Library of Congress v. Shaw Petition for Writ of Certiorari

    No,

In tfy Bnpnm (tairt nf %  Intt^ ii’tata
October Term, 1985

Library of Congress, et al., petitioners

v.

Tommy Shaw

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Charles Fried 
Acting Solicitor General

R ichard K. W illard 
Acting Assistant Attorney General

Kenneth S. Geller 
Deputy Solicitor General

Charles A. Rothfeld 
Assistant to the Solicitor General

W illiam Kanter 
A l J. Daniel, Jr.

Attorneys
Department of Justice 
Washington, D.C. 20530 
(202) 633-2217



QUESTION PRESENTED

Whether Section 706 (k) of the Civil Rights Act of 
1964, 42 U.S.C. 2000e-5(k), which makes the United 
States liable for attorneys’ fees “ the same as a private 
person,” waives the federal government’s sovereign 
immunity so as to permit the recovery o f interest on 
attorneys’ fee awards against the United States.

( i )



II

PARTIES TO THE PROCEEDING

In addition to the parties named in the caption, 
petitioners include Daniel J. Boorstin, Librarian of 
Congress; Donald C. Curran, Associate Librarian of 
Congress; and John J. Kominsky, General Counsel, 
Library of Congress.



TABLE OF CONTENTS

Opinion below_____ _________________ _____ ____ ___ - 1
Jurisdiction ............... ........ ........ .......................................  1
Statute involved ...... ........................................................ . 2
Statement..... ....... ......... .......................................................  2
Reasons for granting the petition.... ....... ....................... 6
Conclusion ________________________ ________________  17
Appendix A ..... ................... ................. ........ ..................... la
Appendix B .........    57a
Appendix C _______________ _____________________ ___ 70a
Appendix D .... .....    71a
Appendix E .........      73a
Appendix F ....... .............. .......... ................................... . 74a

TABLE OF AUTHORITIES
Cases:

Albrecht V. United States, 32:9 U.S. 599................  9,14
Arvin v. United States, 742 F.2d 1301 ...................  12, 16
Blake V. Calif ano, 626 F.2d 891 ........................8, 10, 12,15
Boston Sand Co. V. United States, 278 U.S. 41.......  10,11
Canadian Aviator, Ltd. V. United States, 324 U.S.

215_____________        11
Christiansburg Garment Co. V. EEOC, 434 U.S.

412............... ........... .............................................. . 12
Copeland V. Marshall, 641 F.2d 880........................  3,17
Copper Liquor, Inc. V. Adolph Coors Co., 701 F.2d

542 ......................... ........ ................... ................. . 14
Cross V. United States Postal Service, 733 F.2d 

1327, aff’d, 733 F.2d 1332, cert, denied, No. 84-
979 (Mar. 18, 1985) .................................. ..........  15

deWeever V. United States, 618 F.2d 685 ............... 15
Fischer V. Adams, 572 F.2d 406 ................... ..........  15
General Motors Corp. V. Devex Corp., 461 U.S. 648.. 13

Page

(III )



Cases— Continued:
IV

Page
Holly V. Chasen, 639 F.2d 795, cert, denied, 454

U.S. 822 ____ ________ ____ ______ ___________9, 10, 12
Indian Towing Co. V. United States, 350 U.S. 61.. 11
Knights of the Ku Klux Klan V. East Baton Rouge

Parish School Board, 735 F.2d 895 ................ ..14-15, 16
Lehman V. Nakshian, 453 U.S. 156...................8 , 10, 13-14
Marziliano V. Heckler, 728 F.2d 151 ______ _____ 15
McMahon V. United States, 342 U.S. 25 ___ __ ___ 7, 8
Murray V. Weinberger, 741 F.2d 1423........ .......... . 6
Perkins V. Standard Oil Co. of California, 487 F.2d

672 .............................. ...................... .....................  14
Richerson V. Jones, 551 F.2d 918 ____ ___ ______
Rodgers V. United States, 332 U.S. 371 ___________ 13
Ruckelshaus V. Sierra Club, 463 U.S. 680 ............. . 8, 14
Saunders V. Claytor, 629 F.2d 596, cert, denied,

450 U.S. 980 .............. ........ ...................................  15
Segar V. Smith, 738 F.2d 1249, cert, denied, No. 84-

1200 (May 20, 1985) ____________________ ____  12, 15
Smyth V. United States, 302 U.S. 329 ___________  9
Soriano V. United States, 352 U.S. 270 _________  8
Standard Oil Co. V. United States, 267 U.S. 76__  11
Tillson V. United States, 100 U.S. 43 ____ __ ______ 11
United States v. Alcea Band of Tillamooks, 341

U.S. 48 ________ __ _______________ ___ _______ 8, 9,11
United States v. Goltra, 312 U.S. 203__ ___ ____9, 10,11
United States V. King, 395 U.S. 1 __________ ___ 10
United States V. Louisiana, 446 U.S. 253..... ........ . 9, 10
United States V. Mescalero Apache Tribe, 518 F.2d

1309, cert, denied, 425 U.S. 911_______________ 8
United States V. North American Transp. & Trad­

ing Co., 253 U.S. 330 .... ............ ......... .................  8, 10
United States V. North Carolina, 136 U.S. 211__  10
United States v. N.Y. Rayon Importing Co., 329

U.S. 654................... ....... ................................. .....  9,10
United States V. Sherman, 98 U.S. 565 ............ ...... 10
United States V. Sherwood, 312 U.S. 584_____ _ 8
United States V. Testan, 424 U.S. 392 ___________  8
United States V. Thayer-West Point Hotel Co., 329

U.S, 585.......... ............... ..... ........ ................ ....... . 9,10
United States V. Verdier, 164 U.S. 213___________ 10
United States V. Worley, 281 U.S. 339 ........ ...... ..9-10, 11



United States V. Yellow Cab Co., 340 U.S. 543.... . 11
United States ex rel. Angarica V. Bayard, 127 U.S.

251 ...........................................................................  9
Statutes:

Civil Rights Act of 1964, Pub. L. No. 88-352,
§ 706 (k), 78 Stat. 261............................. ........... ., 12

Equal Access to Justice Act, Pub. L. No. 96-481,
94 Stat. 2325 et seq.:

§ 203 (c ) , 94 Stat. 2327  .................................  14
§ 204 (c ) , 94 Stat. 2329  ............. ........ ............ . 14

Equal Employment Opportunity Act of 1972, Pub.
L. No. 92-261, 86 Stat. 103, 42 U.S.C. 2000e
et seq......... ........................................... —......... ......  12

42 U.S.C. 2000e-5 (k) ...... ..1, 3, 4, 5, 7, 8, 12, 13,14,16
War Risk Insurance Act of 1914, ch. 293, 38 Stat.

711 et seq. .......... .......... .......................................... 11
5 U.S.C. 504.................... ............ ................................  14
15 U.S.C. 15......... ......... ................ ....... - ......... .........  14
26 U.S.C. 7426 ( g ) ............ ..........................................  13
28 U.S.C. 1961(c) (2 )____________________ _______  13
28 U.S.C. 2411..... .......................... .............. ..............  13
28 U.S.C. 2412 ......... ................ ..................................  15
28 U.S.C. 2412(b) ...... .... ..... ............................. 14,15
28 U.S.C. 2412(d)....................... ...............................  14
28 U.S.C. 2412(d) (1) (A) ................... ................. . 15
28 U.S.C. 2516(a) ..................................... ............... . 10,13
28 U.S.C. 2516(b)________________ _____________  13
29 U.S.C. 683a _______ _____ __ ______________ ___  14
31 U.S.C. 1304(b) (1) ( A ) ____________ __________  13
31 U.S.C. 1304(b) (1) (B)  .................. ...................  13
31 U.S.C. 3728(c) ...... ..................... .............. ...........  13
40 U.S.C. 258a ................. ............... ....... .... ..... ........  13

Miscellaneous:
H.R. 2378, 99th Cong., 1st Sess. (1985)....................  15
H.R. Rep. 92-899, 92d Cong., 2d Sess. (1972)........... 12
H.R. Rep. 92-238, 92d Cong., 1st Sess. (1971).....   12
H.R. Rep. 99-120, 99th Cong., 1st Sess. (1985)........  15
S>. Rep. 92-415, 92d Cong., 1st Sess. (1971) __   12
S. Rep. 92-681, 92d Cong., 2d Sess. (1972)................ 12

V
Cases—Continued: Page



3n %  G J m t r t  at %  I n i t ^  § t a t e
October Term, 1985

No.

Library of Congress, et al., petitioners

v.

Tommy Shaw

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

The Solicitor General, on behalf of the Library of 
Congress, et ah, petitions for a writ of certiorari to 
review the judgment of the United States Court of 
Appeals for the District of Columbia Circuit in this 
case.

OPINION BELOW

The opinion of the court of appeals (App., infra, 
la-56a) is reported at 747 F.2d 1469. The opinion 
and judgment of the district court (App., infra, 57a- 
70a) are unreported.

JURISDICTION

The judgment of the court of appeals (App., infra, 
71a-72a) was entered on November 6, 1984; an order 
denying rehearing (App., infra, 73a-75a) was en­

(1)



2

tered on February 20, 1985. On May 8, 1985, the 
Chief Justice extended the time within which to file 
a petition for a writ of certiorari to June 27, 1985. 
On June 21, 1985, the Chief Justice further extended 
the time for filing the petition to July 12, 1985. The 
jurisdiction of this Court is invoked under 28 U.S.C. 
1254(1).

STATUTE INVOLVED 

42 U.S.C. 2000e-5(k) provides:
In any action or proceeding under this sub- 

chapter the court, in its discretion, may allow the 
prevailing party, other than the [Equal Employ­
ment Opportunity] Commission or the United 
States, a reasonable attorney’s fee as part of the 
costs, and the Commission and the United States 
shall be liable for costs the same as a private 
person.

STATEMENT

1. In 1976 and 1977 respondent filed administra­
tive complaints charging his employer, the Library of 
Congress (Library), with racial discrimination. 
These complaints were settled in August 1978, when 
the Library agreed to award respondent back pay 
and to take certain other remedial measures. App., 
infra, 2ar3a. Shortly afterwards, however, after con­
sultation with the Comptroller General, the Library 
informed respondent that it lacked the authority to 
provide such relief absent a specific finding of racial 
discrimination (App., infra, 3a & n.7). Respondent 
then brought suit, arguing that Title VII of the Civil 
Rights Act of 1964, as amended by the Equal Em­
ployment Opportunity Act of 1972 (Title V II), 42 
U.S.C. 2000e et seq., authorized the Library to afford 
the relief specified in the settlement agreement (App., 
infra, 3a-4a).



3

On September 14, 1979, the United States District 
Court for the District of Columbia ruled in respond­
ent’s favor on the merits (see App., infra, 4a). The 
court accordingly held (see ibid.) that respondent’s 
attorney 1 was entitled to an award of fees under the 
Title VII attorneys’ fees provision, which states 
that “ the court, in its discretion, may allow the pre­
vailing party * * * a reasonable attorney’s fee as 
part of the costs, and * * * the United States shall 
be liable for costs the same as a private person.”  42 
U.S.C. 2000e-5(k). But the district court declined to 
set the fee award pending a decision by the en banc 
District of Columbia Circuit in Copeland v. Marshall, 
641 F.2d 880 (1980), which the district court antici­
pated would provide guidance on the standards ap­
plicable in the computation of attorneys’ fees. See 
App., infra, 4a, 60a. The court of appeals’ decision 
in Copeland ultimately issued almost one year later, 
on September 2, 1980.

Over one additional year passed before the district 
court, on November 4, 1981, issued an order setting 
fees and awarding them to respondent’s attorney. The 
court began by fixing the so-called “ lodestar”  (see 
App., infra, 2a n.2) based on the number of hours 
worked and the attorney’s 1978 hourly rate (id. at 
5a, 62a-66a). After making a variety of adjustments 
to the lodestar that are not relevant here (see id. at 
5a, 66a-68a), the district court declared that “ [t]his

1 The attorney whose fee is at issue here, Shalon Ralph, 
represented respondent in 1978, while the case was in its 
administrative phase; he also provided some assistance dur­
ing the district court proceedings (App., infra, 4a, n.13). The 
fee claims of respondent’s other counsel have been settled 
(ibid.). References to “ respondent’s attorney” in this peti­
tion therefore are directed only at Ralph.



4

case should have ended in August 1978, or at the 
latest in November of that year. I f [respondent’s 
attorney] had been compensated at about that time, 
he could have invested the money at an average yield 
of not less than 10% per year. It is the fault of 
neither [respondent] nor [his attorney] that payment 
was not made sooner.” Id. at 68a (footnote omitted). 
Because three years had passed since late 1978, the 
court accordingly ordered “an upward adjustment 
[of the fee] of 30% for delay” (ibid.).

2. On appeal, a divided panel of the court of ap­
peals rejected the Library’s contention that the 30% 
delay adjustment was improper because Congress in 
Section 2000e-5(k) had not authorized the award of 
interest against the United States. The panel ma­
jority acknowledged that the delay adjustment was 
interest because it “was designed to reimburse [re­
spondent’s] counsel for the decrease in value of his 
uncollected legal fee between the date on which he 
concluded his legal services and the court’s estimated 
date of likely actual receipt”  (App., infra, 11a (foot­
note om itted); see id. at 12a-13a & n.41). And the 
court acknowledged the force of the so-called “no­
interest rule”— that the United States may not be 
held liable for interest in the absence of an express 
waiver of its sovereign immunity (id. at 13a).

The court of appeals held, however, that Section 
2000e-5(k) is such a waiver. The court noted that 
private parties generally may be held liable for in­
terest on fee awards under Title VII, and that Title 
VII makes the United States liable for costs “  The 
same as a private person.’ ” . This, the court concluded, 
is an “express”  statutory waiver as to interest, the 
range of which “ is defined in unmistakable language.” 
App., infra, 15a. The court also based its holding on



5

an alternative ground: that “ the traditional rigor of 
the sovereign-immunity doctrine [is relaxed] when a 
statute measures the liability of the United States by 
that of private persons” (id. at 24a).2

Judge Ginsburg dissented. She agreed that the 
30% adjustment is interest, but concluded that noth­
ing in either Section 2000e-5(k) or its legislative 
history so much as adverts to an intent to overcome 
the “no-interest rule”  (App., infra, 41a). Judge 
Ginsburg also noted that sovereign immunity prevents 
Title VII 'plaintiffs from recovering interest on back 
pay awards entered against the government, and 
found it unlikely that Congress would have given 
Title VII attorneys more favorable treatment than

2 Although the court of appeals thus held that attorneys 
may be awarded interest under Section 2000e-5(k), it none­
theless remanded the case to the district court for further 
proceedings. In the majority’s view, “a delay-in-payment ad­
justment [is] appropriate only where the lodestar is the per- 
hour charge to clients who pay when billed” (App., infra, 8a 
n.28). The court suggested, however, that a lodestar may 
“ represent [] a higher rate charged clients who sue under 
fee-shifting statutes,”  in which case the figure might already 
“ha[ve] taken into account the pecuniary disadvantage re­
sulting from the lengthy wait far payment ordinarily en­
countered under such statutes” (ibid.). In such circum­
stances, the panel concluded, “ an upward adjustment for 
delay would * * * result in the attorney being paid twice for 
the delay” (ibid.). The court of appeals therefore instructed 
the district court, on remand, to determine whether the lode­
star had been based on a rate that “has already taken into ac­
count the pecuniary disadvantage resulting from the lengthy 
wait for payment” (id. at 37a). If so, the district court was 
to vacate its 30% delay adjustment (ibid.). The court of ap­
peals also noted that, following oral argument in the case, it 
had ordered the government to pay the undisputed portion of 
the attorney’s fee (App., infra, 6a n.24) ; that payment has 
since been made.



6

their clients (id. at 42a-44a). She therefore concluded 
that Congress could not “  ‘plainly’ [have] resolved an 
immunity waiver issue never even framed in the 
course of its deliberations” (id. at 41a).3

The Library’s petition for rehearing en banc was 
denied, with Judges Ginsburg, Bork, Scalia, and 
Starr dissenting (App., infra, 73a-75a).

REASONS FOR GRANTING THE PETITION

The decision below announces an expansive refor­
mulation of the sovereign immunity doctrine. For 
more than a century, this Court consistently has held 
that federal statutes should not be deemed to allow 
interest to run on a recovery against the United 
States unless Congress affirmatively desired that re­

3 Although Judge Ginsburg thus found no justification in 
the statute for an award of interest against the United States, 
she suggested that, under Murray V. Weinberger, 741 F.2d 
1423 (D.C. Cir. 1984), there is a meaningful distinction be­
tween “ interest” and an “ adjustment for delay in receipt of 
payment” (App., infra, 38a). She explained: “ [j]ust as an 
attorney setting an hourly rate in a contingent fee case may 
factor in the risk that the cause may not prevail, so too an 
attorney embarking on services for which he or she antici­
pates payment ultimately, but not promptly, may factor in 
the expected delay” (id. at 38a-39a). Judge Ginsburg there­
fore would require a district court to determine whether an 
attorney’s historic rates (those that he charged at the time 
that he did the work at issue) were enhanced by such a delay 
factor. If so, the attorney would be entitled to reimbursement 
at that enhanced rate—but not to any additional recovery 
because of actual delay in receiving fees. If the historic rate 
did not contain a component for anticipated delay in the ret- 
ceipt of fees, however, Judge Ginsburg in an “ appropriate” 
case would permit the district court to use current market 
rates rather than historic rates in computing the lodestar, if 
doing so would not generate a windfall for the attorney. Id. 
at 50a-53a.



7

suit and announced its intentions in unambiguous 
terms. The court of appeals’ contrary conclusion—  
that 42 U.S.C. 2000e5(k) effected a waiver of sover­
eign immunity as to interest despite the absence of 
anything in the statute or its legislative history in­
dicating an affirmative intention on the part of Con­
gress to do so 4— cannot be reconciled with these 
decisions.

By departing from the settled law in this area, the 
District of Columbia Circuit has precipitated a con­
flict in principle with the decisions of two other 
courts of appeals, which have held that language in 
a statute virtually identical to Section 2000e-5(k) 
does not make the government liable for interest on 
attorneys’ fees. Perhaps more important, it has 
opened the federal treasury to a potentially wide 
range of monetary awards that were unanticipated, 
and not consciously authorized, by Congress, And 
it has effectively substituted the judgment of the 
courts for that of Congress in determining when the 
federal government’s sovereign immunity is appro­
priately deemed waived. In these circumstances, re­
view of the decision belowT by this Court is warranted.

1. It is common ground that an award of interest 
against the United States is permissible only if  Con­
gress has waived the government’s sovereign immu­
nity as to such an award. In determining whether 
Congress has done so, this Court has indicated that 
analysis should begin with the principle that 
“ [wjaivers of immunity must be ‘construed strictly 
in favor of the sovereign,’ McMahon v. United States,

4 The case before the court of appeals involved only pre- 
judgment interest. As Judge Ginsburg noted (App., infra, 
44a-45a n.5), however, the logic of the court of appeals’ hold­
ing applies to post- as well as prejudgment interest.



8

342 U.S, 25, 27 (1951), and not ‘enlarge[d] * * * 
beyond what the language requires/ Eastern Transp. 
Co. v. United States, 272 U.S, 675, 686 (1927).” 
Ruckelshaus v. Sierra Club, 463 U.S. 680, 685-686 
(1983) .5 And, as the court below acknowledged (App., 
infra, 13a), even when Congress has expressly per­
mitted collection on substantive claims against the 
United States, the “  ‘traditional rule’ [is] that interest 
on [such] claims cannot * * * be recovered”  unless 
the awarding of interest was affirmatively and sepa­
rately contemplated by Congress. United States v. 
Alcea Band of Tillamooks, 341 U.S. 48, 49 (1951).

The court of appeals found that Section 2000e-5(k) 
evidences such congressional intent— despite the omis­
sion from the statute of any reference to interest (see 
App., infra, 17a n.49)—-because private employers 
may be held liable for interest on attorneys’ fees un­
der Title VII, and the statute generally measures the 
liability of the United States against that of private 
defendants (App., infra, 14a-16a,).6 The court of ap­
peals’ approach, however, cannot be reconciled with 
the analysis that this Court consistently has applied

5 Accord Lehman v. NaJcshian, 453 U.S, 156, 161 (1981) ; 
United States v. Testan, 424 U.S. 392, 400-401 (1976) ; Sori­
ano V. United States, 352 U.S. 270, 276 (1957) ; United 
States V. Sherwood, 312 U.S. 584, 586-587, 590 (1941).

