b'Seventh Amendment Implications of Providing for the\nAdministrative Adjudication of Claims Under\nTitle VIII of the Civil Rights Act of 1968\nCongress may, consistent with the Seventh Am endment and Article III of the Constitution,\nassign adjudication o f certain violations of the Fair Housing Act to an administrative agency\nw ithout a right to a ju ry trial.\nCongress m ay do so even though the statute alternatively permits such claims to be brought in\nfederal court, w here the Seventh Am endment would guarantee the right to a jury trial.\nSuch a statutory schem e, under which a defendant\xe2\x80\x99s right to a jury trial is in large part contingent\non procedural choices o f other parties to the proceedings, does not violate the Due Process\nClause.\n\nFebruary 8, 1985\nM\n\nem orandum\n\nO\n\nA\n\ns s is t a n t\n\nig h t s\n\nD iv is io n\n\np in io n f o r t h e\n\nC iv il R\n\nA ttorney G eneral,\n\nIn response to your request we have reviewed the question whether Con\xc2\xad\ngress, without offending the jury trial requirement of the Seventh Amendment,\nmay provide for an administrative adjudication and award of damages to an\nindividual to remedy violations o f Title VIII of the Civil Rights Act of 1968,42\nU.S.C. \xc2\xa7\xc2\xa7 3601-3619 (Fair Housing Act). Although we find the issue ex\xc2\xad\ntremely difficult, we are inclined to believe that Congress may, consistent with\nthe Constitution, assign adjudication of fair housing violations to an adminis\xc2\xad\ntrative agency absent a jury trial, even though Congress has provided that the\nsame violations may alternatively be remedied by civil actions in which a jury\ntrial is constitutionally required. See Curtis v. Loether, 415 U.S. 189 (1974).\nWe are troubled, however, by a congressional enforcement scheme that enables\nan aggrieved person to obtain substantially similar relief in administrative or\ncourt proceedings, yet conditions the jury trial right of the defendant on the\nforum choice of other parties to the proceeding. Accordingly, we set forth our\nreasoning in detail below.\nI. Background\nS. 1220, the Mathias-Kennedy bill to amend Title VIII of the Civil Rights\nAct of 1968, contains a complex enforcement scheme with two primary en\xc2\xad\n32\n\n\x0cforcement options: administrative proceedings and private civil actions. Sec\xc2\xad\ntion 810(a)(1) provides in part that the Secretary of Housing and Urban Devel\xc2\xad\nopment (Secretary) shall make an investigation \xe2\x80\x9cwhenever an aggrieved per\xc2\xad\nson, or the Secretary on the Secretary\xe2\x80\x99s own initiative, files a charge alleging a\ndiscriminatory housing practice.\xe2\x80\x9d If, after such an investigation, the Secretary\ndetermines that reasonable cause exists to believe the charge is true, the\nSecretary shall, on behalf of the aggrieved person filing the charge, either file\nan administrative complaint under \xc2\xa7 811 or refer the matter to the Attorney\nGeneral for the filing of an appropriate civil action under \xc2\xa7 813(b). See\n\xc2\xa7 810(c)(1).1\nSection 811(a) provides for an administrative hearing on the record, which\nmay result in an administrative order \xe2\x80\x9cproviding for such relief as may be\nappropriate (including compensation for all damages suffered by the aggrieved\nperson as a result of the discriminatory housing practice), and . . . a civil\npenalty of not to exceed $10,000.\xe2\x80\x9d The order of the administrative law judge is\nsubject to review on appeal by an appeals panel of the Fair Housing Review\nCommission. See \xc2\xa7\xc2\xa7 808(c), 811(a). A final order may be appealed within sixty\ndays to the appropriate court of appeals. See \xc2\xa7 811(b). Judicial review is\nconducted pursuant to the general provisions governing the review of orders of\ncertain federal agencies. See 28 U.S.C. \xc2\xa7\xc2\xa7 2341-2351. Findings of fact are\nconclusive if supported by substantial evidence in the record as a whole. The\nAttorney General is authorized to bring a civil action in district court to enforce\nany final order that is referred for enforcement by the Secretary, or to collect\nany civil penalty assessed by the administrative law judge under \xc2\xa7 811(d)(1)\nfor violation of a final order. See \xc2\xa7 813(b).\nAlternatively, \xc2\xa7 812(a)(1) authorizes a private aggrieved individual to com\xc2\xad\nmence a civil action in an appropriate federal or state court. In such actions, the\ncourt shall award such relief as may be appropriate, including \xe2\x80\x9cmoney damages,\nequitable and declaratory relief, and punitive damages.\xe2\x80\x9d \xc2\xa7 812(c). This relief is\nsimilarly authorized for civil actions brought by the Attorney General under \xc2\xa7 813.\nIf the Secretary has commenced an administrative hearing with respect to a\ncharge made by an individual to the Secretary, that individual may not com\xc2\xad\nmence a private civil action. See \xc2\xa7 812(a)(3). In parallel fashion, if an ag\xc2\xad\ngrieved individual has commenced a trial on the merits in a civil action, the\nSecretary may not commence administrative \xe2\x80\x9cproceedings toward the issuance\nof a remedial order based on such charge.\xe2\x80\x9d \xc2\xa7 812(a)(2).2\nThis scheme of mutually exclusive administrative and judicial enforcement\noptions has an anomalous effect on a party\xe2\x80\x99s right to a jury trial. On the one\n1 The Secretary m ust refer to Che A ttorney G eneral any \xe2\x80\x9ccharges involving the legality o r validity o f any\nState o r local zoning, o r other land use law o r ordinance, or any novel issue of law or fact or other\ncom plicating factor." \xc2\xa7 810(c)(2).\n2 The Secretary may also investigate housing practices sua sponte to determ ine w hether charges should be\nbrought. See \xc2\xa7 810(a)(1). The bill does not specify the forum in which such charges w ould be brought. W e\nassume that it was intended that such charges m ight proceed adm inistratively, although \xc2\xa7 810(c)(1)(A )\nsuggests that the adm inistrative forum is limited solely to charges filed on b ehalf o f aggrieved persons w ho\npreviously have filed charges with the Secretary.\n\n33\n\n\x0chand, no jury trial is available in the administrative proceedings. On the other\nhand, the Supreme Court has held that the Seventh Amendment entitles either\nparty to demand a jury trial in an action for damages in the federal courts under\ncurrent \xc2\xa7 812 of the Civil Rights Act of 1968, which, similar to proposed\n\xc2\xa7 812(a)(1), authorizes private plaintiffs to bring civil actions to redress viola\xc2\xad\ntions of the fair housing provisions of the Act. See Curtis v. Loether, 415 U.S.\n189 (1974). Consequently, although a defendant would be entitled to a jury if a\nplaintiff proceeds in federal court, the same defendant would have no right to a\njury trial if an aggrieved person flies a complaint with the Secretary and the\nSecretary subsequently files an administrative complaint.3\nIn order to resolve the constitutionality of this multiple enforcement scheme,\nwe must address the following questions:\n1. Can Congress constitutionally vest adjudication of housing discrimination\nclaims in an administrative tribunal, in which there would be no right to a jury\ntrial?