On Juries, Customs Penalties and Prog Rock

I really don't mind if you sit this one out. I'll make it quick.

Although defendants in customs penalty cases are entitled to a jury trial on whether or not they are liable for a violation, the amount of the penalty is not a question for the jury.

So says the Court of International Trade in United States v. Univar USA, Inc. That is the penalty case involving allegedly Chinese saccharine.

The gist of this case is that 19 USC 1592(e)(1) state that all issues in the case, including the amount of the penalty are to be tried de novo before the Court of International Trade. But, that does not say anything about who is the finder of fact and on what issues. Nothing is easy, is it?

For that answer, we turn to the Seventh Amendment to the Constitution, which preserves the right to a jury trial in common law actions where the amount in controversy exceeds $20. That means the question before the Court as whether the amount of a civil penalty in a case commenced by the United States is analogous to a common-law cause of action at about the time of the American Revolution for which a jury would have been permitted. That is an exercise of living in the past.

Under this test, Univar absolutely has a right to a jury on the question of liability. But, according to the CIT, it does not have a right to have the jury decide the amount of the penalty. The amount is fixed, within a specified range, by Congress. Congress, therefore, delegated that task to the judge. Unlike a question of damages, the amount of the penalty is not a determination of a fact. Rather, it is a discretionary calculation of multiple factors that is traditionally performed by a judge. This follows from a decision of the Supreme Court in a similar case involving penalties under the Clean Water Act, but not involving an Aqualung. See Tull.

Note: Sometimes, I just write to amuse myself. Any useful legal analysis is a byproduct.






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