SCOTUS, No. 84-6811 - Social Science Amicus Brief Vol. 1 of 2 (Redacted)

    No. 85-54

31 n i\\t J^ujjrpmr Court of ttjo JSuttoh j^tatog
O ctober  T erm , 1985

L ib r a r y  of C ongress , et a l ., petitio ners

v.
T om m y  S h a w

ON WRIT OF CERTIORARI TO 
THE UNITED STA TES COURT OF APPEALS FOR 

THE DISTRICT OF COLUMBIA CIRCUIT

REPLY BRIEF FOR THE PETITIONERS

C harles F ried  
Solicitor General 
Department o f Justice 
Washington, D.C. 20530 
(202) 633-2217



TABLE OF AUTHORITIES
Page

Cases:
Albrecht v. United States,

329 U.S. 599 ......................................... 2, 3, 7
Blake v. Califano, 626 F.2d 891 ...................... 6, II
Boston Sand Co. v. United States,

278 U.S. 41 ...........................................................  6
Brooks-Scanlon Corp. v. United States,

265 U.S. 106 .............................. . .......................  3
Brown v. GSA, 425 U.S. 820 ........................ 10, 11
Chandler v. Roudebush, 425 U.S. 840 ................ 10
Christiansburg Garment Co. v. EEOC,

434 U.S. 412 .........................................................  7
Copeland v. Marshall, 641 F.2d 880 .......... .........  7
Cross v. United States Postal Service,

733 F.2d 1327, affd, 733 F.2d 1332,
cert, denied, No. 84-979 (Mar. 18, 1985)............ 4

deWeever v. United States, 618 F.2d 685 ........ .. 11
FHA v. Burr, 309 U.S. 242 ..................................  9
Fischer v. Adams, 572 F.2d 406 ......................... 11
Franchise Tax Board v. United States Postal 

Service, No. 83-372 (June 11, 1984).................... 9
General Motors Corp. v. Devex Corp.,

461 U.S. 648 .....................................................  5, 7
Lehman v. Nakshian, 453 U.S. 156 ................9, 10
Liggett & Myers Tobacco Co. v. United States,

274 U.S. 215 .........................................................  3

(I)

^ 
%



II

Cases—Continued:
Loeffler v. Carlin, Nc. 84-2553 

(8th Cir. Dec. 30, 1985) ................................ . 4,9
Nagy v. United States Postal Service,

773 F.2d 1190 ....................................................... 9
New York Gaslight Club v. Carey,

447 U.S. 54 ........................................................... 7
Phelps v. United States, 274 U.S. 341 .................. 3
Richer son v. Jones, 551 F.2d 918 ........................  11
Ruckelshaus v. Sierra Club, 463 U.S. 680 ............  9
Saunders v. Claytor, 629 F.2d 596, 

cert, denied, 450 U.S. 980 ..........................  6-7, 11
Seaboard Air Line R.R. Co. v. United States,

261 U.S. 299 ......................................................... 3
Segar v. Smith, 738 F.2d 1249, cert, 

denied, No. 84-1200 (May 20, 1985) ................ 11
Smyth v. United States, 302 U.S. 329 .............. 2,3
Standard Oil Co. v. United States,

267 U.S. 76 ........................................................... 9
Tillson v. United States, 100 U.S. 43 ..........2, 3, 10
United States v. Alcea Band,

341 U.S. 48 ...................................................2, 3, 7
United States v. Commonwealth & Dominion 

Line, Ltd., 278 U.S. 427 .................................  2,3
United States v. Goltra, 312 U.S. 203 ..........  2, 3, 7
United States v. Louisiana, 446 U.S. 253 ............ 2

Page



Ill

Cases—Continued:
United States v. North American Co.,

253 U.S. 330 ............................................... .. 2, 3, 6
United States v. North Carolina,

136 U.S. 211 ........................................................ . 5
United States v. N. Y. Rayon Importing Co.,

329 U.S. 654 .............................................  2, 3, 8, 9
United States v. Sherman, 98 U.S. 565 ................ 6
United States v. Thayer- West Point Hotel 