6 Although respondent argued to the contrary in the court 
of appeals (see App., infra, 10a), both the majority and the 
dissenting opinions correctly concluded that the 30% upward 
adjustment—which explicitly wasi intended to compensate re­
spondent’s attorney for delay in the receipt of payment (see 
id. at lla-12a)—was “ interest.” See United States v. North 
American Transp. & Trading Co., 253 U.S. 330, 338 (1920) ; 
Blake V. Califano, 626 F.2d 891, 895 (D.C. Cir. 1980) ; United 
States V. Mescalero Apache Tribe, 518 F.2d 1309, 1322 (Ct. 
Cl. 1975), cert, denied, 425 U.S. 911 (1976).



9

in resolving claims for interest against the federal 
government.

a. Some 100 years ago, the Court was relying on 
what already was a “well-settled principle, that the 
United States are not liable to pay interest on claims 
against them, in the absence of express statutory pro­
vision to that effect.”  United States ex rel, Angarica 
v. Bayard, 127 U.S. 251, 260 (1888). Since that 
time, the Court repeatedly has reaffirmed the notion 
that, “ [a]part from constitutional requirements, in 
the absence of specific provision by contract or stat­
ute, or ‘express consent * * * by Congress,’ interest 
does not run on a claim against the United States.” 
United States v. Louisiana, 446 U.S. 253, 264-265 
(1980), quoting Smyth v. United States, 302 U.S. 
329, 353 (1937).7 Thus, a waiver of immunity is 
effective only “where interest is given expressly by an 
act of Congress, either by the name of interest or by 
that of damages.” Bayard, 127 U.S. at 260. “ The 
waiver cannot be by implication or by use of am­
biguous language” (Holly v. Ckasen, 639 F.2d 795, 
797 (D.C. Cir.), cert, denied, 454 U.S. 822 (1 9 8 1 )); 
the “ consent necessary to waive the traditional im­
munity must be express, and it must be strictly con­
strued.” United States v. N.Y. Rayon Importing Co., 
329 U.S. 654, 659 (1947). Accord Tillamooks, 341 
U.S. at 49; Albrecht v. United States, 329 U.S. 599, 
605 (1947); United States v. Thayer-West Point 
Hotel Go., 329 U.S. 585, 590 (1947); United States v. 
Goltra, 312 U.S. 203, 207 (1941); United States v.

7 The “ constitutional requirements” arise in takings under 
the Just Compensation Clause; the Court has held that just 
compensation must include a payment for interest. See, e.g., 
Tillamooks, 341 U.S. at 49 ; Albrecht v. United States, 329 
U.S, 599, 605 (1947) ; Smyth, 302 U.S. at 353-354.



10

Worley, 281 U.S. 339, 341 (1930); Boston Sand Co. 
v. United States, 278 U.S. 41, 46 (1928); United 
States v. North American Trans. & Trading Co., 253 
U.S. 330, 336 (1920); United States v. North Caro­
lina, 136 U.S. 211, 216 (1890); United States v. 
Sherman, 98 U.S. 565, 567-568 (1878).s

In applying these principles, the courts have held 
virtually without exception that the government’s im­
munity can be found to have been waived in this con­
text only when Congress affirmatively considered the 
interest question and unambiguously affirmed its in­
tention that interest should be available. See Holly, 
639 F.2d at 797. Cf. Lehman v. Nakshian, 453 U.S. 
156, 168 (1981); United States v. King, 395 U.S. 1, 
4 (1969). This and other courts therefore have held, 
for example, that interest could not be awarded when 
the United States was required to disgorge funds 
under an agreement that had permitted it to collect 
and use revenues from disputed lands pending a de­
termination of ownership ( United States v. Louisi­
ana, 446 U.S. at 261-264), or when, “ in the adjust­
ment of mutual claims” with a private party, the 
United States was awarded interest on its claims. 
North American Trans. & Trading Co., 253 U.S. at 
336; United States v. Verdier, 164 U.S. 213, 218-219 
(1896). 8

8 Several of these cases involved the construction of prede­
cessors to 28 U.S.C. 2516(a), which permits an award of in­
terest on judgments against the United States' in the Claims 
Court “ only under a contract oir Act of Congress expressly 
providing for payment thereof.” The Court repeatedly has 
emphasized, however, that the statute simply “ codifies the 
traditional rule” (N.Y. Rayon, 329 U.S. at 658) that the gov­
ernment is immune “from the burden of interest unless it is 
specifically agreed upon by contract or imposed by legisla­
tion.” Goltra, 312 U.S. at 207 (footnote omitted). See 
Thayer, 329 U.S. at 588; Blake, 626 F.2d at 894 n.6.



1 1

Interest also has been ruled unavailable under 
statutes or contracts directing' the United States to 
pay the “ ‘amount equitably due’ ”  ( Tillson v. United 
States, 100 U.S. 43, 46 (1879)), or “ any * * * equita­
ble relief * * * the court deems appropriate”  (Blake 
v. Calif anno, 626 F.2d 891, 893 (D.C. Cir. 1980)), or 
“ just compensation” (e.g., TUlamooks, 341 U.S. at 
49; Goltra, 312 U.S. at 207-211)— even though “ just 
compensation”  for constitutional purposes has long 
been understood to require payment of interest (see 
note 7, supra). Indeed, the Court has indicated that 
even statutory language basing federal liability 
“ ‘upon the same principle and measure * * * as in 
like cases * * * between private parties’ ” generally 
“ hal[si] been understood * * * not to carry interest.” 
Boston Sand, 278 U.S. at 46, 47.® 9

9 There is thus no merit to the court of appeals’ suggestion 
that the traditional “no-interest rule” is inapplicable when 
the statute at issue “ measures the liability of the United 
States by that of private persons” (App., infra, 24a-36a). 
Most of the decisions cited by the court of appeals on this 
pointpS stand only for the unexceptionable proposition that 
courts should not frustrate “ deliberate” waivers of sovereign 
immunity. Canadian Aviator, Ltd. V. United States, 324 U.S. 
215, 222 (1945) (cited at App., infra, 29a) ; see, e.g., Indian 
Towing Co. V. United States, 350 U.S. 61, 69 (1955) (cited 
at App., infra, 27a) ; United States V. Yellow Cab Co., 340 
U.S. 543, 548 (1951) (cited at App., infra, 28a). Nor does 
Standard Oil Co. v. United States, 267 U.S. 76 (1925) (cited 
at App., infra, 33a-34a) provide support for the court of 
appeals’ conclusion. That decision held the United States li­
able for interest on insurance policies issued under the War 
Risk Insurance Act of 1914, ch. 293, 38 Stat. 711 et seq., only 
because that insurance program was a for-profit venture 
making use of standard commercial insurance contracts. See 
United States v. Worley, 281 U.S. 339, 342 (1930). The 
Court has declined to apply Standard Oil outside of its spe­
cific commercial and contractual context. Worley, 281 U.S. 
at 343-344.



12

b. The approach used by the court below in its 
analysis o f Section 2000e-5(k) cannot be squared 
with this settled law. That statute, of course, makes 
no reference to interest, express or otherwise. And 
as Judge Ginsburg observed, an examination of its 
legislative history indicates that the interest issue 
“ never even [was] framed in the course of [Con­
gress’s] deliberations” (App., infra, 41a), let alone 
addressed and resolved. Cf. Segar v. Smith, 738 F.2d 
1249, 1296 (D.C. Cir. 1984), cert, denied, No, 84- 
1200 (May 20, 1985); Blake, 626 F.2d at 894|.10

Section 2000e-5(k) thus stands in sharp contrast 
to the other statutes in which Congress has permitted 
interest to run on substantive recoveries against the 
United States. Those provisions in terms provide for 
awards of interest, and spell out the “procedures 
which a plaintiff must follow to perfect his entitle­
ment to interest, the rate of interest which the United 
States will pay on each type of judgment, and the 
time when interest will start to run and the time it 
will stop.” Arvin  v. United States, 742 F.2d 1301, 
1303 (11th Cir. 1984). See Holly, 639 F.2d at 797-

10 Section 2000e45 (k) was enacted in its current form as 
Section 706 (k) of the Civil Rights Act of 1964, Pub.L. 
No. 88-352, 78 Stat. 261. The legislative history of the 
provision is “sparse” (Christiansburg Garment Co. v. EEOC, 
434 U.S. 412, 420 (1978)), and so far as we have been able 
to determine it contains not a single reference to the avail­
ability of interest. Similarly, we have been unable to un­
cover anything bearing on the interest question in the legis­
lative history o f the Equal Employment Opportunity Act of 
1972, Pub.L. No. 92-261, 86 Stat. 103, 42 U.S.C. 2000e et seq., 
which made Title VII applicable to federal employees. See 
generally H.R. Rep. 92-899, 92d Cong., 2d Sess. (1972) ; S. Rep. 
92-681, 92d Cong., 2d Sess. (1972) ; H.R. Rep. 92-238, 92d 
Cong., 1st Sess. (1971) ; S. Rep. 92-415, 92d Cong., 1st Sess. 
(1971).



13

798.11 There is no reason to believe that Congress—  
which was, of course, legislating against the back­
ground of the “ no-interest rule”— intended Section 
2000e-5(k) to signal a strikingly backhanded and 
understated “ depart [lire] from its usual practice in 
this area.” Nakshian, 453 U.S. at 162.12 See id. at

11 See 26 U.S.C. 7426(g) (providing-for interest in cases 
of wrongful levy by the Internal Kevenue Service running 
from the date of the levy) ; 28 U.S.C. 1961(c) (2) (providing 
for interest on final judgments of the United States Court of 
Appeals for the Federal Circuit in claims' against the United 
States) ; 28 U.S.C. 2411 (providing for interest on overpay­
ments of federal tax running from the date of overpayment) ; 
31 U.S.C. 1304(b) (1) (A) (appropriating funds for interest 
on certain district court judgments after an, unsuccessful ap­
peal by the United States “ and then only from, the date of 
filing of the transcript of the judgment with the Comp­
troller General through the day before the date of the man­
date of affirmance” ) ; 31 U.S.C. 1304(b)(1)(B ) (appropri­
ating funds in similar circumstances, foir interest on decisions 
of the Federal Circuit and the Claims Court; after affirmance 
by the Supreme Court (see 28 U.S.C. 2516(b)). Cf. 31 
U.S.C. 3728(c) (providing for the payment of interest on 
debts wrongfully withheld by the Comptroller General in cer­
tain set-off situations) ; 40 U.S.C. 258a (providing for the 
payment of interest as part, of the compensation in proceed­
ings for the taking of property by the United States). Con­
gress also has. provided that “ [i] nterest on a claim against 
the United States shall be allowed in a judgment of the United 
States Claims Court only under a contract or Act of Congress 
expressly providing for payment thereof.” 28 U.S.C. 2516(a).

12 This is particularly true where, as here, it is claimed 
that Congress implicitly allowed an award of prejudgment 
interest. In the absence of exceptional circumstances or a 
statutory provision to the contrary, the usual rule is that such 
interest may be awarded only from the date on which the 
damages were liquidated oir readily calculable. See generally 
General Motors Corp. V. Devex Corp., 461 U.S. 648, 651-652 
& n.5 (1983), and cases cited; Rodgers v. United States, 332 
U.S. 371, 373 (1947). Cf. Perkins V. Standard Oil Co. of Cali­



14

161, 168-169 (holding trial by jury impermissible 
in suits against the United States under the Age Dis­
crimination in Employment Act (A D E A ), 29 U.S.C. 
633a, because Congress “has almost always condi­
tioned [waiver of sovereign immunity] upon a plain­
tiff’s relinquishing any claim to a jury trial”  and has 
not “ affirmatively and unambiguously” provided that 
right in the A D E A ). Cf. Sierra Club, 463 U.S. at 
685 (when Congress is asserted to have departed 
from traditional fee shifting rules “ a clear showing 
that this result was intended is required” (footnote 
om itted)). Indeed, two courts of appeals have relied 
on precisely these considerations in holding that 
awards of interest against the United States are not 
authorized by the atorneys’ fee provision of the Equal 
Access to Justice Act (28 U.S.C. 2412(b) (making 
the United States liable for fees “ to the same extent 
that any other party would be liable under the 
common law or under the terms of any statute which 
specifically provides for such an award” ) ) ,  which in 
relevant part is virtually identical to Section 2000e- 
5 (k ).13 Arvin, 742 F.2d at 1304; Knights of the

fornia, 487 F.2d 672, 675 (9th Cir. 1973) (under 15 U.S.C. 
15, “ claims for ‘reasonable’ attorneys’ fees, being- unliqui­
dated until they are determined by a court, are not entitled 
to pre-judgment interest as would be certain liquidated 
claims” ) ; Copper Liquor, Inc. v. Adolph Coors Co., 701 F.2d 
542, 544 & n.3 (5th Cir. 1983) (affirming an award; of inter­
est on attorneys’ fees under 15 U.S.C. 15 only from the time 
of the “ judgment recognizing the right to costs and fees” ). 
Had Congress intended to depart from that traditional rule, 
it presumably “would have used explicit language to [that] 
effect.” Sierra Club, 463 U.S. at 685 n.7.

13 Other provisions of the Equal Access to Justice Act au­
thorizing fee awards against the United States when the gov­
ernment’s position in litigation was not substantially justi­
fied, 5 U.S.C. 504 and 28 U.S.C. 2412(d), expired on October 
1, 1984. Sections 203(c) and 204(c), Pub. L. No. 96-481, 94 
Stat. 2327, 2329. Congress is currently considering a bill that



15

Ku Klux Klan v. East Baton Rouge Parish School 
Board, 735 F.2d895, 902 (5th Cir. 1984).14

Title VII itself, in fact, contains considerable evi­
dence that the congressional scheme was not intended 
to permit attorneys to obtain interest on their fees 
in cases against the United States. While Title VII 
plaintiffs may be awarded interest on back pay 
awards against private employers (see, e.g., Blake, 
626 F.2d at 893 & n.3 and cases cited), it is settled 
law that interest does not run on back pay recovered 
from the United States. Segar, 738 F.2d at 1296; 
Saunders v. Clay tor, 629 F.2d 596, 598 (9th Cir. 
1980), cert, denied, 450 U.S. 980 (1981); Blake, 626 
F.2d at 984; deWeever v. United States, 618 F.2d 
685, 686 (10th Cir. 1980); Fischer v. Adams, 572 
F.2d 406, 411 (1st Cir. 1978); Richerson v. Jones, 
551 F.2d 918, 925 (3d Cir. 1977); Cross v. United 
States Postal Service, 733 F.2d 1327, 1329} affirmed 
by an equally divided en banc court, 733 F.2d 1332 
(8th Cir. 1984), cert, denied, No. 84-979 (Mar. 18, 
1985). Had Congress given any attention to the in­
terest question— and an award of interest could have 
been affirmatively authorized only if Congress did so 
—-it is difficult to imagine that, in a single legislative

would reenact these provisions, however. H.R. 2378, 99th 
Cong., 1st Sess. (1985). See H.R. Rep. 99-120, 99th Cong., 1st 
Sess. (1985). Significantly, this bill would add an explicit pro­
vision to 28 U.S.C. 2412 allowing for interest on fee awards, 
but only if the government challenges the award of fees on 
appeal and loses. H.R. 2378, supra, § 2 (e).

14 The Second Circuit has affirmed a district court j udg- 
ment that included an award of interest against the Departs 
ment of Health and Human Services under 28 U.S.C. 2412 
(b ) ’s companion provision, 28 U.S.C. 2412(d )(1 )(A ) (see 
note 13, supra) , but it did so without discussion. Marziliano 
v. Heckler, 728 F.2d 151, 155, 159 (2d Cir. 1984). See East 
Baton Rouge, 735 F.2d at 902 n.8.



16

package, it would have chosen to accord plaintiffs’ 
lawyers more favorable treatment than that accorded 
plaintiffs themselves.

2. The court of appeals’ novel approach to sover­
eign immunity will have significant and, in many 
cases, unpredictable effects. Its direct impact in the 
Title VII area alone will be substantial: the General 
Accounting Office informs us that, in fiscal year 1984, 
the United States made payments to plaintiffs in over 
150 Title VII suits (in almost all of which, presum­
ably, liability for attorneys’ fees attached). And the 
availability of prejudgment interest can be expected 
to affect not only the dollar amount of the fee awards 
in such cases (which the General Accounting Office 
informs us totals several million dollars annually) 
but also the conduct of a substantial body of em­
ployment litigation.

The court of appeals’ analysis, in any event, is 
plainly applicable in areas beyond Title VII. That it 
leads to departures from this Court’s precedents and 
the conclusions of other circuits already is evident: 
as Judge Ginsburg noted, the panel majority’s' treat­
ment of Section 2000e-5(k) has “preeipitat[ed] an 
apparent circuit split” (App., infra, 56a n.14) with 
decisions holding that the virtually identical fees pro­
vision of the Equal Access to Justice Act does not au­
thorize interest awards. Arvin, 742 F.2d at 1304; 
East Baton Rouge, 735 F.2d at 902.15 The analysis 
used below thus threatens one of the principal pur­
poses served by the requirement that Congress ex­
pressly waive the “no-interest rule”— the protection 
of the treasury from unexpected liabilities arising at 
unanticipated times. This danger is particularly

15 The panel majority itself noted that the attorneys’ fees 
provision of the Equal Access to Justice Act is “ strikingly 
similar” to Section 2000e-5(k), and seemingly disapproved 
the holding in Arvin (App., infra, 29a-30a & n.107).



17

noticeable where, as here, an award of prejudgment 
interest is concerned, for such liability may be found 
to have attached years after the fact for reasons that 
were wholly beyond the government’s control. In this 
case, for example, the district court withheld assess­
ment of an attorneys’ fee for one year pending the 
decision in Copeland and for a second year while 
the fee issue was under submission, and then ordered 
the government to pay interest on a fee generated 
three years earlier. See page 3, supra.

Most basically, the court of appeals’ conclusion that 
courts may infer waivers of immunity from ambig­
uous statutory language infringes in a direct way on 
the congressional prerogative to waive the govern­
ment’s sovereign immunity. For over 100 years, 
Congress has been legislating against the background 
of— and presumably relying upon— the “no-interest 
rule” that consistently has been propounded by this 
Court. If congressional legislation is to be inter­
preted in light of a new controlling principle, it is 
for this Court to make that judgment.

CONCLUSION
The petition for a writ of certiorari should be 

granted.
Respectfully submitted.

Charles Fried 
Acting Solicitor General

Richard K. W illard
Acting Assistant Attorney General

Kenneth S. Geller 
Deputy Solicitor General

Charles A. Rothfeld 
Assistant to the Solicitor General

W illiam Kanter
A l J. Daniel, Jr.

July 1985 Attorneys



APPENDIX A

UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 82-1019

T o m m y  Siia w

v.

L ibrary op Congress, et a l ., appellan ts

Appeal from the United States District Court 
for the District of Columbia
(Civil Action No. 79-00325)

Argued September 9, 1982 

Decided November 6, 1984

Before: Robinson , Chief Judge, W ald  and Gin s - 
burg, Circuit Judges.

(la)



2a

Opinion for the Court filed by Chief Judge Robin ­
so n .

Dissenting Opinion filed by Circuit Judge Gins- 
BURG.

Robinson , Chief Judge: A  corollary to the doc­
trine of sovereign immunity exempts the United 
States from liability for interest absent its express 
consent thereto.1 2 The sole issue on this appeal is 
whether the District Court dishonored that precept 
when, in assessing an attorneys’ fee against the 
United States, it effected a 30 percent upward adjust­
ment of the lodestar3 to compensate the attorney for 
delay in receipt of payment.

We sustain the adjustment alternatively on two 
grounds. First, we conclude that the language o f the 
statute authorizing allowances of attorneys’ fees 
against the United States in employment-discrimina­
tion cases waives its sovereign immunity with respect 
to the delay component of the fee award. Second, we 
find that component validated by a line of cases re­
laxing the traditional rigor of the sovereign-immu­
nity doctrine.

I
In 1976 and again in 1977, Tommy Shaw, a black 

employee of the Library of Congress, submitted com­
plaints of job-related racial discrimination to the Li­

1 See Part IV infra.

2 The lodestar component of an attorneys’ fee is the product
of “ the number of hours reasonably expended multiplied by 
a reasonable hourly rate.” Copeland V. Marshall, 205 U.S.App. 
D.C. 390, 401, 641 F.2d 880, 891 (en banc 1980).



