Brown v. Secretary of Army, s. 95-5026

• Decision Date: 12 March 1996
• Docket Number: 95-5048,Nos. 95-5026,s. 95-5026
• Citation: 316 U.S. App. D.C. 284,78 F.3d 645
• Parties: 72 Fair Empl.Prac.Cas. (BNA) 595, 316 U.S.App.D.C. 284, 64 USLW 2594 James BROWN, Appellee/Cross-Appellant, v. SECRETARY of the ARMY, Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 645

78 F.3d 645

72 Fair Empl.Prac.Cas. (BNA) 595, 316

U.S.App.D.C. 284,

64 USLW 2594

James BROWN, Appellee/Cross-Appellant, v. SECRETARY of the ARMY, Appellant/Cross-Appellee.

Nos. 95-5026, 95-5048.

United States Court of Appeals District of Columbia Circuit.

Argued Nov. 15, 1995.

Decided March 12, 1996.

Appeals from the United States District Court for the District of Columbia (No. 80cv01169).

Daniel F. Van Horn, Assistant United States Attorney, Washington, DC, argued the cause, for appellant Secretary of the Army, with whom Eric H. Holder, Jr., United States Attorney, and R. Craig Lawrence, Assistant United States Attorney, were on the briefs.

Roger E. Warin, Washington, DC, argued the cause, for appellee James Brown, with whom Clifford E. Greenblatt and Joseph M. Sellers were on the briefs. John R. Erickson entered an appearance.

Before: EDWARDS, Chief Judge, GINSBURG and HENDERSON, Circuit Judges.

GINSBURG, Circuit Judge:

In this litigation of Dickensian protraction, James E. Brown, a civilian employee of the U.S. Army, alleged and for the most part established that he was the victim of repeated employment discrimination based upon his race. In the last chapter Brown prevailed on the merits of a Title VII suit alleging that the Army discriminated against him in refusing to hire him into a GS-9 position; he received an award of back pay, placement in an appropriate position, and a permanent injunction against the Army's engaging in any further discrimination against him. See Brown v. Marsh, 713 F.Supp. 20 (D.D.C.1989), affd. sub nom. Brown v. Secretary of the Army, 918 F.2d 214 (D.C.Cir.1990). Today we write the epilogue to this nearly 20-year saga.

After resolving the merits of Brown's Title VII claim, the district court awarded Brown attorney's fees and costs pursuant to 42 U.S.C. § 2000e-5(k). The district court later awarded interest on those fees and costs, invoking the authority of § 114(2) of the Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071, 1079 (codified as an amendment to 42 U.S.C. § 2000e-16(d)). The Government now appeals the award of interest on the ground that the 1991 Act, which became effective while the case was pending, cannot be applied retroactively against the United States. In a cross-appeal Brown challenges the district court's use of the rate of interest on Treasury Bills, rather than the prime rate, to determine the amount of prejudgment interest he is due. As it turns out, we need not reach this issue.

We hold that sovereign immunity bars application of the interest provision retroactively to this case. A waiver of sovereign immunity must be strictly construed; it may not be applied retroactively unless the Congress clearly so intended. Wanting direction from the legislature that § 114(2) is to be applied retroactively, we vacate the district court's award of interest on Brown's attorney's fees.

I. Background

Brown's petition for attorney's fees, expenses, and interest was pending when the Congress passed the Civil Rights Act of 1991. By the terms of that Act, each provision was to "take effect upon enactment" (that is, on November 21, 1991) unless otherwise specifically provided. § 402(a), Pub.L. 102-166, 105 Stat. 1071, 1099 (1991).

In § 114(2) of the Act the Congress amended the portion of Title VII that applies to federal employees so as to provide that "the same interest to compensate for delay in payment shall be available as in cases involving nonpublic parties." 42 U.S.C. § 2000e-16(d). This provision was enacted in response to the decision in Library of Congress v. Shaw, 478 U.S. 310, 106 S.Ct. 2957, 92 L.Ed.2d 250 (1986), in which the Supreme Court had held that a party prevailing in a Title VII suit against the Government was not entitled to interest on attorney's fees because the provision permitting the award of attorney's fees did not expressly waive sovereign immunity from such liability.

The district court awarded Brown attorney's fees and other expenses in August 1992, but it reserved the issue of interest on the fee award pending a final decision on the retroactivity of the 1991 Act in Gersman v. Group Health Assn., Inc., 975 F.2d 886 (D.C.Cir.1992), cert. denied, --- U.S. ----, 114 S.Ct. 1642, 128 L.Ed.2d 363 (1994). Following our decision in Gersman and the Supreme Court's subsequent decision in Landgraf v. USI Film Products, --- U.S. ----, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), Brown renewed his request for interest on his award of attorney's fees. In Landgraf the Supreme Court reaffirmed its earlier holding in Bradley v. Richmond School Board, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974), that a court should generally apply the version of a statute, including any amendment, that is in effect at the time of its decision. Because the compensatory and punitive damage provisions of the 1991 Act would attach new substantive legal burdens to past conduct, however, the Court held that those provisions could not be applied retroactively. --- U.S. at ----, 114 S.Ct. at 1506.

