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Irey v. Occupational Safety and Health Review Commission

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


July 24, 1975

FRANK IREY, JR., INC., A CORPORATION, PETITIONER,
v.
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, UNITED STATES DEPARTMENT OF LABOR AND PETER J. BRENNAN, SECRETARY OF LABOR, RESPONDENTS.

ON PETITION FOR REVIEW OF AN ORDER OF THE OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

Author: Weis

Before: STALEY, GIBBONS and WEIS, Circuit Judges

Before: SEITZ, Chief Judge, STALEY, VAN DUSEN, ALDISERT, ADAMS, GIBBONS, ROSENN, HUNTER, WEIS and GARTH, Circuit Judges.

Opinion OF THE COURT

WEIS, Circuit Judge.

We revisit the important question of the right to a jury trial in an OSHA penalty proceeding. A majority of the panel which originally heard this case decided that the administrative proceedings did not run afoul of the Seventh Amendment. F.2d (3d Cir., No. 73-1765, Nov. 4, 1974). After further briefing and argument before the court in banc, we have concluded that the judgment of the panel should stand.

The factual background of the case is set out in the prior opinion, and we need not repeat it here. The employer-petitioner contends that the assessment of a civil penalty by the Occupational Safety and Health Review Commission was, for all intents and purposes, the same as an in personam monetary judgment. It argues that such a proceeding, being in the nature of debt, presents an issue which historically was tried at common law and, therefore, a jury trial should be available even though the government is the plaintiff. Hepner v. United States, 213 U.S. 103, 53 L. Ed. 720, 29 S. Ct. 474 (1909).

The requirement of a jury verdict could be met in a de novo trial in the district court on appeal from an administrative agency. However, the Occupational Safety and Health Act permits only limited judicial review of the administrative agency's factual findings under the "substantial evidence" test. It is that narrow scope of review which, according to petitioner, abrogated its Seventh Amendment right to a trial by jury, both as to the fact of violation and the amount of penalty.*fn1

The Secretary asserts that OSHA proceedings are essentially equitable and for that reason the Amendment does not apply. He contends that the enforcement procedures are designed to insure compliance with safety standards and that the purpose of civil penalties is to prevent recurrences of violations.

Since the scope of review is important to the resolution of this appeal, a survey of the Act's provisions on judicial review is appropriate. A person against whom a penalty has been imposed may obtain a review of the order in the appropriate United States court of appeals. That court is authorized "to make and enter upon the pleadings, testimony, and proceedings set forth in such record a decree affirming, modifying, or setting aside in whole or in part, the order of the Commission and enforcing the same to the extent that such order is affirmed or modified. * * * The findings of the Commission with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive." If further evidence is required, the court can order it to be taken before the Commission. 29 U.S.C. § 660(a).

The Secretary also has the right to petition the court for review. Alternatively, an OSHA order which has not been appealed by the employer may be filed by the Secretary with the clerk of the court of appeals, who will then enter a decree enforcing the order unless otherwise directed by the court. 29 U.S.C. § 660(b). The court of appeals may assess the civil penalties of 29 U.S.C. § 666(a)-(d) as well as any other available remedies in a contempt proceeding brought to enforce its decree. When, apparently, neither party has invoked the review jurisdiction of the court of appeals, civil penalties may be recovered in a civil action in the United States district court.*fn2 29 U.S.C. § 666(k).

In summary, while court review of the fact of violation and amount of penalty is limited by the substantial-evidence standard, the agency may compel payment only by resort to the judicial system. The Act does not totally exclude the judicial branch of government from overseeing and enforcing the statutory provisions. See National Labor Relations Board v. Kingston Cake Co., 206 F.2d 604, 611 (3d Cir. 1953). See also JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 264 (1965).

