Opposition — Holly v. Chasen

! } Willoe-Supramea Court, U.S

FILED

14

| JUN 28 1981

No. 80-1871 ALBXANDw! \.. BYTE VAS,

Inu the Supreme Court of the Hnited States

OCTOBER TERM, 1980

NORMAN E, HOLLY, PETITIONER

v.

Roper E. CHASEN, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

Wape H. McCres, Jr.

Solicitor General

STUART E, SCHIFFER

Acting Assistant Attorney General

WILLIAM KANTER

LINDA COLE

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether 28 U.S.C. 1961 authorizes the assessment of

interest on a judgment against the United States. .

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases: 3

Anglin & Stevenson v. United States, 160 F. 2d

G70, oort dented, 331 U.S. S36 asccccesevdcese 2

Boston Sand and Gravel Co. v. United States,

BIO ae dances bnnkeebceenndeeeene 4

FPC vy. Tuscarora Indian Nation, 362 U.S.99 ... 3

Hancock v. Train, 426 U.S. 167 ......ceeeveees 3

Huntley v. Southern Oregon Sales,

OS Pe LE 0s 0 vbc canbeakkevacseeeuseets 5

Leiter Minerals, Inc. v. United States,

Sen Ms eC éRbA Do ove bneneaebrebeeseseene 3

Reed VV: Mowbert, 77 F. 2b 227 ivcevececcessess 5

Richerson v. Jones, 551 F.2d 918 ........... 4-5

United States v. Alcea Band of Tillamooks,

SEE MAD - 6 4.0'b 60.00 v0bs 0bue eee 2

United States v. New York Ravon Importing

RE 8 er re ere ao

United States v. Sherman, 98 U.S. 565 ....... 2.4

United States v. Testan, 424 U.S. 392 .......... 3

IV

Page

Cases—(Continued):

United States v. Thayer-West Point Hotel Co.,

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United States v. United Mine Workers,

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Statutes:

Act of Aug. 23, 1842, ch. 188, Section 8,

NE Bie bara $ ob cok 6od KaRseWs pee eevee 3

Act of Mar. 3, 1887, ch. 359, Section 1,

DED hs cuba bacecedesebdeaseds staves 4

Act of Mar. 3, 1911, ch. 231, Section 291,

36 Stat. 1167, codified at 28 U.S.C.

PEPEPODULE 6 vacscnececssvececsccscodeses 3

Freedom of Information Act (FOIA), 5 U.S.C.

DUE Si rcdichbadaavateszecescebepaveteséces 1

S$ U.S.C. SS2(a MAKE) ..cccccccccccccccens 2

Tucker Act, 28 U.S.C. 1491... ccc eee e eee eens 4

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PO UGGS cisictascccccsicvecrescens 2,3,4

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BE Cs. THE Feed are cc cnccdaweckarenncecses 4

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Page

Miscellaneous:

P. Bator, P. Mishkin, D. Shapiro &

H. Wechsler, Hart & Wechsler’s The Federal

Courts and the Federal System (2d ed. 1973) ... 4

Note, /nterest on Judgments in the Federal

Courts, 64 Yale L.J. 1019 (1955) ............. 5

Iu the Supreme Court of the Hnited States

OCTOBER TERM, 1980

No. 80-1871

NORMAN E. HOLLY, PETITIONER

Vv.

ROBERT E. CHASEN, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 3a-8a) is

reported at 639 F. 2d 795. The opinion of the district court

(Pet. App. la-2a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

January 7, 1981 (Pet. App. 9a). On April 2, 1981, the Chief

Justice extended the time within which to file a petition fora

writ of certiorari to May 7, 1981, and the petition was filed

on that date. The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

STATEMENT

In December 1975, petitioner brought suit against respond-

ents seeking to compel disclosure of certain agency records

under the Freedom of Information Act (FOIA), 5 U.S.C.

552. Petitioner, a non-lawyer, represented himself before

2

the district court. Because his suit triggered the release of

most of the disputed information, petitioner claimed that he

was eligible to be compensated for his time under the attor-

neys’ fees provision of the FOIA, 5 U.S.C. 552(a)(4)(E). The

district court awarded petitioner $620 in “attorneys’ fees.”

Holly vy. Acree, 72 F.R.D. 115 (D.D.C. 1976). The

government appealed only on the question whether the

FOIA authorizes an award of attorneys’ fees to a non-

lawyer acting pro se, and the court of appeals affirmed.

Holly v. Chasen, 569 F. 2d 160 (D.C. Cir. 1977).

Thereafter, petitioner asked the district court to order the

government to pay post-judgment interest on his award of

attorneys’ fees. The court granted the request, observing

that “28 U.S.C. § 1961 seems to apply in mandatory terms

to all judgments rendered against private or governmental

litigants in federal district courts” (Pet. App. 2a) (emphasis

in original). The court of appeals reversed (id. at 3a-8a),

finding that Section 1961 does not contain an express

waiver of sovereign immunity—a prerequisite to an award

of interest against the United States (Pet. App. 6a-7a).

ARGUMENT

Petitioner contends (Pet. 4-12) that 28 U.S.C. 1961

requires the assessment of interest against the United

States. This contention is without merit.

This Court has repeatedly held that the United States is

not liable for interest in the absence of an express waiver of

sovereign immunity. See, e.g., United States v. Alcea Band

of Tillamooks, 341 U.S. 48, 49 (1951); United States v.

