Nakshian v. Claytor

• Decision Date: 05 May 1980
• Docket Number: No. 79-1672,79-1672
• Citation: 628 F.2d 59,202 U.S.App.D.C. 59
• Parties: 22 Fair Empl.Prac.Cas. 41, 22 Empl. Prac. Dec. P 30,650, 202 U.S.App.D.C. 59 Alice NAKSHIAN v. W. Graham CLAYTOR, in his Official Capacity as Secretary of the Navy, et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 59

628 F.2d 59

22 Fair Empl.Prac.Cas. 41, 22 Empl. Prac.

Dec. P 30,650,

202 U.S.App.D.C. 59

Alice NAKSHIAN v. W. Graham CLAYTOR, in his Official Capacity as Secretary of the Navy, et al., Appellants.

No. 79-1672.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 28, 1979.

Decided Feb. 19, 1980.

Rehearing Denied May 5, 1980.

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 78-0867).

Michael Jay Singer, Atty., Dept. of Justice, Washington, D. C., with whom Carl S. Rauh, U. S. Atty., Washington, D. C., at the time the briefs were filed, and Robert E. Kopp, Atty., Dept. of Justice, Washington, D. C., were on brief, for appellants.

Terry Coleman, Washington, D. C., for appellee. Patricia J. Barry, Washington, D. C., also entered an appearance for appellee.

Before WRIGHT, Chief Judge, BAZELON, Senior Circuit Judge, and TAMM, Circuit Judge.

Opinion for the court filed by Chief Judge J. SKELLY WRIGHT.

Dissenting opinion filed by Circuit Judge TAMM.

J. SKELLY WRIGHT, Chief Judge:

This interlocutory appeal, pursuant to 28 U.S.C. § 1292(b) (1976), ¹ is from a District Court order denying the Government's motion to strike the plaintiff's request for a jury trial in her action against the Secretary of the Navy for alleged violations of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. (1976), as amended by Pub.L.No.95-256, 95th Cong., 2d Sess. (April 6, 1978), 92 Stat. 189-193. It raises questions concerning the right to a jury trial in an ADEA action against the federal government. District Judge Oberdorfer certified the issue for interlocutory appeal, and we granted the Government's petition for interlocutory review.

I

Appellee was a 62-year-old civilian employee of the United States Department of the Navy at the time she brought this action in the District Court under Section 15(c) of the ADEA, 29 U.S.C. § 633a(c) (1976), ² against the Navy for alleged age discrimination in violation of the ADEA. She requested a jury trial. The Government moved to strike the request on the grounds that Congress, in authorizing ADEA actions against the federal government, did not specifically authorize jury trials and, therefore, that jury trials are barred by the doctrine of sovereign immunity.

The District Court denied the Government's motion, suggesting in its memorandum opinion that this result followed from the Supreme Court's decision in Lorillard v. Pons, 434 U.S. 575, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978). In that case the Supreme Court held that there is a right to jury trial in an ADEA suit brought against private employers pursuant to Section 7(c), 29 U.S.C. § 626(c) (1976), of the Act. The Supreme Court noted that Congress had expressly provided that the enforcement of the ADEA would be in accordance with the "powers, remedies, and procedures" of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. (1976), and it has long been settled that there is a right to a jury trial in actions brought against private employers under the FLSA. The Supreme Court inferred from this that Congress must have intended to provide for a similar jury trial right in actions brought against private employers under the ADEA. In addition, the Court found the use of the term of art "legal * * * relief" in the wording of the statute significant. In the Court's view it provided further evidence of Congress' intention to provide for jury trials since it is settled that in cases in which legal relief is available and legal rights are determined the Seventh Amendment guarantees the right to jury trial.

The District Court pointed out that the same "legal * * * relief" language that the Supreme Court found significant in Lorillard is used in Section 15(c) of the Act, 29 U.S.C. § 633a(c) (1976), which authorizes suits against the federal government. The court also noted that as originally enacted the ADEA did not apply to the Government. In amending the Act in 1974 to make it applicable to the Government, Congress made few changes in the Act. Indeed, it used the exact same language in Section 15(c), 29 U.S.C. § 633a(c), as it had used in Section 7(c), 29 U.S.C. § 626(c). This, in the court's view, indicated that Congress intended suits against the Government to be on equal footing with suits against private employers. Finally, the court observed that if Congress had intended to preclude jury trials in ADEA suits against the federal government it would have done so.