\n2. Given that a defendant would constitutionally be entitled to a jury trial in\na damages action brought in federal court under the Fair Housing Act, can\nCongress simultaneously provide for an essentially similar action before an\nadministrative tribunal, in which there would be no right to a jury trial, without\nviolating the defendant\xe2\x80\x99s Seventh Amendment right?\n3. Assuming that there are no Seventh Amendment concerns, does the\nstatutory scheme nevertheless deny the defendant due process insofar as the\ndefendant landlord\xe2\x80\x99s jury trial right is in large part contingent on the procedural\nchoices of other parties?\n\nII. Analysis\n1. Can Congress constitutionally vest adjudication o f housing discrimina\xc2\xad\ntion claims in an administrative tribunal, in which there would be no right to a\njury trial? Before determining whether administrative adjudication of Fair\nHousing Act violations would offend an individual\xe2\x80\x99s Seventh Amendment\nright, a threshold question is whether administrative adjudication of the rights\ncreated by the Fair Housing Act comports with Article III of the Constitution. If\nCongress cannot constitutionally vest adjudication of certain housing discrimi\xc2\xad\nnation claims in a non-Article III tribunal, then we need not reach the narrower\nSeventh Amendment issue.\nArticle III of the Constitution provides in part: \xe2\x80\x9cThe judicial Power of the\nUnited States, shall be vested in one supreme Court, and in such inferior Courts\nas the Congress may from time to time ordain and establish.\xe2\x80\x9d U.S. Const, art.\n3 The reasoning o f C urtis v. Loether m ight also apply if the Secretary refers the m atter to the A ttorney\nG eneral and the A ttorney G eneral brings a c iv il action in federal court under \xc2\xa7 813. A ccordingly, a defendant\'s\nrig h t to a ju ry trial m ight also be affected by th e S ecretary\'s determ ination either to proceed adm inistratively\no r to refer the m atter to the A ttorney General fo r judicial proceedings. Because the Suprem e Court has never\ndeterm ined w hether the Seventh Amendment is applicable to governm ent-initiated litigation, how ever, we\ndecline to reach this issue. See Atlas Roofing Co. v. O ccupational Safety a nd H ealth R eview C om m \xe2\x80\x99n , 430\nU .S. 442, 4 4 9 -5 0 n.6 (1977).\n\n34\n\n\x0cIll, \xc2\xa7 1. Moreover, \xe2\x80\x9cJudges, both of the supreme and inferior Courts,\xe2\x80\x9d enjoy\ntenure \xe2\x80\x9cduring good Behavior,\xe2\x80\x9d and receive salaries not subject to diminution\nduring their term of office. Id. There is no question that S. 1220 does not extend\nthe Article III protections of life tenure and undiminished salary to the admin\xc2\xad\nistrative law judges who would hear complaints filed by the Secretary under\n\xc2\xa7 811. We therefore first examine whether Congress may commit adjudication\nof housing discrimination complaints brought by the Secretary on behalf of an\nindividual, who may obtain relief in the form of compensatory damages, to\nofficers not enjoying life tenure and irreducible compensation.\nIn creating statutory rights, Congress has considerable discretion to define in\nwhat manner and forum such rights may be vindicated. See Crowell v. Benson,\n285 U.S. 22, 50-51 (1932); Murray\xe2\x80\x99s Lessee v. Hoboken Land & Improvement\nCo., 59 U.S. (18 How.) 272, 284 (1856). Unfortunately, Supreme Court deci\xc2\xad\nsions defining the scope of Congress\xe2\x80\x99 discretion to vest federal judicial power\nin non-Article III tribunals involve one of the most confusing and controversial\nareas of constitutional law, Glidden Co. v. Zdanok, 370 U.S. 530, 534 (1962)\n(plurality opinion), and \xe2\x80\x9cdo not admit of easy synthesis,\xe2\x80\x9d Northern Pipeline\nCo. v. Marathon Pipe Line Co., 458 U.S. 50, 91 (1982) (Rehnquist, J., concur\xc2\xad\nring in judgment).\nIn particular, the Court\xe2\x80\x99s latest Article III pronouncement in Northern Pipe\xc2\xad\nline, which concluded that the broad grant of jurisdiction to non-Article III\nbankruptcy courts was incompatible with the Constitution, failed to establish a\nunitary or comprehensive Article III jurisprudence. Northern Pipeline raised\nthe question whether a non-Article III bankruptcy court could adjudicate a\ncommon law contract claim, brought by a company undergoing Chapter 11\nreorganization against its purported debtor. Six Justices agreed that Article III\nprohibits a non-Article III federal tribunal from adjudicating state common law\nclaims over the objection of a party. Id. at 87 (plurality opinion); id. at 91\n(Rehnquist, J., concurring in judgment). Because only four members of the\nCourt joined in the plurality\xe2\x80\x99s elaboration of Article III principles, we must\nexplore the current problem not only in light of the plurality opinion but also\nwith regard to the views of the concurring Justices.\nThe plurality opinion in Northern Pipeline examined two theories pursuant\nto which Congress may vest judicial power in non-Article III tribunals: the\n\xe2\x80\x9clegislative court\xe2\x80\x9d exception and the Article III court \xe2\x80\x9cadjunct\xe2\x80\x9d theory. Ac\xc2\xad\ncording to the plurality, Congress may vest judicial power in legislative courts\nin \xe2\x80\x9cthree narrow situations,\xe2\x80\x9d all of which involve exceptional grants of power\nto the Executive and Legislative Branches. Id. at 64. These legislative court\nexceptions include \xe2\x80\x9cterritorial courts,\xe2\x80\x9d see American Ins. Co. v. Canter, 26\nU.S. (1 Pet.) 511, 546 (1828), \xe2\x80\x9ccourts-martial,\xe2\x80\x9d see Dynes v. Hoover, 61 U.S.\n(20 How.) 65, 79 (1857), and cases involving \xe2\x80\x9cpublic rights,\xe2\x80\x9d see Murray\xe2\x80\x99s\nLessee, 59 U.S. (18 How.) at 284. The plurality\xe2\x80\x99s \xe2\x80\x9cadjunct\xe2\x80\x9d theory was based\non the recognition that Article III \xe2\x80\x9cdoes not require \xe2\x80\x98all determinations of fact\n[to] be made by judges;\xe2\x80\x99 with respect to congressionally created rights, some\nfactual determinations may be made by a specialized fact-finding tribunal\n35\n\n\x0cdesigned by Congress, without constitutional bar.\xe2\x80\x9d Northern Pipeline, 458\nU.S. at 81 (quoting Crowell v. Benson, 285 U.S. at 51) (citation omitted). But\nthe functions of the adjunct must be limited so that \xe2\x80\x9cthe essential attributes\xe2\x80\x9d of\njudicial power are retained in an Article III court. Id.\nThe adjudicatory scheme for housing discrimination claims created by S.\n1220 clearly does not fall within the legislative court exception for territorial\ncourts or courts-martial. A persuasive argument can be made, however, that S.