Tommy Shaw v. Library of Congress

GINSBURG, Circuit Judge,

dissenting:

In my view, precedent constrains judicial inventiveness in this case more tightly than my colleagues acknowledge. Furthermore, I believe today’s decision will confound, not assist, district court judges as they labor to fathom and follow this court’s proliferating instructions regarding allowance of attorneys’ fees against the United States. I therefore dissent from the majority’s position on the government’s liability for interest.

On September 9, 1982, when we heard oral argument on appeal, we faced, and our charge was to reconcile, two not fully consistent lines of decision. One line, long-established, forbids the award of pre- or post-judgment interest payable by the United States, absent deliberate waiver by Congress of the sovereign’s immunity. 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); Blake v. Califano, 626 F.2d 891 (D.C.Cir.1980), and decisions cited therein. The other, newer line contemplates an adjustment for delay in receipt of payment when counsel fees are awarded, pursuant to statute, as part of costs. See Copeland v. Marshall, 641 F.2d 880, 893 , 906 n. 61 (D.C.Cir.1980) (en banc); National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1328-29 (D.C.Cir.1982). The difference between interest and a delay factor can be more than semantic. Interest, as that term is commonly used, is calculated retrospectively, at the completion of the period during which it accrues. A delay factor, as Copeland suggests, may figure as a contingency adjustment, applied prospectively to the lodestar. Just as an attorney setting an hourly rate in a contingent fee case may factor in the risk that the cause may not prevail, so too an attorney embarking on services for which he or she anticipates payment ultimately, but not promptly, may factor in the expected delay.

When a statute provides for payment of an attorney’s fee by a private sector defendant, there is no need to grapple with delay in payment as a factor distinct from interest, for private defendants are not immune from the payment of pre- or post-judgment interest. 1 When the sovereign is *1486 the payor, however, precedent we are not at liberty to upset demands disallowance of interest add-ons unless Congress otherwise orders.

Recently,- in Murray v. Weinberger, 741 F.2d 1423, at 1432-1434 (D.C.Cir.1984), a panel of this court attempted to chart a course between the interest-is impermissible/delay-factor-is-permissible lines of decision. Murray , argued on April 13, 1984, intercepted the instant case; it appeared to provide definitive instructions on the two inquiries the district court should make in ruling upon a request for a fee award adjustment to account for delay in payment. Under Murray , the court must determine first whether the rate incorporated in the lodestar already takes into account an anticipated time lag between rendition of services and receipt of payment. Second, if “the reasonable hourly rate incorporated into the lodestar did not reflect an increment for the expected delay in payment,” the court should next inquire “whether recalculation of the lodestar utilizing current, market rates instead of historic rates, is appropriate.” Id. at 1433 . I do not find in the statute before us, 42 U.S.C. § 2000e-5(k) (1982), the conscious waiver of sovereign immunity entrenched decisional law contemplates. See, e.g., Ruckelshaus v. Sierra Club, 462 U.S. 680 , 103 S.Ct. 3274, 3277 , 77 L.Ed.2d 938 (1983), cited in Nichols v. Pierce, 740 F.2d 1249 , 1256 nn. 38, 42 (D.C.Cir.1984) (courts must take care not to enlarge waiver of sovreign immunity beyond what language of statute requires); In re: Hamilton Jordan, 745 F.2d 1574, at 1576 (D.C.Cir. Indep.Couns. Div. Oct. 16, 1984); Phillips v. United States, 346 F.2d 999, 1000 (2d Cir.1965) (“spirit proper to judicial consideration” of alleged sovereign immunity waiver “is not one of generosity and broad interpretation”). I would therefore adhere to the letter of the Murray instructions and reject the large, “interest is permissible,” postscript the majority, espouses.

Although Congress has not provided for an interest add-on, and precedent does not place me at liberty to read into the statute an instruction or waiver Congress might have included had it thought about the matter, I am also bound by the more recent decisional line — opinions permitting delay factor supplementation of an attorney’s fee, even when the fee is payable by the sovereign. Our recent Murray opinion relieves me of the- reconciliation task confronting the panel when this appeal was new. The adjustment Murray permits serves the “important objective” of “[ejase of administration,” Murray , at 1433, and promises to simplify, not complicate, the chore we commit to the district court. 2 I would not go beyond Murray without a direction to do so from Congress.

