essential when it enacted USERRA." As Judge Easterbrook has said in another context, “What
sense could that make of the statutory text?” United States v. Rodriguez, 453 F.3d 458, 461 (7" Cir.
2006). See also Olvera v. Blitt & Gaines, P.C., 431 F.3d 285, 289 (7" Cir. 2005) (Posner, J.);
Grennier v. Frank, 453 F.3d 442 (7" Cir, 2006).

Neither Vernon y. Port Authority of New York and New Jersey, No. 95-4594, 2003 WL
1563219 (S.D.N.Y. Mar. 26, 2003) nor Stuckey v. City of Naperville, No. 97-7037, 1998 WL 173298
(N.D.IIL Apr. 7, 1998) sustain the City’s argument nor trumps the plain language of USERRA. The
district court’s decision in Vernon was overruled on the point for which the City cites it by the
Second Circuit in Cross v. New York City Transit Authority. '° The court of appeals cited the district
court decision as an example of a district court case incorrectly holding that a local governmental
body was immune from liquidated damages, and held that “state and local government employers
are subject to liquidated damages under the ADEA.” 417 F.3d at 254.

Stuckey did not deal with the ADEA’s liquidated damages provision. Instead, it held that

punitive damages were not available under ADEA’s statutory plan. It was the Act’s explicit

*’ Congress intended the protection of the Nation’s military — which was to be achieved through
protection of individual reservists’ rights — “to be afforded the highest of priorities.” TVA v. Hill, 437 U.S.
153, 174 (1978). See Maher, 406 F. Supp 2d at 1011. USERRA was enacted against a backdrop of perceived
national crisis. According to the Reserve Forces Policy Board, which advises the Department of Defense,
the Department “cannot enforce any element of the National Security Strategy without National Guard and
Reserve forces... [and] a smaller Total Force has led to an increased role for the Reserve component.” The
Annual Report of the Reserve Forces Policy Board (May 2001). In fact, reservists contributed 12.1 million
man-days in fiscal 2000, the equivalent work of 33,000 full-time active-duty troops. /d. There are more than
1.3 million reservists, including more than 140,000 in the United States Air Force Reserve. Reservists
participated in contingency operations in Bosnia, Kosovo, and Southwest Asia; in humanitarian operations
in Africa and Central America; in counter-drug operations in South America; in joint exercises in the Pacific,
and in firefighting in the United States. Jd And of course, their role in Afghanistan and Iraq needs no
discussion.

‘6 The Seventh Circuit has been especially critical of citation to overruled cases. See United States
v, Santiago, 826 F.2d 499, 502 n. 1 (7" Cir.1987).

14



U.S. 215, 221 & n.9 (1991) (VRRA must be broadly construed). ° In enacting USERRA, Congress
intended to “clarify, simplify, and, where necessary, strengthen the existing veterans’ employment
and reemployment rights provisions.” Gummo v. Vill. Of Depew, 75 F.3d 98, 105 (2TM Cir. 1996).
To that end, Congress chose in USERRA to rectify the absence in VRRA of an express grant of
authority for the issuance of injunctive relief, 38 U.S.C. § 4302 (1993), by empowering a district
court to “use its full equity powers, including temporary or permanent injunctions, temporary
restraining orders, and contempt orders, to vindicate fully the rights or benefits of persons under this
chapter,” 38 U.S.C. § 4323(e). See H.R. Rep. No. 103-65, at 38 (1994), reprinted in 1994
US.C.C.AN, 2449, 2471.

