c284:No. 79-1672

TAMM, Circuit Judge,
dissenting:
The majority infers from several legislative actions a congressional intent to give federal plaintiffs a jury trial in ADEA actions. I believe this intent is anything but clear. I therefore respectfully dissent.
I.
The seventh amendment states that “[i]n Suits at common law, . . the right of trial by jury shall be preserved . . .” This provision of the Bill of Rights guarantees a jury trial for private parties in most federal civil actions. See, e. g., Ross v. Bernhard, 396 U.S. 531, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970). By its very terms, however, the amendment does not apply to all cases but only to those arising under common law; thus actions in equity or admiralty are tried to a judge. At common law, a suit could not be maintained against the government due to its sovereign immunity; therefore, any action in which the government waives its immunity is not a suit at common law within the meaning of the amendment. Galloway v. United States, 319 U.S. 372, 388-89, 63 S.Ct. 1077, 1086, 87 L.Ed. 1458 (1943).
As the Supreme Court has stated, “It long has been established . . 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, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976) (quoting United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941)). Thus, when the government does consent to be sued, “there is a right to , a jury trial . only if a statute, expressly or by fair implication so provides.” 9 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2314, at 69 (1971) (footnote omitted). See also 5 Moore’s Federal Practice 138.31[2], at 236 (2d ed. rev. 1971). In actions against the government under the ADEA, then, we must examine the Act’s legislative history to see if Congress, in waiving sovereign immunity to permit an ADEA action, intended also to submit the government to jury trials.
II.
Congress passed the ADEA in 1967 “to promote the employment of older workers based on their ability . . . through an education and information program to assist employers and employees in meeting employment problems . . . and through the utilization of informal arid formal remedial procedures.” H.R.Rep.No. 805, 90th Cong., 1st Sess. 1, reprinted in [1967] U.S.Code Cong. & Admin.News, pp. 2213, 2214. For the most part, Congress applied the enforcement provisions of the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219 (1976), to the ADEA: “the powers, remedies, and procedures provided in section 211(b), 216 (except for subsection (a) thereof), and 217 of [title 29]” govern violations of the ADEA. Id. § 626(b) (1976). These provisions permit private actions by aggrieved employees “for such legal and equitable relief as will effectuate the purposes of [the ADEA],” 29 U.S. C.A. § 626(c)(1) (West Supp. 1979). The Secretary of Labor may also bring suits to halt discriminatory practices, 29 U.S.C. § 626(b) (1976).
As originally passed, the ADEA specifically excluded federal employees from coverage. See ADEA, Pub.L.No. 90-202, § 11, 81 Stat. 602 (1967) (codified at 29 U.S.C. § 630(b) (1976)). In 1974, Congress amended the ADEA, adding a new provision to deal specifically with age discrimination against federal employees. See Fair Labor Standards Amendments of 1974 (1974 FLSA Amendments), Pub.L.No. 93-259, § 28(b)(2), 88 Stat. 55 (1974)(codified at 29 U.S.C. § 633a (1976)). It authorizes the Civil Service Commission to enforce the ban on age discrimination through “appropriate remedies, including reinstatement or hiring of employees with or without back-pay.” 29 U.S.C. § 633a(b). In addition, 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 this chapter.” Id. § 633a(c).
The legislative history of the 1974 FLSA Amendments does not mention the issue of jury trials under section 633a. Most of the debate on the 1974 FLSA Amendments dealt with its minimum wage provisions. Comments on the ADEA involved the need to extend its protection to federal and state workers. Indeed, the committee report on the 1974 FLSA Amendments made clear that the original exclusion of the federal government from coverage under the ADEA was inadvertent:
The Committee recognizes that the omission of government workers from the Age Discrimination in Employment Act did not represent a conscious decision by the Congress to limit the ADEA to employment in the private sector. It re-fleets 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. 690, 93d Cong., 2d Sess. 55 (1974). Accord, S.Rep.No. 300, 93d Cong., 1st Sess. 56 (1973); S.Rep.No. 842, 92d Cong., 2d Sess. 45 (1972).
The history of the 1974 FLSA Amendments indicates that Congress wanted federal employees to have the same protections from age discrimination as their counterparts in the private sector. Giving the same protection, however, does not necessarily mean Congress intended to establish the same procedures for federal employees to enforce those protections. With jury trials, congressional waiver of immunity can occur only by express statement or by clear implication; as noted above, however, Congress did not discuss jury trials for federal employees when considering the 1974 FLSA Amendments. This silence, therefore, must be construed as demonstrating that Congress did not intend federal employees to have jury trials under the ADEA.
