Tommy Shaw v. Library of Congress

Tommy SHAW CONGRESS,

LIBRARY OF et

al., Appellants.

No. 82-1019. Appeals,

United States Court

District of Circuit. Columbia

Argued Sept.

Decided Nov.

As Amended Nov.

Ginsburg, Judge, Circuit filed dissent- opinion.

ing III, ROBINSON, W.

SPOTTSWOOD Judge: Chief corollary sovereign A to the doctrine immunity exempts the United States from express liability for absent its con appeal thereto.1 The sole issue on this sent the District Court dishonored whether when, in assessing an attor precept ef neys’ against fee the United percent upward adjustment of fected a 30 compensate attorney the the lodestar2 to n payment. adjustment alternatively sustain the We First, grounds. on we conclude that two language authorizing the the statute attorneys’ allowances employment-discrimination cases waives its respect delay component Second, component we find that award. by relaxing line of cases validated rigor sovereign-immunity traditional Birch, Atty., U.S. John Oliver Asst. doctrine. D.C., Stanley with whom S. Washington, D.C., Harris, Washington, Atty., at the filed, Royce I C.

time the brief was Lamberth, Atty., Washington, Asst. U.S. Shaw, 1977, Tommy again In 1976 and brief, D.C., appellants. were on the Library employee of Con black Raisler, Atty., M. Kenneth Asst. complaints job-related gress, submitted D.C., Washington, appear- also entered an Library’s Equal discrimination to the racial appellants. ance for Employment after Office.3 com Library remained resistant these Ralston, Stephen City, New York Charles plaints, engaged adminis Shaw’s counsel Chase, Ralph, Chevy with whom Shalon during proceedings the course trative Md., brief, appellee. on the was negotiations cul entered into thereof agreement.4 in a As minated settlement ROBINSON, Judge, WALD Before Chief settlement, Library agreed GINSBURG, Judges. Circuit retroactively promote with back- Shaw Comptroller pay provided the General first Opinion filed for the Court Chief authority Library had determined that ROBINSON, III. Judge W. SPOTTSWOOD finding specific of racial to do so without a General, Judge Comptroller Dissenting Opinion filed Circuit discrimination.5 however, Library pow- lacked held that GINSBURG. Doc.) 1979), (R. 1 [herein- Record Document IV 1. See Part infra. Complaint], cited as after component of an fee is lodestar reasonably product of "the number of hours Agreement Release 4. Settlement and General hourly expended multiplied a reasonable 1, 1979), (filed Complaint, 1 to Feb. Exhibit Marshall, U.S.App.D.C. Copeland rate.’’ 390, 401, cited R. Doc. [hereinafter (en banc Agreement], Settlement Library Complaint Con- Shaw v. 3. pp. (filed 5. Id. at Doc. 1. (D.D.C.) R. gress, Civ. No. 79-0325 Feb. Pay the Back Act er of 19666 to for 103.75 hours of work Shaw’s behalf pursue that course.7 during the course of proceedings.15 those events,