\n1220 creates a \xe2\x80\x9cpublic right\xe2\x80\x9d in establishing a duty not to discriminate in the\nprovision of housing. The \xe2\x80\x9cpublic rights\xe2\x80\x9d doctrine was initially articulated in\nM urray\xe2\x80\x99s Lessee:\n[W]e do not consider congress can either withdraw from judicial\ncognizance any matter which, from its nature, is the subject of a\nsuit at the common law, or in equity, or admiralty; nor, on the\nother hand, can it bring under the judicial power a matter which,\nfrom its nature, is not a subject for judicial determination. At the\nsame time there are matters, involving public rights, which may\nbe presented in such form that the judicial power is capable of\nacting on them, and which are susceptible of judicial determina\xc2\xad\ntion, but which Congress may or may not bring within the cogni\xc2\xad\nzance of the courts of the United States, as it may deem proper.\n59 U.S. (18 How.) at 284. That is, because Congress may constitutionally\ncommit to nonjudicial executive determination matters that arise between the\ngovernment and its citizens \xe2\x80\x9cin connection with the performance of the consti\xc2\xad\ntutional functions of the executive or legislative departments,\xe2\x80\x9d Crowell v.\nBenson, 285 U.S. at 50, Congress is equally free to commit the determination\nof such matters to legislative courts or administrative agencies. Matters that fall\nwithin the public rights doctrine may involve the entire range of Congress\xe2\x80\x99\nArticle I powers: \xe2\x80\x9cFamiliar illustrations of administrative agencies created for\nthe determination of such matters are found in connection with the exercise of\nthe congressional power as to interstate and foreign commerce, taxation, immi\xc2\xad\ngration, the public lands, public health, the facilities of the post office, pensions\nand payments to veterans.\xe2\x80\x9d Id. at 51; see also Atlas Roofing Co. v. Occupa\xc2\xad\ntional Safety & Health Review Comm\xe2\x80\x99n, 430 U.S. 442,456-57 (1977); Oceanic\nSteam Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909).4\nThe difficulty, as the Supreme Court has conceded, is that \xe2\x80\x9cthe distinction\nbetween public rights and private rights has not been definitively explained in\n[the Court\xe2\x80\x99s] precedents.\xe2\x80\x9d Northern Pipeline, 458 U.S. at 69 (plurality opin\xc2\xad\nion). A threshold definition of public rights is that they arise \xe2\x80\x9cbetween the\ngovernment and others.\xe2\x80\x9d Ex parte Bakelite Corp., 279 U.S. 438,451 (1929). Private\nrights, in contrast, involve \xe2\x80\x9cthe liability of one individual to another under the\n4 The C o u rt has refused to lim it Congress\' discretion to create public rights and to establish legislative\ntribun als in w hich to adjudicate them to p articu lar A rticle 1 g ran ts o f pow er that might be deem ed \xe2\x80\x9cinherently\nin the e x clu siv e dom ain o f the Federal G overnm ent and critical to its very existence \xe2\x80\x94 the pow er over\nim m igration, the im portation o f goods, and taxation.*\xe2\x80\x99 A tla s Roofing Co., 430 U.S. at 456.\n\n36\n\n\x0claw as defined.\xe2\x80\x9d Crowell v. Benson, 285 U.S. at 51. Moreover, \xe2\x80\x9cthe presence of\nthe United States as a proper party to the proceeding is a necessary but not\nsufficient means of distinguishing \xe2\x80\x98private rights\xe2\x80\x99 from \xe2\x80\x98public rights.\xe2\x80\x99\xe2\x80\x9d North\xc2\xad\nern Pipeline, 458 U.S. at 69 n.23 (plurality opinion).\nIn the administrative scheme established by S. 1220, the Secretary files a\ncomplaint \xe2\x80\x9con behalf of the aggrieved person.\xe2\x80\x9d \xc2\xa7 810(c)(1)(A). The aggrieved\nperson has the right to intervene in the proceedings. \xc2\xa7 811(a). Although the\nadministrative official has discretion to provide compensatory damages relief\nfor the aggrieved person, the bill does not authorize the administrative award of\npunitive damages (which are available in individual court actions brought\nunder \xc2\xa7 812). Further, a civil penalty not to exceed $10,000 is available to the\ngovernment. In these latter two respects \xe2\x80\x94 the exclusion, in the administrative\nproceeding, of punitive damages for the individual and the availability of a\ncivil penalty for the government \xe2\x80\x94 S. 1220 differs from an earlier housing\ndiscrimination bill that this Office concluded was constitutionally vulnerable.\nSee \xe2\x80\x9cFair Housing \xe2\x80\x94 Civil Rights Act,\xe2\x80\x9d 2 Op. O.L.C. 16 (1978). The earlier\nbill authorized administrative officials to award punitive damages to individu\xc2\xad\nals and did not provide for a civil penalty for the government.\nWe believe it is a close question whether the government has simply stepped\ninto the individual\xe2\x80\x99s shoes in this administrative proceeding, and is suing in a\nrepresentative capacity, or whether S. 1220 in fact creates a public right that,\nconsistent with Article III, may be adjudicated in an administrative tribunal. Cf.\nEEOC v. Corry Jamestown Corp., 719 F.2d 1219, 1225 (3d Cir. 1983) (EEOC\nhas right to jury trial in court action under Age Discrimination in Employment\nAct in order to avoid \xe2\x80\x9cinequitable and anomalous result\xe2\x80\x9d of individual losing\nhis Seventh Amendment right whenever EEOC sues on his behalf). This\ndetermination is complicated because S. 1220 concurrently provides for an\nessentially similar individual damages action in court, an action that resembles\nthe current damages action under the Fair Housing Act. The Supreme Court has\ndeclared that existing actions under \xc2\xa7 812 are actions \xe2\x80\x9cto enforce \xe2\x80\x98legal rights\xe2\x80\x99\nwithin the meaning of our Seventh Amendment decisions,\xe2\x80\x9d Curtis v. Loether,\n415 U.S. at 195, and are \xe2\x80\x9canalogous to a number of tort actions recognized at\ncommon law,\xe2\x80\x9d id. Significantly, there are only minimal differences between\nthe relief available in the administrative forum (in which a civil penalty for the\ngovernment replaces punitive damages for the individual) and the judicial\nforum.\nNonetheless, there are clearly precedents for administrative bodies both\nenforcing public policy and providing incidental relief, including monetary\nrelief, to private citizens. As courts have recently noted in the context of\nadministratively determined reparations awards under the Commodity Ex\xc2\xad\nchange Act, the fact that new statutory rights are enforceable in favor of a\nprivate party does not preclude administrative adjudication of such rights.\nMyron v. Hauser, 673 F.2d 994,1005 (8th Cir. 1982) (citing Atlas Roofing Co.,\n430 U.S. at 452-55); Rosenthal & Co. v. Bagley, 581 F. 2d 1258,1261 (7th Cir.\n1978) (same). In NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937), for\n37\n\n\x0cexample, the Court upheld an administrative award of both reinstatement and\nback pay for an employee. Somewhat similarly, in Block v. Hirsh, 256 U.S.\n135 (1921), the Court rejected a constitutional challenge to a statute that\ntemporarily suspended the legal remedy of ejectment and established an ad\xc2\xad\nministrative tribunal to determine fair rents while tenants held over notwith\xc2\xad\nstanding the expiration of their leases. Just as the Northern Pipeline plurality\ndistinguished between the restructuring of debtor-creditor relations, which\n\xe2\x80\x9cmay well be a \xe2\x80\x98public right,\xe2\x80\x99\xe2\x80\x9d 458 U.S. at 71, and the adjudication of statecreated private rights, a distinction exists between the government-prosecuted\nadministrative proceeding in S. 1220 and the individual damages action in\nfederal court.