Civil Penalties & Injunctive Relief

Right of Jury Trial

In Tull v. United States, 481 U.S. 412 (1987), Justice Brennan described the effect of the Seventh Amendment in a question of guarantees of a right to a jury trial on both liability, (based on disagreement of whether the land was of a 'wetland' character,) and amount of penalty in an action instituted by the Federal Government seeking civil penalties and injunctive relief under the Clean Water Act, 62 Stat. 1155, as amended, 33 U.S.C. 1251 et seq.:

"The Seventh Amendment provides that, '[i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved . . . .' The Court has construed this language to require a jury trial on the merits in those actions that are analogous to 'Suits at common law.' Prior to the Amendment's adoption, a jury trial was customary in suits brought in the English law courts. In contrast, those actions that are analogous to 18th-century cases tried in courts of equity or admiralty do not require a jury trial. See Parsons v. Bedford, 3 Pet. 433 (1830). This analysis applies not only to common-law forms of action, but also to causes of action created by congressional enactment. See Curtis v. Loether, 415 U.S. 189, 193 (1974)."

"To determine whether a statutory action is more similar to cases that were tried in courts of law than to suits tried in courts of equity or admiralty, the Court must examine both the nature of the action and of the remedy sought. First, we compare the statutory action to 18th-century actions brought in the courts of England prior to the merger of the courts of law and equity. See, e. g., Pernell v. Southall Realty, 416 U.S. 363, 378 (1974); Dairy Queen, Inc. v. Wood, 369 U.S. 469, 477 (1962). Second, we examine the remedy sought and determine whether it is legal or equitable in nature. See, e. g., Curtis v. Loether, supra, at 196; Ross v. Bernhard, 396 U.S. 531, 542 (1970)."

"Petitioner analogizes this Government suit under 1319(d) to an action in debt within the jurisdiction of English courts of law. Prior to the enactment of the Seventh Amendment, English courts had held that a civil penalty suit was a particular species of an action in debt that was within the jurisdiction of the courts of law. See, e. g., Atcheson v. Everitt, 1 Cowper 382, 98 Eng. Rep. 1142 (K. B. 1776) (characterizing civil penalty suit as a type of action in debt); Calcraft v. Gibbs, 5 T. R. 19, 101 Eng. Rep. 11 (K. B. 1792) (granting new jury trial in an action in debt for a civil penalty).

"After the adoption of the Seventh Amendment, federal courts followed this English common law in treating the civil penalty suit as a particular type of an action in debt, requiring a jury trial. See, e. g., United States v. Mundell, 27 F. Cas. 23 (No. 15,834) (CC Va. 1795) (bail not required in a civil penalty case tried by a jury because it was an action in debt); Jacob v. United States, 13 F. Cas. 267 (No. 7,157) (CC Va. 1821) (action in debt by United States to recover civil penalty of $500 and costs of violation of an Act of Congress); Lees v. United States, 150 U.S. 476, 479 (1893) ('[A]lthough the recovery of a penalty is a proceeding criminal in nature, yet in this class of cases it may be enforced in a civil action, and in the same manner that debts are recovered in the ordinary civil courts'). Actions by the Government to recover civil penalties under statutory provisions therefore historically have been viewed as one type of action in debt requiring trial by jury."

"In the instant case, the Government sought penalties of over $22 million for violation of the Clean Water Act and obtained a judgment in the sum of $325,000. This action is clearly analogous to the 18th-century action in debt, and federal courts have rightly assumed that the Seventh Amendment required a jury trial.

"The Government argues, however, that - rather than an action in debt - the closer historical analog is an action to abate a public nuisance. In 18th-century English law, a public nuisance was an act or omission `which obstructs or causes inconvenience or damage to the public in the exercise of rights common to all Her Majesty's subjects. W. Prosser, Law of Torts 583 (4th ed. 1971) (hereinafter Prosser) (footnote omitted). The Government argues that the present suit is analogous to two species of public nuisances. One is the suit of the sovereign in the English courts of equity for a 'purpresture' to enjoin or order the repair of an enclosure or obstruction of public waterways; the other is the suit of the sovereign to enjoin 'offensive trades and manufactures' that polluted the environment. 4 W. Blackstone, Commentaries *167.

"It is true that the subject matter of this Clean Water Act suit - the placement of fill into navigable waters - resembles these two species of public nuisance. Whether, as the Government argues, a public nuisance action is a better analogy than an action in debt is debatable. But we need not decide the question. As Pernell v. Southall Realty, 416 U.S., at 375, cautioned, the fact that the subject matter of a modern statutory action and an 18th-century English action are close equivalents 'is irrelevant for Seventh Amendment purposes,' because 'that Amendment requires trial by jury in actions unheard of at common law.' It suffices that we conclude that both the public nuisance action and the action in debt are appropriate analogies to the instant statutory action."

"The essential function of an action to abate a public nuisance was to provide a civil means to redress 'a miscellaneous and diversified group of minor criminal offenses, based on some interference with the interests of the community, or the comfort or convenience of the general public.' Prosser 583. Similarly, the essential function of an action in debt was to recover money owed under a variety of statutes or under the common law. Both of these 18th-century actions, then, could be asserted by the sovereign to seek relief for an injury to the public in numerous contexts."