I. The No-Interest Rule

Nothing in the majority’s labyrinthian opinion genuinely demonstrates that Congress so much as adverted to the no-interest rule when it enacted .the statute in question. For all its intricacy, the majority opinion builds on a hunch: if Congress had adverted to the matter, it would have (or should have) waived immunity. I sympathize with the policy judgment the majority advances. But I cannot agree that the legislature “plainly” resolved an immunity waiver issue never even framed in the course of its deliberations.

The delay calculation made by the district court, as the majority holds, was an interest computation. The district court applied a 10% per annum rate to the base award, determined that three years would separate the time when the fee should have been paid and its actual payment, and increased the award accordingly. This calculation resembles in all relevant respects the one our court disapproved in Holly v. Chasen 3 In that case the interest rate em *1487 ployed was 6%, and the term over which interest was to accrue was indefinite, running from the judgment date to the date of payment. But the differences in the interest rates (10% versus 6%) and in the terms to which they were applied (three years versus an open-ended period) are not sufficient grounds for typing the award here as something other than interest. In both cases, augmentation of the award involved a retrospective calculation that placed upon the government the cost of an actual delay. A calculation of this order, by any name, is inescapably in the nature of “interest.”

Contemporary conditions and equitable considerations cast doubt on the soundness of the no-interest rule governing judgments against the United States. The majority’s painstakingly embroidered opinion is comprehensible only as a labor sparked by that doubt. This circuit recently has stated, however, that the entrenched character of the no-interest rule militates against alteration by the judiciary. Our court has maintained that change, in view of the long-prevailing, rigorously-applied rule, lies within the province of Congress. See Holly v. Chasen, 639 F.2d at 798 .

In Blake v. Califano, we ruled that a Title VII back pay award against the government may not be augmented by prejudgment interest. .Similarly, the Holly court held that interest may not be added to an attorney’s fee payable by the United States pursuant to the Freedom of Information Act, 5 U.S.C. § 552 (a)(4)(E) (1982). Both decisions underscore that waiver of the no-interest rule “cannot be by implication or by use of ambiguous language,” Holly v. Chasen, 639 F.2d at 797 ; Congress, we have emphasized, must signal the authorization advertently and with clarity. See Blake v. Califano, 626 F.2d at 894 -95 & n. 7. 4 Invited to reconsider Blake and allow a Title VII plaintiff to recover pre-judgment interest on a back pay award against the federal government, we adhered to our prior holding and stated: “When Congress amended Title VII in 1972 to bring the federal government under its provisions, Congress evinced no intention to waive sovereign immunity as to interest awards.” Segar v. Smith, 738 F.2d 1249, at 1296 (D.C.Cir.1984).

Taken together, Blake, Segar, and today’s decision announce that Congress distinguished sharply and consciously between attorneys for Title VII litigants against government defendants, and the litigants themselves, the actual victims of discrimination. An interest calculation can augment the attorney’s fees, but not the client’s recovery. The majority attributes this unusual design to Congress because it was the legislature’s “overarching ... purpose” to accord aggrieved federal employees the full Title VII rights available to individuals in the private sector. Majority opinion at 1484. The right .available to individuals in the private sector to claim interest on back pay awards, however, cannot be secured to federal employees in cases brought in this circuit without overruling Blake , and now the relevant Segar holding as well. The majority thus settles for second best. It leaves the litigant without interest, takes care of the lawyer only, and pretends interest for the lawyer is in full harmony with Blake and Segar .

Client and lawyer are on the same footing vis-a-vis interest on Title VII awards in private sector employment, the majority concedes. A Congress that thought about the problem at all, I believe, would have placed client and lawyer on the same footing as to interest awards in the federal sector as well. Though the majority strives mightily, it cannot convincingly explain why Congress would deliberately opt to treat awards to clients and lawyers differently by allowing lawyers, but not clients, to collect interest.

