Opinion
00 Civ. 2200 (LAK).
January 10, 2002
ORDER
This is an action for damages for alleged violation by the United States Postal Service of the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. ("FMLA"). The pretrial order reflects a disagreement by the parties as to whether plaintiff is entitled to trial by jury. Accordingly, the Court directed plaintiff to show cause, on or before December 27, 2001, why her jury demand should not be stricken. Plaintiff never responded to the order.
It is quite clear that the Seventh Amendment does not apply in actions against the federal government, that Congress generally has prohibited jury trials in actions against the United States, and that a right to a jury trial exists in an action against an agency of the United States (including the Postal Service) exists "only if congress `affirmatively and unambiguously' grants such a right by statute." In re Young, 869 F.2d 158, 159 (2d Cir. 1989) (quoting Lehman v. Nakshian, 453 U.S. 156, 168 (1981)). The FMLA contains no such grant. Accordingly, plaintiff is not entitled to a jury in this case. Davis v. Henderson, 2000 WL 1828476, 238 F.3d 420 (6th Cir. 2000) (table).
Although 6th Cir.R. 28 "disfavors" citation of unpublished opinions, it does not prohibit counsel from doing so.
Plaintiff's jury demand is stricken.
SO ORDERED.