George Shultz, Secretary of State v. James D. Crowley

MacKINNON, Senior Circuit Judge

(dissenting):

In a class action against the State Department, Crowley, et al., prevailed on their claim that the Department had improperly abolished certain positions. They now seek attorney fees under the Equal Access to Justice Act (the “Act”), 28 U.S.C. § 2412 (1982 & 1985 Supp.). 1 The effective date of the Act is October 1, 1981, and our decision in Nichols v. Pierce, 740 F.2d 1249 (D.C.Cir.1984), prohibits attorney fee awards under the Act if the only matters “pending” on October 1, 1981 relate solely to attorney fees. Thus this case turns on whether the case was “pending” with respect to any matters other than attorney fees on October 1, 1981. On the effective date of the Act, i.e., October 1, 1981, the parties could have appealed both the district court’s award of attorney fees under a fee-shifting statute other than the Act and the district court’s award of back pay. Thus since the time to appeal the merits had not expired the case was still pending. In addition, it is my opinion the district court correctly determined that Crowley timely filed the application for attorney fees under the Act, and permissibly award *506 ed Crowley a twenty-five percent upward adjustment of the lodestar. I therefore respectfully dissent from the reversal of the district court’s award of attorney fees.

I.

Plaintiffs-Appellees Crowley, et al. (herein “Crowley”), in a 1974 class action complaint seeking damages, injunctive relief, and reasonable attorney fees, complained that the State Department improperly placed civil servants in overcomplement status, and thereby abolished certain positions but retained the employees at other positions with the same compensation. In a 1977 Memorandum and Order the district court granted appellees partial summary judgment. After the district court’s 1977 order, the decision on the merits was not final; it was still necessary to identify the individuals who had been placed in over-complement status, determine the appropriate relief and adjudicate the claim for attorney fees. The parties subsequently entered into a consent decree authorizing a Special Master to determine the damage claims of eight individual members of the class. On May 22, 1980 the district court affirmed in toto the findings of the Special Master that class members were entitled to back pay and were eligible for attorney fees. Crowley v. Muskie, 496 F.Supp. 360 (D.D.C.1980).

Following the determination by the Special Master, Crowley filed a motion for attorney fees under the 1978 Civil Service Reform Act amendments to the Back Pay Act, 5 U.S.C. § 5596 (b)(l)(A)(ii) (1982). The district court’s decision filed May 22, 1980 adopted the Special Master’s recommendation that appellees were eligible for attorney fees under the Back Pay Act. 496 F.Supp. at 362-63 . The government timely filed notice of appeal from the district court’s decision, but voluntarily withdrew the appeal on September 12, 1980. A year later, by order of September 17, 1981 the district court awarded attorney fees under the Back Pay Act, and on September 28, 1981 Crowley moved for partial relief from that judgment. The district court granted Crowley’s motion on December 9, 1981.

The government appealed the awards of attorney fees and could have appealed the back pay award but did not. This court reversed the district court, holding that Crowley was not entitled to attorney fees under the Back Pay Act. Crowley v. Shultz (“Crowley /”), 704 F.2d 1269 (D.C. Cir.1983). By timely motion, Crowley applied for attorney fees under the Equal Access to Justice Act. The district court held that Crowley was entitled to attorney fees for time spent litigating the case, except for time spent litigating the issue of attorney fees under the Back Pay Act. Memorandum and Order of May 16, 1984. The district court subsequently awarded Crowley $114,044.81 in attorney fees and costs. The award contained a twenty-five percent upward adjustment in the lodestar. Memorandum and Order of July 23, 1984. The government appealed to this court, contending that Crowley was not eligible for fees under the Act, that the application for attorney fees had not been timely filed, and that the upward adjustment was contrary to the Act.

II.

The Act covers “civil actionfs] or adversary adjudication[s] [involving the United States government] ... pending on, or commenced on or after [October 1, 1981].” Equal Access to Justice Act § 208, Pub.L. No. 96-481, 94 Stat. 2330 (1980) (emphasis added). It is therefore necessary to determine at the outset whether Crowley’s action was “pending” on October 1, 1981.

