| [1] | SUPREME COURT OF THE UNITED STATES |
| [2] | No. 79-253 |
| [3] | 1980.SCT.41590 <http://www.versuslaw.com>; 446
U.S. 238, 100 S. Ct. 1610, 64 L. Ed. 2d 182 |
| [4] | decided: April 28, 1980. |
| [5] | MARSHALL, SECRETARY OF LABOR, ET
AL. v. JERRICO, INC. |
| [6] | APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA. |
| [7] | Deputy Solicitor General Geller argued the cause for appellants. With
him on the briefs was Solicitor General McCree. |
| [8] | Thomas W. Power argued the cause for appellee. With him on the brief
were William E. Anderson and Curtis L. Wilson. |
| [9] | Marshall, J., delivered the opinion for a unanimous
Court. |
| [10] | Author: Marshall |
| [11] | MR. JUSTICE MARSHALL delivered the opinion of the
Court. |
| [12] | Under § 16 (e) of the Fair Labor Standards Act, 29 U. S. C. § 216 (e),
sums collected as civil penalties for the unlawful employment of child
labor are returned to the Employment Standards Administration (ESA) of the
Department of Labor in reimbursement for the costs of determining
violations and assessing penalties. The question for decision is whether
this provision violates the Due Process Clause of the Fifth Amendment by
creating an impermissible risk of bias in the Act's enforcement and
administration. I |
| [13] | The child labor provisions of federal law are primarily contained in §
12 of the Fair Labor Standards Act, 52 Stat. 1067, as amended, 29 U. S. C.
§ 212. The Secretary of Labor has designated the ESA as the agency
responsible for enforcing these provisions, 36 Fed. Reg. 8755 (1971). The
ESA in turn carries out its responsibilities through regional offices, and
the assistant regional administrator of each office has been charged with
the duty of determining violations and assessing penalties. |
| [14] | Appellee Jerrico, Inc., is a Delaware corporation that manages
approximately 40 restaurants in Kentucky, Indiana, Tennessee, Georgia, and
Florida. In a series of investigations from 1969 to 1975, the ESA
uncovered over 150 violations of the child labor provisions at appellee's
various establishments. After considering the factors designated by
statute and regulations,*fn1
the ESA Assistant Regional Administrator in the Atlanta office assessed a
total fine of $103,000 in civil penalties for the various violations. That
figure included a supplemental assessment of $84,500 because of his
conclusion that the violations were willful. |
| [15] | Appellee filed exceptions to the determination and assessment of the
Assistant Regional Administrator, and pursuant to 29 U. S. C. § 216 (e), a
hearing was held before an Administrative Law Judge. Witnesses included
employees of appellee and representatives of the Department of Labor. The
Administrative Law Judge accepted the Assistant Regional Administrator's contention
that violations had occurred, concluding that the record showed "a course
of violations" for which "[respondent's] responsibility cannot be
disputed." At the same time, he was persuaded by appellee's witnesses and
by a review of the evidence that the violations were not willful.
Accordingly, he reduced the total assessment to $18,500. |
| [16] | Appellee did not seek judicial review of the decision of the
Administrative Law Judge. Instead, it brought suit in Federal District
Court, challenging the civil penalty provisions of the Act on
constitutional grounds and seeking declaratory and injunctive relief
against their continued enforcement. Appellee accepted the determination
of the Administrative Law Judge and alleged no unfairness in the
proceedings before him. Nonetheless, it contended that § 16 (e) of the Act
violated the Due Process Clause of the Fifth Amendment by providing that
civil penalties must be returned to the ESA as reimbursement for
enforcement expenses and by allowing the ESA to allocate such fines to its
various regional offices. According to appellee, this provision created an
impermissible risk and appearance of bias by encouraging the assistant
regional administrator to make unduly numerous and large assessments of
civil penalties. |
| [17] | After the parties engaged in discovery with respect to the
administration of § 16 (e), appellee moved for summary judgment. The
District Court granted the motion. It acknowledged that the Office of
Administrative Law Judges was unaffected by the total amount of the civil
penalties. At the same time, the court concluded that the reimbursement
provision created an impermissible risk of bias on the part of the
assistant regional administrator. Citing Tumey v. Ohio, 273 U.S.
