Rogers v Lodge Motion for Leave to File Brief Amicus Curiae
Public Court Documents
October 1, 1981
39 pages
Cite this item
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Brief Collection, LDF Court Filings. Rogers v Loether Writ of Certiorari, 1972. 1507e42a-c39a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/38092c01-0ce8-41b7-9ce9-98fd371713c1/rogers-v-loether-writ-of-certiorari. Accessed April 22, 2025.
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In the
i>upnw OInurt ai tip Itttteii i>tatpa
O ctober T erm , 1972
No.........................
J u lia R ogers,
Y.
Petitioner,
L eroy L oether and M ariane L oether, his w ife,
and M rs. A n th o n y P erez
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
J ack Greenberg
M ichael D avidson
10 Columbus Circle
New York, N.Y. 10019
P atricia D. M cM ahon
Freedom Through Equality, Inc.
152 West Wisconsin Ave.
Milwaukee, Wisconsin 53203
S eymour P ikofsky
Milwaukee Legal Services
2200 North Third St.
Milwaukee, Wisconsin 53212
Attorneys for Petitioner
Charles L. B lack , J r .
Of Counsel
I N D E X
Citations to Opinions Below ..................... .............. ....... 1
Jurisdiction .............................................................. 2
Question Presented ........................................................... 2
Constitutional and Statutory Provisions Involved ..... 2
Statement of the Case ...................................... 4
Reasons for Granting the Writ ...................................... 8
I. Certiorari Should Be Granted to Determine an
Issue Fundamental to the Successful Adminis
tration of an Important Act of Congress ........... 8
II. The Statute Provides That Issues of Fact in Ac
tions for Injunctive Relief and Damages Be Tried
by Judges Without Juries ................................ 11
III. The Seventh Amendment Does Not Prevent Con
gress from Enforcing the Fair Housing Law in
Federal Courts Without the Intervention of
Juries ......................................................................... 15
a. Actions to Enforce Title VIII Are Not in the
Nature of Suits at Common L a w ...................... 15
b. A Court in a Title VIII Action Acts as a
Court of Equity With Power to Afford Com
plete R elief.... ....................................................... 18
c. There Is No Right to a Jury Trial in Respect
to the Limited Punitive Damages Remedy
Available Under the Statute ............................ 21
PAGE
11
IY. The Decision of the Seventh Circuit Conflicts in
Principle With Decisions in Other Circuits on
the Right to Juries in Related Civil Rights Ac
tions ............................................................................. 24
C onclusion .......................................................... 26
A ppendix—
District Court’s Opinion and Order Denying Demand
for Jury T r ia l......................................................... ....... la
District Court’s Oral Findings of Fact and Conclu
sions of Law .............................................................. ----- 7a
Judgment of District Court.................................... -....... - 12a
Opinion of Court of Appeals .................................-....... 13a
Judgment of Court of Appeals ...................................... 34a
T able of A uthorities
Cases:
Argesinger v. Hamlin, 407 TT.S. 2 5 ................................... 22
Baltimore & C. Line v. Redman, 295 U.S. 654 ............... 15
Beacon Theatres, Inc. v. Westover, 359 IJ.S. 500 ....7,19, 20
Bowe v. Colgate-Palmolive Company, 416 F.2d 711
(7th Cir. 1969) ....................... 25
Brown v. State Realty, 304 F.Supp. 1236 (N.D. Ga.
1969) .............................................. 15
Cathcart v. Robinson, 30 U.S. (5 Pet.) 264 ................... 19
Cauley v. Smith, 347 F.Supp. 114 (E.D. Va. 1972) ....... 10
PAGE
PAGE
Cheatwood v. South Central Bell Telephone and Tele
graph Co., 303 F.Supp. 754 (M.D. Ala, 1969) ........... 12
Civil Bights Cases, 109 U.S. 3 .......................................... 17
Clark v. Wooster, 119 U.S. 322 ........................................ 19
Culpepper v. Reynolds Metals Co., 296 F.Supp. 1232
(N.D. Ga, 1968), rev’d on other grounds, 421 F.2d
888 (5th Cir. 1970) ...................... ........ .......................12,17
Dairy Queen, Inc. v. Wood, 369 U.S. 469 .................7,19, 20
Dred Scott v. Sanford, 60 U.S. (19 How.) 393 ............... 17
Filer & Stowell Co. v. Diamond Iron Works, 270 F.
489 (7th Cir. 1921) .............................. ........................... 22
Harkless v. Sweeny Independent School District, 427
F.2d 319 (5th Cir. 1970), cert, denied, 400 U.S. 991 24
Jesus College v. Bloom, 26 Eng. Rep. 953 (Ch. 1745).... 18
Johnson v. Georgia Highway Express, 417 F.2d 1122
(5th Cir. 1969) ............................................................. 12, 24
Jones v. Mayer, 392 U.S. 409 ........................................15, 20
Kastner v. Brackett, 326 F.Supp. 1151 (D. Nev. 1971) 10
Katchen v. Landy, 382 U.S. 323 ........................ 14,18,19, 20
Kennedy v. Lakso Co., 414 F.2d 1249 (3rd Cir. 1969) 22
King v. Inhabitants of Thames Ditton, 99 Eng. Rep.
891 (1785)......................................................................... 16
Lowry v. Whitaker Cable Corporation, 348 F.Supp,
202 (W.D. Mo. 1972) ..................................................... 12
McFerren v. County Board of Education, 455 F.2d 199
(6th Cir. 1972) ................................................................. 24
Marr v. Rife, Civ. No. 70-218 (S.D. Ohio, Aug. 31,
1972) ................................................................................ 10
IV
Mitchell v. De Mario Jewelry, 361 U.S. 288 ................... 20
Moss v. The Lane Company, No. 72-1628 (4th Cir.,
Jan. 11, 1973) ...................................................... .......... 24
Newman v. Piggie Park Enterprises, Inc., 390 TJ.S. 400
(1968) ............................................................. ................. 21
N.L.R.B. v. Jones &Laughlin Steel Corp., 301 U.S. 1 ....6,16,
17,19
PAGE
Ochoa v. American Oil Co., 338 F.Supp. 914 (S.D.Tex.
1972) ................................................................................. 24
Railway Mail Ass’n v. Corsi, 326 U.S. 8 8 ...................... 15
Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir.
1971) ................................................................................. 24
Root v. Railway Co., 105 U.S. 189 ....... ........................... 19
Ross v. Bernhard, 396 U.S. 531 ...................................... 19, 20
Seymour v. McCormick, 57 U.S. (16 How.) 480 ........... 22
Simler v. Conner, 372 U.S. 221........................ 20
Slaughter-House Cases, 83 U.S. (16 Wall.) 3 6 ............. 17
Smith v. Hampton Training School, 360 F.2d 577 (4th
Cir. 1966) ......................................................................... 24
Somerset v. Stewart, 98 Eng. Rep. 499 (K.B. 1772) .... 16
Swofford v. B & W Inc., 336 F.2d 406 (5th Cir. 1964),
cert, denied, 379 U.S. 962 ................................ 22
Tilgham v. Proctor, 125 U.S. 136 .................................... 22
Trafficante v. Metropolitan Life Insurance Company,
41 U.S.L.W. 4071 (U.S. Dec. 7, 1972) ........................ 8
United States v. Hunter, 459 F.2d 205 (4th Cir. 1972) 15
United States v. Mintzes, 304 F.Supp. 1305 (D. Md.
1969) 15
V
United States v. Real Estate Development Corpora
PAGE
tion, 347 F.Supp. 776 (N.D. Miss. 1972) ..................... 15
United States v. Reddoch, No. 72-1326 (5th. Cir., Oct. 4,
1972) ................................................................................. 10
Williams v. Travenol Laboratories, 344 F.Supp. 163
(N.D. Miss. 1972) ............. 12
Statutes:
42 U.S.C. § 1983 ................................................................... 24
Title II, Civil Rights Act of 1964....................................... 21
Title VII, Civil Rights Act of 1964 ............................ 5,12, 24
Title VIII, Civil Rights Act of 1968............................. passim
§801 ........................ ........... ....................................... ..... 8
§804 ............................................ 2
§812 ....................................................... 3,4, 5, 6,10,11, 20
§813 ...:'........................................................................... 10
§814 .................................................... 14
Equal Employment Opportunity Act of 1972, Pub. L.
92-261 .............................................................................. 24
Other Authorities:
A dministrative Office of th e U nited S tates Courts,
1972 A n n ual R eport of the D ir e c t o r ................. .........9,16
A dministrative Office of the U nited S tates Courts,
1972 J uror U tilization in U nited S tates Courts .... 9
VI
I J. E liot , T he D ebates in t h e S everal S tate Con
ventions on the A doption op th e F ederal Consti
PAGE
tution (2d ed.) ............................................................. 16
A. L ester & Gr. B in d m an , R ace and L aw (1972) ....16,17,18
110 Cong. Rec. 7255 (1964) ............................................ 12
112 Cong. Rec. 9390 (1966) ............................................ 12
112 Cong. Rec. 9396 (1966) ............................................. 18
112 Cong. Rec. 9397 (1966) .......................................... 12,18
112 Cong. Rec. 18739 (1966) ........................................ 18
114 Cong. Rec. 2270 (1968) .......................................... 18
114 Cong. Rec. 4570-73 (1968) ...................................... 18
Hearings on H.R. 14754 Before Subcommittee No. 5 of
the House Comm, on the Judiciary, 89th Cong., 2nd
Sess., ser. 16 (1966) ..................................................... 13,18
Hearings on S.3296 Before the Subcommittee on Con
stitutional Rights of the Senate Committee on the
Judiciary, 89th Cong., 2nd Sess. (1966) ..................... 13
In the
Supreme (tart nt % Inttrii Stairs
O ctober T erm , 1972
No.........................
J u lia R ogers,
v.
Petitioner,
L eroy L oether and M ariane L oether, his w ife ,
and M rs. A n th o n y P erez
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
Petitioner prays that a writ of certiorari issue to review
the judgment of the United States Court of Appeals for
the Seventh Circuit entered in this case on September 29,
1972.
Citations to Opinions Below
1. Opinion of district court denying demand for jury
trial, May 19, 1970, reported 312 P.Supp. 1008
(la-6a).
2. District court’s unreported findings of fact and con
clusions of law, October 27, 1970 (7a-lla).
3. Opinion of Court of Appeals, reported 467 F.2d
1110 (13a-33a).
2
Jurisdiction
The court of appeals entered judgment on September
29, 1972 (34a). On December 14, 1972, Mr. Justice Rehn-
quist extended the time for filing this petition to January
27, 1973. Jurisdiction of this Court is invoked under 28
U.S.C. § 1254(1).
Question Presented
Whether either Title VIII of the Civil Rights Act of
1968, 42 U.S.C. §§ 3601-19, or the Seventh Amendment to
the United States Constitution, require a trial by jury on
the demand of a landlord in an action by a black apartment
applicant for injunctive relief and punitive damages to
redress a racially discriminatory refusal to rent?
Constitutional and Statutory Provisions Involved
1. United States Constitution, Amendment VII provides:
In suits at common law, where the value in contro
versy shall exceed twenty dollars, the right of trial
by jury shall be preserved, and no fact tried by a
jury, shall be otherwise reexamined in any Court of
the United States, than according to rules of the com
mon law.
2. Section 804(a) of the Civil Rights Act of 1968, 42
U.S.C. § 3604(a) provides:
As made applicable by section 803 and except as
exempted by sections 803(b) and 807, it shall be un
lawful—
(a) To refuse to sell or rent after the making of a
bona fide offer, or to refuse to negotiate for the sale
3
or rental of, or otherwise make unavailable or deny,
a dwelling to any person because of race, color, re
ligion, or national origin.
3. Section 812 of the Civil Eights Act of 1968, 42 U.S.C.
§ 3612, provides:
(a) The rights granted by sections 803, 804, 805,
and 806 may be enforced by civil actions in appropriate
United States district courts without regard to the
amount in controversy and in appropriate State or
local courts of general jurisdiction. A civil action
shall be commenced within one hundred and eighty
days after the alleged discriminatory housing practice
occurred: Provided, however, That the court shall
continue such civil case brought pursuant to this sec
tion or section 810(d) from time to time before bring
ing it to trial if the court believes that the conciliation
efforts of the Secretary or a State or local agency are
likely to result in satisfactory settlement of the dis
criminatory housing practice complained of in the com
plaint made to the Secretary or to the local or State
agency and which practice forms the basis for the
action in court: And provided, however, That any sale,
encumbrance, or rental consummated prior to the issu
ance of any court order issued under the authority of
this Act, and involving a bona fide purchaser, en
cumbrancer, or tenant without actual notice of the
existence of the filing of a complaint or civil action
under the provisions of this Act shall not be affected.
(b) Upon application by the plaintiff and in such
circumstances as the court may deem just, a court of
the United States in which a civil action under this
section has been brought may appoint an attorney for
the plaintiff and may authorize the commencement of
4
a civil action upon proper showing without the pay
ment of fees, costs, or security. A court of a State
or subdivision thereof may do likewise to the extent
not inconsistent with the law or procedures of the State
or subdivision.
(c) The court may grant as relief, as it deems ap
propriate, any permanent or temporary injunction,
temporary restraining order, or other order, and may
award to the plaintiff actual damages and not more
than $1,000 punitive damages, together with court costs
and reasonable attorney fees in the case of a prevail
ing plaintiff: Provided, That the said plaintiff in
the opinion of the court is not financially able to as
sume said attorney’s fees.
