                                     Slip. Op. 19-38

               UNITED STATES COURT OF INTERNATIONAL TRADE


 UNITED STATES,

               Plaintiff,
                                              Before: Mark A. Barnett, Judge
        v.
                                              Court No. 15-00215
 UNIVAR USA INC.,

               Defendant.



                             MEMORANDUM AND ORDER

      On August 6, 2015, Plaintiff, United States (“Plaintiff” or “the Government”),

initiated this action seeking to recover unpaid antidumping duties and a monetary

penalty pursuant to 19 U.S.C. § 1592 stemming from 36 entries of saccharin allegedly

transshipped from the People’s Republic of China (“China”) through the Republic of

China (“Taiwan”) that Defendant, Univar USA, Inc. (“Defendant” or “Univar”), entered

into the commerce of the United States between 2007 and 2012. Compl., ECF No. 2.

On October 6, 2015, Defendant filed an answer and “demand[ed] a jury trial on all

issues so triable, pursuant to Rule 38 of this Court and U.S. Const. amend. VII.”

Answer at 10, ECF No. 8. The parties have completed discovery, the court has ruled on

two motions for partial summary judgment and a motion for summary judgment, and this

matter is scheduled for a jury trial to begin on April 1, 2019. See Docket Entry (Dec. 13,

2018), ECF No. 210.

      At the pretrial conference on March 5, 2019, Defendant asserted that any

determination of civil penalties pursuant to 19 U.S.C. § 1592 would not be an issue
Court No. 15-00215                                                                  Page 2


triable by jury. The Government disagreed. The court invited the parties to brief the

issue, and the parties did so. See United States’ Mem. Relating to the Jury’s

Consideration of Quantum (“Pl.’s Mem.”), ECF No. 232; Univar’s Mem. Demonstrating

the Determination of any Discretionary Penalty is for the Judge, ECF No. 233. At issue

before the court, therefore, is whether any determination of the amount of civil penalties

pursuant to 19 U.S.C. § 1592 is an issue triable by the jury pursuant to federal statute or

the Seventh Amendment to the U.S. Constitution. Having considered the parties’

memoranda and arguments, and after due deliberation, the court finds that the

determination of civil penalties pursuant to 19 U.S.C. § 1592 is not triable by jury.

                                        DISCUSSION

       U.S. Court of International Trade (“USCIT”) Rule 38(a) preserves a right to a jury

trial provided by a federal statute or arising out of the Seventh Amendment to the U.S.

Constitution. 1 The court first addresses whether section 1592 provides a right to have a

jury determine any civil penalties and then turns to the Seventh Amendment analysis.

       A. Section 1592 Does Not Provide a Right to Have Civil Penalties
          Determined by a Jury

       The statute provides that in an action seeking recovery of any monetary penalty

pursuant to 19 U.S.C. § 1592, “all issues, including the amount of the penalty, shall be

tried de novo.” 19 U.S.C. § 1592(e)(1). Section 1592 provides the statutory framework

for determining civil penalties depending on the degree of culpability of the violator.



1
 While USCIT Rule 38(d) permits a party to withdraw a demand for jury trial, such
withdrawal must be with the consent of all parties. Univar does not suggest that it is
partially withdrawing a jury demand on the civil penalty issue and, in any case, the
Government has opposed Univar’s assertion that any determination of civil penalties is
for the court.
Court No. 15-00215                                                                   Page 3


When a grossly negligent section 1592(a) violation 2 affects the assessment of duties,

the statute provides for a civil penalty of no more than “the lesser of [ ] the domestic

value of the merchandise, or [ ] four times the lawful duties, taxes, and fees of which the

United States is or may be deprived.” 19 U.S.C. § 1592(c)(2)(A). When a negligent

section 1592(a) violation affects the assessment of duties, the civil penalty may not

exceed “the lesser of [ ] the domestic value of the merchandise, or [ ] two times the

lawful duties, taxes, and fees of which the United States is or may be deprived.” Id.

§ 1592(c)(3)(A). 3 The statue is silent, however, as to whether the judge or jury must

determine the amount of the penalty; in fact, it makes no mention of juries.

       Congress adopted section 1592(c) in essentially its current form in 1978. The

prior version of the law -- section 592 of the Tariff Act of 1930 -- required a fixed penalty

regardless of the degree of culpability of the alleged violator and did not permit effective

judicial review. S. Rep. No. 95-778, at 2, 17-18 (1978), as reprinted in 1978

U.S.C.C.A.N. 2211, 2213, 2228-29; see also Customs Procedural Reform and

Simplification Act of 1978, Pub. L. No. 95-410, § 592, 92 Stat. 888, 895. The penalty

imposed for a violation of section 592 was forfeiture of the merchandise or payment of a

fine equal to its domestic value. S. Rep. 95-778, at 2, 17, as reprinted in 1978

U.S.C.C.A.N. at 2213, 2228-29. While Customs had authority to mitigate a penalty,

upon judicial review, “the court [could] only decide whether or not a violation occurred.



