Library of Congress v. Shaw Brief for the Petitioners

    Jn %  (tnnxt at %  Mrnteh l̂ tatea
October Te rm , 1985

L ibrary  of Congress, et a l ., petitioners

v.

T om m y  Sh a w

ON WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE PETITIONERS

Charles Fried 
Solicitor General

Richard K. W illard 
Assistant Attorney General

Kenneth S. Geller 
Deputy Solicitor General

Charles A. Rgthfeld 
Assistant to the Solicitor General 
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 fed­
eral government liable to prevailing Title VII plain­
tiffs for attorneys’ fees, waives sovereign immunity 
so as to permit the recovery of interest on attorneys’ 
fee awards.

(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
Page

Opinions below ...................... ......................... ................. .. 1

Jurisdiction .................... .............................................. ..........  1
Statutes involved ......................... ............... ........................  2
Statement ............................ ............. ..................... ..............  2
Summary of argument............................................... .......... 7

Argument :i
Congress has not waived the government’s sov­
ereign immunity from interest on awards of at­
torneys’ fees under Title VII of the Civil Rights
Act of 1964 ..... ........ .....................................................  10
A. Interest may be recovered from the government

only when such interest awards have been af­
firmatively and expressly authorized by Con­
gress ........... - ............................ ..................... - ........ 11

B. 42 U.S.C. 2000e-5 (k) does not waive the “ no-
interest rule” ............................ ..............................  17

C. 42 U.S.C. 2000e-5(k) may not be read to au­
thorize delay adjustments of any sort to fee 
awards ............. ................................... ....................  26

Conclusion .......... ................. ................... .............. ............ . 29

TABLE OF AUTHORITIES
Cases:

Albrecht V. United States, 329 U.S. 599 ....................  13,14
Arvin V. United States, 742 F.2d 1301 ........... .......16, 22, 25
Blake V. Califwho, 626 F.2d 891..... 14, 15,18,19, 20, 21, 27
Boston Sand Co. V. United States, 278 U.S. 41..... 11, 14,16
Canadian Aviator Ltd. V. United States, 324 U.S.

215 __________ _________ _______ ____ _______ -..... 17
Christiansburg Garment Co. V. EEOC, 434 U.S.

412 .... ....................... ......... ................ ............. ..........  19,20
Cherokee Nation V. United States, 270 U.S. 476.......  14

(III)



Cases— Continued:
IV

Page

Copeland V. Marshall, 841 F.2d 880:....................3, 4, 25, 28
Copper Liquor, Inc. v. Adolph Coors Co., 701 F.2d

542 ................. ................................................ ............  23
deWeever v. United States, 618 F.2d 685 __________  21
District of Columbia V. Johnson, 165 U.S. 330 ........ 14
Fischer V. Adams, 572 F.2d 406 .................. ..............  21
General Motors Corp. v. Devex Corp. 461 U.S. 648.. 23
Gordon v. United States, 74 U.S. (7 Wall.) 188.......  14
Holly V. Chasen, 639 F.2d 795, cert, denied, 454

U.S. 822 .... .......... ................ ..................................13,15, 22
Indian Towing Co. v. United States, 350 U.S. 61.....  17
Johnson V. University College of the University of 

Alabama, 706 F.2d 1205, cert, denied, 464 U.S.
994 ....... ........... ........................................ ..................  28

Knights of the Ku Klux Klan v. East Baton Rouge
Parish School Board, 735 F.2d 895 ___ .________ 16, 25

Lehmany. Nakshian, 453 U.S. 156..... ......11, 15, 20, 22, 23
McMahon V. United States, 342 U.S. 25_____ ____  11
Murray V. Weinberger, 741 F.2d 1423 ............ .......... 6, 28
National Ass’n of Concerned Veterans V. Secretary

of Defense, 675 F.2d 1319______ _____________ 28
Peoria Tribe V. United States, 390 U.S. 468 ...........  13-14
Perkins V. Standard Oil, 487 F.2d 672 _______ ____  23
Ramos v. Lamm, 713 F.2d 546 .......... ............. ...........  28
Richerson V. Jones, 551 F.2d 918 ........... ................... 21
Rodgers v. United States, 332 U.S. 371 ...................  23
Rosenman V. United States, 323 U.S. 658 ....... ........ 14
Ruckelshaus V. Sierra Club, 463 U.S. 680    ..... . 23
Saunders V. Claytor, 629 F.2d 596, cert, denied, 450 

U.S. 980 ............................................ ............ ........ 21, 27
Segary. Smith, 738 F.2d 1249, cert, denied, No. 84-

1200 (May 20, 1985) ................. .............................. 21
Sheckels V. District of Columbia, 246 U.S. 338 ____ 14
Sherman v. United States, 98 U.S. 565 ................10,12, 14
Smyth V. United States, 302 U.S. 329 ..................... 7,13
Soriano V. United States, 352, U.S. 270 ...... ...............  11
Standard Oil Co. V. United States, 267 U.S. 76.... . 17
The Scotland, 118 U.S. 507 ______ _________ _____ 16
Tillson V. United States, 100 U.S. 4 3 ..... ............ ..12,14,15
United States V. Alcea Band of Tillamooks, 341 U.S.

48 ............................................. ................... .....12,13,14,15



United States V. Commonwealth & Dominion Line,
Ltd., 278 U.S, 427 ........................... ........._........._..... 14

United States v. Delaware Tribe of Indians, 427
F.2d 1218______ __ ______ ____ ______ ____ .____ .... 27

United States V. Goltra, 312 U.S. 203 ___ ___ _____  14,15
United States V. King, 395 U.S. 1 .............................. 15
United States V. Louisiana, 446 U.S. 253  ..... ......7,13,15
United States v. Mescalero Apache Tribe, 518 F.2d

1309, cert, denied, 425 U.S. 911 ........ ................ . 18, 27
United States V. North Carolina, 136 U.S. 2 11 .......  14
United States V. North American Co., 253 U.S. 330.. 14,15,

18, 27
United States v. N.Y. Rayon Importing Co., 329

U.S. 654 ........ ...................... ...................... ......... ...... 13, 14
United States V. Rogers, 255 U.S. 163____________  14
United States V. Sherwood, 312 U.S. 584_________  11
United States V. Testan, 424 U.S, 392 ....... .......... 11
United States v. Thayer-West Point Hotel Co., 329

U.S. 585 __________ ___ ____ ________ __________ _ 14
United States v. Verdier, 164 U.S. 213 ............  15
United States V. Worley, 281 U.S. 339 ..... ............ . 14,17
United States v. Yellow Cab Co., 340 U.S. 543  ......  ’ 17
United States ex rel. Angarica v. Bayard, 127 U S 

251 ....... ..................... ............ ....................... ...........  13

Constitution, statutes and regulations :
U.S. Const. Amend. V (Just Compensation Clause).. 13
Act of May 15, 1922, ch. 192, 42 Stat. 1590 .......... 16
Age Discrimination in Employment Act, 29 U.S.C.

