LIBRARY OF CONGRESS, ET AL., PETITIONERS V. TOMMY SHAW No. 85-54 In the Supreme Court of the United States October Term, 1985 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The District Of Columbia Circuit Reply Memorandum for the Petitioners Respondent devotes most of his brief in opposition to a defense of the merits of the court of appeals' ruling. He does not deny, however, that the question presented here is a recurring and significant one. He points to nothing in 42 U.S.C. 2000e-5(k) that expressly -- or, for that matter, impliedly -- adverts to the availability of interest on fee awards against the United States. And he fails even to challenge our submission that the decision below cannot be reconciled in principle with the holdings of a number of other courts of appeals. Respondent accordingly offers no reason for this Court to deny review. 1. Respondent maintains at the outset that an adjustment to a fee award "to compensate for delay in payment" is a component of a reasonable attorneys' fee. Br. in Opp. 7. /1/ That interest may be available on late fee payments in private sector suits under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., however, is wholly beside the point, for the "no-interest rule" (see Pet. 9-10) historically has been based on the proposition that "delay or default cannot be attributed to the government." United States v. Sherman, 98 U.S. 565, 568 (1878). Absent an express waiver, any portion of a fee award that compensates for the "belated receipt of (funds)" therefore is barred by sovereign immunity. Saunders v. Claytor, 629 F.2d 596, 598 (9th Cir. 1980), cert. denied, 450 U.S. 980 (1981). This is a principle that routinely has been applied by this Court. The term "just compensation," for example, ordinarily is understood to involve an interest component; where takings in the constitutional sense are involved, the Just Compensation Clause requires payment of interest. See United States v. Alcea Band of Tillamooks, 341 U.S. 48, 49 (1951). Pointing to the "no-interest rule," however, the Court consistently has held that interest is unavailable under statutes or contracts directing the United States to pay "just compensation" to private parties, reasoning that Congress should not be deemed by the use of general language to have waived the government's immunity against claims grounded on a loss that is attributable to delay in payment. See, e.g., ibid.; Albrecht v. United States, 329 U.S. 599, 605(1947); United States v. Goltra, 312 U.S. 203, 207-211 (1941). 2. Respondent also maintains that Congress in enacting the Equal Employment Opportunity Act of 1972 intended to place federal employee Title VII plaintiffs on precisely the same footing as their private sector counterparts, and in that way to "effect a complete, total, and absolute waiver (of the federal government's) sovereign immunity with regard to the remedies obtainable under Title VII." Br. in Opp. 13. As respondent implicitly acknowledges (id. at 24 n.17), however, so far as awards are concerned, /2/ his reading of the statute has been emphatically rejected by the courts. Thus, each of the six courts of appeals that have considered the question has held that Title VII plaintiffs may not recover interest on back pay awards against the United States. See cases cited at Pet. 15. Yet respondent makes no attempt to grapple with the obvious anomaly in a scheme that withholds interest from plaintiffs while making it available to their attorneys. /3/ 3. Similarly, respondent attempts to distinguish this Court's decisions propounding the "no-interest rule" on the ground that they involved statutes that did not "abrogate sovereign immunity in its entirety." Br. in Opp. 14. But this argument simply assumes its conclusion: that 42 U.S.C. 2000e-5(k) does waive the government's sovereign immunity as to interest. In fact, the very point of the "no-interest rule" is that statutory language, no matter how broad, should not be deemed to make interest available against the United States unless Congress affirmatively and unambiguously signaled an intent to do so. See Pet. 8-11. Respondent also suggests that the "no-interest rule" bears only on the construction of statutes that are uniquely applicable to actions against the government. Br. in Opp. 14-20. Again, however, respondent's novel distinction finds no support in the decisions of this or other courts. Rather, the "no-interest rule" grew out of the notion that delay cannot be attributed to the soverign; that principle