\nUnquestionably, the determination that S. 1220 creates a public right would\nbe considerably simplified if no compensatory relief were available to the\nindividual in the administrative proceeding. We believe, however, that the\ncourts would conclude that insofar as S. 1220 creates a right (1) in an area of\nimportant public concern, cf. Bob Jones Univ. v. United States, 461 U.S. 574,\n594-96 (1983) (identifying a firm national policy against racial discrimina\xc2\xad\ntion), (2) that is enforceable by the government in an administrative action, (3)\nprovides a civil penalty for the government, and (4) does not to provide the\naggrieved individual the punitive damages typically available at common law,\nsee Richerson v. Jones, 551 F.2d 918, 926-28 (3d Cir. 1977), it probably is to\nbe characterized as a. public right.\nThis determination is consistent with case law that has rejected Article III\nand Seventh Amendment challenges to the reparations procedure of the Com\xc2\xad\nmodity Exchange Act (CEA), 7 U.S.C. \xc2\xa7 18 (1976), under which an individual\nmay obtain a monetary award from an administrative tribunal. The 1974\namendments to the CEA established a reparations procedure, \xe2\x80\x9canalogous to the\noperation of a small claims court,\xe2\x80\x9d S. Rep. No. 850, 95th Cong., 2d Sess. 16\n(1978), in which a customer, often representing himself pro se, could obtain\ndamages from registered commodities brokers and certain other professionals\nfor violations of the CEA or any Commodity Futures Trading Commission\n(CFTC) regulations, rules, or orders. Myron v. Hauser, 673 F.2d at 1001;\nRosenthal & Co. v. Bagley, 581 F.2d at 1259. Under the 1974 amendments, an\nindividual could file a complaint with the CFTC, which was authorized to\ninvestigate the complaint. 7 U.S.C. \xc2\xa7 18(a), (b) (1976). If the CFTC determined\nthat the \xe2\x80\x9cfacts warranted such action,\xe2\x80\x9d the CFTC notified the accused commod\xc2\xad\nity professional and afforded a hearing before an administrative official. Id.\n\xc2\xa7 18(b).5 Thus, although the CFTC provided a forum for resolution of these\ns T he 1983 am endm ents sim plified the statutory procedural requirem ents, but did not alter the adm inistra\xc2\xad\ntive schem e in any significant manner. The C E A now provides that any person com plaining o f a violation of\nthe C EA by any registered person may \xe2\x80\x9cap p ly to the C om m ission for an order aw arding actual damages\nproxim ately caused by such violation.\xe2\x80\x9d 7 U .S.C. \xc2\xa7 18(a). T he 1983 am endm ents elim inated the specific\nprovisions em pow ering the C FTC to investigate any com plaint, and requiring the CFTC to forward the\ncom plaint, if w arranted, to the respondent fo r an answ er. The C FTC now has general discretion to \xe2\x80\x9cprom ul\xc2\xad\ngate such ru les, regulations, and orders as it deem s necessary o r appropriate for the efficient and expeditious\nadm inistration o f this section.\xe2\x80\x9d Id. \xc2\xa7 18(b).\n\n38\n\n\x0cclaims, it did not directly assume a prosecutorial role. Rather, complainants\ncould retain private counsel or represent themselves before the administrative\nlaw judge. Myron v. Hauser, 673 F.2d at 1001.\nThe Bagley court summarily dismissed an Article III objection to this congressionally-mandated scheme for administrative adjudication of reparations\nclaims as \xe2\x80\x9cnot even arguable.\xe2\x80\x9d 581 F.2d at 1261. The court in Myron v. Hauser,\nhowever, explained why it did not think that purely private rights were in\xc2\xad\nvolved in the administrative proceedings. Although conceding that \xe2\x80\x9cthe present\ncase is not one \xe2\x80\x98in which the Government sues in its sovereign capacity to\nenforce public rights,\xe2\x80\x99\xe2\x80\x9d the court nevertheless believed that the case was \xe2\x80\x9cone\nin which \xe2\x80\x98the Government [was] involved in its sovereign capacity under an\notherwise valid statute creating enforceable public rights.\xe2\x80\x99\xe2\x80\x9d 673 F.2d at 1005\n(emphasis added; citations omitted). Because Congress, acting under the Com\xc2\xad\nmerce Clause, had regulated commodity options transactions, the court re\xc2\xad\ngarded the case \xe2\x80\x9cin a functional sense [as] one between the government and the\ncommodity options broker, the party subject to government regulation.\xe2\x80\x9d Id.\nUnder S. 1220, Congress would not simply be regulating the nondiscriminatory provision of housing; the government would also be prosecuting alleged\nviolations of the Fair Housing Act in administrative proceedings. If the Myron\ncourt concluded that the CEA created a public right that could be adjudicated in\nan administrative tribunal, even though the statute was enforceable by, and in\nfavor of, private parties, then it certainly would conclude that S. 1220, which is\nenforceable by the government, creates a public right, the benefits of which\nalso redound in part to aggrieved individuals.\nAlternatively, the use of administrative tribunals to adjudicate the right to\nnondiscriminatory housing created by S. 1220 might be validated by the \xe2\x80\x9cad\xc2\xad\njunct\xe2\x80\x9d theory articulated by the plurality in Northern Pipeline. The plurality\nregarded Crowell v. Benson and United States v. Raddatz, 447 U.S. 667 (1980),\nas establishing two principles that define the extent to which Congress may\nconstitutionally vest judicial functions in non-Article III adjuncts. First, \xe2\x80\x9cwhen\nCongress creates a substantive federal right, it possesses substantial discretion\nto prescribe the manner in which that right may be adjudicated including the\nassignment to an adjunct of some functions historically performed by judges.\xe2\x80\x9d\nNorthern Pipeline, 458 U.S. at 80 (plurality opinion). Second, \xe2\x80\x9cthe functions of\nthe adjunct must be limited in such a way that \xe2\x80\x98the essential attributes\xe2\x80\x99 of\njudicial power are retained in the Art. Ill court.\xe2\x80\x9d Id. at 81.\nIn Crowell, the Supreme Court upheld an administrative agency\xe2\x80\x99s power to\nmake factual determinations concerning the nature and extent of employee\ninjuries, pursuant to a federal statute requiring employers to compensate their\nemployees for work-related injuries occurring upon the navigable waters of the\nUnited States. In Raddatz, the Court upheld the Federal Magistrates Act, which\npermits magistrates to adjudicate, subject to de novo review by the district\ncourt, certain pretrial motions involving constitutional claims. Because Crowell,\nlike S. 1220, involved congressionally created rights (in contrast to common\nlaw or constitutional claims), with respect to which Congress possesses rela\xc2\xad\n39\n\n\x0ctively broad discretion to assign fact-finding to adjuncts, it is the more relevant\ntouchstone for the present analysis.6\nIn Crowell, the administrative agency performed an admittedly narrower\nfunction than would the agency under S. 1220. The federal statute at issue there\nprovided for compensation of injured employees \xe2\x80\x9cirrespective of fault\xe2\x80\x9d and\nprescribed a fixed schedule of compensation. 