Dissatisfied with this turn of Largely dismissing Library’s chal sued in District lenges Shaw Court8 and ulti hourly both rate and the mately position prevailed on his number hours claimed Shaw’s couns Library authority el,16 had to afford the relief computed the District Court a lode $8,435,17 specified in the settlement As accord.9 star of based on 99 hours of work victory, proposed rate, of Shaw’s the result court ordered the hourly excluding $85 litigation that he be awarded costs and its calculation hours 4.75 which coun fees,10 attorneys’ withholding, reasonable sel devoted to research in abortive ef however, impart fort aspect determination of dollar class-action the Shaw’s complaints.18 after administrative proceed amount thereof until further The Marshall,11 court then reduced ings and this the lodestar Copeland per court’s decision in cent quality to reflect the of en banc.12 pending By repr then counsel’s Lastly, time, esentation.19 and most important primary responsibility this prose for ly appeal,, for this the court increased upon cution of had Shaw’s claim devolved percent compensate lodestar coun lawyers, but efforts new of his earlier delay payment sel for in actual for Library counsel before the and in the Dis legal services he had rendered.20 The trict Court had time involved considerable explained: court Cope energy.13 After our decision in land was announced, counsel for an August moved This case should ended in have fees,14 requesting allowance of or at the latest in November of that compensation year. at the rate of hour per $85 If had been com- [Shaw’s counsel] 90-380, Ralph . participated 6. Act of Mar. Pub.L. No. tied. in administrative (codified proceedings negotiations, Stat. 94 amended at as and assisted the (1982)). 5595-5596 preparation §§ other of a counsel brief to the Comptroller representation General and in their Dembling 7. Letter from Paul G. C. to Donald of Shaw District Court. Hereinafter (Nov. 1978), Complaint, Curran Exhibit 2 to counsel, speak when we we Shaw’s refer to supra Comptroller note R. Doc. 1. The Gen Ralph. eral declined to Civil consider whether 88-352, VII, Rights Act of No. Pub.L. tit. Attorney’s 14. Plaintiff’s Motion for Award of 717(b), Equal 78 Stat. as amended § Costs, Library Congress, Fees and Shaw v. Employment Opportunity Act of Pub.L. (D.D.C.) (filed 1981), May Civ. No. 79-0325 92-261, (codified Stat. § No. as R. Doc. 37. 2000e-16(b) (1982)), § amended at 42 U.S.C. promotion backpay authorized retroactive II(2), 15. Id. R. Doc. 37. instance, presumably in Shaw’s brary inquired only because the Li authority to its under the 16. See Defendant’s Memorandum Points and Pay Act. Back Opposition to Motion for Attor- Authorities Library Congress, F.Supp. Fees, 8. Shaw v. ney’s Library Congress, Shaw v. Civ. No. (D.D.C.1979). (D.D.C.) (filed 1981), 79-0325 June R. Doc. 41. Congress, Library F.Supp. 9. Shaw (D.D.C.1979). 17. The District Court amade mathematical mis- $8,435; take when it calculated lodestar at 10. Id. 950. per $85 99 $8,415, of work at hour hours comes to Supra $8,435. 2. 11. accordingly We treat the $8,415. lowered lodestar as Congress, Library Shaw v. F.Supp. at 950. Library Congress, 18. Shaw v. Civ. No. 79-0325 6-8, .(D.D.C. 1981) (memorandum) Nov. R. litiga- Ralph, Shalon claimant in the fee Doc. 45. tion, attorney succeeded Shaw’s another early while the in its counsel case was 8-9, R. 19. Id. at Doc. 45. phase. for administrative Additional counsel thereafter, picture shortly entered Shaw attorneys' set- 20. Id. R. their claims for fees have been time, Marshall,26 we declared en banc that pensated at about he could money average at an can invested the be held liable Title have Rights per year. than is VII of Act of 196427 yield of not less It the Civil 10% augmented in an attorneys' neither nor fees amount the fault of [Shaw] [counsel] compensate lag attending payment. payment was not made It is sooner. if payment is We said: reasonable assume promptly, counsel will his made receive by December reimbursement additional factor services rendered Accordingly, accompanying order re may incorporated into a contin upward adjustment flects 30% adjustment. hourly gency rates delay.21 pre represent used in the “lodestar” typically pay vailing rate clients who Then, offsetting percent the 30 increase promptly. their bills Court-awarded percent the lodestar reduction long after normally are received le lodestar, granted the District Court gal delay are rendered. That services percent net 10 addition to the lodestar22 problems can for present cash-flow the and, accordingly, counsel awarded a fee of event, attorneys. payment today In $9,278.50.23 The Library appealed,24 long past rendered services arguing percent upward adjust that the 30 deprives recipient of the eventual the delay infringes ment for the rule that inter money the use of the the- value of against may est not be assessed the United meantime, use, particularly in in the absence of waiver.25 era, inflationary percent is A valuable. II age delay adjustment reflect the posed appeal hardly may app The issue on of therefore Copeland impression. ropriate.28 one of first Id., omitted). (footnote Appellant at 21. R. Doc. 45 The court 25. Brief for 5-8. justified adjustment ground further the on the Library might have that the earlier tendered Supra note 2. partial payment despite the to counsel outstand- ing Copeland appeal in v. Marshall. Id. at 9 n. 88-352, VII, 706(k), tit. 27. Pub.L. No. 78 Stat. 4, R. Doc. 45. (codified (1964) at 42 amended 2000e-5(k) (1982)) cited as codi- §§ [hereinafter dissenting R. col Id. Doc. 45. Our fied], unfairly league implies the District Court by utilizing penalized simple counsel rather Marshall, Copeland interest, compound than and arith committed (footnotes App.D.C.at 641 F.2d at 893 by metic error when it increased the lodestar omitted). We citation also endorsed calculation figure by then 30% and lodestar, reduced that 20% of the presently-prevailing hourly on lodestar by upwardly rather than 20% compensating rates of as an alternative method (Dis. Dissenting Opinion adjusted figure. See delay. attorneys F.2d Id. at 403 n. Op.) Judges at 16 n. 13. have broad latitude in 893 n. 23. fees, Marshall, attorneys' setting Copeland v. su that, regardless may of We note here whether U.S.App.D.C.at pra note 641 F.2d at the the or a defendant is 901; Rumsfeld, U.S.App.D.C. Cuneo v. party, delay-in-payment adjustment would (1977), and in neither per- appropriate only the where lodestar is the respects say that these can we the District of charge pay when hour to clients who billed. Court abused discretion. Weinberger, Murray 741 F.2d 1423 (D.C.Cir. repre- Aug. If the lodestar Congress,supra Library 23. Shaw of higher charged who sents a rate clients sue Doc. 45. court also awarded Shaw R. statutes, already costs, fee-shifting id., under it has taken Library $47.50 in which the does disadvantage pecuniary into appeal. account the result- challenge on ing lengthy payment ordinari- from the wait for ly instance, In such an argument appeal, encountered such statutes. After oral we ordered $6,779.50, upward adjustment delay Library pay the to counsel the portion would, course, attorney being dispute. of result in the of the award not in Shaw (D.C.Cir.1983) delay. paid appears that Library Congress, It twice of setting judgment). (partial relied on Court cases District subsequently princ reaffirmed this We have Ill indeed, and, iple upheld have an award course, inquiry, initial is whether against the United States attorneys’ percent augmenta the District Court’s adjusted upward to com fact was tion of the in payment lodestar delay.30 pensate for constitutes “interest” contemplation States within seemingly Despite applicability clear Library. the rule invoked Shaw however, precedents, we do not these component characterizes of the fee disposition rest our on stare decisis alone. ingredient proper award reason upward delay adjustment Whether an fee, able contradistinction to rigorous attorneys’-fee award satisfies only way interest.33 The to determine requirements sovereign-immunity whether to the lodestar this addition doctrine is an issue we have dealt with condemned traditional rule have peripherally,31 one we never prohibits. is to ascertain what recognize, too, squarely addressed. We jurisdictional implications any legal Perhaps example the clearest of interest doctrine, bar created acknowl court, appears calculating when a after edge the existence decisions this cir monetary judgment, amount of a adds a Copeland cuit in conflict arguably percentage compensate of that amount point.32 progeny and its on this We there money the claimant for loss of use of the opt Library’s argument fore during period to consider between the claimant’s presented upon were much as if it a clean money initial entitlement to the the day judgment slate. is rendered.34 the long- Here Marshall, 2, per-hour Copeland lodestar supra $85 for counsel here did 31. See v. note 205 way 25, delay U.S.App.D.C. not in include a element in their at & n. 404-405 641 F.2d at per-hour Slope own rate North (holding calculations. 894-895 & n. that for 25 attor Andrus, (D.D.C. Borough F.Supp. neys’ v. 515 961 Title fees under VII is the for same 1981), grounds other rev’d on sub. nom Katkovik any private party); Holly United States as for v. 39, Watt, U.S.App.D.C. Chosen, 273, 276, 795, v. 689 F.2d 222 223 U.S.App.D.C. 205 F.2d 639 (1982); Pertschuk, Empl.Prac. 798, denied, Bachman v. 19 cert. 454 U.S. 102 S.Ct. 70 (D.D.C. 1979). (CCH) Dec. at 6507 See (1981) (overturning, grounds L.Ed.2d 94 on f 18, 7, Library Congress,supra Shaw v. note at sovereign immunity, judg award of interest on disposition appeal, R. Doc. 45. Our of this how against ment United States in a Freedom of ever, a remand order that case, will include in expressly reserving Information but Act may make District Court certain counsel is question upward adjustment in an whether at being compensation awarded double torneys’ compensate delay fee award to for delay. invalid). would likewise be Justice, Dep’t 29. Jordan v. United States 223 Chasen, 31; Holly supra Blake v. 325, 329, (1982) U.S.App.D.C. 518 ano, U.S.App.D.C. 200 626 F.2d 891 Calif (involving attorneys’ against claim Unit (1980). language The dissent’s use of broad in provision ed States under of Freedom of Infor Segar Smith, 103, 150, U.S.App.D.C. 238 738 Marshall, (citing Copeland supra mation Act (1984), may give impression F.2d 402-403, U.S.App.D.C. note 892-893, 641 F.2d at here, attorneys’-fee provision that the at issue proposition attorneys’ fee (1982), 2000e-5(k) U.S.C. § was involved in Se- may delay payment)); award in reflect National gar. Op. Segar Dis. at 5. concerned Secretary Ass’n Concerned Veterans v. fense, De award of backpay interest under the section of 94, 103, 110, U.S.App.D.C. VII, Title 2000e-5(g); dispute 42 U.S.C. § 1319, 1328, (1982) (affirming propriety did attorneys’ not extend to interest under the against adjusting attorneys’-fee award provision, (1982), 2000e-5(k) fee 42 U.S.C. § compensate delay two Freedom States to language wholly which uses different one of Information Act cases and Title VII employed backpay in the section. case). Appellant 33. Brief for at 10. EPA, U.S.App.D.C. EDF v. (1982). Weinberger, Murray v. Cf. E.g., Thayer- United States WestPoint Hotel (allowing proper- a Co., 329 U.S. 67 S.Ct. ly-justified adjustment lodestar (1947). L.Ed. claim). in a Title VII fee general compen sover “the same end rule refuses view the served established addition, eign having sating recipient as consented to the for differences the claim though even consent suit on her between worth of the date award results has been established.35 The same and the date of which the actual which, though follow court-awarded sums paid.”38 money should have been man calculated the classic interest bar, In the District case ner, functionally equivalent nonetheless are percent addition to the lodestar Court’s Supreme to interest. Thus Court designed to reimburse counsel was Shaw’s a that an increase in an rejected contention of his for the decrease value uncollected against the Court of assessment Claims the date on he legal between compensation made the United legal his court’s concluded services and the mining occupation a for loss of use and likely receipt.39 estimated date of ac.tual appropriated claim the United States description, By the court’s the addition own earlier, “compensation” rather years was rough of the was based determination The Court reasoned than interest.36 “average yield” if of the amount of the fee money “the loss use because percent per at 10 annum for three invested the failure collect sooner results from adjustment We years.40 think the falls the com claim held have accrued when within contours of the interest well taken, pany’s property was that which Only applicable concept. by ignoring case- substance, is, in company to recover seeks as well as as the real nature of the law recently held an interest.”37 We ourselves adjustment any disputed could we find of back- adjustment” “inflation awards thing in employees other than an assessment of pay to amounted federal against proceed, the United because United States.41 We terest spectively” “retrospec- E.g., Tilla- v. Alcea Band while interest awarded United States mooks, tively.” Op. L.Ed. Dis. 4-5. This distinction Goltra, apparently dispositive significance. United States takes on fictional, any prospectivity L.Ed. We note that here is fee-shifting for an award under statute benefit- 36. Trading Transp. v. North Am. & ing' only party prevailing litigation can Co., L.Ed. 935 prospectively. important- never be made More why ly, we cannot moment in time at or see compensation delayed receipt for of as of 521, 37. 338, at at Id. at 40 S.Ct. 64 L.Ed. 939. matter; us, payment is calculated should for it adjusted why upward reason the fee is is the 32, 38. Blake v. U.S.App. Califano, supra note delay that is vital. of a factor to the Addition Accord, 31, at F.2d at 895. Saunders D.C. only compensate attorney lodestar serves 596, (9th Cir.1980), Claytor, cert. money loss of use earned denied, 980, 1515, for of from 67 L.Ed.2d U.S. essence, time of rendition of services to the time of (1981) ("[i]n factor inflation 815 adjustment 28, supra award"). of the text at disguised fee. See note interest Marshall, Copeland supra quoting note supra at note 21. See text 39. U.S.App.D.C. 641 F.2d at The dis- 893. itself, distinguishing delay factor sent 40. Shaw v. Congress, Library supra note of interest, delay from characterizes factor 9-10, R. Doc. 45. embarking attorney "an on services for thus: anticipates payment ultimately, or which he she Tribe, 41. See United States Mescalero Apache may expected promptly, factor in but not denied, (Ct.Cl.1975), cert. By delay.” Op. Dis. at 1. this we can 47 L.Ed.2d colleague in- assume that our means that the ("the (1976) ‘interest’ or character nature supposed possibili- compensate for a crease is ‘loss,’ by calling ‘damages,’ changed cannot be delayed consequently ty payment, increment,’ 'just ‘dis compensation,’ 'earned count,’ ‘offset,’ money during deprivation of use of the fee term, ‘penalty,’ any other or delay. period distin- We are unable to no-interest because it is still interest and compensation guish use, between that and omitted). it”) (footnote applies money or detention of forbearance adjust- upward —the suggests that The dissent an understanding of If the common interest. compensate for attorneys' fee to ment an and, interest, sounds acts like interest factor like from inter- delayed receipt can be differentiated all, compensates exactly as interest most “pro- applies ground on the that the former est then, Library’s attorney’s part to the contention that the fee as reasonable of the costs, this regard Court’s action in disre- District and the Commission the Unit the dictates of the doctrine of sover- gards ed liable States shall be costs the eign immunity. private person.45 same as a course, private person, A may be held IV ingredient liable for interest of a The United cannot States be sub award,46 Title VII attorneys’-fees and this jected monetary liability pursuant save subjects section the United States to liabili waiver of immunity.42 to a its ty private person,” for “costs the same as a Moreover, scope of such waiver is to and authorizes assessment of “a reason strictly The construed.43 instant case part attorney’s able fee as of the costs.” a corollary principles, involves of these Congress We conclude thus has term which for convenience the “inter we immunity waived the of the United States By est rule.” the United States liability component for interest as a may not be held liable for interest absent attorneys’ fee allowed under Title The vn. express immunity.44 waiver of its question we face whether here is statutory express, waiver and its respect has waived that range is defined unmistakable language. part an allowance interest as of an attor say person, To but not the here, awarded, neys’ fee under Title VII. States, United is liable Title VII for relevant section Title VII interest as an element of an provides that unambiguous statutory would rob the lan- proceeding action or under this guage plain meaning. its It would de-

[i]n court, discretion, subchapter the the statutory impositionupon feat the Unit- may prevailing party, costs, allow the other ed States of a and the [Equal Opportuni- statutory Employment than “a inclusion of reasonable attor- ty] ney’s costs,” Commission United or the fee as identical to would, compensation. Califano, we feel to treat it as supra constrained See Blake v. purposes sovereign-immunity U.S.App.D.C. rule. n. 626 F.2d at 893 n. and cases cited therein. For a discus- Sherwood, E.g., United States v. exceptions, sion of two other see note 90 and 61 S.Ct. L.Ed. Part V infra. Lee, (16 (1941); Otto) 106 U.S. 1 S.Ct. (1982) 2000e-5(k) (emphasis U.S.C. § add- McLemore, (4 How.) (cid:127) ed). applicable This section made was to the L.Ed. Equal United States in cases such as this Employment Opportunity Act of Pub.L. Sherwood, E.g., United States v. (codified No. 86 Stat. at 42 312 U.S. at 85 L.Ed. at 2000e-16(d) (1982)). Though U.S.C. § on occa sion we have found that asserted waiv immunity ers of from interest were not Louisiana, E.g., 446 United States v. U.S. Chasen, 31; "express," e.g., Holly v. 264-265, 1618, 1626, 64 100 S.Ct. L.Ed.2d Califano, supra Blake v. we have not entirely been Courts have not con- question heretofore addressed the whether the applying Compare however. sistent in this cited section a waiver. effects such Sutherland, v. U.S. Henkels S.Ct. (1926) (allowing 70 L.Ed. interest as power 46. Courts to allow interest in have broad component of assessment cases, private-sector e.g., Rodgers securities, v. United prevent confiscation of to for 373-374, 5, 7, enrichment), 332 U.S. 68 S.Ct. Angarica Bayard, unjust with (1947), pre (1888) L.Ed. 6-7 have affirmed this and 32 L.Ed. 159 S.Ct. rogative attorneys’-fee awards under Title (disallowing item assessment interest as an Inc., Uniroyal, Chrapliwy money VII. See against United withheld from States for Cir.1982), denied, (7th awardee). & cert. n. 6 established an ex- Courts have also 77 L.Ed.2d U.S. (1983); 103 S.Ct. ception eminent domain to the rule in inverse Co., cases, F.Supp. been allowed as an Brown v. Gillette in which interest (D.Mass.1982). just measure of 123-124 element constitutional immunity waiving from party statutory in similar circum schemes private that of statutory scope-setting no liability, simply more stances. interest there is private person”— as a complete same words —“the way to ensure direct and effective liability for mark out the United States’ and other parity between the United States as well as costs in the tradi respect than to say costs litigants with to responsibility judges Our as tional sense. Congress many in so words. That did so provision according its enforce this to is to section, conclude, evinces in this we an so terms.47 meaning “express” waiver within goal Congress articulated its

