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Instruction 4.8.1 provides a general instruction concerning compensatory damages in Section 1983 cases;54 though the Comment to Instruction 4.8.1 sets forth principles that govern employment claims under Section 1983, that instruction will require tailoring to the particularities of employment litigation. One set of questions that may arise relates to back pay and front pay. It is clear that a Section 1983 employment discrimination plaintiff can recover back pay and front pay in appropriate cases. What is less clear is the division of labor between judge and jury on these questions.55
Framework for analysis. The Supreme Court’s decision in City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999), provides an overarching framework for analyzing the right to a jury trial in Section 1983 cases.56 In Del Monte Dunes, the Court held that “a § 1983 suit seeking legal relief is an action at law within the meaning of the Seventh Amendment.” Del Monte Dunes, 526 U.S. at 709.57 Specifically, the Court held that there is a Seventh Amendment right58 to a jury determination of the question of liability in a Section 1983 suit seeking damages reflecting just compensation for a regulatory taking. See id. at 721. As the Court explained, “[e]ven when viewed as a simple suit for just compensation,... Del Monte Dunes' action sought essentially legal relief.” Id. at 710. The Court relied on “the ‘general rule’ that monetary relief is legal,” id. (quoting Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 352 (1998) (quoting Chauffeurs, Teamsters and Helpers, Local No. 391 v. Terry, 494 U.S. 558, 570 (1990))), and on the view that “[j]ust compensation... differs from equitable restitution and other monetary remedies available in equity, for in determining just compensation, ‘the question is what has the owner lost, not what has the taker gained,’” id. (quoting Boston Chamber of Commerce v. Boston, 217 U.S. 189, 195 (1910)).
Once a court determines that a Section 1983 suit seeks legal relief — thus triggering the right to a jury — the court must next ascertain “whether the particular issues” in question are “proper for determination by the jury.” Del Monte Dunes, 526 U.S. at 718 (citing Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996)).59 The court should first “look to history to determine whether the particular issues, or analogous ones, were decided by judge or by jury in suits at common law at the time the Seventh Amendment was adopted.” Del Monte Dunes, 526 U.S. at 718. “Where history does not provide a clear answer,” the court should “look to precedent and functional considerations.” Id.
Back pay. If back pay is seen as a form of compensatory damages (measured in terms of lost wages), then it could be argued that there should be a right to a jury on Section 1983 claims for back pay. See DAN B. DOBBS, 2 LAW OF REMEDIES § 6.10(5), at 233 (2d ed. 1993). This view, however, is far from universally accepted, see id. at 231 (“The courts of appeal have taken at least five different positions about the right of jury trial in back pay claims under §§ 1981 and 1983.”), and the Third Circuit caselaw is inconclusive.
The Court of Appeals has suggested that an award of back pay under Section 1983 ordinarily is an equitable remedy concerning which there is no right to a jury. See Laskaris v. Thornburgh, 733 F.2d 260, 263 (3d Cir. 1984) (“[A]lthough the request for back pay under section 1983 seeks only equitable relief... , a claim for compensatory and punitive damages is a legal claim entitling the plaintiff to a jury trial.”).60 Thus, for example, in Savarese v. Agriss, the Court of Appeals (in vacating and remanding for a redetermination of damages and back pay) indicated that the question of compensatory damages was for the jury while the question of back pay was for the trial judge. See Savarese v. Agriss, 883 F.2d 1194, 1206 (3d Cir. 1989) (“[W]e will vacate both Savarese's compensatory damage award and the equitable award of back pay for Savarese and remand to the district court for a new trial on compensatory damages and a recalculation of back pay by the district judge.”).