2 A violation of section 1592(a) occurs when a person—by fraud, gross negligence, or
negligence—enters, introduces, or attempts to enter or introduce merchandise into the
United States by means of a material and false act, statement, or omission. 19 U.S.C.
§ 1592(a)(1).
3 Regardless of whether a monetary penalty is assessed, the United States shall require

the payment of any “lawful duties, taxes, or fees” of which it has been deprived as a
result of the violation of section 1592(a). 19 U.S.C. § 1592(d).
Court No. 15-00215                                                                 Page 4


It [could not] change the amount of the statutory penalty, domestic value.” S. Rep. No.

95-778 at 2, as reprinted in 1978 U.S.C.C.A.N. at 2213. The court had no ability to

tailor the penalty to the degree of culpability.

       With the passage of the Customs Procedural Reform and Simplification Act of

1978, Congress changed the civil penalty from a fixed amount “to an amount varying

according to the culpability of the importer.” S. Rep. No. 95-778, at 19, as reprinted in

1978 U.S.C.C.A.N. at 2230; H.R. Rep. No. 95-1517, at 10 (1978) (Conf. Rep.), as

reprinted in 1978 U.S.C.A.N. 2249, 2252; 19 U.S.C. 1592(c). For the first time, “the

appropriateness of the amount of the penalty” became “a proper subject for judicial

review.” S. Rep. No. 95-778, at 21, as reprinted in 1978 U.S.C.A.N. at 2232. While the

legislative history is clear that the court is permitted “to make its own judgment about

the appropriate remedy for a section [1]592 violation,” H.R. Rep. No. 95-1517, at 10, as

reprinted in 1978 U.S.C.C.A.N. at 2253; see also S. Rep. No. 95-778, at 20, as

reprinted in 1978 U.S.C.C.A.N. 2231, that history, when read in isolation, does not shed

light on whether “court” means judge or jury. Cf. Feltner v. Columbia Pictures

Television, Inc., 523 U.S. 340, 346 (1998) (considering whether the word “court” in the

context of the statutory damages provision of the Copyright Act of 1976 meant “judge,

not jury”). 4 Thus, the court is unable to discern any congressional intent to grant a


4 A survey of section 1592 cases in the Court of International Trade does not aid in this
respect. In several cases in which the court determined the civil penalty following a
bench trial, the court has stated that it has the discretion to determine the penalty
amount within the parameters set by the statute. See United States v. Optrex Am., Inc.,
32 CIT 620, 621, 639, 560 F. Supp. 2d 1326, 1328, 1342 (2008); United States v. Inn
Foods, Inc., 31 CIT 1474, 1475, 1488-90, 515 F. Supp. 2d 1347, 1350, 1361-62
(2007), aff’d, 560 F.3d 1338 (Fed. Cir. 2009); United States v. Nat’l Semiconductor
Corp., 30 CIT 769, 771-72, modified on reconsideration, 30 CIT 1428 (2006), vacated
and remanded, 496 F.3d 1354 (Fed. Cir. 2007); United States v. Complex Mach. Works
Court No. 15-00215                                                                      Page 5


statutory right to a jury trial on the determination of the amount of civil penalties

pursuant to 19 U.S.C. § 1592(c).

       B. The Seventh Amendment Does Not Provide a Right to Have Civil
          Penalties Determined by a Jury

       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.” U.S. Const., amend. VII. The Seventh Amendment preserves the right to a

jury trial that “existed under the English common law when the amendment was

adopted.” Baltimore & Carolina Line, Inc. v. Redman, 295 U.S. 654, 657 (1935). It also

applies to “actions brought to enforce statutory rights that are analogous to common-law

causes of action ordinarily decided in English law courts in the late 18th century, as

opposed to those customarily heard by courts of equity or admiralty.” Granfinanciera,

S.A. v. Nordberg, 492 U.S. 33, 41 (1989) (citing Curtis v. Loether, 415 U.S. 189, 193

(1974)). A two-step inquiry determines whether a modern statutory cause of action is