We think interest rule. by providing govern clearly enough obviously understood broad Congress private per liability “the same as a mental language makes the United sweep of which have Conceivably, Congress might son.” person.” just private as as “a liable States by leg purpose attempted to effectuate its Federal In the Torts Claims Act,50 costs, including listing each item of islation Congress discuss made later we further,51 interest, might' for which the United States certain torts “in States liable for the United approach, how held accountable. That manner to the same extent as the same ever, discovery have could well led to like private individual under circumstance items, among the enumerated of interstices s,” immediately curtailed obvi but have especially since the courts would had import language by providing ous obey requiring construc to strict not be the United States “shall liable tion of waivers immunity;48 prior interest' It likely consequently, judgment.”53 not adoption, would Congress why both difficult understand objective, congressional have achieved if pre-judgment exclude interest ered to here, the United States manifest upon imposition the United States liabili parties differently treated no from ty “to the same extent as a individ us It seems to in similar circumstances.49 that, despite availability of alternative ual under like circumstances” was insuffi- consistently depart Congress example, could declined to As another have 47. Courts have language plain meaning statutory providing a statute that "the United from enacted contrary legislative costs, including absent clear indication of a shall be liable but not States Turkette, intent, e.g., interest, United States private per- as a limited the same 2524, 2527, 576, 580, L.Ed.2d son,” stating equal thus the rule treatment (1981), obligation recognized and have an possible specifying as an item of interest statutory provision construction avoid a unnecessarily recovery. We strin- think it thereof, e.g., term United that obviates rule, however, gent application of the interest 538-539, Menasche, States “express” waiver treat the here at issue 513, 520, component regard of an to the attor- interest because the word The dissent contends that Congress neys’-fee simply award because did historically has not included "costs” express precisely itself that form. To do statutory ingredient, waiver of meaning plain defeat so would rele- liability for "costs" can States' use, language did vant strictly, reasonably, much be construed less not to extend to interest. failing penalize Congress insert Dis.Op. at 7. We cannot language already clearly-writ- redundant into reasoning. sec The Title VII to this subscribe immunity. easily-applied ten and waiver of scrutiny rejects tradi in terms tion repudiates com concept of costs. It tional Aug. Stat. Act of ch. costs monly-understood between difference (codified 2671 et §§ as amended at 28 see, fees, e.g., Roadway Express, attorneys' Inc. seq. and other scattered sections of 28 U.S.C. 752, 759-761, Piper, 447 U.S. codified]). (1982) cited [hereinafter 65 L.Ed.2d 496-498 Justice, Dep’t 221 U.S. v. United Baez 477, 480-483, App.D.C. (en Kane, F.2d 684 51. See text at notes 91-97. infra 1982); Wright, A. Miller & M. 10 C. banc (2d at 173-174 Federal Practice 2666 § (1982). § 52. 42 U.S.C. 2674 attorneys’ 1983), establishing by explicitly ed. a subset of fees as costs. Id. 53. accompanying supra text. 48. Sec note 43 and

1477 express constitute waiver cient to On the basis of such close explicit.”60 liability precedent, sense, for that interest. as well as common we “magic believe that “interest” is not a attorneys'-fee of Title That section word” the recital of which prerequisite actually not VII does use the “inter word sovereign immunity waiver of respecting not, view, in our the waiver est” does make component attorneys’ interest of an express. Notwithstanding any less Surely if Congress award. were to enact a history and long variety wide verbal comprehensive unambiguous statute we articulations interest have abrogating entirely purposes and for all single supporting not uncovered a case doctrine, sovereign-immunity we would that a proposition waiver of im immunity not resuscitate the United States’ express is not that munity merely on acc respect merely with to interest because fact, weigh In several decisions ount.54 Congress specifically did not enumerate against position. Supreme Court Rather, “interest.” we would construe satisfy Congress may has held provision express such a as waiver requirements analogous of an rule—that immunity implement interest it accord by its the United States is not bound own ingly, reality and in we do no more here. expressly unless statutes named therein55 identifying the States in general —without United We our more underscore view many Additionally, approach so this circuit insightful problem to the words.56 construing pur undermined, recently when before entirely us is if not held,57 ported governmental immunity waiver of precluded, logomachic applications of liability from fees under the the interest rule. Courts bear this observa “attor Alyeska by consistently that the words tion out avoiding a wooden doctrine,58 neys’ “magic are not or express fees” formulaic definition of waiver words”59 require satisfy referring must when use to the interest rule. This if “specific, ment that the waiver be not rigid circuit itself has declined to fashion a 175, invoking California, 54. Most cases the interest rule to v. United States 187, 297 U.S. 186- 421, 425, 567, States (1936). disallow the United have 80 L.Ed. 574 respect types done so to two of statutes. Some have done so in the of a statute context Whitehurst, 228, Kennedy U.S.App.D.C. 57. v. 223 clearly naming apparently or even the Unit (1982). 690 F.2d 951 potentially subject provisions. ed as to its 31, Chosen, E.g., Holly supra v. 205 U.S. note Pipeline Alyeska 58. See Serv. Co. v. Wilderness 274, App.D.C. (construing at F.2d 639 at 796 28 240, 1612, Soc’y, U.S. S.Ct. 421 95 44 L.Ed.2d (1982)). 1961 refused Others have § (1975). gelatinous find waivers in the context of or extremely general statutory language, such as 57, Whitehurst, Kennedy supra note entitling parties “any equitable those other relief 229, 962, citing at U.S.App.D.C. at F.2d Fitz appropriate,” as no, deems the court Blake Califa Comm’n, gerald v. United States Civil Serv. 32, 29-31, supra U.S.App.D.C. note 327, 8, 1186, U.S.App.D.C. &330 n. (construing 42 U.S.C. 893-895 (1977). ano, 1189 & n. 8 Accord Smith v. (1976)), 2000e-5(g) e.g., Calif "just compensation,” (D.D.C.1978). F.Supp. Goltra, supra United States v. note 312 U.S. 207-211, 61 S.Ct. at L.Ed. at Whitehurst, Kennedy supra (1934)), (construing 48 Stat. due,” U.S.App.D.C. at equitably 690 F.2d at The stan "the amount Tillson United (10 States, Otto) language assertedly waiving gov dard L.Ed. contrast, provision ernmental for interest specifically judged express States as will de before us names United or not has been scope ],” potential payor e.g., "specific! of its stakes out the scribed Gol United States v. tra, liability distinctly. 312 U.S. at 61 S.Ct. at Fitzger "explicit,” e.g., Sutherland, Statutory A. 55. See Statutes and Staats, U.S.App.D.C. ald v. (C. 4th ed. §§ Construction 62.01-62.04 Sands denied, cert. if The similar 58 L.Ed.2d 680 Kennedy ren identical standard utilized See Nardone directly point. ders it L.Ed. 1478 liability of the United States ... is a and the courts concept express waiver,61 law, and its extent of federal any matter need to establish perceived

have not a imposing it must be procedures thereof. formulation particular verbal 73 Supreme sought in the statutes.” Rather, variously required, if they have view, declaring 63 echoed this Court has waiver, “express” a anything at all,62 gauging waivers asserted the standard waiver, waiver, a “elearcut”64 “specific”65 immunity express or not is sovereign waiver, “unequivoc “explicit”66 fairly “can inter the statute be whether 68 67 waiver, waiver, “manif “plain” a a al” mandating governmental liabilit preted” as 69 waiver, waiver, an est” “affirmative”70 respect it Giving counsel is waiver, or a waiver an “unambiguous”71 y.74 here due, of waiver we think a disclaimer adjec of these described a combination by concept express impart to the nothing talismanic in the There is tives. understanding more limited and waiver we would distort word “express,”72 achieve the necessary to formalistic than to inform its interest rule were we underlying the interest rule. objectives any intuitive call application by resort thought clarity legislative expression is reinforced re This conclusion in the recesses of the peculiarily courts, recognizing to lurk solve of several word, analogously any applying other term used perspective when need for by which claimed as an ostensible criterion of sover requiring strict construction Rather, judged. waivers, vigorously are to our use resist eign-immunity waivers ap tendency rule is instructed more of the interest of the rule to become increas demanding by inert ingly to the touchstone force of own propriately reference it, put the strict- “that ia.75 As one court sovereign-immunity doctrine: 32, E.g., Rayon U.S.App. v. New York Im- Califano, supra 200 70. United States 61. Blake v. note 654, 659, 601, 604, Co., 30, porting U.S. 67 S.Ct. 329 C. at 626 F.2d at 894. D. 577, (1947). L.Ed. 582 91 . occasion, specified any 62 On courts have not particular which waivers standard E.g., Thayer-West v. Point Hotel 71. United States regarded express or not. will be 34, 590, Co., supra U.S. at 67 S.Ct. at note 329 g., Volunteer Sol E. National Home Disabled 400, L.Ed. at 526. 91 494, 496, 944, Parrish, v. U.S. 33 S.Ct. diers 945, 229 1296, 1299 United States 57 L.Ed. 418, 425, Eisner, 72. Cf. Towne v. 258, 259, Maryland, U.S.App.D.C. 158, 159, 372, (1918) (‘‘[a] S.Ct. 62 L.Ed. 693, (1965). crystal, transparent and un- word is not living changed, thought it is the skin of a E.g., Band Tilla- 63. United States Alcea according may vary greatly in color and content 49, mooks, 35, supra 341 U.S. at 71 S.Ct. at note the circumstances and the time in to used”). 552, L.Ed. at 739. E.g., Thayer-West 64. Point Hotel United States 590, 34, Co., supra U.S. at 67 S.Ct. at note Fink, Moore, Lucas, H. D. Weckstein & 73. 1 J. J. 400, 526. 91 L.Ed. at Wicker, Practice J. Moore's Federal 0.65[2.-l] f (2d 1984) (footnote omitted). at ed. 700.88 States, E.g., 65. v. United 329 U.S. Albrecht 606, 609, (1947). 91 L.Ed. Testan, supra note 74. United States v. Carolina, U.S. at 96 S.Ct. at 47 L.Ed.2d E.g., v. North 66. States, 920, 923, 211, 219, quoting Eastport Corp. S.S. v. United L.Ed. 10 S.Ct. (Ct.Cl.1967). Cohen v. See also F.2d (2d Cir.1952) Staats, E.g., Fitzgerald supra construction, (despite “the overrid rule of strict 438, quoting U.S.App.D.C. at 578 F.2d at Congress, ing consideration is that the intent Testan, 392, 399, 424 U.S. United States v. determined, given can be must where that 47 L.Ed.2d effect”). E.g., Califano, supra Blake beyond firmly de- established 75. “It is U.S.App.D.C. at 626 F.2d at 893. bate, grant by purported ...; Carolina, yet strictly it must be construed E.g., to be United States v. North construed, There is wisdom not emasculated. note 924, examining grant in the rule that