510 (1927), and Ward v. Village of Monroeville, 409
U.S. 57 (1972), the court found that because a regional
office's greater effort in uncovering violations could lead to an
increased amount of penalties and a greater share of reimbursements for
that office, § 16 (e) could distort the assistant regional administrator's
objectivity in assessing penalties for
violations of the child labor provisions of the Act. |
| [18] | We noted probable jurisdiction, 444 U.S. 949
(1979), and now reverse. |
| [19] | II |
| [20] | A |
| [21] | The Due Process Clause entitles a person to an impartial and
disinterested tribunal in both civil and criminal cases. This requirement
of neutrality in adjudicative proceedings safeguards the two central
concerns of procedural due process, the prevention of unjustified or
mistaken deprivations and the promotion of participation and dialogue by
affected individuals in the decisionmaking process. See Carey v. Piphus, 435 U.S. 247, 259-262, 266-267 (1978). The neutrality
requirement helps to guarantee that life, liberty, or property will not be
taken on the basis of an erroneous or distorted conception of the facts or
the law. See Mathews v. Eldridge, 424 U.S. 319, 344
(1976). At the same time, it preserves both the appearance and reality of
fairness, "generating the feeling, so important to a popular government,
that justice has been done," Joint Anti-Fascist Committee v. McGrath, 341 U.S. 123, 172 (1951) (Frankfurter, J.,
concurring), by ensuring that no person will be deprived of his interests
in the absence of a proceeding in which he may present his case with
assurance that the arbiter is not predisposed to find against
him. |
| [22] | The requirement of neutrality has been jealously guarded by this
Court. In Tumey v. Ohio, supra, the Court reversed convictions rendered by
the mayor of a town when the mayor's salary was paid in part by fees and
costs levied by him acting in a judicial capacity. The Court stated that
the Due Process Clause would not permit any "procedure which would offer a
possible temptation to the average man as a judge to forget the burden of
proof required to convict the defendant, or which might lead him not to
hold the balance nice, clear and true between the State and the accused." 273 U.S., at 532. Tumey was applied in Ward v.
Village of Monroeville, supra, to
invalidate a procedure by which sums produced from a mayor's court
accounted for a substantial portion of municipal revenues, even though the
mayor's salary was not augmented by those sums. The forbidden "possible
temptation," we concluded, is also present "when the mayor's executive
responsibilities for village finances may make him partisan to maintain
the high level of contribution from the mayor's court." 409
U.S., at 60. We have employed the same principle in a variety
of settings, demonstrating the powerful and independent constitutional
interest in fair adjudicative procedure.*fn2
Indeed, "justice must satisfy the appearance of justice," Offutt v. United
States, 348 U.S. 11, 14 (1954), and this "stringent
rule may sometimes bar trial by judges who have no actual bias and who
would do their very best to weigh the scales of justice equally between
contending parties," In re Murchison, 349 U.S. 133,
136 (1955). See also Taylor v. Hayes, 418 U.S. 488
(1974). |
| [23] | Appellee contends that these principles compel the conclusion that the
reimbursement provision of the Act violates the Due Process Clause. We
conclude, however, that the strict requirements of Tumey and Ward are not
applicable to the determinations of the assistant regional administrator,
whose functions resemble those of a prosecutor more closely than those of
a judge. The biasing influence that appellee discerns in § 16 (e) is, we
believe, too remote and insubstantial to violate the constitutional
constraints applicable to the decisions of
an administrator performing prosecutorial functions. To explain our
conclusion, we turn to the relevant sections of the Act. |
| [24] | As noted above, the major portions of the federal child labor
provisions appear in 29 U. S. C. § 212, which outlaws the employment in
interstate commerce of "oppressive child labor," as that term is defined
in 29 U. S. C. § 203 (l) and implementing regulations. These provisions
demonstrate a firm federal policy of "[protecting] the safety, health,
well-being, and opportunities for schooling of youthful workers." 29 CFR §
570.101 (1979). See also H. R. Rep. No. 1452, 75th Cong., 1st Sess., 6
(1937); S. Rep. No. 884, 75th Cong., 1st Sess., 2, 6 (1937). |
| [25] | Before 1974, the Secretary of Labor enforced the child labor
provisions primarily through actions for injunctive relief, see 29 U. S.
C. §§ 212 (b), 217, and for criminal sanctions, see 29 U. S. C. §§ 216
(a), 215 (a)(4). Having found such relief to be an inadequate or
insufficiently flexible remedy for violations of the law, cf. H. R. Rep.