633a ..... .................................................... .................  45  ̂23
Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. ’ 3

42 U.S.C. 2000e-5 (g) ......................... ................. 21
42 U.S.C. 2000e-5(k) ..... ....................................passim
42 U.S.C. 2000e-16 (d) ........................................2, 3, 20

Court o f Claims Act of 1863, ch. 92, § 7, 12 Stat.
766 -------------  --------_______________ 7,13

Equal Access to Justice Act:
28 U.S.C. 2412 (b)  ....... ................... ........ 9,16, 24
28 U.S.C. 2412(d) ........ .............. ................... 24

V
Cases— Continued: Page



VI

Constitution, statutes and regulations— Continued: Page

Equal Employment Opportunity Act of 1972, Pub.
L. No. 92-261, 86 Stat. 103 et seq______ ________ 19

War Risk Insurance Act of 1914, eh. 293, 38 Stat.
711 et seq............ ............... .......— ---------- ------------  17

15 U.S.C. 15 _______________ ___________ __ ______  23
26 U.S.C. 7426 (g) _____________________. . . - ......... . 22
28 U.S.C. 1961 (c) (2) _______ ___ ______________ ___  22
28 U.S.C. 2411 ........... ............................................... ..... 22
28 U.S.C. 2516 (a) .................... ................. ...........7,13, 14, 22
28 U.S.C. 2516 (b) _____ ___________ _____________  22
31 U.S.C. 1304(b) (1) (A ) ______     22,24
31 U.S.C. 1304(b) (1) (B) ............        22
31 U.S.C. 3728(c) ____ __ ____ ___ __ ________ ____  22
40 U.S.C. 258a_______________ ____ ___ _______ __ -  22
Pub. L. No. 88-352, § 706 (k ) , 78 Stat. 261 ............... . 19
Pub. L. No. 99-80, 99 Stat. 183 et seq.:

§ 2 (e ), 99 Stat. 185-186 .................. ......„ „ ........ 24
§ 6, 99 Stat. 186 ________________ ________ ____  24

Miscellaneous:
H.R. Rep. 98-992, 98th Cong., 2d Sess. (1984) .......  24
H.R. Rep. 99-120, 99th Cong., 1st Sess. (1985) ____  24
Letter from the Comptroller General to Senator

Thurmond, B-40342.4 (Oct. 5, 1984) ___________ 24
1 Op. Atty. Gen.:

p. 268 (1819) _____________ _________ ___ ___  7,12
p. 722 (1825) ____________ __________ _ ___ 12

2 Op. Atty. Gen.:
p. 390 (1830) _______________ ________ ______  12
p. 463 (1831) .......... ................................... ...... 12

3 Op. Atty. Gen. 635 (1841) .... .................................. 12
4 Op. Atty. Gen.:

p. 14 (1842) ..................................................... 12
p. 136 (1842) ______________ _______________  12, 25
p. 286 (1843) ............................ .............. ............  12

5 Op. Atty. Gen.:
p. 138 (1849) ....... ....... .................... .....................  12
p. 227 (1850) ...... ............................................... 12

7 Op. Atty. Gen. 523 (1855) _________ _______ ___ 12



VII

Miscellaneous—Continued: Page

Staff of the Subcomm. on Labor of the Senate 
Comm, on Labor and Public Welfare, 92d Cong.,
1st Sess., Legislative History of the Equal Em­
ployment Opportunity Act of 1972 (Comm. Print
1972) ..................................................................... 19

20 Weekly Comp. Pres. Doc. 1814 (Nov. 8, 1984).... 24



Kn %  Bupmm (tort uf %  Initrii ^tatrs
October T erm , 1985

No. 85-54

L ibrary of Congress, et a l ., petitioners

v.

T om m y  Sh a w

ON WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE PETITIONERS

OPINIONS BELOW

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

JURISDICTION

The judgment of the court of appeals (Pet. App. 
71a,-72a) was entered on November 6, 1984; an order 
denying rehearing (Pet. App. 73a-75a) was entered 
on February 20, 1985. On May 8, 1985, the Chief

(1)



2

Justice extended the time within which to file a peti­
tion 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 peti­
tion was filed on that date and was granted on Oc­
tober 7, 1985. The jurisdiction of this Court is in­
voked under 28 U.S.C. 1254(1).

STATUTES 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 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.

42 U.S.C. 2000e-16(d) provides:
The provisions of section 2000e-5(f) through 

(k) of this title, as applicable, shall govern civil 
actions brought hereunder.

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 tô  award respondent back pay and 
to take certain other remedial measures. Pet. App. 
2a-3a. Shortly afterwards, however, upon the advice 
of the Comptroller General, the Library informed re­
spondent that it lacked the authority to provide such



3

relief absent a specific finding of racial discrimina­
tion (id. at 3a & n.7). Respondent then brought suit, 
arguing that Title VII of the Civil Rights Act of 
1964, as amended by the Equal Employment Oppor­
tunity Act of 1972 , Tit. VII, 42 U.S.C. 2000e et seq. 
(Title V II), authorized the Library to accord the 
relief specified in the settlement agreement (Pet. 
App. 3a-4a).

On September 14, 1979, the United States District 
Court for the District of Columbia ruled in respon­
dent’s favor on the merits (see Pet. App. 4a). The 
court accordingly held (see ibid.) that respondent’s 
attorney1 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 prevailing 
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).2 But the district court declined to set 
the fee award pending a decision by the en banc Dis­
trict 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

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 during 
the district court proceedings (Pet. App. 4a n.13). The fee 
claims of respondent’s other counsel have been settled (ibid.). 
References to “ respondent’s attorney”  in this brief therefore 
are directed only at Ralph.

