The Age Discrimination in Employment Act of 1967 (ADEA or Act)
was amended in 1974 to extend to federal employees the Act's
protection of older workers against discrimination in the workplace
based on age. Section 15(c) of the Act provides that any aggrieved
federal employee "may bring a civil action in any Federal district
court of competent jurisdiction for such legal or equitable relief
as will effectuate the purposes" of the Act. Respondent federal
employee brought suit in Federal District Court against the
Secretary of the Navy under § 15(c), alleging violations of the Act
and demanding a jury trial. The District Court ruled, over the
Secretary's objection, that respondent was entitled to a jury
trial. On an interlocutory appeal, the Court of Appeals
affirmed.
Held: Respondent was not entitled to a jury trial. Pp.
453 U. S.
160-169.
(a) Where Congress waives the Government's immunity from suit,
as it has in the ADEA, the plaintiff has a right to a trial by jury
only where Congress has affirmatively and unambiguously granted
that right by statute. Pp.
453 U. S. 160-161.
(b) Congress has not done so here. Neither the provision in §
15(c) for federal employer cases to be brought in federal district
courts, rather than the Court of Claims, nor the use of the word
"legal" in that section, evinces a congressional intent that ADEA
plaintiffs who proceed to trial against the Federal Government may
do so before a jury.
Lorillard v. Pons, 434 U.
S. 575, distinguished. Section 15(c) contrasts with §
7(c) of the Act, which expressly provides for jury trials in
actions against private employers and state and local governments.
Moreover, in extending the Act to cover federal employees, Congress
based the provision not on the Fair Labor Standards Act, as was §
7, but on Title VII of the Civil Rights Act of 1964, where, unlike
the FLSA, there was no right to trial by jury. Pp.
453 U. S.
162-165.
(c) The legislative history no more supports a holding that
respondent has a right to a jury trial than does the statutory
language itself. Pp.
453 U. S.
165-168.
202 U.S.App.D.C. 59, 628 F.2d 59, reversed.
STEWART, J., delivered the opinion of the Court, in which
BURGER, C.J., and WHITE, POWELL, and REHNQUIST, JJ., joined.
BRENNAN, J., filed
Page 453 U. S. 157
a dissenting opinion, in which MARSHALL, BLACKMUN, and STEVENS,
JJ., joined,
post, p.
453 U. S.
169.
JUSTICE STEWART delivered the opinion of the Court.
The question presented by this case is whether a plaintiff in an
action against the United States under § 15(c) of the Age
Discrimination in Employment Act is entitled to trial by jury.
I
The 1974 amendments to the Age Discrimination in Employment Act
of 1967 [
Footnote 1] added a
new § 15, [
Footnote 2] which
brought the Federal Government within the scope of the Act for the
first time, Section 15(a) [
Footnote
3] prohibits the Federal Government from discrimination based
on age in most of its civilian employment decisions concerning
persons over 40 years of age. Section 15(b) [
Footnote 4] provides that enforcement of §
15(a)
Page 453 U. S. 158
in most agencies, including military departments, is the
responsibility of the Equal Employment Opportunity Commission. The
Commission is directed to "issue such rules, regulations, orders
and instructions as [the Commission] deems necessary and
appropriate" to carry out that responsibility. Section 15(c)
[
Footnote 5] provides:
"Any person aggrieved may bring a civil action in any Federal
district court of competent jurisdiction for such legal or
equitable relief as will effectuate the purposes of this Act."
88 Stat. 75.
In 1978, respondent Alice Nakshian, who was then a 62-year-old
civilian employee of the United States Department of t.he Navy,
brought an age discrimination suit against the Navy under § 15(c).
She requested a jury trial. The defendant moved to strike the
request, and the District Court denied the motion.
Nakshian v.
Claytor, 481 F.
Supp. 159 (DC). The court stressed that the "legal or equitable
relief" language used by Congress to establish a right to sue the
Federal Government for age discrimination was identical to the
language Congress had previously used in § 7(c) of the Act
[
Footnote 6] to authorize
private ADEA suits. That language,
Page 453 U. S. 159
the District Court said, was an important basis for this Court's
holding in
Lorillard v. Pons, 434 U.
S. 575, that § 7(c) permits jury trials in private suits
under the Act. The court stated that, "if Congress had intended its
consent to ADEA suits [against the Government] to be limited to
non-jury trials, it could have easily said as much." 481 F. Supp.
at 161. Recognizing that, as a result of 1978 amendments to the
ADEA, § 7(c)(2) expressly confers a right to jury trial, whereas no
such language exists in § 15, [
Footnote 7] 481 F. Supp. at 161, the court found no
"explicit refusal" by Congress to grant the right to jury trial
against the Government, and noted that the legislative history of
the 1978 amendments spoke in general terms about a right to jury
trial in ADEA suits.
On interlocutory appeal under 28 U.S.C. § 1292(b), a divided
panel of the Court of Appeals affirmed.
Nakshian v.
Claytor, 202 U.S.App.D.C. 59, 628 F.2d 59. The appellate court
rejected the Secretary's argument that a plaintiff is entitled to
trial by jury in a suit against the United States only when such a
trial has been expressly authorized. Instead, the court viewed the
question as "an ordinary question of statutory interpretation," and
found sufficient evidence of legislative intent to provide for
trial by jury in cases such as this. Noting that Congress had
conferred jurisdiction over ADEA suits upon the federal district
courts, rather than the Court of Claims, the Court of Appeals
concluded that, "
absent a provision as to the method of trial,
a grant of jurisdiction to a district court as a court of law
carries with it a right of jury trial.'" Id. at 63, 628
F.2d at 63 (quoting 5 J. Moore, J. Lucas, & J. Wicker, Moore's
Federal Practice � 38.32 [2], p. 38-236 (1979) (footnotes
omitted)). The Court of Appeals also adopted the District Court's
view of the "legal . . . relief" language in § 15(c). Further, it
was the court's view that the existence of the explicit statutory
right to jury trial in suits against private employers does
not
Page 453 U. S. 160
negate the existence of a right to jury trial in suits against
the Government, since the provision for jury trials in private
suits was added only to resolve a conflict in the Courts of Appeals
on that issue and to confirm the correctness of this Court's
decision in the
Lorillard case.
We granted certiorari to consider the issue presented.
Sub
nom. Hildalgo v. Nakshian, 449 U.S. 1009.
II
It has long been settled that the Seventh Amendment right to
trial by jury does not apply in actions against the Federal
Government. In
Galloway v. United States, 319 U.
S. 372,
319 U. S.
388-389, the Court observed (footnotes omitted):
"The suit is one to enforce a monetary claim against the United
States. It hardly can be maintained that, under the common law in
1791, jury trial was a matter of right for persons asserting claims
against the sovereign. Whatever force the Amendment has therefore
is derived because Congress, in the legislation cited, has made it
applicable."
