B-195809.OM, MAR 30, 1981

B-195809.OM: Mar 30, 1981

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HELD THAT TITLE VII JUDGMENTS ARE PAYABLE FROM THE PERMANENT JUDGMENT APPROPRIATION. THE PURPOSE OF THIS MEMORANDUM IS TO REQUEST YOUR OPINION ON THE FOLLOWING QUESTIONS: (1) POST-JUDGMENT INTEREST ON DISTRICT COURT JUDGMENTS IS GENERALLY GOVERNED BY THE FIRST PROVISO OF 31 U.S.C. 724A. WHICH PROVIDES THAT INTEREST IS PAYABLE ONLY WHEN THE GOVERNMENT APPEALS AND LOSES. IT APPEARS THAT TITLE VII ACTIONS ARE INSTITUTED UNDER 42 U.S.C. 2000E-16. IF THIS IS TRUE. THUS OUR FIRST QUESTION IS: DOES THE FIRST PROVISO OF 31 U.S.C. 724A APPLY TO TITLE VII JUDGMENTS? (2) ATTORNEY'S FEES AND COSTS ARE FREQUENTLY AWARDED IN TITLE VII SUITS IN ACCORDANCE WITH 42 U.S.C. 2000E-5(K). ARE ALSO PAID FROM THE PERMANENT APPROPRIATION.

B-195809.OM, MAR 30, 1981

PRECIS-UNAVAILABLE

THE COMPTROLLER GENERAL:

WE RECEIVE A LARGE NUMBER OF JUDGMENTS AND COMPROMISE STIPULATIONS INVOLVING EMPLOYMENT DISCRIMINATION ACTIONS UNDER TITLE VII OF THE CIVIL RIGHTS ACT, 42 U.S.C. 2000E-16. A RECENT DECISION, B-178551, MARCH 7, 1979, HELD THAT TITLE VII JUDGMENTS ARE PAYABLE FROM THE PERMANENT JUDGMENT APPROPRIATION, 31 U.S.C. 724A. HOWEVER, THE DECISION LEFT CERTAIN QUESTIONS UNANSWERED. THE PURPOSE OF THIS MEMORANDUM IS TO REQUEST YOUR OPINION ON THE FOLLOWING QUESTIONS:

(1) POST-JUDGMENT INTEREST ON DISTRICT COURT JUDGMENTS IS GENERALLY GOVERNED BY THE FIRST PROVISO OF 31 U.S.C. 724A, WHICH PROVIDES THAT INTEREST IS PAYABLE ONLY WHEN THE GOVERNMENT APPEALS AND LOSES, AND THEN ONLY FROM THE DATE OF THE FILING OF A COPY OF THE JUDGMENT WITH GAO TO THE MANDATE OF AFFIRMANCE. HOWEVER, THE FIRST PROVISO OF 31 U.S.C. 724A REFERS TO JUDGMENTS "TO WHICH THE PROVISIONS OF SECTION 2411(B) OF TITLE 28 APPLY." 28 U.S.C. 2411(B) IN TURN REFERS TO "ACTIONS INSTITUTED UNDER SECTION 1346 OF THIS TITLE." IT APPEARS THAT TITLE VII ACTIONS ARE INSTITUTED UNDER 42 U.S.C. 2000E-16. IF THIS IS TRUE, THEN THE FIRST PROVISO WOULD NOT APPLY TO TITLE VII JUDGMENTS, AND THERE WOULD BE NO AUTHORITY TO PAY INTEREST REGARDLESS OF ANY APPEAL BY THE GOVERNMENT OR FILING OF THE JUDGMENT BY THE PLAINTIFF. THUS OUR FIRST QUESTION IS: DOES THE FIRST PROVISO OF 31 U.S.C. 724A APPLY TO TITLE VII JUDGMENTS?

