Cross v. United States Postal Service

733 F.2d 1327, 34 Fair Empl. Prac. Cas. (BNA) 1447, 1984 U.S. App. LEXIS 22519, 34 Empl. Prac. Dec. (CCH) 34,379

• Court: Court of Appeals for the Eighth Circuit
• Decided: May 14, 1984
• Docket: Nos. 83-1305, 83-1761
• Status: Published

Opinions

BOWMAN, Circuit Judge.

Rebecca Mae Cross has prevailed in her action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16, as amended in 1972, against the United States Postal Service and its Board of Governors (USPS) for refusal to hire her because of her race. See Cross v. United States Postal Service, 639 F.2d 409 (8th Cir.1981), rev’g, 483 F.Supp. 1050 (E.D.Mo.1979). On remand, the District Court proceedings included determinations of back pay, attorneys’ fees, and expenses.¹ The issue on this appeal is whether Cross was entitled to prejudgment interest on her monetary award. We affirm the District Court’s denial of prejudgment interest.

Although prejudgment interest on monetary awards under Title VII is available in actions against private employers, see, e.g., Washington v. Kroger Co., 671 F.2d 1072, 1078 (8th Cir.1982), interest awards in actions against a governmental unit raise sovereign immunity issues. See, e.g., Brown v. GSA, 425 U.S. 820, 833-34, 96 S.Ct. 1961, 1968, 48 L.Ed.2d 402 (1976). The general rule is that the federal government, as sovereign, is immune from suit save as it consents to be sued; the terms of consent define the extent of the plaintiff’s rights and the court’s jurisdiction to entertain the suit. See Lehman v. Nakshian, 453 U.S. 156, 160, 101 S.Ct. 2698, 2701, 69 L.Ed.2d 548 (1981) (no right to trial by jury in age discrimination suit by federal employees); United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941) (federal court has no jurisdiction under Tucker Act over suits against the United States by a creditor of a party to a contract with the United States which the United States has breached); Borson Bldg. Corp. v. Heller, 572 F.2d 174 (8th Cir.1978) (remedy under Federal Tort Claims Act is exclusive despite statutory authority of any federal agency to “sue and be sued”). The question then is whether Congress has waived common law sovereign immunity with regard to prejudgment interest on money judgments against the USPS in Title VII cases.

If a waiver of immunity with respect to interest is to be found at all, it must be found in the statute that gives rise to the cause of action'. See Murray v. United States, 686 F.2d 1320, 1325 (8th Cir.1982), cert. denied, 459 U.S. 1147, 103 S.Ct. 788, 74 L.Ed.2d 994 (1983); Garcia v. United States, 666 F.2d 960, 966 (5th Cir.), cert. denied, 459 U.S. 832, 103 S.Ct. 73, 74 L.Ed.2d 72 (1982). In 1972, Congress amended Title VII, making it applicable for the first time to the federal government. See 42 U.S.C. § 2000e-16. These amendments created “an exclusive, preemptive administrative and judicial scheme for the redress of federal employment discrimination.” Brown, 425 U.S. at 829, 96 S.Ct. at 1966. The mere fact that these amendments of Title VII are remedial does not mean that we should liberally construe them to allow prejudgment interest against an arm of the federal government. Every statute that waives sovereign immunity is remedial. See Monark Boat Co. v. NLRB, 708 F.2d 1322, 1327 (8th Cir.1983) (construing Equal Access to Justice Act). Both the amended Title VII and its legislative history are silent with regard to interest awards against the government. Congress has not expressed an affirmative intention to allow interest.² Cf. 42 U.S.C. § 2000e-5(k) (specifically excluding the United States as a prevailing party from an attorney’s fee award and specifically making it liable for costs). We agree with several other circuits that there is no provision in Title VII, as amended in 1972, that overcomes the sovereign immunity barrier regarding prejudgment interest and therefore that prejudgment interest is not available in Title VII actions against the government. See Saunders v. Claytor, 629 F.2d 596 (9th Cir.1980), cert. denied, 450 U.S. 980, 101 S.Ct. 1515, 67 L.Ed.2d 815 (1981) (Title VII action against the Navy); Blake v. Califano, 626 F.2d 891, 894-95 (D.C.Cir.1980) (Title VII action against HEW); deWeever v. United States, 618 F.2d 685 (10th Cir.1980); Fischer v. Adams, 572 F.2d 406, 411 (1st Cir.1978) (Title VII action against Dept. of Transportation); Richerson v. Jones, 551 F.2d 918, 925 (3rd Cir.1977) (Title VII action against the Navy). We have been unable to find a contrary decision from any of the circuit courts of appeals.