After the district court awarded attorney fees under the Act, see Memorandum and Order of May 16, 1984, this court decided Nichols v. Pierce, 740 F.2d 1249 (D.C.Cir. 1984). This decision clarified the meaning of “pending” in the context of the Act. In Nichols the plaintiffs were granted summary judgment on September 12, 1980 against the Department of Housing and Urban Development, in a suit challenging various procedures related to housing subsidies. On October 7, 1980 the Nichols *507 plaintiffs petitioned for attorney fees under the fee-shifting provisions of the Freedom of Information Act (“FOIA”), 5 U.S.C. § 522 (a)(4)(E) (1982). The district court denied Nichol’s petition for attorney fees, reasoning that the FOIA claim played such a minor role in plaintiffs’ case that the case could not be considered to have been brought under the FOIA. On appeal of the district court’s denial of fees, we remanded the case to the district court for reconsideration in light of the intervening passage of the Equal Access to Justice Act. The district court denied plaintiffs’ motion for attorney fees under that Act, and plaintiffs again appealed.

In interpreting the applicable provisions of the Equal Access to Justice Act, the panel in Nichols applied the well-established principle that waivers of sovereign immunity must be strictly construed. “As a waiver of sovereign immunity, the Act’s terms must affirmatively establish liability, not merely fail to preclude it.” Nichols, 740 F.2d at 1256 (citation omitted).

The Nichols court noted that Congress in the Equal Access to Justice Act did not define “pending,” and therefore concluded that Congress used the word “pending” in its ordinary sense. The court stated: “A pending matter is one which is undecided, awaiting decision or settlement; a lawsuit is pending from its inception through the final judgment.” Id. (citations omitted); cf Massachusetts Union of Public Housing Tenants, Inc. v. Pierce, 755 F.2d 177, 177 (D.C.Cir.1985) (per curiam) (“a judgment becomes final because an appeal is completed or foregone”). Thus, a cause is pending until the time for appeal from the final judgment in the cause expires. Writing for the court in Nichols , Judge Wilkey stated:

The complaint raised many substantive legal issues related to the merits of the case, but these issues were all finally resolved by the district court’s memorandum and order of 12 September 1980. That decision essentially ended the lawsuit, since there was no longer any question about whether the appellant was entitled to all of the relief requested in the complaint. Because no appeal from that decision was prosecuted, no issue even marginally related to the merits of the suit has subsequently been subject to litigation or otherwise contested. Since there was no longer any undecided or unsettled issue in the original lawsuit, that lawsuit has not been pending from the time the district court’s final order was entered.

740 F.2d at 1256 (emphasis added). Thus, according to our decision in Nichols , when the only matter “pending” on October 1, 1981 was a dispute over attorney fees, the merits and all requested relief having been fully resolved and not subject to further appeal, then the provisions of the Act are not applicable. 740 F.2d at 1257-58 . See also Commissioners of Highways v. United States, 684 F.2d 443, 444-45 (7th Cir. 1982).

III.

The threshold issue in this case is whether on October 1, 1981 any disputes were “pending,” i.e., still appealable, other than those relating to attorney fees. The district court’s May 22, 1980 decision adopted, inter alia, the Special Master’s recommendation that Crowley was entitled to attorney fees (the “entitlement decision”) under the Civil Service Reform Act amendments to the Back Pay Act. The government timely filed notice of appeal following that decision, but on September 12, 1980 voluntarily withdrew its appeal. No reason was given for not continuing with its appeal, but it could have been that the government considered its appeal was premature. On September 17,1981 the district court granted attorney fees in the amount of approximately $160,000. The district court, government, and plaintiffs all referred to this as a “judgment.” See D.C. District Court File Nos. 239, 241, 242, 244, 246, 247, 249, 250, 253. The government on November 16, 1981 appealed to this court “from the judgment of this Court entered on the 17th day of September, 1981 in favor of plaintiffs____” Dist.Ct. File No. 250 (emphasis added). This was the first “judg *508 ment” appealed from. The notice of appeal by the government on July 21, 1980 stated it was from “the order of this Court filed May 22, 1980....” Dist.Ct. File No. 132 (emphasis added). This difference in terminology is not without significance. Cf. 28 U.S.C. §§ 1291 and 1292. The action by the court on September 17, 1981 was obviously the “final decision” in the case 2 and thereupon, under settled procedures, all issues in the cause were open for review on appeal.