(2) ATTORNEY'S FEES AND COSTS ARE FREQUENTLY AWARDED IN TITLE VII SUITS IN ACCORDANCE WITH 42 U.S.C. 2000E-5(K), AND ARE ALSO PAID FROM THE PERMANENT APPROPRIATION. SECTION 2000E-5(K) PROVIDES THAT ATTORNEY'S FEES MAY BE AWARDED "AS PART OF THE COSTS" AND THAT "THE UNITED STATES SHALL BE LIABLE FOR COSTS THE SAME AS A PRIVATE PERSON." IF A PRIVATE PERSON GETS A JUDGMENT FROM A DISTRICT COURT, HE GETS INTEREST UNDER 28 U.S.C. 1961, WHICH PROVIDES THAT "SUCH INTEREST SHALL BE CALCULATED FROM THE DATE OF THE ENTRY OF THE JUDGMENT, AT THE RATE ALLOWED BY STATE LAW." B-191028, MARCH 27, 1978. THUS, IF THE UNITED STATES IS TO BE TREATED THE SAME AS A PRIVATE PERSON, IT MAY BE ARGUED THAT THIS INCLUDES THE PAYMENT OF INTEREST UNDER 28 U.S.C. 1961. OUR SECOND QUESTION IS STATED IN TWO PARTS:

(A) IN VIEW OF 28 U.S.C. 1961 AND 42 U.S.C. 2000E-5(K), IS INTEREST AUTHORIZED ON AWARDS OF COSTS AND/OR ATTORNEY'S FEES IN TITLE VII CASES?

(B) DOES THE ANSWER TO (A) DEPEND ON WHETHER STATE LAW ALLOWS INTEREST ON COSTS AND/OR ATTORNEY'S FEES (SOME STATES HAVE SUCH PROVISIONS WHILE OTHERS MAKE NO MENTION ONE WAY OR THE OTHER), OR DOES THE REFERENCE TO STATE LAW IN 28 U.S.C. 1961 MERELY ADDRESS THE RATE TO BE APPLIED?

BECAUSE THE AWARD IN THE CASE OF CARREATHERS V. ALEXANDER, CIVIL NO. C- 5082, U. S. DISTRICT COURT, DISTRICT OF COLORADO, MAY SERVE AS AN EXAMPLE OF THE ISSUES RAISED ABOVE, WE ARE FORWARDING THE FILE FOR YOUR REFERENCE.

INDORSEMENT

ACTING ASSOCIATE DIRECTOR, AFMD - CLAIMS GROUP:

RETURNED. IN THE ORIGINAL AUGUST 10, 1979 MEMORANDUM, THE CHIEF, PAYMENTS BRANCH RAISED CERTAIN QUESTIONS IN CONNECTION WITH A SETTLEMENT AGREEMENT IN THE CARREATHERS CASE. SHORTLY THEREAFTER, WE RESOLVED THE IMMEDIATE PROBLEM IN THAT CASE AND AUTHORIZED PAYMENT CERTIFICATION. WE ARE NOW MAKING A DETAILED RESPONSE TO THE QUESTIONS THAT WERE RAISED IN THAT MEMORANDUM.

QUESTION 1. DOES THE FIRST PROVISO OF 31 U.S.C. SEC. 724A APPLY TO TITLE VII JUDGMENTS?

ANSWER: THE FIRST PROVISO OF 31 U.S.C. SEC. 724A DOES NOT AUTHORIZE THE PAYMENT OF INTEREST ON JUDGMENTS RENDERED AGAINST THE UNITED STATES IN DISCRIMINATION ACTIONS BROUGHT UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED.