285 U.S. at 38. In view of these\nlimitations on the agency\xe2\x80\x99s functions and powers, the Court found that the\nagency\xe2\x80\x99s determinations were \xe2\x80\x9cclosely analogous to findings of the amount of\ndamages that are made, according to familiar practice, by commissioners or\nassessors.\xe2\x80\x9d Id. at 54. Although S. 1220 does not impose such narrow limitations\non the housing discrimination agency\xe2\x80\x99s fact-finding powers, neither does the\nbill create adjuncts with powers as broad as those possessed by the bankruptcy\ncourts at issue in Northern Pipeline.\nThe Bankruptcy Act of 1978 vested bankruptcy judges with all the powers of\na court of equity, law, and admiralty, including the power to preside over jury\ntrials, to issue writs of habeas corpus, and to issue any order or judgment\nappropriate for the enforcement of the provisions of Title 11. Northern Pipe\xc2\xad\nline, 458 U.S. at 85 (plurality opinion).7 In contrast, the administrative tribunal\nin S. 1220, similar to the agency considered in Crowell, lacks many of these\npowers, and specifically has no power to enforce its orders. Moreover, the\nsubject matter jurisdiction of the agency created under S. 1220 is limited to\ncongressionally-created claims of housing discrimination, whereas the juris\xc2\xad\ndiction of the bankruptcy courts under the 1978 Bankruptcy Act encompassed\nnot only traditional matters of bankruptcy, but also all civil proceedings arising\nunder or related to cases under Title 11. See 28 U.S.C. \xc2\xa7 1471(b) (Supp. IV\n1980) (emphasis added).\nAccording to both the Northern Pipeline plurality and the Court in Crowell,\nthe most significant aspect of the adjunct scheme challenged in Crowell was\nthat \xe2\x80\x98\xe2\x80\x9c the reservation of full authority to the court to deal with matters of law\nprovides for the appropriate exercise of the judicial function in this class of\ncases.\xe2\x80\x99\xe2\x80\x9d Northern Pipeline, 458 U.S. at 81 (quoting Crowell v. Benson, 285\nU.S. at 54). S. 1220 provides that the factual findings of the agency are\nconclusive if supported by substantial evidence, but the reviewing judicial\ncourt retains greater authority with respect to matters of law.8 Because S. 1220\n6 The N orthern P ipeline plurality em phasized that C ongress does not possess the same degree o f discretion\nto assign \xe2\x80\x9ctraditionally ju d ic ia l power to adjuncts engaged in the adjudication o f rights not created by\nC o n g ress,\xe2\x80\x99\' 458 U.S. at 8 1 - 82, and noted th a t \xe2\x80\x9cC ongress\xe2\x80\x99 assignm ent o f adjunct functions under the Federal\nM agistrates A ct [under w hich constitutional, as opposed to solely congressionally-created, rights could be\nadjudicated] w as substantially narrower th a n under the statute challenged in C r o w e l l i d . at 82.\n7 T he only exception to these w ide-ranging pow ers was that bankruptcy courts could \xe2\x80\x9cnot enjoin another\nc ou rt o r punish a crim inal contem pt not co m m itted in the presence o f the judge o f the court or w arranting a\npunishm ent o f im prisonm ent.\xe2\x80\x9d 28 U.S.C. \xc2\xa7 1481 (Supp. IV. 1980) (quoted in Northern Pipeline, 458 U.S. at\n55 (plurality opinion)).\n8 See 28 U .S.C . \xc2\xa7 2347; F lorida E. C oast Ry. v. U nited States, 242 F. Supp 490, 491 (M.D. Fla.) (statute\npro v id in g for ju d icial review o f agency action requires th at prim ary function o f review ing court is to\nd eterm ine w hether there is substantial evidence on the record as a w hole to support findings of agency, and\nw h eth er agency applied proper legal standards in conduct o f proceedings before it and in conclusions that it\nC ontinued\n\n40\n\n\x0cinvolves a congressionally-created right, in distinction to the state common law\nclaim at issue in Northern Pipeline, we do not believe that the assignment of\ninitial adjudicatory functions to an adjunct administrative tribunal is necessar\xc2\xad\nily incompatible with Article III. Cf. Schor v. CFTC, 740 F.2d 1262 (D.C. Cir.\n1984) (holding that Northern Pipeline principles concerning congressional\ndiscretion to assign judicial power to adjuncts were not satisfied in case\ninvolving agency jurisdiction over common law claim). Because this determi\xc2\xad\nnation is a close and questionable one, however, we prefer to base our conclu\xc2\xad\nsion \xe2\x80\x94 that S. 1220 does not violate Article III by vesting administrative\nofficials with power to adjudicate fair housing claims \xe2\x80\x94 on the \xe2\x80\x9cpublic rights\xe2\x80\x9d\ntheory.\nThe concurrence in Northern Pipeline offers little to either support or detract\nfrom the above conclusions regarding S. 1220. The concurrence limited its\nholding to the case before it, concluding that the Bankruptcy Act of 1978\nviolated Article III to the extent that it permitted a non-Article III tribunal to\nadjudicate a state common law claim. 458 U.S. at 91. But \xe2\x80\x9csensible interpreta\xc2\xad\ntion of judicial opinions avoids converting a carefully crafted limitation on a\nholding into its ratio decidendi." Schor v. CFTC, 740 F.2d at 1275. Quite\nsimply, the concurrence provides scant insight concerning whether S. 1220\ncreates either a public right or a constitutionally acceptable adjunct system.\nBecause the Article III principles supporting the concurring opinion are in any\nevent no stricter than the plurality\xe2\x80\x99s Article III principles, we believe that to the\nextent S. 1220 passes muster under the plurality\xe2\x80\x99s \xe2\x80\x9cpublic rights\xe2\x80\x9d theory, it\nwould probably be endorsed by a majority of the Court.\nB. Given that a defendant would constitutionally be entitled to a jury trial in\na damages action brought in federal court under the Fair Housing Act, can\nCongress simultaneously provide fo r an essentially similar action before an\nadministrative tribunal, in which there would be no right to jury trial, without\nviolating the defendant\xe2\x80\x99s Seventh Amendment right? Assuming that S. 1220\ncreates a public right, there is no question that Congress has discretion to assign\nthe adjudication thereof to an administrative agency free from the strictures of\nthe Seventh Amendment: \xe2\x80\x9cWhen Congress creates new statutory \xe2\x80\x98public rights,\xe2\x80\x99\nit may assign their adjudication to an administrative agency with which a jury\ntrial would be incompatible, without violating the Seventh Amendment\xe2\x80\x99s in\xc2\xad\njunction that jury trial is to be \xe2\x80\x98preserved\xe2\x80\x99 in \xe2\x80\x98suits at common law.\xe2\x80\x99\xe2\x80\x9d Atlas\nRoofing Co., 430 U.S. at 455; see also NLRB v. Jones & Laughlin Steel Corp.,\n301 U.S. at 48\xe2\x80\x9449. S. 1220, however, does not simply assign adjudication of a\n8 ( . . . continued)\nreached), a f f d , 382 U.S. 161 (1965); see also U niversal Cam era Corp. v. N LR B , 340 U.S. 474, 491 (1951)\nSuch a standard o f review does not perm it the review ing court to substitute its own views for the a g en cy \'s\njudgm ent, if that ju dgm ent has support in the record and applicable law, see Am erican Textile Mfrs Inst. v.