3a

brary’s Equal Employment Office.3 In 1978, after the 
Library remained resistant to these complaints, 
Shaw’s counsel engaged in administrative proceed­
ings and during the course thereof entered into ne­
gotiations which culminated in a settlement agree­
ment.4 5 6 As part of the settlement, the Library agreed 
to promote Shaw retroactively with backpay provided 
the Comptroller General first determined that the Li­
brary had authority to do so without a specific find­
ing o f racial discrimination.® The Comptroller Gen­
eral, however, held that the Library lacked power 
under the Back Pay Act of 19668 to pursue that 
course.7

Dissatisfied with this turn of events, Shaw sued 
in the District Court8 and ultimately prevailed on

8 See Complaint If 12, Shaw v. Library of Congress, Civ. No. 
79-0325 (D.D.C.) (filed Feb. 1, 1979), Record Document (R. 
Doc.) 1 [hereinafter cited as Complaint].

4 Settlement Agreement and General Release (filed Feb. 1, 
1979), Exhibit 1 to Complaint, supra note 3, R. Doc. 1 [here­
inafter cited at Settlement Agreement].

5 Id. at pp. 4-5, R. Doc. 1.
6 Act of Mar. 30, 1966, Pub. L. No. 90-380, § 1(34) (c), 80 

Stat. 94 (codified as amended at 5 U.S.C. §§ 5595-5596 
(1982)).

7 Letter from Paul G. Dembling to Donald C. Curran (Nov. 
2, 1978), Exhibit 2 to Complaint, supra note 3, R. Doc. 1. The 
Comptroller General declined to consider whether the Civil 
Rights Act of 1964, Pub. L. No. 88-352, tit. VII, § 717 (b ) , 78 
Stat. 251, as amended by the Equal Employment Opportunity 
Act of 1972, Pub. L. No. 92-261, § 11, 86 Stat. I l l  (codified 
as amended at 42 U.S.C. §2000e-16(b) (1982)), authorized 
retroactive promotion and backpay in Shaw’s instance, pre­
sumably because the Library inquired only as to its authority 
under the Back Pay Act.

8 Shaw V. Library of Congress, Civ. No. 79-0325 (D.D.C.).



4a

his position that the Library had authority to afford 
the relief specified in the settlement accord.9 As a 
result of Shaw’s victory, the court ordered that he 
be awarded litigation costs and reasonable attorneys’ 
fees,10 withholding, however, determination of the dol­
lar amount thereof until after further proceedings 
and this court’s decision in Copeland v. Marshall,11 
then pending en banc.12 By this time, primary re­
sponsibility for prosecution of Shaw’s claim had de­
veloped upon new lawyers, but the efforts of his ear­
lier counsel before the Library and in the District 
Court had involved considerable time and energy.13 
After our decision in Copeland was announced, coun­
sel moved for an allowance of attorneys’ fees,14 re­
questing compensation at the rate of $85 per hour

9 Shaw v. Library of Congress, 479 F.Supp. 945, 947-949 
(D.D.C. 1979).

10 Id. at 950.
11 Supra note 2.
12 Shaw v. Library of Congress, supra note 9, 479 F.Supp. 

at 950.
13 Shalon Ralph, the fee claimant in this litigation, succeeded 

another attorney as Shaw’s counsel in early 1978, while the 
case was in its administrative phase. Additional counsel for 
Shaw entered the picture shortly thereafter, and their claims 
for attorneys’ fees have been settled. Ralph participated in 
the administrative proceedings and negotiations, and assisted 
the other counsel in preparation of a brief to the Comptroller 
General and in their representation of Shaw in the District 
Court. Hereinafter when we speak of Shaw’s counsel, we 
refer to Ralph.

14 Plaintiff’s Motion for Award of Attorney’s Fees and 
Costs, Shaw V. Library of Congress, Civ. No. 79-0325 (D.D.C.) 
(filed May 11,1981), R. Doc. 37.



5a

for 103.75 hours of work on Shaw’s behalf during 
the course of those proceedings.15

Largely dismissing the Library’s challenges to both 
the hourly rate and the number of hours claimed by 
Shaw’s counsel,1'6 the District Court computed a lode­
star of $8,435,17 based on 99 hours of work at the 
$85 proposed hourly rate, excluding from its calcula­
tion 4.75 hours which counsel devoted to research in 
an abortive effort to impart a class-action aspect to 
Shaw’s administrative complaints.18 The court then 
reduced the lodestar by 20 percent to reflect the qual­
ity of counsel’s representation.1® Lastly, and most 
importantly for this appeal, the court increased the 
lodestar by 30 percent to compensate counsel for the 
delay in actual payment for the legal services he had 
rendered.20 The court explained:

This case should have ended in August 1978, or 
at the latest in November of that year. If 
[Shaw’s counsel] had been compensated at about 
that time, he could have invested the money at 
an average yield of not less than 10% per year.

15 Id. § 11(2), R. Doc. 37.
10 See Defendant’s Memorandum of Points and Authorities 

in Opposition to Motion for Attorney’s Fees, Shaw V. Library 
of Congress, Civ. No. 79-0325 (D.D.C.) (filed June 11, 1981), 
It. Doc. 41.

17 The District Court made a mathematical mistake when it 
calculated the lodestar at $8,435; 99 hours of work at $85 per 
hour comes to $8,415, not $8,435. We accordingly treat the 
lodestar as lowered to $8,415.

18 Shaw V. Library of Congress, Civ. No. 79-0325 (D.D.C. 
Nov. 4, 1981) (memorandum) at 6-8, R. Doc. 45.

18 Id. at 8-9, R. Doc. 45.
20 Id. at 9-10, R. 45.



6a

It is the fault of neither [Shaw] nor [counsel] 
that payment was not made sooner. It is rea­
sonable to assume that if  payment is made 
promptly, counsel will receive his reimbursement 
by December 1, 1981. Accordingly, the accom­
panying order reflects an upward adjustment of 
30% for the delay.21

Then, offsetting the 30 percent increase in the lode­
star by the 20 percent reduction in the lodestar, the 
District Court granted a net 10 percent addition to 
the lodestar22 23 and, accordingly, awarded counsel a 
fee of $9,278.50.28 The Library has appealed,24 * * * ar­

21 Id., R. Doc. 45 (footnote omitted). The court further jus­
tified the adjustment on the ground that the Library might 
earlier have tendered partial payment to counsel despite the 
outstanding appeal in Copeland v. Marshall. Id. at 9 n.4, R. 
Doc. 45.

22 Id. at 10, R. Doc. 45. Our dissenting colleague implies 
that the District Court unfairly penalized counsel by utilizing 
simple rather than compound interest, and committed arith­
metic error when it increased the lodestar by 30% and then 
reduced that figure by 20% of the lodestar, rather than by 
20 % of the upwardly adj usted figure. See Dissenting Opinion 
(Dis. Op.) at 16 n. 13. Judges have broad latitude in setting 
attorneys’ fees, Copeland V. Marshall, supra note 2, 205 U.S. 
App.D.C. at 411, 641 F.2d at 901; Cuneo v. Rumsfeld, 180 
U.S.App.D.C. 184, 192, 553 F.2d 1360, 1368 (1977), and in 
neither of these respects can we say that the District Court 
abused its discretion.

23 Shaw V. Library of Congress, supra note 18, at 10, R. Doc. 
45. The court also awarded Shaw $47.50 in costs, id., which 
the Library does not challenge on appeal.

24 After oral argument on appeal, we ordered the Library
to pay to counsel $6,779.50, the portion of the award not in
dispute. Shaw V. Library of Congress, No. 82-1019 (D.C. Cir.
Jan. 19,1983) (partialjudgment).



7a

guing that the 30 percent upward adjustment for de­
lay infringes the rule that interest may not he as­
sessed against the United States in the absence of 
waiver.25

II
The issue posed on appeal is hardly one of first 

impression. In Copeland v. Marshall,26 we declared 
en banc that the United States can be held liable un­
der Title VII of the Civil Rights Act of 1964 27 for 
attorneys’ fees in an amount augmented to compen­
sate for the lag attending payment. We said:

The delay in receipt of payment for services 
rendered is an additional factor that may be in­
corporated into a contingency adjustment. The 
hourly rates used in the “ lodestar”  represent the 
prevailing rate for clients who typically pay 
their bills promptly. Court-awarded fees nor­
mally are received long after the legal services 
are rendered. That delay can present cash-flow 
problems for the attorneys. In any event, pay­
ment today for services rendered long in the past 
deprives the eventual recipient of the value of 
the use of the money in the meantime, which 
use, particularly in an inflationary era, is valu­
able. A percentage adjustment to reflect the de­
lay in receipt of payment therefore may be ap­
propriate.28

25 Brief for Appellant at 5-8.
26 Supra note 2.
27 Pub. L. No. 88-352, tit. VII, § 706 (k), 78 Stat. 261 (1964) 

(codified as amended at 42 U.S.C. §§ 2000e-5(k) (1982)) 
[hereinafter cited as codified].

28 Copeland V. Marshall, supra note 2, 205 U.S.App.D.C. at 
403, 641 F.2d at 893 (footnotes and citation omitted). We also



8a

We have subsequently reaffirmed this principle29 
and, indeed, have upheld an award of attorneys’ fees

endorsed calculation of the lodestar on presently-prevailing 
hourly rates as an alternative method of compensating attor­
neys for delay. Id. at 403 n.23, 641 F.2d at 893 n.23.

We may note here that, regardless of whether the defend­
ant is the United States or a private party, a delay-in-payment 
adjustment would be appropriate only where the lodestar is 
the per-hour charge to clients who pay when billed. Murray v. 
Weinberger, Civ. No. 83-1680 (D.C. Cir. Aug. 24, 1984) at 17. 
If the lodestar represents a higher rate charged clients who 
sue under fee-shifting statutes, it has already taken into ac­
count the pecuniary disadvantage resulting from the lengthy 
wait for payment ordinarily encountered under such statutes. 
In such an instance, an upward adjustment for delay would, of 
course, result in the attorney being paid twice for the delay. It 
appears that the cases relied on by the District Court in set­
ting the $85 per-hour lodestar for counsel here did not in any 
way include a delay element in their own per-hour rate calcula­
tions. North Slope Borough V. Andrus, 515 F.Supp. 961 
(D.D.C. 1981), rev’d on other grounds sub nom. Katkovik V. 
Watt, 223 U.S.App.D.C. 37, 689 F.2d 222 (1982) ; Bachman V. 
Pertschuk, 19 Empl. Practice. Dec. (CCH) Tf 9044, at 6507 
(D.D.C. 1979). See Shaw V. Library of Congress, supra note 
18, at 7, E. Doc. 45. Our disposition of this appeal, however, 
will include a remand in order that the District Court may 
make certain that counsel is not being awarded double com­
pensation for the delay.

29 Jordan v. United States Dep’t of Justice, 223 U.S.App. 
D.C. 325, 329, 691 F.2d 514, 518 (1982) (involving claim for 
attorneys’ fees against United States under provision of Free­
dom of Information Act (citing Copeland V. Marshall, supra 
note 2, 205 U.S.App.D.C. at 402-403, 641 F.2d at 892-893, for 
proposition that attorneys’ fee award may reflect delay in 
payment)) ; National Ass’n of Concerned Veterans V. Secre­
tary of Defense, 219 U.S.App.D.C. 94, 103, 110, 675 F.2d 
1319, 1328, 1335 (1982) (affirming propriety of adjusting 
attorneys’-fee award against United States to compensate for 
delay in two Freedom of Information Act cases and one Title 
VII case).



9a

against the United States that in fact was adjusted 
upward to compensate for delay.30

Despite the seemingly clear applicability of these 
precedents, however, we do not rest our disposition 
on stare decisis alone. Whether an upward delay 
adjustment in an attorneys’-fee award satisfies the 
rigorous requirements of the sovereign-immunity doc­
trine is an issue we have dealt with only peripher­
ally,31 and one we have never squarely addressed. We 
recognize, too, the jurisdictional implications of any 
legal bar created by that doctrine, and acknowledge 
the existence o f decisions of this circuit arguably 
in conflict with Copeland and its progeny on this 
point;3'2 We therefore opt to consider the Library’s

™EDF v. EPA, 217 U.S.App.D.C. 189, 206, 672 F.2d 42, 59 
(1982). Cf. Murray v. Weinberger, supra note 28, at 16-19 
(allowing a properly-justified adjustment to lodestar for delay- 
in payment in a Title VII attorneys’ fee claim).

31 See Copeland V. Marshall, supra note 2, 205 U.S.App.D.C. 
at 404-405 & n.25, 641 F.2d at 894-895 & n.25 (holding that 
liability for attorneys’ fees under Title VII is the same for the 
United States as for any private party) ; Holly v. Chasen, 205 
U.S.App.D.C. 273, 276, 639 F.2d 795, 798, cert, denied, 454 
U.S. 822, 102 S.Ct. 107, 70 L.Ed.2d 94 (1981) (overturning, 
on grounds of sovereign immunity, award of interest on judg­
ment against United States in a Freedom of Information Act 
case, but expressly reserving question whether upward ad­
justment in an attorneys’ fee award to compensate for delay 
would likewise be invalid).

3:2 See Holly V. Chasen, supra note 31; Blake V. Calif ano, 200 
U.S.App.D.C. 27, 626 F.2d 891 (1980). The dissent’s use of
broad language in Segar V. Smith, ------  U.S.App.D.C. ------ ,
------ , 738 F.2d 1249, 1296 (1984), may give the impression
that the attorneys’-fee provision at issue here, 42 U.S.C. 
§ 2000e-5(k) (1982), was involved in Segar. Dis. Op. at 5. 
Segar concerned only an award of interest under the backpay 
section of Title VII, 42 U.S.C. § 2000e-5(g) ; the dispute did



10a

argument much as if  it were presented upon a clean 
slate,

III
The initial inquiry, of course, is whether the Dis­

trict Court’s 30 percent augmentation of the lodestar 
for delay in payment of the fee constitutes “ interest” 
against the United States within the contemplation 
of the rule invoked by the Library. Shaw character­
izes this component of the fee award as a proper 
ingredient of a reasonable attorneys’ fee, in contra­
distinction to interest.* 33 The only way to determine 
whether this addition to the lodestar is condemned 
by the traditional interest rule is to ascertain what 
that rule prohibits.

Perhaps the clearest example of interest appears 
when a court, after calculating the amount of mone­
tary judgment, adds a percentage of that amount to 
compensate the claimant for loss of use of the money 
during the period between the claimant’s initial en­
titlement to the money and the day the judgment is 
rendered.34 Here the long-established rule refuses to 
view the sovereign as having consented to the addi­
tion, even though consent to suit on the claim has 
been established.35 The same results follow court- 
awarded sums which, though not interest calculated

not extend to interest under the attorneys’-fee provision, 42 
U.S.C. § 2000e-5(k) (1982), which uses language wholly dif­
ferent from that employed in the backpay section.

33 Brief for Appellant at 10.
84 E.g., United States V. Thayer-West Point Hotel Co., 329 

U.S. 585, 587-588, 67 S.Ct. 398, 399, 91 L.Ed. 521, 525 (1947).
85 E.g., United States V. Alcea Band of Tillamooks, 341 U.S. 

48, 71 S.Ct. 552, 95 L.Ed. 738 (1951) ; United States V. Goltra, 
312 U.S. 203, 61 S.Ct. 487, 85 L.Ed. 776 (1941).



11a

in the classic manner, nonetheless are functionally 
equivalent to interest. Thus the Supreme Court has 
rejected a contention that an increase in an assess­
ment by the Court of Claims against the United 
States, made as compensation for loss of use and oc­
cupation of a mining claim appropriated by the 
United States years earlier, was “ compensation” 
rather than interest.3'8 The Court reasoned that be­
cause “ the loss of the use of the money results from 
the failure to collect sooner a claim held to have ac­
crued when the company’s property was taken, that 
which the company seeks to recover is, in substance, 
interest.”  36 37 We ourselves recently held an “ inflation 
adjustment” in awards of backpay to federal em­
ployees amounted to interest against the United 
States because it served “ the same general end of 
compensating the recipient for differences in the 
worth of her award between the date of actual re­
ceipt and the date as of which the money should have 
been paid.”  38

In the case at bar, the District Court’s 30 percent 
addition to the lodestar was designed to reimburse 
Shaw’s counsel for the decrease in value of his un­
collected legal fee between the date on which he con­
cluded his legal services and the court’s estimated 
date of likely actual receipt.39 By the court’s own

36 United States V. North Am. Transp. & Trading Co., 253 
U.S. 330, 40 S.Ct. 518, 64 L.Ed. 935 (1920).

37 Id. at 338, 40 S.Ct. at 521, 64 L.Ed. at 939.
38 Blake v. Califano, supra note 32, 200 U.S.App.D.C. at 31, 

626 F.2d at 895. Accord, Saunders v. Claytor, 629 F.2d 596, 
598 (9th Cir. 1980), cert, denied, 450 U.S. 980, 101 S.Ct. 1515, 
67 L.Ed.2d 815 (1981) (“ [i,]n essence, the inflation factor ad­
justment is a disguised interest award” ).

89 See text supra at note 21.



12a

description, the addition was based on a rough de­
termination of the “ average yield”  of the amount of 
the fee if  invested at 10 percent per annum for three 
years.40 We think the adjustment falls well within 
the contours of the interest concept. Only by ignor­
ing applicable caselaw as well as the real nature of 
the disputed adjustment could we find anything other 
than an assessment of interest against the United 
States.41 We proceed, then, to the Library’s conten­

40 Shaw V. Library of Congress, supra note 18, at 9-10, R. 
Doc. 45.

41 See United States V. Mescalero Apache Tribe, 518 F.2d 
1309, 1322 (Ct. Cl. 1975), cert, denied, 425 U.S. 911, 96 S.Ct. 
1506, 47 L.Ed.2d 761 (1976) (“the character or nature of 
‘interest’ cannot be changed by calling it ‘damages,’ ‘loss,’ 
‘earned increment,’ ‘just compensation,’ ‘discount,’ ‘offset,’ or 
‘penalty,’ or any other term, because it is still interest and the 
no-interest rule applies to it” ) (footnote omitted).

The dissent suggests that an upward adjustment of an at­
torneys’ fee to compensate for delayed receipt can be differ­
entiated from interest on the ground that the former applies 
“prospectively” while interest is awarded “ retrospectively.” 
Dis. Op. at 1, 4-5. This distinction apparently takes on disposi­
tive significance. We note that any prospectivity here is fic­
tional, for an award under a fee-shifting statute benefiting 
only a party prevailing in litigation can never be made pro­
spectively. More importanly, we cannot see why the moment 
in time at or as of which compensation for delayed receipt of 
payment is calculated should matter; for us, it is the reason 
why the fee is adjusted upward that is vital. Addition of a 
delay factor to the lodestar serves only to compensate the at­
torney for loss of the use of earned money from the time of 
rendition of services to the time of receipt of the fee. See text 
supra at note 28, quoting Copeland V. Marshall, supra note 2, 
205 U.S.App.D.C. at 403, 641 F.2d at 893. The dissent itself, 
in distinguishing the delay factor from interest, characterizes 
the delay factor thus: “ an attorney embarking on services for 
which he or she anticipates payment ultimately, but not



13a

tion that the District Court’s action in this regard 
disregards the dictates of the doctrine of sovereign 
immunity.

IV
The United States cannot be subjected to monetary 

liability save pursuant to a waiver of its sovereign 
immunity.42 Moreover, the scope of such a waiver is to< 
be strictly construed.43 The instant case involves a 
corollary of these principles, which for convenience 
we term the “ interest rule.” By this rule, the United 
States may not be held liable for interest absent an 
express waiver of its immunity.44 The question we

promptly, may factor in the expected delay.” Dis. Op. at 1. 
By this we can only assume that our colleague means that the 
increase is to compensate for a supposed possibility of delayed 
payment, and consequently for deprivation of the use of the 
fee money during the period of delay. We are unable to dis­
tinguish between that and compensation for the use, forbear­
ance or detention of money—the common understanding of 
interest. If the delay factor sounds like interest, acts like in­
terest and, most of all, compensates exactly as interest would, 
we feel constrained to treat It as interest for purposes of the 
sovereign-immunity rule.

42 E.g., United States V. Sherwood, 312 U.S. 584, 586, 61 
S.Ct. 767, 769, 85 L.Ed. 1058, 1061 (1941) ; United States v. 
Lee, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171 (1882) ; United 
States v. McLemore, 45 U.S. (4 How.) 286, 11 L.Ed. 977 
(1846).