II

The Government rejects the District Court's analysis. It argues that since the Seventh Amendment right to jury trial applies only to "suits at common law," and at common law suits against the Government were barred by the doctrine of sovereign immunity, the right to jury trial therefore does not apply to actions against the Government under Section 15(c) of the Act. It further notes that Congress may, in waiving the Government's sovereign immunity, dictate the particular terms and conditions under which a suit against it may be brought. From these premises the Government purports to draw the conclusion that the availability of jury trial in actions against the Government requires a specific statutory provision to that effect; that a waiver of sovereign immunity "cannot be implied but must be unequivocally expressed." United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1503, 23 L.Ed.2d 52 (1969). It then examines the language and legislative history of the ADEA for such an explicit grant of a right to jury trial and, not surprisingly, is unable to find any.

The Government also rejects the suggestion that the Supreme Court's reasoning in Lorillard supports the inference that there is a jury trial right in ADEA actions against the Government. It notes that the FLSA right to a jury trial on which the Court relied in Lorillard was in fact based on the Seventh Amendment. Since the Seventh Amendment does not apply to suits against the Government, this supports the inference that there is no right to jury trial in ADEA actions against the Government. Similarly, it contends that the jury trial connotation of the term "legal * * * relief" derives from the Seventh Amendment and therefore cannot apply to actions against the Government. Finally, the Government maintains that Congress' response to the Lorillard decision supports its position. In 1978 Congress amended Section 7(c) by enacting language that expressly provides for jury trials in ADEA actions brought against private employers. Since no similar action was taken with respect to Section 15(c), the Government argues that Congress did not intend to allow jury trials in ADEA actions against the federal government.

Appellee does not dispute the Government's claim that the Seventh Amendment guarantee of jury trial does not apply to actions against the Government, or the claim that Congress may prescribe the procedure to be followed in a suit when it waives the Government's sovereign immunity. She does, however, reject the Government's claim that there is a right to sovereign immunity from jury trial which may be inferred from these two premises. In her view the Government confuses the well established principle of sovereign immunity from suits without its consent with an unrecognized principle of sovereign immunity from jury trials. Appellee argues that there is no automatic presumption against jury trial in actions against the Government and no unequivocal grant of a right to jury trial need be found. Rather, the issue is an ordinary one of statutory interpretation whether or not Congress intended that employees who bring ADEA actions against the Government should have a right to jury trial. To support her claim that Congress intended to grant a right to jury trial in ADEA actions against the Government, appellee looks to the language and legislative history of the ADEA.

She notes that, as originally enacted, neither the FLSA nor the ADEA applied to the Government. In 1974 Congress simultaneously amended both statutes to extend their coverage to federal employees. It amended the definition of "employee" in Section 3(e) of the FLSA, 29 U.S.C. § 203(e) (1976), to include federal employees. In addition, Section 16(b) of the FLSA, 29 U.S.C. § 216(b) (1976), which creates a private right of action for unpaid wages and liquidated damages, was revised to provide that "(a)ction to recover such liability may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction * * *." (Emphasis added.) Appellee maintains that the manner in which federal employees were brought under the FLSA makes it clear that Congress wanted the same procedures to apply to their lawsuits as had previously been applied in suits against private employers. Appellee concludes that federal employees have a right to jury trial in FLSA suits against the Government, and points out that the court so held in Carter v. Marshall, 457 F.Supp. 38 (D.D.C.1978).

Appellee argues that given this, the result in the instant case flows ineluctably from the Lorillard decision. Lorillard held that Congress intended that the ADEA be enforced in accordance with the procedures of the FLSA. Since, as just shown, Congress intended to grant a right to jury trial in all FLSA actions, including those brought by federal employees, we must presume that Congress intended to grant a similar right in ADEA actions against the federal government. Appellee notes that Congress viewed the application of the ADEA to the federal government as a "logical extension of the * * * decision to extend FLSA coverage to Federal * * * employees." S.Rep.No.93-690, 93d Cong., 2d Sess. 55 (1974). Moreover, the original exclusion of federal employees from the coverage of the ADEA was an oversight which was due to the fact that in 1967 when the ADEA was enacted most Government employees were not covered by the FLSA. Id. This close linkage between the...