Holly v. Chasen, 79-1492

• Decision Date: 07 January 1981
• Docket Number: No. 79-1492,79-1492
• Citation: 205 U.S.App.D.C. 273,639 F.2d 795
• Parties: Norman E. HOLLY, v. Robert E. CHASEN, Commissioner of Customs, et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 795

639 F.2d 795

205 U.S.App.D.C. 273

Norman E. HOLLY, v. Robert E. CHASEN, Commissioner of Customs, et al., Appellants.

No. 79-1492.

United States Court of Appeals District of Columbia Circuit.

Argued May 7, 1980.

Decided Jan. 7, 1981.

Linda M. Cole, Atty., Dept. of Justice, Washington, D. C., with whom Alice Daniel, Asst. Atty. Gen., Carl S. Rauh, U. S. Atty., Washington, D. C., at the time brief was filed, and William Kanter, Atty., Dept. of Justice, Washington, D. C., were on brief for appellants.

John Cary Sims, Washington, D. C., with whom Alan B. Morrison, Washington, D. C., was on brief for appellee.

Ann K. Macrory and James T. Kilbreth, III, Washington, D. C., were on brief for amicus curiae urging affirmance.

Before McGOWAN, ROBINSON and ROBB, Circuit Judges.

Opinion PER CURIAM.

PER CURIAM:

The question presented on this appeal is whether in a Freedom of Information Act case section 1961 of Title 28 of the U.S.Code authorizes the taxation of interest upon a judgment against the United States for attorneys' fees. We hold that it does not.

In December of 1975 our appellee Norman E. Holly filed suit in the District Court to obtain agency records under the Freedom of Information Act, 5 U.S.C. § 552 et seq. Holly, a layman acting without counsel, succeeded in obtaining most of the requested documents. Relying upon 5 U.S.C. § 552(a)(4)(E) the District Court taxed attorneys' fees and costs against the United States. The court based its fee award upon Holly's estimates of "opportunity cost" of his time.

The government appealed the fee award on the ground that the Freedom of Information Act does not authorize an award of attorneys' fees to a layman acting pro se. By order, without oral argument, this court affirmed the award. Holly v. Chasen, 186 U.S.App.D.C. 329, 569 F.2d 160 (1977).

Thereafter Holly asked the District Court to require the government to pay interest upon his award of attorneys' fees, for the period between the date of the award and the date of payment. The court granted the request, and ordered the payment of interest at 6% from the date of the judgment for attorneys' fees until such time as the judgment was satisfied. The court based this award upon 28 U.S.C. § 1961 which provides in pertinent part: "Interest shall be allowed on any money judgment in a civil case recovered in a district court." In a memorandum opinion the court stated:

The defendant counters that interest cannot be recovered against the United States unless it is authorized by an express statutory or constitutional provision, and that the cases cited by plaintiff involve only judgments against private litigants.

This court must agree with defendant that the United States is not liable for pre-judgment interest. However, 28 U.S.C. § 1961 seems to apply in mandatory terms to all judgments rendered against private or governmental litigants in federal district courts. It seems to be explicit statutory authority to tax interest against the United States, if any such explicit authority is required in the post-judgment period.

The Court has been unable to find any legislative history which would indicate this provision intended to exclude judgments against the United States or governmental entities. (Emphasis in original)

(Appellant's App. 19, 20) The government appeals from this ruling.

A statute authorizing the recovery of interest on judgments in civil cases in district courts has been on the books since 1842, and the operative language of the statute has remained substantially unchanged for a hundred and thirty-eight years. The Act of August 23, 1842, ch. 118, § 8, 5 Stat. 518 provided "That on all judgments in civil cases, hereafter recovered in the circuit or district courts of the United States, interest shall be allowed ... to be calculated from the date of the judgment...." The Act of March 3, 1911, ch. 231, § 291, 36 Stat. 1167, codified at 28 U.S.C. § 811 (1940) provided "Interest shall be allowed on all judgments in civil causes, recovered in a district court ... and it shall be calculated from the date of the judgment...." The Act of June 25, 1948, ch. 646, 62 Stat. 957, 28 U.S.C. § 1961 provides "Interest shall be allowed on any money judgment in a civil case recovered in a district court.... Such interest shall be calculated from the date of the entry of the judgment...." Until now no court has ever suggested that the general language in these statutes, authorizing the allowance of interest on judgments, permitted the taxation of interest on a judgment against the United States. On the contrary, the rule has always been that in the absence of constitutional requirements the federal courts cannot award interest upon a claim or judgment against the United States unless there has been an express waiver of sovereign immunity. United States v. Alcea Band of Tillamooks, 341 U.S. 48, 49, 71 S.Ct. 552, 95 L.Ed. 738 (1951); United States v. Thayer-West Point Hotel Co., 329 U.S. 585, 588, 67 S.Ct. 398, 399, 91 L.Ed. 521 (1947); United States v. Goltra, 312 U.S. 203, 207, 61 S.Ct. 487, 490, 85 L.Ed. 776 (1941); Smyth v. United States, 302 U.S. 329, 353, 58 S.Ct. 248, 252, 82 L.Ed. 294 (1937); United States ex rel. Angarica v. Bayard, 127 U.S. 251, 260, 8 S.Ct. 1156, 1160, 32 L.Ed. 159 (1888). See Blake v. Califano, 200 U.S.App.D.C. 27, 626 F.2d 891 (1980). The waiver cannot be by implication or by use of ambiguous language; it must be express, and it must be strictly construed. Tillson v. United States, 100 U.S. 43, 46, 25 L.Ed. 543 (1879); Thayer-West Point Hotel Co., supra; United States v. New York Rayon Importing Co., 329 U.S. 654, 658-59, 67 S.Ct. 601, 603-04, 91 L.Ed. 577 (1947); United States v. Sherwood, 312 U.S. 584, 589-90, 61 S.Ct. 767, 771, 85 L.Ed. 1058 (1941). See United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976); Fitzgerald v. United States Civil Service Comm'n, 180 U.S.App.D.C. 327, 330, 554 F.2d 1186, 1189 (1977). The rule makes no distinction between prejudgment and postjudgment awards, nor is there any reason for such a distinction; the bar of sovereign immunity applies to them both. United States v. State of Maryland, 121 U.S.App.D.C. 258, 261, 349 F.2d 693, 696 (1965); Anglin & Stevenson v. United States, 160 F.2d 670, 672 (10th Cir. 1947). The District Court focused on the wrong question when it searched for "any legislative history which would indicate (28 U.S.C. § 1961) intended to exclude judgments against the United States...." (Appellant's App. 20) The court should have looked for any express waiver of sovereign immunity. Had the court done so it could have found no express waiver, and would have reached the proper conclusion that interest on Holly's judgment could not be allowed.

In their brief in this court counsel for Holly assert "there is absolutely no extant legislative history which explains the Congressional motivation in 1842, when the predecessor statute of section...