Statement of the Case
On November 7, 1969, petitioner Julia Rogers complained
in United States District Court for the Eastern District
of Wisconsin that Leroy and Mary Loether, white owners
of a house in Milwaukee,1 violated Section 804 of the Civil
Rights Act of 1968 by refusing to rent an apartment to
Mrs. Rogers because she is black. She requested injunctive
relief and $1000 punitive damages, but neither alleged nor
sought actual damages. Jurisdiction of the district court
was based on Section 812 of the Act. After an evidentiary
hearing on November 20, 1969, the court preliminarily en
joined rental of the apartment pending final determination
of the action. Defendants answered and demanded a jury
trial of issues of fact.
1 The complaint also named Mary Loether’s cousin, Mrs. Anthony
Perez, who resided in the house and was authorized to show the
vacant apartment to applicants.
5
By the time the district court considered and denied the
jury demand, two developments intervened. Following the
preliminary hearing petitioner found a place to live and
disclaimed need for injunctive relief. Also, during pre
trial proceedings petitioner indicated an interest in com
pensatory as well as punitive damages, and the court viewed
her claim as including both. The court ruled that Section
812 of the Civil Bights Act of 1968 did not expressly re
quire jury trials and appeared “to treat the actual damages
issue as one for the trial judge rather than a jury” (la ).
It drew support for this construction from rulings that
similar language in Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e-5(g), does not require jury deter
mination of back pay awards in employment discrimination
cases. On the constitutional issue, the district court held
“this cause of action is a statutory one invoking the equity
powers of the court, by which the court may award com
pensatory and punitive money damag’es as an integral part
of the final decree so that complete relief may be had.
The action is not one in the nature of a suit at common
law, and therefore there is no right to trial by jury on the
issue of money damages in the case (2a).
The court entered a standard pre-trial order requiring
petitioner to file “an itemized statement of special dam
ages,” and, on July 6, 1970, a second order requiring peti
tioner to “ set forth the actual damages claimed and the
evidentiary facts in support of such damages. Petitionei
filed no statement itemizing actual damages, and at the
October 1970 trial the court sustained defendants’ objec
tions to testimony concerning actual damages.2 As the
court framed the damage issue at trial, “ it’s really nar
rowed down to punitive damages.” 3 At the conclusion of
2 Trial transcript, October 26, 1970, pp. 17-18.
3 Id. at 5, 7.
6
the trial,4 * the court found that the Loethers effectively
rented the apartment to Mrs. Rogers through intermedi
aries, but, in violation of the Civil Rights Act of 1968,
revoked the rental upon learning that Mrs. Rogers is black
(7a-lla). The court granted $250 punitive damages, but
denied actual damages, attorney’s fees and costs (12a).
The Seventh Circuit reversed, holding that defendants’
jury trial demand should have been granted.6 Although
the court posed the question—“whether appellant was en
titled to a jury trial in an action for compensatory and
punitive damages brought under § 812 of the Civil Rights
Act of 1968” (13a)—it did not predicate its decision on
the abandonment of petitioner’s request for injunctive relief
and held that the right to a jury trial may be tested by the
relief requested in petitioner’s complaint (25a). Never
theless, the court ignored the fact that the complaint al
leged no actual damages. Neither did it consider that the
district court confined the damage issue at trial to, and
rendered judgment for, punitive damages only. In short,
the court o f appeals decided the broadest jury question
possible under Title V III of the Civil Rights Act of 1968.
The court’s opinion centers on its conclusion that an
action to enforce Title VIII of the Civil Rights Act of
1968 is “ in the nature of a suit at common law” (21a).
Three reasons are offered. First, the decision-making tri
bunal is a court. In this way the court distinguished
N.L.R.B. v. Jones dc Laughlin Steel Corp., 301 IT.S. 1, 48-
4 Trial proceedings were expedited by incorporating evidence at
the preliminary hearing into the trial record.
6 The court of appeals rejected defendants’ other contentions.
The court ruled that the district court’s finding of discrimination
was not clearly erroneous (14a). It also concluded that the Act
authorizes an award of punitive damages even in the absence of
actual damages (15a).
7
49, limiting its principle to administrative agencies. Sec
ond, money damages are sought. The court read Beacon
Theatres, Inc. v. Westover, 359 U.S. 500, and Dairy Queen,
Inc. v. Wood, 369 U.S. 469, to mandate “that once any claim
for money damages is made, the legal issue—whether de
fendant breached a duty owed plaintiff for which defend
ant is liable in damages—must be tried to a jury whether
or not there exists an equitable claim to which the damage
claim might once have been considered ‘incidental’ ” (27 a-
28a, emphasis added). Third, the court concluded that
“the nature of the substantive right asserted, although not
specifically recognized at common law, is analogous to
common law rights” (22a). The court drew its principal
analogy to the obligation of English innkeepers to rent
available lodgings to travelers.
The court’s extended constitutional analysis culminates
in statutory interpretation. It finds the district court’s
statutory analysis “persuasive but not compelling” and
concludes that the statute “implies, without expressly stat
ing, that a jury’s participation is appropriate” when dam
ages are sought (31a). In the end the court views as
“ controlling” a canon of construction requiring the inter
pretation of statutes to avoid “grave doubts” of uncon
stitutionality and concludes that Title VIII of the Civil
Eights Act of 1968 itself requires jury trials when damages
are claimed (33a).
8
REASONS FOR GRANTING THE WRIT
I.
Certiorari Should Be Granted to Determine an Issue
Fundamental to the Successful Administration of an
Important Act of Congress.
Section 801 of the Civil Rights Act of 1968 declares it is
national policy to provide “fair housing throughout the
United States.” 42 U.S.C. § 3601. The statute assigns
certain administrative responsibilities to the Secretary of
Housing and Urban Development and limited powers to
the Attorney General of the United States. Against “ the
enormity of the task of assuring fair housing . . . the main
generating force must be private suits in which . . . the
complainants act not only on their own behalf but also
‘as private attorney general in vindicating a policy that
Congress considered to be of the highest priority.’ ”
Trafficante v. Metropolitan Life Insurance Company, 41
U.S.L.W. 4071, 4073 (U.S. Dec. 7, 1972). Unfortunately,
the decision of the court of appeals diminishes the effective
ness of private enforcement actions and jeopardizes the
ability of the Act to contribute much beyond the enuncia
tion of national policy.
Critical decisions made in the early life of a statute
may forever affect its usefulness. In the case of Title VIII
the mode of trial may be the most important such decision.
The mode selected, either as a result of statutory or con
stitutional interpretation, will determine the cost, efficiency,
and credibility of the mechanism entrusted to enforce the
important rights declared by Congress. These considera
tions may not bear on this Court’s ultimate judgment on
the requirements of the Seventh Amendment, but should
9
weigh, heavily in favor of giving plenary consideration to
the statutory and constitutional issues in this case.
Jury trials will add cost and delay to the administration
of the statute. The median interval in federal courts from
complaint to trial is 10 months in non-jury cases but 14
months in jury cases.6 To a person needing a home, that
additional delay in achieving a basic right may be intol
erable. Jury trials are also longer and more costly than
court trials. Although the statute authorizes the award
of reasonable attorney’s fees, many of the volunteer lawyers
on whom plaintiffs still depend may be discouraged by
the increased complexity and cost of extended jury trials.7
We are also concerned with prejudice. Admittedly, if the
statute or Constitution require jury trials, the possibility
of jury prejudice would be an unavoidable concomitant.
Still, this consideration supports certiorari. The bitter
legislative struggle to adopt a national fair housing law
reflects divisions in our society not instantaneously resolved
by the Act’s passage. We might wish that jurors would be
persuaded to lay aside any question of the correctness of
the law they enforce, but it frankly seems illusory to think
that unanimity of judgment can be achieved with enough
frequency to make a reality of the law. To the extent that
means exist to screen prejudice in the voir dire of jurors,
the process will be costly to plaintiffs and burdensome to
the courts. Furthermore, even the possibility of jury
6 A dministrative Office of the United States Courts, 1972
A nnual R eport of the Director 11-74.
7 Jury trials are also costly to the United States, A dministrative
Office of the United States Courts, 1972 Juror Utilization in
United States Courts Al-10, and a factor in the ability of fed
eral courts to dispose cases expeditiously. While these considera
tions do not affect the interpretation of the Seventh Amendment,
the impact of jury trials on court dockets and budgets might prop
erly be considered in determining whether to grant certiorari.
10
prejudice will seriously affect the Act’s credibility to racial
minorities. Attempting to buy a house when it means buy
ing a lawsuit as well is difficult enough, but when the judges
of fact are drawn from the excluding community the effort
will seem impossible to many. Unless minorities believe
the law will be fairly administered, it will be a dead letter.
F in ally , ju d ic ia l efficiency w arrants rev iew at this tim e
o f the ju r y issue in T itle V I I I actions. W h ile this is
the first appellate decision on the righ t to ju ries in actions
fo r dam ages under S ection 812,8 d istrict courts are fa c in g
the issue w ith increasin g frequ en cy .9 T hose that decide
in correctly m ay be required to re -try cases. T hose that
fo llo w the opin ion below w ill soon con fron t m yriad ques
tions con cern ing the a llocation o f functions betw een ju dge
and ju ry . W e subm it this C ourt should render early ju d g
m ent on the threshold question w hether ju ries are required
to guide low er fed era l courts in their adm inistration o f
this new and im portant law.
8 One appellate court has denied the right to a jury trial in an
action by the United States for injunctive relief only pursuant to
Section 813 of the Act, 42 U.S.C. § 3613. United States v. Beddoch,
No. 72-1326 (5th Cir., Oct. 4,1972).
9 E.g., Cauley v. Smith, 347 F.Supp. 114 (E.D. Va. 1972) (jury
trial denied) ; Marr v. Rife, Civ. No. 70-218 (S.D. Ohio, Aug. 3i,
1972) (jury trial denied); Kastner v. Brackett, 326 F.Supp. 1151
(D. Nev. 1971) (jury trial granted).
11
II.
The Statute Provides That Issues of Fact in Actions
for Injunctive Relief and Damages Be Tried by Judges
Without Juries.
Only a strained reading of Section 812 of the Civil Rights
Act of 1968 would support a conclusion that in an unspeci
fied way Congress fragmented between judge and jury the
remedial powers necessary to enforce the fair housing law.
Every indication is that Congress assigned to judges alone
the task of determining liability and integrating the array
of possible remedies—injunctions, actual damages, punitive
damages, and attorney’s fees—into effective unified judg
ments which achieve the objectives of the law.
The “ court” which enforces the statute is described in
terms defining judges not juries. Section 812(a) mandates
continuances “ if the court believes” that conciliation will
be successful. Section 812(b) provides the court may ap
point attorneys and authorize actions without fees, costs,
or security “ in such circumstances as the court may deem
just.” Finally, Section 812(c) provides:
The court may grant as relief, as it deems appro
priate, any permanent or temporary injunction, tem
porary restraining order, or other order, and may
award to the plaintiff actual damages and not more
than $1000 punitive damag-es, together with court costs
and reasonable attorney fees in the case of a prevailing
plaintiff: Provided, that the said plaintiff in the
opinion of the court is not financially able to assume
said attorney’s fees.
The judicial processes involved in “if the court believes,”
“as the court may deem just,” “ the court may grant relief,
12
as it deems appropriate,” and “ in the opinion of the court”
all convey determinations of judges, not juries.10
Debates in Congress immediately preceding the Act’s
adoption are not helpful, but the early history of the Act
sheds some light. The origin of Section 812(c) is President
Johnson’s proposed Civil Rights Act of 1966.11 Section
406 of the administration bill provided that in actions to
enforce the proposed fair housing title:
(c) The court may grant such relief as it deems ap
propriate, including a permanent or temporary injunc
tion, restraining order, or other order, and may award
damages to the plaintiff, including damages for hu
miliation and mental pain and suffering, and up to
$500 punitive damages.
(d) The court shall allow a prevailing plaintiff a
reasonable attorney’s fee as part of the costs.12
Attorney General Katzenbach testified about the right to
a jury trial under the administration proposal:
10 Lower federal courts consistently rule that similar language
in Title V II of the Civil Rights Act of 1964 does not require trial
by jury. That act provides “ if the court finds” racial discrimination
in employment “ the court” may order injunctive relief and back
pay. 42 U.S.C. § 2000e-5(g) (1970). Legislative history confirms
that juries are not required, 110 Cong. Rec. 7255 (1964), and with
out exception courts deny employer demands for juries. E.g.,
Johnson v. Georgia Highway Express, 417 F.2d 1122, 1125 (5th
Cir. 1969) ; Lowry v. Whitaker Cable Corporation, 348 F.Supp.
202, 209 fn. 3 (W.D. Mo. 1972) ; Williams v. Travenol Laboratories,
344 F.Supp. 163 (N.D. Miss. 1972); Cheatwood v. South Central
Bell Telephone and Telegraph Co., 303 F.Supp. 754 (M.D. Ala.
1969); Culpepper v. Reynolds Metals Co., 296 F.Supp. 1232 (N.D.
Ga. 1968), rev’d on other grounds, 421 F.2d 888 (5th Cir. 1970).
There is no reason to believe that Congress in assigning civil rights
enforcement responsibilities to the courts varied the definition of
“ the court” from one major enactment to another.
