U.S. Supreme Court
448 U.S. 242
UNITED STATES v. WARD, DBA L. O. WARD OIL & GAS OPERATIONS.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT.
Argued February 26, 1980.
Decided June 27, 1980.
Section 311 (b) (3) of the Federal Water Pollution Control Act
prohibits the discharge of oil into navigable waters. Section 311 (b) (5) requires any person in charge of an onshore facility
to report any such discharge to the appropriate Government agency, and a failure to report subjects the person to a fine or
imprisonment. Section 311 (b) (5) also provides for a form of "use immunity," by specifying that notification of the discharge
or information obtained by the exploitation of such notification is not to be used against the reporting person in any criminal
case, except for prosecution for perjury or for giving a false statement. Section 311 (b) (6) provides for the imposition
of a "civil penalty" against any owner or operator of an onshore facility from which oil was discharged in violation of the
Act. When oil escaped from a drilling facility leased by respondent [Definition: The respondent is the party against whom
a petition is filed, especially one on appeal. The respondent can be either the plaintiff or the defendant from the court
below, as either party can appeal the decision thereby making themselves the petitioner and their adversary the respondent.
Formerly, in the equity courts of common law, the defendant was always called the respondent] and spilled into a tributary
of the Arkansas River system, respondent notified the Environmental Protection Agency of the discharge, and this was reported
to the Coast Guard, who assessed a $500 penalty against respondent under 311 (b) (6). After his administrative appeal was
denied, respondent filed suit in Federal District Court, seeking injunctive relief against enforcement of 311 (b) (5) and
(6) and collection of the penalty. The Government filed a separate suit to collect the penalty, and the suits were consolidated
for trial. Prior to trial, the District Court rejected respondent's contention that the reporting requirements of 311 (b)
(5), as used to support a civil penalty under 311 (b) (6), violated his right against compulsory self-incrimination, and ultimately
the jury found that respondent's facility did, in fact, spill oil into the creek in question. The Court of Appeals reversed,
holding that 311 (b) (6) was sufficiently punitive to intrude upon the Fifth Amendment's protections against compulsory self-incrimination.
1. The penalty
imposed by 311 (b) (6) is civil and hence does not trigger the protections afforded by the Constitution to a criminal defendant.
(a) It is clear that
Congress intended in 311 (b) (6) to impose a civil penalty upon persons in respondent's position, and to allow imposition
[448 U.S. 242, 243] of the penalty without regard to the procedural
protections and restrictions available in criminal prosecutions. This intent is indicated by the fact that the authorized
sanction is labeled a "civil penalty," and by the juxtaposition of such label with the criminal penalties set forth in 311
(b) (5). P. 249.
(b) The fact that 13
of the Rivers and Harbors Appropriation Act of 1899 makes criminal the conduct penalized in this case does not render the
penalty under 311 (b) (6) criminal in nature. The placement of criminal penalties in one statute and of civil penalties in
another statute enacted 70 years later tends to dilute the force of the factor - the behavior to which the penalty applies
is already a crime - considered, inter alia, in Kennedy v. Mendoza-Martinez, 372 U.S. 144 , as indicating that a penalty is criminal in nature. Neither that factor nor any
of the other factors set forth in Mendoza-Martinez are sufficient to render unconstitutional the congressional classification
of the penalty established in 311 (b) (6). Pp. 249-251.
2. The proceeding in
which the penalty was imposed was not "quasi-criminal" so as to implicate the Fifth Amendment's protection against self-incrimination.
Boyd v. United States, 116 U.S. 616 , distinguished. In light of overwhelming evidence that Congress intended to create
a penalty civil in all respects and weak evidence of any countervailing punitive purpose or effect, it would be anomalous
to hold that 311 (b) (6) created a criminal penalty for the purposes of the Self-Incrimination Clause but a civil penalty
for all other purposes. Pp. 251-254.
598 F.2d 1187, reversed.
REHNQUIST, J., delivered the opinion of the Court, in which BURGER,
C. J., and BRENNAN, STEWART, WHITE, and POWELL, JJ., joined. BLACKMUN, J., filed an opinion concurring in the judgment, in
which MARSHALL, J., joined, post, p. 255. STEVENS, J., filed a dissenting opinion, post, p. 257.