2 Section 2000e-5 (k) is made applicable to federal agency 
defendants by 42 U.S.C. 2000e-16(d), which provides that 
“ [t]he provisions of section 2000e-5(f) through (k) of this 
title, as applicable, shall govern civil actions brought” against 
government employers under Title VII. See pages 19-20, infra.



4

Pet. App. 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 Pet. App. 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 
case should have ended in August 1978, or at the 
latest in November of that year. If [respondent’s at­
torney] 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). Be­
cause 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 Congress 
in Section 2000e-5(k) had not authorized the award 
of interest against the United States, and that the 
30% delay adjustment accordingly was improper. 
The panel majority acknowledged that the delay ad­
justment was interest because it “was designed to 
reimburse [respondent’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” (Pet. App. 
11a (footnote om itted)); see id. at 12a~13a & n. 11). 
And the court acknowledged the force of the so-called



5

“no-interest rule”— that the United States may not 
be held liable for interest in the absence of an ex­
press 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 lan­
guage.”  Pet. App. 15a. The court also based its hold­
ing on what it termed an alternative ground: that 
“ the traditional rigor of the sovereign-immunity doc­
trine [is relaxed] when a statute measures the lia­
bility of the United States by that of private persons” 
(id. at 24a).8

s Although the court of appeals thus held that attorneys may 
be awarded interest under Section 2000e-5 (k ) , it nonetheless 
remanded the case to the district court for further proceed­
ings. In the majority’s view, “ a delay-in-payment adjustment 
[is] appropriate only where the lodestar is the per-hour 
charge to clients who pay when billed” (Pet. App. 8a, n.28). 
The court suggested, however, that a lodestar may “ repre­
sent [] 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 resulting 
from the lengthy wait for payment ordinarily encountered un­
der such statutes” (ibid.). In such circumstances, the panel con­
cluded, “ 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 lodestar had been based on a rate 
that “ has already taken into account the pecuniary disadvan­
tage 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 appeals also noted that, following oral



6

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 his­
tory so much as adverts to an intent to overcome the 
“no-interest rule” (Pet. App. 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 their clients 
(id. at 42a-44a). She therefore concluded that Con­
gress could not “  ‘plainly’ [have] resolved an im­
munity waiver issue never even framed in the course 
of its deliberations” (id. at 41a) .* 4

argument in the case, it had ordered the government to pay 
the undisputed portion of the attorney’s fee (id. at 6a n.24) ; 
that payment has since been made.

4 Although Judge Ginsburg thus found no justification in 
the statute for an award of interest against the United States, 
she suggested that Murray v. Weinberger, 741 F.2d 1423 (D.C. 
Cir. 1984), compelled the conclusion that there is a meaningful 
distinction between “ interest” and an “ adjustment for delay 
in receipt of payment” (Pet. App. 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 
anticipates payment ultimately, but not promptly, may factor 
in the expected delay”  (id. at 38a-39a). Judge Ginsburg 
therefore 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 reim­
bursement 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 receipt of fees, however, Judge Ginsburg in an 
“ appropriate” case would permit the district court to use



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

SUMMARY OF ARGUMENT

1. From the earliest reported treatment of the 
issue, it has been the law that interest may not be 
awarded on claims against the United States unless 
Congress affirmatively considered the interest ques­
tion and unambiguously expressed its intention that 
interest should be available. That principle already 
was well-established in the executive agencies in 1819 
(see 1 Op. Atty. Gen. 268 (1819)), and it was ac­
knowledged by Congress itself at the time of the crea­
tion of the Court of Claims. See Court of Claims Act 
o f 1863, ch. 92, § 7, 12 Stat. 766 (current version at 
28 U.S.C. 2516(a )). Since that time, the “no-interest 
rule” has been repeatedly propounded by this Court: 
“ in the absence of specific provision by contract or 
statute, or ‘express consent . . .  by Congress,’ in­
terest 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).

This rule has been applied with essentially unmiti­
gated rigor. This and other courts, for example, have 
held interest unavailable against the United States 
under statutory language that regularly is used to 
make private defendants liable for interest. Simi­
larly, the United States cannot be ordered to pay 
interest under the authority of statutory provisions

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.



8

awarding “ just compensation”— even though “ just 
compensation”  for constitutional purposes has long 
been understood to include an interest component. 
And the courts have held that statutes basing the 
liability of the government upon that of private par­
ties may not be read to authorize interest awards.

2. The court of appeals’ analysis cannot be squared 
with this settled law. 42 U.S.C. 2000e-5(k) makes no 
reference to interest, express or otherwise. And an 
examination of the provision’s legislative history in­
dicates that the availability of interest never even 
was framed in the course of Congress’s deliberations, 
let alone addressed and resolved. Indeed, the specific 
language relied upon by the court of appeals— the 
“ same as, a private person” proviso*— was placed in 
Section 2000e-5 (k) in 1964, before the government 
was subject to Title VII as a defendant, presumably 
to make the United States liable as a plaintiff for the 
fees of prevailing defendants. In that context, the 
language was intended simply to waive the sovereign 
immunity of the government so as to make it liable 
for fees to certain prevailing parties, just as private 
plaintiffs are in some instances liable for the fees of 
prevailing defendants.

In fact, Title VII contains considerable evidence 
that the congressional scheme should not be intepreted 
to permit attorneys to obtain interest on their fees in 
cases against the government. While Title VII plain­
tiffs may be awarded interest on back pay awards 
against private employers, it is settled law that inter­
est does not run on back pay recovered from a govern­
ment employer. Had Congress given any attention to 
the interest 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 legis­



9

lative package, it would have chosen to accord plain­
tiffs’ lawyers more favorable treatment than that ac­
corded plaintiffs themselves.

The court of appeals’ analysis, moreover, disre­
gards the entire body of legislation in which Congress 
has permitted interest to run on substantive recover­
ies against the United States. When it has chosen to 
make interest available Congress has done so ex­
plicitly, and has spelled out the conditions upon, and 
the rate governing, such awards. This is, in fact, 
precisely the approach that Congress recently took 
in amending the Equal Access to Justice Act, 28 
U.S.C. 2412(b)— a statute that is virtually identical 
to Section 2000e-5(k)— to provide expressly for 
awards of interest. There is no reason to believe that 
Congress intended Section 200Qe-5(k) to signal a 
strikingly backhanded and understated departure 
from its usual practice in this area. In failing to 
acknowledge the usual congressional approach to the 
availability of interest, the ruling below frustrates 
the purposes of the “no-interest rule” by making the 
government liable for unexpected liabilities arising at 
unanticipated times, while infringing in a direct way 
on the congressional prerogative to waive the govern­
ment’s sovereign immunity.

