446 U.S.

238
100 S.Ct. 1610
64 L.Ed.2d 182

Ray MARSHALL, Secretary of Labor, et al., Appellants,

v.
JERRICO, INC.
No. 79-253.
Argued March 19, 1980.
Decided April 28, 1980.

Syllabus
Under 16(e) of the Fair Labor Standards Act (Act), 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. An Assistant Regional Administrator determined that
violations of child labor provisions of the Act had occurred at restaurants
managed by appellee and assessed a fine against appellee, including an
amount for willful violation. After appellee filed exceptions to the
Assistant Regional Administrator's determination and assessment, a
hearing was held before an Administrative Law Judge, who accepted the
Assistant Regional Administrator's contention that violations had
occurred, but found that the violations were not willful and reduced the
total assessment accordingly. Appellee than filed suit in Federal District
Court, contending that 16(e) violated the Due Process Clause of the
Fifth Amendment. The District Court granted summary judgment for
appellee, holding that the reimbursement provision of 16(e) created an
impermissible risk of bias on the part of the Assistant Regional
Administrator 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, and thus 16(e) could distort the
Assistant Regional Administrator's objectivity in assessing penalties.
Held: The reimbursement provision of 16(e) does not violate the Due
Process Clause of the Fifth Amendment by creating an impermissible risk
of bias in the Act's enforcement and administration. Pp. 242-252.

(a) Strict due process requirements as to the neutrality of officials

performing judicial or quasi-judicial functions, cf. Tumey v. Ohio, 273
U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749, Ward v. Monroeville, 409 U.S. 57,
93 S.Ct. 80, 34 L.Ed.2d 267, 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. In an adversary system,
prosecutors are permitted to be zealous in their enforcement of the law.
Although traditions of prosecutorial discretion do not immunize from
judicial scrutiny enforcement decisions that are contrary to law, rigid
standards of neutrality cannot be the same for administrative prosecutors
as for judges. Pp. 242-250.
(b) It is unnecessary in this case to determine with precision what limits
there may be on a financial or personal interest of one who performs a
prosecutorial function, for here the influence alleged to impose bias is
exceptionally remote. No governmental official stands to profit
economically from vigorous enforcement of child labor provisions; there
is no 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; and ESA's administration of the Act has
minimized any potential for bias. On this record, the possibility 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 is too remote to violate the constraints applicable to the financial or
personal interest of officials charged with prosecutorial or plaintiff-like
functions. Pp. 250-252.
Reversed and remanded.
Kenneth S. Geller, Washington, D. C., for appellants.
Thomas W. Power, Washington, D. C., for appellee.
Mr. Justice MARSHALL delivered the opinion of the Court.

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.

2

* 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.

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,1 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.

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
"[r]espondent'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.

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.

6

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, 47 S.Ct. 437, 71 L.Ed. 749 (1927), and Ward v. Village of
Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (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.

We noted probable jurisdiction, 444 U.S. 949, 100 S.Ct. 419, 62 L.Ed.2d 318
(1979), and now reverse.

II
A.
8

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,
98 S.Ct. 1042, 1043, 1050-1052, 1053, 1054, 55 L.Ed.2d 252, (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, 96 S.Ct. 893, 907, 47
L.Ed.2d 18 (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, 71 S.Ct. 624, 649, 95 L.Ed. 817 (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.

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, 47 S.Ct., at 444. 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, 93 S.Ct., at 83. We have employed the same
principle in a variety of settings, demonstrating the powerful and independent
constitutional interest in fair adjudicative procedure.2 Indeed, "justice must
satisfy the appearance of justice," Offutt v. United States, 348 U.S. 11, 14, 75
S.Ct. 11, 13, 99 L.Ed. 11 (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, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955). See
also Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974).
10

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.

11

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 "protect[ing] 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).

12

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), U.S.Code Cong. &
Admin.News, 1974, p. 2811, 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 C.F.R. 580.32(a) (1979). He is
directed to consider the same factors considered by the assistant regional
administrator3 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.4

13

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

14

"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."5

15

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.6 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.7 The challenged provisions have not, therefore, resulted in any
increase in the funds available to the ESA over the amount appropriated by
Congress.
16

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;8 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.

17

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.

18

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 penaltyas he has a statutory right
to dohe is entitled to a de novo hearing before an administrative law judge.9
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.10
19

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, 93 S.Ct. 1146, 35 L.Ed.2d 793
(1973), and similar considerations have been found applicable to administrative
prosecutors as well, see Moog Industries, Inc. v. FTC, 355 U.S. 411, 414, 78
S.Ct. 377, 380, 2 L.Ed.2d 370 (1958); Vaca v. Sipes, 386 U.S. 171, 182, 87
S.Ct. 903, 912, 17 L.Ed.2d 842, (1967). Prosecutors need not be entirely
"neutral and detached," cf. Ward v. Village of Monroeville, 409 U.S., at 62, 93
S.Ct., at 84. 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 nonjudicial officers was
explicitly made in Tumey, 273 U.S., at 535, 47 S.Ct., at 445, 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, 96 S.Ct.
2308, 2315, 49 L.Ed.2d 1 (1976)

20

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, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (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, 95 S.Ct. 1851, 1858, n. 7, 1858-1861, 44 L.Ed.2d 377
(1975); Rochester Telephone Corp. v. United States, 307 U.S. 125, 59 S.Ct.
754, 83 L.Ed. 1147 (1939).11 Moreover, the decision to enforceor not to

enforcemay 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, 98 S.Ct. 663, 669, 54 L.Ed.2d 604 (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.
B
21

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,12
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, 93 S.Ct. 1689, 1698, 36 L.Ed.2d 488 (1973); and Connally
v. Georgia, 429 U.S. 245, 250, 97 S.Ct. 546, 548, 50 L.Ed.2d 444 (1977) (per
curiam ), are entirely absent here.

22

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 that 1% of the budget of the ESA.13 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, 48 S.Ct. 439, 72 L.Ed.
784 (1928).

23

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 unjustifiable 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.
24

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. 14 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. "[U]nder a
realistic appraisal of psychological tendencies and human weakness," Withrow
v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 1464, 43 L.Ed.2d 712 (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.

25

The judgment of the District Court is reversed, and the case is remanded to that
court for further proceedings consistent with this opinion.

26

It is so ordered.

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).

For example, we have invalidated a system in which justices of the peace were
paid for issuance but not for nonissuance of search warrants, Connally v.
Georgia, 429 U.S. 245, 97 S.Ct. 546, 50 L.Ed.2d 444 (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, 94 S.Ct. 2697, 41
L.Ed.2d 897 (1974); Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27
L.Ed.2d 523 (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, 93 S.Ct. 1689, 1697-1698, 36 L.Ed.2d 488 (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, 92 S.Ct. 2593, 2602-2603, 33 L.Ed.2d 484 (1972).

See n. 1, supra.

See n. 9 infra, and accompanying text.

The section was originally designed "[t]o 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).

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.

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.

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.

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, 93 S.Ct. 80, 34 L.Ed.2d 267, (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 6162, 93 S.Ct., at 84. Ward does not aid appellee in this case, however, for the
administrative law judge presides over the initial adjudication.

10

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.

11

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).

12

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.

13

Even if ESA received a considerable amount in civil penalties in a particular

year, of course, it is possible that Congress would decide to appropriate a
corresponding lower amount from the treasury.

14

We need not, of course, say whether the alleged biasing influence is to remote
to raise constitutional objections even under the standards of Ward and Tumey.