LIBRARY OF CONGRESS, ET AL., PETITIONERS V. TOMMY SHAW

   No. 85-54

   In the Supreme Court of the United States

   October Term, 1985

   The Solicitor General, on behalf of the Library of Congress, et
al., 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.

   Petition for a Writ of Certiorari to the United States Court of
Appeals for the District of Columbia Circuit

                       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
   Jurisdiction
   Statute involved
   Statement
   Reasons for granting the petition
   Conclusion
   Appendix A
   pappendix B
   Appendix C
   Appendix D
   Appendix E
   Appendix F

                             OPINION BELOW

   The opinion of the court of appeals (App., infra, 1a-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 entered 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 subchapter the court,
      in its discretion, may allow the prevailing party, other than
      the (Equal Employment 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.

                          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 of interest on
attorneys' fee awards against the United States.

                               STATEMENT

   1. In 1976 and 1977 respondent filed administrative 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, 2a-3a.  Shortly afterwards,
however, after consultation 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
Employment Opportunity Act of 1972 (Title VII), 42 U.S.C. 2000e et
seq., authorized the Library to afford the relief specified in the
settlement agreement (App., infra, 3a-4a).

   On September 14, 1979, the United States District Court for the
District of Columbia ruled in respondent'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 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).  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
anticipated would provide guidance on the standards applicable 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 case should have ended in August 1978, or at the latest
in November of that year.  If (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 appeals 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 majority acknowledged
that the delay adjustment 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"
(App., infra, 11a (footnote omitted);  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 interest 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 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 nothing 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 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 reharing 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 reformulation 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 result and announced its
intentions in unambiguous terms.  The court of appeals' contrary
conclusion -- that 42 U.S.C. 2000e5(k) effected a waiver of sovereign
immunity as to interest despite the absence of anything in the statute
or its legislative history indicating an affirmative intention on the
part of Congress 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 conflict 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
appropriately deemed waived.  In these circumstances, review of the
decision below by this Court is warranted.

   1. It is common ground that an award of interest against the United
States is permissible only if Congress has waived 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 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 permitted 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 separately 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 omission 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 under
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 appeals' approach, however, cannot be
reconciled with the analysis that this Court consistently has applied
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
provision 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 statute, 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 ambiguous language"
(Holly v. Chasen, 639 F.2d 795, 797 (D.C. Cir.), cert. denied, 454
U.S. 822 (1981));  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
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);  United States v. Goltra, 312 U.S. 203, 207 (1941);
United States v. 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 Carolina, 136 U.S. 211, 216 (1890);  United States v.
Sherman, 98 U.S. 565, 567-568 (1878).  /8/

   In applying these principles, the courts have held virtually
without exception that the government's immunity can be found to have
been waived in this context only when Congress affirmatively
considered the interest question and unambiguously affirmed its
intention 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
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 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).

   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 * *
* equitable relief * * * the court deems appropriate" (Blake v.
Califano, 626 F.2d 891, 893 (D.C. Cir. 1980), or "just compensation"
(e.g., Tillamooks, 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 "ha(s) been
understood * * * not to carry interest." Boston Sand, 278 U.S. at 46,
47.  /9/

   b. The approach used by the court below in its analysis of 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 (Congress'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 entitlement 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 797-798.  /11/ There is no reason to
believe that Congress -- which was, of course, legislating against the
background of the "no-interest rule" -- intended Section 2000e-5(k) to
signal a strikingly backhanded and understated "depart(ure) from its
usual practice in this area." Nakshian, 453 U.S. at 162.  /12/ See id.
at 161, 168-169 (holding trial by jury impermissible in suits against
the United States under the Age Discrimination in Employment Act
(ADEA), 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 unambiguously" provided that right in the ADEA).  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 omitted)).  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
attorneys' 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 Ku Klux Klan v. East
Baton Rouge Parish School Board, 735 F.2d 895, 902 (5th Cir. 1984).
/14/

   Title VII itself, in fact, contains considerable evidence 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. Claytor, 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 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 legislative 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 sovereign 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, presumably, 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 employment 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 treatment of
Section 2000e-5(k) has "precipitat(ed) an apparent circuit split"
(App., infra. 56a n.14) with decisions holding that the virtually
identical fees provision of the Equal Access to Justice Act does not
authorize 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 purposes served by the requirement that Congress
expressly waive the "no-interest rule" -- the protection of the
treasury from unexpected liabilities arising at unanticipated times.
This danger is particularly 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 assessment 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 ambiguous statutory language infringes
in a direct way on the congressional prerogative to waive the
government'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 interpreted 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. WILLARD

      Acting Assistant Attorney General

   KENNETH S. GELLER

      Deputy Solicitor General

   CHARLES A. ROTHFELD

      Assistant to the Solicitor General

   WILLIAM KANTER

   AL J. DANIEL, JR.

      Attorneys

   July, 1985

   /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 (App., infra, 4a n.13).  The fee claims of
respondent's other counsel have been settled (ibid.).  References to
"respondent's attorney" in this petition therefore are directed only
at Ralph.

   /2/ 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 proceedings.  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" (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 resulting from the lengthy wait for
payment ordinarily encountered under such statutes" (ibid.).  In such
circumstances, 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 lodestar had been based on
a rate that "has already taken into account 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 appeals 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.

   /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 between "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
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 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 receipt 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.

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

   /5/ 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).

   /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 was intended to compensate respondent's attorney for delay
in the receipt of payment (see id. at 11a-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).

   /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.

   /8/ Several of these cases involved the construction of
predecessors 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
legislation." Goltra, 312 U.S. at 207 (footnote omitted).  See Thayer,
329 U.S. at 588;  Blake, 626 F.2d at 894 n.6.

   /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 pointed 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 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 contracts.  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.

   /10/ 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"
(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 availability of interest.  Similarly, we have been
unable to uncover anything bearing on the interest question in the
legislative history of 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).

   /11/ 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 overpayments 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 Comptroller
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
payment of interest as part of the compensation in proceedings for the
taking of property by the United States).  Congress 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 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. of
California, 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 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
authorizing fee awards against the United States when the government's
position in litigation was not substantially justified, 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 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 provision 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, Section 2(e).

   /14/ The Second Circuit has affirmed a district court judgment that
included an award of interest against the Department 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.

   /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).

   APPENDIX