3d Cir. Model Jury Instr. (Civil) 7.5

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Last updated March 2026

reflecting just compensation for a regulatory taking. See id. at 721. As the Court explained, 1

“[e]ven when viewed as a simple suit for just compensation, . . . Del Monte Dunes' action sought 2

essentially legal relief.” Id. at 710. The Court relied on “the ‘general rule’ that monetary relief is 3

legal,” id. (quoting Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 352 (1998) 4

(quoting Chauffeurs, Teamsters and Helpers, Local No. 391 v. Terry, 494 U.S. 558, 570 (1990))), 5

and on the view that “[j]ust compensation . . . differs from equitable restitution and other monetary 6

remedies available in equity, for in determining just compensation, ‘the question is what has the 7

owner lost, not what has the taker gained,’ ” id. (quoting Boston Chamber of Commerce v. Boston, 8

217 U.S. 189, 195 (1910)). 9

10

Once a court determines that a Section 1983 suit seeks legal relief —thus triggering the 11

right to a jury—the court must next ascertain “whether the particular issues” in question are 12

“proper for determination by the jury.” Del Monte Dunes , 526 U.S. at 718 (citing Markman v. 13

Westview Instruments, Inc. , 517 U.S. 370 (1996)). 59 The court should first “look to history to 14

determine whether the particular issues, or analogous ones, were decided by judge or by jury in 15

suits at common law at the time the Seventh Amendment was adopted.” Del Monte Dunes, 526 16

U.S. at 718. “Where history does not provide a clear answer,” the court should “look to precedent 17

and functional considerations.” Id. 18

19

Back pay. If back pay is seen as a form of compensatory damages (measured in terms of 20

lost wages), then it could be argued that there should be a right to a jury on Section 1983 claims 21

for back pay. See DAN B. DOBBS, 2 LAW OF REMEDIES § 6.10(5), at 233 (2d ed. 1993). This view, 22

however, is far from universally accepted, see id. at 231 (“The courts of appeal have taken at least 23

five different positions about the right of jury trial in back pay claims under §§ 1981 and 1983.”), 24

and the Third Circuit caselaw is inconclusive. 25

26

The Court of Appeals has suggested that an award of back pay under Section 1983 27

ordinarily is an equitable remedy concerning which there is no right to a jury. See Laskaris v. 28

Thornburgh, 733 F.2d 260, 263 (3d Cir. 1984) (“[A]lthough the request for back pay under section 29

1983 seeks only equitable relief . . . , a claim for compensatory and punitive damages is a legal 30

claim entitling the plaintiff to a jury trial.”).60 Thus, for example, in Savarese v. Agriss, the Court 31

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