\nD onovan, 452 U.S. 490, 523 (1981); N ew York v. United States, 299 F. Supp. 989, 997 (N.D.N.Y. 1969),\na f f d t 396 U.S. 281 (1970), but it does leave questions o f law to the court\xe2\x80\x99s determ ination, N LRB v. Yeshiva\nU niversity, 444 U.S. 672, 691 (1980); Florida P o w er & Light Co. v. E lectrical Workers, 417 U.S. 790, 803\n(1974); cf. NLRB v. B ell A erospace Co., 416 U.S. 267 (1974); N LRB v. H earst Publications, Inc , 322 U.S.\nI l l , 130-31 (1944).\n\n41\n\n\x0cpublic right to an administrative tribunal. It simultaneously establishes a statu\xc2\xad\ntory cause of action (to remedy the same underlying housing discrimination\nclaim) that an individual may bring in state or federal court.\nThis individual damages action is virtually identical to the cause of action at\nissue in Curtis v. Loether.9 In that case, the Court held that parties to such an\naction in federal court are entitled to a jury trial on demand. 415 U.S. at 19597. The Court explained that the right to jury trial extends beyond the common\nlaw forms of action recognized in 1791, and that the Court has often found the\nSeventh Amendment applicable to causes of action based on statutes. Id. at\n193. In general, \xe2\x80\x9cwhen Congress provides for enforcement of statutory rights in\nan ordinary civil action in the district courts, where there is obviously no\nfunctional justification for denying the jury trial right, a jury trial must be\navailable if the action involves rights and remedies of the sort typically en\xc2\xad\nforced in an action at law.\xe2\x80\x9d Id. at 195. Because a damages action under the Fair\nHousing Act \xe2\x80\x9cis analogous to a number of tort actions recognized at common\nlaw,\xe2\x80\x9d the Court concluded that it \xe2\x80\x9cis an action to enforce \xe2\x80\x98legal rights\xe2\x80\x99 within\nthe meaning of our Seventh Amendment decisions.\xe2\x80\x9d Id. Consequently, to the\nextent S. 1220 provides for enforcement in federal court of a statutory action\ninvolving legal rights and remedies that the Court has deemed analogous to\ncertain common law actions, a jury trial is constitutionally required upon\ndemand. Id. at 195; Pemell v. Southall Realty, 416 U.S. 363, 383 (1974).\nThe critical question posed by S. 1220 is whether a statutory right to be free\nfrom discrimination in the sale, rental, or financing of housing can be both a\nright enforceable in an administrative action absent a jury trial and a right\nenforceable in federal court with a jury upon demand.\nThe Court has long recognized that Congress has discretion to vest the\ndetermination of public rights in judicial or administrative tribunals. Thus,\nCongress:\nin exercising the powers confided to it, may establish \xe2\x80\x9clegisla\xc2\xad\ntive\xe2\x80\x9d courts . . . to serve as special tribunals \xe2\x80\x9cto examine and\ndetermine various matters, arising between the government and\nothers, which from their nature do not require judicial determi\xc2\xad\nnation and yet are susceptible of it.\xe2\x80\x9d But \xe2\x80\x9cthe mode of determin\xc2\xad\ning matters of this class is completely within congressional\ncontrol. Congress may reserve to itself the power to decide, may\ndelegate that power to executive officers, or may commit it to\njudicial tribunals.\xe2\x80\x9d\nCrowell v. Benson, 285 U.S. at 50 (quoting Ex parte Bakelite Corp., 279 U.S. 438,\n451 (1929)). Similarly, the plurality in Northern Pipeline acknowledged that:\nwhen Congress creates a statutory right, it clearly has the discre\xc2\xad\ntion, in defining that right, to create presumptions, or assign\n9 The only difference is that the current Fair H ousing A ct provision, which was addressed in C urtis v.\nL o eth er, lim its the in d iv id u al\xe2\x80\x99s punitive dam ag es to $1,000. S ee 42 U.S C \xc2\xa7 3612. S. 1220 places no lim it on\nthe punitive dam ages av ailab le to an individual in a civil court action. See \xc2\xa7 812(c).\n\n42\n\n\x0cburdens of proof, or prescribe remedies; it may also provide that\npersons seeking to vindicate that right must do so before particu\xc2\xad\nlarized tribunals created to perform the specialized adjudicative\ntasks related to that right. Such provisions do, in a sense, affect\nthe exercise of judicial power, but they are also incidental to\nCongress\xe2\x80\x99 power to define the right that it has created.\n458 U.S. at 83 (footnote omitted).\nIn light of Congress\xe2\x80\x99 substantial discretion to prescribe the manner in which\n\xe2\x80\x9cpublic\xe2\x80\x9d or statutorily created rights may be adjudicated, we cannot conclude\nthat Congress deprives itself of the power to vest a statutorily created right to\nnondiscriminatory housing in an administrative agency simply because it also\nhas provided for the enforcement of the same statutory housing right in the\nfederal courts in which a jury trial must be available. That is, we believe that\nCongress may create a statutory right that, depending on its mode of enforce\xc2\xad\nment, the forum in which it is to be resolved, or the nature of the remedy\navailable, could be viewed either as a public or a private right. Cf. Merrill\nLynch, Pierce, Fenner & Smith v. Curran, 456 U.S. 353, 384-88 (1982)\n(holding that implied private cause of action in court is available under Com\xc2\xad\nmodity Exchange Act, although Act also expressly provides for administrative\nreparations procedure and arbitration procedure).\nPrior cases consistently indicate that the Seventh Amendment does not\nprohibit Congress from assigning the adjudication of statutory rights to an\nadministrative forum, even if a jury would have been required constitutionally\nhad Congress assigned adjudication of those same rights to a federal court\ninstead. Atlas Roofing Co., 430 U.S. at 455 (discussing Pemell v. Southall\nRealty, NLRB v. Jones & Laughlin Steel Corp., and Block v. Hirsh). In Pemell\nv. Southall Realty, the Court held that because Congress provided that statutory\nactions for repossession of property \xe2\x80\x94 which resembled common law actions\nto recover land \xe2\x80\x94 be brought as civil actions in court, the Seventh Amendment\nrequired preservation of the right to jury trial. 416 U.S. at 384. The Court\ncarefully noted, however, that \xe2\x80\x9cwe may assume that the Seventh Amendment\nwould not be a bar to a congressional effort to entrust landlord-tenant disputes,\nincluding those over the right to possession [and therefore analogous to a\ncommon law action], to an administrative agency.\xe2\x80\x9d Id.\nSimilarly, in Atlas Roofing Co., in which the petitioners strenuously argued\nthat the statutory civil penalty proceeding in issue there was a suit at common\nlaw within the meaning of the Seventh Amendment, the Court concluded that\n\xe2\x80\x9ceven if the Seventh Amendment would have required a jury where the adjudi\xc2\xad\ncation of those rights is assigned to a federal court of law,\xe2\x80\x9d 430 U.S. at 455, the\nAmendment did not prevent Congress from assigning adjudication of such civil\npenalties to an administrative agency with which a jury trial would be incom\xc2\xad\npatible. Id. at 455, 461.