1479 waiver, be we not entitled to would affirm construction “is the District squeeze the Court’s award on the judicial vise to natural basis of sub made a body stantial import relaxing of ... a or caselaw the tradi out statute obvious rigor sovereign-immunity tional language normal and doc sap to its of its sound Supreme trine when a liability has statute measures the legal Court meaning.”76 by United this States that of essence of view: reiterated persons. espoused The doctrine by these exemption sovereign suit from eases, spanning while numerous and di enough hardship where consent involves schemes, verse has attained are not add to has been withheld. We to prominence litigation under the Suits by rigor its refinement construction is, Admiralty accordingly, It with Act.80 where has consent been announced.77 legislation this that we commence our ex rule, dealing When with the interest we purposes amination the doctrine for perspective see as much need for to avoid ascertaining applicability its to the case at strangulation legislative intent bar. judicial unwarranted use of We force.78 framed, originally As provided Act when, Congress spoke clearly enough think that the United could States be held liable fees, respect attorneys’ it ordained for harm its inflicted merchant vessels liability States a “the United same pri cases where if such vessel were “[i]n as a We hold Con person.”79 vately operated, owned or or if cargo such gress thereby waived the privately possessed, were or pro owned United States from for interest as ceeding admiralty could maint be of a fee. reasonable 81 ained.” later amended the clause, by adding, Act phrase as a third V private person “or if a or property were Even were we to Title find VII’s attor- underscoring thus the Act’s involved,”82 neys’-fee inadequate express plain section governmental liability command that sovereign, Admin., if the words can without distortion Herren Farm Sec. broadly (8th Cir.1946). narrowly, they be understood or are sense; be taken in more limited but it would be an abuse of this rule to search for subtleties Co., 77. United States v. Cas. & Aetna Sur. grant, phrased, in an to defeat a effort however 366, 383, 207, 216, U.S. 70 S.Ct. 94 L.Ed. meaning when self evident.” United States (1949), quoting Hayes Anderson v. John L. Corp., v. Smoot & Gravel F.2d Sand Co., 140, 147, Constr. 243 N.Y. 153 N.E. (4th Cir.1957) (citation omitted). Accord, Unit 29-30 California, supra ed States v. 297 U.S. (”[I]an S.Ct. at L.Ed. at 574 78. The interest like strict-construction guage objectives plain so are not be rule, promotes general policy confining im- thwarted resort to a rule of construction enactment, munity legislative waivers doubts, purpose is resolve whose but to wholly appropriate situations. See text infra application whose in the circumstances would following note 115. artificial”); Navajo highly be States, Tribe v. United (Ct.Cl.1978), de cert. 2000e-5(k) (1982), quoted 79. 42 U.S.C. § in text nied, U.S. 99 S.Ct. L.Ed.2d supra at note 45. (“[i]t (1979) been never the rule given consents-to-suit must be the narrowest 9, 1920, ofAct Mar. ch. 41 Stat. 525 scope possible legislation granting juris or that (codified as amended at 46 §§ diction actions must (1982)). legislative apart history, purpose, read commonsense") (footnote the dictates of ted). omit Act, Admiralty Suits § 41 Stat. 525 Robertson, generally Miller v. (codified (1920) § amended 46 U.S.C. 742

243, 248, 73, 75, 45 S.Ct. 69 L.Ed. (1982)) codified], [hereinafter cited as (1924); Moore v. United 63 L.Ed. 86-770, 3, Sept. 82. Act of Pub.L. (15 Otto) No. Temple, United States v. (codified (1982)). Stat. at U.S.C. § 742 admiralty pri One court has even held that equivalent to that of literally.”88 a private is liable as persons