Edwin S. Kneedler argued the cause for the United States. With
him on the briefs were Solicitor General McCree, Assistant Attorney General Moorman, Jacques B. Gelin, and Michael A. McCord.
Stephen Jones argued the cause for respondent. With him on the brief
was David C. Butler. *
[ Footnote *
] James G. Watt filed a brief for the Mountain States
Legal Foundation et al. as amici curiae urging affirmance. [448 U.S. 242, 244]
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
The United States seeks review of a decision of the United States Court
of Appeals for the Tenth Circuit that a proceeding for the assessment of a "civil penalty" under 311 (b) (6) of the Federal
Water Pollution Control Act (FWPCA) is a "criminal case" within the meaning of the Fifth Amendment's guarantee against compulsory
self-incrimination. We granted certiorari, 444 U.S. 939 , and now reverse.
At the time this case arose, 1 311 (b) (3) of the FWPCA prohibited the discharge
into navigable waters or onto adjoining shorelines of oil or hazardous substances in quantities determined by the President
to be "harmful." 2 Section 311 (b) (5) of the Act imposed a duty upon
"any person in charge of a vessel or of an onshore facility or an offshore facility" to report any discharge of oil or a hazardous
substance into navigable waters to the "appropriate agency" of the United States Government. Should that person fail to supply
such notification, he or she was liable to a fine of not more than $10,000 or imprisonment of not more than one year. Section
311 (b) (5) also provided for a form of "use immunity," specifying that "[n]otification received pursuant to this paragraph
or information obtained by the exploitation of such notification shall not be used against any such person in any criminal
case, except a prosecution for perjury or for giving a false statement." 33 U.S.C. 1321 (b) (5). 3 [448 U.S. 242, 245]
Section 311 (b) (6) provided for the
imposition of a "civil penalty" against "[a]ny owner or operator of any vessel, onshore facility, or offshore facility from
which oil or a hazardous substance is discharged in violation" of the Act. In 1975, that subsection called for a penalty of
up to $5,000 for each violation of the Act. 4 In
assessing penalties, the Secretary of the appropriate agency was to take into account "the appropriateness of such penalty
to the size of the business or of the owner or operator charged, the effect on the owner or operator's ability to continue
in business, and the gravity of the violation. . . ." 33 U.S.C. 1321 (b) (6). 5
U.S. 242, 246]
to 311 (k) of the Act, funds collected from the assessment of penalties under 311 (b) (6) were to be paid into a "revolving
fund" together with "other funds received . . . under this section" and any money appropriated to the revolving fund by Congress.
See 33 U.S.C. 1321 (k). Money contained in this fund was to be used to finance the removal, containment, or dispersal of oil
and hazardous substances discharged into navigable waters and to defray the costs of administering the Act. 33 U.S.C. 1321
(l). Another section of the Act allowed the United States Government to collect the costs of removal, containment, or dispersal
of a discharge from the person or corporation responsible for that discharge in cases where that person or corporation had
been identified. 33 U.S.C. 1321 (f).
about March 23, 1975, oil escaped from an oil retention pit at a drilling facility located near Enid, Okla., and eventually
found its way into Boggie Creek, a tributary of the Arkansas River system. 6 At the time of the discharge, the premises were being leased by respondent L. O. Ward,
who was doing business as L. O. Ward Oil & Gas Operations. On April 2, 1975, respondent Ward notified the regional office
of the Environmental Protection Agency (EPA) that a discharge of oil had taken place. Ward later submitted a more complete
written report of the discharge, which was in turn forwarded to the Coast Guard, the agency responsible for assessing civil
penalties under 311 (b) (6).
notice and opportunity for hearing, the Coast Guard assessed a civil penalty against respondent in the amount [448 U.S. 242, 247] of $500. Respondent filed an administrative appeal from this ruling, contending, inter
alia, that the reporting requirements of 311 (b) (5) of the Act violated his privilege against compulsory self-incrimination.
The administrative appeal was denied.