The establishment of a separate legislative scheme for federal workers under the ADEA, 29 U.S.C. § 633a, supports this conclusion that Congress did not intend federal workers to have jury trials. Congress entrusted the supervision of the age discrimination program in the federal government to the Civil Service Commission and not to the Department of Labor, the agency supervising the ADEA in the private sector. Congress authorized the Commission to promulgate rules and receive reports from government agencies detailing efforts to fight age discrimination. Id. § 633a(b)(l). The Commission established an administrative grievance procedure, see 5 C.F.R. § 713.501-.521 (1978), to resolve age discrimination complaints without judicial intervention. These administrative procedures are not available to private-sector employees, and they demonstrate that, although Congress wanted to grant the same protection to both federal and private employees, it did not mandate the same remedial procedures.
By 1978, a conflict had developed in the federal courts of appeals over the right to a jury trial in ADEA actions by employees in the private sector. To resolve this controversy, Senator Edward Kennedy introduced an amendment to the Age Discrimination in Employment Amendments of 1978 (1978 ADEA Amendments), Pub.L.No. 95-256, 92 Stat. 189 (codified in scattered sections of 29 U.S.C.A. (West Supp.1979)), to ensure jury trials for private plaintiffs under section 626. See 123 Cong.Rec. S17296-97 (daily ed, Oct. 19, 1977). While the legislation still was pending, the Supreme Court handed down its decision in Lorillard v. Pons, 434 U.S. 575, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978), which held in a private-sector case that Congress indeed had intended plaintiffs to have jury trials in ADEA actions to recover lost wages. House and Senate conferees nevertheless incorporated the jury trial provision in the final version of the 1978 ADEA Amendments and clarified an issue left unresolved in Lorillard by granting private-sector employees a right to jury trials when liquidated damages were involved. H.R.Rep.No. 950, 95th Cong., 2d Sess. 13-14, reprinted in [1978] U.S.Code Cong. & Admin.News, pp. 504, 528, 535. See 1978 ADEA Amendments § 4(a) (codified at 29 U.S.C.A. § 626(c)(2) (West Supp. 1979)).
Despite its reexamination of the jury trial provisions, Congress did not amend section 633a, the corresponding section giving federal workers the right to bring civil actions for age discrimination against the United States. As the Fifth Circuit has noted in a related context, “Where Congress has carefully employed a term in one place but excluded it in another, it should not be implied where excluded.” J. Ray McDermott & Co. v. Vessel Morning Star, 457 F.2d 815 (5th Cir.) (en banc), cert. denied, 409 U.S. 948, 93 S.Ct. 271, 34 L.Ed.2d 218 (1973). See also Diamond Roofing Co. V. OSHRC, 528 F.2d 645 (5th Cir. 1976). The failure to adopt a parallel amendment indicates that Congress did not intend to extend its waiver of sovereign immunity to permit jury trials for federal employees.
III.
Appellees also argue, and the majority agrees, that Lorillard v. Pons supports a right to jury trial for federal plaintiffs under the ADEA. This reliance is misplaced. Lorillard arose in the private sector and involved section 626, which adopts FLSA remedies. See p.- of 202 U.S.App.D.C., p. 60 of 628 F.2d supra. The Court concluded that Congress intended plaintiffs under section 626 — by definition, employees in the private sector only — to have the same rights as .plaintiffs under the FLSA, who may insist on jury trials. At no time did the Court discuss federal employees, section 633a, or congressional waiver of sovereign immunity. This right to demand a jury trial does not extend to federal employees suing under section 633a, for the waiver of sovereign immunity to allow jury trials for federal plaintiffs presents different concerns. Juries may be too sympathetic toward plaintiffs in cases where the federal government is the defendant. Congress has noted this problem when considering bills authorizing jury trials against the government: “The primary objection to granting jury trials in suits against the United States is that juries, in considering possible sums to be awarded the plaintiff, might tend to be overly generous because of the virtually unlimited ability of the Government to pay the verdict.” H.R. Rep.No. 659, 83d Cong., 2d Sess. 3 reprinted in [1954] U.S.Code Cong. & Amin.News, pp. 2716, 2718 (amending 28 U.S.C. § 2402 to allow jury trials in suits by taxpayers for tax refunds from the federal government). Trying a case to a judge removes this potential bias.
The majority further observes that the Court in Lorillard based its decision in part on the presence of the term “legal . relief” in section 626(b), which the Court believed suggested a congressional desire for jury trials. See 434 U.S. at 585, 98 S.Ct. at 871. The majority contends that the appearance of “legal . relief” in section 633a(c)(l) similarly supports a jury trial for federal employees. The Lorillard Court, however, based its findings of congressional intent on the meaning of the term under the seventh amendment. As noted above, the seventh amendment does not apply in this case, for common-law or “legal” remedies cannot lie against the federal government. See pp.---of 202 U.S.App.D.C., pp. 65-66 of 628 F.2d supra. Thus, reliance on Congress’s use of “legal relief” in section 633a would be inappropriate because of the term’s relationship to the seventh amendment.