vate similar circumstances.83 interpreted person in imported new causes of action Federal courts lan have admiralty broadly subsequent passage law guage congres effectuate into short, or fed purpose evident amendment sional Act.89 therefrom.84 generally refused Supreme explicitly rejected appli eral courts have to wield has Court the of strict construction to defeat the customary the rule of strict con cation of “[tjhese plain meaning and natural of the Act’s instead that lib struction and held liability of the provisions language the command that United States eral indicate counterp private to that of the should have its broad and be identical used in [Act] inter ordinary meaning and should not be arts.90 in a restricted ... preted sense.”85 Buttressing exception the to the strict- in Ad prevalent other federal courts construction rule Suits Later decisions cases, miralty Act federal have Congress have reiterated the theme that courts also intended, liberally similarly the Act should accord construed other broad and that sovereign immunity. ingly interpreted, governmental waivers make example, Torts private For the Federal Claims liability “coextensive” with that attempts They waives the of the United have rebuffed Act91 parties.86 unqualified language, imposing re inject States “unintended” “irrational”87 Act, upon certain kinds of tortious liability into construed it finements have “sensibly, naturally, private “to same extent as a language ... conduct [and] States, extending provision Corp. v. Early this 86. De Bardeleben Marine United cases read 140, Cir.1971). admiralty derogation (5th of statuto to all suits in Cana 143 also ry States, imposed (Bermuda), concomitant admiral limitations dian Pac. Ltd. v. United 534 States, ty legislation. E.g., Roberts v. United 498 1165, (5th Cir.1976); De Bardeleben F.2d 1168 denied, 520, (9th Cir.), cert. 419 F.2d States, Corp. supra, at Marine v. United 1070, 656, 42 665 U.S. 95 S.Ct. L.Ed.2d 145; Co., Corp. Oil v. Panama Canal 407 Gulf States, Co. v. 436 National Union Fire Ins. United 24, (5th 1969); Cir. F.2d 28 Maritime Overseas (M.D.Tenn.1977). Although F.Supp. 1080 States, F.Supp. Corp. v. 421 United 433 Court, Supreme in United States United (N.D.Cal.1977); Tankships, Unit Universe Inc. v. Corp., 425 U.S. 96 S.Ct. Continental Tuna States, (E.D.Pa.1974), F.Supp. ed (1976), overturned these 47 L.Ed.2d 653 (3d 1975). aff’d, Cir. 528 F.2d 73 preserve efficacy precedents in order to statutes, by ordinary it did so threatened States, Corp. 87. De Bardeleben Marine v. United the Act. rather than strict construction of Id. supra note F.2d at 146. See also id. at 1323-1329, 47 L.Ed.2d at 96 S.Ct. at 145-146. respect departed In no has the Court 659-665. States, v. United from Nahmeh Co., supra Corp. Canal Oil Panama (1925), progeny, and its S.Ct. holding nity 69 L.Ed. 536 Gulf 407 F.2d at 28. waiver immu Act's liberally construed. See text to be infra States, at notes 84-85. Malgren v. United F.Supp. at 157. States, v. United 84. See Grillea 1956) ("the (2d Admiralty Act not Suits Cir. States, 90. Boston Sand & Gravel Co. United jealousy that with the same to be construed ordinarily (1928), L.Ed. 170 278 however, circumscribes the consent of special Congress act of held that sued”). Malgren v. to be See also United States providing liability governmental admi in an States, (W.D.Mich. F.Supp. United 1975); ralty like cases ... between action "as in States, F.Supp. Marich United parties” pre-judg award did not authorize an entirely (N.D.Cal.1949). Courts have not interest, specific legislative histo ment .because how abandoned strict-construction ever; ry not intended to they apply it indicated that had with re have continued to Congress upon placed by this Id. spect interest under statute. to conditions allow See, e.g., immunity. States v. United waivers of L.Ed. at 176. (E.D.La. Pitcairn, F.Supp. M/V seq. other 2671 et scattered §§ 91. 28 of 28 U.S.C. sections 83, 267 supra note 85. Nahmeh United L.Ed. at 538. U.S. at admiralty may like sonam in individual brought circumstances.”92 Supreme placed has Court United States ... for damages which, for activities as a public States caused vessel of the United matter, privately practical given are never under States.” It too has been the inter compelled it felt to im pretation plain taken because borne ordinary just plement purpose meaning the “broad and Though language.100 designed provision explicit the statute was is less than those effect,”93 namely, government Admiralty to treat Suits in and Tort Claims Acts private person respect Similarly, would be treated. comparative responsibil to the question when the arose whether the Act ities of the United States and per sons, Supreme allowed the United to be as a interpreted sued Court has third-party impose defendant an action con “to on the same tortfeasor, joint a by liability imposed tribution initiated ... as is admiralty 101 Court refused to read “fine distinctions” law shipowner,” on noting accepting “congressional into Far from a rule adoption that of broad stat Act.94 construction, specifically reject utory of strict language authorizing suit was delib attempt scope ed an of restrict erate and is not to be thwarted 102 language, clearly Act’s broad which put unduly interpretation.” restrictive United on the footing States same as a Court has since reaffirmed this holding,103 quoted The Court favor and federal courts generally have con party.95 ably a statement which we governmental earlier ad strued the scope liability 96 exemption verted: of the sover under the Public Vessels Act in'terms simi “[t]he eign hardship enough suit involves lar if not identical to those they which where consent has been withheld. We are have delineated under the Suits rigor by not to add to Admiralty its refinement of A Supreme recent Court Act.104 construction where consent been an decision interprets and reconciles these 97 nounced.” statutes without to or even recourse men tion of the strict-construction rule.105 This same broad construction has been brought example to bear the Public Vessels Another is furnished the re- provides per- Equal Act, that libel in cent Access to Justice statute “[a] Act,98 States, (1982). Bushey 92. 100. E.g., 28 Ira S. & § U.S.C. 2674 Sons United 167, (2d Cir.1968); Allen v. United 169 States, Towing 93. Indian Co. United U.S. 350 States, 160, (9th Cir.1964), cert. 162 61, 68-69, 122, 126, 48, 76 S.Ct. 100 L.Ed. 55 denied, 961, 1104, 380 U.S. 85 S.Ct. 14 L.Ed.2d (1955). States, Jentry v. United F.Supp. 152 73 899, (S.D.Cal.1947). 902 Co., 543, United 94. States v. YellowCab 399, 523, (1951). 71 S.Ct. 95 L.Ed. 530 Aviator, States, 101. Canadian Inc. v. United 324 215, 228, 639, 646, U.S. S.Ct. 89 L.Ed. 95. Id. supra 96. See at 77. text note 102. Id. at at 89 L.Ed. at 907. Co., supra United 97. States Yellow Cab note 406-407, U.S. at at States, Weyerhaeuser S.S. v.Co. United 532, quoting Hayes v. John Anderson L. at 597, 600, 926, 928, 83 S.Ct. 10 L.Ed.2d Co., supra N.Y. at Constr. note N.E. at 29-30. See also United States v. Aetna Co., supra Sur. at note Co., Corp. E.g., Oil v. Panama Canal Gulf 186, quoting Anderson v. John 94 L.Ed. at at 28; supra Malgren v. United note at Co., Hayes supra L. Constr. N.Y. at States, 156; F.Supp. Weiss at 147, 153 N.E. 29-30. States, v. United (D.N.J. F.Supp. 98. Act of Mar. ch. 43 Stat. (codified (1982)). U.S.C. §§ 781-790 105. United States v. United Continental Tuna Corp., supra note 83. (codified (1982)). Id. 1§ at 46 § such a variety to the Title VII similar doctrine to strikingly similar section statu tes,110 reasonably it cannot disputed provision its that Unit here issue articulating the numerous decisions reasonable liable ed shall exception represent this not scattered and expenses “to the same caselaw, aberrant but well-established party be liable other extent precedent.111 line coherent law or under terms the common provides specifically any statute which approach think case We our this 106 While one circuit such an award.” fully purposes consistent with the provision per does has found that strict This rule construction. interest,107 others have mit the award judicial a tool inter serves as to calibrate categorically United declared purported pretation of waivers liability thereunder same States’ minimize immunity so the risk liability,108 generally have imposition governmental lia private-party erroneous language ef interpreted ambiguous statutes that are bility under scope, susceptible clear common mean are otherwise to ex “plain, fect or contemplat- pansion beyond the boundaries light of the extension of such ing.” partly view when Act No. of Oct. Pub.L. businessman, 2412(b) ordinary person (codified acting as an 28 U.S.C. Stat. 2325 (1982)). be amenable to normal incidents should private party litigation as a See Stan- be. States, 76, 79, States, v. 267 U.S. 45 dard Oil Co. United v. United 742 F.2d 1301 Arvin 211, 212, (1925). (11th Cir.1984). The 69 L.Ed. 521 S.Ct. exception ap- has endorsed this even as Court plied States, corporations E.g., or instrumentalities Papson No. to v. United 602-80T sued, 28, 1982); Harris, empowered (Ct.Cl. explicitly to sue and be see Apr. v. 535 WATCH Data, (D.Conn.1981); Corp., F.Supp. v. 306 Photo Inc. & Reconstruction Fin. 14 Keifer Keifer 516, 518, (D.D.C.1982). Sawyer, F.Supp. 59 L.Ed. U.S. 83 (1939), upon and authoriza- has relied such existed, Data, tion, support Sawyer, supra as for its Inc. v. when has Photo gov- Congress F.Supp. at At least one circuit has that intended that the conclusion significant entity party. private "a re as if Act constitutes be treated a noted that the ernmental Burr, 242, 245, sovereign immunity in actions seek U.S. 60 S.Ct. laxation of ing attorney See FHA 490, States,” (1940). Com fees from the United As the Court L.Ed. noted, unqualified authority missioners v. United "the to sue and (7th Cir.1982), equal placed upon and other courts likewise have Government] be [the sued ordinary private parties their footing accorded terms the statute as to usual inci- the the Harris, meaning, e.g., WATCH and reasonable to the of costs dents of suits relation 13-14; F.Supp. Corp. Berman allowances." Reconstruction Fin. and (N.D.Ill. 81, 85-86, Schweiker, F.Supp. Corp., 61 S.Ct. J.G. Menihan (7th Cir.1983). 1982), aff’d, F.2d 1290 these For reasons, rigorous has discarded the the Court discussed, already sovereign-immunity to the cases of the doctrine 110. In addition standards Monroe, 246, 254-255, 39 is to The and admonished that such authorization see Lake Shaw, 460, 463, (1919) (holding "liberally L.Ed. be construed." United States v. immunity, pro- statutory L.Ed. waiver of that a 309 888, bought proposition or leased for which merchant vessels The vided that laws, subject entity, Shipping to all stand is that a federal intend- private Board "shall be these cases the regulations, vessels," governing merchant ed to or be as a and liabilities act treated Act, ordinary subject Shipping party, ch. all Board should to litigation (1916), pursuant con- vessels amena- to a broad rendered these incidents of Stat. private- as the waiver of duties liabilities relevant “to same and struction ble the vessels”). immunity Especially light ly from suit. owned merchant liability governmental to extension of Court’s interest, see Oil an award of Standard include proposition further buttressed 111. This States, supra, we convinced relaxing are many of strict Co. v. decisions the standard precedent supports strongly our sovereign-im- that this line traditional under construction provision here VII involving in- to construe the Title munity federal decision doctrine cases ordinary plain according at meaning to the and sue issue statutorily "to authorized strumentalities language. at notes See text of its Supreme Court has sus- sued.” infra departure at least 118-120. the doctrine tained this from Congress.112 expense construction ly ed Strict thus at the of the strict-construction waiver of rule. ensures im legislative

munity judi will be a and not a Apart absence caselaw con When, however, Congress pro cial act.113 tradicting disallowing application or claims that the cases, Supreme doctrine interest-rule comparably-situ as for a shall be same Standard Oil Company decision in Court’s private by enacting ated either v. United States115 adds weight to individual — explicit provision that effect a that the principle conclusion con liberal sweeping immunity waiver of strict- applies struction as much to the interest —the poses grave construction rule a threat rule as it does to other manifestations of congressional purpose, effectuation of sovereign immunity. There the Court held applied. hence it should not be and is not despite the United States liable for interest eases, interpret In such express therefor, courts the waiver absence of an waiver according plain ordinary solely ground by acting mean as ing language. of its insurer strict construc it had without con more judges tion rule does not authorize sented be treated as a act insurer.116 guardian[s] This rationale bears close as “self-constituted resemblance to underpinning exception issue, Treasury import back into [to] counseling designed thus inclusion statute to limit it.” too, recognize, rule within ambit. We Having determined that the doc the interest and strict-construction a purposeful trine we invoke constitutes objectives rules achieve similar within the exception an entrenched well as to the sovereign immunity. oper realm of Each strict-construction it remains hand-in-glove general ates with the consider whether interest rule cedes that the United States cannot be held mon exception involving similar in cases etarily stat liable without its consent. The in utes such the Title VII section here terest rule ensures that the United States does, scrutiny. under We it liability conclude that incur only will for interest at the notwithstanding that Congress, almost all decisions ofwill while the strict-construc articulating principle operates similarly, the doctrine have done so sole- tion though California, utory judicial supra provisions 112. Cf. United States v. note and extension of liabil- beyond ity plain statutory at 297 U.S. at 56 S.Ct. at 80 L.Ed. boundaries of (justifying language, aspects general another rule of strict are both construc- of more policy containing governmen- tion—that the was not intended of to be assessments of liability already by legisla- bound statute own unless named in it—as tal not marked out however, Neither, "an aid to consistent construction of of tive action. statutes mandates rever- enacting sovereign appeal. purpose supra. the doubt”). when their is in sal order on See note 42 States, Towing supra Co. v. Indian United 61-74; supra note 350 U.S. at at 113. See text at notes see also 100 L.Ed. Na- States, vajo supra at Tribe United note F.2d at 200-201. Several courts have so framed requirement comple- Supra the strict-construction note 111. menting the interest rule an extension governmental liability beyond plain of and 116. 267 at 45 S.Ct. at L.Ed. at language authorizing literal proscribed. E.g., 373, statute is (“[w]hen of United States went into the States, business, Price v. United 174 U.S. policies insurance issued in familiar 375-376, 19 S.Ct. 43 L.Ed. provided disagreement form it that in of case cases, involving sued, might In other often be the it must be assumed to have governmental accepted business”). interest disallowance of lia- ordinary of in incidents suits such bility refused, however, was attributable to a reluctance to read The Court has specific liability vague general or basis into relax the interest rule in in cases which the Califano, insurer, statutory language. E.g., though serving su- Blake v. anas pra U.S.App.D.C. private at not acted aas insurer. See United States cases, 339, 341-342, separate abjuring Worley, 894. These 281 U.S. lines judicial both liberal construction stat- of unclear result, conclude, as a that the judicial curtail trine.117 We broadly, more extension beyond the liability range governmental of this mandate must be delineat contours likely Consequent- congressional reasonable, intent. express ordinary ed (cid:127) ly, just the stricbconstruction rule strict, judicial or construction. effecting sweeping obviated statutes interpretation, think it Under such we equating waivers otherwise attorneys’-fee that the section im manifest private governmental with that of plements congressional the overarching use the persons, so do we decline to inter- “ purpose ‘[ajggrieved to accord [federal] rule in the case bar as instrument est applicants rights employees or ... full qualifications for insertion of unintended granted as are in the courts available plain into and refinements an otherwise sector title individuals statutory unambiguous mandate. ” private-sector VII.’ Since claimants applicability of this doctrine in inter- one may garner Title cases interest as VII established, must, we cases thus est-rule attorneys’-fee component of an award—it finally, statutory determine whether the 119—we self “costs” defined provision upon which the District Court doctrine of liabili cannot sanction variant grounded disputed its assessment of the ty We find that the for the United States. against the United States did err when District Court it fashioned exception, fits within the confines of the Unit assessment and we hold that it does. When ed States.120 declared that “the United States shall be private per- liable for costs same as son,” unmistakably its intention revealed VI subject the United States to treatment affirm, grounds on the alternative We accorded

