Margaret Toomer Blake et al., Appellants, v. Joseph A. Califano, Secretary of the Department of Health,education and Welfare, et al., Appellees, 626 F.2d 891 (D.C. Cir. 1980)

Appellants are federal employees who have received retroactive promotions and back pay because they were victims of sex discrimination prohibited by the Equal Employment Opportunity Act of 1972, Pub. L. No.92-261, 86 Stat. 103.¹  The issue is whether their back pay awards should have reflected an award of prejudgment interest or should have been adjusted by an inflation factor to account for the decline of the purchasing power of the dollar between the time of the discrimination and the time of the award. In the District Court, on cross-motions for summary judgment on this point, Chief Judge Bryant held that the court did not have authority to order the United States to pay either prejudgment interest or a sum in addition to back pay to reflect inflation. We affirm.

The plaintiffs are five women who were employed as nursing assistants at the Clinical Center, National Institutes of Health. They brought this sex-discrimination action in March 1976, but no trial on the merits was held in the District Court. As the result of administrative decision or agreement of the parties, it was determined that they had each been denied promotion from a GS-4 to a GS-5 position as the result of sex discrimination. The parties settled the complaint that they were also discriminated against in consideration for promotion from GS-3 to GS-4. By the winter of 1976 each of the plaintiffs had received retroactive promotion and back pay.²  The only question remaining for decision by the District Court was that now before us addition of prejudgment interest or, alternatively, of an inflation factor.

Without such a supplement, appellants say, their awards give them an incomplete remedy, especially in view of the considerable time elapsed since their injuries occurred (see note 2, supra) . They note that prejudgment interest has been awarded by some courts under Title VII in private-sector cases,³  and urge that to deny this remedy to federal employees is to relegate them to second-class status. They argue that the automatic preclusion of an award of interest or an adjustment for inflation is contrary to the remedial provision of Title VII referring to "any other equitable relief as the court deems appropriate,"⁴  as well as to the Congressional purpose, in adopting the Equal Employment Opportunity Act of 1972, to extend the protections of Title VII to federal personnel.

We take the other view because (a) there is a long-established, deeply-imbedded principle that interest is not allowed on monetary claims against the Federal Government unless Congress (or a contract) plainly authorizes such an addition,⁵  and (b) in the light of this traditional doctrine we are not persuaded by the text, legislative history, or purposes of the 1972 extension of Title VII to federal workers that Congress has provided for this kind of relief to such employees.

There is no doubt as to the historical existence of an entrenched immunity of the Government from prejudgment interest, in the absence of authorization by Congress (or, in the case of a contract, the contracting parties). The Supreme Court has reiterated it many times for about a century. See Tillson v. United States, 100 U.S. 43, 47, 25 L. Ed. 543 (1879); Angarica v. Bayard, 127 U.S. 251, 260, 8 S. Ct. 1156, 1160, 32 L. Ed. 159 (1888). Seaboard Air Line Ry. v. United States, 261 U.S. 299, 304, 43 S. Ct. 354, 355, 67 L. Ed. 664 (1923); Smyth v. United States, 302 U.S. 329, 353, 58 S. Ct. 248, 252, 82 L. Ed. 294 (1937); United States v. Goltra, 312 U.S. 203, 207, 61 S. Ct. 487, 490, 85 L. Ed. 776 (1941); United States v. Thayer-West Point Hotel Co., 329 U.S. 585, 588, 67 S. Ct. 398, 399, 91 L. Ed. 521 (1947); United States v. New York Rayon Importing Co., 329 U.S. 654, 658-59, 67 S. Ct. 601, 603-604, 91 L. Ed. 577 (1947); United States v. Alcea Band of Tillamooks, 341 U.S. 48, 49, 71 S. Ct. 552, 553, 95 L. Ed. 738 (1951). This court has followed suit. Whittier v. Emmet, 108 U.S.App.D.C. 191, 198-99, 281 F.2d 24, 31-32 (1960), cert. denied, 364 U.S. 935, 81 S. Ct. 380, 5 L. Ed. 2d 367 (1961); Fitzgerald v. Staats, 188 U.S.App.D.C. 193, 578 F.2d 435, cert. denied, 439 U.S. 1004, 99 S. Ct. 616, 58 L. Ed. 2d 680 (1978). And Congress has declared in 28 U.S.C. § 2516(a) that "Interest on a claim against the United States shall be allowed in a judgment of the Court of Claims only under a contract or Act of Congress expressly providing for payment thereof."⁶ 