43 E.g., United States v. Sherwood, supra note 42, 312 U.S. 
at 590, 61 S.Ct. at 771, 85 L.Ed. at 1063.

44 E.g., United States V. Louisiana, 446 U.S. 253, 264-265, 
100 S.Ct. 1618, 1626, 64 L.Ed.2d 196, 208 (1980). Courts 
have not been entirely consistent in applying this rule, how­
ever. Compare Henkels V. Sutherland, 271 U.S. 298, 46 S.Ct. 
524, 70 L.Ed. 953 (1926) (allowing interest as component of 
assessment against United States for confiscation of securities,



14a

face here is whether Congress has waived that im­
munity with respect to an allowance of interest as 
part of an attorneys’ fee awarded, as here, under 
Title VII.

The relevant section of Title VII provides that
[i]n  any action or proceeding under this sub- 
chapter the court, in its discretion, may allow 
the prevailing party, other than the i[Equal Em­
ployment Opportunity] Commission or the United 
States, a reasonable attorney’s fee as part of the 
costs, and the Commission and the United States 
shall be liable for costs the same as a private 
person.4B

A private person, of course, may be held liable for 
interest as an ingredient of a Title VII attorneys’- 45

in part to prevent unjust enrichment), with Angarica V. 
Bayard, 127 U.S. 251, 8 S.Ct. 1156, 32 L.Ed. 159 (1888) (dis­
allowing interest as an item in assessment against United 
States for money withheld from awardee). Courts also have 
established an exception to the rule in inverse eminent domain 
cases, in which interest has been allowed as an element of the 
constitutional measure of just compensation. See Blake V. 
Califano, supra note 27, 200 U.S.App.D.C. at 29 n.5, 626 F.2d 
at 893 n.5, and cases cited therein. For a discussion of two 
other exceptions, see note 90 and Part V infra.

45 42 U.S.C. § 2000e-5(k) (1982) (emphasis added). This 
section was made applicable to the United States in cases such 
as this by the Equal Employment Opportunity Act of 1972, 
Pub. L. No. 92-261, § 11, 86 Stat. I l l  (codified at 42 U.S.C. 
§ 2000e-16(d) (1982)). Though on occasion we have found 
that asserted statutory waivers of immunity from interest lia­
bility were not “ express,” e.g., Holly v. Chasen, supra note 31; 
Blake V. Califano, supra note 32, we have not heretofore ad­
dressed the question whether the cited section effects such 
a waiver.



15a

fees award,46 and this section subjects the United 
States to liability for “costs the same as a private 
person,” and authorizes assessment of a “ reasonable 
attorney’s fee as part of the costs.”  We conclude 
that Congress thus has waived the immunity of the 
United States from liability for interest as a com­
ponent o f an attorneys’ fee allowed under Title VII.

The statutory waiver is express, and its range is 
defined in unmistakable language. To say that a 
private person, but not the United States, is liable 
under Title VII for interest as an element o f an at­
torneys’ fee would rob the unambiguous statutory 
language of its plain meaning. It would defeat the 
statutory imposition upon the United States of a 
liability for costs, and the statutory inclusion of “ a 
reasonable attorney’s fee as part of the costs,”  iden­
tical to that of a private party in similar circum­
stances. The scope-setting statutory words— “ the 
same as a private person”— mark out the United 
States’ liability for attorneys’ fees as well as costs 
in the traditional sense. Our responsibility as judges 
is to enforce this provision according to its terms.47

46 Courts have broad power to allow interest in private- 
sector cases, e.g., Rodgers v. United States, 332 U.S. 371, 373- 
374, 68 S.Ct. 5, 7, 92 L.Ed. 3, 6-7 (1947), and have affirmed 
this prerogative in attorneys’-fee awards under Title VII. See 
Chrwpliwy V. Uniroyal, Inc., 670 F.2d 760, 764 & n.6 (7th Cir.
1982), cert, denied,------ U.S.------- , 103 S.Ct. 2428, 77 L.Ed.2d
1315 (1983) ; Brown V. Gillette Co., 536 F.Supp. 113, 123-124 
(D. Mass. 1982).

47 Courts consistently have declined to depart from the plain 
meaning of statutory language absent clear indication of a 
contrary legislative intent, e.g., United States V. Tiirkette, 452 
U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246, 252 
(1981), and have recognized an obligation to avoid a construc­
tion of a statutory provision that obviates any term thereof,



16a

We think Congress articulated its goal clearly 
enough by providing for governmental liability “ the 
same as a private person.” Conceivably, Congress 
might have attempted to effectuate its purpose by 
legislation listing each item of costs, including in­
terest, for which the United States might be held 
accountable. That approach, however, could well have 
led to the discovery of interstices among the enumer­
ated items, especially since the courts would have had 
to obey the rule requiring strict construction of waiv­
ers of sovereign immunity;48 its adoption, conse­
quently, would not likely have achieved the congres­
sional objective, manifest here, that the United 
States be treated no differently from private parties 
in similar circumstances.49 It seems to us that, de-

e,g., United States V. Menasche, 348 U.S. 528, 538-539, 75 S.Ct. 
513, 520, 99 L.Ed. 615, 624 (1955).

The dissent contends that because the word “costs” his­
torically has not included interest as an ingredient, the statu­
tory waiver of the United States’ immunity from liability for 
“ costs” cannot reasonably, much less strictly, be construed to 
extend to interest. Dis. Op. at 7. We cannot subscribe to 
this reasoning. The Title VII section under scrutiny in terms 
rejects the traditional concept of costs. It repudiates the 
commonly-understood difference between costs and attorneys’ 
fees, see, e.g., Roadway Express, Inc. v. Piper, 447 U.S. 752, 
759-761, 100 S.Ct. 2455, 2460-2461, 65 L.Ed.2d 488, 496-498 
(1980) ; Baez v. United States Dep’t of Justice, 221 U.S.App. 
D.C. 477, 480-483, 684 F.2d 999, 1002-1005 (en banc 1982) ; 
10 C. Wright, A. Miller & M. Kane, Federal Practice § 2666 
at 173-174 (2d ed. 1983), by explicitly establishing attorneys’ 
fees as a subset of costs.

48 See note 43 supra and accompanying text.
49 As another example, Congress could have enacted a stat­

ute providing that “ the United States shall be liable for costs, 
including but not limited to interest, the same as a private 
person,” thus stating the rule of equal treatment and specify-



17a

spite the availability of alternative statutory schemes 
waiving immunity from interest liability, there is 
simply no more direct and effective way to ensure 
complete parity between the United States and other 
litigants with respect to costs than to say so in so 
many words. That Congress did so in this section, we 
conclude, evinces an “ express” waiver within the 
meaning of the interest rule.

Congress obviously understood the broad sweep of 
language which makes the United States just as li­
able as “ a private person.”  In the Federal Torts 
[sic] Claims Act,80 which later we discuss further,®1 
Congress made the United States liable for certain 
torts “ in the same manner and to the same extent as 
a private individual under like circumstances,” 5,2 but 
immediately curtailed the obvious import of this lan­
guage by providing that the United States “ shall not 
be liable for interest prior to judgment,” 68 It is dif­
ficult to understand why Congress bothered to ex­
clude pre-judgment interest if the imposition upon * 50

ing interest as an item of possible recovery. We think it an 
unnecessarily stringent application of the interest rule, how­
ever, to treat the waiver here at issue not “express” with re­
gard to the interest component of an attorneys’-fee award sim­
ply because Congress did not express itself in precisely that 
form. To do so would defeat the plain meaning of the relevant 
statutory language Congress did use, and would penalize Con­
gress for failing to insert redundant language into an already 
clearly-written and easily-applied waiver of immunity.

50 Act of Aug. 2, 1946, ch. 753, 60 Stat. 812 (codified as 
amended at 28 U.S.C. §§ 2671 et seq. and other scattered sec­
tions of 28 U.S.C. (1982)) [hereinafter cited as codified].

81 See text infra at notes 91-97.
82 42 U.S.C. §2674 (1982).
83 Id.



18a

the United States of liability “ to the same extent as 
a private individual under like circumstances”  was 
insufficient to constitute an express waiver of liabil­
ity for that interest.

That the attorney’s-fee section of Title VII does 
not actually use the word “ interest”  does not, in our 
view, make the waiver any less express. Notwith­
standing the long history and wide variety of verbal 
articulations of the interest rule, we have not un­
covered a single case supporting the proposition that 
a waiver of sovereign immunity is not express merely 
on that account.64 In fact, several decisions weigh 
against that position. The Supreme Court has held 
that Congress may satisfy the requirements of an 
analogous rule— that the United States is not bound 
by its own statutes unless expressly named therein 54 55

54 Most of the cases invoking the interest rule to disallow 
interest against the United States have done so with respect to 
two types of statutes. Some have done so in the context of a 
statute not clearly or even apparently naming the United 
States as potentially subject to its provisions. E.g., Holly V. 
Chasen, supra note 31, 205 U.S.App.D.C. at 274, 639 F.2d at 
796 (construing 28 U.S.C. § 1961 (1982)). Others have re­
fused to find waivers in the context of gelatinous or extremely 
general statutory language, such as those entitling parties 
“ any other equitable relief as the court deems appropriate,” 
Blake v. Califano, supra note 32, 200 U.S.App.D.C. at 29-31, 
626 F.2d at 893-895 (construing 42 U.S.C. § 2000e-5(g) 
(1976)), “ just compensation,” e.g., United States v. Goltra, 
supra note 35, 312 U.S. at 207-211, 61 S.Ct. at 490-492, 85 
L.Ed. at 780-782 (construing 48 Stat. 1322 (1934)), or “ the 
amount equitably due,” Tillson v. United States, 100 U.S. 43, 
46, 25 L.Ed. 543, 544 (1879). In contrast, the statutory provi­
sion before us specifically names the United States as a poten­
tial payor and stakes out the scope of its liability distinctly.

55 See 3 A. Sutherland, Statutes and Statutory Construction 
§§ 62.01-62.04 (C. Sands 4th ed. 1974).



19a

— without identifying the United States in so many 
words.56 57 58 Additionally, this circuit recently has held,67 
when construing a purported waiver of governmental 
immunity from liability for attorneys’ fees under the 
Alyeska doctrine,68 that the words “ attorneys’ fees’ 
are not “ magic words”  59 that Congress must use to 
satisfy the requirement that the waiver be “ specific, 
if  not explicit.” 60 * * * * * * * * * On the basis of such close prece­
dent, as well as common sense, we believe that “ in­
terest” is not a “magic word” the recital of which is 
prerequisite to a waiver of sovereign immunity re­
specting the interest component of an attorneys’ fee 
award. Surely if  Congress were to enact a compre­
hensive and unambiguous statute abrogating entirely

56 See Nardone v. United States, 302 U.S. 379, 383, 58 S.Ct. 
275, 277, 82 L.Ed. 314, 317 (1937) ; United States V. Cali­
fornia, 297 U.S. 175, 186-187, 56 S.Ct. 421, 425, 80 L.Ed. 567, 
574 (1936).

57 Kennedy V. Whitehurst, 223 U.S.App.D.C. 228, 690 F.2d 
951 (1982).

58 See Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 
U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975).

58 Kennedy v. Whitehurst, supra note 57, 223 U.S.App.D.C. 
at 229, 690 F.2d at 962, citing Fitzgerald v. United States 
Civil Serv. Comm’n, 180 U.S.App.D.C. 327, 330 & n,8, 554 
F.2d 1186, 1189 & n.8 (1977). Accord Smith v. Califano, 446 
F.Supp. 530, 533 (D.D.C. 1978).

60 Kennedy v. Whitehurst, supra note 57, 223 U.S.App.D.C.
at 240, 690 F.2d at 963. The standard by which language as-
sertedly waiving governmental immunity from liability for
interest will be judged as express or not has been described
as “ specific[],” e.g., United States V. Goltra, supra note 35,
312 U.S. at 207, 61 S.Ct. at 490, 85 L.Ed. at 780, and “ ex­
plicit,” e.g., Fitzgerald V. Staats, 188 U.S.App.D.C. 193, 198,
578 F.2d 435, 440, cert, denied, 439 U.S. 1004, 99 S.Ct. 616,
58 L.Ed.2d 680 (1978). The similar if not identical standard
utilized in Kennedy renders it directly on point.



20a

and for all purposes the sovereign-immunity doctrine, 
we would not resuscitate the United States’ immunity 
with respect to interest merely because Congress did 
not specifically enumerate “ interest.” Rather, we 
would construe such a provision as an express waiver 
of interest immunity and implement it accordingly, 
and in reality we do no more here.

We underscore our more general view that an in­
sightful approach to the problem before us is under­
mined, if  not entirely precluded, by logomachic ap­
plications of the interest rule. Courts bear this ob­
servation out by consistently avoiding a wooden or 
formulaic definition of express waiver when refer­
ring to the interest rule. This circuit itself has de­
clined to fashion a rigid concept of express waiver,61 
and the courts have not perceived a need to establish 
any particular verbal formulation thereof. Rather, 
they have variously required, if  anything at all,62 an 
“express” 68 waiver, a “clearcut” 64 waiver, a “ spe­
cific” 66 waiver, an “ explicit” 66 waiver, an “unequiv- * 83 * 85 86

61 Blake V. Califano, supra note 32, 200 U.S.App.D.C. at 30, 
626 F.2d at 894.

62 On occasion, courts have not specified any particular 
standard by which statutory waivers of immunity will be re­
garded as express or not. E.g., National Home for Disabled 
Volunteer Soldiers V. Parrish, 229 U.S. 494, 496, 33 S.Ct. 944, 
945, 57 L.Ed. 1296, 1299 (1913) ; United States V. Maryland, 
121 U.S.App.D.C. 258, 259, 349 F.2d 693, 694 (1965).

83 E.g., United States v. Alcea Band of Tillamooks, supra 
note 35, 341 U.S. at 49, 71 S.Ct. at 552, 95 L.Ed. at 739.

64 E.g., United States V. Thayer-West Point Hotel Co., supra 
note 34, 329 U.S. at 590, 67 S.Ct. at 400, 91 L.Ed. at 526.

85 E.g., Albrecht v. United States, 329 U.S. 599, 605, 67 S.Ct. 
606, 609, 91 L.Ed. 532, 539 (1947).

86 E.g., United States V. North Carolina, 136 U.S. 211, 219, 
10 S.Ct. 920, 923, 34 L.Ed. 336, 339 (1890).



21a

oeal”  87 waiver, a “plain”  68 waiver, a “manifest” 69 
waiver, an “ affirmative” 70 waiver, an “unambigu­
ous” 71 waiver, or a waiver described by a combina­
tion of these adjectives. There is nothing talismanic 
in the word “ express,” 72 and we would distort the 
interest rule were we to inform its application by 
resort to any intuitive call for clarity of legislative 
expression thought peculiarly to lurk in the recesses of 
the word, or any other term used analogously as an 
ostensible criterion by which claimed waivers are to 
be judged. Rather, our use of the interest rule is in­
structed more appropriately by reference to the touch­
stone of the sovereign-immunity doctrine : “ that the 
liability of the United States . . .  is a matter of fed­
eral law, and its extent and the procedures for im­
posing it must be sought in the statutes.” 73 The Su- 67 68 69 * 71 72 73

67 E.g., Fitzgerald V. Staats, supra note 60, 188 U.S.App. 
D.C. at 196, 578 F.2d at 438, quoting United States V. Testan, 
424 U.S. 392, 399, 96 S.Ct. 948, 954, 47 L.Ed.2d 114, 121 
(1976).

68 E.g., Blake V. Califano, supra note 32, 200 U.S.App.D.C. 
at 29, 626 F.2d at 893.

69 E.g., United States v. North Carolina, supra note 66, 136 
U.S. at 216, 221, 10 S.Ct. at 922, 924, 34 L.Ed, at 338, 340.

79 E.g., United States V. New York Rayon Importing Co., 
329 U.S. 654, 659, 67 S.Ct. 601, 604, 91 L.Ed. 577, 582 (1947).

71 E.g., United States V. Thayer-West Point Hotel Co., supra 
note 34, 329 U.S. at 590, 67 S.Ct. at 400, 91 L.Ed. at 526.

72 Cf. Towne v. Eisner, 245 U.S. 418, 425, 38 S.Ct. 158, 159, 
62 L.Ed. 372, 376 (1918) (“ [a] word is not a crystal, trans­
parent and unchanged, it is the skin of a living thought and 
may vary greatly in color and content according to the cir­
cumstances and the time in which it is used” ).

73 1 J. Moore, J. Lucas, H. Fink, D. Weckstein & J. Wicker, 
Moore’s Federal Practice 1f 0.65 [2.-1] at 700.88 (2d ed. 1984) 
(footnote omitted).



22a

preme Court has echoed this view, declaring that the 
standard for gauging asserted waivers of sovereign 
immunity as express or not is whether the statute 
“can fairly be interpreted”  as mandating govern­
mental liability.'74 Giving this counsel the respect it 
is due, we think a disclaimer of waiver here would 
impart to the concept of express waiver an under­
standing more limited and formalistic than necessary 
to achieve the objectives underlying the interest rule.

This conclusion is reinforced by the resolve of sev­
eral courts, recognizing the need for perspective when 
applying the rule requiring strict construction of sov­
ereign-immunity waivers, to vigorously resist the ten­
dency of the rule to become increasingly demanding 
by force of its own inertia.'75 As one court has put it,

74 United States V. Testan, supra note 67, 424 U.S. at 400, 96 
S.Ct. at 954, 47 L.Ed.2d at 122, quoting Eastport S.S. Corp. 
V. United States, 372 F.2d 1002, 1009 (Ct. Cl. 1967). See also 
Cohen v. United States, 195 F.2d 1019, 1021 (2d Cir. 1952) 
(despite rule of strict construction, “the overriding considera­
tion is that the intent of Congress, where that can be deter­
mined, must be given effect” ) .

75 “ It is a rule, firmly established beyond debate, that any 
purported grant by a sovereign is to be strictly construed . . .; 
yet it must be construed, not emasculated. There is wisdom 
in the rule that in examining a grant by the sovereign, if the 
words can without distortion be understood broadly or nar­
rowly, they are to be taken in the more limited sense; but it 
would be an abuse of this rule to search for subtleties in an 
effort to defeat a grant, however phrased, when its meaning 
is self evident.” United States v. Smoot Sand & Gravel Corp., 
248 F.2d 822, 827 (4th Cir. 1957) (citation omitted). Accord, 
United States V. California, supra note 56, 297 U.S. at 186-187, 
56 S.Ct. at 425, 80 L.Ed. at 574 (“ [(language and objectives 
so plain are not to be thwarted by resort to a rule of construc­
tion whose purpose is but to resolve doubts, and whose ap­
plication in the circumstances would be highly artificial” ) ;



23a

the strict-construction rule “ is not entitled to be made 
a judicial vise to squeeze the natural and obvious im­
port out of . . .  a statute or to sap its language of its 
normal and sound legal meaning.” 76 The Supreme 
Court has reiterated the essence of this view :

The exemption of the sovereign from suit in­
volves hardship enough where consent has been 
withheld. We are not to add to its rigor by re­
finement of construction where consent has been 
announced.77

When dealing with the interest rule, we see as 
much need for perspective to avoid strangulation of 
legislative intent by an unwarranted use of judicial 
force.78 We think Congress spoke clearly enough

Navajo Tribe V. United States, 586 F.2d 192, 201 (Ct. Cl. 
1978), cert, denied, 441 U.S. 944, 99 S.Ct. 2163, 60 L.Ed.2d 
1046 (1979) (“ [i]t has never been the rule that consents- 
to-suit must be given the narrowest possible scope or that 
legislation granting jurisdiction of actions against the sov­
ereign must be read apart from history, legislative purpose, 
or the dictates of commonsense” ) (footnote omitted). See 
generally Miller V. Robertson, 266 U.S. 243, 248, 45 S.Ct. 73, 
75, 69 L.Ed. 265, 271 (1924) ; Moore v. United States, 249
U. S. 487, 489, 39 S.Ct 322, 323, 63 L.Ed. 721, 722 (1919) ; 
United States V. Temple, 105 U.S. 97, 99, 26 L.Ed. 967, 968 
(1882).