On at least one occasion, however, the Court of Appeals has appeared to contemplate a procedure by which both back pay and front pay were submitted to the jury.61 In Squires v. Bonser, the Court of Appeals held that the district court abused its discretion in denying reinstatement. Squires v. Bonser, 54 F.3d 168, 176 (3d Cir. 1995). Because an order granting reinstatement would render an award of front pay inappropriate, the court remanded for a new trial on compensatory damages. See id. at 177. The court’s discussion evinced an assumption that the compensatory damages determination would include back pay. See id. at 176 n.15 (noting that in the previous trial the trial judge instructed the jury that the “[p]laintiff is entitled to be compensated for any wages that you find that he lost up to this date, or any wages that you find that he may lose in the future”); id. at 176 n.16 (“[A]sking the jury for a lump-sum award which includes front-pay when the plaintiff also seeks reinstatement.... wastes judicial resources in that if reinstatement is awarded a retrial is then required to parcel out the damages into component parts (i.e., front-pay versus back-pay).”).
If the back pay issue is submitted to the jury,62 the court could draft an instruction on that issue by making appropriate adaptations to Instruction 5.4.3 (concerning back pay under Title VII).
Reinstatement is preferred over front pay.63 The determination concerning reinstatement is for the district court.64 If the district court determines that reinstatement is appropriate, then the district court should award reinstatement and should not permit the award of front pay.
Where an award of front pay is warranted, it may be the case that the amount of front pay should be determined by the jury,65 though here, too, the Third Circuit caselaw is inconclusive.66 In the context of the Age Discrimination in Employment Act, the Court of Appeals has treated the amount of front pay as a question for the jury. See Maxfield v. Sinclair Intern., 766 F.2d 788, (3d Cir. 1985) (“Since reinstatement is an equitable remedy, it is the district court that should decide whether reinstatement is feasible.... Of course the amount of damages available as front pay is a jury question.”). The Maxfield court’s reasoning suggests that front pay should be viewed as a legal remedy,67 and thus that in Section 1983 cases where the court holds that front pay is appropriate the amount should be determined by the jury. Assuming that the amount of front pay is to be determined by the jury in cases where front pay is warranted, where the issue of reinstatement is contested it seems advisable to submit the front pay issue to the jury along with other elements of compensatory damages.68 However, to ensure that the resulting award can be adjusted where necessary, the court should require the jury to itemize how much of the compensatory damages award is attributable to front pay and how much to other items.69
If the front pay issue is submitted to the jury,70 the court could draft an instruction on that issue by making appropriate adaptations to Instruction 5.4.4 (concerning front pay under Title VII).
(Last Updated July 2019)
54 See also Instructions 4.8.2 (nominal damages) and 4.8.3 (punitive damages).
55 For discussion of similar issues with respect to Title VII claims, see the Comments to Instructions 5.4.3 and 5.4.4.
56 Back pay and front pay remedies for Title VII claims are governed by other statutes and precedents. See 5.4.3 (discussing Title VII back pay awards in light of 42 U.S.C. §1981(b)(2), 42 U.S.C. § 2000e-5(g)(1), and Pollard v. E. I. du Pont de Nemours & Co., 532 U.S. 843 (2001)); Comment 5.4.4 (discussing Title VII front pay awards in light of 42 U.S.C. § 1981a(a)(1) and Pollard).
57 Justice Scalia would have held that all Section 1983 claims for damages carry a Seventh Amendment jury right. See id. at 723 (Scalia, J., concurring in part and in the judgment). However, both the plurality and the dissent were willing to scrutinize specific types of constitutional damages claims brought under Section 1983 to discern whether the particular type of claim triggered a jury right. See id. at 711-12 (Kennedy, J., joined by Rehnquist, C.J., and Stevens and Thomas, JJ.) (noting doubts as to whether claim-specific analysis was appropriate but engaging in that analysis anyway); id. at 751-52 (Souter, J., joined by O’Connor, Ginsburg and Breyer, JJ., concurring in part and dissenting in part) (rejecting Justice Scalia’s proposed approach). None of the Justices, though, questioned the notion that a Section 1983 damages claim that was tort-like in nature and that sought legal relief should carry a right to a jury trial. See, e.g., id. at 709 (majority opinion); id. at 751 (concurrence/dissent).
58 See U.S. Const. amend. VII (“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved....”).
59 As noted above, the relevant issue in Del Monte Dunes was one of liability. When the question at hand concerns which decisionmaker (judge or jury) should decide a remedies question, the analysis seems likely to turn principally on whether the remedy is equitable or legal in nature.