Relying primarily upon Landgraf, the district court held that § 114(2) does apply retroactively to this case, entitling Brown to interest on his attorney's fees and expenses. See Brown v. Marsh, 868 F.Supp. 15 (D.D.C.1994). The court reasoned that § 114(2) does not change any party's substantive rights because it "merely extends" to the Government the liability for interest on attorney's fees that private defendants already faced. Id. at 18. Moreover, the court said, the interest provision must be deemed collateral to the parties' substantive rights because the award of attorney's fees is itself "uniquely separable from the cause of action to be proved at trial." Id.

On appeal the Government argues, inter alia, that the interest provision of the 1991 Act is a waiver of sovereign immunity and therefore must be construed narrowly; because neither the text of the statute nor its legislative history indicates that the Congress intended it to apply retroactively, the provision cannot apply in this case. Brown retorts that a waiver of sovereign immunity must be construed narrowly only with respect to its scope; whether the waiver applies retroactively is a separate question that may be answered with reference to the principles of statutory construction laid down in Bradley and Landgraf.

The Government's sovereign immunity argument was raised for the first time on appeal. As Brown must concede, however, that is not a bar to our considering it. Whether the United States has consented to be sued "is the sort of jurisdictional question which may be raised at any time, either by the parties or by the court sua sponte." Mellos v. Brownell, 250 F.2d 35, 36 (D.C.Cir.1957); see United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 514, 60 S.Ct. 653, 657, 84 L.Ed. 894 (1940) ("Consent alone gives jurisdiction to adjudge against a sovereign. Absent that consent, the attempted exercise of judicial power is void").

Whether § 114(2) applies retroactively to this case is a question of law that was resolved by the district court upon a motion for summary judgment. Accordingly, we review the district court's decision de novo. See Shields v. Eli Lilly & Co., 895 F.2d 1463, 1465-66 (D.C.Cir.1990).

II. Analysis

Nothing in either the text or the legislative history of the 1991 Civil Rights Act indicates that the Congress intended the entire Act to apply retroactively. Landgraf, --- U.S. at ---- - ----, 114 S.Ct. at 1493-96; see also Gersman, 975 F.2d at 888-92. Two provisions were explicitly made prospective only; the rest of the Act was to "take effect upon enactment." § 402(a), Pub.L. No. 102-166, 105 Stat. 1071, 1099 (1991). Absent any direction from the Congress, whether a particular provision of the Act applies retroactively to a case pending when the statute was enacted--that is, to a case arising from conduct that occurred before it was enacted--is a matter of statutory construction. Cf. Landgraf, --- U.S. at ----, 114 S.Ct. at 1496. The crucial issue in this case is which principle of statutory construction--the principle of Shaw and Ruckelshaus v. Sierra Club, 463 U.S. 680, 685-86, 103 S.Ct. 3274, 3277-78, 77 L.Ed.2d 938 (1983), applicable to waivers of sovereign immunity, or the principles of Bradley and Landgraf, which apply to retroactivity in general--should guide our interpretation of § 114(2).

A. Retroactivity under Bradley and Landgraf

As a general matter, in order to determine whether a statute has retroactive effect, the court first "must ask whether the new provision attaches new legal consequences to events completed before its enactment." Landgraf, --- U.S. at ----, 114 S.Ct. at 1499. If not, then the court "is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary." Bradley, 416 U.S. at 711, 94 S.Ct. at 2016; see United States v. Schooner Peggy, 5 U.S. (1 Cranch) 102 (1801); Gersman, 975 F.2d at 893.

The principle that a court is to apply the law as it is at the time of decision was most fully explicated by the Supreme Court in Bradley. The district court in that case, relying upon general equitable principles, had awarded attorney's fees and costs to the prevailing plaintiffs in a desegregation suit against a public school board. While the case was before the Fourth Circuit, the Congress enacted a statute expressly authorizing such awards. After vacating the district court's equitable award, the court of appeals held that the new statute could not be applied to attorney's fees for services rendered before the effective date of the statute. The Supreme Court reversed, holding that the plaintiffs were entitled to attorney's fees under the statute on the principle that, barring manifest injustice or statutory direction to the contrary, "a court is to apply the law in effect at the time it renders its...