See also Glidden Co. v. Zdanok, 370 U.
S. 530,
370 U. S. 572;
McElrath v. United States, 102 U.
S. 426,
102 U. S. 440.
Moreover, the Court has recognized the general principle that
"the United States, as sovereign, 'is immune from suit save as
it consents to be sued . . . , and the terms of its consent to be
sued in any court define that court's jurisdiction to entertain the
suit.'"
United States v. Testan, 424 U.
S. 392,
424 U. S. 399,
quoting
United States v. Sherwood, 312 U.
S. 584,
312 U. S. 586.
See also United States v. Mitchell, 445 U.
S. 535,
445 U. S. 538.
Thus, if Congress waives the Government's immunity from suit, as it
has in the ADEA, 29 U.S.C. § 633a (1976 ed. and Supp. III), the
plaintiff has a right to a trial by jury only where that right is
one of "the terms of [the Government's] consent to be sued."
Testan, supra, at
424 U. S. 399. Like a waiver of immunity itself, which
must be "unequivocally expressed,"
United States v.
Mitchell,
Page 453 U. S. 161
supra, at
445 U. S. 538,
quoting
United States v. King, 395 U. S.
1,
395 U. S. 4,
"this Court has long decided that limitations and conditions
upon which the Government consents to be sued must be strictly
observed, and exceptions thereto are not to be implied."
Soriano v. United States, 352 U.
S. 270,
352 U. S. 276.
See also United States v. Kubrick, 444 U.
S. 111,
444 U. S.
117-118;
United States v. Sherwood, supra, at
312 U. S.
590-591.
When Congress has waived the sovereign immunity of the United
States, it has almost always conditioned that waiver upon a
plaintiff's relinquishing any claim to a jury trial. Jury trials,
for example, have not been made available in the Court of Claims
for the broad range of cases within its jurisdiction under 28
U.S.C. § 1491 --
i.e., all claims against the United
States
"founded either upon the Constitution, or any Act of Congress, .
. . or upon any express or implied contract with the United States,
or for liquidated or unliquidated damages in cases not sounding in
tort."
See Glidden Co., supra. And there is no jury trial
right in this same range of cases when the federal district courts
have concurrent jurisdiction.
See 28 U.S.C. §§ 1346 (a)(2)
and 2402. Finally, in tort actions against the United States,
see 28 U.S.C. § 1346 (b), Congress has similarly provided
that trials shall be to the court without a jury. 28 U.S.C. § 2402.
[
Footnote 8]
Page 453 U. S. 162
The appropriate inquiry, therefore, is whether Congress clearly
and unequivocally departed from its usual practice in this area,
and granted a right to trial by jury when it amended the ADEA.
[
Footnote 9]
A
Section 15 of the ADEA, 29 U.S.C. § 633a (1976 ed. and Supp.
III), prohibits age discrimination in federal employment. Section
15(c) provides the means for judicial enforcement of this
guarantee: any person aggrieved "may bring a civil action in any
Federal district court of competent jurisdiction for such legal or
equitable relief as will effectuate the purposes" of the Act.
Section 15 contrasts with § 7(c) of the Act, 29 U.S.C. § 626(c)
(1976 ed., Supp. III), which authorizes civil actions against
private employers and state and local governments, and which
expressly provides for jury trials. Congress accordingly
demonstrated that it knew how to provide a statutory right to a
jury trial when it wished to do so elsewhere in the very
"legislation cited,"
Galloway, supra, at
319 U. S. 389.
But in § 15, it failed explicitly to do so. [
Footnote 10]
See
Page 453 U. S. 163
Fedorenko v. United States, 449 U.
S. 490,
449 U. S.
512-513;
cf. Monroe v. Standard Oil Co.,
452 U. S. 549,
452 U. S.
561.
The respondent infers statutory intent from the language in §
15(c) providing for the award of "legal or equitable relief,"
relying on
Lorillard v. Pons, 434 U.
S. 575, for the proposition that the authorization of
"legal" relief supports a statutory jury trial right. But
Lorillard has no application in this context. In the first
place, the word "legal" cannot be deemed to be what the
Lorillard Court described as "a term of art" with respect
to the availability of jury trials in cases where the defendant is
the Federal Government. In
Lorillard, the authorization
for the award of "legal" relief was significant largely because of
the presence of a constitutional question. The Court observed that,
where legal relief is granted in litigation between private
parties, the Seventh Amendment guarantees the right to a jury, and
reasoned that Congress must have been aware of the significance of
the word "legal" in that context. But the Seventh Amendment has no
application in actions at law against the Government, as Congress
and this Court have always recognized. Thus, no particular
significance can be attributed to the word "legal" in § 15(c).
Moreover, another basis of the decision in
Lorillard
was that, when Congress chose to incorporate the enforcement scheme
of the Fair Labor Standards Act (FLSA) into § 7 of the ADEA, it
adopted in ADEA the FLSA practice of making jury trials available.
434 U.S. . at
434 U. S.
580-583. Again, that reasoning has no relevance to this
case, because Congress did not incorporate the FLSA enforcement
scheme into § 15.
See 29 U.S.C. § 633a(f) (1976 ed. .
Supp. III). Rather, 15(a) and (b) are patterned after § 717 (a) and
(b) of the Civil Rights Act of 1964, as amended in March, 1972.
See Pub.L. 92-261, 86 Stat. 111-112, which extend the
protection of
Page 453 U. S. 164
Title VII to federal employees. 42 U.S.C. §§ 2000e-16(a) and
(b).
See 118 Cong.Rec. 24397(1972) (remarks of Sen.
Bentsen, principal sponsor of § 15 of ADEA). And, of course, in
contrast to the FLSA, [
Footnote
11] there is no right to trial by jury in cases arising under
Title VII.
See Lorillard, supra, at
434 U. S.
583-584;
Great American Federal Savings & Loan
Assn. v. Novotny, 442 U. S. 366,
442 U. S. 375,
and n.19.
The respondent also infers a right to trial by jury from the
fact that Congress conferred jurisdiction over ADEA suits upon the
federal district courts, where jury trials are ordinarily
available, rather than upon the Court of Claims, where they are
not. Not only is there little logical support for this inference,
but the legislative history offers no support for it either.
[
Footnote 12] Moreover, Rule
38(a) of the Federal Rules of Civil Procedure provides that the
right to a jury trial
"as declared by the Seventh Amendment to the Constitution or as
given
Page 453 U. S. 165
by statute of the United States shall be preserved to
the parties inviolate."
(Emphasis added). This language hardly states a general rule
that jury trials are to be presumed whenever Congress provides for
cases to be brought in federal district courts. [
Footnote 13] Indeed, Rule 38(a) requires an
affirmative statutory grant of the right where, as in this case,
the Seventh Amendment does not apply.