THE PROVISO AUTHORIZES THE PAYMENT OF INTEREST ON DISTRICT COURT JUDGMENTS AGAINST THE UNITED STATES IN CASES BROUGHT UNDER THE JURISDICTIONAL AUTHORITY OF 28 U.S.C. SEC. 1346. THE FIRST PROVISO OF 31 U.S.C. SEC. 724A READS AS FOLLOWS:

"PROVIDED, THAT INTEREST ON A JUDGMENT OF A DISTRICT COURT TO WHICH THE PROVISIONS OF SECTION 2411(B) OF TITLE 28 APPLY, PAYABLE FROM THIS APPROPRIATION, SHALL BE PAID ONLY WHEN SUCH JUDGMENT BECOMES FINAL AFTER REVIEW ON APPEAL OR PETITION BY THE UNITED STATES, AND THEN ONLY FROM THE DATE OF THE FILING OF THE TRANSCRIPT THEREOF IN THE GENERAL ACCOUNTING OFFICE TO THE DATE OF THE MANDATE OF AFFIRMANCE (EXCEPT THAT IN CASES REVIEWD BY THE SUPREME COURT INTEREST SHALL NOT BE ALLOWED BEYOND THE TERM OF THE COURT AT WHICH THE JUDGMENT WAS AFFIRMED) ***."

AS YOU NOTE, 28 U.S.C. SEC. 2411(B) APPLIES TO CASES BROUGHT UNDER 28 U.S.C. SEC. 1346. SECTION 2411(B) PROVIDES:

"EXCEPT AS OTHERWISE PROVIDED IN SUBSECTION (A) OF THIS SECTION, ON ALL FINAL JUDGMENTS RENDERED AGAINST THE UNITED STATES IN ACTIONS INSTITUTED UNDER SECTION 1346 OF THIS TITLE, INTEREST SHALL BE COMPUTED AT THE RATE OF 4 PER CENTUM PER ANNUM 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."

SECTION 1346 CONFERS JURISDICTION UPON THE UNITED STATES DISTRICT COURTS TO HEAR CERTAIN SPECIFIED CIVIL ACTIONS AGAINST THE UNITED STATES, PRIMARILY THE TUCKER ACT AND THE FEDERAL TORT CLAIMS ACT.

SECTION 2411(B) WAS THE SOLE AUTHORITY FOR POST-JUDGMENT INTEREST IN SECTION 1346 ACTIONS BEFORE CONGRESS ENACTED 31 U.S.C. SEC. 724A. CONGRESS IN ENACTING THE PERMANENT INDEFINITE JUDGMENT APPROPRIATION, INCLUDED THE FIRST PROVISO WHICH IN EFFECT MODIFIED SECTION 2411(B). THE PURPOSE OF THE PROVISO WAS TO MAKE INTEREST PROVISIONS FOR DISTRICT COURT JUDGMENTS CONSISTENT WITH THOSE FOR THE COURT OF CLAIMS. SEE H. R. REP. NO. 2638, 84TH CONG., 2D SESS. 72 (1956); HEARINGS ON SUPPLEMENTAL APPROPRIATIONS BILL, 1957, BEFORE SUBCOMMITTEES OF THE HOUSE COMMITTEE ON APPROPRIATIONS, 84TH CONG., 2D SESS., PT. 2 AT 884 (1956).

TITLE VII DISCRIMINATION SUITS AGAINST THE GOVERNMENT ARE NOT INSTITUTED UNDER 28 U.S.C. SEC. 1346. RATHER, TWO TITLE VII PROVISIONS (42 U.S.C. SECS. 2000E-5(F)(3) AND 2000E-16(C)) COMBINE TO GIVE FEDERAL DISTRICT COURTS JURISDICTION TO HEAR EMPLOYMENT DISCRIMINATION ACTIONS BROUGHT AGAINST THE GOVERNMENT UNDER THE CIVIL RIGHTS ACT OF 1964. SECTION 2000E- 16(C) PROVIDES THAT FEDERAL EMPLOYEES (OR APPLICANTS), "MAY FILE A CIVIL ACTION AS PROVIDED IN SECTION 2000E-5 OF THIS TITLE ***." SECTION 2000E- 5(F)(3) GIVES UNITED STATES DISTRICT COURTS JURISDICTION OVER ACTIONS BROUGHT UNDER TITLE VII.