For this case it makes no difference whether one phrases this firmly-established rule as calling in all cases for some specific or express legislation authorizing interest (see, e. g., United States v. Thayer-West Point Hotel Co., 329 U.S. at 588, 590, 67 S. Ct. at 399, 400), or more simply for a statute evincing the intention to allow interest (Smyth v. United States, 302 U.S. at 353, 58 S. Ct. at 252). Under either formulation there is here no statute which overcomes the traditional principle. Appellants rely on the broad authorization for "other equitable relief" in 42 U.S.C. § 2000e-5(g) (note 4, supra) . We agree, however, with the two Courts of Appeals which have ruled on the issue and have held that this language is insufficient to constitute the necessary statutory authority where the complainant is a federal employee. Richerson v. Jones, 551 F.2d 918, 925 (3d Cir. 1977); Fischer v. Adams, 572 F.2d 406, 411 (1st Cir. 1978). While it may not be unreasonable to infer that "equitable relief" can cover an award of interest in private-sector cases, there is nothing to indicate that Congress affirmatively intended this for the federal sector. The legislative history is wholly silent on the propriety of awarding interest in Title VII cases. Without some further indication in statutory language or in legislative history, "equitable relief" is too wide and general a category to outbalance, by itself, the specific entrenched immunity of the Government from prejudgment interest.⁷  The Supreme Court has found language conceptually similar to that in 42 U.S.C. § 2000e-5(g) to be an inadequate expression of a waiver of this immunity. See, e. g., Tillson v. United States, 100 U.S. 43, 45, 25 L. Ed. 543 (1879) ("such court is authorized and directed to investigate the same, and to ascertain, determine, and adjudge the amount equitably due such firm, if any, for such loss and damage."); United States v. Thayer-West Point Hotel Co., 329 U.S. 585, 590, 67 S. Ct. 398, 91 L. Ed. 521 (1947) ("Said lease * * * shall also provide for just compensation to the lessees for the construction of said hotel, appurtenances, and equipment, to be paid to said lessees at the termination of said lease.") (emphasis added). Moreover, while an award of prejudgment interest would be consistent with the remedial policies of Title VII, mere consistency with statutory purposes is not enough. In Fitzgerald v. Staats, 188 U.S.App.D.C. 193, 578 F.2d 435, cert. denied, 439 U.S. 1004, 99 S. Ct. 616, 58 L. Ed. 2d 680 (1978), we considered whether prejudgment interest could be assessed against the United States under the Back Pay Act or the Veterans Preference Act. In holding that it could not, we concluded that we were not free to make a decision to allow interest based on the remedial purposes of those statutes. Id. at 196, 578 F.2d at 438. We can give no greater weight to the comparable remedial purposes of Title VII.⁸ 

The same result must be reached for appellants' alternative contention that they are entitled to increases in their back-pay awards to compensate for the loss of the dollar's value due to inflation. We assume arguendo that interest and an inflation adjustment are distinct remedies,⁹  but the settled governmental immunity from interest counsels against this similar supplementation (in the absence of clear Congressional authorization). Both interest and an inflation adjustment serve the same general end of compensating the recipient for differences in the worth of her award between the date of actual receipt and the date as of which the money should have been paid. If one is barred the other should also be; the same considerations govern. Cf. Nooksack Tribe of Indians v. United States, 162 Ct. Cl. 712, 718 (1963), cert. denied, 375 U.S. 993, 84 S. Ct. 633, 11 L. Ed. 2d 479 (1964); United States v. Delaware Tribe, 192 Ct. Cl. 385, 392-96, 427 F.2d 1218, 1222-24 (1970). In addition, appellants have been unable to offer any example of a back-pay award under Title VII being augmented to account for inflation, even in a private case. In the light of the special need for a waiver of sovereign immunity in suits against the Government (United States v. Testan, 424 U.S. 392, 399, 96 S. Ct. 948, 953, 47 L. Ed. 2d 114 (1976); Fitzgerald v. Staats, supra, 188 U.S.App.D.C. at 196, 578 F.2d at 438) this case is a fortiori,

Affirmed.