B
As already indicated, it is unnecessary to go beyond the
language of the statute itself to conclude that Congress did not
intend to confer a right to trial by jury on ADEA plaintiffs
proceeding against the Federal Government. But it is helpful
briefly to explore the legislative history, if only to demonstrate
that it no more supports the holding of the Court of Appeals than
does the statutory language itself.
Page 453 U. S. 166
The respondent cannot point to a single reference in the
legislative history to the subject of jury trials in cases brought
against the Federal Government. There is none. And there is nothing
to indicate that Congress did not mean what it plainly indicated
when it expressly provided for jury trials in § 7(c) cases but not
in § 15(c) cases. In fact, the few inferences that may be drawn
from the legislative history are inconsistent with the respondent's
position.
The ADEA originally applied only to actions against private
employers. Section 7 incorporated the enforcement scheme used in
employee actions against private employers under the FLSA. In
Lorillard, the Court found that the incorporation of the
FLSA scheme into § 7 indicated that the FLSA right to trial by jury
should also be incorporated. The
Lorillard holding was
codified in 1978 when § 7(c) was amended to provide expressly for
jury trials in actions brought under that section.
Congress expanded the scope of ADEA in 1974 to include state and
local government and Federal Government employers. State and local
governments were added as potential defendants by a simple
expansion of the term "employer" in the ADEA. The existing
substantive and procedural provisions of the Act, including § 7(c),
were thereby extended to cover state and local government
employees. In contrast, Congress added an entirely new section, §
15, to address the problems of age discrimination in federal
employment. Here Congress deliberately prescribed a distinct
statutory scheme applicable only to the federal sector, [
Footnote 14] and one based not
on
Page 453 U. S. 167
the FLSA but, as already indicated, on Title VII, [
Footnote 15] here, unlike the FLSA,
there was no right to trial by jury. [
Footnote 16]
Finally, in a 1978 amendment to ADEA, Congress declined an
opportunity to extend a right to trial by jury to federal employee
plaintiffs. Before the announcement of
Lorillard, the
Senate, but not the House, had included an amendment to § 7(c) to
provide for jury trials in a pending bill to revise ADEA. After
Lorillard, the Conference Committee recommended and
Congress enacted the present § 7(c)(2), closely resembling the jury
trial amendment passed by the Senate. But the Conference did not
recommend, and Congress did not enact, any corresponding amendment
of § 15(c) to provide for jury trials in cases against the Federal
Government. Indeed,
Page 453 U. S. 168
the conferees recommended and Congress enacted a new § 15(f), 29
U.S.C. § 633a(f) (1976 ed., Supp. III) providing that federal
personnel actions covered by § 15 are not subject to any other
section of ADEA, with one exception not relevant here.
See
H.R.Conf.Rep. No. 95-950, p. 11 (1978).
See also H.R.Rep.
No. 95-527, p. 11 (1977) ("Section 15 . . . is complete in
itself"). Since the new subsection (f) clearly emphasized that § 15
was self-contained and unaffected by other sections, including
those governing procedures applicable in actions against private
employers, Judge Tamm, dissenting in the Court of Appeals, was
surely correct when he concluded that,
"[i]n amending both sections as it did, Congress could not have
overlooked the need to amend [§ 15(c)] to allow jury trials for
government employees if it had so wished."
202 U.S.App.D.C. at 69, n. 8, 628 F.2d at 69, n. 8.
C
But even if the legislative history were ambiguous, that would
not affect the proper resolution of this case, because the
plaintiff in an action against the United States has a right to
trial by jury only where Congress has affirmatively and
unambiguously granted that right by statute. Congress has most
obviously not done so here. Neither the provision for federal
employer cases to be brought in district courts rather than the
Court of Claims, nor the use of the word "legal" in that section,
evinces a congressional intent that ADEA plaintiffs who proceed to
trial against the Federal Government may do so before a jury.
Congress expressly provided for jury trials in the section of the
Act applicable to private sector employers, and to state and local
governmental entities. It did not do so in the section applicable
to the Federal Government as an employer, and indeed, patterned
that section after provisions in another Act under which there is
no right to trial by jury. The conclusion is inescapable that
Congress did not depart from its normal practice of not providing
a
Page 453 U. S. 169
right to trial by jury when it waived the sovereign immunity of
the United States.
For these reasons, the judgment of the Court of Appeals is
reversed.
It is so ordered.
[
Footnote 1]
81 Stat. 602, as amended, 29 U.S.C. §§ 621-634 (1976 ed. and
Supp. III) .
[
Footnote 2]
29 U.S.C. § 633a.
[
Footnote 3]
Section 15(a), as amended in 1978, provides in pertinent
part:
"All personnel actions affecting employees or applicants for
employment who are at least 40 years of age . . . in military
departments [and other enumerated Government agencies] shall be
made free from any discrimination based on age."
29 U.S.C. § 633a(a) (1976 ed., Supp. III).
[
Footnote 4]
29 U.S.C. § 633a(b) (1976 ed. and Supp. III).
[
Footnote 5]
29 U.S.C. § 633a(c).
[
Footnote 6]
Section 7(c), as amended in 1978 and as set forth in 29 U.S.C. §
626(c) (1976 ed., Supp. III), provides:
"(1) Any person aggrieved may bring a civil action in any court
of competent jurisdiction for such legal or equitable relief as
will effectuate the purposes of this chapter;
Provided,
That the right of any person to bring such action shall terminate
upon the commencement of an action by the Commission to enforce the
right of such employee under this chapter."
"(2) In an action brought under paragraph (1), a person shall be
entitled to a trial by jury of any issue of fact in any such action
for recovery of amounts owing as a result of a violation of this
chapter, regardless of whether equitable relief is sought by any
party in such action."
With the exception of the express right to jury trial conferred
by § 7(c)(2) and of the provision in § 7(c)(1), § 7(c) is identical
to § 15(c). Section 7(c)(2) was added by the 1978 amendments of the
ADEA.
[
Footnote 7]
See n 6,
supra.
[
Footnote 8]
It is not difficult to appreciate Congress' reluctance to
provide for jury trials against the United States. When fashioning
a narrow exception to permit jury trials in tax refund cases in
federal district courts under 28 U.S.C. § 1346(a)(1), in
legislation that Congress recognized established a "wholly new
precedent," H.R.Rep. No. 659, 83d Cong., 1st Sess., 3 (1953),
Congress expressed its concern that juries "might tend to be overly
generous because of the virtually unlimited ability of the
Government to pay the verdict."
Ibid. Indeed, because of
their firm opposition to breaking with precedent, the House
conferees took almost a year before acceding to passage of the bill
containing that exception. Only after much debate, and after the
conferees became convinced that there would be no danger of
excessive verdicts as a result of jury trials in that unique
context -- because recoveries would be limited to the amount of
taxes illegally or erroneously collected -- was the bill passed.