April 13, 1976, Ward filed suit in the United States District Court for the Western District of Oklahoma, seeking to enjoin
the Secretary of Transportation, the Commandant of the Coast Guard, and the Administrator of EPA from enforcing 311 (b) (5)
and (6) and from collecting the penalty of $500. On June 4, 1976, the United States filed a separate suit in the same court
to collect the unpaid penalty. The District Court eventually ordered the two suits consolidated for trial.
to trial, the District Court rejected Ward's contention that the reporting requirements of 311 (b) (5), as used to support
a civil penalty under 311 (b) (6), violated his right against compulsory self-incrimination. The case was tried to a jury,
which found that Ward's facility did, in fact, spill oil into Boggie Creek. The District Court, however, reduced Ward's penalty
to $250 because of the amount of oil that had spilled and because of its belief that Ward had been diligent in his attempts
to clean up the discharge after it had been discovered.
States Court of Appeals for the Tenth Circuit reversed. Ward v. Coleman, 598 F.2d 1187 (1979). Although admitting that Congress
had labeled the penalty provided for in 311 (b) (6) as civil and that the use of funds collected under that section to finance
the administration of the Act indicated a "remedial" purpose for the provision, the Court of Appeals tested the statutory
scheme against the standards set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168 -169 (1963),
7 and held that 311 (b) (6) was sufficiently [448 U.S. 242, 248] punitive to intrude upon the Fifth Amendment's
protections against compulsory self-incrimination. It therefore reversed and remanded for further proceedings in the collection
The distinction between a civil penalty and a criminal penalty is of
some constitutional import. The Self-Incrimination Clause of the Fifth Amendment, for example, is expressly limited to "any
criminal case." Similarly, the protections provided by the Sixth Amendment are available only in "criminal prosecutions."
Other constitutional protections, while not explicitly limited to one context or the other, have been so limited by decision
of this Court. See, e. g., Helvering v. Mitchell, 303 U.S. 391, 399 (1938) (Double Jeopardy Clause protects only against two criminal punishments);
United States v. Regan, 232 U.S. 37, 47 -48 (1914) (proof beyond a reasonable doubt required only in criminal cases).
This Court has often stated that the question whether a particular statutorily
defined penalty is civil or criminal is a matter of statutory construction. See, e. g., One Lot Emerald Cut Stones v. United
States, 409 U.S. 232, 237 (1972); Helvering v. Mitchell, supra, at 399. Our inquiry in this regard
has traditionally proceeded on two levels. First, we have set out to determine whether Congress, in establishing the penalizing
mechanism, indicated either expressly or impliedly a preference for one label or the other. See One Lot Emerald Cut Stones
v. United States, supra, at 236-237. Second, where Congress has indicated an intention to establish a civil penalty, we have
inquired further whether the statutory [448 U.S. 242, 249] scheme was so
punitive either in purpose or effect as to negate that intention. See Flemming v. Nestor, 363 U.S. 603, 617 -621 (1960). In regard to this latter inquiry, we have noted that "only
the clearest proof could suffice to establish the unconstitutionality of a statute on such a ground." Id., at 617. See also
One Lot Emerald Cut Stones v. United States, supra, at 237; Rex Trailer Co. v. United States, 350 U.S. 148, 154 (1956).
As for our first inquiry in the present case, we believe it quite clear that Congress intended to impose
a civil penalty upon persons in Ward's position. Initially, and importantly, Congress labeled the sanction authorized in 311
(b) (6) a "civil penalty," a label that takes on added significance given its juxtaposition with the criminal penalties set
forth in the immediately preceding subparagraph, 311 (b) (5). Thus, we have no doubt that Congress intended to allow imposition
of penalties under 311 (b) (6) without regard to the procedural protections and restrictions available in criminal prosecutions.
We turn then to consider whether Congress, despite its manifest intention
to establish a civil, remedial mechanism, nevertheless provided for sanctions so punitive as to "transfor[m] what was clearly
intended as a civil remedy into a criminal penalty." Rex Trailer Co. v. United States, supra, at 154. In making this determination,
both the District Court and the Court of Appeals found it useful to refer to the seven considerations listed in Kennedy v.
Mendoza-Martinez, supra, at 168-169. This list of considerations, while certainly neither exhaustive nor dispositive, has
proved helpful in our own consideration of similar questions, see, e. g., Bell v. Wolfish, 441 U.S. 520, 537 -538 (1979), and provides some guidance in the present case.