11112 Cong. Rec. 9390 (1966).
12 S. 3296, § 406,112 Cong. Rec. 9397 (1966).
13
Senator Ervin. Now, I would like to know under the
same subsection (c) of section 408 (sic) who deter
mines the amount of damages that are to be awarded
if a case is made out under Title IV of the bill.
Attorney General Katzenbach. The court does.
Senator Ervin. That is the judge.
Attorney General Katzenbach. Yes, sir.
Senator Ervin. There is no jury trial.
Attorney General Katzenbach. No, sir.18
The Attorney General, on several other occasions, indicated
that juries were not intended by explaining that the bill
authorized punitive damages “ in the court’s discretion.” 14
Between the administration’s first proposal in 1966 and
the enactment of Title VIII in 1968, the Act underwent
many changes, primarily in the formulation and abandon
ment of proposals for administrative enforcement. In the
end, Congress elected judicial enforcement in a form essen
tially similar to the administration’s 1966 proposal. Con- 13 *
13 Hearings on S. 3296 before the Subcomm. on Constitutional
Rights of the Senate Committee on the Judiciary, 89th Cong., 2nd
Sess., pt. 2, at 1178 (1966). In the continuation of this exchange
Attorney General Katzenbach modified this answer in cases in
which no injunctive relief but only damages are sought:
Senator Ervin. Well, is the administration opposed to or
has it forsaken the ancient American love for trial by jury?
Attorney General Katzenbach. No, sir, I assume if there
was a suit here that was purely for damages that the court
would use a jury. Hid, emphasis added.
Petitioner’s action cannot be described as an action “ purely for
damages.” It was brought as an action for injunctive relief and
damages, and the Court of Appeals acknowledged that the right to
a jury is tested by the relief requested in the complaint (25a).
u Id., pt. 1, at 84; Hearings on H.R. 14765 Before Subcommittee
No. 5 of the House Comm, on the Judiciary, 89th Cong., 2nd Sess.,
ser. 16, at 1057, 1070 (1966); 112 Cong. Rec. 9399 (1966).
14
gress deleted specific authority to recover damages for
humiliation, mental pain, and suffering, increased the au
thorized award of punitive damages, and modified the at
torney’s fees requirement; but, apart from these changes,
the present enforcement provision is the one Attorney
General Katzenbach described to Congress in 1966. It
should be interpreted now as it was interpreted to Con
gress by its principal spokesman, and consistent with its
text not be read to require juries in actions for injunctive
relief and damages.
Court trials serve important statutory objectives. Section
814 requires that enforcement actions “be in every way
expedited.” In fair housing cases, most facts relevant
to final judgment are presented at preliminary injunction
hearings only days after the filing of complaints. Then,
final determinations are expedited by incorporating this
evidence into trial records, as was done in this case. If
juries are mandated, parties will be required to re-try facts
already tried before judges at preliminary injunction
hearings. A statutory construction requiring re-trials
hardly comports with a command that actions “be in every
way expedited.” Also, court rather than jury trials serve
the Congressional objective of minimizing the cost of liti
gation. Congress authorized the appointment of attorneys,
the commencement of actions without fees, costs, or secu
rity, and the award of attorney’s fees to prevailing plain
tiffs. The increased costs resulting from re-trial of facts
would seriously undermine the effort to create an inexpen
sive judicial remedy. “Due consideration of the structure
and purpose of the . . . Act as a whole, as well as the
particular provisions of the Act brought in question,” 15
confirms that Congress intended issues of fact in Title VIII
actions to be determined by judges not juries.
15 Katchen v. Landy, 382 U.S. 323, 328.
15
III.
The Seventh Amendment Does Not Prevent Congress
From Enforcing the Fair Housing Law in Federal Courts
Without the Intervention of Juries.
The court of appeals relied on a canon that statutes
should be construed to avoid “grave doubts” of constitu
tionality (33a). While this may be proper in clashes be
tween constitutional values and ordinary statutes, this case
poses a different problem. Title VIII enforces the
Thirteenth and Fourteenth Amendments to the United
States Constitution,16 and the “cherished aims” 17 which
underlie these amendments. This Court should not allow
the constitutional values expressed in Title VIII to be
frustrated by canons of construction. The judgment of
Congress that it is appropriate to enforce the Civil War
amendments in court rather than jury trials should be set
aside only on the squarest holding that the Seventh Amend
ment requires otherwise. Nothing in that amendment or
the decisions of this Court requires any such conclusion.
a. Actions to Enforce Title VIII Are Not in the Nature of
Suits at Common Law.
The Seventh Amendment preserves the right to trial by
jury “ in suits at common law” to the extent the right was
known when the Amendment was adopted.18 In time, the
16 Following Jones v. Mayer, 392 U.S. 409, federal courts have
held that Title V III is an appropriate exercise of Congressional
power under the Thirteenth Amendment. United States v. Hunter,
459 F.2d 205, 214 (4th Cir. 1972) ; United States v. Beal Estate'
Development Corporation, 347 F.Supp. 776, 781 (N.D. Miss. 1972);
United States v. Mintzes, 304 F.Supp. 1305, 1312 (D. Md. 1969) ;
Brown v. State Realty, 304 F.Supp. 1236, 1240 (N.D. Ga. 1969).
17 Railway Mail Ass’n v. Corsi, 326 U.S. 88, 98 (Frankfurter, J.,
concurring).
18 Baltimore & C. Line v. Redman, 295 U.S. 654, 657.
16
question has evolved to be whether a controversy is “ in the
nature of a suit at common law.” 19 Thus, while the Amend
ment’s application to rights created by statute rather than
judicial decision is not precluded,20 the question remains
whether particular statutory rights bear sufficient rela
tion to rights known to the common law in 1791 to fall
within the Amendment’s limited scope.
The rights created by Title VIII of the Civil Rights Act
of 1968 are not remotely related to anything known to the
common law in 1791. Although by that time English com
mon law no longer enforced the state of slavery,21 a slave
who continued to work for a master was not entitled to
wages.22 The limited common law rights of blacks in
19 N.L.B.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 48.
20 While the Seventh Amendment may apply to some federal
statutes, the Seventh Circuit was incorrect in stating that the
“ principal significance” of the amendment has been in the trial of
federal questions (16a-17a). To the contrary, the primary reach
of the amendment has always been diversity actions in which
ordinary common law disputes are litigated. Indeed, both Massa
chusetts and New Hampshire in their call for a federal bill of
rights focused on civil juries in diversity suits, and proposed that:
“ VIII. In civil actions between citizens of different states,
every issue of fact, arising in actions at common law, shall be
tried by a jury . . . .”
I. J. Eliot, The Debates in the Several State Conventions
on the A doption op the F ederal Constitution 323, 326 (2d ed.)
(emphasis added). The framers of the Seventh Amendment also
framed the First Judiciary Act, which conferred no general federal
question jurisdiction on federal courts. Thus, with only limited
exceptions, civil juries in federal courts were confined for an
extended period to common law diversity actions. Even today, the
number of jury trials in diversity actions far exceeds the number
in federal question actions. A dministrative Office of the United
States Courts, 1972 A nnual Report of D irector A-23.
21 Somerset v. Stewart, 98 Eng. Rep. 499 (K.B. 1772).
22 King v. Inhabitants of Thames Ditton, 99 Eng. Rep. 891
(1785); A. Lester & G. B indman, Race and Law 32 (1972).
17
England did not extend outside England; slavery was not
abolished in English colonies until 1834. More generally,
“English judges have never declared that acts of racial
discrimination committed [in England] are against public
policy.” 23 In this country, the Constitution acknowledged
slavery24 and this Court interpreted it to deny citizenship
to freed blacks.25 It required a civil war before “ slavery,
as a legalized social relation, perished,” 26 and the Consti
tution amended to authorize Congress “ to pass all laws
necessary and proper for abolishing all badges and inci
dents of slavery. . . . ” 27 No analogy to the duties of En
glish innkeepers28 overcomes the fact that Title V III’s
origins are not English common law but rather a major
constitutional revolution long after the adoption of the
Seventh Amendment.29
The Seventh Circuit also attributed a common law char
acter to this action because the original tribunal in Title
V III actions is a court, not an administrative agency. It
reads this Court’s decision in N.L.B.B. v. Jones & Laughlin,
301 TT.S. 1, to require Congress to choose between admin
istrative agencies or juries, without the intermediate pos
23 A. Lesteb & G. B indman, supra note 22, at 25.
24 Art. I, § 2, art. IV, § 2.
26 Bred Scott v. Sanford, 60 U.S. (19 How.) 393.
26 Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 68.
27 Civil Bights Cases, 109 U.S. 3, 20.
28 Even among public accommodations the innkeeper’s duties
had limited scope, and did not include lodging houses, boarding
houses, private residential hotels, places of entertainment, and
restaurants. A. Lesteb & G. Bindman, supra note 22, at 65.
29 Compare Culpepper v. Reynolds Metals Company, 296 P.Supp.
at 1241: “ The focus of [Title V II] is upon the elimination of dis
crimination in employment, the freedom from which there was no
guarantee at common law.”
18
sibility of court trials. We doubt this Court intended to
limit Congressional options in enforcing modern statutes.
It is not the forum, but the nature of the claim which deter
mines the constitutional issue. If the Constitution allows
the claim to be adjudicated without a jury, then Congress
should be permitted latitude in determining how the law
should be enforced.
b. A Court in a Title VIII Action Acts as a Court of Equity
With Power to Afford Complete Relief.
The common element in all fair housing proposals con
sidered by Congress was that any law should be enforced
—whether by courts, the Secretary of Housing and Urban
Development, or a Fair Housing Board—by orders com
pelling cessation of racially discriminatory housing prac
tices.30 Title VIII supplements this with the power to
award damages, but the Act’s basic authority is the power
to order the actual provision of housing on a non-dis-
criminatory basis. Thus, a court enforcing Title VIII may
fairly be characterized in historical terms as a court of
equity. As such, it has power “to decree complete relief and
for that purpose may accord what would otherwise be legal
remedies.” 31
The power of the English chancellor to both issue an
injunction and decree an account for waste was well estab
lished when the Seventh Amendment was adopted.32 In
this country, the acknowledged power of a court of equity
30 Compare S.3296, the administration’s 1966 bill, 112 Cong.
Rec. 9396 (1966) and H.R. 14765, as modified and passed by the
House, 112 Cong. Ree. 18739 (1966), with Senator Mondale’s
amendment, 114 Cong. Rec. 2270 (1968), and Senator Dirksen’s
substitute, 114 Cong. Ree. 4570-73 (1968).
31 Katchen v. Landy, 382 U.S. at 338.
32 Jesus College v. Bloom, 26 Eng. Rep. 953 (Ch. 1745).
20
remedies which may be used “as it deems appropriate.”
Section 812(c). The court’s exercise of discretion is un
doubtedly governed by the purpose of the statute,37 but
within it the court has the power to select or group the
remedies made available by Congress.38 Therefore, in no
sense do “damages” constitute a separate claim. The “basic
character” 39 of a Title VIII action is not determined by the
fact that one among several remedies made available by
the statute is money damages.
Third, Beacon Theatres, Dairy Queen, and Ross differ
markedly from actions to enforce Title VIII. The dispute
in Beacon Theatres arose under the antitrust laws, which
this Court construes to create a statutory right to trial
by jury.40 The basic controversy in Dairy Queen involved
an alleged breach of contract.41 The corporation’s claim in
Ross included ordinary breach of contract and negligence.42
In contrast, under Title VIII there is “a specific statutory
scheme contemplating the prompt trial of a disputed claim
without the intervention of a jury.” 43
Finally, “ the rule of Beacon Theatres and Dairy Queen
. . . is itself an equitable doctrine . . . .” 44 Equity often
decreed complete relief to avoid multiple actions. Yet, jury
trials under Title VIII would require re-trial of facts heard
37 Cf. Mitchell v. De Mario Jewelry, 361 TJ.S. 288, 296.
38 One example of the interrelationship of possible remedies is
Jones v. Mayer where this Court thought injunctive relief could
be fashioned which would obviate any actual damage problem.
392 U.S. at 414 fn. 14.
39 Simler v. Conner, 372 U.S. 221, 223.
40 359 U.S. at 504.
41 369 U.S. at 477.
42 396 U.S. at 542.
43 Katchen v. Landy, 382 U.S. at 339.
44 i m .
21
expeditiously by district courts at preliminary injunction
hearings, a wasteful result which equity does not require.
c. There Is No Right to a Jury Trial in Respect to the Limited
Punitive Damages Remedy Available Under the Statute.
The court of appeals discussed actual damages hypothet
ically. The complaint alleged no actual damages, the dis
trict court permitted no testimony of actual damages be
yond offers of proof, and the judgment included no award
for actual damages. It is only punitive damages which the
complaint requested and the district court granted.
The case for jury determination of punitive damage
awards has even less merit than the case for jury determina
tion of actual damages. At least, when juries are required
by statute or common law in actions seeking actual dam
ages there is work for the jury as a fact-finder. The jury
must determine whether there are “actual” damages, and
must determine whether one party’s unlawful behavior is
the proximate cause of the other party’s injury. There are
no equivalent findings to be made in a case involving
punitive damages. If this were a common tort action, it
might be necessary to find that the defendants acted “ma
liciously” or “wantonly.” But this is an action pursuant
to a statute which provides that “ the court may award . . .
not more than $1000 punitive damages . . .” as a remedy
for violation of a statute which requires no finding of
malice.46 Therefore, beyond the findings of fact necessary
46 In Newman v. Piggie Park Enterprises, 390 U.S. 400, this
Court considered a related problem in construing the attorney’s
fee provision in Title II of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000a-3(b), which provides that “ the court, in its discretion, may
allow the prevailing party . . . a reasonable attorney’s fee . . . .”