60 The Laskaris court cited Gurmankin v. Costanzo, 626 F.2d 1115, 1122-23 (3d Cir. 1980), as support for this proposition. Gurmankin, however, did not concern the right to a jury trial. In Gurmankin, the Court of Appeals held that the trial judge’s denial of back pay (after a bench trial) constituted an abuse of discretion. See id. at 1124-25. As support for the view that “backpay [is] an integral aspect of equitable relief to be awarded in a suit brought under section 1983 against a school district,” id. at 1122, the Court of Appeals cited Harkless v. Sweeny Independent School District, 427 F.2d 319, 324 (5th Cir. 1970). Harkless, by contrast, did concern the jury issue: the Harkless court held that “a claim for back pay presented in an equitable action for reinstatement authorized by § 1983 is not for jury consideration nor are the factual issues which form the basis of the claim for reinstatement.” Harkless, 427 F.2d at 324; see also Johnson v. Chapel Hill Independent School Dist., 853 F.2d 375, 383 (5th Cir. 1988) (“A back pay award under Title VII is considered equitable rather than legal in nature, and its character does not change simply because the award is made pursuant to § 1981 or § 1983.”).
Like the Fifth Circuit, the Fourth Circuit has held that back pay is for the court, not the jury, to determine. See Smith v. Hampton Training School for Nurses, 360 F.2d 577, 581 n.8 (4th Cir. 1966) (“[T]he hospital moved to have the question of back pay determined by a jury. But the claim is not one for damages; it is an integral part of the equitable remedy of reinstatement, and should be determined by the court.”).
The First Circuit has taken the opposite view:
In tort actions for personal injury tried to a jury, lost wages are invariably treated as being part of compensatory damages.... [T]he determination of back pay as a factor of compensatory damages involves the substance of a common-law right to a trial by jury.
In addition to the seventh amendment implication, there is also a sound practical reason for having the jury factor in back pay when determining compensatory damages. Submission of the issue of back pay to the jury as a factor to be considered in its award of compensatory damages eliminates the inevitable overlap between compensatory damages and back pay. In most cases of an alleged unconstitutional firing, there will be evidence of the employee's pay. To expect a jury to ignore this is unrealistic, especially where it may constitute the major item of compensatory damages. Santiago-Negron v. Castro-Davila, 865 F.2d 431, 441 (1st Cir. 1989). However, the Santiago-Negron court specified that “[w]here only reinstatement and back pay are requested or if they are the only issues, in addition to liability, remaining in the case then both reinstatement and back pay shall be for the court.” Id.
61 In addition, caselaw suggests that back pay may not be an equitable remedy when sought from an individual defendant. In a Section 1983 case that focused on official immunity, rather than on the right to a jury, the Court of Appeals stated that “[a]s to backpay and attorneys fees... a recovery against individual defendants would be in the nature of damages, rather than as a part of the equitable remedy of reinstatement.” Skehan v. Board of Trustees of Bloomsburg State College, 501 F.2d 31, 43 (3d Cir. 1974), judgment vacated on other grounds, 421 U.S. 983 (1975); see also Figueroa-Rodriguez v. Aquino, 863 F.2d 1037, 1043 n.7 (1st Cir. 1988) (“To say that an ‘individual capacity’ defendant is liable for ‘back pay’ is a misnomer; he may be liable for compensatory damages in the same amount (plaintiff's lost wages), but such liability must first hurdle any applicable immunity defense.”).
62 Even if there is no right to a jury determination on back pay, the court could submit the issue by stipulation of the parties or for an advisory verdict.
63 “[A] denial of reinstatement is unwarranted unless grounded in a rationale which is harmonious with the legislative goals of providing plaintiffs make-whole relief and deterring employers from unconstitutional conduct.” Squires, 54 F.3d at 172. “[R]einstatement is the preferred remedy to cover the loss of future earnings.... However, reinstatement is not the exclusive remedy, because it is not always feasible.... When reinstatement is not appropriate, front pay is the alternate remedy.” Feldman v. Philadelphia Housing Authority, 43 F.3d 823, 831 (3d Cir. 1994), opinion amended by order (3d Cir. 1995).