3. A final question here concerns the appropriate 
disposition of this case. Dissenting below, Judge 
Ginsburg suggested that, under District of Columbia 
Circuit precedent, the case should be returned to the 
district court for a determination whether the his­
toric rates charged by respondent’s attorney con­
tained a component for anticipated delay in payment; 
if they did not, an upward adjustment of the lodestar 
to add such a component would be permissible. As 
the court below itself recognized, however, there is



10

no difference for purposes of the “no-interest rule” 
between such delay adjustments and interest. Be­
cause the rule is based on the proposition that delay 
cannot be attributed to the government ( United States 
v. Sherman, 98 U.S, 565, 568 (1978)), it uniformly 
has been applied to prevent plaintiffs from holding 
the United States liable, absent its explicit consent, 
for all claims grounded on the belated receipt of 
funds. Any adjustment for delay to the fee awarded 
respondent’s attorney, then, would run afoul of the 
“noninterest rule.”

ARGUMENT
CONGRESS HAS NOT WAIVED THE GOVERN­
MENT’S SOVEREIGN IMMUNITY FROM INTEREST 
ON AWARDS OF ATTORNEYS’ FEES UNDER TITLE 
VII OF THE CIVIL RIGHTS ACT OF 1964

The decision below announces an expansive refor­
mulation of the sovereign immunity doctrine. For 
well over a century, this Court, executive agencies, 
and Congress itself consistently have explained that 
federal statutes should not be deemed to allow inter­
est to run on recoveries against the United States 
unless Congress affirmatively desired that result and 
announced its intentions in unambiguous terms. The 
court of appeals’ contrary conclusion— that 42 U.S.C. 
20Q0e-5(k) effected a waiver of sovereign immunity 
as to interest despite the absence of anything in the 
statute or its legislative history indicating an affirma­
tive intention on the part of Congress to do so— can­
not be reconciled with this settled law.

By departing from the controlling principle in this 
area, the court below has opened the federal treasury 
to a potentially wide range of monetary awards that 
were unanticipated, and not consciously authorized,



11

by Congress. And it has effectively substituted the 
judgment of the courts for that of Congress in deter­
mining when the federal government’s sovereign im­
munity should be deemed waived. The court of ap­
peals thus disregarded this Court’s repeated admoni­
tion that the disposition of claims against the United 
States for interest must “ start with the rule that the 
United States is not liable to interest except where 
it assumes liability by - contract or by the express 
words of a statute.”  Boston Sand Co. v. United 
States, 278 U.S. 41, 47 (1928).

A. Interest May Be Recovered From The Government 
Only When Such Interest Awards Have Been Affirma­
tively And Expressly Authorized By Congress

It is common ground that an award of interest 
against the government is permissible only if Con­
gress waives the government’s sovereign immunity as 
to such an award. In determining whether Congress 
has done so, this Court has indicated that analysis 
should begin with the principle that “  [w] aivers of 
immunity must be ‘construed strictly in favor of the 
sovereign,’ McMahon v. United States, 342 U.S. 25, 
27 (1951), and not ‘enlarge [d] . . . beyond what the 
language requires,’ Eastern Transportation Co. v. 
United States, 272 U.S. 675, 686 (1927).”  Ruckels- 
haus v. Sierra Club, 463 U.S. 680, 685-686 (1983) :5

This case involves a principle related to but dis­
tinct from the government’s basic immunity from 
suit: as the court below acknowledged (Pet. App. 
13a), even when Congress has expressly permitted

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



12

collection on substantive claims against the United 
States, the “ ‘traditional rule’ [is] that interest on 
[such claims] cannot be recovered” unless the award­
ing of interest was affirmatively and separately con­
templated by Congress, United States v. Alcea Band 
of TiUamooks, 341 U.S. 48, 49 (1951). Grounded on 
the proposition that “ delay or default cannot be at­
tributed to the government” ( United States v. Sher­
man, 98 U.S. 565, 568 (1878); see 5 Op. Atty. 
Gen. 138 (1849); 2 Op. Atty. Gen. 463, 464 (1831)), 
this “no-interest rule” has been consistently applied 
from the earliest reported treatment of claims against 
the United States.

As early as 1819, the “usual practice of the Treas­
ury Department” was to decline to pay interest un­
less Congress in terms directed its payment or af­
firmatively intended it to be allowed (1 Op. Atty. 
Gen. 268); it was “ confidently believed, that in all 
the numerous acts of Congress for the liquidation 
and settlement of claims against the government, 
there is no instance in which interest has been al­
lowed, except only where those acts have expressly 
directed or authorized its allowance.”  3 Op. Atty. 
Gen. 635, 639 (1841). While the “ equitable principle 
that interest is an incident to the debt”  was recog­
nized at the time, “ [t] he exception in favor of the 
government [was] established by the policy of so­
ciety, and for the protection of the public.”  4 Op. 
Atty. 136, 137 (1842). Accord Tillson v. United 
States, 100 U.S. 43, 47 (1879); 7 Op. Atty. Gen. 523, 
524-527 (1855); 5 Op. Atty. Gen. 227, 231 (1850); 
4 Op. Atty. Gen. 286, 293 (1843); 4 Op. Atty. Gen. 
14, 16 (1842); 2 Op. Atty. Gen. 390, 392 (1830); 
1 Op. Atty Gen. 722, 731 (1825). Congress in terms 
recognized this traditional rule in 1863, when it pro­



13

vided that the Court of Claims could award interest 
against the government only if  expressly authorized 
to do so by statute or contract. Court of Claims Act 
of 1863, ch. 92, § 7, 12 Stat. 766 (current version at 
28 U.S.C. 2516(a )).

