# Affiliated Capital Corp. v. City of Houston, Gulf Coast Cable Television and James J. McConn

> Court of Appeals for the Fifth Circuit · July 9, 1986 · 793 F.2d 706

URL: https://www.frixlaw.com/law-library/cases/9475002

## Case

- **Full name:** AFFILIATED CAPITAL CORP., Plaintiff-Appellant, v. CITY OF HOUSTON, Et Al., Defendants, Gulf Coast Cable Television and James J. McConn, Defendants-Appellees
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** July 9, 1986
- **Citations:** 793 F.2d 706; 5 Fed. R. Serv. 3d 369; 55 U.S.L.W. 2078; 1986 U.S. App. LEXIS 27081
- **Precedential status:** Published
- **Opinion:** Concurrence by Higginbotham
- **Judges:** Garza, Higginbotham, Brown, Williams, Rubin, Johnson, Clark, Gee, Reavley, Politz, Jolly, Davis
- **Cited by:** 26 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

PATRICK E. HIGGINBOTHAM, Circuit Judge,
specially concurring:
I concur in the judgment because I am persuaded that the plaintiff is not entitled to interest before entry of a judgment in its favor. But I am not persuaded that the language of 28 U.S.C. § 1961 , which is *713 plain enough, allows us to do “equity.” Interest is simply compensation for the loss of use of money. The Congress has said that interest “shall be calculated from the date of the entry of the judgment.” Before that date, therefore, the plaintiff was not entitled to the money and is not entitled to be compensated for the loss of its use.
It is no answer to say that an “equitable” construction of the statute allows an award of interest running from the date when a judgment ought to have been entered. When we interpret indefinite language and are persuaded that the Congress intended to achieve a certain array of results, we may well have the authority to give full content to the congressional purpose and, in the process, call it “equitable.” This court’s reading of the statute and Fed.R.Civ.P. 37, however, simply claims the power to tack on interest whenever a majority of appellate judges think it fair to do so. We do not have the inherent authority to bestow gratuities on deserving plaintiffs, and I find nothing in the statute granting such a license. I would therefore follow the Second Circuit’s rule and deny interest.
I joined in upholding plaintiff’s verdict because I was persuaded that decisions of the Supreme Court required me to do so. If, however, we are to measure this claim for interest according to each judge’s equitable lights, I agree that an award is not appropriate. I am persuaded that the antitrust regulation of economic markets will not, in the end, become a standard tool for regulating state government. The answers for raw political deals are political, and the Sherman Act cannot be used to furnish those answers for long. In my view, this defendant was defeated on the merits because it passed through a time window of changing law rather than because it engaged in conduct that was malevolent by antitrust standards. There would be no equity in forcing it to pay a bonus to the plaintiff on top of the lawful award.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9475002. Public record. Not legal advice.