# Opposition Brief — Massachusetts v. Reopell

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2743%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1991
- **Citation:** 502 U.S. 1004

## Text

No. 91-179

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In the Supreme Court of the United States

OCTOBER TERM, 199]

BRIEF FOR THE RESPONDENT IN OPPOSITION

KENNETH W. STS
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QUESTION PRESENTED

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TABLE OF CONTENTS

Opinions below
Jurisdiction
Statement
Discussion
Conclusion

TABLE OF AUTHORITIES

Cases:

Atascadero State Hospital y. Scanlon, 4723 U.S. 234
(1985)

Dellmuth Vv. Muth, 491 US. 223 (1989)

Fishgold vy. Sullivan Drydock & Repair Corp., 228
U.S. 275 (1946)

General Motors Corp. Vv. Devers Corp., 461 U.S. 648
(1983

Gelof Vv. Papineau, 644% F. Supp. 912 (D. Del.
1946), vacated, 629 F.2d 452 (3d Cir. 1987)

Hanna v. American Motors Corp., T24 F.2d 1200
(7th Cir.), cert. denied, 467 U.S. 1241 (194)

Hembree Vv. Georgia Power Co., 637 F.2d 423 (Sth
Cir. 1981)

Jenkins V. Missouri, 638 F.2d 260 (8th Cir. 1988),
aff’d, 491 U.S. 274 (1989)

Jennings V. Minois Office of Bduc., 589 F.2d 935
(7th Cir.), cert. denied, 441 U.S. 967 (1979)

Library of Congress Vv. Shaw, 478 U.S. 310

(1986) 4,

Loeffler v. Franl:, 486 U.S. 549 (1988)

Missouri V. Jenkins, 491 US. 274 (1989)

Monroe Vv. Standard Oil Co., 452 US. 549 (1981)

Peel y. Florida Dep't of Transp., 509 ¥. Supp. 526
(N.D. Fla. 1989)

Peques V. Mississippi State Rimployment Se rvice,
899 F.2d 1449 (Sth Cir. 1990)

Rogers V. Olen, 821 F.2d 22 (let Cir. 1987), cert.
denied, 444 U.S. 1010 (1982)

(111)

4,9

”

3, 8,9
5
7,19

19

9

IV

Cases—Continued: Page
Tilson V. United States, 100 U.S. 43 (1879)... 9
United States ex rel. Angarica V. Bayard, 127 U.S.

251 (1888) —... : 9
United States v. Tillamooks 841 U. S. 48 (1951). 9
West Virginia vy. United States, 479 U.S. 305

5) 2 3 Jeet Salen ee GaN SN Ne epee Rt 5
Whiting Vv. Jackson State U niversity, 616 F.2d 116

(5th Cir. 1980) PEPE a ECL AD erst I RELY IR FC POPPE MELD 10

Constitution, statutes and rule:

U.S. Const. Amend. XI _... She nominee ee ere 3, 4, 10
Age Discrimination in Employment Act, 29 U.S.C.

ee He Ms aliccp ead aac ccstidenetdaosackastaereee ona 3 10
Civil Rights Act of 1964, 42 U.S.C. 2000e- 5 (g) ie thee
Selective Training and Service Act of 1940, ch.

720, § 8(e), 54 Stat. 891 . Sure 5

Veterans’ Reemployment Rights Act, Tit. IV, 38
U.S.C. 2021 et seq.:

38 U.S.C. 2021 (b) (3)... 2,5
38 U.S.C. 2022 (§ 404(a), 88 Stat. 1596) 2, 4, 6, 7,10
38 U.S.C. 2023 (a) ibadatcancaduspetets temas 9

Miscellaneous:
S. Rep. No. 907, 93d Cong., 2d Sess. (1974) |

Iu the Supreme Court of the United States
OCTOBER TERM, 1991

No. 91-479
COMMONWEALTH OF MASSACHUSETTS, PETITIONER
aye

EARL J. REOPELL

ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals, Pet. App. Al-
A26, is reported at 936 F.2d 12. The opinions of the
district court, Pet. App. B1-B7, C1-C6, D1-D19, E1-
E27, are unreported.

JURISDICTION

The judgment of the court of appeals was entered
on June 18, 1991. A petition for a writ of certiorari
was filed on September 16, 1991. The jurisdiction of
this Court is invoked under 28 U.S.C. 1254(1).’

1 Although petitioner cites 28 U.S.C. 1257, Pet. 3, this
Court’s jurisdiction is properly invoked under 28 U.S.C.
1254(1).