See H.R.Conf.Rep. No. 2276, 83d Cong., 2d Sess., 2
(1954).
[
Footnote 9]
The respondent argues that the strong presumption against the
waiver of sovereign immunity has no relevance to the question of a
right to trial by jury. But it is clear that the doctrine of
sovereign immunity and its attendant presumptions must inform the
Court's decision in this case. The reason that the Seventh
Amendment presumption in favor of jury trials does not apply in
actions at law against the United States is that the United States
is immune from suit, and the Seventh Amendment right to a jury
trial, therefore, never existed with respect to a suit against the
United States. Since there is no generally applicable jury trial
right that attaches when the United States consents to suit, the
accepted principles of sovereign immunity require that a jury trial
right be clearly provided in the legislation creating the cause of
action.
[
Footnote 10]
The dissenters contend that this argument can only be made at
the expense of overruling the
Lorillard decision. But, as
hereafter indicated,
Lorillard has little relevance here.
And, of course, the position taken in the dissent totally loses its
force in view of the 1978 amendments to the ADEA,
see
infra at
453 U. S.
167-168, where Congress expressly extended a jury trial
right in § 7(c), but not in § 15(c).
[
Footnote 11]
The decisions cited by the Court in
Lorillard, 434 U.S.
at
434 U. S. 580,
n. 7, for the proposition that there is a right to a jury trial in
FLSA actions all appear to have rested on the Seventh Amendment,
not the FLSA itself. Thus, for the same reason that the Seventh
Amendment does not apply in suits against the Federal Government,
there would be no comparable right to trial by jury in FLSA suits
against the Federal Government under 29 U.S.C. § 216(b).
Accordingly, even if Congress intended to incorporate the FLSA
enforcement scheme into § 15 of the ADEA, there would be no basis
for inferring a right to a jury trial in ADEA cases where the
employer is the Federal Government.
[
Footnote 12]
There are a number of reasons why Congress may have chosen to
limit jurisdiction to the federal district courts. They, along with
state courts, already had jurisdiction of private sector ADEA cases
under § 7(c). Congress may have decided to follow the same course
in federal sector cases, but confined jurisdiction to federal
district courts so that there would not be trials in state courts
of actions against the Federal Government. Exclusive district court
jurisdiction is also consistent with the jurisdictional references
in Title VII of the Civil Rights Act of 1964.
See 42
U.S.C. §§ 2000e-5(f)(3) and 2000e-16(c). Congress may also have
believed it appropriate to have trials in federal district courts
because they, unlike the Court of Claims, are accustomed to
awarding equitable relief of the sort authorized by § 15(c).
[
Footnote 13]
The respondent relies on
United States v. Pfitsch,
256 U. S. 547. But
the language relied on in
Pfitsch is dicta, since the
parties in that case agreed to trial by the court sitting without a
jury,
id. at
256 U. S. 549,
and the jury trial issue was therefore not directly before the
Court. In any event,
Pfitsch is plainly distinguishable.
There, Congress specifically rejected a proposal, "presented to its
attention in a most precise form,"
id. at
256 U. S. 552,
to confer concurrent jurisdiction on the district courts and Court
of Claims under the Tucker Act, and instead conferred a new and
exclusive jurisdiction on the district courts. Given the particular
legislative history in that case, the Court found it "difficult to
conceive of any rational ground" for conferring exclusive
jurisdiction on the district courts except to provide for jury
trials.
Ibid. That, of course, is not true here.
See n 12,
supra. Moreover,
Pfitsch arose before Rule 38(a)
of the Federal Rules of Civil Procedure. Rule 38(a) made it clear
that there is no general right to trial to jury in civil actions in
federal district courts. The Rule establishes a mechanism for
determining when there is such a right --
i.e., when the
Seventh Amendment applies, or if not, when a statute provides
it.
The respondent also relies on
Law v. United States,
266 U. S. 494. The
statement in
Law regarding jury trials, which in fact does
no more than cite
Pfitsch, is also dictum, and of
virtually no relevance in this context.
[
Footnote 14]
A bill introduced by Senator Bentsen on March 9, 1972, S. 3318,
92d Cong., 2d Sess., 118 Cong.Rec. 7745 (1972), represented the
first attempt to prohibit age discrimination in federal employment.
This bill would have simply amended the definition of "employer" in
the Act to include the Federal Government, as well as state and
local governments. The result would presumably have been to bring
federal employees under the procedural provisions in § 7. But
Senator Bentsen subsequently submitted a revised version of his
bill in the form of an amendment to pending FLSA amendments.
See 118 Cong.Rec. 15894 (1972). In contrast to Senator
Bentsen's original bill, this amendment to the ADEA proposed the
expansion of the definition of the term "employer" only with
respect to state and local governments; ADEA coverage of federal
employees was to be accomplished by the addition of an entirely new
and separate section to the Act (presently § 15). Senator Bentsen's
amendment was included in the FLSA bill reported by the Committee
on Labor and Public Welfare, S.Rep. No. 92-842, pp. 93-94 (1972),
and it remained in this form when the bill was enacted into law in
1974.
[
Footnote 15]
Sections 15(a) and 15(b) of the ADEA, as offered by Senator
Bentsen and as finally enacted, are patterned directly after §§ 717
(a) and(b) of the Civil Rights Act of 1964, as amended in March,
1972,
see Pub.L. 92-261, 86 Stat. 111-112, which extend
Title VII protections to federal employees. Senator Bentsen
acknowledged that "[t]he measures used to protect Federal employees
[from age discrimination] would be substantially similar to those
incorporated" in recently enacted amendments to Title VII. 118
Cong.Rec. 24397 (1972).
[
Footnote 16]
In fact, during floor consideration of the 1972 amendments to
Title VII, the Senate rejected an amendment that would have
conferred a statutory right to trial by jury in Title VII cases.
Id. at 4919-4920. Senator Javits, in opposing the
amendment, observed that it would impose "what would be a special
requirement in these cases, as distinguished from the
antidiscrimination field generally, of jury trial."
Id. at
4920.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL, JUSTICE BLACKMUN,
and JUSTICE STEVENS join, dissenting.
In
Lorillard v. Pons, 434 U. S. 575
(1978), this Court held that an employee who brings an action
against his private employer under § 7(c) of the Age Discrimination
in Employment Act (ADEA or Act), 29 U.S.C. § 626(c), is entitled to
trial by jury. The question presented in this case is whether a
plaintiff has a right to trial by jury in an action against the
Federal Government under § 15(c) of the ADEA, 29 U.S.C. § 633a(c).
The Court today holds that a jury trial is not available in such
actions. Because I believe that Congress unmistakably manifested
its intention to accord a jury trial right, I dissent.