Without setting forth here our assessment of each of the seven Mendoza-Martinez
factors, we think only one, the fifth, aids respondent. That is a consideration of whether "the [448 U.S. 242, 250] behavior to which
[the penalty] applies is already a crime." 372 U.S., at 168 -169. In this regard, respondent contends that 13 of the Rivers and Harbors Appropriation Act of 1899,
33 U.S.C. 407, makes criminal the precise conduct penalized in the present case. Moreover, respondent points out that at least
one federal court has held that 13 of the Rivers and Harbors Appropriation Act defines a "strict liability crime," for which
the Government need prove no scienter. See United States v. White Fuel Corp., 498 F.2d 619 (CA1 1974). According to respondent,
this confirms the lower court's conclusion that this fifth factor "falls clearly in favor of a finding that [ 311 (b) (6)]
is criminal in nature." 598 F.2d, at 1193.
While we agree that this consideration seems to point toward a finding
that 311 (b) (6) is criminal in nature, that indication is not as strong as it seems at first blush. We have noted on a number
of occasions that "Congress may impose both a criminal and a civil sanction in respect to the same act or omission." Helvering
v. Mitchell, supra, at 399; One Lot Emerald Cut Stones v. United States, supra, at 235. Moreover, in Helvering, where we held
a 50% penalty for tax fraud to be civil, we found it quite significant that "the Revenue Act of 1928 contains two separate
and distinct provisions imposing sanctions," and that "these appear in different parts of the statute. . . ." 303 U.S., at 404 . See also One Lot Emerald Cut Stones v. United States, supra, at 236-237. To the extent that we found
significant the separation of civil and criminal penalties within the same statute, we believe that the placement of criminal
penalties in one statute and the placement of civil penalties in another statute enacted 70 years later tends to dilute the
force of the fifth Mendoza-Martinez criterion in this case.
In sum, we believe that the factors set forth in Mendoza-Martinez, while
neither exhaustive nor conclusive on the issue, are in no way sufficient to render unconstitutional the congressional [448 U.S. 242, 251] classification
of the penalty established in 311 (b) (6) as civil. Nor are we persuaded by any of respondent's other arguments that he has
offered the "clearest proof" that the penalty here in question is punitive in either purpose or effect.
Our conclusion that 311 (b) (6) does not trigger all the protections
afforded by the Constitution to a criminal defendant does not completely dispose of this case. Respondent asserts that, even
if the penalty imposed upon him was not sufficiently criminal in nature to trigger other guarantees, it was "quasi-criminal,"
and therefore sufficient to implicate the Fifth Amendment's protection against compulsory self-incrimination. He relies primarily
in this regard upon Boyd v. United States, 116 U.S. 616 (1886), and later cases quoting its language.
In Boyd, appellants had been indicted under 12 of an "Act to amend the
customs revenue laws and to repeal moieties," for fraudulently attempting to deprive the United States of lawful customs duties
payable on certain imported merchandise. According to the statute in question, a person found in violation of its provisions
was to be "fined in any sum not exceeding $5,000 nor less than $50, or be imprisoned for any time not exceeding two years,
or both; and, in addition to such fine, such merchandise shall be forfeited." 116 U.S., at 617 . Despite the pending indictment, appellants filed a claim for the goods held by the United States.
In response, the prosecutor obtained an order of the District Court requiring appellants to produce the invoice covering the
goods at issue. Appellants objected that such an order violated the Fourth and Fifth Amendments by subjecting them to an unreasonable
search and seizure and by requiring them to act as witnesses against themselves.
This Court found the Fifth Amendment applicable, even though the action
in question was one contesting the forfeiture [448 U.S. 242, 252] of certain goods.
According to the Court: "We are . . . clearly of opinion that proceedings instituted for the purpose of declaring the forfeiture
of a man's property by reason of offences committed by him, though they may be civil in form, are in their nature criminal."
Id., at 633-634. While at this point in its opinion, the Court seemed to limit its holding to proceedings involving the forfeiture
of property, shortly after the quoted passage it broadened its reasoning in a manner that might seem to apply to the present
case: "As, therefore, suits for penalties and forfeitures incurred by the commission of offences against the law, are of this
quasi-criminal nature, we think that they are within the reason of criminal proceedings for all the purposes of the Fourth
Amendment of the Constitution, and of that portion of the Fifth Amendment which declares that no person shall be compelled
in any criminal case to be a witness against himself. . . ." Id., at 634 (emphasis added).