Co., 23 CIT 942, 942, 947, 83 F. Supp. 2d 1307, 1308, 1312 (1999); United States v.
Menard, Inc., 17 CIT 1229, 1229, 838 F. Supp. 615, 616 (1993), aff’d in part, vacated in
part, 64 F.3d 678 (table) (Fed. Cir. 1995); United States v. Modes, Inc., 17 CIT 627,
628, 635-36, 826 F. Supp. 504, 506, 512 (1993). In the absence of a jury demand, the
court was not required to determine whether the penalty amount was to be determined
by the jury in these cases. There is one case in which the jury determined the amount
of civil penalty. See United States v. Priority Prods., Inc., 793 F.2d 296, 298 (Fed. Cir.
1986) (“The case proceeded to a trial before a jury[;] . . . The jury found all three
defendants . . . jointly and severally liable for a penalty of $30,000.”). However, there is
no indication that Priority Products addressed whether the defendant had a right to a
jury’s determination of the quantum of the civil penalty and the case predates Tull v.
United States, 481 U.S. 412 (1987) by two years. See id.; United States v. Priority
Products, Inc., 9 CIT 383, 615 F. Supp. 591 (1985); infra pp. 5-7 (discussing Tull). The
court has located only one case in which the court was confronted with the same issue
and decided, without explanation, that the defendant had a right to a jury trial to
determine liability, but not to any other aspect of the case. See Order, United States v.
Tri-State Hosp. Supply Corp., Court No. 97-04-00678 (CIT May 10, 1999), Docket Entry
55.
Court No. 15-00215                                                                    Page 6


analogous to a common-law action that was tried in a court of law. Tull, 481 U.S. at

417-18. First, the court must “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.” Id.

at 417. “Second, [the court must] examine the remedy sought and determine whether it

is legal or equitable in nature.” Id. at 417–18.

       The parties do not dispute that Defendant has a right to have a jury determine

liability pursuant to 19 U.S.C. § 1592(a)(1) and the court agrees. In Tull, the U.S.

Supreme Court analogized actions by the Government seeking civil penalties under

statutory provisions to a common law “action in debt,” for which the Seventh

Amendment guarantees a defendant’s right to a jury trial on liability. Id. at 420, 424.

Thus, Univar has a right to have a jury determine its liability for civil penalties pursuant

to 19 U.S.C. § 1592(a)(1) and, by timely demanding a jury in its answer, has properly

invoked that right.

       Nevertheless, “[t]he Seventh Amendment is silent on the question of whether a

jury must determine the remedy in a trial in which it must determine liability.” Id. at 425-

26. Although a defendant may have a right to a jury trial to determine liability pursuant

to section 1592(a), whether a defendant has a right to have a jury determine the civil

penalty quantum is a separate inquiry. Id. The answer to that inquiry “depend[s] on

whether the jury must shoulder this responsibility as necessary to preserve the

‘substance of the common-law right of trial by jury.’” Id. at 426 (quoting Colgrove v.

Battin, 413 U.S. 149, 157 (1973)).

       In Tull, the U.S. Supreme Court held that, although the Seventh Amendment

guarantees a defendant a right to a jury trial to determine liability in a civil penalty action
Court No. 15-00215                                                                    Page 7


brought by the United States under the Clean Water Act, the defendant had no such

right with respect to the determination of civil penalties. Id. at 427. The Court reasoned

that, in an action to recover civil penalties, the United States usually seeks the penalty

amount fixed by Congress. See id. at 426 (citing United States v. Regan, 232 U.S. 37,

40 (1914); Hepner v. United States, 213 U.S. 103, 109 (1909)). Accordingly, the Court

concluded that the determination of civil penalties does not involve the “substance of a

common-law right to a trial by jury.” Id. The Court also reasoned that, since Congress

had the authority to determine the statutory penalty, Congress could delegate that

function to trial judges. Id. at 427. The Court noted that the determination of penalties

under the Clean Water Act involved “highly discretionary calculations that take into

account multiple factors,” and that such calculations were “traditionally performed by

judges.” Id. (citing Albemarle Paper Co. v. Moody, 422 U.S. 405, 442-43 (1975)

(Rehnquist, J., concurring)).

       Applying the Court’s decision and reasoning in Tull to the instant action, the court

concludes that the Seventh Amendment does not guarantee a right to a trial by jury to

determine civil penalties pursuant to section 1592(c). As in Tull, “Congress’ authority to

fix the penalty by statute has not been questioned.” Tull, 481 U.S. at 426. Similar to the

Clean Water Act, which provides for a maximum civil penalty of “‘$10,000 per day’

during the period of the violation,” id. at 414, section 1592(c) now sets varying maximum

penalties depending on the degree of culpability, see 19 U.S.C. § 1592(c). Congress’s

ability to delegate the civil penalty determination to trial judges at the Court of

International Trade is not in question. Congress has done so here because, while it

chose to set statutory maximums, it clearly intended for the court “to make its own
Court No. 15-00215                                                                  Page 8


judgment about the appropriate remedy for a section [1]592 violation.” H.R. Rep. No.