The Court rejected the traditional rule limiting award of attorney’s
fees to cases of “ bad faith” defenses:
If Congress’ objective had been to authorize the assessment
of attorney’s fees against defendants who make completely
22
to sustain a judgment that the Act has been violated—
findings which would have to be made in an action for in
junctive relief only—no further findings are necessary to
authorize an award of punitive damages.
The court of appeals found it “highly unusual” for a
federal statute to authorize punishment without a jury trial
(20a). Yet, judges in patent infringement actions have
long had the power to punish by trebling actual damages.* 46
Although juries may determine actual damages in many of
these cases, nevertheless, judges not juries decide whether
to punish, and at times Congress has conferred on courts
of equity both the power to decree accounts without juries
and treble damages in their discretion.47
Moreover, nothing in our common law tradition precludes
the infliction of limited money punishments without juries.
If Congress had chosen to make discrimination an offense
punishable by a $1000 fine only, but no term in prison, the
Constitution would not require a jury trial.48 It would be
an odd historical result to require a jury to award $1000
groundless contentions for purposes of delay, no new statutory
provision would have been necessary, for it has long been
held that a federal court may award counsel fees to a success
ful plaintiff where a defense has been maintained ‘in bad faith,
vexatiously, wantonly, or for oppressive reasons.’
Id. at 402 fn. 4. Similarly, a new statutory provision would not
have been necessary to authorize a punitive damage award for
malicious or wanton behavior, and Title V III should not be read
to require a finding of malice.
46 Seymour v. McCormick, 57 U.S. (16 How.) 480, 489; Kennedy
v. Lakso Co., 414 F.2d 1249, 1254 (3rd Cir. 1969) ; Swofford v.
B & W, Inc., 336 F.2d 406, 413 (5th Cir. 1964), cert, denied, 379
U.S. 962.
47 Tilgham v. Proctor, 125 U.S. 136, 148-49; Filer <& Stowell Co.
v. Diamond Iron Works, 270 F. 489 (7th Cir. 1921).
48 Argesinger v. Hamlin, 407 U.S. 25, 45 fn.2 (concurring opin
ion).
23
punitive damages, while a judge alone could impose a
$1000 fine.
Finally, the role of punitive damages in the enforcement
of the fair housing law should be considered. Often they
are an essential complement to a court’s injunctive power.
Fair housing cases present myriad situations to district
courts. There are times when the coercive effect of injunc
tions may be sufficient to assure compliance with the law.
There are also times when it may be preferable to coerce
future compliance with a present award of punitive dam
ages in place of the ongoing supervision which an injunc
tion may require. There are other times when a combina
tion of injunction and punitive damages may best assure
the effectiveness of the Act. Congress decided it would be
appropriate to enforce the right to fair housing by giving
one decision maker an array of powers which could be used
individually or in combination as necessary to enforce the
Act in particular circumstances. In this light, punitive
damages under Title VIII are best seen as an adjunct to
the district court’s equitable powers to coerce compliance
with this important statute.
24
IV.
The Decision of the Seventh Circuit Conflicts in
Principle With Decisions in Other Circuits on the Right
to Juries in Related Civil Rights Actions.
Other courts of appeals have uniformly rejected demands
for juries in employment discrimination cases. Some of
these actions were under Title VII of the Civil Rights Act
of 1964,49 50 and others under 42 TJ.S.C. § 1983.60 All sought
injunctive relief and money awards to compensate for lost
pay, and in all the courts held that back pay awards were
part of an equitable remedy.
The decision of the Seventh Circuit seriously jeopardizes
this heretofore unbroken line of cases. The court below
attempts to distinguish them by analogizing the award of
lost pay to the restitution of “ill-gotten gains” (29a), but
another court has already exposed the fragile basis of char
acterizing back pay as a uniquely equitable remedy by
showing that a common law lawyer would have had no
trouble placing back pay under the rubric of indebitatus
assumpsit or an action for breach of contract by wrongful
discharge.61 Whether these statutorily authorized money
49 Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122,
1125 (5th Cir. 1969); cf. Rohinson v. Lorillard Corporation, 444
F.2d 791, 802 (4th Cir. 1971). Even “the use of advisory juries
in discrimination cases is not favored. . . .” Moss v. The Lane
Company, No. 72-1628 (4th Cir., Jan. 11,1973).
50 McFerren v. County Board of Education, 455 F.2d 199 (6th
Cir. 1972) ; Harkless v. Sweeny Independent School District, 427
F.2d 319 (5th Cir. 1970), cert, denied, 400 U.S. 991; Smith v.
Hampton Training School, 360 F.2d 577 (4th Cir. 1966). The
Equal Employment Opportunity Act of 1972, Pub. L. 92-261, § 2
(1 ), now makes it possible to bring employment discrimination
cases involving government employers under Title VII.
61 Ochoa v. American Oil Co., 338 F.Supp. 914, 918 (S.D. Tex
1972):.
25
awards are called “actual damages” or “back pay” tbeir
purpose is to remedy an injury caused by unlawful conduct
by making victims “whole.” 52
The determination whether or not juries are required
cannot depend on a tenuous labeling of money damages as
equitable or legal. Rather, it depends on whether Congress
has the power to authorize federal judges not only to order
injunctive relief but also award money damages to provide
complete relief in enforcing civil rights legislation. The
decision of the Seventh Circuit that Congress lacks this
power conflicts at least in principle and effect with deci
sions of other circuits. It would be appropriate for this
Court to resolve this conflict and provide authoritative
guidance to lower federal courts in their administration of
the civil rights laws.
62 Bowe v. Colgate-Palmolive Company, 416 F.2d 711 721 (7th
Cir. 1969).
26
CONCLUSION
The writ of certiorari should be granted,
Respectfully submitted,
J ack Greenberg
M ichael D avidson
10 Columbus Circle
New York, N.Y. 10019
P atricia D. M cM ahon
Freedom Through Equality, Inc.
152 West Wisconsin Ave.
Milwaukee, Wisconsin 53203
S eymour P ikoesky
Milwaukee Legal Services
2200 North Third St.
Milwaukee, Wisconsin 53212
Attorneys for Petitioner
Charles L. B lack , J r .
Of Counsel
APPENDIX
la
May 19, 1970
R ey n olds , District Judge.
This is an action brought under Title VIII of the Civil
Rights Act of 1968, 42 U.S.C. §§ 3601-3619, which prohibits
discrimination in the rental of housing. Plaintiff claims
that defendants discriminated against her by refusing to
rent her an apartment because she is a Negro. Plaintiff
requested injunctive relief restraining the rental of the
subject apartment except to the plaintiff, money damages
for loss incurred by the plaintiff due to the alleged dis
crimination, punitive damages in the amount of $1,000,
and attorney’s fees.
The court granted plaintiff’s motion for a temporary
restraining order on November 17, 1969, and, following an
extended hearing, entered a preliminary injunction tem
porarily restraining the rental of the apartment pending
final determination of the case. At a hearing on April
30, 1970, the Court, with consent of plaintiff, dissolved
the preliminary injunction. Therefore, the only issues re
maining in the suit are plaintiff’s claim for compensatory
and punitive damages and attorney’s fees.
The defendants have requested a jury trial on these
issues, and plaintiff has objected to this request. The par
ties have submitted briefs and argued to the court on this
issue which is now before the court for decision.
[1, 2] To warrant a jury trial, a claim must be of such
a nature as would entitle a party to a jury at the time of
the adoption of the Seventh Amendment. NLRB v. Jones
& Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed.
District Court’s Opinion and Order
Denying Demand for Jury Trial
2a
893 (1936); United States v. Louisiana, 339 U.S. 699, 70
S.Ct. 914, 94 L.Ed. 1216 (1950). The question before this
court, therefore, is whether the cause of action under 42
U.S.C. §§ 3601-3619 is one recognized at common law which
consequently requires a jury trial. I find that this cause
of action is a statutory one invoking the equity powers of
the court, by which the court may award compensatory and
punitive money damages as an integral part of the final
decree so that complete relief may be had. The action is
not one in the nature of a suit at common law, and there
fore there is no right to trial by jury on the issue of
money damages in the case.
Defendant argues that the Seventh Amendment of the
Constitution; Beacon Theatres, Inc. v. Westover, 359 U.S.
500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959); Thermo-Stitch,
Inc. v. Chemi-Cord Processing Corp., 294 F.2d 486 (5th
Cir. 1961); Dairy Queen, Inc, v. Wood, 369 U.S. 469, 82
S.Ct. 894, 8 L.Ed.2d 44 (1962) ; Harkless v. Sweeny In
dependent School District, 278 F.Supp. 632 (S. D. Texas
1968); and Boss v. Bernhard, 396 U.S. 531, 90 S.Ct. 733,
24 L.Ed.2d 729 (1970), require a jury trial on the issue
of plaintiff’s prayer for money damages due to the alleged
discrimination.
Beacon, Dairy Queen, and Thermo-Stitch hold that where
equitable and legal claims are joined in the same cause
of action, there is a right to trial by jury on the legal
claims that must not be infringed by trying the legal issues
as incidental to the equitable issues or by a court trial of
common issues between the two. The Court in Swofford v.
B & W, Inc., 336 F.2d 406, 414 (5th Cir. 1964), commented
on these cases:
District Court’s Opinion and Order
Denying Demand for Jury Trial
3a
“ * # * This is not to say, however, that they have
converted typical non-jury claims, or remedies, into
jury ones. Therefore, we reject a view that the trio of
Beacon Theatres, Dairy Queen, and Thermo-Stitch is
a catalyst which suddenly converts any money request
into a money claim triable by jury.”
The Darkless court granted a jury trial on the issue
of back pay award in an action brought under 42 U.S.C.
§ 1983 seeking reinstatement as teachers following a dis
charge allegedly based on racial discrimination. However,
§ 1983 expressly provides that persons acting under color
of state law who deprive other persons of constitutional
rights shall be liable “ in an action at law.” There is no
such provision in 42 U.S.C. § 3612(c).
The Supreme Court in Boss held that plaintiffs in a
shareholder’s derivative action had a right to a jury trial
on those issues to which the corporation, had it brought
the action itself, would have had the right to a jury trial.
The Court found that where the claims asserted were dam
ages against the corporation’s broker under the brokerage
contract and rights against the corporate directors because
of their negligence, both actions at common law, “ * * * it
is no longer tenable for a district court, administering both
law and equity in the same action, to deny legal remedies
to a corporation, merely because the corporation’s spokes
men are its shareholders rather than its directors. * * *”
396 TJ.S. at 540, 90 S.Ct. at 739. While Ross may reflect
“an unarticulated but apparently overpowering bias in
favor of jury trials in civil actions,” Boss, supra, at 551,
90 S.Ct. at 745, Justice Stewart dissenting, the case does
District Court’s Opinion and Order
Denying Demand for Jury Trial
4a
not stand for the proposition that any money claim in a
cause of action must be tried by a jury. The decision deals
narrowly with the right to jury trial in a shareholder’s
derivative action and is clearly distinguishable from the
case before this court.
The section of the statute dealing- with remedies for
violation of the act, 42 U.S.C. § 3612(c), provides:
“ (c) The court (emphasis added) may grant as re
lief, as it deems appropriate, any permanent or tempo
rary injunction, temporary restraining order, or other
order, and may award to the plaintiff actual damages
and not more than $1,000 punitive damages, together
with court costs and reasonable attorney fees in the
case of a prevailing plaintiff: Provided, That the
said plaintiff in the opinion of the court (emphasis
added) is not financially able to assume said attorney’s
fees.”
On its face, this statutory language seems to treat the
actual damages issue as one for the trial judge rather than
a jury. District courts in Hayes v. Seaboard Coast Line
Railroad Co., 46 P.R.D. 49 (S.D.Gla.1969), and Cheatwood
v. South Central Bell Telephone and Telegraph Co., 303
F.Supp. 754 (M.D.Ala. 1969), have construed similar lan
guage in Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e-5(g),* to mean that the issue of back pay
District Court’s Opinion and Order
Denying Demand for Jury Trial
* “ I f the court finds that the respondent has intentionally en
gaged in or is intentionally engaging in an unlawful employment
practice charged in the complaint, the court may enjoin the respon
dent from engaging in such unlawful employment practice, and
order such affirmative action as may be appropriate, which may
5a
award in employment discrimination cases does not require
jury determination.
Both Hayes and Cheatwood held that the money dam
ages issue of back pay in an action under 42 U.8.C. § 2000e-
5(g) of the 1964 Civil Bights Act was not a separate legal
issue, but rather was a remedy the court could employ for
violation of the statute in a statutory proceeding unknown
at common law, and that there was no right to a trial by
jury on that issue. As I have noted, the language of the
remedial provisions of 42 U.S.C. §2000e-5(g) of the Civil
Bights Act of 1964 and 42 U.S.C. § 3612(c) of the Civil
Bights Act of 1968 are very similar. The purpose of the
two acts is similar. Title YII of the 1964 Act prohibits
discrimination on the basis of race, color, religion, sex, or
national origin by specified groups of employers, labor
unions, and employment agencies. Title VTTT of the 1968
Act prohibits discrimination on the basis of race, color,
religion, or national origin in the sale or rental of housing
by private owners, real estate brokers, and financial insti
tutions. The award of money damages in a Title VIII
action has the same place in the statutory scheme as does
the award of back pay in a Title VII action. Determining
the amount of a back pay award in a Title VII action
can be as difficult a question of fact as determining the
amount of money damages in a Title VIII action. Hayes,
46 F.B.D. at 53.
An action under Title VIII is not an action at common
law. The statute does not expressly provide for trial by
include reinstatement or hiring of employees, with or without
back pay (payable by the employer, employment agency, or labor
organization, as the case may be, responsible for the unlawful em
ployment practice). # * * ” (Emphasis added.)
