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January 31, 1980


The opinion of the court was delivered by: Aspen, District Judge:


Plaintiff, an employee of the Internal Revenue Service(IRS), a division of the Department of Treasury, has brought

this action under the Age Discrimination in Employment Act (ADEA), as amended, 29 U.S.C. § 621 et seq.*fn1 Plaintiff has been employed with the IRS since 1956; since 1962 he has held the position of a GS-13 Internal Revenue Agent. In December, 1974, plaintiff applied for advancement to a Supervisory Internal Revenue Agent position, also at the GS-13 level. Plaintiff, who at the time was 51 years of age, was bypassed for the position. Instead, the department selected a 27 year-old agent to fill the vacancy. Plaintiff contends that he was better qualified for the position than was the agent selected for the post, and that his application was denied solely on account of his age.

In March, 1975, plaintiff initiated administrative proceedings to contest the promotion denial on the grounds of alleged age discrimination. A final decision denying plaintiff's appeal was issued on January 29, 1979. Plaintiff then filed this action on March 5, 1979, alleging that the failure to grant him the promotion sought violated the ADEA, 29 U.S.C. § 633a(c).*fn2 To remedy this alleged discrimination, plaintiff seeks an injunction prohibiting the defendants from future discrimination against him on the basis of age, placement in the position of Supervisory Internal Revenue Agent with back pay, $750,000 in compensatory and punitive damages, and court costs and attorney's fees. Plaintiff also seeks to have this case tried by a jury.

The defendants have moved to strike the plaintiff's demands for compensatory and punitive damages, and for a jury trial. In his brief addressed to the motion, plaintiff has conceded that compensatory and punitive damages are unavailable under the ADEA.*fn3 The only remaining issue, therefore, is whether a plaintiff who files suit against a government employer under the ADEA is entitled to a trial by jury. Although the Supreme Court in Lorillard v. Pons, 434 U.S. 575, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978), found such a right implicit in the ADEA in suits against private employers, there is little case authority dealing with the right to jury trial in ADEA suits against the government.*fn4 The parties are in agreement that the seventh amendment guarantee of the right to jury trial does not control the outcome of this issue, since suits against the sovereign are not the type of "common law" suit for which the right to jury trial is preserved. McElrath v. United States, 102 U.S. 426, 439-440, 26 L.Ed. 189 (1880). Thus, the issue is one of statutory construction: whether Congress in passing the ADEA intended to permit jury trials in suits against government employers.*fn5

As enacted in 1967, the ADEA broadly prohibited various forms of discrimination on the basis of age. Borrowing generously from the model provided by the Fair Labor Standards Act (FLSA),*fn6 29 U.S.C. § 201 et seq., Congress established two primary methods of enforcing the ADEA's provisions. Under 29 U.S.C. § 626(b), the Secretary of Labor may file suit on behalf of a discrimination victim to obtain monetary and injunctive relief. Alternatively, Section 626(c), (d), provides a scheme whereby an aggrieved party may seek to conciliate the alleged unlawful practice, or may file suit "in any court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter." 29 U.S.C. § 626(c). Although the ADEA did not provide expressly for jury trials, several courts have found such a right implicit in the statutory scheme.*fn7

Congress in 1974 extended the coverage of the ADEA to include persons employed by the federal government. To accomplish this end, the Congress added a new section to the ADEA — 29 U.S.C. § 633a — which essentially tracked the language found in Section 626.*fn8 In particular, Section 633a(c) provided that "[a]ny 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." In extending coverage to government employees, there is no indication that Congress intended to distinguish between the procedures available to private and public employees. Rather, Congress hoped that the expanded coverage would "remove discriminatory barriers against employment of older workers in government jobs at the Federal and local government levels as it has and continues to do in private employment." H.R.Rep. No. 93-913, 93d Cong., 2d Sess., reprinted in [1974] U.S.Code Cong. & Admin.News at 2850 (emphasis supplied). Thus, the purpose of the 1974 amendment was to provide government workers with protection similar to that available to private employees.

Congress once again amended the ADEA in 1978. For the purposes of the jury trial issue, two amendments in particular are noteworthy. First, the Congress added a provision to Section 633a limiting the applicability of the remainder of the chapter to suits against the government.*fn9 Second, Congress amended § 626(c) to provide expressly for the right to jury trial in suits against private employers. See 29 U.S.C. § 626(c)(2).

In the midst of congressional consideration of these amendments, the Court in Lorillard v. Pons, 434 U.S. 575, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978), held that the ADEA implicitly provided for a right to jury trial in suits against private employers. The Court considered persuasive two elements of the ADEA in reaching this conclusion. First, the Court found that Congress had borrowed from the FLSA procedures with the knowledge that jury trials were available under that Act. Second, the Court observed that 29 U.S.C. § 626(c) authorizes suits for legal and equitable relief. The Court noted that the word legal is a well-known term of art; it generally signifies the existence of a right to jury trial. "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 jury trial on demand . . ." 434 U.S. at 583, 98 S.Ct. at 871.

In light of Lorillard and the history of ADEA legislation, the Court believes that the right to jury trial is available to aggrieved public employees on the same terms as it is to private employees. The section governing public employee suits contains the same reference to legal relief that is found in the provisions governing private employee actions. Compare 29 U.S.C. § 633a(c) with 29 U.S.C. § 626(c)(1). Under the reasoning of Lorillard, this suggests that Congress intended public employees suing under the ADEA to have the right to jury trial. See also, Nakshian v. Claytor, 20 F.E.P. Cases 927, 928 (D.D.C. 1979). Moreover, the very fact that 29 U.S.C. § 633a(c) vests jurisdiction in the federal district courts, rather than in the Court of Claims, is indicative of congressional intent to allow jury trials. See United States v. Pfitsch, 256 U.S. 547, 552, 41 S.Ct. 569, 570, 65 L.Ed. 1084 (1921); 5 Moore's Federal Practice ¶ 38.31[2] at 236.

Furthermore, the underlying purposes of the ADEA suggest that no distinction should be drawn between a public or a private employee's right to jury trial. As indicated above, the purpose of the ADEA is the removal of discriminatory barriers to the employment and advancement of older workers; this purpose does not turn upon whether the plaintiff is a public or private employee. Indeed, in suggesting the enactment of an express right to jury trial, Senator Kennedy stated that such a right was important to all victims of age discrimination in employment:

  [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.
    It does seem to me that when a particular
  plaintiff in an age discrimination case feels
  aggrieved, if he desires . . a jury trial, that
  it would be important not to deny him that

122 Cong.Rec. ยง 17296 (daily ed. Oct. 17, 1977) (remarks of Sen. Kennedy). This rationale for the express inclusion of a right to jury trial is ...

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