Thompson v. Kennickell

• Decision Date: 08 August 1986
• Docket Number: No. 84-5821,84-5821
• Parties: 41 Fair Empl.Prac.Cas. 1435, 41 Empl. Prac. Dec. P 36,469, 254 U.S.App.D.C. 348 Dorothy M. THOMPSON, et al., Appellants, v. Ralph E. KENNICKELL, Jr., Public Printer.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1015

797 F.2d 1015

41 Fair Empl.Prac.Cas. 1435,

41 Empl. Prac. Dec. P 36,469, 254 U.S.App.D.C. 348

Dorothy M. THOMPSON, et al., Appellants, v. Ralph E. KENNICKELL, Jr., Public Printer.

No. 84-5821.

United States Court of Appeals District of Columbia Circuit.

Argued April 3, 1986.

Decided Aug. 8, 1986.

Appeal from the United States District Court for the District of Columbia, (D.C. Civil Action No. 74-01101).

Nora A. Bailey, with whom David M. Dorsen and Roderic V.O. Boggs, Washington, D.C., were on brief, for appellants.

Robert C. Seldon, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., Royce C. Lamberth and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on brief, for appellee.

Before WALD, Chief Judge, BORK and SILBERMAN, Circuit Judges.

Opinion for the Court filed by Chief Judge WALD.

WALD, Chief Judge:

The sole issue presented in this appeal is whether 28 U.S.C. Sec. 1961(a) requires the United States to pay post-judgment interest whenever it unsuccessfully appeals a money judgment rendered against it in a civil action. Appellants Dorothy M. Thompson, S. Vera E. Burnette, Melrie H.F. Aisquith, Shirley S. Alston and Bertha T. Gaither are the named representatives of a class of 324 journeyman bindery workers presently or formerly employed by the Government Printing Office. After successfully prosecuting a sex discrimination suit against the Government Printing Office and defending that judgment on appeal, these appellants moved the District Court for an award of post-judgment interest. Appellants argued that certain amendments to 28 U.S.C. Sec. 1961, enacted as part of the Federal Courts Improvement Act of 1982, entitled them to this award. The District Court denied appellants' motion after concluding that the 1982 amendments to 28 U.S.C. Sec. 1961 did not amount to a clear waiver of sovereign immunity for awards of post-judgment interest. We affirm the District Court.

I. BACKGROUND

A. The District Court Litigation

This appeal arises in the aftermath of a complex sex discrimination class action brought by women bindery workers against the Government Printing Office. In 1980, after several years of litigation, the District Court awarded the bindery workers, inter alia, front and back pay under the Equal Pay Act of 1963, 29 U.S.C. Sec. 206(d), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-2. See Thompson v. Boyle, 499 F.Supp. 1147 (D.D.C.1980). This court substantially affirmed the District Court's judgment. See Thompson v. Sawyer, 678 F.2d 257 (D.C.Cir.1982).

On May 17, 1984, appellants moved the District Court under 28 U.S.C. Sec. 1961(a) for an award of post-judgment interest on the sums paid or payable to them in satisfaction of the judgment against the Government Printing Office. Although acknowledging that this court had previously held that the United States had not waived sovereign immunity against such awards of post-judgment interest, see Holly v. Chasen, 639 F.2d 795 (D.C.Cir.) (per curiam), cert. denied, 454 U.S. 822, 102 S.Ct. 107, 70 L.Ed.2d 94 (1981), appellants argued that intervening statutory changes enacted as part of the Federal Courts Improvement Act of 1982 now authorized the payment of post-judgment interest by the United States on all federal district court judgments unsuccessfully appealed by the United States. See Pub.L. No. 97-164, Sec. 302, 96 Stat. 25, 55-56 (1982).

The District Court denied appellants' motion on the ground that it was not authorized to award interest against the United States absent an express waiver of sovereign immunity. According to the District Court, the 1982 amendments to 28 U.S.C. Sec. 1961 were not sufficiently "clear, unambiguous, express or explicit" to warrant any interpretation of the amendments as "a sweeping waiver of the government's traditional right, based on sovereign immunity, to avoid interest on judgments." Thompson v. Barrett, No. 74-1101, slip op. at 1, 2 (D.D.C. Sept. 7, 1984).