District Court’s Opinion and Order
Denying Demand for Jury Trial
6a
jury of any issues in the action. In the absence of a clear
mandate from Congress requiring a jury trial, I find that
the similarities between the remedial provisions of the
Civil Eights Act of 1964 and 1968, in light of the undivided
authority holding that the issue of money damages for
back pay under Title VII of the 1964 Act is not an issue
for the jury, compel the conclusion that the issue of com
pensatory and punitive money damages in an action under
Title VIII of the 1968 Act is likewise an issue for the
court. Accordingly, defendants’ request for a jury trial
must be denied.
Therefore, it is ordered that defendants’ request for a
jury trial be and it hereby is denied.
District Court’s Opinion and Order
Denying Demand for Jury Trial
7a
October 27, 1970
[205] * * #
The Court: All right. Well, this has been a long and
tortuous lawsuit. The action was brought under Title VIII
of the Civil Eights Act of 1968, 42 U.S. Code Section
3601-19 which prohibits discrimination in the rental of
housing. The Plaintiff has claimed that she was discrim
inated against by the Defendants in that they refused to
rent her an apartment because she was a Negro. The
Plaintiff has requested injunctive relief restraining the
rental of the apartment except to her, money damages
for loss that she has sustained due to the alleged dis
crimination and punitive damages in the amount of $1,000
and attorney’s fees.
I granted the Plaintiff’s motion for temporary restrain
ing order on November 17th, 1969 following an extended
hearing, entered a preliminary injunction temporarily
restraining the rental of the apartment pending final deter
mination of the Court. At that time, [206] of the prelimi
nary hearing, I found there was probable cause to believe
there was discrimination in this case and that she could
probably establish that on a final hearing.
The Court had many conferences with the parties trying
to work this out. But to no avail. And at one of those,
on the hearing of April 30th, 1970, the Court with the
consent of the Plaintiff dissolved the preliminary injunc
tion because by that time the Plaintiff was no longer
interested in the apartment. Therefore, the only issue
remaining for this hearing today, yesterday and today,
was for the claim—the final hearing on the question of
District Court’s Oral Findings of
Fact and Conclusions of Law
8a
discrimination and the claim for compensatory and puni
tive damages and attorney’s fees.
It appears that on, from the evidence and the entire
file and both hearings, October 30, 1969 an advertisement
appeared in the Milwaukee Journal, a newspaper published
in this city offering for rent this apartment which was
located at 2529 North Fratney Street, Milwaukee, Wis
consin. And it appears that Plaintiff Julia Rogers is a
black American and Miss Jacqueline Haessly is Caucasian,
and the Defendants are at least white, I don’t know if they
are Caucasian, I never know what these things are, but
they are white. At the time the ad appeared in the paper,
Mrs. Rogers was hospitalized [207] at St. Mary’s Hospital
here in Milwaukee. The ad was seen by her friend, Miss
Haessly, who called the number given and spoke to the
Defendant Mrs. Perez. She asked Mrs. Perez if it would be
possible to see the apartment and Mrs. Perez told her she
could come over if she could get there by 5 :00 p.m. of that
day. Miss Haessly went to see the apartment, arriving
there at 4:30 p.m. on October 30th, 1969. Mrs. Perez is a
cousin of Mrs. Loether and Mrs. Perez took Miss Haessly
to see the upstairs apartment. Miss Haessly told Mrs.
Perez that she was looking* for a place for a friend of hers
who was in the hospital. Mrs. Perez stated that Mr. and
Mrs. Loether were coming over that evening, that they
would have to make the decision as to whether or not Miss
Haessly could have the apartment for Mrs. Rogers. Miss
Haessly stated that she was very interested in obtaining
the apartment and asked Mrs. Perez if she, that is Mrs.
Haessly, should offer a deposit, and would the deposit be
accepted. Mrs. Perez told Miss Haessly that she would
call Mrs. Loether and Mrs. Loether was in fact called and
District Court’s Oral Findings of
Fact and Conclusions of Law
9a
Miss Haessly spoke to Mrs. Loether and to find out whether
or not a deposit would be accepted.
It appears that in that conversation, Mrs. Loether asked
various questions about Mrs. Eogers, such as where she
was hospitalized, how many children in the [208} family,
marital status and financial status, hut in any event, did
not ask about race, and Mrs. Loether then asked to speak
to Mrs. Perez and Mrs. Perez as a result of these conver
sations was authorized by Mrs. Loether to accept a deposit
and to give a receipt. At least she did accept a deposit
and she did give a receipt.
And up until that time, there was no problem. I think
up until that time, there is no question in my mind, that
the apartment was rented, at least effectively rented. Then
Mrs. Loether requested Mrs. Haessly and was given the
hospital room number and she talked to Mrs. Rogers and
then she called Mrs. Rogers at the hospital and discussed
the rental of the apartment at which time Mrs. Rogers
advised Mrs. Loether that she, Mrs. Rogers, was a black
person. Then for the first time the question of race came
up and Mrs. Loether became concerned about the race of
the prospective tenant and, as I see it, the rental of the
apartment was revoked at that stage and it was revoked
because of race, at which time Miss Haessly came back
into the picture and made it clear to Mrs. Loether that
that was against the law, she could not do that. And the
testimony indicates it was about this time that Mr. Loether
came in and also learned that he was told that he had to
rent this apartment to someone that he didn’t want to rent
it to, and that he believed that no one is going to tell him
District Court’s Oral Findings of
Fact and Conclusions of Law
10a
what to do. Well, that is a difficult question. I think that
the law does tell him what to do. And he may find that
very difficult to accept. But it is the law nevertheless. The
deal was closed, it was effectively closed. Mrs. Perez in
effect became the agent of these people to rent the apart
ment. She rented the apartment and then the deal, after
it was closed, when race was mentioned, it was revoked
and then I think that the acts of Miss Haessly in telling
them—I am not saying she didn’t have a right to do this,
but I think her act of telling the Loethers that they had
to rent it probably hardened their position. In short, I
think but for the race of Mrs. Rogers, she would have had
the apartment, because that was the only question these
people were talking about from that time on. They haven’t
discussed anything else really.
I don’t believe it’s necessary for me to go into all the
details—well, I might as well. In any event, Mrs. Loether
who then actually went to see Mrs. Rogers at the hospital,
to see if they could work out something, hut it turned out
that that could not be worked out.
I am also mindful of the fact that Mr. Loether, being a
little stubborn about this, and I do not look [210] upon
the Loethers certainly as the worst and most bigotted
people I have come in contact with in this world, and
that is what makes this case more difficult than some.
Now, we get to the questions—although I am satisfied
that there is only one conclusion I can reach and that is
the apartment was not rented because of the race of Mrs.
Rogers and therefore it’s a violation of the Federal law.
District Court’s Oral Findings of
Fact and Conclusions of Law
11a
Now, we come to the questions of damages. The Loethers
have indicated or did indicate they were willing to rent
this to a black person but they consistently maintained the
position they were not willing to rent it to Mrs. Rogers,
and therefore I think that that—here we are interested
in Mrs. Rogers’ rights, but I recognize the property was
vacant for an extended period of time and the Loethers
have been subjected to a lot of expenses. I do not believe
there have been any compensatory damages proven in this
case or out-of-pocket expenses of that nature, but I do
think that an award of $250 in punitive damages will be
in order. It probably takes the wisdom of a Solomon to
decide these cases fairly, but that is the best I can do.
And I think under all the circumstances, I am not going to
award—I know Milwaukee Legal Services is very interested
in establishing the position that they should [211] be en
titled to attorney’s fees in these matters and maybe they
should in the proper case, but considering everything in
this case, I am just not going to award any attorney’s
fees and costs.
Thank you, gentlemen.
Mr. Tucker: If Your Honor please,—
The Court: You may draft an order in accordance with
this opinion.
Mr. Tucker: I was wondering about the costs. You are
not awarding costs?
The Court: No.
Mr. Tucker: Very well, sir.
* # # # #
District Court’s Oral Findings of
Fact and Conclusions of Law
12a
Judgment of District Court
December 7, 1970
This action came on for trial before the Court, Honorable
John W. Reynolds, United States District Judge, presiding,
and the issues having been duly tried and a decision having
been duly rendered,
It is Ordered and A djudged that the plaintiff, Julia
Rogers, recover of the defendants, LeRoy Loether, Mariane
Loether and Mrs. Anthony Perez $250.00 as punitive dam
ages; further ordered, that compensatory-actual damages,
costs and attorney’s fees are hereby denied.
13a
3ftt ti&t
Unite!) S ta te s Court of Appeals!
Jfor tfje is>ebentf) Circuit
Opinion of Court of Appeals
S eptember T erm , 1971 .January Session, 1972
No. 71-1145
J ulia R ogers,
Plaintiff-Appellee,
v.
A p p e a l from the
United States Dis
trict Court for the
Eastern District of
>. Wisconsin.
Leroy L oether and M a b i a h e
L o e t h e r , his w ife and M rs .
A n thony P erez,
Defendcmts-Appellcmts
No. 69-C-524
J ohn W. R eynolds,
Judge.
A rgued F ebruary 22, 1972 — D ecided September 29, 1972
Before S wygert, Chief Judge, S tevens, Circuit Judge,
and Cam pbell, District Judge.*
S tevens, Circuit Judge. The question presented is
whether appellant was entitled to a jury trial in an action
for compensatory and punitive damages brought under
§ 812 of the Civil Rights Act of 1968, 42 U.S.C. $ 3612.* 1
In her complaint, plaintiff alleged that the three de
fendants had refused to rent her an apartment because of
* Senior District Judge William J. Campbell of the Northern District
of Illinois is sitting by designation.
1 Section 812 provides, in part:
“ (a) The rights granted by sections 803, 804, 805, and 806 may
be enforced by civil actions in appropriate United States district
courts without regard to the amount in controversy and in appro
priate State or local courts of general jurisdiction. A civil action
Opinion of Court of Appeals
her race.1 2 She requested injunctive relief restraining de
fendants from renting the apartment to anyone else,
money damages for her actual losses, punitive damages
of $1,000, and attorney’s fees.
The district court, after an extended hearing, entered
a preliminary injunction. Subsequently, with plaintiff’s
consent, the injunction was dissolved; thereafter only
plaintiff’s claims for compensatory and punitive damages
and attorney’s fees remained. Defendants’ request for a
jury trial of those issues was denied. After trial, the court
found that plaintiff had suffered no actual damages but
assessed punitive damages of $250; the prayer for at
torney’s fees was denied.
On appeal defendants contend that the finding of
discrimination is clearly erroneous, that it was error to
award punitive damages, and that they were entitled to
a jury trial. We shall not describe the evidence of dis
crimination except to note that it was marginal; whichever
way the trial judge had ruled, his determination of that
issue would not have been clearly erroneous.3 We are also
1 (Continued)
shall be commenced within one hundred and eighty days after the
alleged discriminatory housing practice occurred: . . . .* « «
“ (c) The court may grant as relief, as it deems appropriate, any
permanent or temporary injunction, temporary restraining order,
or other order, and may award to the plaintiff actual damages and
not more than $1,000 punitive damages, together with court costs
and reasonable attorney fees in the case of a prevailing plaintiff:
P rovid ed , That the said plaintiff in the opinion of the court is not
financially able to assume said attorney’s fees.” 82 Stat. 88, 42
U.S.C. § 3612.
2 Section 804 of the 1968 act provides, in part:
“As made applicable by section 803 and except as exempted by
sections 803(b) and 807, it shall be unlawful—
“ (a) To refuse to sell or rent after the making of a bona fide
offer, or to refuse to negotiate for the sale or rental of, or otherwise
make unavailable or deny, a dwelling to any person because of race,
color, religion, or national origin.” 82 Stat. 83, 42 U.S.C. § 3604.
3 Defendants contend that their refusal was motivated by the obnoxious
behavior of a white social worker who was helping the plaintiff find
an apartment; they had offered to rent the apartment to any black
tenant other than the plaintiff and offered considerable evidence of
absence of racial prejudice by either themselves or other tenants in the
apartment. On the other hand, plaintiff’s evidence tended to indicate
that negotiations proceeded smoothly until defendants learned that plain
tiff was a Negro.
15a
satisfied that if his finding of discrimination is accepted,
an award of punitive damages was authorized by the
statute notwithstanding the absence of any actual loss
to the plaintiff.4 We shall confine our analysis to the jury
trial issue.
The district court held that a jury trial was not required
by the Seventh Amendment5 6 or by a fair interpretation
of the statute.8
The court rejected the constitutional claim on the
grounds (1) that the cause of action was created by
statute and not recognized at common law; and (2) that
the statutory claim invoked the equitable powers of the
court and the amendment has no application to the re
covery of money damages as an incident to complete
equitable relief. Both propositions are supported by
N.L.R.B. v. Jones <& Laughlin Steel Corp., 301 TJ.S. 1,
48-49.7
The district court also considered the award of damages
in a housing discrimination case arising under the 1968
Act analogous to an award of back pay in an employment
discrimination case under the Civil Rights Act of 1964
and therefore relied on cases holding that there is no right
to a jury trial in such litigation.8 In its opinion the district
court placed no reliance on the argument, sometimes ad
vanced by proponents of civil rights legislation, that al
4 As we read the statute it does not require a finding of actual
damages as a condition to the award of punitive damages. In any event,
in other litigation the federal courts have held that punitive damages
may be awarded without requiring an award of compensatory damages.
