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MSHA and OSHA have the power to issue citations against companies for violations of workplace safety and health regulations. They also have the power to bring legal actions against companies for hundreds of thousands and sometimes millions of dollars. It is not surprising then that companies would want to bring to bear all their legal rights to challenge those actions.

Seventh Amendment jury trials The Seventh Amendment of the United States Constitution 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 Supreme Court of the United States has ruled that the Seventh Amendment requires a jury trial in cases that are analogous to suits at common law including causes of action created by Congress. A jury is not required in actions in equity such as suits for injunctions. Neither is a jury trial required for administrative proceedings such as MSHA and OSHA civil penalty cases.

In order for the Seventh Amendment jury right to apply, the claim must, first of all, be one that is brought in a lawsuit filed in court - specifically a trial court (not an appellate court). With respect to MSHA and OSHA, Congress has created specialized independent commissions (rather than courts) to decide the validity of government claims and set penalties.

These are the Federal Mine Safety and Health Review Commission and the Occupational Safety and Health Review Commission. Thus, it is with these administrative Commissions that the Solicitor of the Labor Department files claims for penalties.

Non-jury administrative cases In contested administrative cases, a trial must be held. Trials are conducted by administrative law judges assigned by the commissions. If any party disagrees with a judge's decision, review of the decision may be sought from the commissioners. There are five commissioners for MSHA cases and three commissioners for OSHA cases. All commissioners are appointed by the president for six-year terms. In every case, there must be a quorum of commissioners present.

If the commissioners refuse to review a case or produce a decision with which a party disagrees, the disappointed litigant may seek review in a United States Court of Appeals and ultimately in the Supreme Court. Review of the Judge's findings of fact is based on a "substantial evidence" standard, meaning that the commission and court will not second guess an administrative law judge if there is substantial evidence to support the findings made by the judge.

Review of the judge's conclusions of law is de novo, in other words, the commission or the court will use its own judgment in determining what the law is. In this connection, the judge's findings of fact and conclusions of law must be fully articulated in writing so that they can be evaluated by all concerned. (This is a legal safeguard that does not exist in jury trials.)

As noted, MSHA and OSHA cases are administrative in nature. With the complexities of modern society, Congress has seen fit to remove the burdens of many specialized cases from the trial courts in favor of having them considered by administrative agencies or commissions. A whole body of law has developed called "administrative law" concerning, among other things, these types of cases. Indeed, Congress has created an Administrative Procedures Act, which provides a set of standard rules for administrative cases.

Why no jury? What about the Seventh Amendment? How can Congress do away with jury trials for civil penalty cases? Are they not analogous to claims for fines or money damages at common law? Well, they are not the same as fines, because fines are criminal penalties and Congress has specifically designated civil penalties as "civil."

This means that they do not carry the stigma of a criminal conviction (Article III of the U.S. Constitution and the Sixth Amendment provide a right to a jury trial in criminal cases). Civil penalties are analogous to common law actions only if Congress requires them to be brought in court. Even then, the jury may only decide liability issues. The judge decides the penalty if Congress assigns this duty to the judge. This was the holding of the U.S. Supreme Court in Tull v. U.S. (1987).

Law versus equity Tull is an interesting case. That case had to do with federal government claims against a defendant for violations of the Clean Water Act. The Clean Water Act authorized injunctions against violators and civil penalties of $10,000 per day. The federal government brought suit in Federal District Court for an injunction to stop Tull from polluting protected wetlands. An injunction action is a claim in equity for which there is no right to a jury.

The government also sought daily civil penalties totaling more than $22 million. The federal district court judge refused the defendant Tull's demand for a jury trial. The Court of Appeals affirmed, but the Supreme Court reversed and sent the case back for a jury trial on the merits of the civil penalty claim.

The reason that the Supreme Court ordered a jury trial on the merits is because the claim for civil penalties brought in court was considered to be analogous to cases at common law. The Supreme Court further held that the Seventh Amendment does not guarantee a jury trial as to the amount of civil penalties, noting that Congress had given this power to the trial judge. The Supreme Court said that Congress has the unquestioned right to fix civil penalties and may delegate that right to trial judges.

Administrative cases distinguished In a footnote in the Tull decision, the Supreme Court expressly pointed out that jury trials are not compatible with proceedings outside of traditional courts of law. The court specifically referred to a prior decision of the court in Atlas Roofing Co. v. Occupational Safety and Health Review Commission, (1977).

There the Supreme Court made it absolutely clear that there are no jury trials in OSHA civil penalty administrative proceedings. The same is true with MSHA. That, then, is the reason why jury trials are not available in MSHA and OSHA civil penalty cases.