95-1517, at 10, as reprinted in 1978 U.S.C.C.A.N. at 2253. In contrast, the court retains

no discretion as to whether or not to award duties, taxes, or fees, of which the United

States has been deprived as a result of a section 1592(a) violation. 19 U.S.C.

§ 1592(d) (separate and regardless of any civil penalty determination, payment of any

lost duties, taxes, or fees, “shall be required”; such determination lies with the jury and

Univar has not suggested otherwise). Correspondingly, similar to the Clean Water Act,

which required “highly discretionary calculations . . . traditionally performed by judges,”

Tull, 481 U.S. at 427, section 1592(c) requires a similar discretionary determination. 5



5 In Tull, the Court noted that the Clean Water Act required consideration of “multiple
factors” in calculating the amount of civil penalties. 481 U.S. at 427. Although section
1592(c) does not specify the factors the court must consider when determining civil
penalties, the absence of articulated factors does not detract from Congress’
commitment of the penalty determination to the court’s discretion. While not binding
here, the court has identified and considered up to 14 factors when determining the
appropriate penalty. See Complex Mach. Works Co., 23 CIT at 949–50, 83 F. Supp. 2d
at 1315 (outlining 14 factors); United States v. Nat’l Semiconductor Corp., 496 F.3d
1354, 1356 (Fed. Cir. 2007) (stating that the 14 factors identified in Complex Machine
Works “are factors the Court of International Trade may consider when determining the
appropriateness of a civil penalty for a violation of customs laws”). In Complex Machine
Works Co., the court looked to numerous Acts imposing civil penalties, including the
Clean Water Act, that articulated factors to guide the determination of the proper penalty
amount. See Complex Mach. Works Co., 23 CIT at 947-49 & n.10, 83 F. Supp. 2d at
1313-14. The factors are:
       (1) the defendant’s good faith effort to comply with the statute; (2) the
       defendant’s degree of culpability; (3) the defendant’s history of previous
       violations; (4) the nature of the public interest in ensuring compliance with
       the regulations involved; (5) the nature and circumstances of the violation
       at issue; (6) the gravity of the violation; (7) the defendant’s ability to pay;
       (8) the appropriateness of the size of the penalty to the defendant’s
       business and the effect of a penalty on the defendant’s ability to continue
       doing business; (9) that the penalty not otherwise be shocking to the
       conscience of the [c]ourt; (10) the economic benefit gained by the
       defendant through the violation; (11) the degree of harm to the public; (12)
       the value of vindicating the agency authority; (13) whether the party
Court No. 15-00215                                                                     Page 9


Therefore, a determination of a civil penalty pursuant to section 1592(c) is not “an

essential function of a jury trial,” and the Seventh Amendment does not provide a right

to have a jury determine civil penalties pursuant to section 1592(c). See id.; cf.

Albemarle, 422 U.S. at 443 (Rehnquist, J., concurring) (rejecting the notion that a party

may demand a jury in a Title VII case as to the award of backpay “notwithstanding a

finding of unlawful discrimination” because discretionary determinations implicating a

court’s jurisdiction over equitable matters are not susceptible to jury demands).

        The Government’s arguments to the contrary are not persuasive. 6 The

Government correctly asserts that the Seventh Amendment guarantees a right to a jury

trial on the assessment of damages if such a right existed in a comparable action that

pre-dated the Amendment. See Pl.’s Mem. at 3-4 (citations omitted). The U.S.

Supreme Court has recognized that the assessment of damages in certain civil suits is

a matter within the province of the jury. See, e.g., Day v. Woodworth, 54 U.S. 363, 371

(1851) (“It is a well-established principle of the common law, that in actions of trespass

and all actions on the case for torts, a jury may inflict what are called exemplary,




        sought to be protected by the statute had been adequately compensated
        for the harm; and (14) such other matters as justice may require.
Id. at 949–50, 83 F. Supp. 2d at 1315. The Government has not suggested departure
from those 14 factors.
6 The court takes note that the Government’s position here is at odds with its position in

Tri-State. In Tri-State, the defendant sought a jury trial on all issues. The Government
agreed that defendant had a right to a jury trial on liability but, citing Tull, argued that the
defendant was not entitled to demand that a jury determine the civil penalty to be
imposed. Pl.’s Resp. to Def.’s Demand for Jury Trial, United States v. Tri-State Hosp.
Supply Corp., Court No. 97-04-00678 (CIT May 10, 1999), Docket Entry No. 13. The
Tri-State court agreed with the Government but did not explain its reasoning. See supra
note 4. In arguing for a jury to determine the civil penalty here, the Government does
not point to any intervening case law or statutory changes that might explain its change
in position.
Court No. 15-00215                                                                 Page 10


punitive, or vindictive damages upon a defendant . . . .”); Dimick v. Schiedt, 293 U.S.