*1488 The statute before us authorizes “a reasonable attorney’s fee” as part of costs, and provides that the United States “shall be liable for costs the same as a private person.” 42 U.S.C. § 2000e-5(k) (1982). The majority holds that the United States has thereby waived not only its immunity as to costs (in this instance, including attorneys’ fees) for which Congress made express provision, but also, sub silentio, its immunity as to interest on those costs. 5 “Costs,” as treated in the majority’s opinion, are thus accorded a uniquely expansive interpretation. It is established, for example, that a waiver of immunity with respect to a monetary award for discrimination in employment is not a waiver with respect to interest on that award. Blake v. Califano. Similarly, a waiver of immunity with respect to liability on a contract is not a waiver with respect to interest on that liability. Eastern Service Management Co. v. United States, 363 F.2d 729, 733 (4th Cir.1966); Economy Plumbing & Heating Co. v. United States, 470 F.2d 585 (Ct.Cl.1972). And in the adjustment of mutual claims, the government is entitled to interest on amounts owed to it, but is not obligated to pay interest on amounts it owes. United States v. North American Transportation & Trading Co., 253 U.S. 330, 336 , 40 S.Ct. 518, 521 , 64 L.Ed. 935 (1920).

Enlarging an immunity waiver with respect to “costs” to include interest on costs draws on nothing inherent in the concept of “costs.” “Costs” is a term of specific and narrow content; in federal adjudication, the word “costs” has never been understood to include any interest component. See 28 U.S.C. § 1920 (1982); see also 10 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure §§ 2666, 2670 (2d ed. 1983) (hereafter, Wright & Miller).

Pre-judgment interest (interest “on the claim”) generally ranks as an element of damages, not as a component of “costs.” Id. § 2664, at 159-60. Its availability depends on the substantive law (state or federal( that governs the controversy. See General Motors Corp. v. Devex Corp., 461 U.S. 648 , 103 S.Ct. 2058 , 76 L.Ed.2d 211 (1983). Post-judgment interest (interest “on the judgment”) is a separate entitlement governed by statute or common law, not a “cost.” 10 Wright & Miller, supra, § 2664, at 159. I therefore fail to spy in a statute allowing “costs” and specifically qualifying an attorney’s fee as part of “costs,” a clear, affirmative intention by Congress to displace the traditional principle that the sovereign is immune from the payment of interest on those costs. Cf. Parker v. Lewis, 670 F.2d 249, 250 (D.C.Cir.1982) (Title VII attorneys’ fee awards against Secretary of Transportation should be determined with expedition because Secretary, “as an officer of the government, cannot be charged with interest”) (citing Holly v. Chasen).

The majority maintains most insistently that in rendering the United States liable for costs (including attorneys’ fees) “the same as a private person,” Congress unquestionably intended to waive the sovereign’s immunity with respect to interest on costs. But see Arvin v. United States, 742 F.2d 1301 (11th Cir.1984) (Equal Access to Justice Act provision ( 28 U.S.C. § 2412 (b) (1982)) that United States shall be liable for the reasonable fees and expenses of attorneys “to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such an award” does not waive sovereign immunity with regard to interest on attorney fee *1489 awards). 6 Sparse case law is cited by the majority indicating that pre-judgment interest has been considered, on occasion, in determining the liability of private persons for attorneys’ fees. See majority opinion note 46. The terse statutory phrase (“the same as a private person”) on which the majority dominantly relies, coupled with sporadic and laconic judicial precedent in private sector cases, 7 simply do not add up to the deliberate waiver of sovereign immunity that prior decisions emphatically require. 8 Cf. Blake v. Califano, 626 F.2d at *1490 893-95 (in view of “specific entrenched immunity of the Government from prejudgment interest,” court is not free to allow such interest in Title VII back pay awards to federal employees; Congress must evince specific intention to authorize waiver of “settled governmental immunity”; “mere consistency with [remedial policies of Title VII] is not enough”). 9

The majority pushes beyond legitimate judicial license in stating that the interest issue here is “hardly one of first impression,” and in insinuating that one might even decide the question “on stare décisis” because of “the seemingly clear applicability of [our] precedents.” See majority opinion at 1472-1473. But cf. id. at 1473 (“we have dealt with [the issue] only peripherally,” it is “one we have never squarely addressed”). And see Parker v. Lewis, supra, p. 1473 . In truth, we have never focused on the no-interest rule in this context before, because the government did not rely on or even refer to the rule in prior cases. We have indeed spoken with approval not of.interest, but of adjustment for delay in receipt of payment, as I observed at the outset when I said this panel initially faced the task of reconciling “two not fully consistent lines of decision.” Supra p. 1485. I now state why I believe the court's August 24, 1984, decision in Murray v. Weinberger renders it unnecessary to do more in this case than remand with directions to follow the instructions supplied in Murray .

