The opinion of the court was delivered by: OBERDORFER
Plaintiff is an older woman who has been employed as a secretary and clerk by the Navy Department for over thirty years. She has sued the Navy for alleged age discrimination under the Age Discrimination in Employment Act (ADEA). Plaintiff requests a jury trial for her suit, and defendant has moved to strike the request. The court must now determine whether plaintiff has a right to a jury trial under the ADEA in a suit against the government.
I. RIGHT TO JURY TRIAL IN PRIVATE ADEA SUITS
The Supreme Court recently established that plaintiffs have the right to demand a jury trial for ADEA suits brought against private employers (hereinafter, "private ADEA suits"). Lorillard v. Pons, 434 U.S. 575, 98 S. Ct. 866, 55 L. Ed. 2d 40 (1978). The Court based its conclusion on statutory grounds. It determined that Congress intended to grant plaintiffs a jury right when it enacted 29 U.S.C. § 626(c). The Supreme Court noted that the ADEA's enforcement provisions were modeled after those of the Fair Labor Standards Act (FLSA). Because the FLSA established the right to a trial by jury in private actions, the Court inferred that Congress likewise intended the ADEA to provide such a jury right. The Supreme Court also pointed out that the ADEA empowers a court to grant "Legal or equitable relief" (29 U.S.C. § 626(c)) (emphasis added). The explicit use of the term of art, "legal . . . relief" manifests Congress' intention to provide a jury trial right, according to the Court. Id. at 871-72.
Congress codified the Lorillard result by explicitly amending the ADEA to grant plaintiff a jury trial right in private ADEA suits. § 7(c) of the ADEA was amended, in 1978, to include the following paragraph:
(2) In an (ADEA) action . . . 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 Act, regardless of whether equitable relief is sought by any party in such action.
See Act of April 6, 1978, Pub.L. No. 95-256, 92 Stat. 189 (1978).
II. RIGHT TO JURY TRIAL IN ADEA SUITS AGAINST THE GOVERNMENT
When originally enacted, the ADEA did not establish the right of persons to sue the federal government for age discrimination. Congress' 1974 amendments to the Act, however, established such a right. In doing so, Congress used the exact same language that it had previously employed to authorize private ADEA suits:
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 chapter.
Compare 29 U.S.C. § 633a(c) With 29 U.S.C. § 626(c).
The question now before the court is whether the above quoted language gives plaintiffs a right to demand a jury trial in ADEA suits brought against the federal government.
Application of the Lorillard Court's reasoning suggests that a jury trial right exists for suits brought against the government. First, § 633a(c) uses the same "legal . . . relief" language that persuaded the Supreme Court to conclude that § 633a(c)"s companion provision, § 626(c), permits jury trials for private ADEA suits. Second, Congress' 1974 amendments to the Act made the ADEA generally applicable to the federal government, with few changes.
Indeed, the use of the exact same language in § 633a(c) as in § 626(c) indicates that Congress intended suits against the government to be on an equal footing with private ADEA suits. Thus, an implied jury right for private ADEA actions is equally applicable for government ADEA suits. Third, if Congress had intended its consent to ADEA suits to be limited to non-jury trials, it could have easily said as much. Congress' failure to assert continuing sovereign immunity with respect to ADEA Jury trials implies its abandonment of that immunity. At the least, this court is unwilling to deprive plaintiffs who sue government entities instead of private employers of their right to a jury trial without Congress' explicit refusal to grant such a right.
The 1978 amendments to the ADEA have introduced some confusion into this otherwise clear conclusion that plaintiffs have the right to a jury trial in ADEA suits against the government. As mentioned above, those amendments included an express addition to 29 U.S.C. § 626(c) (s 7(c) of the ADEA) which codified Lorillard's holding that private ADEA litigants have the right to demand a jury trial. Congress did not, however, similarly amend § 626(c)"s companion provision for suits against the government, § ...