Co., 329 U.S. 585 .........................................  2, 3, 7
United States v. Verdier,

164 U.S. 213 ...............................   2,5,6
United States v. Worley, 281 U.S. 339 .................. 2
Waite v. United States, 282 U.S. 508 .................... 3

Constitution and statutes:
U.S. Const. Amend. V (Taking Clause) ........... 3, 7
28 U.S.C. 2516 .........................................................  9
42 U.S.C. 2000e-5(k) ...............   1,7,11

Miscellaneous:
Comment, Prejudgment Interest: An Element 

Not to be Overlooked, 8 Cum. L. Rev. 521 
(1977) .....................................................................  5

Developments in the Law—Damages, 61 Harv. L. 
Rev. 113 (1947).....................................................  5

Note, Interest in Judgments Against the Federal 
Government: The Need for Full Compensation,
91 Yale L.J. 297 (1981) .......................................  5

Page



Miscellaneous—Continued:
4 Op. Att’y Gen. 136 (1842) .......................... .. 5
Recent Developments, Prejudgment Interest as 

Damages: New Application o f an Old Theory,
15 Stan. L. Rev. 107 (1972) ...............................  5



(3k i\\t Court of ttjo ffinxUb jitateg
October Term, 1985

No. 85-54
L ibrary of Congress, et al., petitioners 

v.
Tommy Shaw

ON WRIT OF CERTIORARI TO 
THE UNITED ST  A TES COURT OF APPEALS FOR 

THE DISTRICT OF COLUMBIA CIRCUIT

REPLY BRIEF FOR THE PETITIONERS

Respondent has failed to challenge most of the legal 
propositions established in our opening brief. He barely 
contests, for example, our submission (Gov’t Br. 11-17) that 
Congress must be found to have clearly and affirmatively 
contemplated an award of interest against the United States 
before the “no-interest rule” may be deemed waived. He 
does not deny that Congress’s usual approach, when it has 
wished to make interest available against the government, 
has been to do so in terms, spelling out the applicable 
procedures and rates (see Gov’t Br. 21-25). He does not 
suggest that Congress—in either the language or the legisla­
tive history of Title VII—so much as adverted to the avail­
ability of interest (see Gov’t Br. 17-21). And he makes 
virtually no attempt to defend the analysis propounded by 
the court of appeals in this case: that 42 U.S.C. 2000e-5(k) is 
an express waiver of the government’s sovereign immunity 
as to interest. Yet the arguments that respondent offers in 
the place of that thesis are uniformly unconvincing.

(1)



2

1. a. Respondent’s principal legal contention (Br. 14-24) 
is that the “no-interest rule” simply does not apply to claims 
for prejudgment interest; he insists that “virtually all” of the 
cases cited in our opening brief relating to the operation of 
the rule involved post-judgment interest (Br. 22). But this 
simply is not so. To the contrary, virtually all of the deci­
sions cited in our brief stand for the proposition that “no 
interest can be allowed upon any claim against the govern­
ment up to the time o f the rendition o f judgment” ( United 
States v. Verdier, 164 U.S. 213, 218 (1896) (emphasis 
added))—and many refused to award prejudgment interest 
despite delays prior to judgment that were far longer than 
the one in this case. See, e.g., United States v. Alcea Band 
(Tillamooks), 341 U.S. 48, 49 (1951) (although liability 
accrued in 1855, prejudgment interest not allowed when 
judgment awarded in 1950); United States v. North Ameri­
can Co., 253 U.S. 330,335-336,338 (1920) (interest unavail­
able where liability accrued 20 years prior to judgment). 
Accord United States v. N. Y. Rayon Importing Co., 329 
U.S. 654, 658 (1947); United States v. Thayer-West Point 
Hotel Co., 329 U.S. 585, 588-590 (1947); United States v. 
Goltra, 312 U.S. 203, 205, 207 (1941); United States v. 
Worley, 281 U.S. 339,340, 343-344(1930); United States v. 
Commonwealth & Dominion Line, Ltd., 278 U.S. 427, 428 
(1929); Verdier, 164 U.S. at 218; Tillson v. United States, 
100 U.S. 43, 47 (1879). See generally United States v. 
Louisiana, 446 U.S. 253, 261-265 (1980); Albrecht v. Uni­
ted States, 329 U.S. 599, 601, 603 (1947); Smyth v. United 
States, 302 U.S. 329, 354 (1937).1 Similarly, the early

