Cross v. U.S. Postal Service

• Decision Date: 20 September 1984
• Docket Number: 83-1761,Nos. 83-1305,s. 83-1305
• Citation: 733 F.2d 1327
• Parties: 34 Fair Empl.Prac.Cas. 1447, 35 Fair Empl.Prac.Cas. 1520, 34 Empl. Prac. Dec. P 34,379, 35 Empl. Prac. Dec. P 34,754 Rebecca Mae CROSS, Appellant, v. UNITED STATES POSTAL SERVICE; The Board of Governors of the United States Postal Service; M.A. Wright; R.E. Holding; Charles H. Codding; William A. Irvine; Crocker Nevin; Hayes Robertson and Benjamin F. Bailar, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1327

733 F.2d 1327

34 Fair Empl.Prac.Cas. 1447,

35 Fair Empl.Prac.Cas. 1520,

34 Empl. Prac. Dec. P 34,379,

35 Empl. Prac. Dec. P 34,754

Rebecca Mae CROSS, Appellant, v. UNITED STATES POSTAL SERVICE; The Board of Governors of the

United States Postal Service; M.A. Wright; R.E. Holding;

Charles H. Codding; William A. Irvine; Crocker Nevin;

Hayes Robertson and Benjamin F. Bailar, Appellees.

Nos. 83-1305, 83-1761.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 16, 1983.

Decided May 14, 1984.

Rehearing and Rehearing En Banc Granted June 28, 1984.

Order on Reconsideration En Banc Sept. 20, 1984.

Sherry A. Cagnoli, Asst. Gen. Counsel, Kevin B. Rachel, Atty., Office of Labor Law, U.S. Postal Service, Washington, D.C., for appellees.

Kenneth M. Chackes, Chackes & Hoare, St. Louis, Mo., for appellant.

Before ROSS, ARNOLD and BOWMAN, Circuit Judges.

BOWMAN, Circuit Judge.

Rebecca Mae Cross has prevailed in her action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-16, as amended in 1972, against the United States Postal Service and its Board of Governors (USPS) for refusal to hire her because of her race. See Cross v. United States Postal Service, 639 F.2d 409 (8th Cir.1981), rev'g, 483 F.Supp. 1050 (E.D.Mo.1979). On remand, the District Court proceedings included determinations of back pay, attorneys' fees, and expenses. ¹ The issue on this appeal is whether Cross was entitled to prejudgment interest on her monetary award. We affirm the District Court's denial of prejudgment interest.

Although prejudgment interest on monetary awards under Title VII is available in actions against private employers, see, e.g., Washington v. Kroger Co., 671 F.2d 1072, 1078 (8th Cir.1982), interest awards in actions against a governmental unit raise sovereign immunity issues. See e.g., Brown v. GSA, 425 U.S. 820, 833-34, 96 S.Ct. 1961, 1968, 48 L.Ed.2d 402 (1976). The general rule is that the federal government, as sovereign, is immune from suit save as it consents to be sued; the terms of consent define the extent of the plaintiff's rights and the court's jurisdiction to entertain the suit. See Lehman v. Nakshian, 453 U.S. 156, 160, 101 S.Ct. 2698, 2701, 69 L.Ed.2d 548 (1981) (no right to trial by jury in age discrimination suit by federal employees); United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941) (federal court has no jurisdiction under Tucker Act over suits against the United States by a creditor of a party to a contract with the United States which the United States has breached); Bor-son Bldg. Corp. v. Heller, 572 F.2d 174 (8th Cir.1978) (remedy under Federal Tort Claims Act is exclusive despite statutory authority of any federal agency to "sue and be sued"). The question then is whether Congress has waived common law sovereign immunity with regard to prejudgment interest on money judgments against the USPS in Title VII cases.

If a waiver of immunity with respect to interest is to be found at all, it must be found in the statute that gives rise to the cause of action. See Murray v. United States, 686 F.2d 1320, 1325 (8th Cir.1982), cert. denied, 459 U.S. 1147, 103 S.Ct. 788, 74 L.Ed.2d 994 (1983); Garcia v. United States, 666 F.2d 960, 966 (5th Cir.), cert. denied, 459 U.S. 832, 103 S.Ct. 73, 74 L.Ed.2d 72 (1982). In 1972, Congress amended Title VII, making it applicable for the first time to the federal government. See 42 U.S.C. Sec. 2000e-16. These amendments created "an exclusive, preemptive administrative and judicial scheme for the redress of federal employment discrimination." Brown, 425 U.S. at 829, 96 S.Ct. at 1966. The mere fact that these amendments of Title VII are remedial does not mean that we should liberally construe them to allow prejudgment interest against an arm of the federal government. Every statute that waives sovereign immunity is remedial. See Monark Boat Co. v. NLRB, 708 F.2d 1322, 1327 (8th Cir.1983) (construing Equal Access to Justice Act). Both the amended Title VII and its legislative history are silent with regard to interest awards against the government. Congress has not expressed an affirmative intention to allow interest. ² Cf. 42 U.S.C. Sec. 2000e-5(k) (specifically excluding the United States as a prevailing party from an attorney's fee award and specifically making it liable for costs). We agree with several other circuits that there is no provision in Title VII, as amended in 1972, that overcomes the sovereign immunity barrier regarding prejudgment interest and therefore that prejudgment interest is not available in Title VII actions against the government. See Saunders v. Claytor, 629 F.2d 596 (9th Cir.1980), cert. denied, 450 U.S. 980, 101 S.Ct. 1515, 67 L.Ed.2d 815 (1981) (Title VII action against the Navy); Blake v. Califano, 626 F.2d 891, 894-95 (D.C.Cir.1980) (Title VII action against HEW); deWeever v. United States, 618 F.2d 685 (10th Cir.1980); Fischer v. Adams, 572 F.2d 406, 411 (1st Cir.1978) (Title VII action against Dept. of Transportation); Richerson v. Jones, 551 F.2d 918, 925 (3rd Cir.1977) (Title VII action against the Navy). We have been unable to find a contrary decision from any of the circuit courts of appeals.