The application of the Seventh Amendment to judicial proceedings traditionally depended on whether the suit was legal or equitable in nature. Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 446, 7 L. Ed. 732 (1830). If a statute creates a new remedy which is to be processed in the courts, that distinction is pertinent and may determine whether a jury trial is required. Curtis v. Loether, 415 U.S. 189, 39 L. Ed. 2d 260, 94 S. Ct. 1005 (1974).*fn3

But, if the proceeding is before an administrative agency rather than in the courts, the Supreme Court has held that the Seventh Amendment does not apply. In NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 81 L. Ed. 893, 57 S. Ct. 615 (1937), an administrative award of back pay was challenged as violative of the Constitution. The Court said:

"It is argued that the requirement is equivalent to a money judgment and hence contravenes the Seventh Amendment with respect to trial by jury. The Seventh Amendment provides that 'In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.' The Amendment thus preserves the right which existed under the common law when the Amendment was adopted. [Citations] Thus it has no application to cases where recovery of money damages is an incident to equitable relief even though damages might have been recovered in an action at law. [Citations] It does not apply where the proceeding is not in the nature of a suit at common law. [Citation]

"The instant case is not a suit at common law or in the nature of such a suit. The proceeding is one unknown to the common law. It is a statutory proceeding. Reinstatement of the employee and payment for time lost are requirements imposed for violation of the statute and are remedies appropriate to its enforcement. The contention under the Seventh Amendment is without merit." 301 U.S. at 48-49. (Emphasis added).*fn4

The Court reiterated its position in Curtis v. Loether, supra, stating:

"Jones & Laughlin merely stands for the proposition that the Seventh Amendment is generally inapplicable in administrative proceedings, where jury trials would be incompatible with the whole concept of administrative adjudication and would substantially interfere with the NLRB's role in the statutory scheme... These cases uphold congressional power to entrust enforcement of statutory rights to an administrative process or specialized court of equity free from the strictures of the Seventh Amendment." 415 U.S. at 194-95 (footnote omitted).

The same theme was repeated a few months later in Pernell v. Southall Realty, 416 U.S. 363, 40 L. Ed. 2d 198, 94 S. Ct. 1723 (1974), in the context of a statute governing landlord-tenant disputes. While holding that a jury trial was required because of the underlying legal nature of the suit in the District of Columbia courts, Mr. Justice Marshall wrote:

"We may assume that the Seventh Amendment would not be a bar to a congressional effort to entrust landlord-tenant disputes, including those over the right to possession, to an administrative agency." 416 U.S. at 383.

This statement was based on the case of Block v. Hirsh, 256 U.S. 135, 65 L. Ed. 865, 41 S. Ct. 458 (1921).*fn5

A fair reading of the Supreme Court's decisions on the application of the Seventh Amendment establishes three categories of litigation:

1. Legal proceedings in the courts;

2. Equitable and admiralty cases in the courts; and

3. Administrative adjudications.*fn6

In only the first classification is the jury mandated.

It is curious that while the Court was granting such a broad exemption for administrative adjudications, it was enlarging the area of court cases where the jury would be available. It did so in a trilogy of cases beginning with Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 3 L. Ed. 2d 988, 79 S. Ct. 948 (1959), where the Court reevaluated the scope of equitable jurisdiction in view of the expansion of legal rights provided by the Federal Rules of Civil Procedure.

Dairy Queen, Inc. v. Wood, 369 U.S. 469, 8 L. Ed. 2d 44, 82 S. Ct. 894 (1962), held that a jury trial on legal damage issues could not be withheld because the suit also included equitable claims which under past practice would have been adjudicated on the theory of "incidental jurisdiction" or the "cleanup" doctrine. Ross v. Bernhard, 396 U.S. 531, 24 L. Ed. 2d 729, 90 S. Ct. 733 (1970), allowed a jury trial in a stockholder's derivative suit. The Ross Court again pointed out that the Federal Rules of Civil Procedure had eliminated the procedural distinctions between law and equity suits and that the value of the historical test based on these differences had been lessened. The Court noted that the legal nature of an issue is determined by considering (1) pre-merger custom with respect to such questions, (2) the remedy sought, and (3) the practical abilities and limitations of juries.*fn7 Id., at 538 n.10. The dissent in Ross v. Bernhard characterized the decision perhaps accurately:

"as a reflection of an unarticulated but apparently overpowering bias in favor of jury trials in civil actions." 396 U.S. at 551.