‘Respondent evidently takes the position that, because the govern­
ment’s liability in some of these cases was liquidated, interest on that 
liability would have had “the character of post-judgment interest” (Br. 
18 n.10; see id. at 21-22). The fact that the underlying debt involves a 
sum certain, however, hardly converts interest on that debt for the 
period prior to the entry of judgment into post-judgment interest. In



3
Attorneys General Opinions (see Gov’t Br. 12) propound­
ing and applying the “no-interest rule” to claims paid by 
Executive Departments had no occasion at all to discuss 
post-judgment interest.2

Indeed, to our knowledge, no court ever has accepted— 
or even discussed—the distinction between pre-and post­
judgment interest advanced by respondent.3 As the

any event, many of the cases cited above involved unliquidated liabili­
ties. See, e.g., Tillamooks, 341 U.S. at 48; Thayer-West Point Hotel 
Co., 329 U.S. at 587; Goltra, 312 U.S. at 205; Commonwealth & 
Dominion Line, 278 U.S. at 428; North American Co., 253 U.S. at 
332-333.

Similarly, respondent is simply incorrect in asserting (Br. 22- 23) that 
28 U.S.C. 2516 reaches only post-judgment interest; as this Court has 
explained, that statute’s predecessors provided that “no interest [was] 
allowed on any claim up to the time of the rendition of judgment.” 
Goltra, 312 U.S. at 207. See N. Y. Rayon Importing Co., 329 U.S. at 
661; Tillson, 100 U.S. at 47.

Respondent relies principally on cases requiring the payment of 
interest as part of the just compensation due after an exercise of the 
government’s eminent domain power (Br. 17-18, citing Seaboard Air 
LineR.R. v. United Stales, 261 U .S.299(1923)\ Brooks-Scanlon Corp. 
v. United States, 265 U.S. 106 (1924); Liggett & Myers Tobacco Co. v. 
United States, 274 U.S. 215 (1927); Phelps v. United States, 274 U.S. 
341 (1927); Albrecht v. United States, 329 U.S. 599 (1947)). As the 
Court repeatedly has explained, however, those cases turn entirely on 
the nature of the Fifth Amendment’s Taking Clause and have no 
application outside the constitutional context. See Tillamooks, 341 
U.S. at 49; Albrecht, 329 U.S. at 602-605; Smyth, 302 U.S. at 353-354.

Respondent also relies upon Waite v. United States, 282 U.S. 508 
(1931), in which prejudgment interest was awarded against the United 
States in a patent infringement action. But the Court’s two-paragraph 
decision in Waite was not well-considered; the government did not 
contest its liability for interest (ibid.), and the Court relied principally 
upon inapposite Taking Clause decisions (see id. at 509). In these 
circumstances, it is doubtful that Waite can be reconciled with this 
Court’s otherwise consistent application of the “no-interest rule.” And 
Waite does not, in any event, adopt the distinction between pre- and 
post-judgment interest contended for by respondent.