is applicable to all waivers of immunity that do not expressly provide for interest. The courts -- other than the one below -- accordingly have recognized the applicability of the "no-interest rule" in situtations analogous to the one here. As noted above, for example, six courts of appeals have held that the rule bars federal employee Title VII plaintiffs from receiving interest on their back pay awards. Two other courts of appeals have ruled that the attorneys' fee provision of the Equal Access to Justice Act (EAJA)(28 U.S.C. 2412(b)), which is virtually identical to 42 U.S.C. 2000e-5(k), does not permit an award of interest against the United States. Arvin v. United States, 742 U.S. 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). /4/ See Pet. 14-15, 16. And this Court has long applied the "no-interest rule" without hesitation when, in adjustments of "mutual claims" between the United States and private parties, the United States obtained interest on its claims. United States v. North American Trans. & Trading Co., 253 U.S. 330, 336 (1920); United States v. Verdier, 164 U.S. 213, 218-219 (1896). /5/ 4. Finally, respondent fails even to suggest that the decision below can be reconciled in principle under any theory with the decisions relating to interest that have been rendered by the other courts of appeals. And such a claim would, in any event, be unavailing. The court below itself recognized that its ruling cannot be squared with the reading given the EAJA by Arvin and East Baton Rouge. Pet. App. 29a-30a & n.107; see also id. at 56a n.14 (Ginsburg, J., dissenting). And respondent acknowledges that his analysis of Title VII requires rejection of the decisions of those courts of appeals that have held interest unavailable for plaintiffs. Br. in Opp. 24 n.17. In short, respondent's argument -- like the decision below -- proposes a novel and far-reaching reformulation of the sovereign immunity doctrine. Despite his contentions to the contrary (see Br. in Opp. 2-5, 8-10), then, it is the ruling of the court of appeals, rather than the submission of the government, that infringes on the congressional prerogative by making the courts the arbiters of when the federal government's sovereign immunity will be waived. For the foregoing reasons and the reasons stated in the petition, it is respectfully submitted that the petition for a writ of certiorari should be granted. CHARLES FRIED Acting Solicitor General September 1985 /1/ In fact, as Judge Ginsburg suggested in dissent below, the court here did not adjust the award upward "as part" of a reasonable fee; it simply added interest on top of the fee. See Pet. App. 38a-39a, 53a-54a. /2/ Even apart from the interest issue, respondent's assertion that Title VII accords public and private sector plaintiffs completely equivalent treatment is open to question. See, e.g., Brown v. GSA, 425 U.S. 820, 832-834 (1976)(while private sector plaintiffs may pursue alternative remedies for employment discrimination, Title VII is the exclusive remedy for federal employee plaintiffs). Cf. Lehman v. Nakshian, 453 U.S. 156, 163 (1981)(language in the Age Discrimination in Employment Act (ADEA), 29 U.S.C. 633a, that had been held to make jury trials available to private sector plaintiffs did not waive the government's sovereign immunity to the extent of permitting jury trials in ADEA suits against the United States). /3/ To the contrary, respondent simply asserts that all of the courts of appeals have erred in denying interest to Title VII plaintiffs. Br. in Opp. 24 n.17. /4/ Citing Arvin and East Baton Rouge, the Ninth Circuit recently ruled that the United States may not be held liable for interest under subsection (d) of the EAJA, 28 U.S.C. 2412(d), which permits the award of attorneys' fees against the United States when the government's position was not "substantially justified." International Woodworkers of America, AFL-CIO, Local 3-98 v. Donovan, No. 84-1887 (Aug. 28, 1985). /5/ Respondent suggests (Br. in Opp. 22-23) that the decision below follows from Standard Oil Co. v. United States, 267 U.S. 76 (1925), which held the United States liable for interest on insurance policies issued as part of a for-profit commercial venture. That holding, however, turned on the specific contracts at issue (see United States v. Worley, 281 U.S. 339, 342 (1930)) and, as Judge Ginsburg noted in dissent below (Pet. App. 49a n.8), on the commercial nature of the government's insurance activities. Neither of those factors is present here.