In addition, in an obvious effort to strengthen the rights of service men and women, Congress
added §4323(d)(1)(C) to USERRA, so that in cases of willful violations of USERRA “[t]he court
may require the employer to pay to the person an amount “equal to the amount referred to in
subparagraph (B) as liquidated damages...” 7 Nothing in the legislative history, the text or the
structure of USERRA supports the suggestion that the Congress’ addition of the liquidated damage
provision in §4323(d)(2)(A)-- a remedy that was unavailable under prior veterans' reemployment

rights statutes, see 38 U.S.C. § 2022 (1991); Spratt, 997 F.Supp. at 1140; Duarte, 366 F.Supp.2d at

S USERRA was enacted: 1) to encourage non-career service in the uniformed services by eliminating
or minimizing the disadvantages to civilian careers and employment which can result from such service; 2)
to minimize the disruption to the lives of military personnel (and others) by providing for the prompt
reemployment of such persons upon their completion of such service; and 3) to prohibit discrimination
because of military service. 38 U.S.C. § 4301(a).

7 There is no doubt in this case that the City is charged with having willfully violated USERRA. The
fact that the prayer for relief is somewhat vague and does not specify any statutory basis is of no
consequence, for pleadings need not define the desired relief or even contain factual details or legal theories.
Blagojevich v. Rumsfeld, 2006 WL 3147365 (7" Cir. Nov. 1, 2006); Dunne v. Washington County
Hospital,429 F.3d 689 (7" Cir. 2005).



provisions’ use of the word “court” could only refer to the judge. It would be incongruous, the
argument went, for Congress to have used the word “court” to mean different things.’ In rejecting
the argument, Justice (then Judge) Stevens stressed that other language in the statute implied that a
jury’s participation was appropriate. The statutory reference to “damages” and to “punitive
damages” would normally contemplate a jury verdict as an element of the judicial process leading
up to the final award. Judge Stevens concluded by stressing that it would be highly unusual for a
federal statute to authorize a court to impose even monetarily limited punishment without according
the defendant a right to a jury trial. 467 F.2d at 1122-1123.”

The Supreme Court affirmed without any discussion of the semantic argument made below.
Curtis v. Loether, 415 U.S. 189 (1974). For the Court, it was the nature of the relief sought — actual
and punitive damages — that was critical. That sort of relief, the Court stressed, was the traditional
form of relief offered in the courts of law. Whatever doubts may have heretofore existed, the Court
said, should now be dispelled: the Seventh Amendment applies to actions enforcing statutory rights
and requires a jury trial upon demand “if the statute creates legal rights and remedies, enforceable
in an action for damages in the ordinary course of law.” Jd. at 194. That is precisely what USERRA
does, and that VRRA did not.

The City seeks to avoid the gravitational pull of these principles and the numerous USERRA

'' The argument was not without some merit. Indeed, it was consistent with the “presumption that
a given term is used to mean the same thing throughout a statute”. Brown v. Gardner, 513 U.S. 115, 118
(1994). See also Inyo County, California v. Paiute-Shoshone Indians of the Bishop Community, 538 U.S. 701,
710 (2003). “‘To give the same words a different meaning for each category would be to invent a statute
rather than interpret one.’”” Pasquantino v. United States, 544U.S. 349, 358-359 (2005).

? Numerous other statutes have used the word “court” in an expansive, rather than a limited way.
See Kobs v. Aeroservice Bureau, Inc., 134 F.3d 893, 896-897 (7 Cir. 1998).

10


(1998).

Discerning congressional intent regarding the right to trial by jury in cases where the statute
provides no express answer is not without difficulty. Lorillard, 434 U.S, at 585. Ofcourse, recourse
must be had to the statutory text. For example, in Lorillard, in concluding that Congress intended
that there be a right to trial by jury in private actions under the ADEA, the Court stressed that in
specifically providing for both “legal’ and equitable relief, Congress could not have been oblivious
to the long-established meaning or significance of the former term. Similarly, in light of Congress’s
extensive knowledge of the operation of the FLSA, its selective incorporation and amendment of the
FLSA provisions for the ADA, it was appropriate to conclude that Congress was aware that courts
had uniformly afforded jury trials under the FLSA. 434 U.S. at 584-85.