4

decisions cited above indicate, this Court has not recog­
nized any such dichotomy. The same is true of the courts of 
appeals, which uniformly have held that interest on back 
pay awards is unavailable to Title VII plaintiffs (see cases 
cited at Gov’t Br. 20-21).4 And it is true even of the court 
below, which explicitly recognized that the “no-interest 
rule” would be applicable here in the absence of a suffi­
ciently clear waiver (Pet. App. 13a-14a).

b. That the courts have failed to distinguish between 
pre-and post-judgment interest for purposes of the “no­
interest rule” is hardly surprising, for the policy and histori­
cal differences between the two forms of interest that are 
postulated by respondent have no basis in fact. Respondent 
asserts that post-judgment interest traditionally was under­
stood to serve as a penalty for failure to make timely pay­
ment on a fixed judgment (Br. 20), while prejudgment inter­
est instead served as “a part of the calculation of the 
judgment itself” (Br. 19). Because, in respondent’s view, the 
“no-interest rule” was created in response to the principle 
that the government may not be penalized without its con­
sent (Br. 21), he suggests that the rule as originally formu­
lated did not apply to prejudgment interest.

In fact, however, the traditional view, which prevailed in 
the nineteenth and early twentieth centuries when the “no­
interest rule” already was in full force, saw not only post­
judgment interest, but also “prejudgment interest as a 
penalty awarded on the basis of the defendant’s conduct.”

4At the time that our opening brief was filed, five circuits—including 
two panels of the District of Columbia Circuit—had held interest 
unavailable on Title VII back pay awards against the federal govern­
ment. Since then, another court of appeals has reached the same conclu­
sion. Loeffler v. Carlin, No. 84-2553 (8th Cir. Dec. 30,1985) (relying on 
Cross v. United States Postal Service, 733 F.2d 1327, aff’d by an 
equally divided en banc court, 733 F.2d 1332 (8th Cir. 1984), cert, 
denied, No. 84-979 (Mar. 18, 1985)).



5

General Motors Corp. v. Devex Corp., 461 U.S. 648, 655- 
656 n. 10 (1983). See Recent Developments, Prejudgment 
Interest as Damages: New Application o f an Old Theory, 
15 Stan. L. Rev. 107 (1972); Comment, Prejudgment Inte­
rest: An Element Not to be Overlooked, 8 Cum. L. Rev. 
521, 522 (1977); Developments in the Law—Damages, 61 
Harv. L. Rev. 113, 137 (1947). See also Note, Interest in 
Judgments Against the,Federal Government: The Need for  
Full Compensation, 91 Yale L.J. 297, 299-301 (1981).5 
There is thus no historical basis on which to distinguish 
between the two forms of interest. Conversely, no ground of 
policy exists to set pre- and post-judgment interest (or, for 
that matter, interest on liquidated as opposed to unliqui­
dated claims) apart from one another; both serve to com­
pensate a plaintiff for “the foregone use of the money” 
between the time of the injury and the date of payment. 
General Motors Corp., 461 U.S. at 656.

Respondent’s historical analysis is, in any event, overly 
simplistic. While interest often was characterized as a 
penalty during the nineteenth century, the “equitable prin­
ciple that interest is an incident to the debt” plainly was 
understood at the time. 4 Op. Atty. Gen. 136, 137 (1842). 
And the “no-interest rule” was justified not only on the 
ground offered by respondent, but also “by the policy of 
society * * * for the protection of the public.” 4 Op. Atty. 
Gen. at 137. See Verdier, 164 U.S. at 218-219; United States 
v. North Carolina, 136 U.S. 211,216 (1890). As noted above 
(note 1), the Court accordingly has applied the “no-interest

5This evidently was the origin of the common law rule that prejudg­
ment interest is available only on liquidated claims: “Because a defend­
ant could not be expected to pay an obligation of uncertain magnitude, 
it was thought improper to penalize him for withholding payment 
pending adjudication.” Note, supra, 91 Yale L.J. at 301 (footnote 
omitted). See Developments, supra, 61 Harv. L. Rev. at 137. See 
generally General Motors Corp., 461 U.S. at 651-652 & n.5.