76 Herren V. Farm Sec. Admin., 153 F.2d 76, 78 (8th Cir. 
1946).

77 United States v. Aetna Cas. & Sur. Co., 338 U.S. 366, 383, 
70 S.Ct. 207, 216, 94 L.Ed. 171, 186 (1949), quoting Anderson
V. John L. Hayes Constr. Co., 243 N.Y. 140, 147, 153 N.E. 28, 
29-30 (1926).

78 The interest rule, like the strict-construction rule, pro­
motes the general policy confining immunity waivers by a leg­
islative enactment to wholly appropriate situations. See text 
infra following note 115.



24a

when, with respect to attorneys’ fees, it ordained for 
the United States a liability “ the same as a private 
person.” 79 We hold that Congress thereby waived the 
immunity of the United States from liability for in­
terest as part of a reasonable attorneys’ fee.

V
Even were we to find Title V II’s attorneys’-fee sec­

tion inadequate as an express waiver, we would af­
firm the District Court’s fee award on the basis of 
a substantial body of caselaw relaxing the traditional 
rigor of the sovereign-immunity doctrine when a 
statute measures the liability of the United States 
by that of private persons. The doctrine espoused by 
these cases, while spanning numerous and diverse 
statutory schemes, has attained prominence in litiga­
tion under the Suits in Admiralty Act.80 It is, accord­
ingly, with this legislation that we commence our 
examination of the doctrine for purposes of ascertain­
ing its applicability to the case at bar.

As originally framed, the Act provided that the 
United States could be held liable for harm inflicted 
by its merchant vessels “ [i]n  cases where if  such 
vessel were privately owned or operated, or if such 
cargo were privately owned or possessed, a proceed­
ing in admiralty could be maintained.” 81 Congress 
later amended the Act by adding, as a third clause,

79 42 U.S.C. § 2000e-5(k) (1982), quoted in text supra at 
note 45.

89 Act of Mar. 9, 1920, ch. 95, 41 Stat. 525 (codified as 
amended at 46 U.S.C. §§741-752 (1982)).

81 Suits in Admiralty Act, § 2, 41 Stat. 525 (1920) (codified 
as amended at 46 U.S.C. § 742 (1982)) [hereinafter cited as 
codified].



25a

the phrase “ or if  a private person or property were 
involved,”  82 thus underscoring the Act’s plain com­
mand that governmental liability in admiralty be 
equivalent to that of private persons in similar cir­
cumstances,83 Federal courts have interpreted this 
language broadly to effectuate the congressional pur­
pose evident therefrom.84 The Supreme Court has ex­
plicitly rejected application of the customary rule of

82 Act of Sept. 13, 1960, Pub. L. No. 86-770, § 3, 74 Stat. 
912 (codified at 46 U.S.C. § 742 (1982)).

83 Early cases read this provision as extending to all suits 
in admiralty in derogation of statutory limitations imposed by 
concomitant admiralty legislation. E.g., Roberts v. United 
States, 498 F.2d 520, 525-526 (9th Cir.), cert, denied, 419 U.S. 
1070, 95 S.Ct. 656, 42 L.Ed.2d 665 (1974) ; National Union 
Fire Ins. Co. v. United States, 436 F.Supp. 1078, 1080 (M.D. 
Tenn. 1977). Although the Supreme Court, in United States 
V. United Continental Tuna Corp., 425 U.S. 164, 96 S.Ct. 1319, 
47 L.Ed.2d 653 (1976), overturned these precedents in order 
to preserve the efficacy of the threatened statutes, it did so by 
ordinary rather than strict construction of the Act. Id. at 
170-181, 96 S.Ct. at 1323-1329, 47 L.Ed.2d at 659-665. In no 
respect has the Court departed from Nahmeh V. United States, 
267 U.S. 122, 45 S.Ct. 277, 69 L.Ed. 536 (1925), and its prog­
eny, holding that the Act’s waiver of sovereign immunity is 
to be liberally construed. See text infra at notes 84-85.

84 See Grillea V. United States, 232 F.2d 919, 921 (2d Cir. 
1956) (“the Suits in Admiralty Act is not to be construed with 
the same jealously that ordinarily circumscribes the consent of 
the United States to be sued” ). See also Malgren V. United 
States, 390 F.Supp. 154, 156 (W.D. Mich. 1975) ; Marich V. 
United States, 84 F.Supp. 829, 832 (N.D. Cal. 1949). Courts 
have not entirely abandoned the strict-construction rule, how­
ever; they have continued to apply it with respect to condi­
tions placed by Congress upon waivers of immunity. See, e.g., 
United States V. M/V Pitcairn, 272 F.Supp. 518, 522 (E.D. La. 
1967).



26a

strict construction and held instead that “i[t]hese lib­
eral provisions indicate that the language used in the 
[Act] should have its broad and ordinary meaning 
and should not be interpreted in a restricted . . . 
sense.” 85

Later decisions by other federal courts have re­
iterated the theme that Congress intended, and that 
the Act should accordingly be interpreted, to make 
governmental liability “ coextensive” with that of pri­
vate parties.86 They have rebuffed attempts to inject 
“ unintended” or “ irrational” 87 refinements into the 
Act, and have construed the language “ sensibly, nat­
urally, |[and] . . . literally.”  88 One court has even 
held that the United States is liable as a private per­
son in new causes of action imported into admiralty 
law subsequent to passage or amendment of the Act.89 
In short, federal courts generally have refused to 
wield the rule of strict construction to defeat the

85 Nahmeh v. United States, supra note 83, 267 U.S. at 126, 
45 S.Ct. at 278, 69 L.Ed. at 538.

88 De Bardeleben Marine Corp. V. United States, 451 F.2d 
140, 143 (5th Cir. 1971). See also Canadian Pac. {Bermuda), 
Ltd. V. United States, 534 F.2d 1165, 1168 (5th Cir. 1976) ; 
De Bardeleben Marine Corp. V. United States, supra, 451 F.2d 
at 145; Gulf Oil Corp. V. Panama Canal Co., 407 F.2d 24, 28 
(5th Cir. 1969) ; Maritime Overseas Corp. V. United States, 
433 F.Supp. 419, 421 (N.D. Cal. 1977) ; Universe Tankships, 
Inc. V. United States, 388 F.Supp. 276, 285 (E.D. Pa. 1974), 
aff’d, 528 F.2d 73 (3d Cir. 1975).

87 De Bardeleben Marine Corp. V. United States, supra note 
86, 451 F.2d at 146. See also id. at 145-146.

88 Gulf Oil Corp. V. Panama Canal Co., supra note 84, 407 
F.2d at 28.

89 Malgren V. United States, supra note 84, 390 F.Supp. at 
157.



27a

plain and natural meaning of the Act’s command 
that liability of the United States be identical to that 
of private counterparts.90 91 92 93

Buttressing the exception to the strict-construction 
rule prevalent in Suits in Admiralty Act cases, fed­
eral courts also have liberally construed other simi­
larly broad statutory waivers of sovereign immunity. 
For example, the Federal Torts [sic] Claims Act 81 
waives the immunity of the United States in unqual­
ified language, imposing upon it liability for certain 
kinds of tortious conduct “ to the same extent as a 
private individual under like circumstances.”  83 The 
Supreme Court has placed liability on the United 
States for activities which, as a practical matter, are 
never privately undertaken because it has felt com­
pelled to implement the “broad and just purpose which 
the statute was designed to effect,” 88 namely, to treat 
the government as any private person would be 
treated. Similarly, when the question arose whether 
the Act allowed the United States to be sued as a 
third-party defendant in an action for contribution 
initiated by a joint tortfeasor, the Court refused to

90 Boston Sand & Gravel Co. V. United States, 278 U.S. 41, 
49 S.Ct. 52, 73 L.Ed. 170 (1928), however, held that a special 
act of Congress providing for governmental liability in an ad­
miralty action “ as in like cases . . . between private parties” 
did not authorize an award of pre-judgment interest, be­
cause specific legislative history indicated that Congress had 
not intended to allow interest under this statute. Id. at 47, 49 
S.Ct. at 53, 73 L.Ed. at 176.

91 28 U.S.C. §§ 2671 et seq. and other scattered sections of 
28U.S.C. (1982).

92 28 U.S.C. § 2674 (1982).
93 Indian Towing Co. V. United States, 350 U.S. 61, 68-69, 

76 S.Ct. 122, 126, 100 L.Ed. 48, 55 (1955).



28a

read “ fine distinctions”  into the A ct/4 Far from ac­
cepting a rule of strict construction, it specifically 
rejected an attempt to restrict the scope of the Act’s 
broad language, which clearly put the United States 
on the same footing as a private party,* 95 The Court 
quoted favorably a statement to which we earlier 
adverted: 96 “ [tQhe exemption of the sovereign from 
suit involves hardship enough where consent has been 
withheld. We are not to add to its rigor by refine­
ment of construction where consent has been an­
nounced.”  97

This same broad construction has been brought to 
bear on the Public Vessels Act,98 which provides that 
“ [a] libel in personam in admiralty may be brought 
against the United States . . . for damages caused by 
a public vessel of the United States.” 99 It too has 
been given the interpretation borne by the plain and 
ordinary meaning of its language.100 Though this

oi United States V. Yellow Cab Co., 340 U.S. 543, 549, 71 
S.Ct. 399, 404, 95 L.Ed. 523, 530 (1951).

95 Id.
90 See text supra at note 77.
97 United States v. Yellow Cab Co., supra note 94, 340 U.S. 

at 554, 71 S.Ct. at 406-407, 95 L.Ed. at 532, quoting Anderson 
V. John L. Hayes Constr. Co., supra, note 77, 243 N.Y. at 147, 
153 N.E. at 29-30. See also United States V. Aetna Sur. Co., 
supra note 77, 338 U.S. at 383, 70 S.Ct. at 216, 94 L.Ed. at 
186, quoting Anderson v. John L. Hayes Constr. Co., supra 
note 77, 243 N.Y. at 147, 153 N.E. at 29-30.

98 Act of Mar. 23, 1925, ch. 428, 43 Stat. 1112 (codified at 
46 U.S.C. §§ 781-790 (1982)).

99 Id. § 1 (codified at 46 U.S.C. § 781 (1982)).
im E.g., Ira S. Bttshey & So7is V. United States, 398 F.2d 

167, 169 (2d Cir. 1968) ; Allen V. United States, 338 F.2d 160,



29a

provision is less explicit than those of the Suits in 
Admiralty and Tort Claims Acts with respect to the 
comparative responsibilities of the United States and 
private persons, the Supreme Court has interpreted 
it “ to impose on the United States the same liability 
. . . as is imposed by the admiralty law on the pri­
vate shipowner,” * 101 noting that “ congressional adop­
tion of broad statutory language authorizing suit was 
deliberate and is not to be thwarted by an unduly re­
strictive interpretation.” 102 The Court has since re­
affirmed this holding,103 and federal courts generally 
have construed the scope of governmental liability 
under the Public Vessels Act in terms similar if not 
identical to those by which they have delineated lia­
bility under the Suits in Admiralty Act.104 A  recent 
Supreme Court decision interprets and reconciles 
these statutes without recourse to or even mention 
of the strict-construction rule.105

Another example is furnished by the recent Equal 
Access to Justice Act, a statute strikingly similar to

162 (9th Cir. 1964), cert, denied, 380 U.S. 961, 85 S.Ct. 1104, 
14 L.Ed.2d 152 (1965) ; Jentry V. United States, 73 F.Supp. 
899, 902 (S.D. Cal. 1947).

101 Canadian Aviation, Inc. V. United States, 324 U.S. 215, 
228, 65 S.Ct. 639, 646, 89 L.Ed. 901, 910 (1945).

102 Id. at 222, 65 S.Ct. at 643, 89 L.Ed. at 907.
103 Weyerhaeuser S.S. Co. V. United States, 372 U.S. 597, 

600, 83 S.Ct. 926, 928, 10 L.Ed.2d 1, 4 (1963).
104 E.g., Gulf Oil Cory. V. Panama Canal Co., supra note 86, 

407 F.2d at 28; Malgren v. United States, supra note 84, 390 
F.Supp. at 156; Weiss V. United States, 168 F.Supp. 300, 301 
(D.N.J. 1958).

100 United States V. United Continental Tuna Corp., supra 
note 83.



30a

the Title VII section here at issue in its provision 
that the United States shall be liable for reasonable 
attorneys’ fees and expenses “ to the same extent that 
any other party would be liable under the common 
law or under the terms of any statute which spe­
cifically provides for such an award.”  106 While one 
circuit has found that this provision does not permit 
the award of interest,10'7 others have declared cate­
gorically that the United States’ liability thereunder 
is the same as private-party liability,108 and generally 
have interpreted the statutory language to effect its 
“plain, clear and common meaning.” 109 In light of 
the extension of such similar doctrine to such a va­
riety of statutes,110 it cannot reasonably be disputed

106 Act of Oct. 21, 1980, Pub. L. No. 96-481, 94 Stat. 2325 
(codified at 28 U.S.C. § 2412 (b) (1982)).

107 See Arvin V. United States, No. 83-5555 (11th Cir. Sept.
27, 1984).

108 E.g., Papson v. United States, No. 602-80T (Ct. Cl. Apr.
28, 1982) ; WATCH v. Harris, 535 F.Supp. 9, 14 (D. Conn. 
1981) ; Photo Data, Inc. V. Sawyer, 533 F.Supp. 348, 350 
(D.D.C. 1982).

109 Photo Data, Inc. v. Sawyer, supra note 108, 553 F.Supp. 
at 350. At least one circuit has noted that the Act constitutes 
“a significant relaxation of sovereign immunity in actions 
seeking attorney fees from the United States,” Commissioners 
V. United States, 684 F.2d 443, 444 (7th Cir. 1982), and other 
courts likewise have accorded the terms of the statute their 
ordinary and reasonable meaning, e.g., WATCH v. Harris, 
supra note 108, 535 F.Supp. at 13-14; Berman v. Schweiker, 
531 F.Supp. 1149, 1151 (N.D. 111. 1982), aff’d, 713 F.2d 1290 
(7th Cir. 1983).

110 In addition to the cases already discussed, see The Lake 
Monroe, 250 U.S. 246, 254-255, 39 S.Ct. 460, 463, 63 L.Ed. 962, 
967 (1919) (holding that a statutory waiver of immunity, 
which provided that merchant vessels bought or leased by the



31a

that the numerous decisions articulating this excep­
tion represent not scattered and aberrant caselaw, 
but a well-established and coherent line of prece­
dent.111

Shipping Board “ shall be subject to all laws, regulations, and 
liability governing merchant vessels,” Shipping Board Act, 
§9, ch. 451, 39 Stat. 730 (1916), rendered these vessels 
amenable “to the same duties and liabilities as privately owned 
merchant vessels” ) .

111 This proposition is further buttressed by the many deci­
sions relaxing the standard of strict construction traditional 
under the sovereign-immunity doctrine in cases involving fed­
eral instrumentalities statutorily authorized “to sue and be 
sued.” The Supreme Court has sustained this departure from 
the doctrine at least partly in the view that the United States, 
when acting as an ordinary person or businessman, should 
be amenable to the normal incidents of litigation as a private 
party would be. See Standard Oil Co. v. United States, 267 
U.S. 76, 79, 45 S.Ct. 211, 212, 69 L.Ed. 519, 521 (1925). The 
Court has endorsed this exception even as applied to corpora­
tions or instrumentalities not explicitly empowered to sue and 
be sued, see Keifer & Keifer V. Reconstruction Fin. Corp., 306
U. S. 381, 389, 59 S.Ct. 516, 518, 83 L.Ed. 784, 789 (1939), and 
has relied upon such authorization, when it has existed, as 
support for its conclusion that Congress intended that the 
governmental entity be treated as if a private party. See FHA
V. Burr, 309 U.S. 242, 245, 60 S.Ct. 488, 490, 84 L.Ed. 724, 
728-729 (1940). As the Court has noted, “ the unqualified au­
thority to sue and be sued placed [the Government] upon an 
equal footing with private parties as to the usual incidents of 
suits in relation to the payment of costs and allowances.” 
Reconstruction Fin. Corp. v. J.G. Menihan Corp., 312 U.S. 81, 
85-86, 61 S.Ct. 485, 487, 85 L.Ed. 595, 598 (1941). For these 
reasons, the Court has discarded the rigorous standards of 
the sovereign-immunity doctrine and admonished that such 
an authorization is to be “ liberally construed.” United States 
V. Shaw, 309 U.S. 495, 501, 60 S.Ct. 659, 661, 84 L.Ed. 888, 
892 (1940). The proposition for which these cases stand is 
that a federal entity, intended by Congress to act or be treated



32a

We think our approach in this case is fully con­
sistent with the purposes of the rule of strict con­
struction. This rule serves as a tool to calibrate ju­
dicial interpretation of purported waivers of sover­
eign immunity so as to minimize the risk of erroneous 
imposition of governmental liability under statutes 
that are ambiguous in scope, or are otherwise sus­
ceptible to expansion beyond the boundaries contem­
plated by Congress.* 112 Strict construction thus en­
sures that any waiver of sovereign immunity will be 
a legislative and not a judicial act.113 When, however,

as a private party, should be subject to all of the ordinary 
incidents of litigation pursuant to a broad construction of the 
relevant statutory waiver of immunity from suit. Especially 
in light of the Court’s extension of governmental liability to 
include an award of interest, see Standard Oil Co. V. United 
States, supra, we are convinced that this line of precedent 
strongly supports our decision to construe the Title VII provi­
sion here at issue according to the plain and ordinary meaning 
of its language. See text infra at notes 118-120.

112 Cf. United States V. California, supra note 56, 297 U.S. 
at 186, 56 S.Ct. at 425, 80 L.Ed. at 574 (justifying another 
rule of strict construction—that the sovereign was not in­
tended to be bound by its own statute unless named in it— as 
“an aid to consistent construction of statutes of the enacting 
sovereign when their purpose is in doubt” ) .

113 See text supra at notes 61-74; see also Navajo Tribe V. 
United States, supra note 75, 586 F.2d at 200-201. Several 
courts have so framed the strict-construction requirement 
complementing the interest rule that only an extension of gov­
ernmental liability beyond the plain and literal language of 
the authorizing statute is proscribed. E.g., Price v. United 
States, 174 U.S. 373, 375-376, 19 S.Ct. 765, 766, 43 L.Ed. 1011, 
1013 (1899). In other cases, often involving the interest rule, 
disallowance of governmental liability was attributable to a 
reluctance to read a specific basis of liability into vague or 
general statutory language. E.g., Blake v. Califano, supra



33a

Congress proclaims that the liability of the United 
States shall be the same as for a comparably-situated 
private individual— by enacting either an explicit 
provision to that effect or a sweeping waiver of im­
munity— the strict-construction rule poses a grave 
threat to effectuation of congressional purpose, and 
hence it should not be and is not applied. In such 
cases, courts interpret the waiver according to the 
plain and ordinary meaning of its language. The 
strict construction rule does not authorize judges to 
act as “ self-constituted guardians [si] of the Treasury 
[to] import immunity back into a statute designed 
to limit it.” 114

Having determined that the doctrine we invoke 
constitutes a purposeful as well as an entrenched ex­
ception to the strict-construction rule, it remains only 
to consider whether the interest rule cedes a simi­
lar exception in cases involving statutes such as the 
Title VII section here under scrutiny. We conclude 
that it does, notwithstanding that almost all deci­
sions articulating the doctrine have done so solely at 
the expense of the strict-construction rule.

Apart from the absence of caselaw contradicting or 
disallowing application of the doctrine in interest- 
rule cases, the Supreme Court’s decision in Standard

note 32, 200 U.S.App.D.C. at 30, 626 F.2d at 894. These sepa­
rate lines of cases, abjuring both liberal judicial construction 
of unclear statutory provisions and judicial extension of lia­
bility beyond the plain boundaries of statutory language, are 
both aspects of the more general policy containing assess­
ments of governmental liability not already marked out by 
legislative action. Neither, however, mandates reversal of the 
order on appeal. See note 42 supra.

