Michael Zumerling, et al., Appellees, v. John O. Marsh, Jr., Etc., et al., Appellants, 783 F.2d 1032 (Fed. Cir. 1986)

This is an appeal of an order and final judgment of the United States District Court for the Western District of Pennsylvania, assessing post-judgment interest against the United States in an action for minimum wages and liquidated damages under the Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201-219 (1982) (FLSA). We hold that the United States has not waived its sovereign immunity with respect to an award of post-judgment interest in FLSA cases and therefore reverse the order and final judgment of the district court.

This action was brought by several federal firefighters and law enforcement officers seeking overtime pay, minimum wages, liquidated damages, and attorney fees pursuant to the Fair Labor Standards Act of 1938. The United States District Court for the Western District of Pennsylvania granted the federal employees' motion for summary judgment with respect to the minimum wage claims of certain of the employees who were employed by the government as firefighters between 1978 and 1981. Zumerling v. Marsh, 591 F. Supp. 537 (W.D. Pa. 1984), aff'd, Zumerling v. Devine, 769 F.2d 745 (Fed. Cir. 1985).¹ 

The district court thereafter directed the parties to determine the amount due each firefighter entitled to minimum wages under the terms of the court's decision. On November 5, 1984 those firefighters who recovered minimum wages moved for an award of liquidated damages and post-judgment interest. The government objected neither to the granting of liquidated damages nor to the award of post-judgment interest.² 

On March 14, 1985 the parties submitted a stipulation to the district court that set forth the amounts due those firefighters entitled to minimum wages for whom records were available. In an order and final judgment entered on March 28, 1985 the district court approved the parties' stipulation, granted the employees' back wages and liquidated damages, and granted the employees' motion for post-judgment interest. This appeal solely concerns the post-judgment interest.

Before us, the Government appellants contend that an award of post-judgment interest against the United States is precluded because no statute or contract specifically provides for the assessment of such interest.³  Appellees argue that the appeal should be dismissed because appellants failed to object to the award of post-judgment interest below, and therefore waived that argument. Then, assuming that appellants' argument on interest is to be considered, appellees contend that the district court properly awarded post-judgment interest because Congress--in extending the FLSA to federal employees--intended that those employees receive the identical benefits and protections already accorded private sector employees. In a word, appellees argue that Congress opened the door to awards of post-judgment interest, an ordinary incident to private litigation.

Although appellees argue that the United States⁴  waived its right to appeal the award of post-judgment interest because it did not contest the award before the district court, the issue of whether interest is allowable against the United States has always been considered a jurisdictional matter. United States v. Sherwood, 312 U.S. 584, 591, 61 S. Ct. 767, 771, 85 L. Ed. 1058 (1941); see Holly v. Chasen, 639 F.2d 795 (D.C. Cir.), cert. denied, 454 U.S. 822, 102 S. Ct. 107, 70 L. Ed. 2d 94 (1981). As such, it is subject to consideration by this court notwithstanding appellants' failure to raise it before the district court. Sherwood, 312 U.S. at 586, 61 S. Ct. at 769; see also Lehman v. Nakshian, 453 U.S. 156, 160, 101 S. Ct. 2698, 2701, 69 L. Ed. 2d 548 (1981).⁵  There is no legal barrier to our now deciding that issue which is not only a basic jurisdictional one but is also purely legal.⁶ 

It is axiomatic that " [t]he sovereign's consent to be sued cannot be implied but must be unequivocally expressed." Kania v. United States, 650 F.2d 264, 269, 227 Ct. Cl. 458, cert. denied, 454 U.S. 895, 102 S. Ct. 393, 70 L. Ed. 2d 210 (1981); see also United States v. Testan, 424 U.S. 392, 96 S. Ct. 948, 47 L. Ed. 2d 114 (1976); United States v. Thayer-West Point Hotel, 329 U.S. 585, 586, 67 S. Ct. 398, 399, 91 L. Ed. 521 (1947). Therefore, " [a]n allowance of interest on a claim against the United States, absent constitutional requirements, requires an explicit waiver of sovereign immunity by Congress. Such express consent to the payment of interest must be found in either a special statute or an express contractual provision. The intent by Congress to permit the recovery of interest cannot be implied," and must be strictly construed. Fidelity Construction Co. v. United States, 700 F.2d 1379, 1383 (Fed. Cir.), cert. denied, 464 U.S. 826, 104 S. Ct. 97, 78 L. Ed. 2d 103 (1983) (emphasis in original); see also Brookfield Construction Co. v. United States, 661 F.2d 159, 165, 228 Ct. Cl. 551 (1981).⁷ 

Appellees admitted at oral argument and we agree that there is no express provision in the FLSA providing for an award of post-judgment interest in this case. There is also no contract between the employees and the government calling for the payment of such interest. Appellees assert, however, that this court should read a waiver of sovereign immunity into the FLSA. They urge that Congress intended to subject the United States to all incidents of litigation, i.e., to place the United States in the same position as a private employer,⁸  and because Congress did not expressly preclude awards of post-judgment interest in FLSA actions against the United States, it must have intended that post-judgment interest could be awarded in such cases. This argument, however, is "hopelessly dependent on implications and negative inferences" and therefore must fail.⁹  Nibali v. United States, 634 F.2d 494, 497, 225 Ct. Cl. 8 (1980).¹⁰ 

It is also said that the FLSA is remedial in nature and should be construed in a manner consistent with its overriding objectives. However, this argument is not sufficient to overcome the principle that "limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied." Brookfield Construction Co., 661 F.2d at 165 (quoting Soriano v. United States, 352 U.S. 270, 276, 77 S. Ct. 269, 273, 1 L. Ed. 2d 306 (1957)). On that postulate, the general remedial character of the FLSA is not enough to require post-judgment interest against the United States where Congress has not provided it.

We now consider whether any other federal statute would permit the payment of post-judgment interest in this case. Appellees say that 28 U.S.C. § 1961(a) (1982) bolsters their argument.¹¹  Section 1961(a) provides for the payment of post-judgment interest in civil cases brought in a United States District Court. It is not applicable in this instance, however, because the district court sat as a "little Claims Court" pursuant to 28 U.S.C. § 1346(a) (2) (1982), and thus has the same limitations upon its jurisdiction in this case as does the Claims Court. Sherwood, 312 U.S. at 591, 61 S. Ct. at 772; Richardson v. Morris, 409 U.S. 464, 465-66, 93 S. Ct. 629, 630-31, 34 L. Ed. 2d 647 (1973).¹² 

For these reasons, we reverse the order and final judgment of the district court insofar as it granted post-judgment interest. The appellants' motion for remand is denied.

Reversed.