In Thomas v. Broward County Sheriff’s Office, No. 22-11322 (11th Cir. June 22, 2023), the Eleventh Circuit holds in a Uniformed Services Employment and Reemployment Rights Act (USERRA) case that the district court was required to accept a finding of a willful violation entered by the jury on a special interrogatory when the parties consented to a jury verdict on that issue.
USERRA provides that “[t]he court may require the employer to pay the person an amount equal to [lost wages and benefits] as liquidated damages, if the court determines that the employer’s failure to comply with the provisions of th[e] [Act] was willful.” 38 U.S.C. § 4323(d)(1)(C). The statute does not expressly state whether this issue is presented to the jury or tried to the bench.
In this case, “[a] jury determined that the Broward County Sheriff’s Office discriminated and retaliated against helicopter pilot Scott Thomas in violation of the Uniformed Services Employment and Reemployment Rights Act and awarded Thomas $240,000 in lost wages. The verdict form also asked whether the sheriff’s office ‘willfully violated the law,’ and the jury answered, ‘Yes.’ Based on a statutory provision that awards double damages for willful violations, Thomas moved to alter the judgment. But the district judge decided that the jury finding on willfulness was ‘advisory’ and denied Thomas’s motion.”
The Eleventh Circuit, on cross-appeals, affirms judgment for the plaintiff and reverses the district court judge’s rejection of the willfulness finding, ordering that the plaintiff should receive liquidated damages.
Even if an issue is “not triable of right by a jury,” it may still be submitted to a jury under Fed. R. Civ. P. 39(c). “[T]he court . . . (1) may try any issue with an advisory jury; or (2) may, with the parties’ consent, try any issue by a jury whose verdict has the same effect as if a jury trial had been a matter of right, unless the action is against the United States and a federal statute provides for a nonjury trial.”
The submission of the willfulness issue to the jury in this case, holds the panel, “fell into the latter category” of consent. The panel cites a default rule: “Where the parties consent to a jury finding and the district court does not specify whether the finding will be non-binding under Rule 39(c)(1) or binding under Rule 39(c)(2), the jury finding is binding by default. Rule 39(c)(2) “does not allow a district judge to try an issue and then, after the verdict is in, decide whether the jury was advisory or not. The authority of the jury is fixed beforehand.” The panel notes that the default rule is observed by other circuits.
The panel holds, following the default rule, that “judgment should have been altered to reflect the jury finding. The parties satisfied the precondition to Rule 39(c)(2) by consenting to have the issue decided by the jury. The parties jointly submitted proposed jury instructions that said, ‘If you find in Scott Thomas’s favor . . . you must decide whether [the sheriff’s office] willfully violated the law.’ Then, Thomas proposed a special interrogatory that asked the jury, ‘Do you find from a preponderance of the evidence . . . [t]hat [the sheriff’s office] willfully violated the law?’ The judge adopted all this language for the jury instructions and interrogatories. That the willfulness question was submitted by the parties evidences their consent. Moreover, when a district court submits a claim for relief to the jury, that submission ‘trigger[s] [Rule] 39(c),’ at which point the parties’ consent is presumed unless a party objects to that claim, . . . and neither party objected here. Although the district court declared the jury finding ‘advisory’ in its post-trial order, it gave no advance notice of that advisory status. So the default rule applies. The jury finding must be honored.”
In a concurring opinion, Judge Marcus would hold that even if the parties had not consented to a jury verdict on willfulness, the plaintiff would have been entitled to a jury trial on the issue under the Seventh Amendment. “Put simply, the relief Thomas sought — compensatory and liquidated damages that are punitive in nature — is decidedly legal in nature, not equitable. Inasmuch as actions seeking legal remedies, with limited exceptions not applicable here, afford a litigant that foundational right to trial by jury, Thomas would be entitled to exercise that right in this case. Because it is ‘fairly possible’ to interpret the statute in a way that, consistent with the Seventh Amendment, confers a jury trial right on a USERRA litigant seeking compensatory and liquidated damages, ‘our duty is to adopt’ that interpretation, avoid the constitutional question, and the consequential requirement that we find that USERRA violates the Seventh Amendment to the extent it barred the right to a trial by jury on the matter of liquidated damages.”
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