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, WHICH PROHIBITS EMPLOYMENT DISCRIMINATION, DID NOT APPLY TO FEDERAL EMPLOYEES AS ORIGINALLY ENACTED. THE EQUAL EMPLOYMENT OPPORTUNITY ACT OF 1972 AMENDED TITLE VII TO MAKE IT APPLICABLE TO THE FEDERAL GOVERNMENT BY ADDING SECTION 2000E-16. SUBSECTION (C) MADE THE JUDICIAL REMEDY AVAILABLE FOR FEDERAL EMPLOYEES THE SAME AS FOR OTHERS COVERED BY THE ACT BY INCORPORATING BY REFERENCE SECTION 2000E-5. THE LEGISLATIVE HISTORY OF THE 1972 AMENDMENT, AS INTERPRETED BY THE SUPREME COURT IN BROWN V. GENERAL SERVICES ADMINISTRATION, 425 U. S. 820 (1976), INDICATES THAT IT PROVIDES THE REMEDY FOR CLAIMS OF DISCRIMINATION IN FEDERAL EMPLOYMENT. THE COURT FOUND THAT IT WAS THE INTENT OF CONGRESS TO CREATE AN EXCLUSIVE PREEMPTIVE SCHEME FOR THE REDRESS OF FEDERAL EMPLOYMENT DISCRIMINATION WITH THE ENACTMENT OF THE 1972 AMENDMENT, BECAUSE CONGRESS BELIEVED THAT FEDERAL EMPLOYEES WHO WERE TREATED DISCRIMINATORILY HAD NO EFFECTIVE JUDICIAL REMEDY. ID. AT 824-829. THE COURT REASONED THAT, INASMUCH AS SECTION 717 OF THE EQUAL EMPLOYMENT OPPORTUNITY ACT OF 1972 (42 U.S.C. SEC. 2000E-16) CONTAINED A CAREFULLY INTEGRATED COMBINATION OF ADMINISTRATIVE AND JUDICIAL REMEDIES, IT WAS NOT MEANT MERELY TO SUPPLEMENT OTHER PUTATIVE JUDICIAL REMEDIES. ON THE BASIS OF THIS RATIONALE, THE COURT INDICATED THAT THIS SECTION WAS THE SOURCE JURISDICTION FOR FEDERAL COURTS TO GRANT FINANCIAL 832-834. IT FOLLOWS THAT NO OTHER STATUTE, INCLUDING 28 U.S.C. SEC. 1346, EMPOWERS FEDERAL DISTRICT COURTS TO RENDER MONEY JUDGMENTS AGAINST THE UNITED STATES FOR VIOLATIONS OF TITLE VII.

ACCORDINGLY, THE FIRST PROVISO OF 31 U.S.C. SEC. 724A DOES NOT APPLY TO TITLE VII JUDGMENTS, AND INTEREST IS THEREFORE NOT PROPERLY PAYABLE ON SUCH JUDGMENTS EVEN IF THE GOVERNMENT HAS APPEALED AND LOST AND THE PLAINTIFF HAS FILED A COPY OF THE JUDGMENT WITH GAO. SEE ALSO RICHERSON V. JONES, 551 F.2D 918 (3D CIR. 1977), IN WHICH THE COURT HELD THAT IT LACKED THE AUTHORITY TO AWARD INTEREST ON A TITLE VII JUDGMENT AGAINST THE GOVERNMENT SINCE NEITHER THE EQUAL OPPORTUNITY ACT OF 1972 NOR THE INCORPORATED PROVISIONS OF TITLE VII EXPRESSLY AUTHORIZED SUCH AN AWARD.

