Marshall v Holmes Brief of Appellants

    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