I
Respondent brought this lawsuit in the United States District
Court for the District of Columbia against the Secretary of the
Navy, alleging violations of the ADEA. She demanded a jury trial,
and the Secretary moved to strike that demand. The District Court
denied the motion to strike, but certified for interlocutory appeal
the question whether a jury trial is available in an ADEA action
against the Federal Government.
See 28 U.S.C. § 1292(b).
The Court of Appeals granted the Secretary's petition for
interlocutory review and affirmed the ruling of the District Court
that respondent is entitled to a jury trial.
Nakshian v.
Claytor, 202 U.S.App.D.C. 59, 628 F.2d 59 (1980). Relying
principally on the fact that Congress vested jurisdiction over ADEA
suits against the Federal Government in the federal district
courts, rather than in the Court of Claims, and on the
authorization in § 15(c)
Page 453 U. S. 170
of the Act for the award of "legal and equitable relief," the
Court of Appeals construed the statute to accord a jury trial.
II
It is well settled that the "United States, as sovereign,
is
immune from suit save as it consents to be sued.'" United
States v. Testan, 424 U. S. 392,
424 U. S. 399
(1976), quoting United States v. Sherwood, 312 U.
S. 584, 312 U. S. 586
(1941). Consent to suit by the United States must be "unequivocally
expressed." United States v. Mitchell, 445 U.
S. 535, 445 U. S. 538
(1980); United States v. King, 395 U. S.
1, 395 U. S. 4
(1969). In the ADEA, the United States has expressly waived its
immunity, 29 U.S.C. § 633a (1976 ed. and Supp. III), so that there
can be no doubt of its consent to be sued. The requirement that a
waiver of immunity be unequivocally expressed, however, does not,
as the Court suggests, carry with it a presumption against jury
trial in cases where the United States has waived its immunity.
Indeed, we have previously declined to adopt such a presumption.
See Law v. United States, 266 U.
S. 494 (1925); United States v. Pfitsch,
256 U. S. 547
(1921). [Footnote 2/1]
Page 453 U. S. 171
Moreover, the Court's view that there is a presumption against
jury trials in suits against the Federal Government is belied by
the very statutes that it cites to indicate that Congress has often
"conditioned [the] waiver [of immunity] upon a plaintiff's
relinquishing any claim to a jury trial."
Ante at
453 U. S. 161.
The fact that Congress has found it necessary to state
expressly that there is no jury trial right in a broad
range of cases against the Government,
see 28 U.S.C. §§
1346, 2402, demonstrates that Congress does not legislate against
the backdrop of any presumption against a jury trial right in suits
against the United States. I believe, therefore, that, once the
Government unequivocally waives its immunity from suit, the
plaintiff's right to jury trial is a question of statutory
construction. [
Footnote 2/2] The
proper inquiry is whether the statute expressly or by fair
implication provides for a jury trial. [
Footnote 2/3]
See Law v. United States, supra;
United States v.
Page 453 U. S. 172
Pfitsch, supra; 5 J. Moore, J. Lucas, & J. Wicker,
Moore's Federal Practice � 38-31[2], p. 38-237 (1981); 9 C. Wright
& A. Miller, Federal Practice and Procedure § 2314, p. 69
(1971). I turn, therefore, to the statute itself.
Congress passed the ADEA in 1967 to protect older workers
against discrimination in the workplace on the basis of age.
See 29 U.S.C. §§ 621(b), 623;
Oscar Mayer & Co. v.
Evans, 441 U. S. 750,
441 U. S. 756
(1979);
Lorillard v. Pons, 434 U.S. at
434 U. S. 577.
See generally Note, Age Discrimination in Employment, 50
N.Y.U.L.Rev. 924, 945 (1975). The Act's protection was originally
limited to employees in the private sector,
see Pub.L.
9202, § 11, 81 Stat. 605, 29 U.S.C. § 630(b) (1970 ed.), [
Footnote 2/4] but Congress amended the Act
in 1974 by adding § 16, which extended protection to federal
employees as well. 29 U.S.C. § 633a. Section 15(a) provides that
personnel actions affecting federal employees "shall be made free
from any discrimination based on age," while § 15(b) grants the
Equal Employment Opportunity Commission authority to enforce the
statutory provisions. [
Footnote
2/5] Although there
Page 453 U. S. 173
is no provision which expressly grants or precludes a jury
trial, Congress provided in § 1 (c), 88 Stat. 75, that
"[a]ny [federal employee] aggrieved may bring a civil action in
any
Federal district court of competent jurisdiction for
such
legal or equitable relief as will effectuate the
purposes of this Act."
29 U.S.C. § 633a(c) (emphasis added). It is this provision that
I believe demonstrates congressional intent to allow a jury trial
in ADEA suits against the Federal Government.
In
Lorillard v. Pons, supra, the Court construed § 7(b)
and § 7(c) [
Footnote 2/6] -- a
provision identical to § 15(c) in all relevant respects -- to
afford age discrimination plaintiffs the right to a jury trial
against private employers. [
Footnote
2/7] The Court reached this result for two reasons. First, the
Court found that the language in § 7(b), 29 U.S.C. § 626(b), that
"[t]he provisions of this chapter shall be enforced in accordance
with the powers, remedies, and procedures" of certain provisions of
the Fair Labor Standards Act (FLSA), suggested that Congress
intended to grant a jury trial right because "[l]ong before
Congress enacted the ADEA, it was well established that there was a
right to a jury trial in private actions pursuant to the FLSA." 434
U.S. at
434 U. S. 580.
Second, and more significant for this case, the Court found that §
7(c)'s authorization of the courts to grant and individuals to seek
"
legal or equitable relief," 29 U.S.C. § 626(c) (emphasis
added), strongly suggested that Congress intended to grant a jury
trial right. 434 U.S. at
434 U. S. 583.
Thus, the Court held, as a
Page 453 U. S. 174
matter of statutory construction, that the ADEA allows jury
trials in actions against private employers.
In the instant case, Congress similarly authorized aggrieved
persons to seek and district courts to grant "such
legal
or equitable relief as will effectuate the purposes of this
chapter," 29 U.S.C. § 633a(c) (emphasis added), thereby suggesting
that federal employees are entitled to a jury trial under the ADEA.
As a unanimous Court emphasized in
Lorillard:
"The word 'legal' is a term of art: in cases in which legal
relief is available and legal rights are determined, the Seventh
Amendment provides a right to jury trial.
See Curtis v.
Loether, 415 U. S. 189,
415 U. S.
195-196 (1974)."
"[W]here words are employed in a statute which had at the time a
well known meaning at common law or in the law of this country,
they are presumed to have been used in that sense unless the
context compels to the contrary."
"
Standard Oil v. United States, 221 U. S. 1,
221 U. S. 59 (1911).
See
Gilbert v. United States, 370 U. S. 650,
370 U. S.
655 (1962);
Montclair v. Ramsdell, 107 U. S.