However, the government challenged only the entitlement to and the amount of attorney fees awarded by the district court. In opposition Crowley argued that the government had not timely appealed the district court’s entitlement decision, rendered May 22, 1980. According to Crowley’s argument the government could appeal only the September 17, 1981 decision as to the amount of attorney fees, because in dropping its earlier appeal the government had foregone the right to challenge the district court’s May 1980 decision as to entitlement.

This court rejected Crowley’s contention, thus in effect holding that interim decisions were not appealable and that the appeal from the final judgment opened the entire record to review, i.e., both aspects of an attorney fee award — entitlement and amount — could be appealed within the statutory period for filing appeals, dating from the district court’s determination made a year later of the amount of the attorney fee award. Crowley I, 704 F.2d at 1271-72 . Specifically, we held that the May 22, 1980 decision by the district court, holding that Crowley was entitled to attorney fees under the Back Pay Act, was only a partial decision since the amount of attorney fees remained to be determined, and thus was not a final and appealable order in the case that precluded the government from appealing the decision if an appeal was not taken within sixty days. Id. To have held otherwise in Crowley I would have required piecemeal appellate review of attorney fee awards contrary to sound policy and the requirements of our procedural rules. See, e.g., Catlin v. United States, 324 U.S. 229, 233-34 , 65 S.Ct. 631, 633-34 , 89 L.Ed. 911 (1945); Fed.R.Civ.Pro. 54(b); 28 U.S.C. § 1291 (1982).

In this appeal we must decide a related question of appealability: Whether issues involved in the district court’s order of May 22,1980 were appealable when the amount of attorney fees under the Back Pay Act was determined on September 17, 1981. The import of this inquiry in the present case is clear, for if only issues relating to attorney fees were appealable on the October 1, 1981 effective date of the Act, then our decision in Nichols counsels that nothing was “pending” that would allow an appeal of the attorney fee recovery.

The Supreme Court decision in White v. New Hampshire Department of Employment Security, 455 U.S. 445 , 102 S.Ct. 1162 , 71 L.Ed.2d 325 (1982), discussed a related question of the appealability of an attorney fee application under 42 U.S.C. § 1988 3 which arose in a case charging a violation of the Social Security Act. The court specifically noted in the first paragraph of its opinion: “His complaint did not specifically request attorney’s fees.” Id. at 447 , 102 S.Ct. at 1164 . In White the Court addressed the question whether a post-judgment motion for attorney fees, in a case which did not specifically request attorney fees, was a motion to amend the judgment, which was required to be filed within the ten-day time limit of Federal Rule of Civil Procedure 59(e). 4 In White a *509 successful litigant had moved for attorney fees four and one-half months after plaintiff had obtained a judgment redressing violations of the Social Security Act and the Due Process Clause of the Fourteenth Amendment. The First Circuit held, however, that the motion for attorney fees was not timely because it was not made within ten days of entry of judgment as required by Rule 59(e). 629 F.2d 697, 699 (1st Cir. 1980). The Supreme Court reversed, holding that post-judgment attorney fee petitions were not governed by Rule 59(e)’s ten-day time limit on motions to alter or amend a judgment which typically have encompassed those matters within the merits of the judgment, i.e., elements of traditional relief. 455 U.S. at 451 , 102 S.Ct. at 1166 . Instead, the Supreme Court implicitly treated the post-judgment attorney fee petition in White as collateral and independent from the merits of the litigation for purposes of appellate jurisdiction.

This conclusion follows from consideration of the interplay of Rule 59(e) (ten-day period for motion to alter or amend judgment), Rule 54(a) (defining “judgment”), and 28 U.S.C. § 1291 (final decision). “Judgment” is defined in Rule 54(a) as “a decree or any order from which an appeal lies.” Rule 54(a) in turn requires reference to 28 U.S.C. § 1291 , which states that only a “final decision” may be appealed to the courts of appeals. Thus, if the motion for attorney fees is not a “motion to alter or amend the judgment,” then the district court’s disposition of the attorney fee petition will have no effect on the finality of the validly entered “judgment.” By necessary implication the judgment on the merits becomes a final decision — and hence appealable — regardless of the status of the attorney fee petition. See Green, From Here to Attorney’s Fees: Certainty, Efficiency, and Fairness in the Journey to the Appellate Courts, 69 Cornell L.Rev. 207, 226-27 (1984). The decision on the merits may therefore be severable from a post-judgment motion for attorney fees for the purpose of determining appealability issues, where the complaint did not request attorney fees.