II. Delay in Payment Instructions in

Murray v. Weinberger

In Copeland, Holly, and a few cases thereafter, this court indicated that a delay factor adjustment to the lodestar may be appropriate, even in litigation involving federal government defendants. The court stated in Copeland: *1491 641 F.2d at 893 ; see also id. at 906 n. 61. 10 Along similar lines, the court in Holly , after rejecting an interest award, said: “We suggest ... that the possibility of a substantial delay in the payment of a fee is a factor which counsel may wish to bring to the court’s attention when submitting his application for compensation.” 639 F.2d at 798 . Quoting the Copeland language set out above, the Murray panel instructed the district court that delay could be taken into account in either of two ways. Murray , at 1432-1434. Significantly, neither way involved the interest calculation eschewed in Holly but approved by my colleagues in this case.

*1490 The delay in receipt of payment for services rendered is an additional factor that may be incorporated into a contingency adjustment. The hourly rates used in the “lodestar” represent the prevailing rate for clients who typically pay their bills promptly. Court-awarded fees normally are received long after the legal services are rendered. That delay can present cash-flow problems for the attorneys. In any event, payment today for services rendered long in the past deprives the eventual recipient of the value of the use of the money in the meantime, which use, particularly in an inflationary era, is valuable. A percentage adjustment to reflect the delay in receipt of payment therefore may be appropriate.

*1491 I reiterate here Murray’s two instructions, starting with the one the Murray panel labeled “[fjirst.” The court in Murray explained that if the expected wait for payment “is reflected in the lodestar figure itself, an additional enhancement for delay would not be appropriate”:

First, the court should determine whether the hourly rates incorporated into the lodestar ... contain [delay] increments ____ The basic hourly rate used in the lodestar figure [in Murray] was the rate prevailing in Title VII litigation, where lengthy delays often attend the payment of attorney’s fees____ According to the fee applicants’ affidavits ..., the attorneys’ hourly rates for billing concurrently ... were substantially lower than the rates they charged pursuant to awards for attorney’s fees under fee-. shifting statutes, where lengthy delays are typically expected____ Thus the lodestar figures may already include adjustments for delay in payment.

Murray , at 1432-1433 (footnote omitted).

Only when the basic hourly rate incorporated into the lodestar did not “include[ ] a component for the delay which would have been expected in the payment of fees,” id. at 1433 , does Murray authorize a further inquiry. With an eye on the “pressing need for simple rules in attorney’s fee cases,” id. at 1433 , the Murray court countenanced use of “current market rates instead of historic rates” in calculating lodestars, id., if that would produce a reasonable fee “without generating a windfall for the plaintiff’s attorneys.” Id. at 1433 . There the matter would end under Murray v. Weinberger, for “where the hourly rate used in computing the lodestar is based on present hourly rates a delay factor has implicitly been recognized and no [further] adjustment for delay should be allowed.” Id. (quoting National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d at 1329 ).

III. Application of Murray to the Present Case

In calculating the fee for Shaw’s attorney Shalon Ralph, the district court, for the most part, followed the formula this court specified in Copeland . The district court first computed a lodestar of time and rate. It found that ninety-nine hours of Ralph’s effort could be attributed to issues on which Shaw succeeded. See Hensley v. Eckerhart, 461 U.S. 424 , 103 S.Ct. 1933, 1940-41 , 76 L.Ed.2d 40 (1983) (where plaintiff achieves only partial success, fee awarded must exclude compensation for services rendered in connection with any unsuccessful claim). It then determined that an $85 hourly rate was appropriate for an attorney of Ralph’s experience working on problems of employment discrimination in 1978 and 1979. 11 The district court did *1492 not consider, however, as Murray now requires, whether the $85 rate prevailed for clients who paid their bills promptly or whether it “included a component for the delay which would have been expected in the payment of fees” in cases of this genre. Murray , at 1432; see id. at 1428 n. 21, 1433 n. 46 (lodestar rates of $80 to $95 per hour for 1978 to 1981 may have included a delay element where attorney billed plaintiff $50 per hour at time services were rendered); cf. majority opinion note 28.

Next, the district court determined that the lodestar should be reduced by 20% because the court judged the representation only 80% efficient. Correctly anticipating in this regard guidance our court just supplied in Murray , the district court declined to make any upward adjustment for the risk Ralph assumed by taking on a case in which part of the fee was contingent on victory. 12 See Murray, at 1430-1432 (upward adjustment for risk of losing on merits is unwarranted to the extent that lodestar itself comprehended allowance for contingent nature of fee payment; or fee arrangement with client substantially reduced attorney’s risk of nonpayment; or risk of not prevailing was unexceptional).