Against this background, some 100 years ago this 
Court routinely was relying on the already “ well- 
settled principle, that the United States are not liable 
to pay interest on claims against them, in the absence 
of express statutory provision to that effect.” United 
States ex rel. Angarica v. Bayard, 127 U.S. 251, 260 
(1888). And since that time, the Court repeatedly 
has reaffirmed the notion that, “ [a]part from con­
stitutional requirements, in the absence of specific 
provision by contract or statute, or ‘express consent 
. . . by Congress,’ interest does not run on a claim 
against the United States.”  United States v. Louisi­
ana, 446 U.S. 253, 264-265 (1980), quoting Smyth 
v. United States, 302 U.S. 329, 353 (1937).6 Thus, 
a waiver of immunity is effective only “where inter­
est 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 ambiguous language” (Holly 
v. Chosen, 639 F.2d 795, 797 (D.C. Cir.), cert, de­
nied, 454 U.S. 822 (1 981 )); the “ consent necessary 
to waive the traditional immunity must be express, 
and it must be strictly construed.” United States v. 
N.Y. Rayon Importing Co., 329 U.S. 654, 659 (1947). 
Accord Peoria Tribe v. United States, 390 U.S. 468,

6 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.



14

470 (1968) (dictum ); Tillamooks, 341 U.S. at 49; 
Albrecht v. United States, 329 U.S. 599, 605 (1947); 
United States v. Thayer-West Point Hotel Co., 329 
U.S. 585, 590 (1947); Rosenman v. United States, 
323 U.S. 658, 663 (1945) (dictum ); United States v. 
Goltra, 312 U.S. 203, 207 (1941); United States v. 
Commonwealth >& Dominion Line, Ltd., 278 U.S. 427, 
428-429 (1929); United States v. Worley, 281 U.S. 
339, 341 (1930); Boston Sand Co. v. United States, 
278 U.S. 41, 46 (1928); Cherokee Nation v. United 
States, 270 U.S. 476, 487, 490 (1926); United States 
v. Rogers, 255 U.S. 163, 169 (1921) (dictum ); 
United States v. North American Co., 253 U.S. 330, 
336 (1920); Sheckels v. District of Columbia, 246 
U.S. 338, 340 (1918); District of Columbia v. John­
son, 165 U.S, 330, 338 (1897); United States v. 
North Carolina, 136 U.S. 211, 216 (1890); Tillson, 
100 U.S. at 46; United States v. Sherman, 98 U.S. 
565,567-568 (1878). See generally Gordon v. United 
States, 74 U.S. (7 Wall.) 188, 193 (1868).'7

This principle has been applied with unmitigated 
rigor: the courts have held virtually without excep­
tion that the government’s immunity to awards of 
interest can be found to have been waived only -when 
Congress affirmatively considered the interest ques­

7 Several of these cases involved the construction of prede­
cessors to 28 U.S.C. 2516(a), which permits an award of 
interest on judgments against the United States in the Claims 
Court “ only under a contract or 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 
government 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 V. Califano, 626 F.2d 891, 894 n.6 
(1980).



15

tion and unambiguously expressed its intention that 
interest should be available. See Holly, 639 F.2d at 
797; Pet. App. 43a (Ginsburg, J., dissenting). Cf. 
Nakshicm, 453 U.S. at 168; United States v. King, 
395 U.S. 1, 4 (1969). This and other courts there­
fore have held, for example, that interest could not 
be awarded when the United States was required to 
disgorge funds under an agreement that had per­
mitted it to collect and use revenues from disputed 
lands pending a determination of ownership ( United 
States v. Louisiana, 446 U.S. at 261-264), or when, 
“ in the adjustment of mutual claims” with a private 
party, the government was awarded interest on its 
claims. North American Co., 253 U.S. at 336; United 
States v. Verdier, 164 U.S. 213, 218-219 (1896). See 
Pet. App. 45a (Ginsburg., J., dissenting).

Similarly, interest has been ruled unavailable un­
der statutes or contracts directing the United States 
to pay the “ amount equitably due” ( Tillson, 100 U.S. 
at 46), or “any * * * equitable relief * * * the court 
deems appropriate” (Blake v. California, 626 F.2d 891, 
893 (1980)), although identical language is regularly 
held to make private defendants liable for interest. 
See Blake, 626 F.2d at 893 & n.3. Cf. Nakshian, 453 
U.S. at 163 (language in the Age Discrimination in 
Employment Act of 1967 (A D E A ), 29 U.S.C. 633a, 
that had been held to make jury trials available to 
private sector plaintiffs did not waive the govern­
ment’s sovereign immunity to the extent of permit­
ting jury trials in ADEA suits against the United 
States). And the United States cannot be ordered to 
pay interest under the authority of statutory provi­
sions awarding “ just compensation” (e.g., Tillamooks, 
341 U.S. at 49; Goltra, 312 U.S. at 207-211), even 
though “ just compensation”  for constitutional pur­



16

poses has long been understood to require payment of 
interest (seenote 6, supra).

Indeed, the Court has indicated that even statu­
tory language basing federal liability “ ‘upon the 
same principle and measure * * * as in like cases 
* * * between private parties’ ”  generally “ ha[s] 
been understood * * * not to carry interest.” Boston 
Sand, 278 U.S. at 46, 47 (quoting Act of May 15, 
1922, ch. 192, 42 Stat. 1590). While the Court in 
Bostofi Sand also pointed to the legislative history of 
the Act of May 15 in holding interest unavailable in 
an award under that statute (see 278 U.S. at 47), the 
Court concluded that “ the usage of Congress simply 
shows that it has spoken with careful precision, that 
its words mark the exact spot at which it stops, and 
that it distinguishes between the damages * * * and 
the later loss caused by delay in paying for [the dam­
ages],— between damages and ‘the allowance of in­
terest on damages.’ ”  278 U.S. at 48, quoting The 
Scotland, 118 U.S. 507, 518 (1886). Recognizing 
that “Congress has been accustomed” to this use of 
language, two courts of appeals also have held that 
awards of interest against the government are not 
authorized by the Equal Access to Justice Act 
(EAJA) (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 pro­
vides for such an award” ), which in relevant part is 
virtually identical to Section 20Q0e-5(k). Arvin v. 
United States, 742 F.2d 1301, 1304 (11th Cir. 1984); 
Knights of the Ku Klux Klan v. East Baton Rouge 
Parish School Board, 735 F.2d 895, 902 (5th Cir. 
1984).