No. 93-913, p. 15 (1974), Congress in 1974 authorized the Secretary to
assess a civil penalty not to exceed $1,000 for each violation of § 212.
29 U. S. C. § 216 (e). Under this provision for the assessment of civil
penalties, the Secretary's determination of the existence of a violation
and of the amount of the penalty is not final if the person charged with a
violation enters an exception within 15 days of receiving notice. In the
event that such an exception is entered, the final determination is made
in an administrative hearing conducted in accordance with the
Administrative Procedure Act, 5 U. S. C. § 554. The administrative law
judge "may affirm, in whole or in part, the determination by the
Administrator of the occurrence of violations or . . . may find that no
violations occurred, and shall order payment of a penalty in the amount
originally assessed or in a lesser amount . . . or order that respondent
pay no penalty, as appropriate." 29 CFR § 580.32 (a) (1979). He is
directed to consider the same factors considered by the assistant regional
administrator*fn3
in making his original assessment. Ibid. Under the natural construction of
this regulation, the administrative law judge is required to conduct a de
novo review of all factual and legal issues.*fn4 |
| [26] | The provision whose constitutionality is at issue in this case is a
part of 29 U. S. C. § 216 (e), the civil penalty section of the Act. That
provision states that civil penalties collected for violations of the
child labor law "shall be applied toward reimbursement of the costs of
determining the violations and assessing and collecting such penalties, in
accordance with the provisions of section 9a of this title." Section 9a,
29 U. S. C. § 9a, added in 1934, provides in turn that all
sums |
| [27] | "received by the Department of Labor in payment of the cost of such
work shall be deposited to the credit of the appropriation of that bureau,
service, office, division, or other agency of the Department of Labor
which supervised such work, and may be used, in the discretion of the
Secretary of Labor, and notwithstanding any other provision of law, for
the ordinary expenses of such agency and/or to secure the special services
of persons who are neither officers nor employees of the United States."*fn5 |
| [28] | The record developed in the District Court permits a detailed
description of the administration of the reimbursement provision in the
years 1976, 1977, and 1978. It is plain that no official's salary is
affected by the levels of the penalties. In all three years the sums
collected as child labor penalties amounted to substantially less than 1%
of the ESA's budget.*fn6
And
in each of those years, the ESA did not spend the full amount appropriated
to it, and the sums that were not spent were returned to the Treasury. The
amounts returned to the Treasury in that fashion substantially exceeded
the sums collected under § 16 (e) in all three years.*fn7
The challenged provisions have not, therefore, resulted in any increase in
the funds available to the ESA over the amount appropriated by
Congress. |
| [29] | Civil penalties for child labor violations are allocated by the
national office of the ESA, subject to the approval of the Secretary of
Labor. In 1976, the sums collected were allocated to and retained by the
ESA national office; in 1977, they were allocated to the national office,
to the Office of the Solicitor of Labor, and to the various regional
offices in proportion to the amounts expended on enforcement of the child
labor provisions;*fn8
and in 1978, the penalties were held in the Treasury. Civil penalties have
never been allotted to the regional offices on the basis of the total
amount of penalties collected by particular offices. |
| [30] | The District Court concluded that in these circumstances the
challenged provision violated the Due Process Clause under the principles
set forth in Tumey and Ward. It noted that, as the 1977 practice
demonstrated, the ESA has discretion to return sums collected as civil
penalties to the regional offices in proportion to the amounts expended on
enforcement efforts. Increased enforcement costs could thus lead to a larger
share of reimbursements. According to the court, an assistant regional
administrator would therefore be inclined to maximize the total
expenditures on enforcement of the child labor provisions of the Act, and
those increased expenditures would result in an increase in the number and
amount of penalties assessed. The court concluded that this possibility
created an unconstitutional risk of bias in the assistant regional
administrator's enforcement decisions. We disagree. |
| [31] | The assistant regional administrator simply cannot be equated with the
kind of decisionmakers to which the principles of Tumey and Ward have been