147,
107 U. S. 152 (1883). We can
infer, therefore, that by providing specifically for 'legal'
relief, Congress knew the significance of the term 'legal,' and
intended that there would be a jury trial on demand. . . ."
434 U.S. at
434 U. S. 583.
[
Footnote 2/8]
Page 453 U. S. 175
Although the Seventh Amendment right to trial by jury in suits
at common law does not extend to civil actions against the Federal
Government, Congress may extend the jury trial right by
legislation.
See Galloway v. United States, 319 U.
S. 372,
319 U. S.
388-389 (1943). Congress' provision for "
legal
and equitable relief" suggests, therefore, that it intended to
allow jury trials in ADEA actions against the Federal
Government.
This strong inference that Congress intended to legislate a jury
trial right is reinforced by Congress' decision to vest
jurisdiction in the District Courts, rather than the Court of
Claims, to decide ADEA suits brought against the Federal
Government. This Court has previously observed that vesting
jurisdiction in the district courts rather than the Court of Claims
supports an inference of a right to jury trial. In
United
States v. Pfitsch, the Court stated that "the right to a jury
trial is an incident" of the grant of "exclusive jurisdiction in
the District Courts." 256 U.S. at
256 U. S. 552.
Similarly, in
Law v. United States, the Court held that
the District Court erred in denying a right to a jury trial under
the War Risk Insurance Act, when the court concluded that its
jurisdiction "was the exceptional jurisdiction concurrent with the
Court of Claims," rather than that "exercised in accordance with
the laws governing the usual procedure of the court in actions at
law for money compensation." 266 U.S. at
266 U. S. 496.
[
Footnote 2/9]
Page 453 U. S. 176
Congress' vesting of jurisdiction in the federal district courts
under § 15(c) of the ADEA suggests, therefore, that it intended to
provide a jury trial right to federal ADEA plaintiffs. [
Footnote 2/10] The legislative history of
the 1974 ADEA amendments, extending protection to federal
employees, is consistent with
Page 453 U. S. 177
the conclusion that Congress intended to allow jury trials.
Congress' failure to include federal employees under the ADEA when
the Act was first passed
"did not represent a conscious decision by the Congress to limit
the ADEA to employment in the private sector. It reflects the fact
that, in 1967, when ADEA was enacted, most government employees
were outside the scope of the FLSA and the Wage Hour and Public
Contracts Divisions of the Department of Labor, which enforces the
Fair Labor Standards Act, were assigned responsibility for
enforcing the Age Discrimination in Employment Act."
S.Rep. No. 9690, p. 55 (1974). When the Act was amended in 1974,
Congress intended that "Government employees . . . be subject to
the
same protections against arbitrary employment based on
age as are employees in the private sector." 12 Cong.Rec. 8768
(1974) (remarks of Sen. Bentsen, principal proponent of ADEA
extension to federal employees) (emphasis added). [
Footnote 2/11] To be sure, Congress did not
provide for identical enforcement schemes for private sector and
federal sector age discrimination complaints. But when Congress
departed from the "same protections" for federal employees,
ibid., that it had granted private sector employees, it
did so expressly. Not only did Congress, in § 15, not expressly
disallow jury trials where the Federal Government is the defendant,
but Congress used the same language in § 15(c) that it had used in
§ 7(c) in authorizing suits in the district courts for legal or
equitable relief against private parties. This strongly
suggests
Page 453 U. S. 178
that it intended to make the jury trial right it approved
against private employers equally applicable to ADEA suits against
the Federal Government.
The strong manifestation of congressional intent from both the
language and the legislative history of the 1974 amendments is
enhanced by the total absence of any persuasive evidence of a
contrary legislative intent. The Court argues, nonetheless, that
Congress' decision in 1978 to amend the ADEA to provide explicitly
for jury trials in private employer cases brought under § 7,
[
Footnote 2/12] without also
amending § 15(c), demonstrates an intention to preclude jury trials
against the Government. I am completely unpersuaded.
The bill which led to codification of a jury trial right in §
7(c)(2) was introduced by Senator Kennedy
before this
Page 453 U. S. 179
Court decided
Lorillard. In order to settle a conflict
among the Courts of Appeals over the availability of jury trials in
ADEA suits against private employers, [
Footnote 2/13] Senator Kennedy proposed an amendment to
the ADEA which would state
in haec verba that jury trials
are allowed. 123 Cong.Rec. 34317-34318 (1977). [
Footnote 2/14] Senator Kennedy's amendment was
adopted by the Senate without debate.
Lorillard was
subsequently decided. Thereafter, Congress passed the Kennedy
amendment, with a modification proposed by the House at Conference
extending the jury trial right beyond that proposed by Senator
Kennedy and passed by the Senate to include claims for liquidated
damages. I can discern no congressional intent to preclude the
right to a jury trial in ADEA actions against the Federal
Government from this sequence of events. The more plausible
explanation, and the one with textual support in the relevant
legislative history, H.R.Conf.Rep. No. 9950, pp. 114 (1978), is
that Congress understood from the
Lorillard opinion that
conferring the power to award legal relief suggested a jury trial
right, [
Footnote 2/15] and that
the reason Congress proceeded with the Kennedy amendment was to
make clear not only that suits for wages
Page 453 U. S. 180
could be tried before a jury, but also that suits for liquidated
damages could be tried before a jury, an issue explicitly left
unresolved in
Lorillard, 434 U.S. at
434 U. S. 577,
n. 2. [
Footnote 2/16] Moreover,
that Congress did not add the same provision to § 15 that it added
to § 7 is not indicative of an intent to prohibit jury trials for
the additional reason that it was the conflict in the Courts of
Appeals over whether employees could have a jury trial against
private employers which prompted Senator Kennedy to
introduce his bill. There had been no parallel development in the
courts interpreting § 15. This legislative history, therefore, does
not support the conclusion that the Court seeks to draw from
it.
The Court also argues that the absence of any reference in § 15
to the FLSA "powers, remedies. and procedures" to which § 7 refers
and upon which
Lorillard partially relied suggests that
Congress did not intend to allow jury trials against the Federal
Government. But our decision in
Lorillard rested equally
on the provision in § 7(c) for "legal or equitable relief" as a
strong and independent indication of congressional intent to allow
jury trials. In addition, the more likely explanation for the
absence of any reference in § 15 to the FLSA sections referred to
in § 7(b) is that Congress intended to use existing administrative
procedures "to enforce the provisions of [§ 15(a)] through
appropriate remedies, including reinstatement or hiring of
employees with or without backpay." 29 U.S.C. § 633a(b) (1976 ed.,
Supp. III). Prior to the 1974 amendments extending ADEA coverage to
federal employees, employment discrimination complaints by federal
employees were processed by the Civil Service Commission, so that
it is not surprising that Congress decided to use existing
administrative machinery in § 15(b) to enforce ADEA provisions
protecting federal employees.