Falling chronologically between Dairy Queen and Ross was Katchen v. Landy, 382 U.S. 323, 15 L. Ed. 2d 391, 86 S. Ct. 467 (1966), where a jury trial in a bankruptcy proceeding was denied. The Court held that a summary procedure to order the surrender of a voidable preference was not within the ambit of the Seventh Amendment. The opinion pointed out that the statute created bankruptcy tribunals as courts of equity which "deal in a summary way with 'matters of an administrative character...'" Id., at 327. Thus, Katchen is consistent with the treatment accorded administrative determinations*fn8 in NLRB v. Jones & Laughlin Steel Corp., supra, and furnishes some support for the Secretary's efforts to drape the cloak of equity over OSHA's shoulders.

Nevertheless, it would seem that reliance upon the claimed equitable coloration of the Occupational Safety and Health Act obscures the simple fact that this is an administrative adjudication. The Supreme Court's rulings to date leave no doubt that the Seventh Amendment is not applicable, at least in the context of a case such as this one, and that Congress is free to provide an administrative enforcement scheme without the intervention of a jury at any stage.

The petitioner likens the assessment of these OSHA civil penalties to an in personam monetary judgment which can be obtained only in an action at law. But that similarity has not proved decisive to the Supreme Court. Curtis v. Loether, supra at 196. We see no difference in the impact on an employer between an administrative award which requires him to pay a fixed sum of money to certain employees as in the Jones & Laughlin case and one which orders payment of a civil penalty to the United States.

Our function is not to pass upon either the wisdom or desirability of such an administrative adjudicatory process. We are limited to deciding whether it is constitutional within the limitations set by the Supreme Court.*fn9

There is a line beyond which Congress may not transfer traditional remedies from the courts to administrative agencies so as to evade the protection of the Seventh Amendment.*fn10 As so often with constitutional adjudications, such a point need not be defined with precision to cover all cases for all time. We only decide the case before us, and, as the panel previously held, that line has not been crossed in this case. For the reasons stated in the panel opinion of November 4, 1974, the Commission's decision finding a willful violation of 29 C.F.R. § 1926.652(b) is vacated and remanded for further consideration not inconsistent with this opinion and the order assessing penalties for violations of §§ 1926.652(h), 1926.401(f), 1926.150(c)(1)(viii), 1926.350(a)(1), 1926.51(c), and 1926.51(a)(1) will be affirmed.

GIBBONS, Circuit Judge, dissenting, with whom Judges Aldisert and Hunter join.

I do not intend to repeat here the argument set forth in my dissent from the original panel decision in this case. Nothing advanced during its en banc consideration has moved me from the belief that the Supreme Court has yet to reach the seventh amendment issues as presented in the context of penalty proceedings under the Occupational Safety and Health Act. In essence, the en banc majority takes issue with my treatment of NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 81 L. Ed. 893, 57 S. Ct. 615 (1937). Today, I will direct my discussion to the majority's consideration of the seventh amendment issue in light of that decision.

The majority reasons that while the Supreme Court has recognized three broad generic categories of litigation:

1. legal proceedings in courts;

2. equitable and admiralty cases in courts; and

3. administrative adjudications;

the Court has found a mandate for a jury trial only in the first classification.

The classification serves to define the issue. It recognizes, and I acknowledge, that if a case is one which in 1791 would have been within the jurisdiction of equity or admiralty it does not implicate the seventh amendment. But it seems clear that the seventh amendment was intended to prevent both federal equity and federal admiralty from swallowing up the jurisdiction of courts of law which afforded jury trials. It was over that very issue that the long battle concerning the extension of admiralty jurisdiction to inland waters was fought,*fn1 and out of which the "saving to suitors clause" evolved even before adoption of the seventh amendment.*fn2 Neither the equity jurisdiction nor the admiralty jurisdiction are relied upon by the majority as a justification, in this case, for authorizing the imposition of an in personam money judgment without a jury trial.

Our difference then, is solely over the third category, those involving "administrative adjudication." At the outset it is well to recall that the term appears nowhere in the Constitution. In particular, it appears nowhere in Article III, § 2 which defines the categories of cases to which, and parties upon whom, the judicial power of the United States may be brought to bear. Only two of the clauses in Article III, § 2 are relevant to this case:

(1) "The judicial Power shall extend to all cases, in Law and Equity, arising under this Constitution, the Laws of the United States..., and

(2) " - to Controversies to which the United States shall be a Party...."