114 Indian Towing Co. V. United States, supra note 93, 350 
U.S. at 69, 76 S.Ct. at 126, 100 L.Ed. at 56.



34a

Oil Company v. United States 115 adds weight to the 
conclusion that the principle of liberal construction 
applies as much to the interest rule as it does to 
other manifestations of sovereign immunity. There 
the Court held the United States liable for interest 
despite the absence of an express waiver therefor, 
and solely on the ground that by acting as a private 
insurer it had without more consented to be treated 
as a private insurer.116 This rationale bears a close 
resemblance to that underpinning the exception at 
issue, thus counseling inclusion of the interest rule 
within its ambit. We recognize, too, that the interest 
and strict-construction rules achieve similar objectives 
within the realm of sovereign immunity. Each oper­
ates hand-in-glove with the general rule that the 
United States cannot be held monetarily liable with­
out its consent. The interest rule ensures that the 
United States will incur liability for interest only 
at the will of Congress, while the strict-construction 
principle operates similarly, though more broadly, to 
curtail judicial extension of governmental liability 
beyond the range of likely congressional intent. Con­
sequently, just as the strict-construction rule is obvi­
ated by statutes effecting sweeping waivers of immu­
nity or otherwise equating governmental liability

115 Supra note 111.
116 267 U.S. at 79, 45 S.Ct. at 212, 69 L.Ed. at 521 (“ [w]hen 

the United States went into the insurance business, issued pol­
icies in familiar form and provided that in case of disagree­
ment it might be sued, it must be assumed to have accepted 
the ordinary incidents of suits in such business” ). The Court 
has refused, however, to relax the interest rule in cases in 
which the United States, though serving as an insurer, has not 
acted as a private insurer. See United States V. Worley, 281 
U.S. 339, 341-342, 50 S.Ct. 291, 292-293, 74 L.Ed. 887, 889-891 
(1930).



35a

with that of private persons, so do we decline to use 
the interest rule in the case at bar as an instrument 
for insertion of unintended qualifications and refine­
ments into an otherwise plain and unambiguous stat­
utory mandate.

The applicability of this doctrine in interest-rule 
cases thus established, we must, finally, determine 
whether the statutory provision upon which the Dis- 
rict Court grounded its assessment of the disputed 
attorneys’ fee against the United States fits within 
the confines of the exception, and we hold that it does. 
When Congress declared that “ the United States shall 
be liable for costs the same as a private person,” it 
revealed unmistakably its intention to subject the 
United States to treatment no different from that 
accorded private parties in equivalent circumstances. 
Title V II’s attorneys’-fee provision thus measures 
the waiver of immunity in terms essentially identical 
to those in statutes already held to be governed by 
the doctrine.117 We conclude, as a result, that the 
contours of this mandate must be delineated by ordi­
nary and reasonable, not express or strict, judicial 
construction.

Under such an interpretation, we think it mani­
fest that, the attorneys’-fee section implements the 
overarching congressional purpose to accord “ ‘ i [ a g ­
grieved [federal] employees or applicants . . . the 
full rights available in the courts as are granted to 
individuals in the private sector under title V II’ ” 118

117 We need not decide whether the statutory provision at 
issue also falls within the exception for “ sweeping” waivers 
of immunity.

118 Chandler V. Roudebush, 425 U.S. 840, 841, 96 S.Ct. 1949, 
1950, 48 L.Ed.2d 416, 420 (1976) (quoting S. Rep. No. 415, 
92d Cong., 1st Sess. 16 (1971)). See also H.R. Rep. No. 238,



36a

Since claimants in private-sector Title VII cases may 
garner interest as one component of an attorneys’-fee 
award— itself defined as a part of “ costs”  119— we 
cannot sanction a variant doctrine o f liability for the 
United States. We find that the District Court did 
not err when it fashioned an assessment of interest 
against the United States.120

92d Cong., 1st Sess. 23 (1971) ; 118 Cong. Rec. 4922 (1972) 
(remarks o f Senator Williams) ; Copeland V. Marshall, supra 
note 2, 205 U.S.App.D.C. at 405, 641 F.2d at 895.

119 See note 46 supra.

120 Our dissenting colleague says that our holding creates a 
statutory anomaly by treating Title VII lawyers better than 
their federal-sector clients inasmuch as interest would be pay­
able as part of attorneys’-fee awards but, under Blake V. 
Califano, supra note 32, not on backpay awards. See Dis. Op. 
at 6. We find this argument unpersuasive for several reasons. 
First, we cannot treat the interests of Title VII lawyers and 
clients as anything other than mutually dependent. Our hold­
ing ensures that Title VII claimants will better be able to com­
pete for the time and energies of more experienced counsel, 
Copeland v. Marshall, supra note 2, 205 U.S.App.D.C. at 405, 
641 F.2d at 895, and thus furthers the interests of clients in 
the most effective representation of their claims. Second, the 
supposed anomaly is attributable to the interest rule itself and 
its diverse operation in the context of the statute, a problem 
which Congress apparently did not anticipate. Lastly, a differ­
ent holding would create its own anomaly—that private-sector 
clients, whose lawyers can obtain interest adjustments to lode­
star amounts, see note 46 supra, would receive better treat­
ment than federal-sector clients, a result clearly at odds with 
the fundamental objective of the Equal Employment Oppor­
tunity Act of 1972 to establish parity between federal and 
private-sector employees. See Chandler V. Roudebush, supra 
note 118, 425 U.S. at 841, 96 S.Ct. at 1949, 48 L.Ed.2d at 420 
(quoting S. Rep. No. 415, 92d Cong., 1st Sess. 16 (1971)). It 
would seem strange indeed to wield the interest rule in con­
travention of a natural reading of the attorneys’ fee section



37a

VI
We affirm, on the alternative grounds explicated, 

the District Court’s decision to allow a 30 percent 
upward adjustment in the lodestar to compensate 
counsel for the delay in receipt of payment for the 
legal services he rendered under Title VII. We mod­
ify the court’s order to correct a mathematical error 
in its computation of the lodestar,121 and remand 
solely in order that the court may confirm that 
Shaw’s counsel is not being paid twice for the delay 
he experienced.122 If, in calculating the lodestar for 
counsel’s services, the court utilized an hourly rate 
which reflected a reasonable charge to clients who 
pay their attorneys when billed, the court’s order as 
modified will stand, and the Library must remit to 
counsel $2,524.50, the portion of the court’s attor- 
ney’s-fee award contested on appeal.123 If, instead, 
the lodestar was based on a reasonable hourly rate 
for services rendered under a fee-shifting statute, 
that rate has already taken into account the pecu­
niary disadvantage resulting from the lengthy wait 
for payment, and the court’s upward adjustment to 
the lodestar therefore was inappropriate since it 
would result in double payment for the delay in re­
ceiving his money.

So ordered.

simply to ensure that interest is defeated equally for attor­
neys’ fees as for backpay.

121 See note 17 supra.

122 See note 28 supra.
123 See note 24 supra.



38a

Ginsburg , Circuit Judge, dissenting: In my view, 
precedent constrains judicial inventiveness in this 
case more tightly than my colleagues acknowledge. 
Furthermore, I believe today’s decision will confound, 
not assist, district court judges as they labor to 
fathom and follow this court’s proliferating instruc­
tions regarding allowance of attorneys’ fees against 
the United States. I therefore dissent from the ma­
jority’s position on the government’s liability for 
interest.

On September 9, 1982, when we heard oral argu­
ment on appeal, we faced, and our charge was to 
reconcile, two not fully consistent lines of decision. 
One line, long-established, forbids the award of pre- 
or post-judgment interest payable by the United 
States, absent deliberate waiver by Congress of the 
sovereign’s immunity. See Holly v. Chosen, 639 F.2d 
795 (D.C. Cir.), cert, denied, 454 U.S. 822 (1981); 
Blake v. Califano, 626 F.2d 891 (D.C. Cir. 1980), 
and decisions cited therein. The other, newer line con­
templates an adjustment for delay in receipt of pay­
ment when counsel fees are awarded, pursuant to 
statute, as part of costs. See Copeland v. Marshall, 
641 F.2d 880, 893, 906 n.61 (D.C. Cir. 1980) (en 
ba n c); National Association of Concerned Veterans 
v. Secretary of Defense, 675 F.2d 1319, 1328-29 (D.C. 
Cir. 1982). The difference between interest and a 
delay factor can be more than semantic. Interest, as 
that term, is commonly used, is calculated retrospec­
tively, at the completion of the period during which 
it accrues. A  delay factor, as Copeland suggests, may 
figure as a contingency adjustment, applied prospec­
tively to the lodestar. Just as an attorney setting 
an hourly rate in a contingent fee case may factor in 
the risk that the cause may not prevail, so too an



39a

attorney embarking on services for which he or she 
anticipates payment ultimately, but not promptly, 
may factor in the expected delay.

When a statute provides for payment of an attor­
ney’s fee by a private sector defendant, there is no 
need to grapple with delay in payment as a factor 
distinct from interest, for private defendants are 
not immune from the payment of pre- or post-judg­
ment interest.1 Wrhen the sovereign is the payor, how­
ever, precedent we are not at liberty to upset de­
mands disallowance of interest add-ons unless Con­
gress otherwise orders.

Recently, in Murray v. Weinberger, No. 83-1680, 
slip op. at 16-19 (D.C. Cir. Aug. 24, 1984), a panel 
of this court attempted to chart a course between 
the interest-is-impermissible/delay-factor-is permissi­
ble lines of decision. Murray, argued on April 13,1984, 
intercepted the instant case; it appeared to provide 
definitive instructions on the two inquiries the dis­

1 Private sector decisions, when they adjust for the time of 
payment, grant interest or a delay factor, but not both. Deci­
sions in private sector cases accepting some type of multiplica­
tive lodestar adjustment to account for delay include: Brown 
v. Gillette Co., 536 F.Supp. 113, 123-24 (D.Mass. 1982) ; Black 
Gold, Ltd. v. Rockwool Indus., 529 F.Supp. 272 (D.Colo. 
1981) ; Kennelly v. Lemoi, 529 F.Supp. 140, 144-45 (D.R.I. 
1981). None of these decisions tacked on pre-judgment inter­
est as well. At least one private sector Title VII decision 
allowed computation of the lodestar using current rather than 
historical hourly rates and did not otherwise adjust the lode­
star for delay. Chrapliwy v. Uniroyal Inc., 509 F.Supp. 442, 
457-58 (N.D.Ind. 1981), aff’d in part and rev’d in part on 
other grounds, 670 F.2d 760, 764 (7th Cir. 1982), cert, denied, 
103 S.Ct. 2428 (1983) ; cf. Virginia Academy of Clinical Psy­
chologists v. Blue Shield, 543 F.Supp. 126 (E.D.Va. 1982) 
(antitrust attorneys’ fees calculation; court computed lodestar 
using current hourly rates).



40a

trict court should make in ruling upon a request for 
a fee award adjustment to account for delay in pay­
ment. Under Murray, the court must determine first 
whether the rate incorporated in the lodestar already 
takes into account an anticipated time lag between 
rendition of services and receipt of payment. Second, 
if  “ the reasonable hourly rate incorporated into the 
lodestar did not reflect an increment for the expected 
delay in payment/’ the court should next inquire 
“whether recalculation of the lodestar utilizing cur­
rent market rates instead of historic rates, is appro­
priate.” Id. at 18. I do not find in the statute before 
us, 42 U.S.C. § 2000e-5(k) (1982), the conscious 
waiver of sovereign immunity entrenched decisional 
law contemplates. See, e.g., Ruckelshmis v. Sierra 
Club, 103 S.Ct. 3274, 3277 (1983), cited in Nichols 
v. Pierce, 740 F.2d 1249, 1256 nn.38, 42 (D.C. Cir. 
1984) (courts must take care not to enlarge waiver 
of sovereign immunity beyond what language of 
statute requires) ; In re : Hamilton Jordan, No. 79-7, 
slip op. at 4 (D.C. Cir. Indep. Couns. Div. Oct. 16, 
1984); Phillips v. United States, 346 F.2d 999, 1000 
(2d Cir. 1965) ( “ spirit proper to judicial considera­
tion” of alleged sovereign immunity waiver “ is not 
one of generosity and broad interpretation” ). I 
would therefore adhere to the letter of the Murray 
instructions and reject the large, “ interest is per­
missible,”  postscript the majority espouses.

Although Congress has not provided for an inter­
est add-on, and precedent does not place me at liberty 
to read into the statute an instruction or waiver 
Congress might have included had it thought about 
the matter, I am also bound by the more recent deci­
sional line— opinions permitting delay factor supple­
mentation of an attorney’s fee, even when the fee is



41a

payable by the sovereign. Our recent Murray opin­
ion relieves me of the reconciliation task confronting 
the panel when this appeal was new. The adjustment 
Murray permits serves the “ important objective” of 
“ [e]ase o f administration,” Murray, slip op. at 18, 
and promises to simplify, not complicate, the chore 
w7e commit to the district court.2 I would not go be­
yond Murray without a direction to do so from Con­
gress.

I. T h e  N o-Interest R ule

Nothing in the majority’s labyrinthian opinion gen­
uinely demonstrates that Congress so much as ad­
verted to the noninterest rule when it enacted the 
statute in question. For all its intricacy, the major­
ity opinion builds on a hunch: if Congress had ad­
verted to the matter, it would have (or should have) 
waived immunity. I sympathize with the policy 
judgment the majority advances. But I cannot agree 
that the legislature “plainly” resolved an immunity 
waiver issue never even framed in the course of its 
deliberations.

The delay calculation made by the district court, as 
the majority holds, was an interest computation. The 
district court applied a 10% per annum rate to the 
base award, determined that three years would sepa­
rate the time when the fee should have been paid and 
its actual payment, and increased the award accord­
ingly. This calculation resembles in all relevant re­
spects the one our court disapproved in Holly v. 
Chasen.3 In that case the interest rate employed was

2 See infra pp. 14-17.
8 Nor can I distinguish Holly based on the conduct of the 

government in the two cases. Holly did not reach the question 
whether a penalty, computed in the same manner as interest, 
could be imposed if the government exploited delay deliber-



42a

6% , and the term over which interest was to accrue 
was indefinite, running from the judgment date to 
the date of payment. But the differences in the inter­
est rates (10% versus 6 % ) and in the terms to 
which they were applied (three years versus an open- 
ended period) are not sufficient grounds for typing 
the award here as something other than interest. In 
both cases, augmentation of the award involved a 
retrospective calculation that placed upon the govern­
ment the cost of an actual delay. A calculation of 
this order, by any name, is inescapably in the nature 
of “ interest.”

Contemporary conditions and equitable considera­
tions cast doubt on the soundness of the no-interest 
rule governing judgments against the United States. 
The majority’s painstakingly embroidered opinion is 
comprehensible only as a labor sparked by that doubt. 
This circuit recently has stated, however, that the 
entrenched character of the no-interest rule militates 
against alteration by the judiciary. Our court has 
maintained that change, in view of the long-prevail­
ing, rigorously-applied rule, lies within the province 
of Congress. See Holly v. Chosen, 639 F.2d at 798.

In Blake v. Califano, we ruled that a Title VII 
back pay award against the government may not be 
augmented by pre-judgment interest. Similarly, the 
Holly court held that interest may not be added to 
an attorney’s fee payable by the United States pur­
suant to the Freedom of Information Act, U.S.C.

ately to whittle down an award. Like Holly, the case before us 
reveals no design to shrink a fee. The district court found 
the delay in resolving the back pay controversy unnecessary, 
but it stated that the time lapse might have been avoided by 
more effective representation on either side of the case. Shaw 
v. Library of Congress, No. 79-0325, slip op. at 2 (D.D.C. Nov. 
4,1981).



43a

§ 552(a) (4) (E ) (1982). Both decisions underscore 
that waiver of the no-interest rule “ cannot be by im­
plication or by use of ambiguous language,” Holly v. 
Chosen, 639 F.2d at 797; Congress, we have empha­
sized, must signal the authorization advertently and 
with clarity. See Blake v. Califano, 626 F.2d at 
894-95 & n.7.4 Invited to reconsider Blake and allow 
a Title VII plaintiff to recover pre-judgment inter­
est on a back pay award against the federal govern­
ment, we adhered to our prior holding and stated: 
“When Congress amended Title VII in 1972 to bring 
the federal government under its provisions, Congress 
evinced no intention to waive sovereign immunity as 
to interest awards,”  Segar v. Smith, No. 82-1541, 
slip op. at 80 (D.C. Cir. June 22, 1984).

Taken together, Blake, Segar, and today’s decision 
announce that Congress distinguished sharply and 
consciously between attorneys for Title VII litigants 
against government defendants, and the litigants 
themselves, the actual victims of discrimination. An 
interest calculation can augment the attorney’s fees, 
but not the client’s recovery. The majority attributes 
this unusual design to Congress because it was the 
legislature’s “ overarching . . . purpose”  to accord 
aggrieved federal employees the full Title VII rights 
available to individuals in the private sector. Major­
ity opinion at 32. The right available to individuals 
in the private sector to claim interest on back pay 
awards, however, cannot be secured to federal em­
ployees in cases brought in this circuit without over­
ruling Blake, and now the relevant Segar holding as 
well. The majority thus settles for second best. It

4 But see Note, Interest in Judgments Against the Federal 
Government: The Need for Full Compensation, 91 Y a l e  L.J. 
297 (1981).



44a

leaves the litigant without interest, takes care of the 
lawyer only, and pretends interest for the lawyer is 
in full harmony with Blake and Segar.

Client and lawyer are on the same footing vis-a-vis 
interest on Title VII awards in private sector em­
ployment, the majority concedes, A  Congress that 
thought about the problem at all, I believe, would 
have placed client and lawyer on the same footing 
as to interest awards in the federal sector as well. 
Though the majority strives mightily, it cannot con­
vincingly explain why Congress would deliberately 
opt to treat awards to clients and lawyers differently 
by allowing lawyers, but not clients, to collect in­
terest.

The statute before us authorizes “ a reasonable at­
torney’s fee”  as part of costs, and provides that the 
United States “ shall be liable for costs the same as 
a private person.” 42 U.S.C. § 2000e-5(k) (1982). 
The majority holds that the United States has thereby 
waived not only its immunity as to costs (in this 
instance, including attorneys’ fees) for which Con­
gress made express provision, but also, sub silentio, 
its immunity as to interest on those costs.'5 “ Costs,”

8 Although this case involves only pre-j udgment interest, 
the logic of the majority opinion, riveted on the 42 U.S.C. 
§ 2000e-5 (k) words “the same as a private party,” extends to 
post-judgment interest as well. In Title VII litigation, costs 
include attorneys’ fees. According to 28 U.S.C. § 1920 (1982), 
“costs” are included in the judgment. Under 28 U.S.C. § 1961 
(1982), a private defendant is liable for post-judgment inter­
est on the amount of the “ judgment.” In combination, these 
two provisions render a private defendant liable for post­
judgment interest on costs. But cf. infra note 7. If the 
United States is to be treated precisely as a private defendant, 
as the majority here argues, it follows that the United States 
is now exposed to both pre-j udgment and post-j udgment inter-



45a

as treated in the majority’s opinion, are thus ac­
corded a uniquely expansive interpretation. It is 
established, for example, that a waiver of immunity 
with respect to a monetary award for discrimination 
in employment is not a waiver with respect to in­
terest on that award. Blake v. Califano. Similarly, 
a waiver of immunity with respect to liability on a 
contract is not a waiver with respect to interest on 
that liability. Eastern Service Management Co. v. 
United States, 363 F.2d 729, 733 (4th Cir. 1966); 
Economy Plumbing & Heating Go. v. United States, 
470 F.2d 585 (Ct. Cl. 1972). And in the adjust­
ment of mutual claims, the government is entitled to 
interest on amounts owed to it, but is not obligated 
to pay interest on amounts it owes. United States 
v. North American Transportation & Trading Co., 
253 U.S. 330, 336 (1920).

Enlarging an immunity waiver with respect to 
“costs”  to include interest on costs draws on nothing 
inherent in the concept of “costs.”  “ Costs”  is a term 
of specific and narrow content; in federal adjudica­
tion, the word “costs”  has never been understood to 
include any interest component. See 28 U.S.C. 
§ 1920 (1982); see also 10 C. W righ t , A . M iller  
& M. K a n e , F ederal Practice and P rocedure 
§§ 2666, 2670 (2d ed. 1983) (hereafter, W right  & 
M il l e r ) .

Pre-judgment interest (interest “ on the claim” ) 
generally ranks as an element of damages, not as a 
component of “ costs,”  Id. § 2664, at 159-60. Its 
availability depends on the substantive law (state or 
federal) that governs the controversy. See General

est on Title VII attorneys’ fee awards. Curiously, the ma­
jority’s extended discussion leaves the reader at sea on this 
issue.



