Opposition — Fitzgerald v. Staats

No. 78-715

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Yu the Supreme Court of the United States

OCTOBER TERM, 1978

A. ERNEST FITZGERALD, PETITIONER

Vv.

ELMER B. STAATS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

VIEMORANDUM FOR THE RESPONDENTS

IN OPPOSITION

WapeE H. McCree, JR.

Solicitor General

Department of Justice

Washington, D.C. 20530

In the Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-715

A. ERNEST FITZGERALD, PETITIONER

Vv.

ELMER B. STAATS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

MEMORANDUM FOR THE RESPONDENTS

IN OPPOSITION

Petitioner, after being discharged from his federal

employment, was reinstated with back pay. He sought an

award of interest on the amount of back pay, and the

Comptroller General declined to comply with his request.

This district court (429 F. Supp. 933; Pet. App. 24-a to »

29-a) and the court of appeals (578 F. 2d 435; Pet. App. I-

a to 23-a) held that interest may not be paid on awards of

back pay. Petitioner apparently recognizes (Pet. 10) that

he cannot prevail unless the doctrine of sovereign

immunity is discarded, and accordingly he asks this Court

to overrule a great number of cases that enforce the

doctrine of sovereign immunity (Pet. 11-24).

The request that the Court discard the doctrine of

sovereign immunity is not infrequently made. Earlier this

Term the Court denied a petition for certiorari making

such a request. May Department Stores Co. v. Smith,

cert. denied, No. 77-1853 (Oct. 2, 1978). The Court has

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consistently applied the doctrine. See, e.g., United States

v. Testan, 424 U.S. 392, 399 (1976). Testan involved a

claim of back pay, and sovereign immunity also prevents

awards of interest on judgments against the United States.

United States v. Thayer-West Point Hotel Co., 329 U.S.

585 (1947) (a statutory provision for the award of “just

compensation” does not authorize the award of interest).

Petitioner advances a number of arguments that, he

contends, show that the doctrine of sovereign immunity

should be abolished. These arguments miss the point. The

question is not whether sovereign immunity should be

abolished, but which branch of the government should

make that decision. This Court consistently has held that

the choice is for the Legislative Branch. Petitioner

advances no reason why this Court now should assume

the authority that, it has held, belongs to Congress, and

petitioner’s argument therefore is unavailing.

Petitioner also argues that the use of sovereign

immunity is inappropriate in back pay cases because

interest is simply an “ancillary remedy” (Pet. 24). This

contention disregards Thayer-West Point Hotel Co.. in

which the Court rejected the very argument petitioner

makes here. It is enough, as the court of appeals pointed

out (Pet. App. 16-a), that the federal statutes. despite

setting out detailed remedies for wrongful discharge from

employment, do not provide for awards of interest on

awards of back pay. If the statute does not authorize

awards of interest, the doctrine of sovereign immunity

precludes a court from directing that interest be paid.

Accord, VanWinkle v. McLucas, 537 F. 2d 246, 248 (6th )

Cir. 1976), cert. denied, 429 U.S. 1093 (1977).

It is therefore respectfully submitted that the petition

for a writ of certiorari should be denied.

Wave H. McCree. Jr.

Solicitor General

NOVEMBER 1978

DOJ-1978-11