Finally, the court increased the award to account for the three-year delay between the time Ralph should have been paid and the time he might finally expect payment. The court stated first that the case should have ended in 1978, upon or shortly after execution of the administrative settlement agreement, not in late 1981, after a court proceeding that attentive counsel on both sides might have avoided. Next, the court reasoned that if Ralph had been compensated in 1978 he could have invested the money at an average yield of at least 10%. Therefore, the court announced, its judgment would reflect an upward adjustment of 30% for delay. 13 That adjustment was an impermissible award of interest. I would instruct the district court, as Murray does, that, if it finds the basic hourly rate did not include a delay component, it may consider whether the use of current market rates might produce a reasonable fee.

Augmenting the inquiries Murray prescribed, and limiting the prospect Murray’s plan held for a uniform, manageable approach in the district court, the majority’s opinion seemingly allows anything at all reasonable to go in the name of interest. No particular computation is instructed. Each judge has “broad latitude” to choose from a range of- rates, concepts, and approaches, running from the simple to the compound, so long as the court’s sizable discretion is not “abused.” See Majority opinion note 22. Murray’s effort to accommodate, not overturn, decisional lines, to promote “[ejase of administration,” and, most of all, to “simplify the task of the district court,” Murray , at 1433, has been undermined by today’s decision. 14

*1493 For the reasons stated, I would return this case to the district court with a direction to follow to the letter the delay in payment analysis and instructions set out in Murray v. Weinberger.

. Private sector decisions, when they adjust for the time of payment, grant interest or a delay factor, but not both. Decisions in private sector cases accepting some type of multiplicative lodestar adjustment to account for delay include: Brown v. Gillette Co., 536 F.Supp. 113, 123-24 (D.Mass.1982); Black Gold, Ltd. v. Rockwool Indus., 529 F.Supp. 272 (D.Colo.1981); Kennedy v. Lemoi, 529 F.Supp. 140, 144-45 (D.R.I.1981). None of these decisions tacked on pre-judgment interest as well. At least one private sector Title VII decision allowed computation of the lodestar using current rather than historical hourly rates and did not otherwise adjust the lodestar for delay. Chrapliwy v. Uniroyal Inc., 509 F.Supp. 442, 457-58 (N.D.Ind.1981), aff’d in part and rev’d in part on other grounds, 670 F.2d 760, 764 (7th Cir.1982), cert. denied, 461 U.S. 956 , 103 S.Ct. 2428 , 77 L.Ed.2d 1315 (1983); cf. Virginia Academy of Clinical Psychologists v. Blue Shield, 543 F.Supp. 126 (E.D.Va.1982) (antitrust attorneys' fees calculation; court computed lodestar using current hourly rates).

. See infra pp. 1491-1493.

. Nor can I distinguish Holly based on the conduct of the government in the two cases. Holly did not reach the question whether a penalty, computed in the same manner as interest, could be imposed if the government exploited delay deliberately to whittle down an award. Like Holly , the case before us reveals no design to shrink a fee. The district court found the delay *1487 in resolving the back pay controversy unnecessary, but it stated that the time lapse might have been avoided by more effective representation on either side of the case. Shaw v. Library of Congress, No. 79-0325, slip op. at 2 (D.D.C. Nov. 4, 1981).

. But see Note, Interest in Judgments Against the Federal Government: The Need for Full Compensation, 91 Yale L.J. 297 (1981).

. Although this case involves only pre-judgment interest, the logic of the majority opinion, riveted on the 42 U.S.C. § 2000e-5(k) words “the same as a private party," extends to post-judgment interest as well. In Title VII litigation, costs include attorneys’ fees. According to 28 U.S.C. § 1920 (1982), “costs” are included in the judgment. Under 28 U.S.C. § 1961 (1982), a private defendant is liable for post-judgment interest on the amount of the "judgment.” In combination, these two provisions render a private defendant liable for post-judgment interest on costs. But cf. infra note 7. If the United States is to be treated precisely as a private defendant, as the majority here argues, it follows that the United States is now exposed to both pre-judgment and post-judgment interest on Title VII attorneys’ fee awards. Curiously, the majority’s extended discussion leaves the reader at sea on this issue.