FURTHER SUPPORT FOR THIS CONCLUSION CAN BE FOUND IN A RECENT PER CURIAM DECISION BY THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA, HOLLY V. CHASEN, F.2D (D. C. CIR. NO. 79-1492, JANUARY 7, 1981). THAT CASE INVOLVED INTEREST ON AN AWARD OF ATTORNEY'S FEES UNDER THE FREEDOM OF INFORMATION ACT. LIKE TITLE VII, THE FREEDOM OF INFORMATION ACT, 5 U.S.C. SEC. 552, DOES NOT SPECIFICALLY PROVIDE FOR INTEREST. ALSO LIKE TITLE VII, THE FREEDOM OF INFORMATION ACT IS NOT WITHIN THE JURISDICTIONAL SCOPE OF 28 U.S.C. SEC. 1346. THE DISTRICT COURT IN HOLLY HAD GRANTED THE PLAINTIFF'S MOTION FOR INTEREST AND THE GOVERNMENT APPEALED. THE PLAINTIFF ARGUED THAT INTEREST WAS PROPER UNDER 28 U.S.C. SEC. 1961 WHICH AUTHORIZES INTEREST ON DISTRICT COURT JUDGMENTS. THE COURT OF APPEALS DISAGREED AND REVERSED THE DISTRICT COURT. IN ITS OPINION, THE COURT OF APPEALS (A) CONCLUDED THAT THE PROHIBITION AGAINST INTEREST WITHOUT EXPRESS STATUTORY AUTHORITY APPLIED TO POST-JUDGMENT INTEREST AS WELL AS PRE-JUDGMENT CLAIMS; (B) AFFIRMED THE GOVERNMENT'S POSITION THAT 28 U.S.C. SEC. 1961 DOES NOT APPLY TO THE UNITED STATES; AND (C) POINTED OUT THAT SEVERAL STATUTES, INCLUDING 31 U.S.C. SEC. 724A, ESTABLISH, AMONG OTHER THINGS, WHICH CLAIMS AGAINST THE UNITED STATES WILL BEAR INTEREST WHEN REDUCED TO JUDGMENT. THE RATIONALE OF HOLLY IS EQUALLY APPLICABLE TO TITLE VII SINCE THE ISSUE IN HOLLY WOULD NEVER HAVE ARISEN IF 31 U.S.C. SEC. 724A HAD BEEN VIEWED AS APPLICABLE. (PLAINTIFF CONCEDED THAT THE INTEREST PROVISO OF SEC. 724A WOULD GOVERN IN THOSE CASES TO WHICH IT APPLIED, WHICH DID NOT INCLUDE THE FREEDOM OF INFORMATION ACT. PLAINTIFF'S BRIEF AT PP. 17-19.)

IN SUM, SINCE SEC. 724A DOES NOT APPLY, INTEREST ON TITLE VII JUDGMENTS AGAINST THE UNITED STATES MUST CONTINUE TO BE GOVERNED, UNLESS AND UNTIL CONGRESS TAKES FURTHER ACTION, BY THE RULE THAT INTEREST IS NOT RECOVERABLE AGAINST THE UNITED STATES IN THE ABSENCE OF EXPRESS STATUTORY AUTHORITY OR CONTRACTUAL PROVISION.

QUESTION 2. IN VIEW OF 28 U.S.C. SEC. 1961 AND 42 U.S.C. SEC. 2000E 5(K), IS INTEREST AUTHORIZED ON AWARDS OF COSTS AND/OR ATTORNEY'S FEES IN TITLE VII CASES?

ANSWER: NO.

THIS QUESTION STEMS FROM THE WORDING OF 42 U.S.C. SEC. 2000E-5(K), WHICH PROVIDES COURTS WITH AUTHORITY TO AWARD ATTORNEY'S FEES TO PREVAILING PARTIES. THAT SECTION READS AS FOLLOWS:

"(K) IN ANY ACTION OR PROCEEDING UNDER THIS SUBCHAPTER THE COURT, IN ITS DISCRETION, MAY ALLOW THE PREVAILING PARTY, OTHER THAN THE COMMISSION OR THE UNITED STATES, A REASONABLE ATTORNEY'S FEE AS PART OF THE COSTS, AND THE COMMISSION AND THE UNITED STATES SHALL BE LIABLE FOR COSTS THE SAME AS A PRIVATE PERSON."