The same reasoning applies here. When Congress enacted USERRA it did so against the
backdrop of the Supreme Court’s decision in TWA v. Thurston that the double damage provision in
the ADEA was intended to be punitive and thereby to deter willful violations of the Act. And it
certainly was aware of the consistent interpretations of the Supreme Court that remedies intended
to punish culpable individuals, as opposed to those intended simply to extract compensation or
restore the status quo, were /egal remedies and that there was a right to trial by jury “if the statute
creates legal rights and remedies, enforceable in an action for damages in the ordinary course of
law.” Curtis, 415 U.S. at 196-197. See also Tull, 481 U.S. at 422.

Not surprisingly, the courts that have considered the question have concluded that the

USERRA’s liquidated damages provision is punitive in nature and that a plaintiff is thus entitled to

8 While Congress in §4323(d)(2)(A) described awards under subparagraphs (B) and (C) as
“compensation,” that is scarcely enough to tip the scales in favor of the conclusion that the liquidated damage
provision was not intended to be punitive.



1037-- was intended to be a component of the restitutionary remedies carried over from VRRA. Cf
Curtis, 415 U.S. at 197 (“Whatever may be the merit of the equitable’ characterization in Title VII
cases, there is surely no basis for characterizing the award of compensatory and punitive damages
here as equitable relief.”); Tud/, 481 U.S. at 424 (the Clean Water Act does not intertwine equitable
relief with the imposition of civil penalties. Instead each kind of relief is separately authorized in a
separate and distinct statutory provision).

In TWA v. Thurston, 469 U.S. 111, 119, 125-126 (1985), the Supreme Court held that
Congress intended for double damage liquidated liability for willful violations of the ADEA to be
punitive in nature. Like the liquidated damage provision in the ADEA, Airline Pilots Ass’n,
Internat'l v. Trans World Airlines, Inc., 713 F.2d 940, 956 (2" Cir. 1983); 29 U.S.C.§§216(b),
626(b), liquidated or double damages under USERRA are measured by the pecuniary losses
sustained by way of lost wages, salary increases and other benefits. Of course, not all liquidated or
double damage provisions are intended to be punitive. See Vermont Agency of Natural Resources
v. U.S. ex rel Stevens, 529 U.S. 765, 785-86 (2000);Commissioner of Internal Revenue v. Schleier,
515 U.S. 323, 331-332 (1995), However, in the instant case there is no principled distinction
between the ADEA’s double damage remedy and that in USERRA. Compare Bedrossian v.
Northwestern Memorial Hosp, 409 F.3d 840, 844 (7" Cir. 2005)(“We agree with the district court
that there is ‘no material difference between the Congressional policy underlying [USERRA], as
expressed in the statutory language, and other employment discrimination statutes that require a
showing of irreparable harm as a predicate for preliminary relief .””). If the former is punitive, so
too is the latter, and the desideratum of both is deterrence, for deterrence is the goal of punishment.

TWA, 469 U.S. at 125; Tull, 481 U.S. at 422-423. Cf United States v. Bajakajian, 524 U.S. 321, 329



1993)(liquidated damages are a legal remedy); Spratt, 997 F.Supp. at 1141(same). Indeed, the City
appears to concede that the liquidated damage provision under USERRA is a legal remedy.
(Defendant's Memorandum, at 6).