. Cf. Boudin v. Thomas, 732 F.2d 1107, 1114-15 (2d Cir.1984) (declining to extract from words ‘‘any civil action" in 28 U.S.C. § 2412 (d)(1)(A) (1982) (Equal Access to Justice Act) congressional direction for United States payment of attorneys’ fees in habeas corpus proceedings, although such proceedings rank as “civil actions” for other purposes — court stated that judicial finding of a waiver of the federal sovereign’s immunity required ‘‘unequivocal and explicit" manifestation of the legislature’s “affirmative intention,” which “mere inclusion in the statute of the words ‘any civil proceeding’ ” did not indicate).

If the statutory waiver here is "express” and “unmistakable," as the majority opinion at 1475 bravely proclaims, it is remarkable that plaintiff-appellee, represented by able, experienced counsel, never argued that position. Instead, as the majority opinion at 1473 initially acknowledged, plaintiff-appellee attempted to distinguish between "an award of interest and the adjustment of a fee to ensure that it is reasonable when there is delay in its payment.” Brief for Plaintiff-Appellee at 10. The notion that the statute waives the sovereign’s immunity as to interest, in short, entered this case, and has been exploited in it, as the majority’s own invention.

. See cases cited supra note 1. In Title VII cases against private defendants the courts have no occasion to dwell on or even advert to the difference between a "delay factor” and "interest." Either can be ordered as part of a monetary award as a form of the equitable relief Title VII authorizes.

In litigation against the United States no distinction is appropriately made between interest on costs and interest on the underlying monetary award. An award of costs against the United States is included in the “judgment,” 28 U.S.C. § 1920 (1982); payment of costs by the United States is addressed in 28 U.S.C. § 2412 (1982), which makes reference to 28 U.S.C. § 2517 (1982). Section 2517 refers only to "judgments” and interest thereon.

There was until recently, however, a circuit division on the question whether interest runs solely on the monetary award or on court costs included in the judgment as well. In Independence Tube Corp. v. Copperweld Corp., 543 F.Supp. 706, 716 (N.D.Ill.1982), the court summarized the division of authority, and its own conclusion, as follows;

The plaintiff has requested interest on.attorneys’ fees and costs awarded to it. In Capra [sic], Inc. v. Ward Foods, Inc., 567 F.2d 1316 (5th Cir.1978), the court held that interest is not payable on attorneys’ fees in antitrust cases because the Clayton Act makes attorneys’ fees part of the court costs and interest is not payable on court costs, and because the treble damage award makes interest on attorneys’ fees less necessary than in cases where treble damages are not awarded. 567 F.2d at. 1322. Cf., Gates v. Collier, 616 F.2d 1268 (5th Cir.1980) (interest payable on attorneys’ fees in civil rights cases). Other courts, however, albeit without discussion, have allowed payment of interest on costs and attorneys’ fees in antitrust cases, Mt. Hood Stages, Inc. v. The Greyhound Corp., 616 F.2d 394 , 406 n. 10 (9th Cir.1980); City of Detroit v. Grinnell Corp., 575 F.2d 1009, 1010 (2d Cir.1977); Perkins v. Standard Oil Co. of California, 487 F.2d 672 (9th Cir.1973). Furthermore, unlike the Fifth Circuit, the Seventh Circuit apparently does allow interest on costs. See Harris v. Chicago Great Western Ry., 197 F.2d 829, 836 (7th Cir.1952). Therefore, even if attorneys’ fees are considered part of the costs rather than part of the judgment, interest on fees is appropriate.

Carpa, Inc. v. Ward Foods, Inc., cited by the Copperweld court for the "no interest on costs” position, has since been overruled. Copper Liquor, Inc. v. Adolph Coors Co., 701 F.2d 542 (5th Cir.1983) (en banc). Either approach, however, supports my position. If costs (including attorneys’ fees) are to be treated for interest purposes in the same way as the underlying monetary award, this circuit’s holding in Blake, supra, reaffirmed in Segar, supra, compels us to deny prejudgment interest on attorneys' fees in Title VII cases. If costs (including attorneys’ fees) are categorized separately and are subject to their own, discrete "no-interest” rule (a rule sparing even private defendants), as the now-overruled Carpa decision maintained, then it is of no help to appellee to argue that the statute provides for reimbursement “the same as against a private person.”