INASMUCH AS THE ABOVE-QUOTED PROVISION MAKES THE UNITED STATES LIABLE FOR COSTS "THE SAME AS A PRIVATE PERSON," IT COULD BE ARGUED THAT A PREVAILING PARTY WHO HAS BEEN AWARDED ATTORNEY'S FEES MIGHT ALSO BE ENTITLED TO INTEREST ON SUCH FEES IN CERTAIN CASES UNDER THE PROVISIONS OF 28 U.S.C. SEC. 1961. THAT SECTION READS AS FOLLOWS:

"INTEREST SHALL BE ALLOWED ON ANY MONEY JUDGMENT IN A CIVIL CASE RECOVERED IN A DISTRICT COURT. EXECUTION THEREFOR 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."

HOWEVER, WE ARE OF THE OPINION THAT THESE STATUTES SHOULD NOT BE CONSTRUED IN THIS MANNER.

THE INTERPRETATION OF 42 U.S.C. SEC. 2000E-5(K) TO PERMIT THE AWARD OF INTEREST ON COSTS OR ATTORNEY'S FEES OBTAINED BY A GOVERNMENT EMPLOYEE FROM THE GOVERNMENT IN A TITLE VII ACTION, WOULD LEAD TO AN INCONSISTENT AND ANOMALOUS RESULT. AS EXPLAINED IN OUR ANSWER TO QUESTION 1, INTEREST IS NOT PERMITTED ON A BACK PAY AWARD IN A TITLE VII ACTION. THUS IT WOULD BE ANOMALOUS TO ASSUME THAT CONGRESS INTENDED THAT A COURT, WHEN RENDERING A TITLE VII JUDGMENT AGAINST THE GOVERNMENT, SHOULD BE ABLE TO ALLOW INTEREST ON COSTS OR ATTORNEY'S FEES, BUT WITHHOLD IT ON A BACK PAY AWARD CONTAINED IN THE SAME JUDGMENT. IT IS ALSO SOMEWHAT ANOMALOUS TO ASSUME THAT CONGRESS INTENDED THAT THE AMOUNT OF INTEREST ON TITLE VII COSTS OR ATTORNEY'S FEES, IF SUCH INTEREST COULD BE AWARDED AT ALL, SHOULD DEPEND ENTIRELY ON STATE LAW AS IS REQUIRED BY 28 U.S.C. SEC. 1961. UNDER THAT RATIONALE, SINCE SOME STATES ALLOW INTEREST ON COSTS OR ATTORNEY'S FEES WHILE OTHERS DO NOT, A GOVERNMENT EMPLOYEE IN ONE STATE COULD RECEIVE A TITLE VII JUDGMENT PROVIDING FOR INTEREST ON COSTS OR ATTORNEY'S FEES WHILE A SIMILARLY SITUATED GOVERNMENT EMPLOYEE IN A NEIGHBORING STATE WOULD BE DENIED SUCH INTEREST ON THE BASIS OF THE LAW OF HIS STATE. ADDITION, WHENEVER CONGRESS HAS PROVIDED FOR INTEREST ON JUDGMENTS AGAINST THE UNITED STATES, IT HAS ALWAYS PROVIDED A UNIFORM "FEDERAL" RATE RATHER THAN A RATE DETERMINED BY STATE LAW. 28 U.S.C. SEC. 2411(A); 28 U.S.C. SEC. 2411(B) AS MODIFIED BY 31 U.S.C. SEC. 724A; 28 U.S.C. SEC. 2516(B); 26 U.S.C. SEC. 7426; 31 U.S.C. SEC. 227; 46 U.S.C. SEC. 743. IT WOULD BE INCONSISTENT WITH THIS STATUTORY SCHEME TO ATTRIBUTE TO CONGRESS AN INTENT TO DEPART FROM THIS CONSISTENT PATTERN BY PROVIDING INTEREST AT A RATE TO BE DETERMINED BY STATE LAW, IN THE ABSENCE OF CLEAR INDICATION THAT THIS WAS IN FACT WHAT CONGRESS INTENDED.