Thus, it would seem to follow ineluctably that municipal employees, like Mr. Maher, are
entitled to a jury trial under USERRA to determine whether a violation of the Act was willful. There
is, however, a potentially complicating factor, although it is not argued by the City. Section
4323(d)(1)(C) allows the court to require “the employer to pay the plaintiff an amount equal to the
amount referred to in subparagraph (B) as liquidated damages, if the court determines that the
[violation] was willful.” (Emphasis supplied). When a statute speaks with clarity, judicial inquiry
into the statute's meaning in all but the most extraordinary circumstance is finished. See Carter v.
United States, 530 U.S. 255, 257, (2000); United States ex rel. Feingold v. AdminaStar Federal, Inc.,
324 F.3d 492, 495 (7" Cir. 2003). See also, Easterbrook, Legal Interpretation and the Power of the
Judiciary, 7 Harv.J.L.& Pub. Pol’y 87 (1984). But the difficulty is in determining what is “clear”
for purposes of the plain meaning doctrine. The notion that because the words of a statute appear
to be plain, its meaning is also plain, is often “‘merely pernicious oversimplification.”” FBI v.
Abramson, 456 U.S. 615, 626 (1982). See also Posner, Legislation and Its Interpretation: A Primer,
68 Neb.L.Rev. 431, 442 (1989). And language, plain or not, depends on context. See Holloway v.
United States, 526 U.S. 1,7 (1999); Smith v. Zachary, 255 F.3d 446, 448 (7 Cir. 2001); Sanders v.
Jackson, 209 F.3d 998, 1000 (7" Cir. 2000).

In Rogers v. Loether, 467 F.2d 1110 (7" Cir. 1972), the argument was made that in using the
word “court” in the clause under Title VII that provided that the “court” may award damages, the

Congress must have intended to refer to the trial judge — to the exclusion of a jury — since other



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
JEROME MAHER, )
Plaintiff, } No. 03 C 3421
v. } Magistrate Judge Jeffrey Cole
CITY OF CHICAGO, }
Defendant. }
)

MEMORANDUM OPINION AND ORDER

Mr. Maher has sued the City of Chicago under the Veterans’ Reemployment Rights Act of
1974 (“VRRA”), 38 U.S.C. § 2021 ef seqg., and the Uniformed Services and Reemployment Rights
Act (“USERRA”), 38 U.S.C. §§ 4301-33 — the two federal statutes that protect the reemployment
rights of veterans — and Illinois’ Public Employee Armed Services Rights Act. 5 ILCS 330/1 et seq.
The background of the case is discussed in Maher v. City of Chicago, 406 F.Supp.2d 1006 (N.D.IIl.
2006). Ignoring its own demand for trial by jury, the City has moved to strike the plaintiff's jury
demand. Conceding the absence of an explicit provision for trial by jury,' Mr. Maher nonetheless
contends that the Seventh Amendment accords him that right. Where, as here, Congress has not
explicitly provided for trial by jury, any right to a jury trial must be found in the Seventh
Amendment. International Financial Services Corp. v. Chromas Technologies Canada, Inc., 356
F.3d 731, 735 (7" Cir. 2004); Kobs v. Arrow Service Bureau, Inc., 134 F.3d 893, 897 (7" Cir 1998).

The Seventh Amendment provides that “[i]n suits at common law, where the value in

} The statutes on which the claims are based do not expressly provide for a jury trial., See Troy v.
Hampton, 756 F.2d 1000, 1003 (4th Cir.1985), cert. denied sub nom., Blackmon v, Observer Transp. Co.,
A4T4 U.S. 864 (1985); Duarte v. Agilent Technologies, Inc., 366 F.Supp.2d 1036, 1037 (D.Colo. 2005); Spratt
vy. Guardian Automotive Products, Inc., 997 F.Supp. 1138, 1140 (N.D.Ind. 1998).



2004)(Chicago is “political subdivision” under the ADEA); Harris v. City of Montgomery, 322
F.Supp.2d 1319, 1326 (M.D.Ala. 2004)(a suit against a municipality is considered a suit against a
private employer). It is difficult to imagine a clearer expression of congressional intent to disturb
the common-law immunity against an award of punitive-like damages against a municipality than
that in USERRA.