. Nor can I derive from Standard Oil Co. v. United States, 267 U.S. 76 , 45 S.Ct. 211 , 69 L.Ed. 519 (1925), featured in the majority opinion at 31, genuine support for the majority’s view. There, the United States went into the business of insuring vessels against war risks, adopting the form of contract used by private underwriters, and reaping a large profit from the venture. See United States v. Worley, 281 U.S. 339, 342 , 50 *1490 S.Ct. 291, 293 , 74 L.Ed. 887 (1930). The High Court soon clarified that Standard Oil was an exceptional case, turning on the commercial character of the insurance business in which the government was engaged, and is not a precedent appropriately extended outside its precise context. United States v. Worley, 281 U.S. at 341-44 , 50 S.Ct. at 292-94 .

. Congress has several times waived the United States' immunity with respect to interest. See, e.g., 28 U.S.C. § 2411 (1982) (expressly authorizing prc- and post-judgment interest payable by the United States in tax refund cases); see also 31 U.S.C. § 1304 (1982), cited in Holly, 639 F.2d at 797 as 31 U.S.C. § 724a (1976) (same statutory section before recodification). These provisions supply obvious models Congress might have followed had it considered waiving the sovereign’s traditional immunity in the situation presented here.

Elsewhere Congress has reiterated the general rule that interest cannot be allowed against the United States absent express waiver. "Interest on a claim against the United States shall be allowed in a judgment of the United States Claims Court only under a contract or Act of Congress expressly providing for payment thereof.” 28 U.S.C. § 2516 (1982). "The United States shall be liable, respecting provisions of [the Federal Tort Claims Act], in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment .■...” 28 U.S.C. § 2674 (1982). While the Federal Tort Claims Act refers to state law to supply rules of decision, see id. § 1346(b) (law of place where act or omission occurred), it appears that Congress wished to make it unmistakably clear that the traditional federal sovereign immunity rule, not state law, governs pre-judgment interest.

. The Copeland court noted that a delay factor adjustment may be unwarranted when the hourly rate used in the lodestar "is based on present hourly rates," as distinguished from "the lesser rates applicable to the time period in which the services were rendered.” Copeland, 641 F.2d at 893 n. 23 (emphasis in original); see National Ass’n of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1329 (D.C.Cir.1982); cf. Environmental Defense Fund v. EPA, 672 F.2d 42 , 60 (D.C.Cir.1982) (limiting lodestar adjustment coupling "public benefit” and "delay in receipt of [Toxic Substances Control Act attorneys’ fees]” in part because lodestar was calculated on the basis of current hourly rates). Murray developed Copeland’s exposition of. this point.

. It is significant that the court determined $85 per hour would have been an appropriate rate in 1978 and 1979 when the work was performed, rather than in late 1981 when the fee was awarded. See supra note 10.

. A retainer assured Ralph $30 per hour "win, lose, or draw.” Shaw v. Library of Congress, No. 79-0325, slip op. 9 (D.D.C. Nov. 4, 1981).

. The,court declared that the 20% reduction of the lodestar to reflect deficiencies in the quality of representation and the 30% increase for delay yielded a net adjustment upward of 10%. A 20% adjustment down followed by a 30% adjustment up, however, yields a net upward change of only 4% (0.8 X 1.3 == 1.04). The district court might have more closely approached, although not reached, a net upward adjustment of 10% had it contemplated compound interest at 10% per annum (e.g., annual compounding at 10% against a base of 0.8 would equal 1.0648). My point, misperceived in the majority opinion's note 22, is a small one, and surely does not involve any attribution to the district court of a design to "penalize [ ] counsel." I do not suggest that legal doctrine forbids an additive method of computing percentage change or mandates compound interest when additive computation is not employed. I discern in the district court's additive approach to percentage change — an approach wholly unexplained in the district court’s opinion — nothing at all complex or subtle. I detect only an unintended "mathematical mistake,” an oversight no more remarkable than the $20 multiplication error the majority discovered in the district court’s very same calculation.

. In preferring the complex to the simple in styling a solution to a case so modestly presented by the parties, and in precipitating an apparent circuit split, see Arvin v. United States, supra p. 1488, the court has once again shown that ours is “a profession that prides itself on not throwing chaos lightly to the winds.” Traynor, *1493 Comment on Courts and Lawmaking, in Li-gai. Institutions Today and Tomorrow 48, 56 (M. Paul-sen ed. 1959).