Joe and Russell Marino have spent the past five years trapped by the U.S. Department of Labor (DOL). The agency claims they owe hundreds of thousands of dollars in fines and penalties—enough to destroy their family farm—and has tied them up for years in agency proceedings designed to ensure that they lose.
The nightmare began in early 2016, when DOL officials came to the Marinos’ farm in southern New Jersey to deliver a letter demanding more than $550,000 in penalties. The Marinos were in their first year participating in the H-2A visa program, which allows farms to legally employ foreign workers, and the DOL accused the Marinos of a handful of regulatory violations. The bulk of the fine assessment was for a paperwork mistake: When the Marinos filled out the form to participate in the program, they did not correctly describe their employee meal plan.
To be clear, there is nothing illegal about the Marinos’ meal plan. In fact, the Marinos have continued to offer that same plan in subsequent years without the DOL raising any concerns. But the DOL’s objections to how they described the meal plan on their paperwork meant an eye-watering half-million-dollar sanction.
Unable to pay $550,000, the Marinos decided to fight.
They found themselves hauled before a DOL administrative law judge, or “ALJ.” Unlike real federal judges, who are part of an independent third branch of government, ALJs are DOL employees. The ALJ in the Marinos’ case has worked at the DOL practically her entire legal career—first as a prosecutor, later as a judge. It may come as no surprise, then, that she upheld the DOL penalty as “rational” and “reasonable.”
In addition to employing its own judges, the DOL also has its own appellate court. So when the Marinos appealed the ALJ’s decision, their appeal was heard by the Administrative Review Board—a panel of still more DOL employees. And again, the DOL employees upheld the DOL penalty.
Unfortunately, the Marinos’ experience is far from unique. Before the 1970s, federal agencies seeking to impose monetary penalties almost always filed a case in federal court. Today, agencies routinely bring such cases before their own ALJs. It’s easy to see why. One 2015 article about Securities and Exchange Commission ALJs noted that, before its own judges, the agency enjoyed a win rate of 90%.
That’s why IJ is representing the Marinos in a constitutional lawsuit. We’re demanding that they get their day in a real federal court, with a real federal judge and a jury of their peers. Article III of the Constitution vests the federal government’s “judicial power” in a system of independent courts. The Seventh Amendment further guarantees the right to trial by jury. These provisions cannot be squared with a system in which an administrative agency appoints itself prosecutor, judge, and jury.
Success for the Marinos will reverse that trend. And rightly so. If an agency wants to destroy a family business by imposing ruinous fines, then, at the very least, the agency should have to prove its case before an independent judge.
Rob Johnson is an IJ senior attorney.