The picture is clouded, however, by the long-standing principle that a “final decision” under 28 U.S.C. § 1291 does not exist until all elements contained in a plaintiff’s prayer for relief have been decided by the district court. See Liberty Mutual Insurance Co. v. Wetzel, 424 U.S. 737, 742 , 96 S.Ct. 1202, 1205-06 , 47 L.Ed.2d 435 (1976); Catlin v. United States, 324 U.S. 229, 233 , 65 S.Ct. 631, 632-33 , 89 L.Ed. 911 (1945) (“A ‘final decision’ generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.”); American Federation of Government Employees v. Federal Labor Relations Authority, 111 F.2d 751, 755 (D.C.Cir.1985). In Liberty Mutual plaintiffs had received partial summary judgment establishing defendant’s liability for claims arising under Title VII on a complaint that did request attorney fees in its ad damnum clause. Without addressing the question of relief, the district court entered judgment only as to liability pursuant to Civil Rule 54(b). 5 The Third Circuit affirmed the district court’s decision on the merits. 508 F.2d 239 , 245 (3d Cir.1975). The Supreme Court reversed, holding that the plaintiff had not presented separate *510 “claims” as Rule 54(b) requires, but rather had merely presented variant requests for relief flowing from a single claim. As stated by the Supreme Court in Liberty Mutual:

It is obvious from the District Court’s order that respondents, although having received a favorable ruling on the issue of petitioner’s liability to them, received none of the relief which they expressly prayed for in the portion of their complaint set forth above. They requested an injunction, but did not get one; they requested damages, but were not awarded any; they requested attorneys’ fees, but received none.

... [T]he District Court’s order ... finally disposed of one of respondent’s prayers for relief.

424 U.S. at 742 , 96 S.Ct. at 1205-06 (emphasis added). The Court held that the district court’s decision merely on liability was not an appealable “final decision” under the statute because the court had not ruled on the injunction, damages and attorney fees —i.e., there was no final decision on the cause, it was still “pending,” and the judgment therefore was not yet appealable. Id. at 744 , 96 S.Ct. at 1206-07 ; cf. Boeing Co. v. Van Gemert, 444 U.S. 472 , 480 n. 5, 100 S.Ct. 745 , 750 n. 5, 62 L.Ed.2d 676 (1980) (characterizing Liberty Mutual as a case “where a prayer for attorney’s fees against an opposing party remains unanswered”). In the present case, as in Liberty Mutual, the prayer for relief specifically included “costs incurred herein, including reasonable attorney’s fees.” Complaint at 25. Moreover the “quantum of fees [$160,000] is a major issue” in this case. Crowley I, 704 F.2d at 1272 .

These cases indicate that finality of judgment for purposes of appeal is to be determined on the basis of what was included in the plaintiff’s prayer for relief. The Supreme Court’s decision in White v. New Hampshire Department of Employment Security is not to the contrary. White allowed attorney fees in a civil rights action where the complaint did not include a specific prayer for “attorney fees,” because the statute, 42 U.S.C. § 1988 , allowed attorney fees “as part of the costs.” White, 455 U.S. at 448 , 102 S.Ct. at 1164 .

With these considerations in mind we repeat that Crowley’s complaint filed in 1974 specifically requested reasonable attorney fees. Complaint at 25. On May 22, 1980 Crowley received a favorable judgment from the district court as to all issues except for the amount of attorney fees. The government timely filed notice of appeal, but voluntarily withdrew its appeal on September 12, 1980. On September 17, 1981 the district court determined the amount of attorney fees under the Back Pay Act. At that point in time — given the holding of Liberty Mutual — the district court’s decision from the previous year, Crowley v. Muskie, 496 F.Supp. 360 (D.D. C.1980), became an appealable final decision. Crowley I supports this conclusion, for its recognition of the reviewability of the entitlement decision made over a year before the amount of fees was determined is tantamount to a recognition that the time to appeal had not expired on other decisions made prior to determination of the fee amount.