IN EXAMINING THE LEGISLATIVE HISTORY OF 42 U.S.C. SEC. 2000E-5(K), WE FIND THE CLEAREST EXPRESSION OF CONGRESSIONAL INTENT IN SENATE REPORT NO. 872, 88TH CONG., 2D SESS. 7 (1964), ACCOMPANYING S. 1732, THE SENATE VERSION OF THE CIVIL RIGHTS BILL. THAT REPORT EXPLAINED THE PURPOSE OF THE LANGUAGE MAKING THE GOVERNMENT LIABLE FOR COSTS THE SAME AS A PRIVATE PERSON AS FOLLOWS:

"SUBSECTION 6(F). - THIS NEW SUBSECTION WOULD PROVIDE THAT THE UNITED STATES BE LIABLE FOR COSTS THE SAME AS A PRIVATE PERSON IN ANY ACTION INSTITUTED UNDER SUBSECTION 6(A). THIS ADDITION WAS NECESSARY TO MAKE THE UNITED STATES LIABLE FOR COSTS, FOR RULE 54(D) OF THE FEDERAL RULES OF CIVIL PROCEDURE PROVIDES THAT -

*** COSTS AGAINST THE UNITED STATES, ITS OFFICERS AND AGENCIES SHALL BE IMPOSED ONLY TO THE EXTENT PERMITTED BY LAW.

"RULE 54(D) ALSO PROVIDES THAT COSTS SHALL BE AWARDED THE PREVAILING PARTY UNLESS THE COURT OTHERWISE DIRECTS. THUS, COSTS IN ACTIONS INSTITUTED UNDER THIS ACT COULD BE AWARDED TO EITHER PARTY IN THE DISCRETION OF THE COURT."

TO PLACE THIS LANGUAGE IN PERSPECTIVE, IT MUST BE REALIZED THAT, WHEN THE CIVIL RIGHTS ACT WAS ENACTED IN 1964, COSTS COULD NOT BE AWARDED AT ALL AGAINST THE UNITED STATES WITHOUT STATUTORY AUTHORITY. 28 U.S.C. SEC. 2412 (1964 ED.). 28 U.S.C. SEC. 2412 WAS NOT AMENDED TO AUTHORIZE COSTS AGAINST THE UNITED STATES (EXCLUSIVE OF ATTORNEY'S FEES) UNTIL 1966. SEE 54 COMP.GEN. 22 (1974). THUS IN 1964, EXPRESS STATUTORY AUTHORITY WAS NECESSARY TO PERMIT THE AWARDING OF COSTS (AS WELL AS ATTORNEY'S FEES) AGAINST THE UNITED STATES IN VIEW OF THE THEN EXISTING PROHIBITION IN 28 U.S.C. SEC. 2412 AS WELL AS RULE 54(D) OF THE FEDERAL RULES OF CIVIL PROCEDURE. (WHILE THE UNITED STATES COULD NOT BE SUED AS DEFENDANT UNDER THE 1964 VERSION OF TITLE VII IT COULD STILL LOSE AN ENFORCEMENT ACTION IN WHICH THE UNITED STATES WAS THE PLAINTIFF. THUS, A PRIVATE LITIGANT COULD BE THE "PREVAILING PARTY" AGAINST THE UNITED STATES IN THIS CONTEXT EVEN BEFORE THE 1972 AMENDMENTS.)