\nFinally, in Block v. Hirsh, 256 U.S. 135 (1921), the Court upheld Congress\xe2\x80\x99\npower to transfer temporarily to an administrative commission jurisdiction\n43\n\n\x0cover an entire range of landlord-tenant disputes that previously had been\nadjudicated in court with a jury trial right. If Congress by statute could wholly,\nalbeit temporarily, remove a set of common law actions from the courts and\nsubject the regulation and adjudication of the same underlying property rights\nto an administrative agency, then the Seventh Amendment would not appear to\nbar the less drastic action of providing simultaneously for the adjudication of a\nstatutory right in individual judicial actions and in administrative proceedings\nprosecuted by the government.10 As the Court explained in Atlas Roofing,\nCongress cannot utterly destroy the right to a jury trial by providing for\nadministrative rather than judicial resolution of the vast range of wholly private\ntort, contract, and property cases that now arise in the courts. 430 U.S. at 45758. But \xe2\x80\x9cwhere the Government is involved in its sovereign capacity under an\notherwise valid statute creating enforceable public rights,\xe2\x80\x9d id. at 458, then the\nright to a jury trial may well be affected by the identity of the forum to which\nCongress chooses to submit a dispute, id. at 457-58. See also Myron v. Hauser,\n673 F.2d at 1004 (\xe2\x80\x9cright to a jury trial turns not solely on the nature of the issue\nto be resolved but also on the forum in which it is to be resolved\xe2\x80\x9d); Rosenthal &\nCo. v. Bagley, 581 F.2d at 1261 (same).\nAlthough we are unaware of statutory schemes in which the individual\xe2\x80\x99s jury\ntrial right is contingent on whether the government enforcement official chooses\nto proceed in an administrative forum or an individual proceeds in court, we\nfind nothing in the Seventh Amendment that would prohibit such a congressionally devised system." The Supreme Court has stated that \xe2\x80\x9cCongress is not\nrequired by the Seventh Amendment to choke the already crowded federal\ncourts with new types of litigation or prevented from committing some new\ntypes of litigation to administrative agencies with special competence in the\nrelevant field.\xe2\x80\x9d Atlas Roofing Co., 430 U.S. at 455. Nor do we find anything\ninherently impermissible in Congress making a jury trial available in certain\ninstances but not in others in the enforcement of the same right. In Ross v.\nBernhard, 396 U.S. 531 (1970), the Court acknowledged that prior to the\nadoption of the Federal Rules of Civil Procedure in 1938, which merged the\nlaw and equity functions of the federal courts, a defendant would not be entitled\nto a jury trial in a stockholder\xe2\x80\x99s derivative suit, even though the defendant\n10 W e also note that C ongress has the p o w e r to avoid the strictures o f the Seventh A mendment to the extent\nit can control the ju risd ic tio n o f the in ferio r federal courts, see U.S. Const, art. Ill, \xc2\xa7 1; Sheldon v. Sill, 49\nU .S. (8 H ow .) 4 4 1 ,4 4 9 (1850), and thereby transfer judicial business to the state courts, in which the Seventh\nA m endm ent is inapplicable. See Alexander v. Virginia, 413 U.S. 836 (1973). This does not, o f course, resolve\nw hether C ongress, w hile continuing to ex ercise federal pow er to decide disputes, may elim inate the right of\ntrial by ju ry sim ply by changing the fe d e ra l forum. B ut it illustrates C ongress\' considerable discretion either\nto m ake ju ry trials available o r to exempt adjudication from any Seventh A m endm ent claim s.\n11 T he C om m odity Exchange Act (CEA) appears to establish an enforcem ent structure most analogous to S.\n1220. U n d er the C EA , an individual may p roceed w ith a private dam ages action in court, in which a jury trial\nw ould be available, o r the individual m ay file a com plaint seeking an adm inistrative award o f damages.\nA lthough the com plaining individual, as o p p o sed to a CFTC official, prosecutes the adm inistrative claim, the\nadm in istrativ e reparations procedure w ill go forw ard only if the CFTC determ ines that the com plaint\nw arrants adm inistrative action. 17 C .F.R . \xc2\xa7 12.15. H ow ever, the reparations procedure is not available\nagainst the com m odities exchanges, nor is it suited for the adjudication o f all other claim s under the CEA. See\nM e rrill L ynch, 456 U.S. at 384-85.\n\n44\n\n\x0cwould have had a right to a jury trial had the corporation itself sued on the same\nunderlying claim. Id. at 536-37, 540.12\nSignificantly, in Merrill Lynch, the Court recently sanctioned the availability\nof both an individual court action, in which a jury trial presumably would be\navailable upon demand, see Miller v. New York Produce Exch., 550 F.2d 762\n(2d Cir.), cert, denied, 434 U.S. 825 (1977), and administrative proceedings, in\nwhich an injured individual could obtain damages from another private party\nabsent a jury trial. The Court there held that Congress intended to preserve a\nprivate judicial remedy as a supplement to the express enforcement provisions\n\xe2\x80\x94 an administrative reparations procedure, an arbitration procedure provided\nby every contract market, and state parens patriae actions \xe2\x80\x94 under the CEA.\nAlthough the Court found that the informal arbitration and reparations proce\xc2\xad\ndures were designed to supplement the private judicial remedy, and that Con\xc2\xad\ngress apparently intended complainants \xe2\x80\x9cto be put to the choice between\ninformal and judicial actions,\xe2\x80\x9d 456 U.S. at 385, there was no question that\ndamages could be obtained from a futures commission merchant or other\nregistered person in either administrative reparations proceedings absent a jury\ntrial or in a private judicial action, id. at 366, 385-87.13 Nevertheless, the Court\nexpressed no concern that the Seventh Amendment might prohibit an interpre\xc2\xad\ntation of the statute authorizing the award of damages in favor of a private\ncomplainant in either an administrative proceeding absent a jury trial or in a\njudicial proceeding with a jury available on demand.\nConsequently, assuming that S. 1220 involves a public or statutorily created\nright that Congress may, compatible with Article III, assign to an adjunct for\nadjudication, we do not believe that the Seventh Amendment places any\nindependent constraint on Congress\xe2\x80\x99 discretion to provide for both administra\xc2\xad\ntive and judicial enforcement if it determines that alternative mechanisms are\nnecessary to remedy a particular problem. Cf. Atlas Roofing Co., 430 U.S. at\n444-45 (finding that Congress enacted OSHA because it found existing state\nstatutory and common law remedies inadequate to protect employees from\nunsafe working conditions). Insofar as the administrative proceeding provides\na remedy for a congressionally created right, Congress has latitude to alter the\nscope of the jury trial right as a reasonably necessary incident to other proce\xc2\xad\ndural and substantive objectives, because doing so, by definition, does not\nwithdraw the jury trial in an area where historically it was firmly established.