held applicable. He is not a judge. He performs no judicial or
quasi-judicial functions. He hears no witnesses and rules on no disputed
factual or legal questions. The function of assessing a violation is akin
to that of a prosecutor or civil plaintiff. If the employer excepts to a
penalty -- as he has a statutory right to do -- he is entitled to a de
novo hearing before an administrative law judge.*fn9
In that hearing the assistant regional administrator acts as the
complaining party and bears the burden of proof on contested issues. 29
CFR § 580.21 (a) (1979). Indeed, the
Secretary's regulations state that the notice of penalty assessment and
the employer's exception "shall, respectively, be given the effect of a
complaint and answer thereto for purposes of the administrative
proceeding." 29 CFR § 580.3 (b) (1979). It is the administrative law
judge, not the assistant regional administrator, who performs the function
of adjudicating child labor violations. As the District Court found, the
reimbursement provision of § 16 (e) is inapplicable to the Office of
Administrative Law Judges.*fn10 |
| [32] | The rigid requirements of Tumey and Ward, designed for officials
performing judicial or quasi-judicial functions, are not applicable to
those acting in a prosecutorial or plaintiff-like capacity. Our legal
system has traditionally accorded wide discretion to criminal prosecutors
in the enforcement process, see Linda R. S. v. Richard D., 410
U.S. 614 (1973), and similar considerations have been found
applicable to administrative prosecutors as well, see Moog Industries,
Inc. v. FTC, 355 U.S. 411, 414 (1958); Vaca v. Sipes,
386 U.S. 171, 182 (1967). Prosecutors need not be
entirely "neutral and detached," cf. Ward v. Village of Monroeville, 409 U.S., at 62. In an adversary system, they are
necessarily permitted to be zealous in their enforcement of the law. The
constitutional interests in accurate finding of facts and application of
law, and in preserving a fair and open process for decision, are not to
the same degree implicated if it is the prosecutor, and not the judge, who
is offered an incentive for securing
civil penalties. The distinction between judicial and non-judicial
officers was explicitly made in Tumey, 273 U.S., at 535, where the Court noted that a state legislature "may, and
often ought to, stimulate prosecutions for crime by offering to those who
shall initiate and carry on such prosecutions rewards for thus acting in
the interest of the State and the people." See also Hortonville School
Dist. v. Hortonville Ed. Assn., 426 U.S. 482, 495
(1976). |
| [33] | We do not suggest, and appellants do not contend, that the Due Process
Clause imposes no limits on the partisanship of administrative
prosecutors. Prosecutors are also public officials; they too must serve
the public interest. Berger v. United States, 295 U.S. 78, 88 (1935). In appropriate circumstances the Court has made
clear that traditions of prosecutorial discretion do not immunize from
judicial scrutiny cases in which the enforcement decisions of an
administrator were motivated by improper factors or were otherwise
contrary to law. See Dunlop v. Bachowski, 421 U.S. 560, 567, n. 7, 568-574 (1975); Rochester Telephone Corp. v.
United States, 307 U.S. 125 (1939).*fn11
Moreover, the decision to enforce -- or not to enforce -- may itself
result in significant burdens on a defendant or a statutory beneficiary,
even if he is ultimately vindicated in an adjudication. Cf. 2 K. Davis,
Administrative Law Treatise 215-256 (2d ed. 1979). A scheme injecting a
personal interest, financial or otherwise, into the enforcement process
may bring irrelevant or impermissible factors into the prosecutorial
decision and in some contexts
raise serious constitutional questions. See Bordenkircher v. Hayes, 434 U.S. 357, 365 (1978); cf. 28 U. S. C. § 528 (1976
ed., Supp. III) (disqualifying federal prosecutor from participating in
litigation in which he has a personal interest). But the strict
requirements of neutrality cannot be the same for administrative
prosecutors as for judges, whose duty it is to make the final decision and
whose impartiality serves as the ultimate guarantee of a fair and
meaningful proceeding in our constitutional regime. |
| [34] | B |
| [35] | In this case, we need not say with precision what limits there may be
on a financial or personal interest of one who performs a prosecutorial
function,*fn12
for here the influence alleged to impose bias is exceptionally remote. No
governmental official stands to profit economically from vigorous
enforcement of the child labor provisions of the Act. The salary of the
assistant regional administrator is fixed by law. 5 U. S. C. § 5332 (1976
ed. and Supp. III). The pressures relied on in such cases as Tumey v.