B. The No-Interest Rule

Under well-settled principles of sovereign immunity, the United States cannot be sued without its consent. Courts, moreover, must strictly construe the language of purported waivers in favor of the sovereign. "[T]here can be no consent by implication or by use of ambiguous language." United States v. N.Y. Rayon Importing Co., 329 U.S. 654, 659, 67 S.Ct. 601, 603, 91 L.Ed. 577 (1947). See also United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976); United States These principles of sovereign immunity take on added force when applied to claims for interest against the United States. Interest cannot be recovered in a suit against the United States absent an express waiver of sovereign immunity from the award of interest separate from a general waiver of immunity to suit. See Library of Congress v. Shaw, --- U.S. ----, 106 S.Ct. 2957, 2959-62, 92 L.Ed.2d 250 (U.S.1986). This "no-interest rule" harkens back to the days when interest was viewed as a penalty separate and distinct from the damages arising from a substantive claim. Because interest was conceived of as a penalty, it was generally presumed not to be within the contemplation of the parties to an agreement. See Library of Congress v. Shaw, --- U.S. at ---- n. 2, 106 S.Ct. at 2961 n. 2. Courts therefore required that Congress separately and affirmatively consent to an award of interest and did not read an intent to permit the recovery of interest against the United States into a general waiver of immunity from suit. See Library of Congress v. Shaw, --- U.S. at ----, 106 S.Ct. at 2961. Appellants argue that even under this rigorous standard, the Federal Courts Improvement Act of 1982 effectuated a waiver of sovereign immunity against awards of post-judgment interest.

v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1502, 23 L.Ed.2d 52 (1969).

C. Post-Judgment Interest Before the 1982 Act

To properly evaluate appellants' argument, it is necessary to set forth at length the state of the law before the Federal Courts Improvement Act of 1982. Prior to its amendment by the Federal Courts Improvement Act, 28 U.S.C. Sec. 1961 provided that:

Interest shall be allowed on any money judgment in a civil case recovered in a district court. Execution therefore may be levied by the marshal, in any case where, by the law of the State in which such court is held, execution may be levied for interest on judgments recovered in the courts of the State. Such interest shall be calculated from the date of the entry of the judgment, at the rate allowed by State law.

28 U.S.C. Sec. 1961 (emphasis supplied). Although this section, literally read, appears to have mandated the award of interest "on any money judgment" in a civil case in district court, we nonetheless held that the language of section 1961 was insufficient by itself to permit an award of post-judgment interest against the United States. See Holly v. Chasen, 639 F.2d 795, 796-97 (D.C.Cir.) (per curiam), cert. denied, 454 U.S. 822, 102 S.Ct. 107, 70 L.Ed.2d 94 (1981). Our holding relied on the legislative history of the predecessor to section 1961, which demonstrated that Congress did not intend its general authorization of post-judgment interest to require the payment of such interest by the United States. See 639 F.2d at 797.

This court found further support for its anti-waiver interpretation in three specific statutory provisions, 28 U.S.C. Sec. 2411, 28 U.S.C. Sec. 2516, and 31 U.S.C. Sec. 724a. These provisions designated certain judgments against the United States on which interest would be allowed and established both the rate of interest and the time period during which such interest would be payable. As we explained in Holly, "If 28 U.S.C. Sec. 1961 is read to confer an automatic entitlement to interest at the rate provided by state law on all civil judgments against the United States, these very detailed statutory provisions will all become superfluous." 639 F.2d at 797-98.

Before turning to appellants' argument it is also necessary to lay out the fairly complicated statutory scheme governing awards of interest against the federal government incorporated in the three statutory provisions cited in Holly v. Chasen. These statutes permitted the award of interest against the federal government in four classes of cases: (1) Internal Revenue cases; (2) Federal Tort Claims Act cases; (3) Tucker Act cases seeking damages of less than $10,000; and (4) Court of Claims cases. The interest rate paid by the federal The potential liability of the United States for interest was greatest in judgments rendered against it for overpayment of taxes. In such cases the United States was liable for both pre-judgment and post-judgment interest. Subsection (a) of 28 U.S.C. Sec. 2411 provided that such interest was payable from the date of the payment or collection of the tax to a date preceding by not more than thirty days the date of the refund check. The interest rate in tax overpayment cases was the "adjusted prime rate" established by the Secretary of the Treasury under section 6621 of the Internal Revenue Code. See 26 U.S.C. Sec. 6621.

government and the time period during which it was liable for interest varied dramatically depending on which of these four types of cases was involved.

An entirely different interest rate and time period governed post-judgment interest awards on judgments against the United States under the "Little Tucker Act," 28 U.S.C. Sec. 1346(a)(2), and the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 1346(b), 2674. Subsection (b) of 28 U.S.C. Sec. 2411 fixed the interest rate on such judgments at 4% per annum and provided that interest would run "from the date of the judgment up to, but not exceeding, thirty days after the date of approval of any appropriation Act providing for payment of the judgment." 28 U.S.C. Sec. 2411(b). The time period set forth in subsection (b) of 28 U.S.C. Sec. 2411 was further limited by 31 U.S.C. Sec. 724a....