6

rule” routinely—and consistently—in cases involving pre­
judgment interest on both liquidated and unliquidated 
debts. Indeed, whatever the original justification for the 
rule, Congress has been aware of the rule’s existence for 
over a century. Legislation enacted in such a setting must be 
interpreted with the “no-interest rule” in mind.

2. Respondent’s second argument (Br. 24-35)—that the 
statutory purpose would be served were interest available— 
is premised on the proposition that the “no-interest rule” is 
inapplicable to claims for prejudgment interest. That a 
policy consideration of this sort may suffice to make inter­
est available against private Title VII defendants, however, 
simply has no bearing here. The very purpose of the “no­
interest rule” is to permit the government to “occupy an 
apparently favored position” {Verdier, 164 U.S. at 218-219) 
by protecting it from claims for interest that would prevail 
against private parties; the rule comes into play only when 
the statute at issue is of the sort that would (or does) make 
interest available against nongovernmental entities. See 
Blake v. Califano, 626 F.2d 891, 893 (D.C. Cir. 1980). Cf. 
Boston Sand Co. v. United States, 278 U.S. 41, 49 (1928) 
(in the adjustment of mutual claims, the government may 
obtain interest on its award while interest is unavailable to 
the other party) (dictum); North American Co., 253 U.S. at 
336 (same); Verdier, 164 U.S. at 218-219 (same).

Similarly, respondent may not obtain interest through 
the semantic device of claiming that an adjustment to com­
pensate for delay is a necessary element of a reasonable 
attorneys’ fee (Resp. Br. 24-25). Because the “no-interest 
rule” protects the government from liability for delay (see 
United States v. Sherman, 98 U.S. 565, 568 (1878)), any 
portion of a fee award that compensates for the “belated 
receipt of [funds]” is barred by sovereign immunity. 
Saunders v. Claytor, 629 F.2d 596,598 (9th Cir. 1980), cert.



7

denied, 450 U.S. 980 (1981). This is a principle that rou­
tinely has been applied by the Court. The term “just com- , 
pensation,” for example, ordinarily is understood to 
involve an interest component; where “takings” in the con­
stitutional sense are involved, the Taking Clause requires 
payment of interest. See note 3, supra. Pointing to the 
“no-interest rule,” however, the Court consistently has held 
that interest is unavailable under statutes or contracts 
directing the United States to pay “just compensation” to 
private parties, reasoning that Congress should not be 
deemed by the use of general language to have waived the 
government’s immunity against claims grounded on delay 
in payment. See, e.g., Tillamooks, 341 U.S. at 49; Albrecht, 
329 U.S. at 605; Thayer- West Point Hotel Co., 329 U.S. at 
586; Goltra, 312 U.S. at 204 n.2, 207-211.

It is worth adding that the policy concerns articulated by 
respondent are overstated; this is not a case in which the 
statutory scheme simply cannot function if interest is 
unavailable. The ultimate purpose of Section 2Q00e-5(k) is 
not to provide employment for attorneys, but rather to 
ensure that Title VII plaintiffs will be able to obtain repre­
sentation and thus access to the courts. See New York 
Gaslight Club, Inc. v. Carey, 447 U.S. 54,63 (1980); Chris- 
tiansburg Garment Co. v. EEOC, 434 U.S. 412,420 (1978). 
Compare, e.g., General Motors Corp., 461 U.S. at 654-655. 
While the payment of interest certainly would more hand­
somely compensate plaintiffs’ lawyers, its unavailability in 
Title VII suits against the government evidently has not, as 
a practical matter, made it difficult for plaintiffs to obtain 
adequate representation.6 The impact of the “no-interest

6To our knowledge, the first case even to suggest that compensation 
for delay might be available against the government in Title VII litiga­
tion was Copeland v. Marshall, 641 F.2d 880,892-893 (D.C. Cir. 1980), 
and that suggestion has not been followed by other courts of appeals. 
For most of the period of its application, and in most parts of the



8
rule,” moreover, may be minimized through the use of other 
devices, such as interim awards of the undisputed portions 
of attorneys’ fees (see Resp. Br. 5, 33), that do not run afoul 
of the government’s sovereign immunity. But however that 
may be, respondent’s policy arguments are, in the final 
analysis, simply offered in the wrong forum: “[T]he 
immunity of the United States from liability for interest is 
not to be waived by policy arguments of this nature. Courts 
lack the power to award interest against the United States 
on the basis of what they think is or is not sound policy.” 
N. Y. Rayon Importing Co., 329 U.S. at 659.