In Potence v. Hazleton Area School Dist., 357 F.3d 366 (3% Cir. 2004), the Third Circuit
made a similar finding with regard to the ADEA’s definition of employers, which included “a State
or political subdivision of a State and any agency or instrumentality of a State or a political
subdivision of a State.” 29 U.S.C. § 630(b), Thus, the Third Circuit reasoned, the “ADEA could not
be more explicit in imposing liability for age discrimination against municipalities.” 357 F.3d at
373. This included liability for liquidated damages. /d. The Second Circuit followed this reasoning
in Cross v. New York City Transit Authority, 417 F.3d 241, 255 (2TM Cir. 2005), agreeing that
“[b]ecause state and municipal entities are expressly included within the ADEA definition of an
‘employer,’ see 29 U.S.C. § 630(b),” the ADEA explicitly imposed liability for liquidated damages
against municipalities and agencies thereof. 417 F.3d at 257.

Although the City adverts to §4323(d)(3) in a terse, somewhat opaque footnote in its
supporting memorandum, in a curious inversion it seems to contend that the section supports its
position that in USERRA Congress did not explicitly envision that the liquidated damages remedy
should apply to municipalities. The argument appears to run this way: while Congress intended to
abrogate the States’ Eleventh Amendment immunity, the attempted abrogation is ineffectual because
USERRA was enacted pursuant to the War Powers Clause rather than the Fourteenth Amendment.

Thus, Mr. Maher is not entitled to a jury trial, only to trial by the court. (Memorandum, at 8 n.3).

12



cases involving jury trials against municipalities’? by arguing the general principle that while
liquidated damages are a legal remedy, they are not available against a municipality because they are
punitive in nature, and a municipality is not subject to punitive damages. The difficulties with the
argument are that “general propositions do not decide concrete cases,” Lochner v. New York, 198
U.S. 45, 76 (1905)(Holmes, J., dissenting), the plain language of USERRA allows for the imposition
of liquidated damages against the City, and the argument, if accepted, would gut USERRA as it
applies to reservists throughout the nation who are employed by municipalities.

“Since municipalities' common law resistance to punitive damages still obtains, ‘[t]he general
tule today is that no punitive damages are allowed unless expressly authorized by statute.’” Cook
County v. United States ex rel. Chandler, 538 U.S. 119, 129 (2003)(Emphasis supplied). Contrary
to the City’s contention, USERRA does exactly that. Under USERRA, a “State” is subject to “the
same remedies [one of which is liquidated damages under §4323(d)(1)(C)], including prejudgment
interest, as may be imposed upon any private employer under this section.” 38 U.S.C. § 4323(d)(3).
USERRA defines “private employer” as including “a political subdivision of a State.” 38 U.S.C.
§ 4323(j). The general definition section of USERRA includes a State within its definition of an
employer, 38 U.S.C. §4303(4)(a)(iii), and the term State is defined to include each of the several
states of the United States, including its agencies and political subdivisions. Jd. at §4303(14).

In short, the City is treated no differently than a private employer and is subject to the damage

remedies in §4323(d)(1)(B) and (C). Compare Minch v. City of Chicago, 363 F.3d 615, 619 (7 Cir.

' See Wallace v. City of San Diego, 460 F.3d 1181 (9" Cir. 2006); Chance v. Dallas County Hospital
Dist., 176 F.3d 294 (S" Cir. 1999); Carpenter v. Tyler Independent School Dist., 429 F.Supp.2d 848
(E.D.Tex. 2006); Brinkley v. Dialysis Clinic, Inc., No. 04-184, 2006 WL 566799 (M.D.Ala. Mar. 1, 2006);
Fink v. City of New York, 129 F.Supp.2d 511 (E.D.N.Y. 2001).

11



atrial by jury. See Nino v. Haynes Internat’, Inc., 2005 WL 4889258 (S.D.Ind. 2005); Schmauch
v. Honda of America Mfg., Inc., 311 F.Supp.2d 631, 636 (S.D.Ohio 2003); Duarte, 366 F.Supp.2d
at 1038 (D.Colo. 2005); Spratt, 997 F.Supp. at 1142. ° In the Seventh Circuit, “actions seeking
liquidated damages provided by statute are ‘suits at common law’ for constitutional purposes.”
Calderon v. Witvoet, 999 F.2d 1101, 1109 (7" Cir. 1993)."°

The Supreme Court in Curtis stressed that where Congress provides for enforcement of
statutory rights in an ordinary civil action in the district courts, where there is obviously no
functional justification for denying the jury trial right, a jury trial must be available if the action
involves “rights and remedies of the sort typically enforced in an action of law.” 415 U.S. at 195.
A damage action for willful violations of USERRA is analogous to any number of tort actions
recognized at common law, and “[m]ore important, the relief sought here [liquidated damages] is
the traditional form of relief offered in the courts of law.” Curtis, 415 U.S. at 195-196.