Thayer-West Point Hotel Co., 329 U.S. 585, 588 (1947).

And, contrary to petitioner’s contention (Pet. 5-6), this rule

applies as well to interest imposed after the entry of a

judgment. See United States v. New York Rayon Import-

ing Co., 329 U.S. 654 (1947); United States v. Sherman, 98

U.S. 565 (1879); Anglin & Stevenson v. United States, 160

F. 2d 670, 672 (10th Cir.), cert. denied, 331 U.S. 834 (1947).

3

Indeed, in New York Rayon, the Court rejected the conten-

tion that the sovereign immunity of the United States does

not extend to interest after a claim has been reduced to

judgment, noting that the traditional rule preventing the -

taxation of interest against the United States “is a complete

one covering all types of claims, including those arising out

of pre-existing judgments.” 329 U.S. at 661.

It is well established that a waiver of sovereign immunity

must be “unequivocally expressed.” United States v. Tes-

tan, 424 U.S. 392, 399 (1976); see also United States v. New

York Rayon Importing Co., supra, 329 U.S. at 659. There

can be little doubt that the court of appeals correctly held

that the general language of 28 U.S.C. 1961 does not meet

this test. The statute contains no affirmative terms that

could constitute an express waiver of sovereign immunity

and contains no indication whatsoever of an intent to

include judgments against the United States.!

Moreover, the background of 28 U.S.C. 1961 demon-

strates that Congress did not intend to waive the govern-

ment’s historic immunity from claims for interest. The stat-

ute was first enacted in 1842, and has remained substan-

tially the same since. Act of Aug. 23, 1842, ch. 188, Section

8, 5 Stat. 518.2 In 1842, persons with grievances against the

'There is no merit to petitioner's suggestion (Pet. 4-5) that sovereign

immunity cannot apply here because 28 U.S.C. 1961 contains no

explicit exception for the United States. It is well settled that “general

Statutes imposing restrictions do not apply to the Government itself

without a clear expression to that effect.” FPC v. Tuscarora Indian

Nation, 362 U.S. 99, 120 (1960). See also, e.g., Hancock v. Train, 426

U.S. 167, 179 (1976); Leiter Minerals, Inc. v. United States, 352 U.S.

220, 224-225 (1957); United States v. United Mine Workers, 330 U.S.

258, 271-272 (1947). The same rule applies to a general statute imposing

monetary liability, from which the sovereign is ordinarily immune.

?The wording of the statute was changed slightly in 1911, Act of Mar.

3, 1911, ch. 231, Section 291, 36 Stat. 1167, codified at 28 U.S.C. (1940

ed.) 811, and then again to its present form as 28 U.S.C. 1961.

4

United States could not file a lawsuit but could obtain relief

only by means of a private bill in Congress. P. Bator, P.

Mishkin, D. Shapiro & H. Wechsler, Hart & Wechsler’s

The Federal Courts and the Federal System 1326 (2d ed.

1973) (hereinafter cited as Hart & Wechsler). Congress did

not authorize the federal district courts to entertain suits

against the United States until 1887, when it passed the

Tucker Act, 28 U.S.C. 1491 (see Act of Mar. 3, 1887, ch.

359, Section 1, 24 Stat. 505). Clearly, Congress could not

have contemplated that the general language of 28 U.S.C.

1961 would authorize the imposition of interest against the

United States if a monetary judgment could not have been

obtained against the United States when the statute was

passed.3

Finally, as the court of appeals noted (Pet. App. 8a),

Congress has enacted several specific statutes authorizing

the payment of interest on judgments against the United

States. See 28 U.S.C. 2411(b); 28 U.S.C. 2516(b); 31 U.S.C.

724a. See also 26 U.S.C. 7426; 28 U.S.C. 241 1(a); 31 U.S.C.

227; 46 U.S.C. 743. Congress’ enactment of these explicit

provisions subsequent to the passage of 28 U.S.C. 1961

provides further evidence that it did not intend the general

interest statute to apply to judgments against the United

States.

For these reasons, the courts have uniformly rejected the

contention that 28 U.S.C. 1961, or its predecessors, autho-

rizes the imposition of interest against the United States.

3As petitioner notes (Pet. 7), in a few “exceptional” instances Con-

gress passed a private bill that did not grant the relief requested but

rather authorized the claimant to bring a particular lawsuit in federal

district court. Hart & Wechsler, supra, at 1326 n.2. These bills were so

unusual that they can hardly have been a consideration in the passage of

the predecessor to 28 U.S.C. 1961. Indeed, this Court has explicitly held

that interest may not be assessed on a judgment against the United

States resulting from a suit brought under such a private bill. Boston

Sand and Gravel Co. v. United States, 278 U.S. 41 (1928).

5

See United States v. Sherman, supra; Richerson v. Jones,

551 F. 2d 918, 925 (3d Cir. 1977); Huntley v. Southern

Oregon Sales, 104 F. 2d 153, 154-155 (9th Cir. 1939); Reed

v. Howbert, 77 F. 2d 227, 229 (10th Cir. 1935). Thus, the

question presented here is one that has long been settled,

and it does not warrant review by this Court. See Note,

Interest on Judgments in the Federal Courts, 64 Yale L.J.

1019, 1019-1020 n.6 (1955).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Wabe H. McCres, JR.

Solicitor General

STUART E. SCHIFFER

Acting Assistant Attorney General

WILLIAM KANTER

LINDA COLE

Attorneys

JUNE 1981

DOJ-1981-06