO'T SH PUe MV!)

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(10QP’] JO “DAG “A “OUT “OD Y

Aayyong) “ouy *°0.) 32? Aapyong

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TLOL/IT/1I

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‘f 19}9q) ‘OD BuImOo] JUANG,

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(-O.) UOTNIAIY “WS HRI)

spunog “Mf PUP OQUHVSO

“A 10QP’] JO “Dag ‘uURUUAIE

‘f 4939g) “OQ UONIAIY “IS

rag &/4/P “Mf SPUNOCEHs

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(961 pou yy

NDMOW ISP PTAIES 9L6I/IT/1 SL6l/LT/1 ‘O.) UOININIJUO) UOSHIET = SI SI

; ‘Duy

(9L61 “HD 3S) OLOL-9L- 9L6L/1 1/7 ‘uoysog JO UOG P| UYOr “PLD COBH

(9261 “41D ‘Duy

WIVOLOI-9L =PTA 9L61/1 1/7 ‘uoysog JO UOS PL uyor “ry = gci9

S é rea Passtuisi(] ‘OD WY Wed ¥

(SL6I “HO WLITIIT-SL 9261/60/8 $261/60/TI neg “IS “saynempp ‘osesty) = STII

; pee ‘OD MY Whe! ¥

(SL6I “HOWL TIIT-SL 9L61/60/8 SZL61/60/TI [neg IS “AayNeMIW “OSE BL 6L

Passttusiq] OD) WA Whe ¥

(SL6I “HO WL)TIIT-SL 9L61/60/8 9261/SI/1 [Ned “IS “A2yNeMI “OSEIIY) OOS

(9161 pouty

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(9L61 “21D 9) 9ZOT-9L 9161/€0/8 $10} UP), 6064

(pLol paruad

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( dom “d10_) [9915

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a a _ (eLol popurwiay JYHVSO “A ueuUig “fF 19}9g)

‘2 US) OFT PTA LBP ELOI/EI/II E€LOl/EZ/¢E 0.) BuIyONI | [NIG “SJOYD|, BRS]

a ae

Wp I8it-prL PTA bL61/67/0I ‘O.) 9UIDAIq AUMOG = BBS

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(9L6I bison 49) BLTI-9L 9L61/80/¢ ‘UE “Ppjogaiq’. ss 17Zz

(9261 “HD WI9) BLTZI-9L 9L61/80/¢ ‘ul “progaiq = 4979

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NIWSISP9PT ARTS QLOI/SI/E ELOL/PI/11 ‘Ul “OD BuyoOoY puowriq 6Sp

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(pL6l “13 Wy) 9POI-bL =PL6l/07/6 =v L61/60/1 ‘O.) UAAYPIW BUL2I9q: LL HT

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(VO

S 6) 6r87-SL PTA $L61/61/8 ‘uy ‘suayIOIG XOQ = E9LT

7 (9L61 “1D 3ST) OLOI-9L 9L6L/I1/7 ‘Duy “°S§ prewog ‘oOyoIsoy) =. | L 89

(“oul ‘Aau00,) “J UOG “SA

(VO paunyyy 1oge’] Jo Arseyaisag “dojunqd “1

6) €Ov7-EL PTH SLOol/pi/E E€L6I/OE/L uyor) “dul ““] UO *A2U00D), 967

WO) 1961-SL PTA $L61/80/8 ‘OD TO [Pe eUunUO), 6781

(9461 “1D 116) 9OEI-9L 9L61/T71/7 ‘Duy “susyoyry fRyUsUNUO) = O76C

uoney) peprheqd pel JUWIEN ISP) ‘ON 10490

JUHVSO

40 JayIVOG Wino)

(pL6l pepureweay (-0,) uopi0y “f¢ uYor

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iat : jSUpoos)

19) 9E8I-bL PT A~—SCSLOL/bZ/b — PLOL/PZ/L “4° PUL) 0.) “4° ‘YOUPOC EOF

a = payer,

(XQ €Ol--L PTA 9L61/61/S Pplol/Lo/t ‘Duy 0.) UOTINAYSUO UII = LESzZ

(OU

— (pLol — Papueuiny Y FuNIO.) Y sayy “A nnn

g [2 Wp) SSTI PTA POS PHLOI/8I/Ol €L6l/91/TI f Jaq) “Uy “FUNIOD FY STH, POS

oe (9261 = pauutyyy

HUIS) EPIL PZ . OS 9LOL/ET/P SLOI/IE/€ 0 10 ANB 197

wee blol payeeeA, (Duy “RSO194) FY QUHVSO A

ND PUD) OPEL PTA L6b PLEI/II/t €Lel/7ZZz/E URUUAG “f 19}2q) OU] “PSOIDN, OG]