Seven years later, this Court relied primarily upon Boyd in holding that
a proceeding resulting in a "forfeit and penalty" of $1,000 for violation of an Act prohibiting the employment of aliens was
sufficiently criminal to trigger the protections of the Self-Incrimination Clause of the Fifth Amendment. Lees v. United States,
150 U.S. 476 (1893). More recently, in One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693 (1965), and United States v. United States Coin & Currency, 401 U.S. 715 (1971), this Court applied Boyd to proceedings involving the forfeiture
of property for alleged criminal activity. Plymouth Sedan dealt with the applicability of the so-called exclusionary rule
to a proceeding brought by the State of Pennsylvania to secure the forfeiture of a car allegedly involved in the illegal transportation
of liquor. Coin & Currency involved the applicability of the Fifth Amendment privilege against compulsory self-incrimination
in a proceeding brought by the United States to secure forfeiture [448 U.S. 242, 253] of $8,674 found
in the possession of a gambler at the time of his arrest.
Read broadly, Boyd might control the present case. This Court has declined,
however, to give full scope to the reasoning and dicta in Boyd, noting on at least one occasion that "[s]everal of Boyd's
express or implicit declarations have not stood the test of time." Fisher v. United States, 425 U.S. 391, 407 (1976). In United States v. Regan, 232 U.S. 37 (1914), for example, we declined to apply Boyd's classification of penalties
and forfeitures as criminal in a case where a defendant assessed with a $1,000 penalty for violation of the Alien Immigration
Act claimed that he was entitled to have the Government prove its case beyond a reasonable doubt. Boyd and Lees, according
to Regan, were limited in scope to the Fifth Amendment's guarantee against compulsory self-incrimination, which "is of broader
scope than are the guarantees in Art. III and the Sixth Amendment governing trials and criminal prosecutions." 232 U.S., at 50 . See also Helvering v. Mitchell, 303 U.S., at 400 , n. 3. Similarly, in Hepner v. United States, 213 U.S. 103 (1909), this Court upheld the entry of a directed verdict against the appellant under a statute similar
to that examined in Lees. According to Hepner, "the Lees and Boyd cases do not modify or disturb but recognize the general
rule that penalties may be recovered by civil actions, although such actions may be so far criminal in their nature that the
defendant cannot be compelled to testify against himself in such actions in respect to any matters involving, or that may
involve, his being guilty of a criminal offense." Id., at 112.
The question before us, then, is whether the penalty imposed in this
case, although clearly not "criminal" enough to trigger the protections of the Sixth Amendment, the Double Jeopardy Clause
of the Fifth Amendment, or the other procedural guarantees normally associated with criminal prosecutions, is nevertheless
"so far criminal in [its] nature" [448 U.S. 242, 254] as to trigger
the Self-Incrimination Clause of the Fifth Amendment. Initially, we note that the penalty and proceeding considered in Boyd
were quite different from those considered in this case. Boyd dealt with forfeiture of property, a penalty that had absolutely
no correlation to any damages sustained by society or to the cost of enforcing the law. See also Lees v. United States, supra
(fixed monetary penalty); One 1958 Plymouth Sedan v. Pennsylvania, supra (forfeiture); United States v. United States Coin
& Currency, supra (forfeiture). Here the penalty is much more analogous to traditional civil damages. Moreover, the statute
under scrutiny in Boyd listed forfeiture along with fine and imprisonment as one possible punishment for customs fraud, a
fact of some significance to the Boyd Court. See 116 U.S., at 634 . Here, as previously stated, the civil remedy and the criminal remedy are contained in separate statutes
enacted 70 years apart. The proceedings in Boyd also posed a danger that the appellants would prejudice themselves in respect
to later criminal proceedings. See Hepner v. United States, supra, at 112. Here, respondent is protected by 311 (b) (5), which
expressly provides that "[n]otification received pursuant to this paragraph or information obtained by the exploitation of
such notification shall not be used against any such person in any criminal case, except [for] prosecution for perjury or
for giving a false statement." 33 U.S.C. 1321 (b) (5).
More importantly, however, we believe that in the light of what we have
found to be overwhelming evidence that Congress intended to create a penalty civil in all respects and quite weak evidence
of any countervailing punitive purpose or effect it would be quite anomalous to hold that 311 (b) (6) created a criminal penalty
for the purposes of the Self-Incrimination Clause but a civil penalty for all other purposes. We do not read Boyd as requiring
a contrary conclusion. [448 U.S. 242, 255]
We conclude that the penalty imposed by Congress was civil, and that the proceeding in which it was
imposed was not "quasi-criminal" as that term is used in Boyd v. United States, supra. The judgment of the Court of Appeals
[ Footnote 1 ] Section 311 was amended by the Clean Water Act of 1977, Pub.