To the extent that a damage remedy is viewed as a penalty—as the City insists is the case here-
-there is greater rather than less justification for characterizing it as a legal remedy. Remedies
intended to punish culpable individuals were historically issued by courts of law not courts of equity
and were viewed as legal remedies. Tull, 481 U.S. at 422; Curtis, 415 U.S. at 194-197 (punitive

damages are legal rather than equitable); Sailor v. Hubbell, Inc., 4 F.3d 323, 326 (4" Cir.

° The legislative history of USERRA reveals that the Office of Legislative Affairs of the Department
of Justice urged that the proposed liquidated damage provision not be enacted because it was felt that this
“punitive” provision would make it more difficult for the Department of Labor to resolve VRRA disputes
amicably and would consequently increase litigation. (Senate Report 103-158).

1 The substantive holding in Video Views, Inc. v. Studio 21, Lid. 925 F.2d 1010, 1014-17 (7th
Cir.1991) — which dealt with the applicable burdens of proof for an award of attorney’s fees under the
Copyright Act and on which Calderon relied on — was overruled in Fogerty v. Fantasy, Inc., 510 U.S. 517,
521 n.8 (1994), The Supreme Court, however, had no occasion to address Video Views’ liquidated damages
analysis. Spratt, 997 F.Supp. at 1141.



Under VRRA, a plaintiff could be awarded an amount equal to lost wages or benefits. The
power to compensate an employee for wages or benefits lost because of the employer's unlawful action was
discretionary with the district court and was deemed to be an integral part of the equitable remedy of
reinstatement. Troy, 756 F.2d at 1002-1003.* In carrying over that remedy into USERRA, 38 U.S.C.
§ 4323(d)(1)(B), the Congress presumably had knowledge of the interpretations given to VRRA, at
least insofar as it would affect the new statute, and to adopt those interpretations when it enacted
USERRA. Cf Lorillard v. Pons, 434 U.S. 575, 580-81 (1978). Thus, if USERRA did no more than
reenact VRRA’s back pay remedy, the City’s argument would have substantial force. But the
Congress went much further in crafting USERRA, and because it did, the instructive value typically
associated with decisions under VRRA, Maher, 406 F.Supp.2d at 1012 n,3, has limited utility in the
instant case.°

Congress enacted USERRA, 38 U.S.C. §§ 4301-33, effective October 13, 1994, to protect
the Nation’s military by “encourag[ing] noncareer service in the uniformed services.” 38 U.S.C.
4301(a)(1). The Act amended and replaced VRRA, and like VRRA, USERRA “must be broadly
construed in favor of its military beneficiaries.” TVA v. Hill, 437 U.S. 153 (1978). Accord, McGuire

v. United Parcel Serv., 152 F.3d 673, 676 (7" Cir. 1998). See also King v. St. Vincent's Hospital, 502

4 Congress characterized back pay under Title VII as a form of “equitable relief.” 42 U.S.C. § 2000e-
5(g) (1982 ed.): “[T]he court may . . . order such affirmative action as may be appropriate, which may
include, but is not limited to, reinstatement or hiring of employees, with or without back pay... , or any
other equitable relief as the court deems appropriate.” See Chauffeurs, Teamsters and Helpers, Local No.
391 v. Terry, 494 U.S. 558, $72 (1990); Curtis, 415 U.S. at 198 (discretionary authority to award back pay
is equitable in nature under Title VID.