17

There is thus no merit to the court of appeals’ sug­
gestion that the traditional “no-interest rule” is in­
applicable when the statute at issue “measures the 
liability of the United States by that of private per­
sons” (Pet, App. 24a-36a). None of the decisions 
cited by the court of appeals on this point involved 
an award of interest, as to which a discrete, express 
waiver of the government’s immunity must be found. 
Instead, those decisions stand only for the unexcep­
tional proposition that the usual substantive rules 
apply to shape the government’s liability once it has 
waived its basic immunity from suit. See, e.g., Cana­
dian Aviator, Ltd. v. United States, 324 U.S. 215, 222 
(1945) (cited at Pet. App. 29a); Indian Towing 
Co. v. United States, 350 U.S. 61, 69 (1955) (cited 
at Pet. App. 2 7 a ); United States v. Yellow Cab Co., 
340 U.S. 543, 548 (1951) (cited at Pet. App. 28a).8

B. 42 U.S.C. 2000e-5(k) Does Not Waive The “No-Interest 
Rule”

1. Against this background, the court of appeals 
found that Section 20Q0e-5(k) evidences an express 
congressional authorization of interest awards be­
cause private employers may be held liable for inter­

8 Nor does Standard Oil Co. v. United States, 267 U.S. 76 
(1925) (cited at Pet. App. 33a-34a) provide support for the 
court of appeals’ conclusion. That decision held the United 
States liable 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 con­
tracts, so that the United States in administering the program 
had placed itself in the position of a nongovernmental entity. 
See United States V. Worley, 281 U.S. 339, 342 (1930). The 
Court has declined to apply Standard Oil outside of its specific 
commercial and contractual context. Worley, 281 U.S. at 
343-344.



18

est on attorneys’ fees under Title VII, and the stat­
ute appears to measure the liability of the United 
States against that of private defendants (Pet. App. 
14a-16a). But Section 2000e-5 (k) makes no refer­
ence to interest, express or otherwise, and in light of 
the settled law in this area it is hardly “ logomaehic” 
(Pet. App. 20a) to conclude that the provision does 
not explicitly waive the “no-interest rule.”  9 To the 
contrary, as Judge Ginsburg observed below, “ [ i ] f  
the statutory waiver here is ‘express’ and ‘unmistak­
able’ * * * it is remarkable that [respondent], repre­
sented by able, experienced counsel, never argued 
that position” before the court of appeals (Pet. App. 
47a n.6).10

Moreover, an examination of the legislative history 
of Title VII indicates that the interest issue “ never

9 The court of appeals suggested that it would have been 
unnecessary for Congress to have spoken of interest explicitly 
in a provision such as Section 2000e-5 (k) (Pet. App. 16a-17a 
& n.49). In fact, however, that is precisely the course that 
Congress has taken when providing for the award of interest 
in analogous statutes. See pages 21-25, supra.

10 Instead, respondent “ attempted to distinguish between 
‘an award of interest and the adjustment of a fee to ensure 
that it is reasonable when there is delay in its payment’ ”  
(Pet, App. 47a n.6, quoting Appellee C.A. Br. 10; see Pet. 
App. 10a). This proposed distinction, however, was re­
jected by both the majority and the dissent in the court of 
appeals; both opinions correctly recognized that the 30% 
upward adjustment—which explicitly was intended to com­
pensate respondent’s attorney for delay in the receipt of pay­
ment (see id. at lla -12a)— was “ interest.”  See generally 
North American Co., 253 U.S. at 338; Blake, 626 F.2d at 895; 
United States V. Mescalero Apache Tribe, 518 F.2d 1309, 1322 
(Ct. Cl. 1975), cert, denied, 425 U.S. 911 (1976).



19

even [was] framed in the course of [Congress’s] de­
liberations”  on Section 2000e-5(k) (Pet. App. 41a 
(Ginsburg, J., dissenting)), let alone addressed and 
resolved. See Blake, 626 F.2d at 894. Section 2000e- 
5(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”  ( Chnstiansburg Gar­
ment 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 availability of interest. 
Similarly, we have been unable to uncover anything 
bearing on the interest question in the legislative his­
tory of the Equal Employment Opportunity Act of 
1972, Pub. L. No. 92-261, 86 Stat. 103 et seq., which 
made Title VII applicable to federal employees. See 
generally Staff of the Subcomm. on Labor of the 
Senate Comm, on Labor and Public Welfare, 92d 
Cong., 1st Sess., Legislative History of the Equal 
Employment Opportunity Act of 1972 (Comm. Print 
1972).

The absence of any evidence in the statute or its 
legislative history that Congress intended to make 
interest available should be dispositive here. Even 
beyond that, however, the development of Section 
2000e-5(k) makes it plain that the court of appeals 
placed undue weight on the specific language of the 
provision. The court relied exclusively on the “ same 
as a private person” proviso; it was in that phrase, 
the court explained, that Congress “ spoke clearly 
enough” to waive the “no-interest rule”  (Pet. App. 
23a-24a, see id. at 16a). But the court of appeals 
failed to recognize that the proviso was placed in the 
statute many years before federal employees were 
permitted to sue under Title VII, presumably to make



20

the United States or the Equal Employment Oppor­
tunity Commission (EEOC) liable as plaintiffs for 
the fees of certain prevailing defendants. See Chris- 
tiansburg Garment Co. v. EEOC, supra. In that con­
text, the language relied upon by the court of appeals 
can most naturally be read simply as a basic waiver 
of the government’s immunity, intended to establish 
that the United States is liable for the fees of pre­
vailing defendants in the same circumstances as are 
private plaintiffs. Yet the very purpose of the “ no- 
interest rule” is to establish that interest is not made 
available by such threshold and undifferentiated waiv­
ers of immunity. Cf. Nakshian, 453 U.S. at 160-161, 
168.

The government was made liable as a defendant by 
42 U.S.C. 2000e-16(d), which provides that many of 
the substantive provisions of Title VII, including 
Section 2000e-5(k), are applicable in civil actions 
against government employers. It is thus Section 
200Qe-16(d), in combination with Section 2000e- 
5 (k ) , that Congress understood to waive the sover­
eign immunity of an agency defendant and make it 
liable for the plaintiff’s “ reasonable attorney’s fee.” 
That Section 2000e-5 (k) already contained language 
equating the liability of the United States for attor­
neys’ fees to that of a private person is a fortuity 
that plainly does not represent an affirmative decision 
to waive the “no-interest rule.”