3. Respondent finally maintains that Congress did in 
fact intend to waive the “no-interest rule” in Title VII suits 
against the federal government (Br. 39-60). This contention 
evidently is grounded on two propositions: that sovereign 
immunity is now a disfavored doctrine, so that strict appli­
cation of the rule is inappropriate (Br. 39-40); and that 
Congress, in manifesting an intent to make equivalent relief 
available to federal and to private sector Title VII plaintiffs, 
spoke with sufficient clarity to overcome the rule (Br. 43- 
60). Neither of these propositions has merit.

a. Respondent’s assertion that purported waivers of sov­
ereign immunity no longer are to be judged under the 
traditional standard is insupportable. The Court has 
recently—and repeatedly—reaffirmed the principle that 
“[wjaivers of immunity must be ‘construed strictly in favor 
of the sovereign,’ McMahon v. United States, 342 U.S. 25, 
27 (1951), and not ‘enlarge[d]. . . beyond what the language

country, interest accordingly has not been available on Title VII attor­
neys’fees against the federal government. Moreover, for the beginning 
practitioner or small firm attorney identified by respondent as “the 
typical civil rights lawyer” (Br. 29), factors wholly independent of the 
“no-interest rule”—such as the contingent nature of the fees awarded 
under Title VII and the likelihood that the lawyer will have no steady 
stream of income (Br. 29-31)—are likely to crehte considerably greater 
practical difficulties than will the unavailability.of interest.



9

requires,’ Eastern Transportation Co. v. United States, 272 
U.S. 675, 686 (1927).” Ruckelshaus v. Sierra Club, 463 
U.S. 680, 685-686 (1983). See Lehman v. Nakshian, 453 
U.S. 156,161 (1981). Franchise Tax Board v. United States 
Postal Service, No. 83-372 (June 11, 1984), upon which 
respondent relies, did not signal a break with this precedent; 
that decision is simply the most recent in a line of cases 
holding that, “ ‘when Congress launche[s] a governmental 
[entity] into the commercial world and endow[s] it with 
authority to “sue or be sued,” that agency is not less amena­
ble to judicial process than a private enterprise under like 
circumstances would be.’ ” Slip op. 5, quoting FHA v. 
Burr, 309 U.S. 242, 245 (1940). See Nagy v. United States 
Postal Service, 773 F.2d 1190, 1192 (11th Cir. 1985).7

b. Viewed under the proper standard, respondent’s argu­
ment fails to show the manifest congressional intent neces­
sary to overcome the “no-interest rule.” As we explained in 
our opening brief (at 13-14), a waiver of the rule must be 
express; indeed, under the predecessor to 28 U.S.C. 2516, 
which codifies the traditional “no-interest rule,” the Court 
has held that even “an intent on the part of the framers of a 
statute or contract to permit the recovery of interest” does 
not “suffice where the intent is not translated into affirma­
tive statutory or contractual terms.” N. Y. Rayon Importing 
Co., 329 U.S. at 659. Yet respondent’s lengthy recitation of

Similarly, as we explained in our opening brief (at 17 n.8), Stand­
ard Oil Co. v. United States, 267 U.S. 76 (1925) (cited by respondent at 
Br. 41), stands only for the proposition that the “no-interest rule” may 
be inapplicable to claims against a federal instrumentality operating as 
a commercial enterprise. See Pet. App. 49a n.8 (Ginsburg, J., dissent­
ing). Indeed, it is unsettled whether even the Postal Service’s “sue or be 
sued” clause suffices to overcome the “no-interest rule” in suits against 
the Service. Compare Nagy, 773 F.2d at 1192-1193, with Loeffler v. 
Carlin, No. 84-2553 (8th Cir. Dec. 30, 1985), slip op. 9 & n.3.