Reliance on United States v. Pfitsch, 256 U.S. 547, 41 S.Ct. 569, 65 L.Ed. 1084 (1921), is equally unavailing. Pfitsch involved “the nature of the jurisdiction conferred upon the District Court by § 10 of the Lever Act [c. 53, 40 Stat. 276 (1917)],” id. at 549, 41 S.Ct. at 569, a wartime measure authorizing seizure of supplies for the American effort in World War I. The Court, after examining the legislative history of the Lever Act, concluded that Congress had intended district courts to have sole jurisdiction under section 19 rather than concurrent jurisdiction with the Court of Claims. Given this exclusive jurisdiction, an appeal from the district court should have gone to the Circuit Court of Appeals rather than the Supreme Court on direct writ of error. The Court therefore dismissed the appeal for want of jurisdiction.
In its decision, the Court in dictum indicated that exclusive jurisdiction in the district court under the Lever Act would include “incidentally” a right to jury trial against the federal government. Id. at 550, 41 S.Ct. at 570. The Court mentioned jury trials only in reaching its conclusion about the type of jurisdiction Congress had conferred. It neither discussed nor decided a plaintiff’s right to jury trial per se. These few comments on the right to a jury trial under the Lever Act do not mean that Congress waives the government’s immunity to jury trial anytime it confers sole jurisdiction on the district courts. The “fair implication” of the right to jury trial as found in Pfitsch, 9 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2314, at 69 & n.43 (1971), quoted at p. 66 supra, cannot be drawn in this case, for Congress established a separate enforcement scheme for federal employees under the ADEA and then failed to alter that scheme to allow jury trials for federal plaintiffs when it provided that right to private-sector employees in 1978.
IV.
Sovereign immunity, though criticized, remains a viable doctrine. See, e. g., Fitzgerald v. United States Civil Service Commission, 180 U.S.App.D.C. 327, 554 F.2d 1186 (D.C.Cir. 1977) (Bazelon, C. J.). Jury trials, though favored, are not always permitted. This favor does not extend to suits against the government. “[WJhile statesmen and jurists are often wont to extol the virtues of jury trial, they are not accustomed to extend the virtues to actions against the United States, either in the Court of Claims or in the district courts.” 5 Moore’s Federal Practice, 11 38.31[2], at 234-35 (footnotes omitted). Congress has had ample opportunity to afford federal employees the right to jury trial under the ADEA but has failed to do so. We should not apply what it has so far denied.
I respectfully dissent.
. The FLSA originally excluded all public employees from coverage. See FLSA, ch. 676, § 3(d), 52 Stat. 1060 (1938) (amended 1974).
. Congress also redefined “employer” in the FLSA to include “public agencies,” thus extending the FLSA to cover all federal, state, and local governmental units. See 1974 FLSA Amendments, § 6(a)(1), (6) (codified at 29 U.S.C. § 203(d), (x) (1976).
Passage of the Fair Labor Standards Amendments of 1974 capped a three-year effort to raise the minimum wage and to increase the coverage of the FLSA and ADEA. The original bill, S. 1861, 92d Cong., 2d Sess., 118 Cong.Rec. 23952 (1972), did not contain provisions extending the ADEA to federal workers. During consideration of this bill, Senator Lloyd Bent-sen introduced an amendment to include federal and state workers under the ADEA. The Senate Committee on Labor and Public Welfare adopted the amendment and included it in the bill sent to the Senate floor. See S.Rep.No. 842, 92d Cong., 2d Sess. 45 (1972). The bill passed the Senate but died when the House refused to meet in conference to resolve differences over the minimum wage provisions of its ' bill. In 1973 the Senate again passed a bill, S. 1861, 93d Cong., 1st Sess., 119 Cong.Rec. 24335 (1973), to increase the minimum wage and to extend the provisions of the ADEA and FLSA to federal employees. House conferees insisted, however, on deleting the ADEA amendments as not germane. H.R.Rep.No. 413, 93d Cong., 1st Sess. 33 (1973) (conference report); 120 Cong.Rec. 4706 (1974) (statement of Sen. Frank Church). The President vetoed the bill as inflationary. Finally, after extensive debate, in 1974 Congress passed and the President signed the 1974 FLSA Amendments.
. This section states in part:
(a) All personnel actions affecting employees or applicants for employment (except with regard to aliens employed outside the limits of the United States) in military departments as defined in section 102 of title 5, in executive agencies as defined in section 105 of title 5 (including employees and applicants for employment who are paid from nonappropriated funds), in the United States Postal Service and the Postal Rate Commission, in those units in the government of the District of Columbia having positions in the competitive service, and in those units of the legislative and judicial branches of the Federal Government having positions in the competitive service, and in the Library of Congress shall be made free from any discrimination based on age.
