# Opposition — Fitzgerald v. Staats

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1977%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1978
- **Citation:** 439 U.S. 1004

## Text

No. 78-715

os

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1977%3A3. Public record. Not legal advice.