= (VO PasdAdy

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WO) O9IT-SL PTA SL61/L7/S ‘up 3yw doy wary cerz

CHD passtusiq]

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a OD AAO T rer ree neve ee ee ee

(41) passtusiq

ya) or9l-sL PTA~—S9LGI/BI/T = SLOI/LO/L ‘O.) Od HED PURHEH = 8TOT

__ Wo

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a (VD _—_—passtuisig

POULITbL «=PTA SLOL/RI/€ vlel/€0/6 ‘O.) SUDS PY “YOUSpeu-+ Pt

Passi Wsi(] sayes 19pres

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(9L61 “HD PUZ) Z9ET-PL OLOL/TI/I = PL61/17/01 ‘up "OD ¥ ND “38tl4se PEL!

(vy _ passtuisiq

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10 Ja490q NNO) JUHVSO

PASSILUSIC]

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(SLol pouulyyy ‘URUUDIY “f 19}9q) 0.) net

sy sate oy :

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(10GP'T JO “99S

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(VO POUL S10] 9PI]UO_) S nd .

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is (SL6ol papurway

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_ (9161 pouty

I2W6) LLOLPTALES 9L61/81/9 PLel/9T/II 0.) BUNPARIXY [POMEL] ECR

nr " > a — er ee Ee ~—— oe vw amelie

(9L61 “1D WS) 6L9T-9L 9L61/P1/9 ‘O-) JoquiN’] *M “A “UOSLUPHs OOCC

Passtusi(]

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(€L61 “HID Wy) EL8I-EL €L61/87Z/11 €L61/67/9 sauysnpuy Asuinty = CTL

§ (9L61 “HO 6) 809T-9L 9L61/E€7/L jsaq-soury punoyAAH Oc

_ passt wisi]

(pL61 “NO PUZ) pebT-EL PL61/80/1 €L61/87/6 ‘QUI UOIINUSUOD JasAH-tURSSA, TI

(9L61 “IO WOLD) [8v1-9L 9L61/L7/S ‘O.) FY SIOYIOIG UPARID)y, BEST

POSSTWISIC]

(SL6I “ID PUT) E8THSL IL6I/9I/8 SL6l/P7/TI ‘OD UOIUL] PURID, EESL

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Pass wisi(]

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(9L61 “41D IST) OLOI-9L 9L6L/11/7

(9L61 “410 IST) OLOI-9L 9L61/11/7

Passi Wsi(]

(SL6I “SID PIE) ESHZ-SL_OLEI/BI/S = 9LOI/1O/E

Passt uisi(]

(SL6I “NO PIE) ESHZ-SL OLOL/BI/S SL6l/6c/TI

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pass wsiq]

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PIC) PBSI-SL PT A—COLG AL /OT/E —- SL61/90/9

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(uRuudIg

f 49}9d PUP QYHVSO “A “Ul “IL

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‘up 4p yuesry *Aop = [OL

(‘OD sse[y

A}ISIOIUL PUP DYE WSO “A ueuuag

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‘O.) UOTJINIYSUO,) AJUNODIAIUT «= BIG

‘O.) Jal JUspusdapuy = L68b

purjsuyq jo dio) O' LIT LOO

puefsuy jo dio) O'LI €O8b

purjsuq jo "dio) O' LI LOIP

‘ouy ‘ysoduowy jo dio) "OL = 187l

‘oul ‘Woduowy jo dio) O LT Lvodl

‘O.-) duNnRoy Y durquingg MUO, = [97

‘O.-) BurjRayy FW Suiquini, oWOF{ =96OI

‘OD FV WIoayH *auuoHY OI

‘Ouy ‘RUIWUA] OULeW WOH = =6SLIL

‘uy “JRUIUA] SULIPW IOH =CORT

DUWEN ISP.) ‘ON 39990

JUHVSO

pass wsic]

a “MD WIS) SbTZ-EL EL61/~0/6 €L61/P0/9 ‘uy “BuIpesry “Tf ‘Age «S$ gz

‘. 7 . . , c

9L61 “ID YI) BISI-9L 9L61/€2/9 uy "| °0.) BuUNjoRNUEW 3UO

W I 666

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(9461 “NDU6) OL9OI-9L 9L6I/E1/6 9L61/97/E ‘Uy pAopy ‘wasrys0y = gscp

(VO PaSsJ9Ady

6) 96I1TSL PTA 9L61/91/8 Sl6l/z0/9 ‘Uy ‘Sasudsajuy SaRF SAT = SSP

q | UMPIPYA ;

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oe UMBIPUITM

(€L6l “MND YIL) OSSI-EL = ELEI/OI/OL E€L61/S7/9 ‘UL SM ‘TYSUZET, ERE

i (SL6I Passdaay ae ,

IDWLILEECL PTA PZS SLOL/OZ

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