64 “Reinstatement is an equitable remedy available in unconstitutional discharge cases arising under § 1983.... The decision whether to award reinstatement thus lies within the discretion of the district court.” Squires, 54 F.3d at 171 (citing Versarge v. Township of Clinton, New Jersey, 984 F.2d 1359, 1368 (3d Cir. 1993)).
65 In Feldman v. Philadelphia Housing Authority, 43 F.3d 823 (3d Cir. 1994), opinion amended by order (3d Cir. 1995), the Court of Appeals held that the district court did not abuse its discretion in rejecting the remedy of reinstatement. See id. at 832. The district court had submitted the issue of front pay to the jury, and the Court of Appeals upheld the jury’s award against an excessiveness challenge. See id. at 833.
The Court of Appeals’ treatment of front pay in the context of sovereign immunity also provides oblique support for the view that front pay may properly be included within the scope of compensatory damages. In Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690 (3d Cir. 1996), the plaintiffs sought to cast their Section 1983 claim for front pay as an equitable claim, in order to avoid state sovereign immunity, see id. at 698. The Court of Appeals rejected this contention, holding “that ‘front pay’ relief, under the circumstances of this case, would provide nothing more than compensatory damages which would have to be paid from the Commonwealth's coffers.” Id.
66 A number of decisions from other circuits suggest that front pay in Section 1983 cases presents a question for the judge. See, e.g., Johnson v. Chapel Hill Independent School Dist., 853 F.2d 375, 383 (5th Cir. 1988) (“A front pay award... must be viewed as essentially equitable in nature.”); Biondo v. City of Chicago, 382 F.3d 680, 683, 690 (7th Cir. 2004) (noting that front pay was “equitable relief” awarded by the district court); Ballard v. Muskogee Regional Medical Center, 238 F.3d 1250, 1253 (10th Cir. 2001) (“An award of front pay for claims under § 1983 is an equitable remedy; thus, the district court has discretion to decide whether such an award is appropriate.”); see also Grantham v. Trickey, 21 F.3d 289, 296 n.5 (8th Cir. 1994) (“When reinstatement is not feasible, the court may grant front pay as an alternative equitable remedy.”).
In the First Circuit “[a]wards of front pay... are generally entrusted to the district judge's discretion.” Johnson v. Spencer Press of Maine, Inc., 364 F.3d 368, 380 (1st Cir. 2004). However, the Johnson court noted “some dispute... as to whether a jury should make calculations, if disputed, for purposes of the award.” Id. at 380 n.8.
67 The treatment of front pay under Title VII is not determinative in this regard. Cf. Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 218 & n.4 (2002) (holding that plaintiffs’ claim for restitution sought legal relief and thus was not cognizable under ERISA, and rejecting contrary argument founded upon characterization of back pay as equitable relief under Title VII because “Title VII has nothing to do with this case”).
68 Two reasons argue in favor of this approach: The trial judge may not have decided whether reinstatement is appropriate (prior to the submission of the case to the jury), and the trial judge’s determination on reinstatement is subject to appellate review (albeit for abuse of discretion).
69 The Court of Appeals has stated:
[W]e discourage the practice of asking the jury for a lump-sum award which includes front-pay when the plaintiff also seeks reinstatement. Such a procedure wastes judicial resources in that if reinstatement is awarded a retrial is then required to parcel out the damages into component parts (i.e., front-pay versus back-pay). Accordingly, we believe the preferable course for a plaintiff seeking the equitable remedy of reinstatement is for such a plaintiff to ask for a jury interrogatory concerning the amount of damages attributable to front-pay in order to avoid a double recovery. In the future, we may require such a practice in order to preserve a claim for reinstatement. Squires, 54 F.3d at 176 n.16.
70 Even if there is no right to a jury determination on front pay, the court could submit the issue by stipulation of the parties or for an advisory verdict.