It might be argued that since the seventh amendment by its terms, applies only to suits at common law, the amendment limits only the first clause of Article III, § 2; that is, that it refers only to federal question cases in law. It might be further argued that the broader language "Controversies to which the United States shall be a Party", since it does not repeat the "Law and Equity" language of the first clause, is not modified by the seventh amendment. Under that interpretation, in any suit to which the United States was a party, including a suit to collect money, a jury trial would be a matter of legislative grace. But that interpretation clearly proves too much, since the grant of diversity jurisdiction in Article III, § 2 is also "to Controversies" rather than to "Cases, in Law and Equity." Yet, no one has ever suggested that the seventh amendment is inapplicable to diversity cases. Thus, I assume, as does the common consensus, that the seventh amendment applys to the entire judicial power of the United States to the extent that the exercise of that power involves suits at common law. I also assume, and I do not suppose the majority disagrees, that the seventh amendment binds the entire federal government, not merely the Article III courts. I also assume that Congress could not confer the entire diversity jurisdiction, including suits at common law, upon a non-Article III tribunal sitting without a jury. Nor, I suppose, would the case be different if Congress called those non-Article III adjudicators "administrators" rather than "judges."*fn3

But if the majority is right about this case, then my last two assumptions are dead wrong, for nothing in the majority opinion gives any definition to the term "administrative adjudications" other than to simply recognize the label which Congress has fastened upon it. Indeed, that is precisely the government's position. When at oral argument the attorney appearing for the government was asked to suggest a standard by which an "administrative proceeding" falling outside the reach of the seventh amendment could be identified, the only standard he could suggest was the label Congress attached. The majority opinion although it gives passing lip service to the principle of judicial review, embraces this position by totally omitting any attempt to give content either to the seventh amendment term "Suits at common law" or to its term "administrative adjudication." The extent of its analysis is in three sentences:

"There is a line beyond which Congress may not transfer remedies from the courts to administrative agencies so as to evade the protection of the Seventh Amendment. As so often with constitutional adjudications, such a point need not be defined with precision to cover all cases for all time. We only decide the case before us, and, as the panel previously held, that line has not been crossed in this case."

(Majority opinion at 10) (footnote omitted).

But how do we know the line has not been crossed if we are not told where it is? What neutral principle was brought to bear in deciding that this case fell on the permissible side of the invisible line?*fn4 There is only one discernible to me in the majority's opinion - that urged by the government. The line is wherever Congress says it is.

If this is the teaching of the one authority upon which the majority relies, then unbeknownst to the world of legal scholarship, NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 81 L. Ed. 893, 57 S. Ct. 615 (1937), affected the most profound and enormous redistribution of power among the three branches of the federal government of any case in the Court's history. I had thought until today that the Court, not Congress, was the final arbiter of the lines drawn in the Constitution. But if Congress can by fiat define the term "administrative adjudication" and thereby necessarily define the seventh amendment term "Suits at common law", what role do the Article III courts play? I have already referred to the possibility of administrative diversity cases. Can Congress, acting under its commerce clause powers refer all contract cases affecting interstate commerce to an "administrative" non-jury adjudicator? And in a sixth amendment context, can Congress "decriminalize" a whole range of conduct and refer enforcement of federal policies to an administrative civil commitment agency? Think of the judicial resources that would have been saved had that approach been taken during the Vietnam War with respect to the Selective Service Act. It is true, of course, that in either a sixth or a seventh amendment context, the elimination of a jury trial would still leave operable the due process protection of the fifth amendment. Thus some form of judicial review would remain.*fn5 But my point is that whether we are dealing with the sixth amendment guaranty of a jury trial "in all criminal prosecutions," or with the seventh amendment guaranty of a jury trial "[in] Suits at common law," the constitutional scheme of things requires that the Court, not Congress, give meaning to the constitutional terms, and thereby define the limits of administrative proceedings.*fn6