In fact, Title VII contains considerable evidence 
suggesting that the congressional scheme should not 
be interpreted to permit attorneys to obtain interest 
on their fees in cases against the government. 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



21

settled law that interest does not run on back pay 
recovered from the federal government. Segar v. 
Smith, 738 F.2d 1249, 1296 (D.C. Cir. 1984), cert, 
denied, No. 84-1200 (May 20, 1985); Saunders v. 
Claytor, 629 F.2d 596, 598 (9th Cir. 1980), cert, de­
nied, 450 U.S. 980 (1981); Blake, 626 F.2d at 894; 
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). Had Congress given any attention 
to the interest question— and an award of interest 
could have been affirmatively authorized only if Con­
gress did so— it is difficult to imagine that, in a sin­
gle legislative package, it would have chosen to ac­
cord plaintiffs’ lawyers more favorable treatment 
than that accorded plaintiffs themselves. See Pet. 
App. 43a-44a (Ginsburg, J., dissenting).11

2. The court of appeals’ analysis in this case dis­
regards not only the structure of Title VII, but also 
the entire body of legislation in which Congress has 
permitted interest to run on substantive recoveries 
against the federal government. When it has chosen 
to make interest available, Congress— which of course 
legislates against the background of the “no-interest 
rule”— has in terms provided for awards of interest, 
and has spelled out the “procedures which a plaintiff

11 The court of appeals explained away this anomaly by 
pointing to the specific language of Section 2000e-5 (k) and 
noting that it differs from that of Title VII’s back pay provi­
sion (42 U.S.C. 2000e-5 ( g ) ). See Pet. App. 9a-10a n.32, 18a 
n.54, 36a n.120. As we explain above, however, the “ same as 
a private person” proviso certainly was not placed in the stat­
ute in a conscious effort to distinguish the attorneys’ fee 
from the back pay provision.



22

must follow to perfect his entitlement to interest, 
the rate of interest which the United States will pay 
on each type of judgment, and the time when inter­
est will start to run and the time it will stop.”  Ar- 
vin, 742 F.2d at 1303. See Holly, 639 F.2d at 797- 
798.12 Yet nothing in Title VII so must as adverts 
to interest, let alone addresses the circumstances in 
which it should be available or the terms on which it 
should be paid. And there is no reason to believe 
that Congress intended Section 2000e-5(k) to signal 
a strikingly backhanded and understated “ depart- 
[ure] from its usual practice in this area.” Nak-

12 See 26 U.S.C. 7426(g) (providing for interest in cases of 
wrongful levy by the Internal Revenue 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 
appeal 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 mandate 
of affirmance” ) ; 31 U.S.C. 1304(b) (1) (B) (appropriating 
funds in similar circumstances for 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 certain 
set-off situations) ; 40 U.S.C. 258a (providing for the pay­
ment of interest as part of the compensation in proceedings 
for the taking of property by the United States). Congress 
also has provided that “ [ijnterest 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 ) .



23

shian, 453 U.S. at 162.18 See id. at 161, 168-169 
(holding trial by jury impermissible in suits against 
the United States under the Age Discrimination in 
Employment Act, 29 U.S.C. 633a, because Congress 
“has almost always conditioned [waiver of sovereign 
immunity] upon a plaintiff’s relinquishing any claim 
to a jury trial” and has not “affirmatively and un­
ambiguously” provided that right in the AD EA). 
Cf. Ruckelshaus v. Sierra Club, 463 U.S. 680, 685 
(1983) (footnote omitted) (when Congress is alleged 
to have departed from traditional fee shifting rules 
“a clear showing that this result was intended is re­
quired” ).

A  notable example of Congress’s usual treatment 
of interest questions is offered by the EAJA. As 
noted above, that statute provides in part that the 
United States is liable for fees “ to the same extent 
that any other party would be liable.”  28 U.S.C. 13

13 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 or 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., 
487 F.2d 672, 675 (9th Cir. 1973) (under 15 U.S.C. 15, “ claims 
for ‘reasonable’ attorneys’ fees, being unliquidated 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 interest on attorneys’ 
fees under 15 U.S.C. 15 only from the time of the “ judgment 
establishing the right to fees or costs” ). Had Congress in­
tended 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.



24

2412(b). Congress nevertheless recently amended 
the EAJA to make interest expressly available at 
specified rates on fees awarded under the statute 14—  
although only if the government appeals unsuccess­
fully from an award of fees, and then only from the 
date of the award through the day before the date 
of the mandate of affirmance. Pub. L. No. 99-80, 
§ 2(e) ,  99 Stat. 185-186.15 In doing so, Congress ex­
plained that interest was being made available to 
“give the United States an incentive to meet its obli­
gations promptly and to reimburse the recipient of 
the award for the lost use of the money involved.” 
H.R. Rep. 98-992, 98th Cong., 2d Sess. 12 (1984).

14 The amendment also applies to fees awarded under 28 
U.S.'C. 2412(d); that subsection had expired on October 1, 
1984, and was reenacted as part of the recent amendment. 
Pub. L. No. 99-80, § 6, 99 Stat. 186.

15 As originally passed by Congress, the EAJA amendment 
made interest available from 61 days after the date of judg­
ment through the date of payment. See H.R. Rep. 98-992, 98th 
Cong., 2d Sess. 12 (1984). The Comptroller General objected 
to this provision, however, noting that interest generally is 
available only after an unsuccessful appeal by the government 
(see 31 U.S.C. 1304(b) (1) ( A ) ) and that the proposed amend­
ment therefore accorded EAJA awards uniquely favorable 
treatment. Letter from the Comptroller General to Senator 
Thurmond, B-40342.4 (Oct. 5, 1984). The President subse­
quently vetoed the amendment, citing the Comptroller Gen­
eral’s objections. See 20 Weekly Comp. Pres. Doc. 1814, 1815 
(Nov. 8, 1984). Congress then modified the amendment to 
meet the objections. See H.R. Rep. 99-120, 99th Cong., 1st 
Sess. (1985). The decision below thus presumes that Congress 
— without making any explicit statement— intended to give 
Title VII fee awards uniquely favorable treatment of the sort 
that Congress deliberately avoided in the 1985 EAJA amend­
ment.



25

This recent congressional recognition that interest 
is unavailable on attorneys’ fee awards in the absence 
of an express provision to the contrary— and that 
statutes providing for interest generally should do so 
only in narrow, established circumstances— plainly 
makes the court of appeals’ ruling untenable. Indeed, 
if the court of appeals’ analysis of the parallel lan­
guage in Section 2000e-(5) (k) were correct, the 1985 
EAJA amendment not only would have been unnec­
essary, but also would have flown in the face of the 
congressional intent by narrowing the circumstances 
in which interest may be awarded under the stat­
ute.16

3. By thus disregarding the sharp contrast be­
tween Section 2000e-5(k) and the other statutes in 
which Congress has permitted interest to run on sub­
stantive recoveries against the United States, the 
court of appeals frustrated the purpose long served 
by the “no-interest rule”— the “protection of the pub­
lic” (4 Op. Atty. Gen. 136, 137 (1842)) from unex­
pected liabilities arising at unanticipated times. 
That effect is particularly noticeable where, as here, 
an award of pre judgment 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 judgment 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 pages 3-4, supra.