no different explicated, the Court’s decision to District parties equivalent circumstances. Title adjustment percent upward allow a 30 provision thus attorneys’-fee meas- VII’s compensate counsel for the lodestar immunity in ures the terms es- waiver legal for the sentially identical to those statutes al- governed by We ready the doc- services he rendered under Title VII. held to compete We decide will better be able to need not whether claimants counsel, energies provision exception experienced issue also within the of more falls time and Marshall, immunity. U.S.App. "sweeping” Copeland waivers of furthers D.C. at thus Roudebush, 840, 841, effective interests clients in most 118. Chandler v. Second, representation (1976) on their claims. 48 L.Ed.2d anomaly Cong., supposed the interest (quoting S.Rep. 1st is attributable to No. Sess. 16 92d (1971)). Cong., operation H.R.Rep. rule itself and its diverse in the con also No. 92d See statute, (1971), Cong. problem & 1st Sess. Admin. of the U.S.Code text apparently 2137; (1972) Cong.Rec. Lastly, anticipate. not News did a differ Williams); (remarks Copeland holding anomaly of Senator ent would its own create —that Marshall, clients, U.S.App.D.C. lawyers note private-sector whose can obtain amounts, adjustments 641 F.2d at 895. see interest to lodestar supra, note 46 would receive better treatment clients, clearly at supra. than a result federal-sector 119. See note 46 objective with the odds fundamental Equal Employment Opportunity Act of 1972 dissenting colleague says Our that our hold- private-sec parity establish between federal and ing statutory anomaly by treating Title creates a Roudebush, employees. tor See Chandler v. su lawyers VII better than their federal-sector pra note 425 U.S.at S.Ct. at payable clients inasmuch as interest would (quoting S.Rep. but, 92d L.Ed.2d at 420 No. part attorneys’-fee Blake as awards (1971)). Cong., It seem 1st Sess. 16 Califano, supra backpay not on strange indeed to the interest rule in con Dis.Op. wield argu- awards. 6. We find See First, reading travention of a natural unpersuasive for reasons. ment several simply is lawyers fee section to ensure that we treat the interests of Title VII cannot equally attorneys’ fees as for back- anything mutually defeated than and clients as other holding pay- dependent. Our ensures that Title VII modify the court’s order to correct a line, math sistent lines of decision. One long-es computation ematical error in its tablished, forbids the pre- award of post- or lodestar,121 solely and remand in order that judgment interest payable by the United may court confirm Shaw’s counsel States, absent deliberate waiver Con being paid not delay is twice for the he gress of the sovereign’s immunity. See If, calculating experienced.122 in the lode Chasen, Holly v. (D.C.Cir.), 639 F.2d 795 services, star for counsel’s the court uti denied, cert. hourly lized rate which reflected a rea L.Ed.2d 94 Califano, Blake v. charge pay sonable to clients who their (D.C.Cir.1980), and decisions cited attorneys billed, when the court’s order as other, therein. The newer line contem stand, Library modified will must plates an adjustment delay in $2,524.50, portion remit to counsel payment awarded, when counsel fees are attorneys’-fee the court’s award contested statute, pursuant to as of costs. See If, instead, appeal.123 on the lodestar was Copeland Marshall, 880, 893, on a hourly based reasonable rate for ser (D.C.Cir.1980)(en banc); 906 n. 61 Nation statute, fee-shifting vices rendered under a al Association Concerned Veterans v. rate already taken into account Secretary Defense, 1328- pecuniary disadvantage resulting (D.C.Cir.1982). The difference between lengthy payment, wait for and the interest and a delay factor can be more upward adjustment court’s to the lodestar Interest, than semantic. as that term is inappropriate therefore was since it would used, commonly is retrospective calculated payment result double delay ly, completion at the period during receiving money. his factor, which it delay accrues. A Cope So ordered. suggests, may land figure as contingen cy adjustment, applied prospectively to the GINSBURG, Judge, dissenting: Circuit lodestar. Just as an attorney setting an view, my precedent judicial constrains hourly contingent rate in a may fee case tightly inventiveness this case more than risk factor that the may cause not Furthermore, my colleagues acknowledge. prevail, so too an attorney embarking on today’s confound, I believe decision will not services for which he or anticipates she assist, judges they district court labor to payment ultimately, promptly, may but fathom and proliferating follow this court’s expected delay. factor regarding instructions allowance attor- neys’ I United States. provides When a payment statute therefore dissent from the majority’s posi- attorney’s private sector de government’s tion on the liability for inter- fendant, grapple there no need to est. payment as a factor distinct from interest, September

On when we heard defendants are not im argument faced, appeal, oral we mune from the pre- post- and our reconcile, charge fully was to two judgment con- interest.1 When the supra. pre-judgment None of these decisions tacked on interest as At well. least one sector Title supra. 122. See note 28 computation VII decision allowed of the lode using hourly star current rather than historical supra. See note 24 adjust and not rates did the otherwise lodestar decisions, they Inc., adjust delay. Chrapliwy Uniroyal 1. Private sector when payment, grant delay F.Supp. (N.D.Ind.1981), the time of part interest or a 457-58 aff’d in factor, grounds, but not both. Decisions in rev’d sector and in on other F.2d Cir.1982), 2428, denied, accepting (7th type multiplicative cases some lode cert. adjustment delay star to account for include: L.Ed.2d 1315 Vir cf. Co., F.Supp. ginia Academy Psychologists Brown v. Gillette 123-24 Clinical v. Blue Shield, (D.Mass.1982); Gold, (antitrust (E.D.Va.1982) F.Supp. Black v. Rockwool Ltd. Indus., calculation; (D.Colo.1981); F.Supp. Kennedy attorneys' computed court Lemoi, (D.R.I.1981). rates). F.Supp. using hourly lodestar current permissible,” large, the “interest is however, post- not precedent we are payor, the script majority, espouses. the liberty upset demands disallowance Congress unless otherwise interest add-ons Congress provided Although has not orders. add-on, precedent not an interest does read the place liberty me at into statute Recently,- Murray Weinberger, Congress might or waiver an instruction (D.C.Cir.1984), a at 1432-1434 F.2d thought it about the have included had attempted panel court to chart of this matter, also more recent I am the bound impermissi- between the interest-is course delay permitting opinions decisional line— ble/delay-factor-is-permissible lines of deci- attorney’s supplementation factor an Murray, argued on April sion. fee, payable the even when the fee case; it appeared intercepted the instant Murray opinion re sovereign. Our recent the two provide definitive instructions on task con lieves me of the- reconciliation make in court should inquiries district appeal fronting panel when this was award upon request ruling adjustment Murray permits new. The pay- delay in adjustment to account for objective” “[ejase “important serves the Murray, must de- Under the court ment. administration,” Murray, incorporated first the rate termine whether complicate, promises simplify, already takes into account the lodestar the district court.2 I chore we commit to anticipated lag time between rendition go beyond Murray without a would not payment. Sec- of services and Congress. do so from direction to hourly incorpo- ond, if “the rate reasonable into lodestar did not reflect rated I. The No-Interest Rule pay- expected delay increment for majority’s labyrinthian Nothing ment,” inquire next court should opinion genuinely demonstrates Con- uti- the lodestar “whether recalculation of the no-inter- gress so much adverted to current, of his- lizing market rates instead it statute in est rule when enacted .the Id. at 1433. rates, I appropriate.” toric intricacy, majority question. For all its us, 42 do find in the statute before on hunch: if had builds opinion § 2000e-5(k) (1982), matter, (or the conscious have adverted to the would immunity have) sympa- I immunity. entrenched waiver of should waived See, majority e.g., policy judgment contemplates. thize with decisional law Club, agree But advances. I cannot Ruckelshaus Sierra legislature “plainly” resolved an (1983), L.Ed.2d 938 issue never even framed Pierce, waiver in Nichols v. cited its deliberations. course of (courts (D.C.Cir.1984) must nn. sovreign enlarge care not to waiver of take delay by the dis calculation made language statute immunity beyond what holds, court, majority trict as the was Jordan, In re: Hamilton requires); computation. The court district (D.C.Cir. Indep.Couns. per annum rate to base applied a 10% 1984); Phillips v. United award, years Oct. that three would Div. determined Cir.1965) (2d have separate time when the fee should judicial paid payment, consideration” and in (“spirit proper to actual been accordingly. “is not This calcu sovereign immunity waiver creased the award alleged respects the all relevant lation resembles in interpreta- generosity and broad one of Holly Chas disapproved our one court tion”). adhere to I therefore rate em- en3 the interest In that case reject Murray instructions letter of interest, computed could in the same manner pp. 1491-1493. 2. See infra exploited imposed government if the Like deliberately award. down an distinguish Holly con- whittle based on the can I Nor design Holly, Holly no government the case us reveals before the two cases. duct of the the penalty, found shrink a fee. The court question a district the whether did not reach 6%, against ployed pay and the term government, was over which award the federal indefinite, to prior holding interest was to accrue was run- we adhered our and stated: ning judgment Congress date to the date of “When amended Title VII in 1972 bring payment. government But the differences in the inter- the federal under its (10% 6%) provisions, Congress rates versus and in terms est evinced no intention (three they applied years were to waive as to interest open-ended period) Segar Smith, are not suffi- versus awards.” (D.C.Cir.1984). grounds typing cient the award here as at 1296 something other than interest. In both together, Blake, Segar, Taken and to- cases, augmentation of the award involved day’s Congress decision announce that dis- retrospective placed upon calculation that tinguished sharply consciously and be- government delay. cost of actual attorneys litigants tween for Title VII order, name, by any A calculation of this against government defendants, inescapably in the nature “interest.” themselves, litigants the actual victims of equitable