46a

Motors Corp. v. Devex Carp., 103 S.Ct. 2058 (1983). 
Post-judgment interest (interest “ on the judgment” ) 
is a separate entitlement governed by statue or com­
mon law, not a “cost.”  10 W righ t  & M iller , supra, 
§ 2664, at 159. I therefore fail to spy in a statute 
allowing “ costs” and specifically qualifying an attor­
ney’s fee as part of “ costs,”  a clear, affirmative in­
tention by Congress to displace the traditional prin­
ciple that the sovereign is immune from the pay­
ment of interest on those costs. Cf. Parker v. Lewis, 
670 F.2d 249, 250 (D.C. Cir. 1982) (Title VII at­
torneys’ fee awards against Secretary of Transporta­
tion should be determined with expedition because 
Secretary, “ as an officer of the government, cannot 
be charged with interest” ) (citing Holly v. Chasen).

The majority maintains most insistently that in 
rendering the United States liable for costs (includ­
ing attorneys’ fees) “ the same as a private person,” 
Congress unquestionably intended to waive the sov­
ereign’s immunity with respect to interest on costs. 
But see Arvin v. United States, No. 83-5555 (11th 
Cir. Sept. 27, 1984) (Equal Access to Justice Act 
provision (28 U.S.C. § 2412(b) (1982)) that United 
States, shall be liable for the reasonable fees and 
expenses of attorneys “ to the same extent that any 
other party would be liable under the common law 
or under the terms of any statute which specifically 
provides for such an award” does not waive sovereign 
immunity with regard to interest on attorney fee 
awards).6 Sparse case law is cited by the majority

8 Cf. Boudin v. Thomas, 732 F.2d 1107, 1114-15 (2d Cir. 
1984) (declining to extract from words “ any civil action” in 
28 U.S.C. § 2412(d) (1) (A) (1982) (Equal Access to Justice 
Act) congressional direction for United States payment of 
attorneys’ fees in habeas corpus proceedings, although such



47a

indicating that pre-judgment interest has been con­
sidered, on occasion, in determining the liability of 
private persons for attorneys’ fees. See majority 
opinion note 46. The terse statutory phrase ( “ the 
same as a private person” ) on which the majority 
dominantly relies, coupled with sporadic and laconic 
judicial precedent in private sector cases,* 7 simply do

proceedings rank as “ civil actions” for other purposes—court 
stated that judicial finding of a waiver of the federal sover­
eign’s immunity required “ unequivocal and explicit” manifes­
tation of the legislature’s “affirmative intention,” which “mere 
inclusion in the statute of the words ‘any civil proceeding’ ” 
did not indicate).

If the statutory waiver here is “express” and “ unmistak­
able,” as the majority opinion at 14 bravely proclaims, it is 
remarkable that plaintiff-appellee, represented by able, expe­
rienced counsel, never argued that position. Instead, as the 
majority opinion at 9 initially acknowledged, plaintiff- 
appellee attempted to distinguish between “an award of inter­
est and the adjustment of a fee to ensure that it is reasonable 
when there is delay in its payment.” Brief for Plaintiff- 
Appellee at 10. The notion that the statute waives the sover­
eign’s immunity as to interest, in short, entered this case, and 
has been exploited in it, as the majority’s own invention.

7 See cases cited supra note 1. In Title VII cases against 
private defendants the courts have no occasion to dwell on or 
even advert to the difference between a “ delay factor” and 
“ interest.” Either can be ordered as part of a monetary award 
as a form of the equitable relief Title VII authorizes.

In litigation against the United States no distinction is ap­
propriately made between interest on costs and interest on 
the underlying monetary award. An award of costs against 
the United States is included in the “ judgment,” 28 U.S.C. 
§ 1920 (1982) ; payment of costs by the United States is ad­
dressed in 28 U.S.C. § 2412 (1982), which makes reference to 
28 U.S.C. § 2517 (1982). Section 2517 refers only to “ judg­
ments” and interest thereon.

There was until recently, however, a circuit division on the 
question whether interest runs solely on the monetary award 
or on court costs included in the judgment as well. In Inde-



48a

pendence Tube Corp. v. Copperweld Corp., 543 F.Supp. 706, 
716 (N.D. 111. 1982), the court summarized the division of 
authority, and its own conclusion, as follows:

The plaintiff has requested interest on attorneys’ fees 
and costs awarded to it. In Capra [sic], Inc. v. Ward 
Foods, Inc., 567 F.2d 1316 (5th Cir. 1978), the court held 
that interest is not payable on attorneys’ fees in antitrust 
cases because the Clayton Act makes attorneys’ fees part 
of the court costs and interest is not payable on court 
costs, and because the treble damage award makes inter­
est on attorneys’ fees less necessary than in cases where 
treble damages are not awarded. 567 F.2d 1322. Cf., 
Gates v. Collier, 616 F.2d 1268 (5th Cir. 1980) (interest 
payable on attorneys’ fees in civil rights cases). Other 
courts, however, albeit without discussion, have allowed 
payment of interest on costs and attorneys’ fees in anti­
trust cases, Mt. Hood Stages, Inc. v. The Greyhound 
Corp., 616 F.2d 394, 406 n.10 (9th Cir. 1980) ; City of 
Detroit v. Grinnell Corp., 575 F.2d 1009, 1010 (2d Cir. 
1979) ; Perkins v. Standard Oil Co. of California, 487 
F.2d 672 (9th Cir. 1973). Furthermore, unlike the Fifth 
Circuit, the Seventh Circuit apparently does allow inter­
est on costs. See Harris v. Chicago Great Western Ry., 
197 F.2d 829, 836 (7th Cir. 1952). Therefore, even if 
attorneys’ fees are considered part of the costs rather 
than part of the judgment, interest on fees is appropriate. 

Carpa, Inc. v. Ward Foods, Inc., cited by the Copperweld court 
for the “no interest on costs” position, has since been over­
ruled. Copper Liquor, Inc. v. Adolph Coors Co., 701 F.2d 542 
(5th Cir. 1983) (en banc). Either approach, however, sup­
ports my position. If costs (including attorneys’ fees) are 
to be treated for interest purposes in the same way as the 
underlying monetary award, this circuit’s holding in Blake, 
supra, reaffirmed in Segar, supra, compels us to deny pre­
judgment interest on attorneys’ fees in Title VII cases. If 
costs (including attorneys’ fees) are categorized separately 
and are subject to their own, discrete “no-interest” rule (a 
rule sparing even private defendants), as the now-overruled 
Carpa decision maintained, then it is of no help to appellee to 
argue that the statute provides for reimbursement “ the same 
as against a private person.”



49a

not add up to the deliberate waiver of sovereign im­
munity that prior decisions emphatically require.8 
Cf. Blake v. Califano, 626 F.2d at 893-95 (in view 
of “ specific entrenched immunity of the Government 
from prejudgment interest,”  court is not free to 
allow such interest in Title VII back pay awards to 
federal employees; Congress must evince specific in­
tention to authorize waiver of “ settled governmental 
immunity” ; “ mere consistency with [remedial policies 
of Title VII] is not enough” ) .9

8 Nor can I derive from Standard Oil Co. v. United States, 
267 U.S. 76 (1925), featured in the majority opinion at 31, 
genuine support for the majority’s view. There, the United 
States went into the business of insuring vessels against war 
risks, adopting the form of contract used by private under­
writers, and reaping a large profit from the venture. See 
United States v. Worley, 281 U.S. 339, 342 (1930). The High 
Court soon clarified that Standard Oil was an exceptional case, 
turning on the commercial character of the insurance business 
in which the government was engaged, and is not a precedent 
appropriately extended outside its precise context. United 
States v. Worley, 281 U.S. at 341-44.

9 Congress has several times waived the United States’ im­
munity with respect to interest. See, e.g., 28 U.S.C. § 2411 
(1982) (expressly authorizing pre- and post-judgment in­
terest payable by the United States in tax refund cases) ; see 
also 31 U.S.C. § 1304 (1982), cited in Holly, 639 F.2d at 797 
as 31 U.S.C. § 724a (1976) (same statutory section before 
recodification). These provisions supply obvious models Con­
gress might have followed had it considered waiving the sover­
eign’s traditional immunity in the situation presented here.

Elsewhere Congress has reiterated the general rule that in­
terest cannot be allowed against the United States absent ex­
press waiver. “ Interest on a claim against the United States 
shall be allowed in a judgment of the United States Claims 
Court only under a contract or Act of Congress expressly pro­
viding for payment thereof.” 28 U.S.C. § 2516 (1982). “ The 
United States shall be liable, respecting provisions of [the



50a

The majority pushes beyond legitimate judicial li­
cense in stating that the interest issue here is “hardly 
one of first impression,”  and in insinuating that one 
might even decide the question “ on stare decisis”  be­
cause o f “ the seemingly clear applicability of [our] 
precedents.” See majority opinion at 6-8. But cf. id. 
at 8 ( “we have dealt with [the issue] only periph­
erally,” it is “ one we have never squarely ad­
dressed” ). And see Parker v. Lewis, supra, p. 8. In 
truth, we have never focused on the no-interest rule 
in this context before, because the government did 
not rely on or even refer to the rule in prior cases. 
We have indeed spoken with approval not of interest, 
but of adjustment for delay in receipt of payment, as 
I observed at the outset when I said this panel ini­
tially faced the task of reconciling “ two not fully 
consistent lines of decision.”  Supra p. 1. I now state 
why I believe the court’s August 24, 1984, decision in 
Murray v. Weinberger renders it unnecessary to do 
more in this case than remand with directions to fol­
low the instructions supplied in Murray.

II. D e la y  in  Pa y m e n t  Instructions in  
Murray v. Weinberger

In Copeland, Holly, and a few cases thereafter, 
this court indicated that a delay factor adjustment

Federal Tort Claims A ct], in the same manner and to the same 
extent as a private individual under like circumstances, but 
shall not be liable for interest prior to judgment . . . 28
U.S.C. § 2674 (1982). While the Federal Tort Claims Act 
refers to state law to supply rules of decision, see id. § 1346 (b) 
(law of place where act or omission occurred), it appears that 
Congress wished to make it unmistakably clear that the tradi­
tional federal sovereign immunity rule, not state law, governs 
pre-judgment interest.



51a

to the lodestar may be appropriate, even in litigation 
involving federal government defendants. The court 
stated in Copeland:

The delay in receipt of payment for services 
rendered is an additional factor that may be in­
corporated into a contingency adjustment. The 
hourly rates used in the “ lodestar” represent 
the prevailing rate for clients who typically pay 
their bills promptly. Court-awarded fees nor­
mally are received long after the legal services 
are rendered. That delay can present cash-flow 
problems for the attorneys. In any event, pay­
ment today for services rendered long in the 
past deprives the eventual recipient of the value 
of the use of the money in the meantime, which 
use, particularly in an inflationary era, is valua­
ble. A  percentage adjustment to reflect the de­
lay in receipt of payment therefore may be ap­
propriate.

641 F.2d at 893; see also id. at 906 n.61.10 Along 
similar lines, the court in Holly, after rejecting an 
interest award, said: “We suggest . . . that the pos­

10 The Copeland court noted that a delay factor adjustment 
may be unwarranted when the hourly rate used in the lodestar 
“ is based on present hourly rates,” as distinguished from “ the 
lesser rates applicable to the time period in which the services 
were rendered.” Copeland, 641 F.2d at 893 n.23 (emphasis 
in original) ; see National Ass’n of Concerned Veterans v. 
Secretary of Defense, 675 F.2d 1319, 1329 (D.C. Cir. 1982) ; 
cf. Environmental Defense Fund v. EPA, 672 F.2d 42, 60 
(D.C. Cir. 1982) (limiting lodestar adjustment coupling “ pub­
lic benefit” and “ delay in receipt of [Toxic Substances Control 
Act attorneys’ fees] ” in part because lodestar was calculated 
on the basis of current hourly rates). Murray developed 
Copeland’s exposition of this point.



52a

sibility of a substantial delay in the payment of a 
fee is a factor which counsel may wish to bring to 
the court’s attention when submitting his application 
for compensation.” 639 F.2d at 798. Quoting the 
Copeland, language set out above, the Murray panel 
instructed the district court that delay could be taken 
into account in either of two ways, Murray, slip op. 
at 16-19. Significantly, neither way involved the in­
terest calculation eschewed in Holly but approved by 
my colleagues in this case.

I reiterate here Murray’s two instructions, start­
ing with the one the Murray panel labeled “ [fjirst .” 
The court in Murray explained that if the expected 
wait for payment “ is reflected in the lodestar figure 
itself, an additional enhancement for delay would not 
be appropriate” :

First, the court should determine whether the 
hourly rates incorporated into the lodestar . . . 
contain [delay] increments . . . .  The basic 
hourly rate used in the lodestar figure [in Mur­
ray] was the rate prevailing in Title VII litiga­
tion, where lengthy delays often attend the pay­
ment o f attorney’s fees. . . . According to the fee 
applicants’ affidavits . . ., the attorneys’ hourly 
rates for billing concurrently . . . were substan­
tially lower than the rates they charged pur­
suant to awards for attorney’s fees under fee- 
shifting statutes, where lengthy delays are typi­
cally expected. . . . Thus the lodestar figures 
may already include adjustments for delay in 
payment.

Murray, slip op. at 17-18 (footnote omitted).
Only when the basic hourly rate incorporated into 

the lodestar did not “ include [] a component for the 
delay which would have been expected in the pay-



53a
raent of fees,”  id. at 17, does Murray authorize a 
further inquiry. With an eye on the “pressing need 
for simple rules in attorney’s fee eases,”  id. at 18, 
the Murray court countenanced use o f “ current mar­
ket rates instead of historic rates”  in calculating 
lodestars, id., if  that would produce a reasonable fee 
“without generating a windfall for the plaintiff’s at­
torneys,” Id. at 19. There the matter would end 
under Murray v. Weinberger, for “where the hourly 
rate used in computing the lodestar is based on pres­
ent hourly rates a delay factor has implicitly been 
recognized and no [further] adjustment for delay 
should be allowed.” Id. (quoting National Associa­
tion of Concerned Veterans v. Secretary of Defense, 
675 F.2d at 1329).

III. A pplicatio n  of Murray to th e  Present Case

In calculating the fee for Shaw’s attorney Shalon 
Ralph, the district court, for the most part, followed 
the formula this court specified in Copeland. The 
district court first computed a lodestar o f time and 
rate. It found that ninety-nine hours o f Ralph’s ef­
fort could be attributed to issues on which Shaw suc­
ceeded. See Hensley v. Eckerhart, 103 S,Ct. 1933, 
1940-41 (1983) (where plaintiff achieves only par­
tial success, fee awarded must exclude compensation 
for services rendered in connection with any unsuc­
cessful claim ). It then determined that an $85 hourly 
rate was appropriate for an attorney o f Ralph’s ex­
perience working on problems of employment dis­
crimination in 1978 and 1979.11 The district court

11 It is significant that the court determined $85 per hour 
would have been an appropriate rate in 1978 and 1979 when 
the work was performed, rather than in late 1981 when the 
fee was awarded. See supra note 10.



54a

did not consider, however, as Murray now requires, 
whether the $85 rate prevailed for clients who paid 
their bills promptly or whether it “ included a com­
ponent for the delay which would have been expected 
in the payment of fees”  in cases of this genre. Mur­
ray, slip op. at 17; see id. at 7 n.21, 18 n.46 (lodestar 
rates of $80 to $95 per hour for 1978 to 1981 may 
have included a delay element where attorney billed 
plaintiff $50 per hour at time services were ren­
dered) ; cf. majority opinion note 28.

Next, the district court determined that the lode­
star should be reduced by 20% because the court 
judged the representation only 80% efficient. Cor­
rectly anticipating in this regard guidance our court 
just supplied in Murray, the district court declined 
to make any upward adjustment for the risk Ralph 
assumed by taking on a case in which part of the fee 
was contingent on victory.12 See Murray, slip op. at 
12-16 (upward adjustment for risk of losing on 
merits is unwarranted to the extent that lodestar 
itself comprehended allowance for contingent nature 
o f fee payment; or fee arrangement with client sub­
stantially reduced attorney’s risk of nonpayment; or 
risk of not prevailing was unexceptional).

Finally, the court increased the award to account 
for the three-year delay between the time Ralph 
should have been paid and the time he might finally 
expect payment. The court stated first that the case 
should have ended in 1978, upon or shortly after 
execution of the administrative settlement, not in 
late 1981, after a court proceeding that attentive 
counsel on both sides might have avoided. Next, the

12 A retainer assured Ralph $30 per hour “win, lose, or 
draw.” Shaw v. Library of Congress, No. 79-0325, slip op. 9 
(D.D.C. Nov. 4, 1981).



55a

court reasoned, that if  Ralph had been compensated 
in 1978 he could have invested the money at an aver­
age yield o f at least 10%. Therefore, the court an­
nounced, its judgment would reflect an upward ad­
justment of 30% for delay.18 That adjustment was 
an impermissible award of interest. I would instruct 
the district court, as Murray does, that, i f  it finds 
the basic hourly rate did not include a delay compo­
nent, it may consider whether the use of current mar­
ket rates might produce a reasonable fee.

Augmenting the inquiries Murray prescribed, and 
limiting the prospect Murray's plan held for a uni­
form, manageable approach in the district court, the 
majority’s opinion seemingly allows anything at all 
reasonable to go in the name of interest. No particu- 13

13 The court declared that the 20% reduction of the lodestar 
to reflect deficiencies in the quality of representation and the 
30% increase for delay yielded a net adjustment upward of 
10%. A 20% adjustment down followed by a 30% adjustment 
up, however, yields a net upward change of only 4% (0.8 
x 1.3 =  1.04). The district court might have more closely ap­
proached, although not reached, a net upward adjustment of 
10% had it contemplated compound interest at 10% per 
annum (e.g., annual compounding at 10% against a base of 
0.8 would equal 1.0648). My point, misperceived in the ma­
jority opinion’s note 22, is a small one, and surely does not 
involve any attribution to the district court of a design to 
“penalize [] counsel.” I do not suggest that legal doctrine 
forbids an additive method of computing percentage change 
or mandates compound interest when additive computation is 
not employed. I discern in the district court’s additive ap­
proach to percentage change—an approach wholly unexplained 
in the district court’s opinion— nothing at all complex or 
subtle. I detect only an unintended “mathematical mistake,” 
an oversight no more remarkable than the $20 multiplication 
error the majority discovered in the district court’s very same 
calculation.



56a

lar computation is instructed. Each judge has “broad 
latitude”  to choose from a range of rates, concepts, 
and approaches, running from the simple to the com­
pound, so long as the court’s sizable discretion is not 
“ abused.” See Majority opinion note 22. Murray's 
effort to accommodate, not overturn, decisional lines, 
to promote “ [e]ase of administration,” and, most of 
all, to “ simplify the task of the district court,”  Mur­
ray, slip op. at 18, has been undermined by today’s 
decision.14

For the reasons stated, I would return this case to 
the district court with a direction to follow to the 
letter the delay in payment analysis and instructions 
set out in Murray v. Weinberger.

14 In preferring the complex to the simple in styling a solu­
tion to a case so modestly presented by the parties, and in 
precipitating an apparent circuit split, see Arvin v. United 
States, supra p. 8, the court has once again shown that ours 
is “a profession that prides itself on not throwing chaos lightly 
to the winds.” Traynor, Comment on Courts and Lawmaking, 
in L e g a l  I n s t it u t io n s  T o d a y  a n d  T o m o r r o w  48, 56 (M. 
Paulsen ed. 1959).



57a

APPENDIX B

UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA

Civil Action No. 79-0325 

T o m m y  Sh a w , pla in tiff  

v.

L ibrary  of Congress, et a l ., defendants

[Filed Nov. 4, 1981]

MEMORANDUM

This matter is before the Court on the application 
of one of the prevailing plaintiff’s attorneys, Shalon 
Ralph, Esq., for “ a reasonable attorney’s fee”  pursu­
ant to Title VII of the Civil Rights Act. 42 U.S.C. 
§§ 2000e-5(K) and 2000e-16(d). See Memorandum 
filed September 14, 1979.