September 17, 1981 is therefore the date from which both parties could have appealed the attorney fee award and the award of back pay. That the government did not appeal the back pay award does not alter the fact that the time to appeal the merits had not been exhausted. The government could have timely appealed the back pay award following the entry of the attorney fee award as the final judgment on the relief requested in the complaint. Until the expiration of the statutory period for filing the notice of appeal, see Fed.R.App.P. 4(a)(1), the entire cause of action between Crowley and the government was “pending” as to the merits of the case on all issues, including attorney fees. Therefore, on the effective date of the Act, October 1, 1981, the civil action against the government was pending.

The facial similarity between this case and Nichols v. Pierce, supra, is misleading, because the request for attorney fees in *511 Nichols , as in White , was not presented in the prayer for relief. Indeed, given the continued vitality of the finality principle as stated in Liberty Mutual Insurance Co. v. Wetzel, see supra, this court’s holding in Nichols v. Pierce is sensible only when the request for attorney fees is not included in the prayer for relief, because under Liberty Mutual all relief requested in the prayer of the complaint must be disposed of by the district court as a prerequisite of a reviewable final decision.

The government further argues that Crowley’s motion, filed June 13, 1983, for attorney fees under the Act was invalid because it was untimely filed. Applications for attorney fees under the Act must be filed “within thirty days of final judgment in the action.” 28 U.S.C. § 2412 (d)(1)(B) (1982). This court recently held that the thirty-day period “begins to run only when a judgment is ‘no longer contestable through the appellate process.’ ” Massachusetts Union of Public Housing Tenants v. Pierce, 755 F.2d 177, 180 (D.C.Cir. 1985) (quoting McDonald v. Schweiker, 726 F.2d 311, 313 (7th Cir.1983)). Congress explicitly adopted this interpretation of § 2412(d)(1)(B) in its recent reenactment of the Act. See Pub.L. 99-80 § 2 , May 15, 1985 (defining “final judgment” as “a judgment that is final and not appealable”) (codified at 28 U.S.C. § 2412 (d)(2)(G)) (emphasis added). I agree with the district court that the date of the final judgment in this case was June 10, 1983, the date we issued our mandate in Crowley I, 704 F.2d 1269 (D.C.Cir.1983), reversing the district court and ending the appellate proceeding arising from the original complaint. Crowley’s motion for attorney fees filed June 13, 1983, three days after the issuance of the mandate, was therefore timely.

IV.

The Act restricts the court’s discretion with respect to attorney fees as follows:

[Ajttorney fees shall not be awarded in excess of $75 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee.

28 U.S.C. § 2412 (d)(2)(A)(ii) (1982) (emphasis added). The district court awarded Crowley an upward adjustment of twenty-five percent of the lodestar, based on the quality of representation and the delay in payment. Memorandum and Order of July 23, 1984, at 9-10. The government contends that any such adjustment is forbidden as a matter of law by the above-quoted provision of the Act. See Government Brief at 14. The government does not, however, contend that the district court committed an abuse of discretion in finding Crowley deserving of an upward adjustment of twenty-five percent.

The Supreme Court’s recent decision in Library of Congress v. Shaw, — U.S. -, 106 S.Ct. 2957 , 92 L.Ed.2d 250 (1986), reiterates the requirement of strictly construing statutes permitting monetary awards against the United States government. 6 Id. at---, 106 S.Ct. at 2963-65 . Moreover, the traditional rule against permitting awards of interest against the sovereign requires according to Justice Blackmun’s majority opinion, “an added gloss of strictness upon these usual rules.” Id. The Court’s opinion in Shaw further stated that, for the purpose of a waiver of sovereign immunity, an award for delay in payment is “functionally equivalent” to an award for interest: “Interest and a delay factor share an identical function. They are designed to compensate for the belated receipt of money.” Id. at-, 106 S.Ct. at 2965 (emphasis added). The Court therefore held that “the force of the no-interest rule cannot be avoided simply *512 by devising a new name for an old institution.” Id.

The Supreme Court’s decision in Shaw —particularly Shaw’s equation of interest and delay — calls into question part of this court’s holding in Action on Smoking and Health v. C.A.B., 724 F.2d 211 (D.C.Cir. 1984) (hereinafter “ASH’). In that case this court held that the Equal Access to Justice Act allows the district court to consider “other, unenumerated special factors” in determining whether to increase the award from the maximum $75 per hour specified in the Act. Id. at 218 . This much is readily apparent from the text of the portion of the Act quoted above. ASH therefore proceeded to incorporate in the special factor inquiry elements traditionally considered by courts in awarding attorney fees — among those factors, delay in payment and quality of representation. 724 F.2d at 218 (citing Copeland v. Marshall, 641 F.2d 880 (D.C.Cir.1980) (en banc)).