Page 453 U. S. 181
See 39 Fed.Reg. 24351 (1974), reprinted as amended at
29 CFR §§ 1613.501-1613.521 (1980). [
Footnote 2/17] The failure to refer to FLSA procedures
in § 15 apparently derives not from a desire to limit jury t.rials,
but from an intention to employ different
administrative
procedures for age discrimination complaints brought against the
Federal Government. [
Footnote
2/18] Seen in this light, the Court's strained interpretation
of the failure to refer to FLSA procedures in § 15 is totally
unpersuasive.
III
Based on the language of § 15(c) and on the legislative history,
which is consistent with my interpretation of that language, I
would hold that Congress intended to allow jury trials in ADEA
suits against the Federal Government.
Page 453 U. S. 182
[
Footnote 2/1]
As the Court of Appeals correctly noted:
"Since sovereign immunity bars all actions against the
Government -- actions tried to the court as well as those tried to
a jury -- it is difficult to see why this doctrine should create a
presumption against any particular method of trial. . . . [O]nce
Congress has waived the Government's immunity, and where it has not
explicitly specified the trial procedure to be followed, sovereign
immunity drops out of the picture. Courts must then scrutinize the
available indicia of legislative intent to see what trial procedure
Congress authorized."
Nakshian v. Claytor, 202 U.S.App.D.C. 59, 63, n. 4, 628
F.2d 59, 63, n. 4 (1980).
The Court's reliance on
Soriano v. United States,
352 U. S. 270
(1957), is misplaced.
See ante at
453 U. S.
160-161. There, the Court held that the statute of
limitations prescribed by Congress barred petitioner's claim
against the United States, because the "disability" asserted by
petitioner to toll the limitations period was not one of the
disabilities enumerated in the statute. In this context, the Court,
therefore, concluded that
"limitations and conditions upon which the Government consents
to be sued must be strictly observed and exceptions thereto are not
to be implied."
352 U.S. at
352 U. S. 276.
That is, where Congress has expressly provided for limitations on
the waiver of immunity, "exceptions [to the limitations] are not to
be implied."
Ibid. That is not this case.
[
Footnote 2/2]
There is, of course, no Seventh Amendment right to a jury trial
against the Federal Government.
Galloway v. United States,
319 U. S. 372,
319 U. S.
388-389 (1943);
McElrath v. United States,
102 U. S. 426,
102 U. S. 440
(1880).
[
Footnote 2/3]
Rule 38(a) of the Federal Rules of Civil Procedure is not to the
contrary. It provides that
"[t]he 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."
There is no requirement in Rule 38 that Congress make its intent
to authorize jury trials express, provided Congress otherwise makes
its intent known. Indeed, Rule 38 was fully applicable at the time
of
Lorillard v. Pons, where this Court found a jury trial
right even though the words "trial by jury," did not appear in the
statute. The Court does not argue otherwise in stating that Rule 38
requires "an affirmative statutory grant" of the jury trial right.
Ante at
453 U. S. 165.
The Court does not argue that Rule 38 requires a jury trial right
to be express. Obviously, that argument would be frivolous, since
Lorillard found a jury trial right in the absence of an
express provision conferring the right. Either Rule 38 does not
require that the grant be express, as I suggest, or the unanimous
holding of the Court in
Lorillard was wrong.
Still, the Court misapprehends the thrust of my argument when it
states that Rule 38 "hardly states a general rule that jury trials
are to be presumed whenever Congress provides for cases to be
brought in federal district courts."
Ante at
453 U. S. 165.
I have simply argued that conferral of jurisdiction on the district
courts raises an inference of a jury trial right in suits against
the United States, because the Court of Claims, where there is no
jury trial right, is an available alternative forum for such cases.
Here, Congress chose for § 15(c) cases the federal district courts,
not the Court of Claims, as the appropriate forum.
[
Footnote 2/4]
As originally passed, the definition of the term "employer"
expressly excluded the United States, States, and political
subdivisions from ADEA coverage. Pub.L. 90-202, § 11, 81 Stat. 605,
29 U.S.C. § 630(b) (1970 ed.).
[
Footnote 2/5]
The Equal Employment Opportunity Commission assumed enforcement
authority from the Civil Service Commission in 1978 pursuant to
Reorganization Plan No. 1 of 1978, § 2. 3 CFR 321 (1979), 5
U.S.C.App. p. 354 (1976 ed., Supp. III).
[
Footnote 2/6]
Section 7(c) of the ADEA, 29 U.S.C. § 626(c), as it read when
Lorillard was decided, stated in full:
"Any person aggrieved may bring a civil action in any court of
competent jurisdiction for such legal or equitable relief as will
effectuate the purposes of this chapter:
Provided, That
the right of any person to bring such action shall terminate upon
the commencement of an action by the Secretary to enforce the right
of such employee under this chapter."
[
Footnote 2/7]
By construing the statute to allow a jury trial, the Court did
not have to decide whether
"the Seventh Amendment requires that, in a private action for
lost wages under the ADEA, the parties must be given the option of
having the case heard by a jury."
434 U.S. at
434 U. S.
577.
[
Footnote 2/8]
The Court's statement that "[i]n
Lorillard, the
authorization for the award of
legal' relief was significant
largely because of the presence of a constitutional question" is
not correct. Ante at 453 U. S. 163.
To be sure, a constitutional question was present in
Lorillard, but the Court specifically declined to ground
its decision on the Seventh Amendment. See 453
U.S. 156fn2/7|>n. 7, supra. Rather, it construed
the language "legal or equitable relief" in § 7(c) of the ADEA. The
Court concluded that, when Congress used the words "legal . . .
relief," which are equally present in § 15(c), it intended that a
jury trial right be available. That Congress used the words "legal
. . . relief" in § 7(c) differently from the way it used the same
words in § 15(c) is implausible.
Moreover, the Court erroneously suggests that §§ 15(a) and(b)
are identical to §§ 717(a) and(b) of Title VII of the Civil Rights
Act of 1964,
ante at
453 U. S.
163-164, for it fails to note that Title VII does not
authorize the courts to award "legal relief," as § 15(C) does.
[
Footnote 2/9]
In
United States v. Pfitsch, the Court construed § 10
of the Lever Act, which conferred exclusive jurisdiction in the
district courts to hear lawsuits brought by persons dissatisfied
with the President's award of compensation for supplies
requisitioned by the Federal Government. In deciding that a
judgment rendered under § 10 is not reviewable in this Court by
direct writ of error, the Court stated that Congress
"had the issue clearly drawn between granting for the
adjudication of cases arising under [§ 10] concurrent jurisdiction
in the Court of Claims and the District Courts without a trial by
jury,
or of establishing an exclusive jurisdiction in the
District Courts of which the right to a jury trial is an
incident."