L. 95-217, 91 Stat. 1566, and the Federal Water Pollution Control Act Amendments of 1978, Pub. L. 95-576, 92 Stat. 2468. Except
as noted, those amendments have no bearing on the present case. See nn. 2 and 4, infra.
[ Footnote 2 ] Section 311 (b) (3) was amended by the Federal Water Pollution
Control Act Amendments of 1978, Pub. L. 95-576, 92 Stat. 2468, to prohibit the discharge of oil and hazardous substances "in
such quantities as may be harmful" (emphasis added), as determined by the President.
[ Footnote 3 ] At the time in question, 311 (b) (5) read in full: "Any person in charge
of a vessel or of an onshore facility or an offshore [448 U.S. 242, 245] facility
shall, as soon as he has knowledge of any discharge of oil or a hazardous substance from such vessel or facility in violation
of paragraph (3) of this subsection, immediately notify the appropriate agency of the United States Government of such discharge.
Any such person who fails to notify immediately such agency of such discharge shall, upon conviction, be fined not more than
$10,000, or imprisoned for not more than one year, or both. Notification received pursuant to this paragraph or information
obtained by the exploitation of such notification shall not be used against any such person in any criminal case, except a
prosecution for perjury or for giving a false statement."
[ Footnote 4 ] Section 311 (b) (6) was amended by the Federal Water Pollution Control Act Amendments
of 1978, Pub. L. 95-576, 92 Stat. 2468, to authorize civil penalties of up to $50,000 per offense, or up to $250,000 per offense
in cases where the discharge was the result of willful negligence or misconduct.
[ Footnote 5 ] At the time of the discharge in this case, 311 (b) (6), as set forth in 33 U.S.C. 1321 (b) (6), read:
"Any owner or operator of any vessel, onshore facility, or offshore facility from which oil or a hazardous substance is discharged
in violation of paragraph (3) of this subsection shall be assessed a civil penalty by the Secretary of the department in which
the Coast Guard is operating of not more than $5,000 for each offense. No penalty shall be assessed unless the owner or operator
charged shall have been given notice and opportunity for a hearing on such charge. Each violation is a separate offense. Any
such civil penalty may be compromised by such Secretary. In determining the amount of the penalty, or the amount agreed upon
in compromise, the appropriateness of such penalty to the size of the business of the owner or operator charged, the effect
on the owner or operator's ability to continue in business, and the gravity of the violation, shall be considered [448 U.S. 242, 246] by such Secretary. The Secretary
of the Treasury shall withhold at the request of such Secretary the clearance required by section 91 of Title 46 of any vessel
the owner or operator of which is subject to the foregoing penalty. Clearance may be granted in such cases upon the filing
of a bond or other surety satisfactory to such Secretary."
[ Footnote 6 ]
All parties concede that Boggie Creek is a "navigable water" within the meaning of 33 U.S.C. 1362 (7).
[ Footnote 7 ]
The standards set forth were "[w]hether the sanction involves an affirmative disability or restraint, whether it has historically
been regarded as a punishment, whether it comes into play only on a finding of scienter, [448 U.S. 242, 248] whether its operation will promote the traditional aims of punishment - retribution and deterrence, whether the behavior
to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable
for it, and whether it appears excessive in relation to the alternative purpose assigned. . . ." 372 U.S., at 168 -169 (footnotes omitted).
MR. JUSTICE BLACKMUN, with whom MR. JUSTICE MARSHALL joins, concurring
in the judgment.
I agree with the Court that a proceeding for assessment of a monetary
penalty under 311 (b) (6) of the Federal Water Pollution Control Act, 33 U.S.C. 1321 (b) (6), is not a "criminal case" within
the meaning of the Fifth Amendment. I reach this conclusion, however, for a number of reasons in addition to those discussed
in the Court's opinion.
