201. Jury Trials In Civil Cases

Rule 38, Fed. R. Civ. P., recognizes the Seventh Amendment right to trial by jury, and provides for demand of jury; but, failing such a demand, jury trial is waived. See also Rule 39, and 28 U.S.C. §§ 1861 to 1874. Government suits for money are commonly tried to a jury, if demanded. Suits for civil penalties are triable to a jury. See Hepner v. United States, 213 U.S. 103, 115 (1909); United States v. Regan, 232 U.S. 37, 47 (1914); United States v. J.B. Williams Co., Inc., 498 F.2d 414 (2d Cir. 1974). United States Government Life and National Service Life Insurance litigation has been held subject to trial by jury. See, e.g., Law v. United States, 266 U.S. 494, 496 (1925). Actions which seek equitable relief are not triable to a jury. See 5 Moore's Federal Practice, ¶ 38.13 (2d ed.); United States v. State of La., 339 U.S. 699, 706 (1950).

Suits brought against the Commodity Credit Corporation are to be tried without a jury. See 15 U.S.C. § 714b(c); Cargill, Incorporated v. Commodity Credit Corporation, 275 F.2d 745, 748-751 (2d Cir. 1960). Little Tucker Act (28 U.S.C. §§ 1346(a)(2), 1491) and Federal Tort Claims Act (28 U.S.C. § 1346(b)) suits are tried without a jury. 28 U.S.C. § 2402; United States v. Sherwood, 312 U.S. 584 (1941); O'Connor v. United States, 269 F.2d 578, 585 (2d Cir. 1959). The government's counterclaim or setoff, asserted in a Little Tucker Act or Tort Claims Act suit, is also to be tried without a jury. McElrath v. United States, 102 U.S. 426, 40 (1880); Cargill, Inc. v. CCC, 275 F.2d at 749; Terminal Warehouse of N.J. v. United States, 91 F. Supp. 327 (D.C.N.J. 1950). Denial of jury trial in such circumstances does not contravene the Seventh Amendment. "It hardly can be maintained that under the common law in 1791 jury trial was a matter of right for persons asserting claims against the sovereign." Galloway v. United States, 319 U.S. 372, 388 (1943); See also United States v. Sherwood, 312 U.S. at 587. Government sue-and-be-sued officers and agencies are considered to be the United States for the purpose of the no-jury trial provisions of 28 U.S.C. § 2402. See 3A Moore's Federal Practice, ¶ 17.23 (2d ed. 1982); cf. SBA v. McClellan, 364 U.S. 446 (1960). Because of the possible impleader of third parties in actions under the Federal Tort Claims Act, simultaneous trials to court and jury can sometimes result. Indeed, in some cases the court and jury may reach contradictory findings. Cf. Eastern Air lines v. Union Trust Co., 239 F.2d 25 (D.C. Cir. 1956), cert. denied, 353 U.S. 942 (1957). In other cases, courts and juries have disagreed substantially in assessing damages against joint tortfeasors. See, e.g., Benbow v. Wolf, 217 F.2d 203, 204 (9th Cir. 1954); D.C. Transit System, Inc. v. Slingland, 266 F.2d 465 (D.C. Cir.), cert. denied, 361 U.S. 819 (1959).