"...We reiterate our previously expressed view that characterizing the relief sought is "[m]ore important" than finding a precisely analogous common-law cause of action in determining whether the Seventh Amendment guarantees a jury trial. Curtis v. Loether, 415 U.S., at 196."

"A civil penalty was a type of remedy at common law that could only be enforced in courts of law. Remedies intended to punish culpable individuals, as opposed to those intended simply to extract compensation or restore the status quo, were issued by courts of law, not courts of equity. See, e. g., Curtis v. Loether, supra, at 197 (punitive damages remedy is legal, not equitable, relief); Ross v. Bernhard, supra, at 536 (treble-damages remedy for securities violation is a penalty, which constitutes legal relief). The action authorized by 1319(d) is of this character. Subsection (d) does not direct that the 'civil penalty' imposed be calculated solely on the basis of equitable determinations, such as the profits gained from violations of the statute, but simply imposes a maximum penalty of $10,000 per day of violation. The legislative history of the Act reveals that Congress wanted the district court to consider the need for retribution and deterrence, in addition to restitution, when it imposed civil penalties. 123 Cong. Rec. 39191 (1977) (remarks of Sen. Muskie citing Environmental Protection Agency (EPA) memorandum outlining enforcement policy). A court can require retribution for wrongful conduct based on the seriousness of the violations, the number of prior violations, and the lack of good-faith efforts to comply with the relevant requirements. Ibid. It may also seek to deter future violations by basing the penalty on its economic impact. Ibid. Subsection 1319(d)'s authorization of punishment to further retribution and deterrence clearly evidences that this subsection reflects more than a concern to provide equitable relief...."

"The punitive nature of the relief sought in this present case is made apparent by a comparison with the relief sought in an action to abate a public nuisance. A public nuisance action was a classic example of the kind of suit that relied on the injunctive relief provided by courts in equity. Prosser 603. 'Injunctive relief [for enjoining a public nuisance at the request of the Government] is traditionally given by equity upon a showing of [peril to health and safety].' Steelworkers v. United States, 361 U.S. 39, 61 (1959) (Frankfurter, J., concurring). The Government, in fact, concedes that public nuisance cases brought in equity sought injunctive relief, not monetary penalties. Brief for United States 24, n. 17. Indeed, courts in equity refused to enforce such penalties. See James, Right to a Jury Trial in Civil Actions, 72 Yale L. J. 655, 672 (1963)."

"The remaining issue is whether petitioner additionally has a Seventh Amendment right to a jury assessment of the civil penalties. At the time this case was tried, 1319(d) did not explicitly state whether juries or trial judges were to fix the civil penalties. The legislative history of the 1977 Amendments to the Clean Water Act shows, however, that Congress intended that trial judges perform the highly discretionary calculations necessary to award civil penalties after liability is found. 123 Cong. Rec. 39190-39191 (1977) (remarks of Sen. Muskie citing letter from EPA Assistant Administrators of Enforcement of Dec. 14, 1977) ('[P]enalties assessed by judges should be sufficiently higher than penalties to which the Agency would have agreed in settlement to encourage violators to settle'). We must decide therefore whether Congress can, consistent with the Seventh Amendment, authorize judges to assess civil penalties.

"The Seventh Amendment is silent on the question whether a jury must determine the remedy in a trial in which it must determine liability. The answer must depend on whether the jury must shoulder this responsibility as necessary to preserve the 'substance of the common-law right of trial by jury.' Colgrove v. Battin, 413 U.S. 149, 157 (1973). Is a jury role necessary for that purpose? We do not think so. `Only those incidents which are regarded as fundamental, as inherent in and of the essence of the system of trial by jury, are placed beyond the reach of the legislature.' Id., at 156, n. 11 (quoting Scott, Trial by Jury and the Reform of Civil Procedure, 31 Harv. L. Rev. 669, 671 (1918)). See also Galloway v. United States, 319 U.S. 372, 392 (1943) ('[T]he Amendment was designed to preserve the basic institution of jury trial in only its most fundamental elements'). The assessment of a civil penalty is not one of the 'most fundamental elements.' Congress' authority to fix the penalty by statute has not been questioned, and it was also the British practice, see, e. g., Atcheson v. Everitt, 1 Cowper 382, 98 Eng. Rep. 1142 (K. B. 1776). In the United States, the action to recover civil penalties usually seeks the amount fixed by Congress. See, e. g., United States v. Regan, 232 U.S., at 40; Hepner v. United States, 213 U.S., at 109. The assessment of civil penalties thus cannot be said to involve the 'substance of a common-law right to a trial by jury,' nor a 'fundamental element of a jury trial.'

"Congress' assignment of the determination of the amount of civil penalties to trial judges therefore does not infringe on the constitutional right to a jury trial. Since Congress itself may fix the civil penalties, it may delegate that determination to trial judges. In this case, highly discretionary calculations that take into account multiple factors are necessary in order to set civil penalties under the Clean Water Act. These are the kinds of calculations traditionally performed by judges. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 442-443 (1975) (REHNQUIST, J., concurring). We therefore hold that a determination of a civil penalty is not an essential function of a jury trial, and that the Seventh Amendment does not require a jury trial for that purpose in a civil action.

"We conclude that the Seventh Amendment required that petitioner's demand for a jury trial be granted to determine his liability, but that the trial court and not the jury should determine the amount of penalty, if any..."