The Court of Appeals engaged in a careful analysis of the standards set
forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168 -169 (1963), for distinguishing civil from criminal proceedings. These standards are cataloged
in a footnote of the Court's opinion. Ante, at 247-248, n. 7. The Court of Appeals concluded that some of the seven stated
factors offered little guidance in this case, while others supported a "criminal" designation. In particular, it found that
scienter played a part in determining the amount of penalty assessments; that the penalties promote traditional retributive
aims of punishment; that behavior giving rise to the assessment is subject to criminal punishment under 13 of the Rivers and
Harbors Appropriation Act of 1899, 33 U.S.C. 407; and that the criteria employed by the Coast Guard to set the amount of assessments
permit penalties that may be excessive in relation to alternative remedial or nonpunitive purposes. Ward v. Coleman, 598 F.2d
1187, 1192-1194 (CA10 1979). The Court is content to discuss only one of [448 U.S. 242, 256] these findings. See
ante, at 249-250. Because of the consideration given the others by the Court of Appeals, I think they deserve brief discussion,
My analysis of these other factors differs from that of the Court of
Appeals in two principal respects. First, I do not agree with that court's apparent conclusion that none of the Mendoza-Martinez
factors strongly supports a "civil" designation for a penalty proceeding under 311 (b) (6). I conclude that imposition of
a monetary penalty under this statute does not result in the imposition of an "affirmative disability or restraint" within
the meaning of Mendoza-Martinez, 372 U.S., at 168 ; that monetary assessments are traditionally a form of civil remedy; and that,
as the Court of Appeals conceded, 598 F.2d., at 1193, 311 (b) (6) serves remedial purposes dissociated from punishment. Although
any one of these considerations by itself might not weigh heavily in favor of a "civil" designation, I think that cumulatively
they point significantly in that direction.
Second, I would assign less weight to the role of scienter, the promotion
of penal objectives, and the potential excessiveness of fines than did the Court of Appeals. Mendoza-Martinez suggested that
a sanction that "comes into play only on a finding of scienter" might be indicative of a criminal proceeding. 372 U.S., at 168 (first emphasis added). Plainly, that is not the case here. Scienter is not mentioned
on the face of the statute, and it is only one of many factors relevant to determination of an assessment under Coast Guard
Commandant Instruction 5922.11B (Oct. 10, 1974). Furthermore, although the fines conceivably could be used to promote primarily
deterrent or retributive ends, the fact that collected assessments are deposited in a revolving fund used to defray the expense
of cleanup operations is a strong indicator of the pervasively civil and compensatory thrust of the statutory scheme. See
311 (k), 33 U.S.C. 1321 (k). Finally, while some of the factors employed by the Coast Guard to set [448 U.S. 242, 257] the amount of assessments
undoubtedly could be used to exact excessive penalties, others are expressly related to the cost of cleanup and other remedial
considerations. In the absence of evidence that excessive penalties actually have been assessed, I would be inclined to regard
their likelihood as remote.
For these reasons, I agree with the Court that only the fifth Mendoza-Martinez
factor, "whether the behavior to which [the sanction] applies is already a crime," 372 U.S., at 168 , supports the respondent. Since I feel that this factor alone does not mandate
characterization of the proceeding as "criminal" for purposes of the Fifth Amendment, particularly when other factors weigh
in the opposite direction, I concur in the judgment.
MR. JUSTICE STEVENS, dissenting.
There are a host of situations in which the Government requires
the citizen to provide it with information that may later be useful in proving that the citizen has some liability to the
Government. In determining whether the combination of compulsion and liability is consistent with the Fifth Amendment, I would
look to two factors: first, whether the liability actually imposed on the citizen is properly characterized as "criminal"
and second, if so, whether the compulsion of information was designed to assist the Government in imposing such a penalty
rather than furthering some other valid regulatory purpose.
Although this case is admittedly a close one, I am persuaded that the
monetary penalty imposed on respondent pursuant to 311 (b) (6) of the Federal Water Pollution Control Act, 33 U.S.C. 1321
(b) (6), was a "criminal" sanction for purposes of the Fifth Amendment protection against compelled self-incrimination. As
the Court of Appeals pointed out, penalties under 311 (b) (6) are not calculated to reimburse the Government for the cost
of cleaning up an [448 U.S. 242, 258] oil spill. 1 Rather, this part of the statute is clearly aimed at exacting retribution for causing
are based on such factors as the gravity of the violation, the degree of culpability and the prior record of the party. The
fact that a party acted in good faith, could not have avoided the discharge and, once it occurred, undertook clean-up measures
immediately is to be given no consideration in relation to the `imposition or amount of a civil penalty.'" Ward v. Coleman,
598 F.2d 1187, 1193 (CA10 1979).
I agree with the Court of
Appeals that, under these circumstances, application of the factors set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144 , leads to the conclusion that the penalty is a criminal sanction rather than a
purely regulatory measure.