I suggest, moreover, that the Court has already done so with respect to the seventh amendment. In Pernell v. Southall Realty, 416 U.S. 363, 370, 40 L. Ed. 2d 198, 94 S. Ct. 1723 (1974), Justice Marshall, upholding the right to a jury trial in an action for possession of land, quoted with approval the definition of actions at law in Whitehead v. Shattuck, 138 U.S. 146, 151, 34 L. Ed. 873, 11 S. Ct. 276 (1891):

"[it] would be difficult, and perhaps impossible, to state any general rule which would determine, in all cases, what should be deemed a suit in equity as distinguished from an action at law...; but this may be said, that, where an action is simply for the recovery and possession of specific real or personal property, or for the recovery of a money judgment, the action is 'one at law.'" (emphasis supplied).

The so-called "administrative adjudication" in this case never had any object other than the recovery of a money judgment, yet the majority simply accedes to the Congressional determination that it is not an action at law.

I stated earlier that NLRB v. Jones & Laughlin Steel Corp., supra, was the one authority upon which the majority relies. It is true that neither Curtis v. Loether, 415 U.S. 189, 39 L. Ed. 2d 260, 94 S. Ct. 1005 (1974) nor Pernell v. Southall Realty, supra, to which the majority refers, actually support the conclusion that the Court, not Congress, must determine the contents of the constitutional term "Suits at common law." Both upheld demands for jury trial, the first in a suit for damages for violation of Title VIII of the Civil Rights Act of 1968, and the second in a suit for possession of land pursuant to the summary dispossess statute of the District of Columbia. In each case the Court distinguished Jones & Laughlin which was raised as a bar to jury trial, as an administrative proceeding. But neither case can be read for the proposition that by calling something an "administrative adjudication" Congress can decide to handle "Suits at common law" without jury trials. No more could have been intended by these distinguishing references to Jones & Laughlin than to decide the Court's approval of congressional delegation of Article I power to an administrative agency in cases in which that procedure is constitutionally permissible. As I said in dissenting from the panel decision, there is no constitutional prohibition against referring matters of an equitable nature to an administrative fact-finding tribunal, and back pay incidental to injunctive relief is a traditional equitable remedy. The approving citation of Whitehead v. Shattuck in Pernell v. Southall Realty, quoted earlier, should dispel any notion that the Court reads Jones & Laughlin, as a major surrender of the power of judicial review.*fn7

The majority quotes that part of the Jones & Laughlin opinion which refers to a "statutory proceeding." One thing that is clear from Curtis v. Loether, and Pernell v. Southall Realty, is that both decisions flatly reject any distinction between "Suits at common law" and "statutory proceedings." Both cases involved statutory proceedings. The first was a statutory proceeding seeking recovery of a money judgment for housing discrimination. It was held to be an action at law. The second was a statutory proceeding seeking possession of land. It, too, was held to be an action at law. Thus the fact that the proceeding is statutory is simply irrelevant; as irrelevant as the fact that all federal judicial proceedings are statutory since all federal jurisdiction is statutory.

Moreover the majority quotation from Jones & Laughlin is no authority for the proposition that if Congress has relegated the proceeding to an administrative agency the seventh amendment does not apply. I read the quote with the following emphasis:

"It is argued that the [back pay award] is equivalent to a money judgment and hence contravenes the Seventh Amendment with respect to trial by jury. The Seventh Amendment provides that 'In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.' The Amendment thus preserves the right which existed under the common law when the Amendment was adopted. [Citations omitted]. Thus it has no application to cases where recovery of money damages is an incident to equitable relief even though damages might have been recovered in an action at law. [citations omitted]. It does not apply where the proceeding is not in the nature of a suit at common law. [citation omitted].

The instant case is not a suit at common law or in the nature of such a suit. The proceeding is one unknown to the common law. It is a statutory proceeding. Reinstatement of the employee and payment for time lost are requirements imposed for violation of the statute and are remedies appropriate to its enforcement. The contention under the Seventh Amendment is without merit." 301 U.S. at 48-49. (emphasis supplied).