10
Title VII’s legislative history fails to divulge any evidence 
that Congress ever considered the interest question, let 
alone formed—or expressed—an affirmative desire to 
make interest available.8

To be sure, the language and legislative history of the 
Equal Employment Opportunity Act of 1972 demonstrate 
Congress’s plain intent to open courthouse doors to federal- 
employee Title VII plaintiffs, thus permitting them to 
obtain the same substantive relief from discrimination as 
their private sector counterparts. See generally Brown v. 
GSA, 425 U.S. 820, 827-828 (1976); id. at 836 & n.2 (Stev­
ens, J., dissenting); Chandler v. Roudebush, 425 U.S. 840, 
848 (1976). But the “no-interest rule” applies even to reme­
dial statutes that are intended to provide “just compensa­
tion” (see page 7, supra), or the “amount equitably due” 
(Tillson, 100 U.S. at 46), or “ ‘any * * * equitable relief 
* * * the court deems appropriate’ ‘'(Blake, 626 F.2d at 893 
(citation and footnote omitted))—although identical lan­
guage makes private defendants liable for interest (see Gov’t 
Br. 15). And Title VII, despite its remedial ends, must be 
read against the background of the government’s sovereign 
immunity (see Brown, 425 U.S. at 833; cf. Nakshian, 453 
U.S. at 163); for that reason, the courts of appeals uni­
formly have held that Title VII plaintiffs may not obtain 
interest on back pay awards against the government.

8Although respondent mentions the language of Section 2000e-5(k) 
in passing (Br. 44), he does not suggest—as did the court below—that 
the language amounts to an express waiver of the “no-interest rule.” In 
fact, as we explained in our opening brief (at 19-20), the statute’s “same 
as a private person” proviso represented a threshold waiver of the 
government’s immunity against fee awards in its role as a Title VII 
plaintiff, rather than an affirmative decision to waive the “no-interest 
rule.” Although respondent challenges the persuasiveness of this statu­
tory analysis as applied to support other arguments in other cases (Br. 
57), he fails even to suggest why it should not be dispositive here.



11

Because it is indisputable that Congress did not affirma­
tively contemplate an award of interest against the govern­
ment under Section 2000e-5(k), the same conclusion is 
applicable here.9

For the foregoing reasons and the reasons stated in our 
opening brief, the judgment of the court of appeals should 
be reversed.

Respectfully submitted.

Charles Fried
Solicitor General

February 1986

9Despite respondent’s assertion to the contrary (Br. 58-59), this posi­
tion does not represent a departure from the Justice Department’s prior 
views. The Attorney General’s memorandum cited by respondent indi­
cated that the same standards should be applied, and the same types of 
relief should be available, in federal and private sector Title VII suits. It 
did not indicate, however, that every element of such relief must be 
identical in the two categories of cases; indeed, in the very year in which 
the memorandum was issued—and in the years immediately following— 
the government contended in the courts that interest should not be 
available to Title VII plaintiffs. See Richerson v. Jones, 551 F.2d 918, 
925 (3d Cir. 1977); Fischer v. Adams, 572F.2d406,411 (IstCir. 1978); 
deWeever v. United States, 618 F.2d 685,686 (10th Cir. 1980); Blake, 
626 F.2d at 894 (1980); Saunders v. Claytor, 629 F.2d at 598 (1980); 
Segar v. Smith, 738 F.2d 1249,1296 (D.C. Cir. 1984), cert, denied, No. 
84-1200 (May 20, 1985).

DOJ-1986-02