Ohio, supra; Gibson v. Berryhill, 411 U.S. 564, 579
(1973); and Connally v. Georgia, 429 U.S. 245, 250
(1977) (per curiam), are entirely absent here. |
| [36] | Nor is there a realistic possibility that the assistant regional
administrator's judgment will be distorted by the prospect of
institutional gain as a result of zealous enforcement efforts. As we have
noted, the civil penalties collected under § 16 (e) represent
substantially less than 1% of the budget of the ESA.*fn13
In each of the relevant years, the amount of the ESA's budget
that was returned to the Treasury was substantially greater than the
amount collected as civil penalties. Unlike in Ward and Tumey, it is plain
that the enforcing agent is in no sense financially dependent on the
maintenance of a high level of penalties. Furthermore, since it is the
national office of the ESA, and not any assistant regional administrator,
that decides how to allocate civil penalties, such administrators have no
assurance that the penalties they assess will be returned to their offices
at all. See Dugan v. Ohio, 277 U.S. 61
(1928). |
| [37] | Moreover, the ESA's administration of the Act has minimized any
potential for bias. In the only year in which the ESA elected to allocate
part of the civil penalties to the regional offices, it did so in
proportion to the expenses incurred in investigating and prosecuting child
labor violations, not on the basis of the amounts of penalties collected.
Thus, even if an assistant regional administrator were to act on the
assumption that civil penalties would be returned to his office in any
given year, his decision to assess an unjustifiably large penalty in a
particular case would be of no benefit to his office, since that decision
would not produce an increase in the level of expenses. |
| [38] | The District Court's conclusion that the reimbursement provision
violated the Due Process Clause was evidently premised on its perception
that an assistant regional administrator might be tempted to devote an
unusually large quantity of resources to enforcement efforts in the hope
that he would ultimately obtain a higher total allocation of federal funds
to his office. This increase in enforcement effort, the court suggested,
might incline the assistant regional administrator to assess an
unjustified number of penalties, and to make those penalties unduly high.
But in light of the factors discussed above, it is clear that this
possibility is too remote to violate the constraints applicable to the
financial or personal interest of officials charged with prosecutorial or
plaintiff-like functions.*fn14
In order to produce the predicted result, the ESA would be required to
decide to allocate civil penalties to regional offices; the sums allocated
to the particular regional office would have to exceed any amount of that
office's budget returned to the Treasury at the end of the fiscal year;
the assistant regional administrator would have to receive authorization
from his superiors to expend additional funds to increase his enforcement
expenditures to the desired level; the increased expenditures would have
to result in an increase in penalties; and the administrative law judge
and reviewing courts would have to accept or ratify the assistant regional
administrator's assessments. "[Under] a realistic appraisal of
psychological tendencies and human weakness," Withrow v. Larkin, 421 U.S. 35, 47 (1975), it is exceedingly improbable
that the assistant regional administrator's enforcement decisions would be
distorted by some expectation that all of these contingencies would
simultaneously come to fruition. We are thus unable to accept appellee's
contention that, on this record and as presently administered, the
reimbursement provision violates standards of procedural fairness embodied
in the Due Process Clause. |
| [39] | The judgment of the District Court is reversed, and the case is
remanded to that court for further proceedings consistent with this
opinion. |
| [40] | It is so ordered. |
| [41] | Disposition |
| [42] | Reversed and remanded. |
|
| |
| Opinion Footnotes | |
|
| |
| [43] | *fn1
Those factors include "any history of prior violations; any evidence of
willfulness or failure to take reasonable precautions to avoid violations;
the number of minors illegally employed; the age of the minors so employed
and records of the required proof of age; the occupations in which the
minors were so employed; exposure of such minors to hazards and any
resultant injury to such minors; the duration of such illegal employment;
and, as appropriate, the hours of the day in which it occurred and whether
such employment was during or outside school hours." 29 CFR § 579.5 (c)
(1979). |
| [44] | *fn2
For example, we have invalidated a system in which justices of the peace
were paid for issuance but not for non-issuance of search warrants,
Connally v. Georgia, 429 U.S. 245 (1977) (per curiam)
; prohibited the trial of a defendant before a judge who has previously
