Yeatman and Gallagher - Working Paper - Money Sanctions in Agency Adjudication - v1

This article evaluates the history of sanctions in adjudicative enforcement proceedings conducted by federal regulatory agencies, subject to deferential judicial review. Today, the leading remedies for administrative enforcement actions are two types of pocketbook punishments—either civil money penalties or relief borrowed from the law of restitution. In 2022, the surveyed agencies sought such exactions in 69% of enforcement actions, accounting for $10,463,288,580 in punitive exactions across 1,332 administrative proceedings. Despite their contemporary salience, these sanctions are relatively new in administrative law. Congress did not authorize the first such penalty until 1970 and, since then, has enacted at least 188 authorizations for agencies to seek civil money penalties through adjudication, and another seven express provisions for disgorgement or restitution. Through legislative amendments, Congress further increased these penalties, or expanded their scope, another 72 times. After reviewing the nonmonetary sanctions that agencies used for enforcement before 1970, this article employs two original datasets involving 19 federal agencies to describe and assess the rise of money sanctions in administrative adjudications over the past half-century.