5 As the City recognizes, cases interpreting VRRA are to be applied when construing USERRA, but
only “to the extent [they are] consistent with USERRA....” (Memorandum, at 5, citing H.R. Rep.No. 103-65
at 19, 103" Cong. (1* Ses. 1993) reprinted in U.S.C.C.A.N. at 2452).

4



exclusion of punitive damages against a government or its political subdivisions, 42
U.S.C.§1981(b)(1), not the defendant’s status as a governmental entity, simpliciter, that underlay
Judge Marovich’s decision to strike the plaintiff's prayer for punitive damages. 1998 WL 173298,
*6. In sum, neither of the two cases relied on by the City remotely suggests that Mr. Maher is not
entitled to trial by jury.
CONCLUSION
For the foregoing reasons, the City’s motion to strike the plaintiff's jury demand [#71] is

hereby DENIED.

ENTERED: f

UNIT Neil MAGISTRATE JUDGE

DATE: 11/21/06

15



on statutes, but applies to actions enforcing statutory rights “if the statute creates /egal rights and
remedies, enforceable in an action for damages in the ordinary courts of law.” 415 U.S. at 194.

(Emphasis supplied). In Curtis, the Court concluded that a damage action under Title VIII for
violations of the fair housing provisions of the Act sounded basically in tort. The statute merely
defined a new legal duty and authorized the courts to compensate a plaintiff for the injury caused by

the defendant’s wrongful breach. More importantly, the relief sought — actual and punitive damages
— was the “traditional form of relief offered in the courts of law.” /d, at 195. The fact that equitable
relief was also available did not abridge the right to trial by jury. /d. at 195 n.10. See also Marseilles
Hydro Power, LLC vy. Marseilles Land and Water Co.,299 F.3d 643, 649 (7" Cir. 2002)(Posner, J. 2

The “‘abstruse historical’ search for the nearest 1 8th-century analog,” Tull v. United States,

481 U.S. 412, 417-418, 421 (1987); Chauffeurs, Teamsters & Helpers Local No. 391 v. Terry, 494
U.S. 558, 565 (1990), is less important than determining whether the remedy sought is equitable or
legal in nature. See Tull, 481 U.S. at 421; Curtis, 415 U.S. at 196. The parties agree that the right
and remedies created by VRRA are equitable in nature. (Response to Motion to Strike, at 2-4). It
is because they are that most courts that have addressed the question have held that VRRA plaintiffs

were not entitled to a jury trial?

2 “The historical inquiry, and the criticism of it, are not about unsettling the principle that there is
no right to a jury trial when the plaintiff is seeking only equitable relief; that principle is firm; the inquiry
is to determine whether a modern /egal right has a sufficient analogy to a right enforced by common law
courts in the eighteenth century to be enforceable by “a suit at common law” within the meaning of the
Seventh Amendment.” Jd. at 649.

3 See Troy v. Hampton, 756 F.2d 1000, 1003 (4th Cir.1985), cert. denied sub nom., Blackmon v.
Observer Transp. Co., 474 U.S. 864 (1985); Duarte v. Agilent Technologies, Inc., 366 F.Supp.2d 1036, 1037
(D.Colo. 2005); Spratt v. Guardian Automotive Products, Inc., 997 F.Supp. 1138, 1140 (N.D.Ind. 1998).
But cf, Gruca v. United States Steel Corp., 495 F.2d 1252, 1256-1257 (3 Cir.1974) (back pay remedy under
the VRRA is legal in nature).

wa



controversy shall exceed twenty dollars, the right of trial by jury shall be preserved....” Although the
thrust of the Amendment was to preserve the right to jury trial as it existed in 1791, the right extends
beyond the common-law forms of action recognized at that time. Curtis v. Loether, 415 U.S. 189,
193 (1974). As the Supreme Court noted in Curtis, the basic principle traces its origins to Justice
Story’s decision in Parsons v. Bedford, 3 Pet. 433 (1830):

One of the strongest objections originally taken against the constitution of the United
States, was the want of an express provision securing the right of trial by jury in civil
cases. As soon as the constitution was adopted, this right was secured by the seventh
amendment of the constitution proposed by congress....