256 U.S. at
256 U. S. 552
(emphasis added).
That Congress did not, so far as the legislative history
indicates, expressly debate vesting concurrent jurisdiction in the
Court of Claims over ADEA suits against the Federal Government does
not weaken the force of
United States v. Pfitsch, despite
the Court's protestations to the contrary. Indeed, in
Law v.
United States, an important case that the Court virtually
ignores,
see ante at
453 U. S. 165,
n. 13, it was of no significance whether Congress specifically
considered vesting jurisdiction in the Court of Claims in order to
conclude that the War Risk Insurance Act authorized a jury trial in
a suit against the Federal Government. What is significant in the
instant case is that, in allowing suits against the Government
under the ADEA, Congress expressly opted for jurisdiction in the
district courts, and not the Court of Claims, which, in lawsuits
against the Government, is a self-evident, alternative forum of
which Congress was undoubtedly aware.
[
Footnote 2/10]
One leading commentator has concluded:
"Congress may confer jurisdiction of
actions against the
United States upon a district court sitting as a court at law
(or equity), as a court of claims, and as a court of admiralty. And
the particular grant of jurisdiction will determine the method of
trial, court or jury, in the absence of some express provision
dealing with the method of trial.
Thus, absent a provision as
to the method of trial, a grant of jurisdiction to a district court
as a court at law caries with it a right of jury trial."
5 J. Moore, J. Lucas, & J. Wicker, Moore's Federal Practice
� 38.31[2], p. 38-239 (1981) (emphasis added; footnotes
omitted).
The Court rejects the force of the statute's language. It
suggests that, because of similarities between § 15 and Title VII
of the Civil Rights Act of 1964, Congress may simply have wished to
provide for federal court jurisdiction because Title VII had. It
argues further that Congress may also have thought that district
court jurisdiction was appropriate, since the statute provided for
grant of equitable, as well as legal, relief, and that district
courts, unlike the Court of Claims, are accustomed to awarding
equitable relief.
Ante at
453 U. S. 164,
n. 12. These explanations are purely speculative. There is no basis
in the legislative history for them, and they are counter to the
logical inferences from the language of the statute.
[
Footnote 2/11]
Senator Bentsen also stated:
"There is no reason why private enterprise should be subject to
restrictions that are not applicable to the Federal
Government."
* * * *
"What this legislation does is to give these workers coverage
under the age discrimination law and to give them a procedure to
pursue their complaints."
120 Cong.Rec. 5741 (1974).
[
Footnote 2/12]
Section 7(c) of the ADEA, 29 U.S.C. § 626(c) (1976 ed., Supp.
III), now provides: .
"(1) Any person aggrieved may bring a civil action in any court
of competent jurisdiction for such legal or equitable relief as
will effectuate the purposes of this chapter:
Provided,
That the right of any person to bring such action shall terminate
upon the commencement of an action by the Secretary to enforce the
right of such employee under this chapter."
"(2) In an action brought under paragraph (1), a person shall be
entitled to a trial by jury of any issue of fact in any such action
for recovery of amounts owing as a result of a violation of this
chapter, regardless of whether equitable relief is sought by any
party in such action."
The Court contends that the presence of express language
granting a jury trial right in § 7(c), in contrast to the absence
of such express language in § 15, demonstrates that Congress "knew
how to provide a statutory right to a jury trial when it wished to
do so."
Ante at
453 U. S. 162.
I find this argument hard to fathom. The Court recognizes, as it
must, that there was no such express language in § 7(c) when this
Court decided in
Lorillard that Congress intended ADEA
actions against private employers to include a jury trial right,
and that the express language relied on by the Court was added two
months
after Lorillard was decided and four years
after the identical language which was construed in
Lorillard was added to the ADEA in § 15(c). Therefore,
unless the Court is suggesting that the unanimous holding in
Lorillard was wrong, the Court is bound to apply the same
analysis to this case.
[
Footnote 2/13]
Compare Rogers v. Exxon Research Engineering Co., 550
F.2d 834 (CA3 1977) (right to jury trial),
cert. denied,
434 U.S. 1022 (1978), and
Pons v. Lorillard, 549 F.2d 950
(CA4 1977) (same),
aff'd, 434 U.
S. 575 (1978),
with Morelock v. NCR Corp., 546
F.2d 682 (CA6 1976) (no right to jury trial),
vacated and
remanded, 435 U.S. 911 (1978).
[
Footnote 2/14]
Senator Kennedy further explained:
"[J]uries are more likely to be open to the issues which have
been raised by the plaintiffs. Sometimes, a judge may be slightly
callous, perhaps because he himself is protected by life tenure, or
because he is somewhat removed from the usual employer-employee
relationship. The jury may be more neutral in such
circumstances."
123 Cong.Rec. 34318 (1977).
[
Footnote 2/15]
Indeed, the Conference Report specifically noted that the Court
had recently decided
Lorillard v. Pons, and went on to
state:
"Because liquidated damages are in the nature of
legal
relief, it is manifest that a party is entitled to have the
factual issues underlying such a claim decided by
jury."
H.R.Conf.Rep. No. 95-950, p. 14 (1978).
[
Footnote 2/16]
"The Supreme Court recently ruled that a plaintiff is entitled
to a jury trial in ADEA actions for lost wages, but it did not
decide whether there is a right to jury trial on a claim for
liquidated damages."
Id. at 13.
[
Footnote 2/17]
The Court further suggests that, because the ADEA was patterned
in significant respects after Title VII, and since Title VII has
been held by lower federal courts not to allow a jury trial right,
it follows that § 15 does not contemplate such a right. I find this
argument unpersuasive, as the Court did in
Lorillard. The
Court has previously said that, despite important similarities
between Title VII and the ADEA, "it is the remedial and procedural
provisions of the two laws that are crucial, and there we find
significant differences."
Lorillard v. Pons, 434 U.S. at
434 U. S.
584.
"Congress specifically provided for both 'legal or equitable
relief' in the ADEA, but did not authorize 'legal' relief in so
many words under Title VII."
Ibid.
[
Footnote 2/18]
This interpretation is supported by Congress' extension of ADEA
protection to employees of state and local governments, which
occurred at the same time that Congress extended coverage to
federal employees. Because the definitional section of the Act was
amended to include state and local governments within the
definition of "employer," 29 U.S.C. § 630(b), age discrimination
complaints against state and local governments can be tried to a
jury for the same reason that complaints against private entities
can be. Nowhere in the legislative history did Congress evince a
desire to allow state and local government employees a jury trial
right, while withholding the same right from federal employees.
Rather, federal employees were covered in a separate section of the
Act, apparently so that existing administrative machinery could be
used.