See, e.g., W ard m a n-Ju stice M otors, Inc. v. P etrie , 39 F.2d 512, 516 (D.C.
Cir. 1930); B asista v. W eir , 340 F.2d 74, 85-88 (3rd Cir. 1965). The
Basista case involved a suit against policemen for punitive damages
under the Civil Rights Act of 1871, 42 U.S.C. § 1983.
5 “In suits at common law, where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall be preserved,
and no fact tried by a jury, shall be otherwise reexamined in any
Court of the United States, than according to the rules of the
common law.” United States Constitution, Amendment VII.
6 The opinion is reported at 312 F. Supp. 1008.
7 The district court also cited U nited S tates v. Louisiana, which holds
that the Seventh Amendment is “applicable only to actions at law.” 339
U.S. 699, 706.
8 H ayes v. Seaboard C oast L ine R.R., 46 F.R.D. 49 (S.D. Ga. 1970);
C h eatw ood v. South C entral B ell Tel. & Tel. Co., 303 F. Supp. 754 (MJD.
Ala. 1969).
Opinion of Court of Appeals
16a
Opinion of Court of Appeals
lowance of a jury trial might undermine effective enforce
ment of the statute.9
Our study of the issue persuades us that (1) the con
stitutional right to trial by jury applies in at least some
judicial proceedings to enforce rights created by statute;
(2) this action for damages is “ in the nature of a suit
at common law” ;10 (3) the nature of the claim is “ legal”
within the test identified in Ross v. Bernhard, 396 TJ.S.
531, 538; (4) the right to a jury trial may not be denied
on the ground that the damage claim is incidental to a
claim for equitable relief; (5) cases involving an award
of back pay pursuant to the 1964 Act are inapplicable;
and finally (6) in view of our grave doubts as to the con
stitutionality of a denial of the right to a jury trial and
the failure of Congress expressly to indicate that the
traditional procedure for litigating damage claims should
not be followed, the statute should be construed to au
thorize trial by jury. Accordingly, we have decided to
reverse.
I.
The Seventh Amendment preserves the substance of the
right to a jury trial which existed under English common
law when the amendment was adopted.11 It has never been
suggested that the application of the amendment is nar
rowly confined to such common law writs as might be en
forceable in a federal court. On the contrary, since the
bulk of the civil litigation in the federal judicial system
involves the assertion of a federal right derived either
from an act of Congress or the Constitution itself, neces
sarily the principal significance of the Seventh Amend
9 See, e.g., mention of such factors in Note, Jones v. Mayer: The
Thirteenth Amendment and the Federal Anti-Discrimination Laws, 69
Colum. L. Rev. 1019, 1051; Comment, The Right to Jury Trial Under
Title VII of the Civil Rights Act of 1964, 37 U. Chi. L. Rev. 167;
Developments in the Law, Employment Discrimination and Title VII of
the Civil Rights Act of 1964, 84 Harv. L. Rev. 1109, 1264. Among the
cases, see H ayes v. S eaboard C oast L in e R.R., 46 F.R.D. 49, 53 (S.D.
Ga. 1970); L a w ton v. N ightingale, . . . F. Supp........., 41 U.S.L.W. 2041
(D.C. Ohio, June 27, 1972).
10 See N.L.R.B. v. J ones & L aughlin S tee l C orp., 301 U.S. at 48.
11 B altim ore & Carolina L in e, Inc. v. R edm an, 295 U.S. 654, 657.
17a
ment has been in such cases.12 It is perfectly clear that
the fact that a litigant is asserting a statutory right does
not deprive him or his adversary of the protection of the
amendment.
In Parsons v. Bedford, 28 U.S. (3 Pet.) 433, Mr. Justice
Story, writing for the Court, rejected the contention ex
pressed by Mr. Justice M’Lean in dissent that the amend
ment was inapplicable because the claim arose not under
the common law but rather under the statutes of Louisi
ana.13 Mr. Justice Story focused on the character of the
claim as a “ legal right” and eloquently described the
purpose of the amendment:
“ The trial by jury is justly dear to the American
people. It has always been an object of deep interest
and solicitude, and every encroachment upon it has
been watched with great jealousy. The right to such
a trial is, it is believed, incorporated into, and secured
in every state constitution in the union; and it is found
in the constitution of Louisiana. One of the strongest
objections originally taken against the constitution of
the United States, was the want of an express provi
sion securing the right of trial by jury in civil eases.
As soon as the constitution was adopted, this right was
secured by the seventh amendment of the constitution
proposed by Congress; and which received an assent
of the people so general, as to establish its importance
as a fundamental guarantee of the rights and liberties
of the people. This amendment declares, that ‘In suits
at common law, where the value in controversy shall
iz “The right of jury trial in civil cases at common law is a basic
and fundamental feature of our system of federal jurisprudence
which is protected by the Seventh Amendment.” Jacob v. N ew Y ork
C ity , 315 U.S. 752.
13 “It is not strictly a common law proceeding; but a proceeding
under the peculiar system of Louisiana; . . . .
* * *
“In the state of Louisiana, the principles of common law are not
recognized; neither do the principles of the civil law of Rome
furnish the basis of their jurisprudence. They have a system peculiar
to themselves, adopted by their statutes, which embodies much of
the civil law, some of the principles of the common law, and, in a
few instances, the statutory provisions of other states. This system
may be called the civil law of Louisiana, and is peculiar to that
state.” 28 U.S. at 449-450 (Mr. Justice M’Lean dissenting).
Opinion of Court of Appeals
18a
exceed twenty dollars, the right of trial by jury shall
be preserved; and no fact once tried by a jury shall
be otherwise re-examinable in any Court of the United
States, than according to the rules of the common
law.’ At this time there were no states in the union,
the basis of whose jurisprudence was not essentially
that of the common law in its widest meaning; and
probably no states were contemplated, in which it
■would not exist. The phrase ‘common law,’ found in
this clause, is used in contradistinction to equity, and
admiralty, and maritime jurisprudence. . . . By com
mon law, they meant what the constitution denomi
nated in the third article ‘law;’ not merely suits, which
the common law recognized among its old and settled
proceedings, but suits in which legal rights were to
be ascertained and determined, in contradistinction to
those, where equitable rights alone were recognized,
and equitable remedies were administered; or where,
as in the admiralty, a mixture of public law, and of
maritime law and equity was often found in the same
suit. Probably there Avere few, if any, states in the
union, in which some new legal remedies differing from
the old common law forms were not in use; but in
which, however, the trial by jury intervened, and the
general regulations in other respects were according
to the course of the common law. Proceedings in cases
of partition, and of foreign and domestic attachment,
might be cited as examples variously adopted and
modified. In a just sense, the amendment then may
well be construed to embrace all suits, Avhich are not
of equity and admiralty jurisdiction, whatever may
be the peculiar form which they may assume to settle
legal rights.” 28 U.S. at 445-446.
In an unbroken line of cases involving enforcement of
statutory rights, the Supreme Court has treated the right
to a jury trial as a matter too obvious to be doubted.
Thus, in a civil action to recover a statutory penalty for
a violation of the immigration laws, the first Mr. Justice
Harlan, speaking for the Court, said that the “ defendant
was, of course, entitled to have a jury summoned in this
case.” Hepner v. United States, 213 U.S. 103, 115. In an
action for treble damages under $ 7 of the Sherman Act,
Opinion of Court of Appeals
19a
Mr. Justice Holmes, also speaking for a unanimous Court,
considered it plain that “ the statute should not be read
as attempting to authorize liability to be enforced other
wise than through the verdict of a jury in a court of
common law.” Fleitmann v. Welsbach Co., 240 U.S. 27, 29.
In a case alleging violation of the Safety Appliance Act
of 1910, which did not expressly authorize a private
remedy, the Court found an implied right to recover dam
ages in a jury trial “ according to a doctrine of the
common law.” Texas <& Pacific Ry. v. Rigsby, 241 U.S. 38,
39. In a case involving an ambiguous claim for damages,
either as an amount due under a contract or as a statu
tory claim for damages for trademark infringement, the
Court held that the claim was “ wholly legal in its nature
however the complaint is construed” and that the “ con
stitutional right to trial by jury” was applicable to the
claim. Dairy Queen, Inc. v. Woo'd, 369 U.S. 469, 477. And
in an action brought under § 4 of the Clayton Act, the
Court has expressly characterized the right to a jury trial
as “ constitutional.” Beacon Theatres, Inc. v. Westover,
359 U.S. 500, 510.14
N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 48-
49, does not hold—as is sometimes assumed—that no jury
trial is required in a cause of action created by statute
since any such action would have been unknown to the
common law and therefore beyond the reach of the Seventh
Amendment. The Jones <& Laughlin opinion expressly
recognizes that the amendment is applicable not only to a
suit at common law, but also to a judicial proceeding “ in
the nature of such a suit.” The distinction drawn in the
opinion is not between substantive rights derived from
the common law as opposed to those created by statute;
Opinion of Court of Appeals
11 “Since the right to a jury trial is a constitutional one, however,
while no similar requirement protects trial by the court, that
discretion is very narrowly limited and must, wherever possible,
be exercise to preserve jury trial.” Id. at 510.
It is of interest that in the elaborate argument presented to us in
D asho v. Susquehanna Corp., 461 F.2d 11 (7th Cir. 1972), cert, denied,
. . . . U.S. ■...., 40 U.S.L.W. 3617 (June 26, 1972), in which the decision
turned on the constitutional right to a jury trial in an action asserting
rights under § 10(b) of the Securities Act of 1934, none of the defen
dants even suggested that the statutory source of plaintiffs’ claim affected
their right to demand a jury.
20a
it is the difference between a proceeding “ in the nature
of a suit at common law” and a “ statutory proceeding.”35
The Court’s reference to a “ statutory proceeding” rather
than to a judicial proceeding brought to redress a right
created by statute is important. Cases such as Parsons
v. Bedford and Fleitmam/n v. Welsbach Co. were such judi
cial proceedings, and their teaching is not undermined in
the slightest by the Jones & Laughlin holding. The pro
cedure approved by Jones <& Laughlin was, of course,
fundamentally different from a common law trial. It was
administrative rather than judicial and did not invoke
the original jurisdiction of a court in determining factual
issues or fashioning a remedy. The initial case was not
“ tried” in a court of law or equity; it was “ tried” in a
separate proceeding created by statute.* 16
~5 The Court s entire discussion of the Seventh Amendment issue
occupies less than one page of a 27-page opinion. That page includes
pne Court s discussion of both the historic view that no jury is required
if the recovery of damages is an incident to equitable relief (a proposi
tion discussed in part IV of this opinion) and to the statutory proceeding
point. The Court said:
“The Amendment thus preserves the right which existed under
the common law when the Amendment was adopted. Shields
v. Thom as, 18 How. 253, 262; In re W ood , 210 U. S. 246, 258; D im ick
v. S chiedt, 293 U. S. 474, 476; B altim ore & Carolina L in e v. R edm an,
295 U. S. 654, 657. Thus it has no application to cases where recovery
of money damages is an incident to equitable relief even though
damages might have been recovered in an action at law. C lark v.
W ooster , 119 U. S. 322, 325; P ea se v. R a th bu n -J on es E n gin eerin g Co.,
243 U. S. 273, 279. It does not apply where the p roceed in g is not in
the nature of a suit at common law. G u th rie N ational B ank v. G uthrie
173 U. S. 528, 537.
“The instant case is not a suit at common law or in the nature
of such a suit. The p roceed in g is one unknown to the common law.
It is a sta tu tory p roceed in g . Reinstatement of the employee and
payment for time lost are requirements imposed for violation of the
statute and are remedies appropriate to its enforcement. The conten
tion under the Seventh Amendment is without merit.” 301 U.S. at
48-49. (Emphasis added.)
16 That this is what the Court meant when it referred to a “ proceed in g
■ . . not in the nature of a suit at common law” (emphasis added) is
clear from the case which it cites to support the statement, G uthrie
N ational B an k v. G u th rie, 173 U.S. 528. In that case a territorial legis
lature set up a special commission that did not include a jury to hear
certain claims against a municipality. The claims had no legal force,
but the legislature thought it equitable to provide for their payment
in appropriate cases. While a court became involved in approving or
disapproving the recommendations of the commission, it is clear that
the p roceed in g , and not merely the right to relief, was statutory. See
Developments, supra note 9, 84 Harv. L. Rev. at 1266-1268.
Opinion of Court of Appeals
2U
22a
Opinion of Court of Appeals
followed in this case is precisely that which is applicable
to suits at common law which are tried in the federal
judicial system.
Second, the remedy sought, including both compensa
tory and punitive damages, is the relief most typical of
an action at law. If, as the scholars have consistently
indicated, we should look to history for guidance yin de
termining whether or not a claim is of the kind which is
triable to a jury,20 unquestionably, the prayer for dam
ages points to that result.21
Finally, the nature of the substantive right asserted,
although not specifically recognized at common law, is ana
logous to common law rights. An English innkeeper who
refused, without justification, to rent lodgings to a traveler
was apparently liable in an action at law triable to a
jury,22 Eefusing to rent an apartment on the false ground
spttlJ^%Pr0?°ivrtl0n loo£ to history for guidance is wellsettled See 5 Moore s Federal Practice If 38.11 [7]; 9 Wright and Miller,
Federal Practice and Procedure, Civil § 2302; James, Civil Procedure
S (196,5)' Even the dissenters in R oss v. B ernhard agreed, oyb U.b. 531, 543 n.l.