\nC. Assuming there are no Seventh Amendment concerns, does the statutory\nscheme nevertheless violate due process insofar as the defendant\xe2\x80\x99s jury trial\n12 Sim ilarly, because the Seventh Amendm ent does not apply in actions against the federal governm ent,\npersons seeking relief from the federal governm ent on causes o f action in which they w ould have had a ju ry\ntrial right were the action brought against a non-federal party will often have no jury trial right. See Lehm an\nv. N akshian, 453 U.S. 156 (1981) (holding that although ju ry trial was generally available in Age D iscrim ina\xc2\xad\ntion in Em ployment A ct suits. C ongress did not create a ju ry trial in suits against the federal governm ent).\n13 Moreover, because the CFTC under the CEA, sim ilar to the Secretary under S. 1220, determ ines w hether\na com plaint w arrants further adm inistrative action, see 17 C.F.R. \xc2\xa7 12.15, both schemes ultimately v est a\ngovernm ent official w ith some authority to determ ine w hether a defendant will appear in an adm inistrative\nforum or a judicial forum .\n\n45\n\n\x0cright is in large part contingent on the procedural choices o f other parties?\nGenerally, statutory schemes do not give the government discretion to enforce\nthe same underlying charge by pursuing somewhat similar remedies either\nadministratively without a jury or in court with a jury. Nor is it customary for\nstatutes to provide a choice between individual court actions with jury trials\nand government-initiated proceedings in administrative forums. Most statutes\nthat create dual enforcement mechanisms authorizing government suits as well\nas private actions either provide for jury trials in court actions regardless who\nenforces the statutory right,14 or do not make jury trials available, irrespective\nof whether the government or a private person is the enforcing party.15\nThese congruences do not exist, however, if statutory provisions provide\ndifferent remedies to enforce the same underlying claim in a judicial forum.\nFor example, \xc2\xa7 17 of the Fair Labor Standards Act (FLSA) authorizes the\nSecretary of Labor to seek injunctive relief, including the restitutionary re\xc2\xad\nstraint of any withholding of wages found due, in court without a jury trial,\nwhile \xc2\xa7 16 of the FLSA grants the Secretary and private parties authority to\nseek legal relief in court with a jury trial. Wirtz v. Jones, 340 F.2d 901 (5th Cir.\n1965). The Age Discrimination in Employment Act (ADEA) similarly autho\xc2\xad\nrizes the Equal Employment Opportunity Commission (EEOC) to seek an\ninjunctive remedy in court, for which no jury trial is available, to enforce the\nstatutory prohibition against age discrimination, whereas an individual em\xc2\xad\nployee may proceed with a damages actions under the ADEA in which a jury\ntrial would be required upon demand. See 29 U.S.C. \xc2\xa7 626(b) (providing that\nthe ADEA is to be enforced in accordance with powers, remedies, and proce\xc2\xad\ndures of FLSA). Significantly, under both the FLSA and the ADEA, the\nindividual\xe2\x80\x99s right to bring a private action terminates upon the filing of a\ncomplaint by the Secretary or the EEOC, respectively. See id. \xc2\xa7 216(b) (FLSA);\nid. \xc2\xa7 626(c)(1) (ADEA); Donovan v. University o f Tex., 643 F.2d 1201, 1207\n(5th Cir. 1981). Should the Secretary seek equitable rather than legal relief, the\nparties would have no right to a jury trial even though a jury trial would have\nbeen available had an individual brought a damages action. See Wirtz v. Jones,\n340 F.2d at 904. Thus, simply because a party may have a right to a jury trial in\ncertain instances when a particular right is being enforced against him, it does\nnot follow that a jury trial is always available for that party in the enforcement\nof that right.\nIn this context, it is significant that S. 1220 provides for somewhat different\nremedies in jury and non-jury proceedings. Punitive damages for the individual\nare available injudicial actions under S. 1220; compensatory damages for the\n14 See E E O C v. B row n & Root, Inc , 725 F.2d 348 (5th C ir. 1984) (Jury trial available w hether governm ent\nsues un d er \xc2\xa7 7(b) o r private party sues u n d e r \xc2\xa7 7(c) o f A ge D iscrim ination in Em ploym ent Act); EEO C v.\nC orry Jam estow n C orp., 719 F.2d 1219 (3 d Cir. 1983) (sam e); Wirtz v. Jones, 340 F.2d 901, 904 (5th Cir.\n1965) (\xc2\xa7 16 actions under F air Labor Standards A ct brought by either an em ployee or the Secretary are triable\nbefore a jury).\n15 See S lack v. H avens, 522 F.2d 1091, 1094 (9th Cir. 1975) (no jury trial right in Title VII suits); cf. Great\nAm . Fed. Savs. & Loan A s s \'n v. Novotny, 4 4 2 U.S. 366, 375 (1979) (noting that courts o f appeals have held\nthat no ju ry trial rig h t ex ists in Title VII actio n s because all re lie f is equitable in nature).\n\n46\n\n\x0cindividual and a civil penalty for the government are available in the adminis\xc2\xad\ntrative proceedings. Because the Supreme Court has never held it unfair or\narbitrary to have juries available some of the time but not all of the time,\ndepending on the nature of the right, the remedy and the forum in which the\nright is enforced, we find nothing in the Due Process Clause that precludes\nCongress from providing for the enforcement of the statutory right to nondiscriminatory housing in either an administrative forum without a jury or a\njudicial forum with a jury. C f Anniston Mfg. Co. v. Davis, 301 U.S. 337 (1937)\n(holding that Congress may abrogate judicial proceedings if the substituted\nadministrative proceedings afford a fair and adequate remedy). Indeed, it\nwould be anomalous to conclude that the Due Process Clause places a more\nsevere constraint on Congress\xe2\x80\x99 discretion to vest adjudication of congressionally created rights in administrative forums than do the more specific com\xc2\xad\nmands of the Seventh Amendment or Article III.\nConclusion\nBecause we believe that the courts would characterize the statutory right to\nnondiscriminatory housing created by S. 1220 as a public right, Congress may,\nconsistent with Article III, vest the adjudication of housing discrimination\nclaims in an administrative tribunal. Moreover, we conclude that the Seventh\nAmendment does not prohibit Congress from vesting the adjudication of this\ncongressionally created right both in federal court, in which a jury trial would\nbe available upon demand, and in an administrative tribunal, in which there\nwould be no right to a jury trial. Finally, we believe that a statutory scheme in\nwhich a defendant\xe2\x80\x99s jury trial right is in large part contingent on the procedural\nchoices of other parties to the proceeding does not offend the Due Process\nClause. We accordingly conclude that although the question is novel and the\navailable judicial precedents provide uncertain guidance, Congress constitu\xc2\xad\ntionally may provide for an administrative award of compensatory damages to\nan individual, even though such damages are also statutorily authorized in\njudicial actions in which either party is entitled to a jury trial on demand.\nR a lph W . T arr\n\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n47\n\n\x0c'