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).