21 Damages, of course, were traditionally awarded in legal actions to
compensate a plaintiff for a breach of a legal duty owed him by defen
dant. That duty may be prescribed by the common law (e .g ., the tort
law of negligence), by contract or by statute. The origin of the duty
does not necessarily determine the nature of the suit. In T exas &
Pacific R y . v. R igsby, 241 U.S. 33, for example, the Court found an
implied remedy for damages for violation of the duty placed upon
defendant by the Safety Appliance Act. The case was tried to a jury.
In concluding that a jury trial was required in a suit seeking damages
under the Labor-Management Reporting and Disclosure Act of 1959 the
Fourth Circuit said in part:
“The right asserted is indeed one created by statute, but we do
not agree that a jury trial is necessarily unavailable because the
suit for damages is one to vindicate a statutory right. There is no
such cleavage between rights existing under common law and rights
established by enacted law, where the relief sought is an award
of damages.” Sim m ons v. A visco , L ocal 713, T ex tile W ork ers U nion
350 F. 2d 1012, 1018 (1965).
22 “Thus innkeepers, who have nowhere been described as public
utilities, have from early times been subject to the obligation to
receive and afford proper entertainment to every one who offers
himself as a guest, if there be sufficient room for him in the inn,
and no good reason for refusing him.” D avies W a reh ou se Co. v.
B row n , 137 F.2d 201, 207 (Emerg. Ct. App. 1943), and cases there
cited. D avies was reversed on other grounds, 321 U.S. 144.
See also Thom as v. P ick H otels C orp., 224 F.2d 664, 666 (10th Cir. 1955)
(common law action against innkeeper for discrimination sounds in tort) •
43 C.J.S. Innkeepers, § 9 at p. 1149.
23a
Opinion of Court of Appeals
that an applicant is an unfit tenant, when race is the real
motivation is a species of defamation; libel and slander,
of course, are common law causes of action. Discrimination
might involve mental distress or other emotional harm,
and the developing common law of torts recognizes a cause
of action for the intentional infliction of emotional harm.23
We thus conclude that a suit for damages for discrimi
nation in the sale or rental of housing facilities is suffi
ciently analogous to a suit at common law to be appro
priately characterized as a “ legal” claim triable to a jury.
III.
Although the full implications of the Supreme Court’s
decision in Ross v. Bernhard, 396 U.S. 531, have yet to be
determined, it is clear that mere analogy to history may
not be sufficient to define the scope of the Seventh Amend
ment. In that case the constitutional right to a jury trial
was held to encompass at least some claims in litigation
which historically had been the exclusive province of
equity. That was a derivative action brought by a share
holder in the name of a corporation. The shareholder’s
standing to litigate was governed by equitable principles;
the corporate claim which he asserted was, at least in part,
legal24
23 At common law, an inkeeper was liable in damages for insulting
or abusing his guests or indulging in any conduct resulting in unneces
sary physical discomfort or distress of mind. See O dom v. East A v en u e
C orp., 178 Misc. 363, 34 N.Y.S. 2d 312 (1942), affirm ed, 37 N.Y.S. 2d 491,
264 App. Div. 985 (complaint seeking damages against innkeeper for
failure to serve guest in hotel restaurant because of race states common
law cause of action). Professors Gregory and Kalven have suggested
that the logic of the common law development of the dignitary tort
might well apply in cases of racial discrimination. Gregory & Kalven,
Cases and M aterials on T orts 961 (2d ed. 1969). In addition, a racial
discrimination suit might also be considered analogous to the so-called
“new tort” for extreme and outrageous conduct which results in emo
tional harm. As to this “new tort,” see E cken rod e v. L ife o f A m erica
Ins. Co., . . . . F.2d . (7th Cir. Aug. 3, 1972, No. 71-1103).
24 “In the instant case we have no doubt that the corporation’s
claim is, at least, in part, a legal one. The relief sought is money
damages. There are allegations in the complaint of a breach of
fiduciary duty, but there are also allegations of ordinary breach
of contract and gross negligence. The corporation, had it sued on
its own behalf, would have been entitled to a jury’s determination,
at a minimum, of its damages against its broker under the brokerage
contract and of its rights against its own directors because of their
negligence. Under these circumstances it is unnecessary to decide
24a
History was unquestionably relevant to the Court’s
analysis of the question whether a jury trial was required
in such a case. But, following the lead set in Beacon and
Dairy Queen, the traditional treatment of the entire litiga
tion was subordinated to the traditional characterization
of particular claims. Thus, the Court had “no doubt” that
a claim for money damages predicated on breach of con
tract or gross negligence was legal in charcter.
This conclusion did not rest, as it might, simply on the
fact that such a claim was enforceable at common law in
England in 1791. Instead, the Court identified history as
only one of three criteria that should be considered in de
termining the “ legal” nature of an issue. The other two
were: “ second, the remedy sought; and, third, the practical
abilities and limitations of juries.”23 Indeed, not only did
the Court identify these two additional criteria; it also
implied, without expressly stating, that history may be
a less reliable guide than the other two.24 25 26 We have al
ready concluded that under an historical analysis a jury
trial is required in the present case; we proceed to con
sider the other two criteria.
Under the second and third criteria identified in Ross v.
Bernhard, the civil rights claim asserted in this case was
certainly appropriate for determination by a jury. The
relief sought was actual damages and punitive damages.
Both the determination of the amount which would ade
quately compensate a litigant for an unliquidated claim
and the punitive element of the award are appropriate for
jury determination. As we have already discussed, juries
historically have been required where the remedy sought
was damages, either compensatory or punitive.
Opinion of Court of Appeal's
24 (Continued)
whether the corporation s other claims are also properly triable
to a jury. D airy Q u een , Inc. v. Wood, 369 U.S. 469 (1962).” 396 U.S.
531, 542-543.
25 “As our cases indicate, the ‘legal’ nature of an issue is determined
by considering, first, the pre-merger custom with reference to such
questions; second, the remedy sought; and, third, the practical
abilities and limitations of juries. O f th ese factors, th e first, requ irin g
ex te n s iv e and p ossib ly abstruse h istorical in qu iry , is ob v iou sly th e
m ost difficult to apply.” 396 U.S. at 538 note 10. (Emphasis added.)
20 In the preceding footnote we have emphasized the language which
so implies.
Opinion of Court of Appeals
The “practical abilities and limitations of juries” obvi
ously present no obstacle to their determination of the
issues presented in these civil rights cases. Typically, the
facts are not complex and decision turns on appraisals of
credibility and motive. Certainly such matters are far
more suitable for jury determination than complicated
commercial issues that routinely arise in derivative and
antitrust litigation. Thus, the third as well as the second
criterion identified in Ross v. Bernhard strongly militates
in favor of recognition of the right to a jury trial in a
case of this kind.
History indicates that a jury trial is required. And if
the Supreme Court adheres to its identification of two
additional criteria in R,oss v. Bernhard, both the damage
relief sought and the character of the issue to be tried
compel the conclusion that the litigants are entitled to a
jury-
IV.
The Jones & Laughlin holding that the Seventh Amend
ment is inapplicable to an N.L.R.B. proceeding terminat
ing in the entry of an order directing reinstatement and
awarding back pay was supported not only by the Court’s
characterization of the proceeding as statutorjq but also
by reference to chancery practice in which damages could
be awarded as an element of complete equitable relief.27
In this case the district court also regarded the relief
authorized by the 1968 Act as primarily equitable and
considered it appropriate to award damages as incident
to such relief.
As the case developed, the defendant’s right to demand
a jury was not determined until after plaintiff’s claim for
equitable relief had been abandoned. Nevertheless, we
share the district court’s view that the right to a jury
trial in this kind of case may properly be tested by the
character of the relief requested in plaintiff’s complaint.
Our decision is not predicated on the special circumstance
that only the damage claims remained when defendant’s
demand for a jury was denied.
27 See quotation from the Court’s opinion in footnote 15, supra.
26a
At common law, a court of equity, in a proceeding
properly before it, would hear and determine any legal
issues incidental to the equitable issues and award any
legal relief which might be incidental to equitable relief.28
Multiplicity of suits could thus be avoided. And if equit
able relief were no longer appropriate, the chancellor
might nevertheless award damages or, in his discretion,
permit the complaint to be amended to state only a legal
claim which would then be triable to a jury.29
Today, however, legal and equitable issues can both be
raised in one “ civil action” under the Federal Rules. Thus,
the avoidance of a multiplicity of suits and the desire
to afford a complete remedy in one proceeding are no
longer justifications for the “ incidental” power of an
equity court to award money damages. The right of the
court, without a jury, to award “ incidental” legal relief
was nevertheless thought secure under the Federal Rules
until the Supreme Court indicated differently in Beacon
Theatres, Inc. v. Westover, 359 U.S. 500, and Dairy Queen,
Inc. v. Wood, 369 U.S. 469.
In Beacon, the Court upheld the petitioner’s right to a
jury trial of his counterclaim for treble damages under the
antitrust laws which he had asserted in response to a com
plaint seeking, in part, equitable relief. In Dairy Queen,
plaintiff sought injunctive relief against use of a trade
mark and an accounting to determine the amount due
under a contract deemed breached. The district court held
that the proceeding was either “ purely equitable” or that
any legal issues were “ incidental” to the equitable issues.
Mr. Justice Black, speaking for the Court, disposed of
the “ incidental” issue quite bluntly: “ [N]o such rule may
be applied in the federal courts.”30 Referring to Beacon,
he wrote:
Opinion of Court of Appeals
28 For purposes of our discussion of this “incidental to equitable
reiier issue, we will assume, without deciding, that compensatory dam
ages comparable to those sought herein might have been recovered
m an 18th century chancery proceeding in which equitable relief appro
priate when the suit was filed later became inappropriate.
f9 See generally 5 Moore’s Federal Practice, f 38.19 [2]; 9 Wright &
Miller, Federal Practice and Procedure, Civil § 2308, at pp. 42-43.
30 369 U.S. at 470. The complete sentence was:
“At the outset, we may dispose of one of the grounds upon which
the trial court acted in striking the demand for trial by jury_
based upon the view that the right to trial by jury may be lost
27a
Opinion of Court of Appeals
“The holding in Beacon Theatres was that where both
legal and equitable issues are presented in a single
ease, ‘only under the most imperative circumstances,
circumstances which in view of the flexible procedures
of the Federal Rules we cannot now anticipate, can
the right to a jury trial of legal issues be lost through
prior determination of equitable claims.’ That holding,
of course, applies whether the trial judge chooses
to characterize the legal issues presented as ‘inciden
tal’ to equitable issues or not. Consequently, in a case
such as this where there cannot even be a contention
of such ‘imperative circumstances,’ Beacon Theatres
requires that any legal issues for which a trial by jury
is timely and properly demanded be submitted to a
jury. There being no question of the timeliness or
correctness of the demand involved here, the sole
question which we must decide is whether the action
now pending before the District Court contains legal
issues.”30 31
It would appear that Beacon and Dairy Queen have man
dated that once any claim for money damages is made,
the legal issue—whether defendant breached a duty owed
plaintiff for which defendant is liable in damages—must
be tried to a jury whether or not there exists an equitable
claim to which the damage claim might once have been
30 (Continued)
as to legal issues where those issues are characterized as ‘incidental’
to equitable issues—for our previous decisions make it plain that
no such rule may be applied in the federal courts.” Ibid.
31 Id. at 472-473. Preceding the quotation in the text, the Court wrote:
. . Rule 38(a) expressly reaffirms that constitutional principle,
declaring: ‘The right of trial by jury as declared by the Seventh
Amendment to the Constitution or as given by a statute of the
United States shall be preserved to the parties inviolate.’ Nonethe
less, after the adoption of the Federal Rules, attempts were made
indirectly to undercut that right by having federal courts in which
cases involving both legal and equitable claims were filed decide
the equitable claim first. The result of this procedure in those cases
in which it was followed was that any issue common to both the
legal and equitable claims was finally determined by the court and
the party seeking trial by jury on the legal claim was deprived
of that right as to these common issues. This procedure finally came
before us in B ea con Theatres, Inc. v. W estov er , . . . " Id. at 472.
28a
considered “ incidental.”32 We therefore conclude that the
^ a iury trial of a claim for damages under the
Civil Eights Act of 1968 may not be denied on the ground
that such damages are merely incidental to the prayer for
injunctive relief.33
Opinion of Court of Appeals
V.
SiDce the district court relied on several cases34 holding
T S i1Cewth<; decision of the Supreme Court in B ea con Theatres,
Inc. v. W estov er , and D a iry Q u een , Inc. v. W ood , it is clear that
there is a right to a jury trial on an issue of damages, whether
they are pleaded independently, or as an incident to a request for
an injunction. 5 Moore’s Federal Practice IT 38.24[ll at p 190 4
See also 1 39.19[2] at p. 172.1.