held the defendant in contempt, Taylor v. Hayes, 418 U.S. 488 (1974); Mayberry v. Pennsylvania, 400 U.S. 455 (1971); forbidden a state administrative board consisting
of optometrists in private practice from hearing charges filed against
licensed optometrists competing with board members, Gibson v. Berryhill, 411 U.S. 564, 578-579 (1973); and prohibited a parole
officer from making the determination whether reasonable grounds exist for
the revocation of parole, Morrissey v. Brewer, 408 U.S. 471, 485-486 (1972). |
| [45] | *fn3
See n. 1, supra. |
| [46] | *fn4
See n. 9, infra, and accompanying text. |
| [47] | *fn5
The section was originally designed "[to] authorize the Department of
Labor to make special statistical studies upon payment of the cost
thereof, and for other purposes." See 48 Stat. 582; S. Rep. No. 322, 73d
Cong., 2d Sess. (1934). |
| [48] | *fn6
In 1976, the ESA collected about $151,000 in child labor penalties; in
1977, $650,000; and in 1978, $592,000. By comparison, $87,407,000 was
appropriated to the ESA in 1976; $98,992,000 in 1977; and $119,632,000 in
1978. See Budget of the United States Government, Fiscal Year 1980 --
Appendix 652; Budget of the United States Government, Fiscal Year 1979 --
Appendix 623-624; Budget of the United States Government, Fiscal Year 1978
-- Appendix 510. |
| [49] | *fn7
The record indicates that, in 1976, the ESA returned $981,000 to the
Treasury; $870,000 was returned in 1977; and $4,600,000 in
1978. |
| [50] | *fn8
In that year a total of $559,800 was allotted, including $194,800 to the
national office. The Chicago office received $44,300, the highest
allotment of any regional office; the Denver office received the lowest,
$4,900. |
| [51] | *fn9
Appellee claims that the hearing before the administrative law judge is
not truly de novo because the judge has the authority only to determine
the existence of the violation, not to assess the reasonableness of the
penalty. We are unable to discern any such limitation on the
administrative law judge's authority. Under federal regulations, the
administrative law judge is expressly empowered to review the amount of
the penalty and is required to consider precisely those factors considered
by the assistant regional administrator in making his assessment. See 29
CFR § 579.5 (1979). Indeed, in this very case the Administrative Law Judge
carefully reviewed the Assistant Regional Administrator's assessment and
reduced it by over 80%.
Appellee correctly points out that in Ward v. Village of Monroeville, 409 U.S. 57 (1972), we held that the availability of
a trial de novo before an unbiased judge did not remove the constitutional
infirmity in an original trial before one whose impartiality was impaired.
A litigant, we said, "is entitled to a neutral and detached judge in the
first instance." Id., at 61-62. Ward does not aid appellee in this case,
however, for the administrative law judge presides over the initial
adjudication. |
| [52] | *fn10
Appellee errs in suggesting that the Office of Administrative Law Judges
is also entitled to reimbursement under § 16 (e). When read in conjunction
with 29 U. S. C. § 9 (a), that section allows reimbursement to offices
that "supervised [the] work" of "determining the violations and assessing
and collecting [the] penalties." The Office of Administrative Law Judges
does not "supervise" that work. Indeed, the Administrative Procedure Act
expressly forbids such supervision. 5 U. S. C. § 554 (d). The Office of
Administrative Law Judges maintains an administrative section within the
Department of Labor entirely separate from that of the supervising body,
the ESA, and the Office has a separate budget. |
| [53] | *fn11
Cf., e. g., Adams v. Richardson, 156 U. S. App. D.C. 267, 480
F.2d 1159 (1973); Environmental Defense Fund, Inc. v.
Ruckelshaus, 142 U. S. App. D.C. 74, 439 F.2d 584
(1971); Medical Comm. for Human Rights v. SEC, 139 U. S. App. D.C. 226, 432 F.2d 659 (1970), vacated as moot, 404
U.S. 403 (1972); Perez v. Boston Housing Authority, 379 Mass.
703, ] , ] , 400 N. E. 2d 1231, 1247, 1252-1253 (1980). See Stewart, The
Reformation of American Administrative Law, 88 Harv. L. Rev. 1667,
1752-1756 (1975); Jaffe, The Individual Right to Initiate Administrative
Process, 25 Iowa L. Rev. 485 (1940). |
| [54] | *fn12
In particular, we need not say whether different considerations might be
held to apply if the alleged biasing influence contributed to prosecutions
against particular persons, rather than to a general zealousness in the
enforcement process. |
| [55] | *fn13
Even if the ESA received a considerable amount in civil penalties in a
particular year, of course, it is possible that Congress would decide to
appropriate a correspondingly lower amount from the
Treasury. |
| [56] | *fn14
We need not, of course, say whether the alleged biasing influence is too
remote to raise constitutional objections even under the standards of Ward
and
Tumey. |