This amendment declares, that 'in suits at common law, where the value in
controversy shall exceed twenty dollars, the right of trial by jury shall be preserved...
The phrase ‘common law,' found in this clause, is used in contradistinction to equity,
and admiralty, and maritime jurisprudence. The constitution had declared, in the third
article, ‘that the judicial power shall extend to all cases in law and equity arising
under this constitution, the laws of the United States, and treaties made or which
shall be made under their authority,’ &c. and to all cases of admiralty and maritime
jurisdiction. It is well known, that in civil causes, in courts of equity and admiralty,
juries do not intervene, and that courts of equity use the trial by jury only in
extraordinary cases to inform the conscience of the court. When, therefore, we find
that the amendment requires that the right of trial by jury shall be preserved in suits
at common law, the natural conclusion is, that this distinction was present to the
minds of the framers of the amendment.

By common law, they meant what the constitution denominated in the third article
‘law;' not merely suits, which the common law recognized among its old and settled
proceedings, but suits in which /egal rights were to be ascertained and determined,
in contradistinction to those where equitable rights alone were recognized, and
equitable remedies were administered; or where, as in the admiralty, a mixture of
public law, and of maritime law and equity was often found in the same suit. ...

In ajust sense, the amendment then may well be construed to embrace all suits which
are not of equity and admiralty jurisdiction, whatever may be the peculiar form which
they may assume to settle /egal rights.

Id at 446-447. (Emphasis supplied). See Curtis, 415 U.S. at 193.

Curtis made clear that the right to trial by jury is not inapplicable to causes of action based



If this is indeed the argument, it is constitutionally flawed and internally inconsistent.

Contrary to the City’s apparent suggestion that municipal immunity to punitive damage
awards under the civil rights laws rests on Eleventh Amendment considerations, (Memorandum, at
8 n.3), the “immunity” stems from policy concerns with imposing punitive damages on tax payers.
Vermont, 529 U.S. at 786 n. 15. Moreover, sovereign immunity has nothing to do with this case
since municipalities are not within the scope of the doctrine. See Board of Trustees of University
of Alabama v. Garrett, 531 U.S. 356, 368-369 (2001); Hess v. Port Authority Trans-Hudson Corp.,
513 USS. 30, 47 (1994). Finally, ifthe City’s version of sovereign immunity were correct, the City
could not be sued at all. While the City makes no such contention, that is the logic of its apparent
suggestion in footnote 3 of its Memorandum.

The City’s construction of USERRA effectively reads out of the Act the liquidated damage
provision of §4323(d)(1)(C) as it applies to municipalities, thereby eliminating the deterrence that
Congress obviously thought so critical. Affecting as it would some of the Nation’s most significant
employers,'* the City’s argument — if accepted — would leave a substantial number of men and

women who are responsible for the safety of the nation, without a remedy that Congress thought

‘* Municipalities are among the Nation’s larger employers. In the aggregate, they may indeed be the
Nation’s largest employer. According to the Department of Labor statistics for 2005, there were
approximately 5,390,210 people employed by “local government,” which excludes state and federal
employers. See United States Department of Labor, Bureau of Labor Statistics, Occupational Employment
Statistics, available at http://www.bls.gov/oes/current/naics4_999300.htm#b00-0000. There are a total of
9,439,900 employees in federal, state and local government according to the DOL statistics. See
http://www.bls.gov/oes/current/naics3_999000.htm. Of course, not all governmental employees are
reservists. But a number are and the number affected by the City’s construction of the Act is potentially
substantial. Congress obviously concluded that State and municipal employers had a large enough
percentage that they should be treated for purposes of the liquidated damages provision (and the other
provisions of USERRA) like any private employer.

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