A.
A summary account of the controversy is necessary 

to frame the issues. In October 1976, plaintiff, a 
GS-13 Personnel Psychologist at the Library of Con­
gress, filed an informal complaint of discrimination 
based on race. He claimed, among other things, that 
the Library had not validated and corrected allegedly 
discriminatory job selection criteria. He filed two



58a

other complaints, one in November 1976, and the 
other on January 18, 1977. In April 1977, Library 
officials began investigation of the complaint and re­
jected it on January 6, 1978. On January 7, 1978, 
plaintiff appealed and on January 16, 1978, engaged 
Mr. Ralph as his attorney. After briefly exploring 
the advisability of pursuing plaintiff’s claim as a 
class action, Mr. Ralph elected to seek administrative 
relief. To this end he prepared and submitted exten­
sive document requests on February 28, 1978 to Li­
brary officials, and engaged in conferences with them 
about his document request and his further request 
for an opportunity to interview witnesses. Library 
officials rebuffed these requests and scheduled the 
matter for administrative hearing on June 6, 1981, 
without apparently affording plaintiff any discovery. 
Mr. Ralph refused to attend a hearing under those 
circumstances, whereupon a Library official, in effect, 
dismissed plaintiff’s administrative claim for failure 
to prosecute. Plaintiff, through his attorney, appealed 
to the Deputy Librarian who, on June 1, 1978, over­
ruled the subordinate official’s decision dismissing the 
claim. Beginning at about that time, Mr. Ralph and 
Library officials began negotiations which culminated 
on about August 16, 1978, in what should have been 
a final settlement of the dispute. That agreement, 
more fully described in this Court’s Memorandum of 
September 14, 1979, contemplated, in plaintiff’s view, 
that the Library would promote him to GS-14 and if 
the Comptroller General determined that the Library 
could do so legally, the Library would award plain­
tiff back pay as a GS-14 from January 18, 1977. In 
addition, the settlement agreement obligated the Li­
brary to take some remedial actions for the benefit of 
employees other than plaintiff, i.e., “ to continue its



59a

good faith effort to validate its employee selection 
procedures to the extent required by law as expedi­
tiously as possible within its available resources and 
personnel, to involve plaintiff in this validation proc­
ess, and to assign two professional staff members to 
assist him.”

The settlement agreement did not, however, end 
Mr. Ralph’s responsibility. A time-consuming dis­
pute developed which he might reasonably have fore­
seen and avoided, but which he did not cause and 
about which he ultimately prevailed. Instead of ask­
ing the Comptroller General the general question of 
whether “ the Library may grant . . . retroactive pro­
motion and back pay under the facts of this case,”  
(Memorandum of September 14, 1979, p. 2 ), the Li­
brary asked the Comptroller General narrower ques­
tions of whether the Back Pay Act, 5 U.S.C. § 5596 
authorized such a payment. The Library failed to 
ask the Comptroller General whether Title VII au­
thorized the retroactive payment. On November 2, 
1978, the Comptroller General answered in the nega­
tive the narrower question asked about whether the 
Back Pay Act authorized a retroactive payment to 
plaintiff, but said he would express no opinion about 
whether Title VII authorized such a payment here. 
Thereafter in 1978, Mr. Ralph engaged in further 
exchange with Library officials and with representa­
tives of the Comptroller General’s office. By letter 
dated November 30, 1978, the Library advised plain­
tiff that Library regulation and the Comptroller 
General’s ruling barred any retroactive pay for plain­
tiff. In a January 4, 1979 letter, the Library finally 
ended Mr. Ralph’s administrative effort to establish 
plaintiff’s right to back pay on the authority of Title 
VII. Mr. Ralph apparently recognized that litigating



60a

to enforce the agreement was beyond his capacity, 
and the plaintiff was able to engage Hogan & Hart- 
son,.

With some- assistance from Mr. Ralph on February 
7, 1979, Hogan and Hartson filed a complaint, in ef­
fect, to require the Library to honor the agreement, 
as plaintiff and Mr. Ralph understood it. On Sep­
tember 14, 1979, this Court granted a motion for 
summary judgment, filed and prosecuted by Hogan 
and Hartson, vindicating plaintiff’s claim for back 
pay. The order granting that motion provided for the 
award of “ reasonable attorney’s fees and other litiga­
tion costs reasonably incurred pursuant to 42 U.S.C. 
§ 2000e-5(k), the precise amount of such fees and 
costs to be determined after further proceedings and 
a decision by our Court of Appeals en banc in Cope­
land v. Marshall.”

Thereafter, on May 11, 1981, Mr. Ralph filed the 
motion now before the Court for an award of attor­
ney’s fees in the amount of $8,818.75 and costs in 
the amount of $47.50. He supported his motion by a 
memorandum of points and authorities, his resume, 
a chronological log accounting in some detail for the 
expenditure of 103.75 hours of attorney time between 
January 16, 1978, when plaintiff retained him and 
May 7, 1981, when he filed the motion at issue here.1 
Mr. Ralph also filed as exhibits to his motion his 
February 28, 1978 administrative discovery request 
and his December 18, 1978 letter to the Library urg­
ing retroactive back pay for plaintiff because of (or 
despite ) the Comptroller General’s ruling.

On June 11, 1981, defendant filed a Memorandum 
in Opposition (Opp.) to plaintiff’s motion supported

1 Some time was charged to preparing the fee motion.



61a

by a brief affidavit of its general counsel. The memo­
randum suggested that Mr. Ralph spent substantial 
time exploring a class action suit, aborted the idea, 
and then entered into the August 30 agreement. See 
Opp. at pg. 2, lines 2-6. The general counsel’s affi­
davit generally corroborated Mr. Ralph’s account of 
the time spent in communication with affiant, but 
stated the opinion that:

“ Mr. Ralph’s time at these conferences leading 
to the settlement agreement of August 16, 1978 
. . . was not productively spent. His arguments 
and proposals on behalf of his client generally 
retrod old ground and offered no positive resolu­
tions. Rather, it was the Library through Mr. 
Robert Hutchinson’s and my efforts, that devel­
oped the approaches that lead to eventual settle­
ment.”

Defendant also filed some documents evidencing the 
rates charged by a number of local lawyers handling 
matters similar to this one.

On June 23, 1981, Mr. Ralph responded to defend­
ant’s Opposition and on September 11, 1981, at the 
Court’s request, he submitted a supplemental affidavit 
about the time he spent exploring the aborted class 
action idea.

B.
Copeland v. Marshall, 641 F.2d 880 (D.C. Cir. 

1980) contemplates that the Court first establish a 
lodestar of time and rate, and adjust from that to 
account for such things as the quality of counsel’s 
service and any special risks such as contingency of 
counsel’s access to compensation and the cost of delay 
in payment. Some consideration of benefit to a larger 
group or to the public interest, transcending plain­



62a

tiff’s narrower personal gain or relief, is in order 
under Copeland. However, as defendant emphasized:

“ [N ]o  compensation should be paid for time 
spent litigating claims upon which the party 
seeking the fee did not ultimately prevail.”

Copeland v. Marshall, 641 F.2d at 892.

A. The Lodestar

1. Hours

From the presentation of the facts and the Cope­
land principles governing decision, it is apparent that 
it is not necessary to tarry long on either the accu­
racy of Mr. Ralph’s claim that he spent 103.75 hours 
or that his client prevailed. Defendant “ does not 
doubt that the gross or raw number of hours that 
[Mr. Ralph] spent on this litigation involved approx­
imately that number of hours.”  Opp. at p. 4. Indeed, 
it appears that he has not included some of the time 
he has consumed in an effort to overcome defendant’s 
opposition to his fee application. 2

2. Hours Attributable to Issues on Which 
Plaintiff Prevailed

Nor is there any question about which party pre­
vailed and who achieved it. Plaintiff got nowhere 
until he retained Mr. Ralph. While he was represent­
ing plaintiff, the case received the attention of the 
Library’s General Counsel and its Director of Per­
sonnel, who fashioned an agreement after plaintiff’s 
attorney pressed them. The resulting agreement gave 
plaintiff a promotion and what proved to be a legal 
right to retroactive back pay. The improvement of 
validation procedures undertaken by the Library in



63a

the settlement agreement with plaintiff purportedly 
benefited other employees.

It is to Mr. Ralph’s credit that he recognized his 
limitations and handed over responsibility for en­
forcement of the agreement to strong, experienced 
litigating counsel. It takes one degree of skill and 
stamina to precipitate and negotiate a dispute settle­
ment with the government and another to force the 
government to turn square corners in the execution 
of such an agreement.2 Plaintiff not only prevailed 
in the ensuing litigation, but Mr. Ralph’s records in­
dicate that he spent a minimal fourteen hours in­
forming Hogan and Hartson of his own experience 
with the case, assisting with discovery responses, 
and acting as interface between plaintiff and trial 
counsel. In any event, Mr. Ralph is entitled to com­
pensation for work on the administrative phase be­
cause plaintiff prevailed there and for assisting 
Hogan and Hartson who also prevailed. Additional 
legal service, for which plaintiff was not compensated, 
was required to construe and enforce the agreement 
arrived at in the administrative phase.

Defendant puts great emphasis on counsel’s con­
sideration of a class action. Concerned that this con­
sideration might have consumed an unreasonable 
amount of time, the Court required Mr. Ralph to sup­
plement his time records with an affidavit which he 
filed September 11, 1981. Together, they establish, 
without contradiction by defendant, that plaintiff 
spent a total of 4.75 hours “ researching and investi- 2

2 “ It is very well to say that those who deal with the Gov­
ernment should turn square corners. But there is no reason 
why the square corners should constitute a one-way street.” 
Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 387-88 (1947) 
(Jackson, J., dissenting).



64a

gating the . . . matter of a class action”  and, he added 
with commendable candor: “ I concluded that a class 
action was not advisable, and therefore devoted no 
further time to it.”  Although plaintiff did not pursue 
a class action, his investigation may not have been 
entirely fruitless because the ultimate agreement 
made provision for validation for other employees 
which might have been a by-product of plaintiff’s at­
torney’s consideration of a class action. Nonetheless, 
the Court concludes that consideration of the class 
action possibilities was pursuit of an issue on which 
plaintiff did not prevail. Accordingly, the Court finds 
that 4.75 hours should be subtracted from the hours 
element of the lodestar reducing them from 103.75 
to 99.

3. Hourly Rate

Mr. Ralph seeks compensation at the rate of $85 
per hour. His engagement with plaintiff was “par­
tially contingent.” Plaintiff previously paid him $30 
per hour for his time, regardless of the result. Re­
sponse to Defendant’s Opposition, p. 4 (Response). 
Mr. Ralph represents that this rate was lower than 
“ that which would be reasonable if counsel had no 
expectation of receiving a higher hourly rate upon 
settlement or judgment.”  Memorandum of Points 
and Authorities in Support of Plaintiff’s Motion for 
Attorney’s Fees (Plaintiff’s Memorandum, p. 5.) He 
indicates, however, that he has no customary fee 
which would be germane to a determination of a 
reasonable rate. He points instead to fee awards by 
other judges which range from $65 to $125 per hour 
for cases of this nature. He points specifically to a 
$75 per hour fee awarded by Judge Richey for work 
performed in 1977 and an $85 per hour award by



65a

him for work performed in 1978. Counsel argues 
that if these rates were appropriate for Title VII 
representation in those years, inflation considerations 
justify his rate of $85 per hour for work in 1978

With respect to an hourly rate, defendant empha­
sizes that in the absence of any other evidence of a 
rate, the $30 per hour minimum agreed upon is an 
important factor to be considered. In addition, de­
fendant points to the $75 per hour ceiling established 
by the Equal Access to Justice Act which became ef­
fective in 1981 reflecting a considered opinion by 
Congress of a reasonable fee. Defendant also cites 
the fee range of $45 to $60 per hour paid by the 
Department of Justice for representation by private 
counsel.3

Finally, defendant filed and thereby invited the 
Court’s attention to rates stated by attorneys who 
have held themselves out in the 1979-1980 Lawyers 
Directory of the District of Columbia Bar as avail­
able to represent clients with employment discrimina­
tion claims. These quoted rates in the range of $50 
to $80 per hour are subject frequently to adjustment 
to reflect the client’s ability to pay, contingency and 
similar considerations.

In response, Mr. Ralph cites Judge Aubrey Robin­
son’s recent award in a case outside the field of em­
ployment discrimination: $125 per hour for very 
experienced attorneys with more than 20-years ex­
perience, $65 to $110 per hour for experienced at­
torneys, and $65 per hour for inexperienced ones. 
North Slope Borough v. Andrus, 515 F.Supp. 961 
(D.D.C. 1981). Response p. 5.

3 Such Department of Justice engagements, of course, have 
a special prestige value to attorneys.



66a

Mr. Ralph’s resume reflects that he is now 74- 
years old and graduated from the University of 
Pennsylvaia Law School in 1905 [sic]. His affidavit 
and resume account for his career since he entered 
private practice in 1933, include a number of law- 
related assignments while in military service and 
eight years as an attorney with the Foreign Claims 
Settlement Commission. Since his retirement in 
1974, he claims to have represented 15 clients who 
alleged employment discrimination. He was one of 
the original members of the Employment Discrimina­
tion Complaint Service of the District of Columbia 
Bar. On this record, the Court is persuaded that al­
though he has long experience, it is not sufficiently 
focused to establish him as very experienced as that 
term was used by Judge Robinson, at least in civil 
rights matters.

Out o f all this welter of information about rates, 
the Court concludes that counsel is entitled to a lode­
star rate of $85 per hour. As a result, the Court cal­
culates the lodestar fee to be 99 hours at $85 per 
hour or $8,435.

B. Adjustment to Lodestar

Copeland contemplates a number of possible ad­
justments to the lodestar calculation, e.g., quality of 
representation, contingency, and delay in payment. 
Other factors identified in Copeland have no appar­
ent relevance here. The relevant considerations will 
be briefly discussed.

1. Quality of Representation. It is apparent from 
the entire record including, but not limited to, the 
observation of defendant’s general counsel, that Mr. 
Ralph displayed no outstanding skill in the adminis­
trative phase or in effecting the settlement. For ex­



67a

ample, he asserts that defendant obstructed his effort 
to make discovery. But his letter of February 28, 
1978 exposes the fact that his discovery request was 
much too broad, quite unfocused, and virtually im­
possible to honor. The request reflects an inadequate 
sense of relevance and was plainly a disservice to his 
client. On another level, it is no credit to the Library 
that they dealt in the way they did with its obliga­
tion under the settlement agreement to inquire o f the 
Comptroller General. But more astute counsel would 
have detected and closed unequivocally the loophole 
which defendant claimed to find in the agreement, 
and would have participated earlier and more ag­
gressively in the presentation of the problem to the 
Comptroller General. Had Mr. Ralph measured up 
fully to his responsibility, Hogan and Hartson, the 
Department of Justice, and this Court might have 
been spared the task of resolving in litigation the 
extra dispute which ensued. While the Court is not 
able to measure an appropriate adjustment in terms 
of hours or rates per hour, a percentage adjustment 
of the lodestar is plainly in order. The Court con­
cludes that on a scale of 100, Mr. Ralph was not 
more than 80% as efficient and astute1 as a lawyer 
of his chronological experience could reasonably be 
expected to be. Accordingly, the Court will reduce 
the lodestar fee by 20% to reflect deficiencies in the 
quality of service.

2. Contingency. Mr. Ralph’s $80 per hour re­
tainer partially compensated him for the risk he un­
dertook that plaintiff would not prevail. He was as­
sured of a substantial fee, win, lose, or draw. He 
nevertheless requests an adjustment in an unspeci­
fied amount to account for the contingency. He was 
unable to quantify the adjustment which he sought



68a

and supplied no precedent or other criteria to guide 
the Court, In the absence of such guidance, the 
Court is persuaded that the partial retainer obviates 
the justification for a contingency adjustment.

3. Delay. Adjustment for delay is another mat­
ter. This case should have ended in August 1978, or 
at the latest in November of that year. I f Mr. Ralph 
had been compensated at about that time, he could 
have invested the money at an average yield o f not 
less than 10% per year. It is the fault of neither 
plaintiff nor Mr. Ralph that payment was not made 
sooner.4 It is reasonable to assume that if  payment 
is made promptly, counsel will receive his reimburse­
ment by December 1, 1981. Accordingly, the accom­
panying order reflects an upward adjustment of 
30% for delay.

Thus, counsel is entitled to a lodestar fee of 
$8,435 plus a net adjustment upward of 10% or 
$9,278.50 plus $47.50 in costs.

*  *  *  * *

There remains a question arising from the fact 
that although the Court has determined that Mr. 
Ralph is entitled to a fee of $9,278.50, his client has 
already paid him $30 per hour for his services or, 
presumably, a total of $3,100. It is plain from the 
statute that the defendant’s obligation to1 pay a fee 
in circumstances like these is not reduced by the fact 
that plaintiff has previously paid one. But the de­
fendant’s obligation is to pay counsel a reasonable 
fee, not a second fee, or a windfall. Accordingly, the 
accompanying order will require that Mr. Ralph 
credit or reimburse plaintiffs for the fees previously

4 Even though Copeland was unresolved at the time, defend­
ant could have tendered partial payment sooner.



69a

paid, and furnish the Clerk of the Court and the 
defendant with a certificate evidencing such credit 
or payment within 30 days after he receives pay­
ment.

/&/ Louis F. Oberdorfer
United States District Judge

November 4, 1981



70a

Civil Action No. 79-0325

T o m m y  Sh a w , pla in tif f

v.

L ibrary  of Congress, et a l ., defendants 

[Filed Nov. 4, 1981]

A P P E N D I X  C

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ORDER AND JUDGMENT
For reasons more fully stated in the accompany­

ing Memorandum, it is this 4th day of November, 
1981 hereby

ORDERED: That JUDGMENT is entered for 
plaintiff, in the amount of Nine Thousand Three 
Hundred Twenty-Six Dollars ($9,326) plus costs; 
and it is further

Ordered: That Shalon Ralph, Esq. shall, within 
thirty (30) days after receipt of any payment from 
the proceeds of the judgment, serve on defendant and 
file with the Clerk of this Court a certificate that 
he has credited or reimbursed plaintiff for fees here­
tofore paid to him by plaintiff for services which are 
the subject of this judgment.

/ s /  Louis F. Oberdorfer
United States District Judge



71a

September Term, 1984

A P P E N D I X  D

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Civil Action 79-00325 

No. 82-1019 

T om m y  Sh a w

v.

L ibrary  of Congress, et a l ., a ppe lla n ts

Appeal from the United States District Court 
for the District of Columbia

Before: R obinson , Chief Judge; W ald and Gin s - 
BURG, Circuit Judges

[Filed Nov. 6, 1984]

JUDGMENT

THIS CAUSE came on to be heard on the record 
on appeal from the United States District Court for 
the District of Columbia, and was argued by counsel.



72a

ON CONSIDERATION THEREOF It is ordered 
and adjudged by this Court that the order of the 
District Court appealed from in this cause is hereby 
affirmed, and this case is remanded to the District 
Court solely in order that the Court may confirm that 
Shaw’s counsel is not being paid twice for the delay 
he experienced, all in accordance with the Opinion 
for the Court filed herein this date.

Per Curiam 
F or th e  Court :

/ s /  George A. Fisher 
George A . F isher 
Clerk

Date: November 6, 1984
Opinion for the Court filed by Chief Judge Robinson. 
Dissenting Opinion filed by Circuit Judge Ginsburg.



73a

A P P E N D I X  E

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 1984 

No. 82-1019 

T o m m y  Sh a w

v.

L ibrary of Congress, et a l ., appellants

[Filed Feb. 20, 1985]

Before: Robinson , Chief Judge, W ald and Gxns- 
burg, Circuit Judges

ORDER
Opon consideration of appellants’ petition for re­

hearing, filed December 20, 1984, it is
ORDERED, by the Court, that the aforesaid peti­

tion is denied.
Per Curiam

For the Court 
George A . F isher

By: / s /  Robert A. Bonner
Robert A . Bonner  
Chief Deputy Clerk



74a

September Term, 1984

A P P E N D I X  F

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 82-1019 

T o m m y  Sh a w

v.

L ibrary  of Congress, et  a l ., a ppe lla n ts

Before: R obin son , Chief Judge, W r ig h t , T a m m , 
W ald , M ik v a , E dw ards, G insburg , B o r k , 
Scalia  and Starr , Circuit Judges

[Filed Feb. 20, 1985]

ORDER
Appellants’ Suggestion for Rehearing en banc, 

filed December 20, 1984, has been circulated to the 
full court and the majority of the Judges in regular 
active service have not voted in favor thereof. On 
consideration of the foregoing, it is

* Judges Ginsburg, Bork, Scalia and Starr would grant the 
Suggestion for Rehearing en banc.



75a

ORDERED, by the Court en banc, that the afore­
said Suggestion is denied.

Per Curiam 
For the Court:

George A . F isher 
Clerk

By: / s /  Robert A . Bonner 
Robert A . B onner  
Chief Deputy Clerk

☆  U. 9 .  GOVERNMENT PRINTING OfFICE: 9 8 5 4 6 1 5 3 1 0 2 4 9