The holding of ASH that delay in payment may be considered in an attorney fee award under the Equal Access to Justice Act cannot survive the Supreme Court’s decision in Shaw . This follows from the holding in Shaw that interest and a delay-factor are “functionally equivalent,” — U.S. at-, 106 S.Ct. at 2966 , and that the waiver of sovereign immunity must be express in order to permit an upward adjustment of attorney fees for either interest or compensation for delay. Given this exacting standard, it is clear that an interest/delay award cannot come within the unenumerated “special faetor[s]” considered in attorney fee awards under the Equal Access to Justice Act. The only clarification of “special factor” within the statute is the reference to factors “such as the limited availability of qualified attorneys for the proceedings involved.” 28 U.S.C. § 2412 (d)(2)(A). An award for interest/delay, which would invariably be present in every case, is not a special factor such as the limited availability of qualified attorneys, which will be present only in unusual cases. This analysis is the most sensible way to reconcile the Supreme Court’s holding in Shaw , the remaining parts of this court’s decision in ASH, and the statutory language of the Equal Access to Justice Act.

In the present case, the district court based an upward adjustment of twenty-five percent on two factors: delay in payment 7 and quality of representation. Memorandum and Order of July 28, 1984, at 9-10. The district court’s analysis thus used one factor — quality of representation — explicitly approved by this court in ASH, 724 F.2d at 218-20 , and one factor — delay in payment — rendered invalid by the Supreme Court’s decision in Shaw . The district court did not apportion the twenty-five percent upward adjustment between the two factors. Therefore in my opinion the case must be remanded to the district court to determine which portion of the upward adjustment is attributable to the quality of representation, which to delay in payment. The portion attributable to the former may stand, that attributable to the latter may not.

V.

In my opinion the court should hold that Crowley’s motion for attorney fees under the Equal Access to Justice Act was pending on October 1, 1981, and was timely filed within thirty days of final judgment. Because the district court did not apportion *513 the twenty-five percent upward adjustment between the permissible factor of quality of representation and the impermissible factor of delay in payment, I would remand the cause for proceedings not inconsistent with this opinion.

. The Act expired on September 30, 1984, see 28 U.S.C. § 2412 (note), but was reenacted and amended on August 5, 1985. See Equal Access to Justice Amendments, Pub.L. No. 99-80, 99 Stat. 183 (1985).

. There was one subsequent minor modification. Dist.Ct. File No. 250 (Dec. 16, 1981).

. The statute provides:

In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.

42 U.S.C. § 1988 (1982).

. Rule 59(e) provides:

A motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment.

*509 Fed.R.Civ.P. 59(e).

. Rule 54(b):

(b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at anytime before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

Fed.R.Civ.P. 54(b).

. Shaw held that Congress had not waived sovereign immunity for an award of interest accompanying a grant of attorney fees under § 706(k) of Title VII. That section provided that "the court, in its discretion, may allow the prevailing party, other than the [EEOC] or the United States, a reasonable attorney’s fee as part of the costs, and the [EEOC] and the United States shall be liable for costs the same as a private person.” 42 U.S.C. § 2000e-5(k).

. The Act specifically allows an upward adjustment of the attorney fee award for "an increase in the cost of living.” 28 U.S.C. § 2412 (d)(2)(A). But the district court nowhere indicated a reliance on that part of the Act, and instead referred only to the delay factor permitted by ASH as an unenumerated "special factor.” While delay and a change in the cost of living are similar in that they both compensate for the change in the value of money overtime, they are analytically distinguishable. A change in the cost of living (or inflation), an easily verifiable factor that ordinarily should be proven by use of a reliable reference such as the consumer price index, compensates for the loss due to the change in the value of money. Delay or interest, on the other hand, compensates primarily for the loss of the use of money, and would involve different, perhaps more extensive, proof at trial. Due to the rigorous standard of Library of Congress v. Shaw, such distinctions are of more than semantic significance.