Cross attempts to avoid the impact of this clear line of authority by means of an argument based upon the Postal Reorganization Act of 1970, 39 U.S.C. Secs. 101-5605 (the Reorganization Act), which contains a broad waiver of sovereign immunity. Under the Reorganization Act, Congress provided the USPS with the power "to sue and be sued in its official name." 39 U.S.C. Sec. 401(1). Section 401(1), Cross argues, removed the barrier of common law sovereign immunity that prevents an award of interest against the federal government; prejudgment interest was therefore among the remedies available when Congress made Title VII applicable to the USPS in 1972. This argument is ingenious, but we do not find it persuasive. ³

To adopt Cross's argument, we would have to believe that Congress intended to place postal employees in a better position than all other federal employees with respect to prejudgment interest in Title VII cases. Congress, however, consistently has treated postal employees the same as other federal employees for purposes of laws enforcing equal employment opportunity. There is nothing to suggest that the remedies available to postal employees in Title VII cases should differ from those available to other federal employees in such cases. The Reorganization Act and its legislative history establish conclusively that under that Act, postal employees were to be treated as other federal employees for equal employment opportunity purposes. Although Congress expressly stated that the general nondiscrimination policy found in 5 U.S.C. Secs. 7201-11 (Chapter 72) and the provisions of Title VI of the 1964 Civil Rights Act should apply, it did not mention Title VII in the Reorganization Act and it did not amend the Reorganization Act after 1972 to include reference to Title VII. See 39 U.S.C. Sec. 410(b)(1), Sec. 410(b)(6).

At the time the Reorganization Act was pending in Congress, the discussion on the House floor suggested that the Senate version of the Reorganization bill would have applied the provisions of Title VII, then applicable only to the private sector, to postal employees. 116 Cong.Rec. 27,597-98 (1970) (statements of Representatives Hawkins and Daniels). The conference committee, however, rejected this suggestion and the bill as enacted into law provided that discrimination complaints against the USPS would continue to be heard by the Civil Service Commission, as in the case of other federal sector employers at that time. See 39 U.S.C. Sec. 410.

There is thus no basis upon which to infer that Congress intended the 1970 Reorganization Act's "sue and be sued" clause to affect the remedies available to postal employees under the 1972 amendments to Title VII. Accordingly, we need not decide whether the clause would waive immunity for the purpose of allowing prejudgment interest were the clause applicable to the matter of remedies in the instant case.

For the reasons set forth above, we hold that Congress has not waived sovereign immunity with regard to prejudgment interest in actions against the USPS under Title VII. The judgment of the District Court is affirmed.

ARNOLD, Circuit Judge, dissenting.

The Court's analysis is founded on the assumption that because the plaintiff's cause of action arose under Title VII, any waiver of sovereign immunity with respect to prejudgment interest must be found in Title VII rather than in the Postal Reorganization Act of 1970, 39 U.S.C. Sec. 401(1). Neither of the cases cited for this novel proposition goes so far. Murray v. United States, 686 F.2d 1320, 1324-25 (8th Cir.1982), cert. denied, 459 U.S. 1147, 103 S.Ct. 788, 74 L.Ed.2d 994 (1983), rejected the argument "that a waiver of sovereign immunity must be implied where it is alleged that the IRS has failed to comply with the seizure and sale provisions in the Internal Revenue Code," because, otherwise, "the IRS would be free to violate Congressional mandates with impunity." Garcia v. United States, 666 F.2d 960, 966 (5th Cir. Unit B), cert. denied, 459 U.S. 832, 103 S.Ct. 73, 74 L.Ed.2d 72 (1982), held that Title V of the Organized Crime Control Act does not waive sovereign immunity so as to enable a former protected witness to sue for damages for his allegedly wrongful expulsion from the federal Witness Protection Program. Both of these cases merely applied the well-established rule that a waiver of sovereign immunity "cannot be implied but must be unequivocally expressed." United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1503, 23 L.Ed.2d 52 (1969). Neither case held that a clear waiver found in one statute cannot be given effect in a case arising under another statute.

Section 401(1) of Title 39 provides:

The Postal Service shall have the following general...