There is an equitable remedy of restitution which would not, of course,
r’reo el^ c natLd these decisions. In P o r te r v. W a rn er H olding Co., 328
r . vw’ C°urt; recognized that in the government’s suit for an
injunction to enforce the Emergency Price Control Act of 1942, the
government might recover overcharges as restitution. The Court thought
the equitable remedy of restitution appropriate—even though not specified
m the statute—because it was incidental to other equitable relief and
because its use would be appropriate to the enforcement of the statute.
But these were justifications for the awarding of relief concededly
equitable. The statute also permitted a private suit for damages and a
government suit for damages (in the nature of penalties as the Court
described them); in either case the damages might be trebled. The
Court noted. that restitution “differs greatly from the damages and
penalties which may be awarded.” Id. at 402. These remedies were
expressly identified as legal in nature, and hence a jury trial would
have been required.
33 It seems quite clear that the punitive damages in this case cannot
be considered “incidental” to equitable relief. See note 44, infra. See
also P or ter v. W arn er H olding Co., 328 U.S. 395, in which the Supreme
Court viewed the government’s right to sue for damages under the
Emergency Price Control Act of 1942 as an action at law for “penalties.”
Id. at 401-402. See also U nited S tates v. Jepson , 90 F. Supp. 983 (D.N.J.
1950). But cf. U nited S tates v. Shaughnessy, 86 F. Supp. 175 (D. Mass.
1949). The S h au gh nessy court held that the government could recover
statutory penalties along with an injunction under the Housing and
Rent Act of 1947. One basis for the decision, that the damages could
be considered “incidental” to equitable relief, is now obsolete in view
of B ea con and D a iry Q u een . The other basis was that the “damages
sought are in the nature of a penalty when sued for by the United
States, and this right to sue exists only where the tenant himself has
failed to bring his action. It is essentially what would be an old action
in equity and as such, is triable before a court without a jury.” Ibid.
Professor Moore is critical of this decision. 5 Moore’s Federal Practice
IF 38.37 [1] at 307. The court failed to mention either the Supreme Court’s
decision in P o r te r or the general proposition that equity will not avoid
damages penal in character. To the extent that it may have viewed
the suit as one in equity because the government stood in the shoes of
the individual tenant, Ross v. B ernhard, 396 U.S. 531 (discussed in the
text, su p ra ), has clearly eliminated that basis for denying a jury trial.
34 See note 8, supra. See also Johnson v. G eorgia H igh w ay E xpress,
Inc., 417 F.2d 1122, 1125 (5th Cir. 1969); H arkless v. S w ee n y In dep end ent
29a
that in an employee’s suit for reinstatement and back
pay under Title V II of the Civil Eights Act of 1964, the
employer is not entitled to a jury trial, we should briefly
indicate why we think the reasoning of those cases is in
applicable here.
First, insofar as the cases hold that back pay is a legal
remedy which may be recovered as incidental to equitable
relief, we believe they cannot stand in the face of Beacon
and Dairy Queen.
Second, to the extent that they hold, relying on N.L.R.B.
v. Jones <& Laughlin Steel Carp., 301 U.S. 1, 48-49, that
a jury trial is not required because the right vindicated
is a statutory right, we reject the conclusion because it
fails to differentiate between a statutory proceeding and
the enforcement of a statutory right in an ordinary “ civil
action” in the courts.
Third, an acceptable rationale for awarding back pay in
a non-jury judicial proceeding is consistent with our analy
sis of the damage claims asserted in this case. It is not un
reasonable to regard an award of back pay as an appro
priate exercise of a chancellor’s power to require restitu
tion.34 35 Restitution is clearly an equitable remedy. As Pro
fessor Moore put it:
“ In equity, restitution is usually thought of as a
remedy by which defendant is made to disgorge ill-
gotten gains or to restore the status quo, or to ac
complish both objectives.”36
The retention of “ wages” which would have been paid
but for the statutory violation (of improper discharge)
might well be considered “ ill-gotten gains” ; ultimate pay
Opinion of Court of Appeals
34 (Continued)
S chool D istrict, 427 F.2d 319, 324 (5th Cir. 1970), cert, denied, 400 U.S. 991
(no jury trial for back pay claim under 42 U.S.C. § 1983); C u lp epp er v.
R eyn old s M etals Co., 296 F.Supp. 1232, 1239-1243 (N.D. Ga. 1968), rev ersed
on o th er grounds, 421 F.2d 888 (5th Cir. 1970). Cf. O choa v. A m erica n Oil
Co., 338 F.Supp. 914 (S.D. Tex. 1972) (court writes in depth opinion
contrary to these prevailing cases but follows circuit precedent in deny
ing jury trial).
35 This reasoning is applicable to 42 U.S.C. § 1983 as well since that
statute authorizes not only “an action at law” but also a “suit in equity.”
3«5 Moore’s Federal Practice IT 38.24 [2] at p. 190.5.
30a
Opinion of Court of Appeals
ment restores the situation to that which would have
existed had the statute not been violated.37
The payment of compensatory damages in a housing
discrimination case, however, is not a return to plaintiff
of something which defendant illegally obtained or re
tained; it is a payment in money for those losses—tangi
ble and intangible—which plaintiff has suffered by reason
of a breach of duty by defendant. Such damages, as op
posed to rent overcharges,38 unpaid overtime wages,39 or
back pay, cannot properly be termed restitution.40
37Similarly, rent overcharges might be termed “ill-gotten gains.”
Porter v. W a rn er H olding Co., 328 U.S. 395, discussed in note 32, supra.
Attempts have been made to distinguish private actions and actions
intended to correct an offense against the public interest, with the
conclusion that a jury trial need not be afforded in the latter situation.
In addition to the analytic difficulty with this public-private distinction,
see Note, The Right to Jury Trial Under Title VII of the Civil Rights
Act of 1964, 37 U. Chi. L. Rev. 167, 175-176, we fail to see how this
makes any difference in the application of the Seventh Amendment.
Whether a purely private wrong or a wrong somehow associated with
the public interest is to be vindicated, if Congress chooses to permit
its vindication by a “civil action” in the courts, it must respect the
commands of the Seventh Amendment. Suits to collect statutory penalties
—clearly suits brought to redress offenses against the public interest—
have long been considered suits to collect a debt which are triable
to a jury. See H ep n er v. U nited States, 213 U.S. 103, and cases there
cited. See also Fleitm ann v. W elsba ch Co,, 240 U.S. 27, 29- B ea con
Theatres, Inc. v. W esto v er , 359 U.S. 500, 510. This “public interest” con
cept might appropriately be used as a persuasive justification for the
use of the equitable remedy of restitution. See Porter v. W arn er H olding
Co., 328 U.S. at 402. The court in W irtz v. Jones, 340 F.2d 901, 905 (5th
Cir. 1965) referred to the fact that the suit was “to redress a wrong
done to the public good” when it denied a jury trial in a suit by the
government to enjoin violation of the Fair Labor Standards Act and
to compel payment of withheld wages, flowever, the opinion makes
it clear, citing as it does the P o r te r case, that the court was speaking
of the equitable power to order restitution. If the remedy cannot fairly
be characterized as restitution, however, the fact that the recovery
sought is to redress a wrong done to the public good should not affect
the right to a jury trial.
38 P or ter v. W a rn er H olding Co., 328 U.S. 395. See note 32, supra.
39 W irtz v. Jones, 340 F.2d 901 (5th Cir. 1965). See note 37, supra.
If, however, an employee rather than the government sues for back
wages and liquidated damages under the Fair Labor Standards Act, the
action is triable to a jury. See cases cited in Wirtz at p. 904. The
employee’s action is generally viewed as analogous to a common law
action of debt or assumpsit. The liquidated damages available to an
individual plaintiff would not be recoverable in equity as restitution.
In any event, the same recovery available as restitution in equity might
also he available in the common law action for general assumpsit. See
5 Moore’s Federal Practice 11 38.24 [2] at p. 190.5.
40 One commentator’s observation in the Title VII situation might
apply equally well to other instances of restitution;
31a
Whether or not the jury trial issue was correctly re
solved in the back pay cases arising nnder the 1964 Act,40 41
we are satisfied that they are not applicable to the ques
tion presented to us under the 1968 statute.
VI.
As the district court correctly emphasized, there are per
suasive reasons for interpreting § 812 to authorize “ the
court” but not a jury to award damages to an injured
party. When those words are used in connection with the
allowance of fees, they clearly describe the judge rather
than the jury42 Therefore, it is argued that the same words
in the clause providing that the “ court” may award dam
ages must also refer to the trial judge rather than the
jury.
The argument is persuasive but not compelling. The
“ award” may refer to the entry of judgment by the court
just as the amount which a plaintiff may “ recover” in
antitrust litigation is finally determined by the court’s
judgment rather than the verdict of a jury, which is un
mentioned in the Clayton Act but is undeniably required
if demanded by either party.
Other language in the statute implies, without expressly
stating, that a jury’s participation is appropriate. The
statutory reference to “ damages” and also to “punitive
damages” would normally contemplate a jury verdict as
an element of the judicial process leading up to the final
Opinion of Court of Appeals
40 (Continued)
“However, it is important to note that the highly subjective ques
tions of damages, which are often felt to be particularly appropriate
for jury determination, are not present in Title VII cases. Back
pay awards usually involve a definite amount for a definite period
of time, and the total amount in controversy often can be stipulated
by the parties. Most problems in determining the amount of a back
pay award would be ones of computation rather than subjective
evaluation.” Comment, The Right to Jury Trial Under Title VII
of the Civil Rights Act of 1964, 37 U. Chi. L. Rev. 167, 173 (1969).
41 We note the conflicting views expressed by Judge Noel in O choa
v. A m erica n Oil Co., 338 F.Supp. 914 (S.D. Tex. 1972), but we, of course,
express no opinion on the issue since it is not before us.
42 The proviso to subparagraph (c) states that the prevailing plaintiff
shall be awarded fees if “said plaintiff in the opinion of the court
is not financially able to assume said attorneys’ fees.” 42 U.S.C. § 3612(c).
Opinion of Court of Appeals
award.43 Certainly it is highly unusual for a federal statute
to authorize a court to impose punishment, even if
limited to $1,000, ■without according the defendant the
right to a jury trial.44
The term “civil action” in legislation enacted since the
merger of law and equity in 1938 is comparable to the
words “action at law” or “ suit in equity” which were used
previously.45 The words “action at law” implied a right
to jury trial. The words “ civil action,” as Bea-con. Dairy
Queen and Boss make clear, do not in anv sense imply
that there is no right to a jury trial—a “ civil action” as
serting a legal claim is triable to a jury.
The legislative history of the 1968 act is silent on the
question. There is no evidence that the proponents of the
legislation expressed fear that the right to a jurv trial
would undermine the statute’s effectiveness, or conversely,
that opponents accepted any compromise in reliance on
an assurance that juries could be demanded. The policv
considerations which prompted the legislation probably
favor a denial of the right; on the other hand, the more
basic constitutional considerations which surround the
43 Title VII of the Civil Rights Act of 1964, see 42 U.S.C. § 2000e-5(g),
provides for back pay but not for “damages” or “punitive damages.”
4t A court of equity would not enforce a penalty or forfeiture absent
a specific statutory authorization. See L iv in gston v. W ood w orth , 56 U.S.
(15 How.) ,546, 559-560; S teven s v. Gladding, 58 U.S. (17 How.) 447,
453-454. (Except in admiralty, forfeiture cases are triable to a jury’
C. H en d ry Co. v. M oore , 318 U.S. 133, 153; 5 Moore’s Federal Practice
38.12 [7], subdivision 1 at p. 135.) Cf. D ecora tiv e S ton e Co. v. B uilding
Trades C ouncil o f W es tch es te r C ou nty , 23 F.2d 426 (2d Cir. 1928),
cert denied, 277 U.S. 594. Furthermore, it appears that the few cases
which have held that a court may decide if punitive damages shall be
awarded have all been patent cases in which a jury trial was available
on the issues of infringement and actual damages and the court merely
decided, pursuant to unequivocal statutory language, whether the dam
ages should be increased (up to a maximum of three times the actual
damages). See S eym ou r v. M cC orm ick , 57 U.S. 480, 488-489; S w ofiord
v. B . & W ., Inc., 336 F.2d 406 (5th Cir. 1964), cert, d enied , 379 U.S. 962;
K en n ed y v. Lasko Co., 414 F'.2d 1249 (3rd Cir. 1969). Those cases indicate
that the jury shall determine the issue of actual damages; the latter
two cases find that B ea con and D a iry Q u een compel a jury trial on the
actual damage question. It is one thing to permit a judge to increase
the damage award after a jury trial in which a statutory violation has
been found and actual damages awarded (the trial judge’s right to set
the amount of a fine in a criminal case a fter a jury trial on the factual
issues is somewhat analogous); it is quite another thing to permit the
imposition of punishment when there is no jury trial as an element
of the judicial process leading up to that result.
45 See 42 U.S.C. § 1983.
34a
Judgment of Court of Appeals
September 29,1972
Before:
Hon. Luther M. Swygert, Chief Judge
H on. John Paul Stevens, Circuit Judge
H on. W illiam J. Campbell, Senior District Judge
This cause came on to be heard on the transcript of the
record from the United States District Court for the
Eastern District of Wisconsin and was argued by counsel.
On consideration whereof, it is ordered and adjudged by
this court that the judgment of the said District Court in
this cause appealed from be, and the same is hereby,
Reversed, with costs, and this cause be and the same is
hereby Remanded to the said District Court for further
proceedings, in accordance with the opinion of this Court
filed this day.
MEIIEN PRESS INC. — N. Y. C. 219