Cross attempts to avoid the impact of this clear line of authority by means of an argument based upon the Postal Reorganization Act of 1970, 39 U.S.C. §§ 101-5605 (the Reorganization Act), which contains a broad waiver of sovereign immunity. Under the Reorganization Act, Congress provided the USPS with the power “to sue and be sued in its official name.” 39 U.S.C. § 401(1). Section 401(1), Cross argues, removed the barrier of common law sovereign immunity that prevents an award of interest against the federal government; prejudgment interest was therefore among the remedies available when Congress made Title VII applicable to the USPS in 1972. This argument is ingenious, but we do not find it persuasive.³

To adopt Cross’s argument, we would have to believe that Congress intended to place postal employees in a better position than all other federal employees with respect to prejudgment interest in Title VII cases. Congress, however, consistently has treated postal employees the same as other federal employees for purposes of laws enforcing equal employment opportunity. There is nothing to suggest that the remedies available to postal employees in Title VII cases should differ from those available to other federal employees in such cases. The Reorganization Act and its legislative history establish conclusively that under that Act, postal employees were to be treated as other federal employees for equal employment opportunity purposes. Although Congress expressly stated that the general nondiscrimination policy found in 5 U.S.C. §§ 7201-11 (Chapter 72) and the provisions of Title VI of the 1964 Civil Rights Act should apply, it did not mention Title VII in the Reorganization Act and it did not amend the Reorganization Act after 1972 to include reference to Title VII. See 39 U.S.C. § 410(b)(1), § 410(b)(6).

At the time the Reorganization Act was pending in Congress, the discussion on the House floor suggested that the Senate version of the Reorganization bill would have applied the provisions of Title VII, then applicable only to the private sector, to postal employees. 116 Cong.Rec. 27,597-98 (1970) (statements of Representatives Hawkins and Daniels). The conference committee, however, rejected this suggestion and the bill as enacted into law provided that discrimination complaints against the USPS would continue to be heard by the Civil Service Commission, as in the case of other federal sector employers at that time. See 39 U.S.C. § 410.

There is thus no basis upon which to infer that Congress intended the 1970 Reorganization Act’s “sue and be sued” clause to affect the remedies available to postal employees under the 1972 amendments to Title VII. Accordingly, we need not decide whether the clause would waive immunity for the purpose of allowing prejudgment interest were the clause applicable to the matter of remedies in the instant case.

For the reasons set forth above, we hold that Congress has not waived sovereign immunity with regard to prejudgment interest in actions against the USPS under Title VII. The judgment of the District Court is affirmed.

1 . USPS argues that this Court lacks jurisdiction to hear the appeal because there was no entry of final judgment by the District Court when Cross filed her notice of appeal. Premature filing of the notice of appeal bars appellate jurisdiction. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982). However, after the District Court entered a final judgment on June 8, 1983, a supplemental notice of appeal was filed timely. Accordingly, there is no merit in USPS's jurisdictional argument.

2 . The Supreme Court has suggested that interest cannot be recovered against the government absent an express provision for interest in a relevant statute or contract. See, e.g., United States v. Thayer-West Point Hotel Co., 329 U.S. 585, 588, 67 S.Ct. 398, 399, 91 L.Ed. 521 (1947). But some cases suggest that the statute must simply evince the intention to allow interest. See, e.g., Smyth v. United States, 302 U.S. 329, 353, 58 S.Ct. 248, 252, 82 L.Ed. 294 (1937); Standard Oil Co. v. United States, 267 U.S. 76, 79, 45 S.Ct. 211, 212, 69 L.Ed. 519 (1925) (where United States issues insurance policies in familiar form and consents to suit, it is subject to incidents of suits in insurance business); cf. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975) (no recovery of attorneys’ fees against United States because no waiver of immunity); NAACP v. Civiletti, 609 F.2d 514, 518 (D.C.Cir.1979), cert, denied, 447 U.S. 922, 100 S.Ct. 3012, 65 L.Ed.2d 1114 (1980) (no recovery of attorneys’ fees against United States because no waiver of immunity). We do not have to choose between the two alternative approaches because we do not believe Congress either expressly or impliedly has authorized interest in a Title VII action against a governmental entity.

3 . Cross relies on the only decision allowing prejudgment interest against the USPS—Milner v. Bolger, 546 F.Supp. 375 (E.D.Cal.1982). The Milner court analyzed the scope of the "sue and be sued" clause in the USPS enabling act under the rubric of FHA v. Burr, 309 U.S. 242, 60 S.Ct. 488, 84 L.Ed. 724 (1940). In Burr, the Supreme Court held that a “sue and be sued clause" in the National Housing Act made the Federal Housing Administration subject to garnishment for moneys due to an employee. In so holding the Court remarked that "clearly the words 'sue and be sued' in their normal connotation embrace all civil process incident to the commencement or continuance of legal proceedings." Id. at 245, 60 S.Ct. at 490. Unlike the district court in Milner, we believe the controlling statute is Title VII. Burr and the line of cases following it are thus inapposite to the issue in this case. We disagree with the Milner court's method of analysis, and we decline to adopt either its reasoning or its conclusion.