To rely only on the paragraph referring to statutory proceedings unknown to the common law is to distort Chief Justice Hughes' meaning. The suit was one in which the N.L.R.B. sought injunctive relief in the court of appeals, and incidental to that injunctive relief sought a back pay award. Of course an action for injunctive relief was unknown to the common law. No more can be read into Jones & Laughlin than the rejection of a demand for jury trial in the equitable enforcement proceeding. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S. Ct. 2362, 45 L. Ed. 2d 280, 43 U.S.L.W. 4480, 4892-93 (1975) (Rehnquist, J., concurring).

I would concede, however, that Chief Justice Hughes wrote with less than usual precision in the quoted portion of the opinion. To understand why he may have done so, the case should be viewed in its historical setting. The decision was handed down on April 12, 1937, having been argued with four other Wagner Act cases on February 10 and 11, 1937. The back pay issue was peripheral in the extreme. Jones & Laughlin involved a frontal attack upon the power of Congress, acting under the Commerce Clause, to regulate the relations between an employer and an employee engaged in production or manufacture. The attack had succeeded in the Fifth Circuit in June of 1936. NLRB v. Jones & Laughlin Steel Corp., 83 F.2d 998 (5th Cir. 1936). In many quarters it was expected to succeed in the Supreme Court as well since the Court only recently had struck down the N.I.R.A.,*fn8 the A.A.A.,*fn9 the Guffey Coal Conservation Act,*fn10 and the New York minimum wage law.*fn11 In the election in November of 1936, President Roosevelt not only won reelection with 523 out of 531 electorial votes, but also enormously strengthened his party's power in Congress. On February 5, 1937, just five days before the argument in Jones & Laughlin the President sent his "court-packing" proposal to Congress.*fn12 Four days after the argument, Senator Wheeler introduced a joint resolution proposing an amendment to the Constitution which would permit Congress to overrule by a two-thirds vote a decision of the Supreme Court holding a federal statute unconstitutional.*fn13 On March 11, 1937, Senator O'Mahoney introduced a joint resolution proposing a constitutional amendment which would prohibit any lower federal court from holding a federal statute unconstitutional, and which would also prohibit such action by the Supreme Court unless two-thirds of the members thereof by specific and separate opinion found it so beyond a reasonable doubt.*fn14

Thus Jones & Laughlin was sub judice during the 66 days of the Court's modern history when it found itself most completely isolated from the other two branches of federal government and most severely under attack. See, e.g., 2 Pusey, Charles Evans Hughes 749-65 (1951); R. Jackson, The Struggle for Judicial Supremacy 176-96 (1941); J. Burns, Roosevelt: The Lion and the Fox 291-304 (1956). The decision in Jones & Laughlin and the four other Wagner Act cases handed down the same day marked at least the beginning of the end of the Court's attempt to impose its subjective economic views on the nation in the guise of substantive due process.*fn15 But clearly the Wagner Act cases did not signal an end to the judicial review of congressional delegations of power. It is true that taken out of context, bits and pieces of the Court's Jones & Laughlin opinion sound very deferential toward congressional authority to decide what may be committed to an administrative adjudicator. A deferential tone in the climate of the times was perfectly understandable. Deference by the Court to Congress in one set of circumstances, however, cannot be regarded as permanent surrender of constitutional authority. Compare Ex parte McCardle, 74 U.S. (7 Wall.) 506, 19 L. Ed. 264 (1869), with Ex parte Yerger, 75 U.S. (8 Wall) 85, 19 L. Ed. 332 (1869).*fn16 Jones & Laughlin should be read not expansively, as the majority reads it, but cautiously, and with a thoughtful appreciation of the circumstances surrounding its announcement. Neither the Wheeler nor the O'Mahoney amendments nor Roosevelt's "court-packing" plan ultimately succeeded, and it is still the Court, not Congress, which must ulimately give meaning to the seventh amendment.