That is not the end of the inquiry, however. A reporting requirement
is not necessarily invalid simply because it may incriminate a few of the many people to whom it applies. Two examples from
the tax field will illustrate my point. As this Court held in Marchetti v. United States, 390 U.S. 39 , and Grosso v. United States, 390 U.S. 62 , statutes that are plainly designed to obtain information from a limited class of persons
engaged in criminal activity in order to facilitate their prosecution and conviction are invalid under the Fifth Amendment.
On the other hand, when the general income tax laws require a full reporting of each taxpayer's income in order to fulfill
the Government's regulatory objectives, the fact that a particular answer may incriminate a particular taxpayer is not a sufficient
excuse for refusing to [448 U.S. 242, 259] supply the relevant
information required from every taxpayer. See United States v. Oliver, 505 F.2d 301, 307-308 (CA7 1974). 2
Thus, given that the statutory penalty in this case is a criminal sanction,
the issue becomes what the primary purpose of requiring the citizen to report oil spills is. If it is to simplify the assessment
and collection of penalties from those responsible, it should fall within the reasoning of Marchetti and Grosso. On the other
hand, if the requirement is merely to assist the Government in its cleanup responsibilities and [448 U.S. 242, 260] in its efforts to
monitor the conditions of the Nation's waterways, it should be permissible. Although the question is again a close one, the
automatic nature of the statutory penalty, which must be assessed in each and every case, convinces me that the reporting
requirement is a form of compelled self-incrimination. 3 I therefore respectfully dissent.
[ Footnote 1
] An owner or operator is liable for cleanup
costs or, in the event that the discharge is "nonremovable," for liquidated damages under 33 U.S.C. 1321 (b) (2) (B) (i) and
1321 (f). As the Court of Appeals noted, payment of these damages does not relieve the owner or operator of liability for
civil penalties under 311 (b) (6). Ward v. Coleman, 598 F.2d 1187, 1191 (CA10 1978).
[ Footnote 2
] As I suggested in Oliver: "The enactment
of special legislation designed to procure incriminating disclosures from a select group of persons engaged in criminal conduct
was tantamount to an accusation commencing criminal proceedings against them. The statutory demand to register as a gambler
was comparable to the inquisitor's demand that a suspect in custody admit his guilt. The admission, once made, would almost
inevitably become a part of the record of a criminal proceeding against a person who had already been accused when he confessed.
Just as the Miranda decision may be read as having enlarged the adversary proceeding to commence when the accused is first
taken into custody, Marchetti and comparable cases have, for Fifth Amendment purposes, treated special statutes designed to
secure incriminating information from inherently suspect classes of persons as the commencement of criminal proceedings against
those from whom incriminating information is demanded. Under this analysis, we must test the applicability of the Fifth Amendment
to a self-reporting statute at the time that disclosure is compelled. "The statute which defendant Oliver is accused of violating
is applicable to the public at large, and its demands for information are neutral in the sense that they apply evenly to the
few who have illegal earnings and the many who do not. The self-reporting requirements of the Internal Revenue Code are justified
by acceptable reasons of policy, entirely unrelated to any purpose to obtain incriminating evidence against an accused person
or group. Therefore, even though the disclosure of defendant's illegal income was compelled by statute, and even though we
assume that such disclosure might well have been incriminating, the Marchetti holding does not justify the conclusion that
the Fifth Amendment excuses defendant's obligation to report his entire income." (Footnotes omitted.) 505 F.2d, at 307-308.
[ Footnote 3
] As a result, I would hold that the Government
could not use a report filed by an individual owner or operator in assessing a civil penalty under 311 (b) (6). However, I
believe the Government could still use such a report in assessing damages under either 311 (b) (2) (B) (i) or 311 (f), see
n. 1, supra, since penalties assessed under those subsections are regulatory rather than punitive in character. [448 U.S. 242, 261]