Contemporary conditions and discrimination. An interest calculation can fees, on augment attorney’s considerations cast doubt the soundness but not the governing of the judg- recovery. no-interest rule majority client’s The attributes against ments the United design States. ma- unusual Congress because it jority’s painstakingly opinion the legislature’s embroidered was “overarching pur- ... comprehensible only sparked pose” labor aggrieved accord employ- federal recently that doubt. This circuit ees the rights full Title VII available to stated, however, that the entrenched char- individuals in the sector. Majority acter no-interest rule militates opinion at 1484. right .available to against judiciary. alteration Our individuals in the sector to claim change, court has maintained awards, however, view interest on pay back can- long-prevailing, rigorously-applied not be secured to federal employees in province within Congress. lies brought cases in this circuit without over- Chasen, Blake, Holly ruling See and now the Segar relevant holding as majority well. The thus settles Califano, we Blake ruled that a for second It litigant best. leaves the with- pay Title VII back award interest, out lawyer only, takes care of the government may augmented by pre pretends lawyer interest for the is in judgment .Similarly, Holly interest. full harmony with Blake Segar. may court held that interest not be added attorney’s payable by lawyer the United Client and are on the same foot- pursuant to the Freedom of ing Infor on VII vis-a-vis interest Title awards Act, 552(a)(4)(E)(1982). private mation employment, majority sector Both decisions underscore that waiver of thought concedes. A about by implica believe, “cannot problem all, the no-interest rule I would have ambiguous language,” placed lawyer use tion client and the same foot- on Chasen, 797; Holly ing 639 F.2d at Con as to interest awards federal emphasized, gress, signal we have must Though majority sector as well. advertently mightily, the authorization and with clar convincingly strives cannot ex- ity. Califano, plain why Congress Blake v. F.2d at deliberately opt n. 894-95 & 7.4 Invited to reconsider to treat lawyers awards to clients dif- plaintiff VII ferently by allowing Blake and allow Title lawyers, but clients, pre-judgment recover interest on back to collect interest. Note, resolving pay controversy Judgments Against the back 4. But see unneces- Interest

sary, lapse might but it stated that the time have Compen- Federal The Need Full Government: representation sation, avoided been more effective L.J. 297 Yale Library side either case. Shaw v. Congress, (D.D.C. slip op. No. at 2 Nov. 4, (interest Pre-judgment rea interest “on the “a The statute before us authorizes costs, claim”) ranks as an part generally element of attorney’s fee” as sonable component as damages, not a of “costs.” “shall provides that United States § 2664, availability de private Id. 159-60. Its for the same as a liable costs be (state § 2000e-5(k) (1982). fed pends on the substantive law person.” 42 U.S.C. eral( controversy. governs that See majority that the holds immunity Corp. Corp., Motors Devex thereby its General waived (in instance, including attor U.S. L.Ed.2d as to costs (interest fees) Post-judgment ex interest neys’ Congress which made for also, silentio, judgment”) separate is a entitle “on the press provision, but sub law, governed by ment statute or common immunity as to on those costs.5 interest Wright “Costs,” opin supra, not a “cost.” majority’s Miller, treated & § 2664, ion, spy at 159. I therefore fail to in a uniquely expansive a thus accorded are established, allowing specifically “costs” and exam statute interpretation. It attorney’s fee as immunity respect qualifying ple, a waiver of with “costs,” clear, monetary a affirmative intention a for discrimination to award Congress displace princi respect to to traditional employment is not a waiver with ple sovereign is immune on that award. Blake interest Califano. re on those immunity of interest costs. Similarly, a waiver with Cf. (D.C. Lewis, not a Parker v. spect to on contract is Cir.1982) (Title attorneys’ to lia fee awards respect with interest on that VII waiver Secretary Transportation should bility. Management Co. Eastern Service (4th expedition States, determined with Sec because v. United retary, government, Cir.1966); Heating “as an officer of the Economy Plumbing & interest”) States, (Ct.Cl. charged (citing cannot with 470 F.2d 585 v. United Co. Chasen). adjustment Holly in the of mutual And claims, inter government is entitled to majority insistently most maintains it, obli owed to but is not est on amounts in rendering the United States liable gated pay interest on amounts it owes. fees) (including attorneys’ “the for costs Trans States v. North American United private person,” un same as a Co., portation Trading & questionably intended waive sover L.Ed. immunity respect on eign’s with to interest immunity re- costs. But see Arvin United

Enlarging an waiver with (11th Cir.1984) (Equal costs F.2d 1301 Access spect “costs” to include interest on § (28 2412(b) provision concept in the Justice Act U.S.C. nothing on inherent draws (1982)) shall specific that United States be liable “Costs” is term “costs.” expenses of attor content; adjudication, the the reasonable fees in federal narrow any neys “to the same extent other never been understood word “costs” has party be liable under common any component. include interest § 10 C. law or under the terms of statute see also U.S.C. provides specifically for such A. Kane, Wright, & M. Federal Miller §§ 2666, (2d award” does not waive and Procedure Practice fee regard attorney to interest Wright 1983)(hereafter, on ed. Miller). & combination, provisions pri- only pre-judgment Although these two render involves this case interest, post-judgment majority opinion, interest logic rivet- vate defendant liable 2000e-5(k) “the But note 7. If words costs. § 42 U.S.C. ed on the cf. infra precisely party," post-judg- to be as a States is defendant, treated extends to as a same majority argues, litigation, fol- here Title VII as well. In ment interest exposed attorneys’ According the United States is now to 28 lows that fees. include costs post-judgment (1982), pre-judgment and both interest “costs” are included § Curiously, (1982), VII awards. on Title judgment. 28 U.S.C. Under majority’s discussion post-judgment extended leaves private defendant is liable on this issue. "judgment.” reader at sea on the amount awards).6 Sparse private person”) case law is as a cited same on which the relies, dominantly majority coupled with majority indicating pre-judgment inter sporadic judicial and precedent laconic in considered, occasion, has on est been in cases,7 private simply sector do not add up determining private persons to the deliberate waiver of sovereign immu attorneys’ fees. See majority opinion req nity prior decisions emphatically (“the statutory phrase note 46. The terse Blake Califano, v. F.2d uire.8 Cf. Thomas, [sic], Foods, Inc., F.2d Boudin 1114-15 Inc. Ward 567 F.2d 1316 Cf. (2d Cir.1984) (5th (declining Cir.1978), to extract from words the court held that interest is ‘‘any 2412(d)(1)(A) civil action" in 28 payable § U.S.C. attorneys’ on fees in antitrust (1982) Act) (Equal congres- Access to Justice Clayton cases because the Act makes attor- payment sional direction for United States neys’ part fees court costs and interest attorneys’ corpus proceedings, fees in habeas costs, payable is not on court and because the although proceedings such rank as “civil ac- damage treble award makes on interest attor- purposes judi- tions” for other stated neys’ necessary —court fees less than in cases where finding cial of a waiver of the federal sover- damages treble are not awarded. 567 F.2d at. eign’s immunity required ‘‘unequivocal and ex- Cf., Collier, (5th Gates v. 616 F.2d 1268 legislature’s plicit" manifestation of the “affirm- (interest Cir.1980) payable attorneys’ on fees intention,” ative which “mere in inclusion cases). rights courts, however, in civil Other ” ‘any proceeding’ statute of the words civil did discussion, pay- albeit without have allowed indicate). attorneys’ ment of interest on costs and fees "express” If the waiver here is and cases, Stages, in antitrust Mt. Hood Inc. v. The “unmistakable," majority opinion as the at 1475 Greyhound Corp., (9th 616 F.2d 406 n. 10 bravely proclaims, plain- it is remarkable that Cir.1980); City Corp., Detroit Grinnell able, tiff-appellee, represented experienced (2d Cir.1977); Perkins v. counsel, Instead, argued position. never as California, Standard Oil Co. opinion majority initially at 1473 acknowl- (9th Furthermore, Cir.1973). unlike the Fifth edged, attempted plaintiff-appellee to distin- Circuit, apparently the Seventh Circuit does guish between "an award interest and the Chicago allow interest on costs. See Harris v. adjustment of a to ensure that it is reason- (7th Ry., Great Western payment.” there able when in its Brief Therefore, Cir.1952). if even fees Plaintiff-Appellee at 10. The notion that the part are considered of the costs rather than sovereign’s immunity statute waives the as to part judgment, appro- interest fees interest, short, case, in entered this and has priate. it, exploited majority’s been in as the own inven- Foods, Inc., Carpa, Inc. Ward cited tion. Copperweld court for the "no interest on costs” position, Copper cited In VII has since been overruled. cases Title cases Li- Co., against (5th quor, Adolph Inc. v. Coors defendants courts have no F.2d 542 Cir.1983) (en banc). however, approach, occasion dwell on or even advert to the Either "delay supports my position. (including difference between a factor” and "inter- If costs attor- fees) neys’ pur- est." Either can be ordered as tary of a mone- are to be treated for interest equitable poses way underlying award as a form of the relief Title in the same as the mone- award, Blake, tary holding VII authorizes. this circuit’s su- pra, Segar, supra, litigation against reaffirmed us to In compels the United States no dis- deny prejudgment attorneys' appropriately interest on fees in tinction is made between interest (including attorneys’ underlying Title VII cases. costs If on costs and interest on the mone- fees) tary categorized separately subject against are An are award. award of costs Unit- own, (a “judgment,” to their ed is included in the discrete "no-interest” rule defendants), sparing U.S.C. 1920 of costs even as the now- § maintained, Carpa United States is addressed in 28 U.S.C. 2412 overruled decision then it is (1982), help appellee argue which makes no reference to of provides that the statute Section refers § "judgments” reimbursement “the same against private person.” and interest thereon. however, recently, There was until circuit 8. Nor can I derive from Standard Oil Co. v. question division on whether interest runs solely monetary on the award or on court costs (1925), majority opinion judgment Independ featured included in as well. In 31, genuine support majority’s Corp., view. Corp. Copperweld ence Tube F.Supp. There, (N.D.Ill.1982), the United into States went the business the court sum risks, insuring adopting authority, vessels war marized the division of own follows; conclusion, by private the form of contract used ers, underwrit- large profit plaintiff requested reaping on.attor- from the venture. neys’ Worley, Capra See United costs awarded to it. States v. case than remand with im to do more (in “specific entrenched view of sup- prejudg to follow the instructions

munity directions of the Government interest,” Murray. plied is not free allow court ment pay VII awards interest in Title back such ev Congress must employees; federal Delay Payment II. Instructions to authorize waiver specific intention ince immunity”; governmental of “settled Murray Weinberger policies consistency with “mere [remedial cases Copeland, Holly, In and a few enough”).9 not Title is of VII] thereafter, delay indicated that a this court legitimate pushes beyond majority The may be adjustment to the lodestar factor stating in that the interest license