16 Congress made no suggestion that the pre-amendment 
EAJA should have been read to authorize awards of interest, 
and gave no indication that it was aware of Arvin and East 
Baton Rouge.



26

More basically, the court of appeals’ conclusion 
that courts may infer waivers of immunity from am­
biguous statutory language infringes in a direct way 
on the congressional prerogative to waive the govern­
ment’s sovereign immunity. For well over 100 years, 
as the legislation cited above demonstrates, Congress 
has been acting against the background of— and pre­
sumably relying upon— the “ no-interest rule”  that 
consistently has been propounded by this Court. If 
legislation enacted in that setting is to be interpreted 
in light of a new controlling principle, such a 
“change, in view of the long-prevailing, rigorously- 
applied rule, lies within the province of Congress” 
(Pet. App. 42a (Ginsburg, J., dissenting)).

C. 42 U.S.C. 2000e-5(k) May Not Be Read To Authorize 
Delay Adjustments Of Any Sort To Fee Awards

A final question concerns the appropriate disposi­
tion of this case. Dissenting below, Judge Ginsburg 
felt constrained by District of Columbia Circuit prec­
edent (see Pet. App. 40a-41a) to advocate a remand. 
See note 4, supra. That precedent, she suggested, 
recognized a distinction between impermissible “ in­
terest” and other, permissible types of “adjustment 
for delay in receipt of payment”  that “ figure [s] as a 
contingency adjustment, applied prospectively to the 
lodestar” (Pet. App. 38a). This line of analysis is 
grounded on the assumption that “ an attorney em­
barking on services for which he or she anticipates 
payment ultimately, but not promptly, may factor in 
the expected delay” in setting an hourly rate (id. at 
38a-39a). Here, Judge Ginsburg would have re­
turned the case to the district court for a determina­
tion whether the historic rates charged by respon­
dent’s attorney contained such a component for antici­



27

pated delay in receipt of payment; if they did not, 
circuit precedent would permit an adjustment to the 
lodestar to add such a component (through the use of 
the attorney’s current rates) (id. at 53a-56a). See 
also note 3, supra.

As the court below itself recognized (Pet. App. 12a 
n.41), however, this analysis cannot be squared with 
the “no-interest rule.” That rule is not directed solely 
at monetary awards expressly denominated as in­
terest; because the doctrine is based on the proposi­
tion that delay cannot be attributed to the govern­
ment (see page 12, supra), it uniformly has been 
applied to prevent plaintiffs from holding the United 
States liable, absent its explicit consent, for all claims 
grounded on “ the belated receipt” of funds.” Saun­
ders, 629 F.2d at 598. The courts accordingly have 
barred claims of every kind arising out of the delayed 
payment of substantive recoveries by the United 
States, whether termed “'inflation adjustments” 
(Blake, 626 F.2d at 895; Saunders, 629 F.2d at 598), 
“ compensation for use” (North American Co., 253 
U.S. at 337-338), or something equally euphemistic. 
See generally United States v. Mescalero Apache 
Tribe, 518 F.2d 1309, 1322 (Ct. CL 1975), cert, de­
nied, 425 U.S. 911 (1976); United States v. Dela­
ware Tribe of Indians, 427 F.2d 1218, 1222-1224 
(Ct. Cl. 1970). See note 10, supra. And while there 
are technical differences between interest and an ad­
justment of the lodestar through the. use of current 
rates,17 the latter type of payment is expressly de­

17 In contrast to a flat interest rate applied retrospectively, 
for example, current rates may more clearly take account of 
inflationary changes that occurred while payment was pend­
ing. Cf. Blake, 626 F.2d at 895 & n.9. At the same time, 
however, a law firm’s or practitioner’s rates may be affected



2 8

signed to adjust the fee award for “ inflation and in­
terest.” Ramos v. Lamm, 713 F.2d 546, 555 (10th 
Cir. 1983). See Murray v. Weinberger, 741 F.2d 
1423, 1433 (D.C. Cir. 1984); Johnson v. University 
College of the University of Alabama, 706 F.2d 1205, 
1210-1211 (11th Cir.), cert, denied, 464 U.S. 994 
(1983); National Ass’n of Concerned Veterans v. 
Secretary of Defense, 675 F.2d 1319, 1328 (D.C. Cir. 
1982); Copeland v. Marshall, 641 F.2d 880, 893 (D.C. 
Cir. 1980) (en banc). Use o f current rates, in other 
words, is nothing more than an “ adjustment[I] for 
delay in payment.” Murray, 741 F.2d at 1433.

Furthermore, the suggestion that current rates 
may realistically be distinguished from interest on 
the ground that the former substitute for what should 
have been a prospectively applied delay factor (see 
Pet. App. 38a (Ginsburg, J., dissenting)) is based 
on a fiction. As the court of appeals acknowledged, 
“ an award under a fee-shifting statute benefiting 
only a party prevailing in litigation can never be 
made prospectively” (id. at 12a n.41). Because the 
rate used in calculation of the lodestar is chosen at 
the completion of the litigation, allowing the addition 
of a delay factor (or the use of current rates) simply 
amounts to a decision that the attorney is entitled 
to obtain compensation for delay attributed to the 
federal government. That remedy is foreclosed by the 
“no-interest rule.”

by a wide range of factors wholly unrelated to the passage of 
time, such as changes in the firm’s reputation, experience, or 
expenses. Even if Congress in Section 2000e-5 (k) has waived 
sovereign immunity as to awards of interest, then, it is far 
from clear that use of a current rate adjustment ever would 
be an appropriate substitute for interest.



29

CONCLUSION

The judgment of the court of appeals should be 
reversed.

Respectfully submitted.

November 1985

Charles Fried 
Solicitor General

Richard K. W illard 
Assistant Attorney General

Kenneth S. Geller 
Deputy Solicitor General

Charles A. Rothfeld 
Assistant to the Solicitor General

☆  U . S .  GOVERNMENT PRINTING OFFICE; 1 9 8 5 491507 2 0 0 5 4