474, 480 (1935) (stating that “the common-law rule as it existed at the time of the

adoption of the Constitution” was that “in cases where the amount of damages was

uncertain[,] their assessment was a matter so peculiarly within the province of the jury

that the Court should not alter it.”); Pernell v. Southall Realty, 416 U.S. 363, 370 (1974)

(“Th[e] Court has long assumed that actions to recover land, like actions for damages to

a person or property, are actions at law triable to a jury.”); Feltner, 523 U.S. at 353

(“[T]here is overwhelming evidence that the consistent practice at common law was for

juries to award damages.”) (citations omitted). In none of the cases on which the

Government relies, however, was the Government the plaintiff seeking a civil penalty.

In contrast to civil suits between private litigants, the U.S. Supreme Court has

analogized “the awarding of civil penalties to the Government . . . to sentencing in a

criminal proceeding.” Feltner, 523 U.S. at 355 (citing Tull, 481 U.S. at 428 (Scalia, J.,

concurring in part and dissenting in part)). 7

       There is also no historical evidence that juries determined discretionary civil

penalties to be paid to the Government in customs cases at the time the Seventh

Amendment was adopted. The Government cites five cases, each of which is

inapposite. Pl.’s Mem. at 6-7 (citing Wight v. Curtis, 29 F. Cas. 1170, 1171

(C.C.S.D.N.Y. 1845); Lawrence v. Caswell, 54 U.S. 488, 490 (1851); Maxwell v.



7 The Government further avers that this court “has long recognized that in a section
1592 action such as this one, it ‘may order a trial by a jury of any or all issues.’” Pl.’s
Mem. at 5 (quoting Priority Prods. 615 F. Supp. at 597). As noted earlier, Priority
Products predates Tull and there is no indication that the court considered whether the
Seventh Amendment gave the Defendant a right to have the civil penalty determined by
the jury.
Court No. 15-00215                                                                   Page 11


Griswold, 51 U.S. 242, 247 (1850); Greely v. Thompson, 51 U.S. 225, 230 (1850); In re

One Hundred & Twenty-Three Packages of Glass, 18 F. Cas. 709, 711 (C.C.S.D.N.Y.

1841)). Four of the five cases involved suits by private parties against the Collector of

Customs8 to recover allegedly overpaid duties, rather than suits brought by the

Government. See Wright, 29 F. Cas. at 1170; Lawrence, 54 U.S. at 488; Maxwell, 51

U.S. at 242; Greely, 51 U.S. at 226. The remaining case involved an information filed to

seek forfeiture of goods allegedly undervalued with the “intent, by a false valuation, to

defraud the revenue of the United States.” In re One Hundred & Twenty-Three

Packages of Glass, 18 F. Cas. at 710. There, the issues concerned the real or market

value of the goods on the date of the invoice and whether the invoice value was made

up to defraud the revenue, questions presented to the jury. Id. at 710-11. Those are

the type of factual determinations that are traditionally within the province of the jury.

Once that liability was determined, the penalty provided by statute was forfeiture of the

goods. See id. (citing An Act for the More Effectual Collection of the Impost Duties, ch.

147, § 4, 4 Stat. 409, 410 (1830)). There were no factors to weigh and no discretionary

civil penalty amount to be determined. Thus, the in rem remedy sought in that case is

not analogous to the discretionary civil penalty that the Government now seeks

pursuant to section 1592(c).

                                          CONCLUSION

         Univar filed a demand for a “jury trial on all issues so triable.” Neither section

1592 nor the Seventh Amendment to the U.S. Constitution guarantees a right to have

the jury determine civil penalties to be paid to the Government. The court finds that the



8   In early customs cases, the named defendant was usually the Collector of Customs.
Court No. 15-00215                                                              Page 12


determination of the quantum of civil penalties pursuant to section 1592(c) is not an

issue triable to the jury.

       SO ORDERED.

                                                            /s/     Mark A. Barnett
                                                                     Judge

Dated: March 26, 2019
      New York, New York