(b) Except as otherwise provided in this subsection, the Civil Service Commission is authorized to enforce the provisions of subsection (a) of this section through appropriate remedies, including reinstatement or hiring of employees with or without backpay, as will effectuate the policies of this section. The Civil Service Commission shall issue such rules, regulations, orders, and instructions as it deems necessary and appropriate to carry out its responsibilities under this section. The Civil Service Commission shall—
(1) be responsible for the review and evaluation of the operation of all agency programs designed to carry out the policy of this section, periodically obtaining and publishing (on at least a semiannual basis) progress reports from each department, agency, or unit referred to in subsection (a) of this section;
(2) consult with and solicit the recommendations of interested individuals, groups, and organizations relating to nondiscrimination in employment on account of age; and
(3) provide for the acceptance and processing of complaints of discrimination in Federal employment on account of age.
The head of each such department, agency, or unit shall comply with such rules, regulations, orders, and instructions of the Civil Service Commission which shall include a provision that an employee or applicant for employment shall be notified of any final action taken on any complaint of discrimination filed by him thereunder. Reasonable exemptions to the provisions of this section may be established by the Commission but only when the Commission has established a maximum age requirement on the basis of a determination that age is a bona fide occupational qualification necessary to the performance of the duties of the position. With respect to employment in the Library of Congress, authorities granted in this subsection to the Civil Service Commission shall be exercised by the Librarian of Congress.
(c) 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.
29 U.S.C. 633a (1976).
. The Equal Employment Opportunity Commission assumed the duty of enforcing the ADEA in 1978. See Reorg. Plan No. 1 of 1978, § 2, 43 Fed.Reg. 19807 (1978), reprinted in 5 U.S.C.A. App. (West Supp.1979).
. See, e. g., 119 Cong.Rec. 24807 (1973) (remarks of Sen. Frank Church).
. Senator Lloyd Bentsen introduced S. 3318, 92d Cong., 2d Sess., 118 Cong.Rec. 7745 (1972), to extend the ADEA to federal employees. This separate bill would have amended the definition of employer in 29 U.S.C. § 630(b) to include the federal and state governments. Such an amendment would have placed the federal government in the same position as all other employers subject to the ADEA. Senator Bentsen, later that term, introduced his amendment to the FLSA Amendments bill. Rather than altering the definition of employer, this amendment established a separate section with special procedures for dealing with age discrimination in the government. The use of the separate provision for federal employees under the ADEA, rather than the simple change in the definition of employer under S. 3318, indicates that Congress contemplated different procedures for the two programs.
. Compare Rogers v. Exxon Research & Eng’r Co., 550 F.2d 834 (3d Cir. 1977) (right to jury trial), cert denied, 434 U.S. 1022, 98 S.Ct. 749, 54 L.Ed.2d 770 (1978), and Pons v. Lorillard, 549 F.2d 950 (4th Cir. 1977) (same), aff’d, 434 U.S. 575, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978), with Morelock v. NCR Corp., 546 F.2d 682 (6th Cir. 1976) (no right to jury trial), vacated and remanded, 435 U.S. 911, 98 S.Ct. 1463, 55 L.Ed.2d 503 (1978).
. The failure to amend § 633a cannot be deemed inadvertent. The Kennedy amendment, though adopted on the Senate floor with little debate, received careful consideration in the conference committee, which altered it to clarify the right to jury trial when liquidated damages were involved. See H.R.Rep.No. 950, 95th Cong., 2d Sess. 13- 14, reprinted in [1978] U.S.Code Cong. & Admin.News pp. 504, 536. The conference committee also altered § 633a, amending subsection (a) and adding subsections (f) and (g) to authorize studies of age discrimination. Id. In amending both sections as it did, Congress could not have overlooked the need to amend § 633a(c) to allow jury trials for government employees if it had so wished.
. See 29 U.S.C. § 630(b) (1976) (excluding the federal government from ADEA’s definition of employer).
. See, e. g., Lewis v. Times Publishing Co., 185 F.2d 457 (5th Cir. 1950).
. The Court stated: “In cases in which legal relief is available and legal rights are determined, the Seventh Amendment provides a right to jury trial.” 434 U.S. at 583, 98 S.Ct. at 871.
. In addition, Pfitsch supplies the sole support for the assertions made in 9 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2314, and 5 Moore’s Federal Practice r. 38.-31[2], that jurisdiction in the United States District Court against the federal government carries with it the right to jury trial.
. Cf. 28 U.S.C. § 2402 (1976) (any action brought under Federal Tort Claims Act will be tried to the court without jury).

Passage view · GavelSight