judicial litigation involving in fed- appropriate, even “hardly impres- one of first issue here is The court government defendants. eral might sion,” insinuating in that one Copeland: in stated question “on stare décisis” even decide for delay receipt payment in applicabili- seemingly clear of “the because factor services rendered an additional majority opin- precedents.” ty of [our] incorporated may into contin- that be (“we at ion 1472-1473. But id. at cf. hourly gency adjustment. The rates only peripheral- with have dealt [the issue] represent pre- in “lodestar” used squarely we have never ly,” it is “one pay vailing typically for clients who rate Lewis, addressed”). And see Parker promptly. Court-awarded fees their bills supra, p. truth, never 1473. In we have long normally are received after the le- rule in con- the no-interest this focused on delay That gal services are rendered. before, did government text because the problems cash-flow present can prior refer the rule in rely on or even not event, attorneys. payment today ap- spoken with We have indeed cases. past long rendered in the for services of.interest, adjustment not but proval recipient the eventual deprives as I ob- delay receipt payment, in money in the of the use value panel at the outset when I said served meantime, use, particularly which reconciling “two initially faced the task era, A inflationary percent- is valuable. lines of decision.” Su- fully consistent delay adjustment to reflect the age p. pra I why 1485. now state I believe may ap- payment therefore be August decision Mur- court's propriate. unnecessary it Weinberger renders ray general (1930). High Congress has reiterated the Elsewhere against allowed Oil was that interest cannot be Court soon clarified that Standard case, turning exceptional commercial express on the "Interest United States absent waiver. in which of the insurance business the United States shall be on a claim character government prece- engaged, was judgment of the United allowed in precise appropriately outside its extended dent Act of under a contract or Claims Court Worley, at States v. context. United Congress expressly providing payment there- at 292-94. "The United of.” 28 U.S.C. § liable, provisions respecting States shall Congress the United several times waived Act], same man- Federal Tort Claims in the [the See, immunity respect to interest. States' extent as a individu- ner and to the same (1982) (expressly e.g., authoriz- U.S.C. 2411 § circumstances, shall not be al under like but payable ing prc- post-judgment . n ...” prior judgment for interest liable cases); also see in tax refund the United States Tort While the Federal § (1982), Holly, cited in § 31 U.S.C. supply rules of to state law Claims Act refers decision, (1976) (same statuto- 31 U.S.C. 724a § at 797 as (law 1346(b) place where id. see recodification). provi- ry before These section occurred), appears Con- it act or omission might supply models sions obvious unmistakably gress clear wished make waiving the have followed had it considered sovereign immunity the traditional federal sovereign’s situation in the traditional law, governs pre-judgment interest. not state presented here. 893; id. at 906 n. 61.10 component delay see also 641 F.2d at would have lines, Holly, Along similar the court expected payment fees,” been id. award, rejecting after an interest said: does Murray authorize a further suggest possibility “We of a ... inquiry. eye With an “pressing on the delay substantial fee is simple attorney’s need for rules in may bring a factor which wish to counsel cases,” 1433, Murray id. court coun- submitting to the court’s attention when use tenanced of “current in- market rates application compensation.” his in calculating stead of historic rates” lode- Copeland Quoting lan id., stars, produce if that would a reason- above, the Murray guage panel set out generating able fee “without a windfall for instructed district court plaintiff’s attorneys.” Id. could taken into account either two Murray There the matter would end ways. Murray, Significant at 1432-1434. Weinberger, involved the interest calcu ly, way hourly neither for “where the rate Holly approved by lation eschewed in but computing in used the lodestar is on based my in colleagues this case. present hourly delay rates factor has Murray’s I here two reiterate instruc- implicitly recognized been and no [further] tions, starting the Murray with the one adjustment delay for should be allowed.” The court in Mur- panel “[fjirst.” labeled Id. (quoting National Association Con- ray explained expected if wait for cerned Secretary Defense, Veterans v. figure “is reflected lodestar itself, an delay additional enhancement for Application Murray III. appropriate”: would not be the Present Case First, the court should determine wheth- hourly incorporated er the rates into the calculating the fee for Shaw’s attor [delay] lodestar ... contain incre- ney court, Ralph, Shalon the district for the ____ hourly ments The basic rate in used part, most followed the formula this court figure Murray] the lodestar was the [in specified in Copeland. The district court prevailing in Title litigation, rate VII computed first a lodestar of time and rate. lengthy delays where often attend the ninety-nine It found that Ralph’s hours of fees____ attorney’s payment of Accord- effort could be attributed to issues on ..., ing applicants’ fee affidavits Hensley succeeded. See which Shaw attorneys’ hourly billing for rates Eckerhart, concurrently were substantially ... low- (1983) (where plain 76 L.Ed.2d 40 they charged pursuant er than the rates only success, tiff partial achieves fee attorney’s for awards under fee-. statutes, shifting lengthy delays compensation awarded must where exclude for expected____ typically are Thus the rendered in services connection with figures may already lodestar include ad- claim). unsuccessful It then determined justments delay payment. in hourly rate was appropriate $85 Murray, (footnote omitted). at 1432-1433 attorney Ralph’s experience working problems on of employment Only hourly incorpo- when the rate discrimination basic rated into the lodestar did not in 1978 and 1979.11 The district court did “include[ ] delay Copeland 10. The court noted that factor of [Toxic Substances Control Act attor- adjustment may neys’ part be unwarranted the hour- when fees]” in because lodestar was calcu- ly present rate used in the lodestar "is based on rates). hourly lated on the basis of current rates," hourly distinguished as from "the lesser Murray developed Copeland’s exposition of. this applicable period in rates to the time which the point. Copeland, 641 F.2d at services were rendered.” (emphasis original); see 893 n. 23 National significant It is $85 that the court determined Secretary Ass’n Concerned v. (D.C.Cir.1982); De- Veterans per appropriate would have hour been an rate fense, 675 F.2d cf. per- was in 1978 1979 when the work EPA, Environmental Fund Defense formed, rather than in late 1981 when the fee (D.C.Cir.1982) adjust- (limiting lodestar was awarded. See "delay coupling "public ment benefit” however, consider, re execution of the administrative settlement Murray now agreement, after a court prevailed for not in late quires, rate $85 whether promptly proceeding counsel on both paid their attentive clients who bills Next, court component might have avoided. it “included a sides whether expected Ralph compensat if had been reasoned that delay which would have been mon genre. ed in he could have invested the payment of fees” cases of 1432; 21, 1433 average ey yield n. of at least Murray, at see at 1428 at an 10%. id. (lodestar per Therefore, announced, judg hour $95 n. 46 rates court $80 delay may upward adjustment included a for 1978 1981 have ment reflect an would attorney plaintiff delay.13 adjustment $50 element where billed That was 30% rendered); services were I per hour at time of interest. impermissible award court, majority opinion note 28. Mur instruct the district cf. does, that, hourly finds the ray it basic if Next, court determined the district component, rate did not include a lodestar should be reduced be 20% may whether the use of current consider representation judged cause court produce might market rates a reasonable Correctly anticipating efficient. 80% fee. just regard guidance sup court in this our court plied Murray, district declined inquiries pre Augmenting Murray any upward adjustment make scribed, prospect Murray’s limiting by taking on a Ralph case risk assumed uniform, plan ap manageable held for contingent was court, proach majority’s in the district victory.12 Murray, (up at 1430-1432 opinion seemingly anything at all allows losing adjustment for risk of on mer ward go to in the name interest. reasonable of to the extent that lode its is unwarranted particular computation No is instructed. con comprehended itself allowance for star judge choose Each has “broad latitude” to or tingent payment; fee ar nature of rates, range concepts, ap of- from a substantially re rangement with client proaches, simple to the running from attorney’s nonpayment; risk or duced long compound, so court’s sizable unexceptional). prevailing risk of not was Majority discretion is not “abused.” See opinion Murray’s to accom effort Finally, the award to the court increased modate, overturn, lines, decisional not three-year delay between account for and, “[ejase administration,” promote paid Ralph the time should have been all, “simplify the task of the expect payment. most of might finally time he court,” been Murray, case district court first that the should stated 1978, upon shortly by today’s decision.14 or after undermined have ended "win, gest legal per meth- Ralph hour doctrine forbids additive $30 A assured retainer lose, computing percentage change Library Congress, od or man- or draw.” Shaw v. 79-0325, compu- op. (D.D.C. compound slip interest when additive Nov. dates No. employed. I the district tation is not discern in The,court approach percentage 20% reduction court's additive declared that the change approach wholly unexplained quality in the in the lodestar to reflect deficiencies —an complex opinion nothing all representation and increase de- district court’s the 30% — only adjustment upward I an unintended "mathe- lay yielded A subtle. detect a net 10%. mistake,” oversight adjustment adjust- no remark- a 30% matical more down followed 20% however, change multiplication ma- up, yields upward $20 error the able than a net ment very 1.04). == (0.8 jority discovered in the district court’s 1.3 district 4% X might closely approached, al- same calculation. court have more reached, adjustment though upward not a net simple complex preferring contemplated compound had 10% modestly present- compounding styling per (e.g., a solution to a case so 10% annum annual 1.0648). appar- equal parties, precipitating ed and in a base of 10% 0.8 split, opin- point, majority circuit see Arvin v. United My misperceived ent one, p. again surely shown that does court has once ion's is a small prides profession on not itself court of a ours is “a the district involve attribution to Traynor, sug- throwing lightly design do chaos winds.” "penalize I [ ] counsel." stated, For the reasons I would return di-

this case to the district court to follow to letter the

rection

payment analysis and instructions set out Murray v. Weinberger.

AMERICAN EMPLOYERS COMPANY,

INSURANCE

Appellant BANK,

AMERICAN SECURITY N.A. BANK,

AMERICAN SECURITY

N.A., Appellant

AMERICAN EMPLOYERS COMPANY.

INSURANCE

Nos. 83-1496. Appeals, Court

District of Columbia Circuit.

Argued Feb.

Decided Nov. Lawmaking, Comment on Courts sen ed. Li-gai. (M. Today Paul-

Institutions Tomorrow

Case Details

Case Name: Tommy Shaw v. Library of Congress

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Nov 13, 1984

Citation: 747 F.2d 1469

Docket Number: 82-1019

Court Abbreviation: D.C. Cir.