THUS, THE SOLE PURPOSE OF THE "SAME AS A PRIVATE PERSON" LANGUAGE WAS TO OVERCOME THE THEN-EXISTING PROHIBITION ON AWARDING COSTS AGAINST THE UNITED STATES. WE HAVE FOUND NO INDICATION OF ANY INTENT TO GO BEYOND THIS LIMITED PURPOSE, FOR EXAMPLE, BY REMOVING THE GOVERNMENT'S SOVEREIGN IMMUNITY WITH RESPECT TO INTEREST.

IT SHOULD BE STRESSED THAT INTEREST IS NOT A PART OF COSTS BUT IS AN AMOUNT IN ADDITION THERETO. COSTS MAY BE THOUGHT OF AS A PRINCIPAL AMOUNT CONSISTING OF EXPENSES OF LITIGATION BETWEEN THE LITIGANTS. COSTS ALLOWABLE AGAINST THE UNITED STATES ARE SPECIFIED IN 28 U.S.C. SEC. 1920. INTEREST, ON THE OTHER HAND, IS COMPENSATION FOR THE USE, DETENTION, OR FORBEARANCE OF MONEY. HENCE INTEREST IS SEPARATE FROM COSTS AND 42 U.S.C. SEC. 2000E-5(K), (IN OUR OPINION) MADE THE GOVERNMENT LIABLE FOR COSTS BUT DID NOT MAKE THE GOVERNMENT LIABLE FOR INTEREST. IN THIS CONNECTION IT IS FIRMLY ESTABLISHED THAT INTEREST ON CLAIMS AND JUDGMENTS AGAINST THE UNITED STATES CANNOT BE RECOVERED IN THE ABSENCE OF AN EXPRESS PROVISION TO THE CONTRARY IN THE RELEVANT STATUTE OR CONTRACT. UNITED STATES V. TILLAMOOKS, 341 U. S. 48, 49 (1951); UNITED STATES V. THAYER-WEST POINT HOTEL CO., 329 U. S. 585, 588 (1947); RICHERSON V. JONES, SUPRA; HOLLY V. CHASEN, SUPRA. THAT IS, THERE MUST BE AN EXPRESS WAIVER OF THE GOVERNMENT'S SOVEREIGN IMMUNITY. IN VIEW OF THE PURPOSE OF 42 U.S.C. SEC. 2000E-5(K) AS DISCUSSED ABOVE, AND THE TOTAL LACK OF ANY INDICATION OF CONGRESSIONAL INTENT TO AUTHORIZE INTEREST, WE CONCLUDE THAT 42 U.S.C. SEC. 2000E 5(K) DOES NOT CONSTITUTE SUCH AN EXPRESS WAIVER.

IN VIEW OF THE FOREGOING, WE CONCLUDE THAT INTEREST IS NOT AUTHORIZED ON AWARDS OF COSTS AND/OR ATTORNEY'S FEES IN TITLE VII CASES.

DIGEST

1. THE FIRST PROVISO OF 31 U.S.C. 724A DOES NOT AUTHORIZE THE PAYMENT OF INTEREST ON JUDGMENTS RENDERED AGAINST THE UNITED STATES IN DISCRIMINATION ACTIONS BROUGHT UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AND INTEREST IS THEREFORE NOT PROPERLY PAYABLE ON SUCH JUDGMENTS EVEN IF THE GOVERNMENT HAS APPEALED AND LOST AND THE PLAINTIFF HAS FILED A COPY OF THE JUDGMENT WITH THE GAO. SEE COURT CASES CITED.

2. GAO HAS CONSTRUED THE PROVISIONS OF 28 U.S.C. 1961 AND 42 U.S.C. 2000E -5(K) AS NOT AUTHORIZING THE PAYMENT OF INTEREST ON AWARDS OF COSTS AND/OR ATTORNEY'S FEES IN CASES UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964. SEE COURT CASES CITED.