The term "statutory proceedings" when referring to administrative proceedings is imprecise because it is overly generic. There are administrative proceedings in the nature of rule-making, rate-setting, or licensing which have nothing at all to do with this case. An earlier generation of judges probably would have called these proceedings legislative. See, e.g., Justice Holmes' description of ratemaking in Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226, 53 L. Ed. 150, 29 S. Ct. 67 (1908). What the case sub judice involves is administrative adjudication, and the question is what kinds of adjudication can be relegated by Congress to decision by executive branch employees rather than by jurors?*fn17 One answer is that any adjudication which Congress decrees should be committed to the discretion of an executive branch employee may be so delegated. Although the majority opinion in the two sentences quoted earlier nods to the seventh amendment and to the integrity of Article III judicial review, in reality it has simply deferred to Congress' labeling of the proceeding as "administrative." The other answer is that given by the Supreme Court in Curtis v. Loether, and Pernell v. Southall Realty. Congress cannot relegate fact-finding to any tribunal other than a jury in any proceeding that was in 1791 a "Suit at common law."*fn18 Principled adjudication of the meaning of the constitutional term must be firmly rooted in the history of the common law, or the courts will be set adrift upon the same sea of subjectivity and arbitrariness which led to the great Court crisis of 1937.

In my dissent to the panel's opinion, I attempted at some length to demonstrate that a proceeding, the sole object of which is the obtaining of an in personam money judgment, is a "Suit at common law" and thereby deserving of seventh amendment protection. I again dissent because I am unwilling to accept the majority's view that an Article III court charged with interpreting the Constitution's mandate must blindly defer to a Congressional direction that the proceeding below be labeled something else. Although I am completely in sympathy with the goals Congress sought to achieve in enacting the Occupational Safety and Health Act, the limitations on the exercise of federal power as set forth in the Constitution must, however, be observed by the legislative branch. Scrupulous regard for such principles may often seem to delay the attainment of desirable social goals, but as artificial as they sometimes appear, in the long run, they serve the higher purpose of preserving constitutional government.*fn19

GARTH, Circuit Judge, dissenting:

Although I agree with the legal analysis set forth by Judge Gibbons in his opinions dissenting from both the panel and en banc majorities, I disagree strongly with his political analysis (pages 17-19 of the en banc dissent) of the reasoning underlying the Supreme Court's decision in N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 81 L. Ed. 893, 57 S. Ct. 615 (1937). I am critical of any analytical approach which attributes a court decision to the political motivations and other extrajudicial considerations of the five Justices who joined in the majority opinion.

I do not believe that fear of "court-packing" or other "reprisals" governed the decisions of the Supreme Court in 1937 any more than I believe that considerations of "reprisal" or "reward" dictate the decision of members of the judiciary today. The "considerations" about which Judge Gibbons writes are not the product of evidence and are not matters of judicial record; they are rather political theories advanced by secondary source commentators. If true, they rent great tears in the fabric of justice; if false, they do an enormous disservice to dedicated Justices. In either event, these considerations add nothing to an otherwise analytical and compelling opinion dealing with the applicability of the Seventh Amendment to the issues presented here. Indeed, in advancing a hypothetical and pseudo-political analysis of considerations which might have motivated the court (an analysis better suited to a law review note than an opinion), Judge Gibbons detracts from an otherwise scholarly dissertation.

I note, to set the record straight, that many of the Justices who ultimately constituted the majority in Jones & Laughlin, supra, had consistently been in the minority in those cases decided prior to the November 1936 election,*fn1a which are cited by Judge Gibbons in his opinion at 18. In Morehead v. New York ex rel. Tipaldo, 298 U.S. 587, 80 L. Ed. 1347, 56 S. Ct. 918 (1936) Chief Justice Hughes and Justices Brandeis, Stone and Cardozo were the dissenters. When Justice Roberts joined Chief Justice Hughes and Justices Brandeis, Stone and Cardozo in Jones & Laughlin, the former dissenters finally became the majority. How can it be said that the "majority" vote which had been developing prior to the 1936 election was the sole product of post-1936 political considerations? I prefer not to indulge in political and historical speculation but to read a Supreme Court opinion for what it says. I perceive nothing in the Jones & Laughlin decision which in any way suggests that the result was based on other than proper judicial considerations based upon matters of record.*fn2a

Therefore, I disassociate myself from the dissent's political analysis, while at the same time joining in Judge Gibbons' otherwise excellent opinion, holding that the Seventh Amendment mandates a jury trial with respect to penalty proceedings under the Occupational Safety and Health Act.


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