(1)

2

STATEMENT

The facts of this case are undisputed. In 1984, re-
spondent, a State Police Trooper employed by peti-
tioner, enlisted in the United States Army Reserve
without petitioner’s permission. Respondent was ac-
cordingly suspended from his employment for 30 days
without pay. Pet. App. A4. He brought this action
in the United States District Court for the District
of Massachusetts under the Veterans’ Reemployment
Rights Act (VRRA), 38 U.S.C. 2021, et seq.’ The
VRRA provides in relevant part that a state employee,
such as respondent, “shall not be denied * * * any
* * * incident or advantage of employment because
of any obligation as a member of a Reserve com-
ponent of the Armed Forces.” 38 U.S.C. 2021(b) (3).
If an employer, “who is a private employer or a State
or political subdivision thereof,’ violates Section
2021(b) (3), the district court is authorized to order
that employer “to compensate [the covered] person
for any loss of wages or benefits suffered by reason
of such employer’s unlawful action.”” 38 U.S.C. 2022.

The district court found that the suspension of re-
spondent violuted the VRRA, and petitioner does not
contest that finding in this Court. The court awarded
respondent $3,260.41 in lost wages under the Act, and
the parties stipulated that the only remaining issue
was the availability of prejudgment interest on the
backpay award.’ On cross-motions for summary

2 Pursuant to 38 U.S.C. 2022, the United States Attorney
for the District of Massachusetts represented respondent in
his action.

3 The parties stipulated that if interest were payable, the
amount due as of February 28, 1990, would be $1,788.01, and
further interest would accrue at a rate of 8’: thereafter. Pet.
App. B2.

3

judgment, the district court held that the Eleventh
Amendment barred an award of interest against pe-
titioner. Pet. App. B2-B7.

The court of appeals reversed. In reliance on this
Court’s decision in Missouri v. Jenkins, 491 U.S. 274
(1989), the court of appeals concluded that there was
no ‘strict requirement that prejudgment interest”
must be “expressly sanctioned by Congress” before a
plaintiff may recover it from a State pursuant to a
federal statute that unmistakenly abrogates the
State’s Eleventh Amendment immunity against a
compensatory award. Pet. App. Al4. Rather, once
Congress has unequivocally abrogated Eleventh
Amendment immunity from a suit for compensatory
relief, the question whether interest is includable is
one of statutory construction. Pet. App. Al5. The
court of appeals acknowledged that this Court has
recognized a special “‘no-interest rule” in suits against
the federal government, Library of Congress v. Shaw,
478 U.S. 310 (1986), which reflects a long standing
presumption that Congress does not intend to permit
recovery of interest against the federal government
absent an express provision to the contrary. The
court of appeals rejected petitioner’s claim that the
presumption is applicable to the interpretation of fed-
eral laws abrogating the sovereign immunity of
States. The court reached this result in reliance on
this Court’s statement in Missouri v. Jenkins, 491
U.S. at 281 n.3, that the rule of construction in issue
applies only to suits against the United States. Pet.
App. A13.

The court next determined that Congress intended
the VRRA to authorize awards of prejudgment inter-
est against the States, as an element of the compensa-
tory relief. Noting that the Act requires employers—

4

specifically including the States—to ‘‘compensate”’ in-
jured employees “for any loss of wages or benefits”
sustained in consequence of a violation of the VRRA,
the court held that full compensation for lost wages
would require the payment of interest. Pet. App.
A20. The court added that courts have consistently
interpreted the VRRA to provide for interest awards
against private employers, and that Congress ex-
tended the remedial provisions of Section 2022 to
state employers on the same terms as they applied to
private employers. Pet. App. A22-A24.

DISCUSSION

The opinion of the court of appeals is correct and
consistent with the decisions of other courts of ap-
peals and of this Court. Further review is therefore
unwarranted.

1. The governing principles are not in dispute.
Because respondent sought retrospective monetary re-
lief for the petitioner’s violation of his rights, th:s
case directly implicates the Eleventh Amendment.
Absent a waiver of sovereign immunity by petitioner,
therefore, respondent inay maintain this action in
federal court only if Congress abrogated petitioner's
sovereign immunity “by making its intention unmis-
takably clear in the language of the statute.” Atas-
cadero State Hospital y. Scailon, 473 U.S, 234, 242
(1985); see, e.g., Dellmuth v. Muth, 491 U.S. 223,
228 (1989).

The VRRA effects such a waiver. The Act orig-
inated with Corgress’s determination that one “who
was called to the colors [is} not to be penalized on his
return by reason of his absence from his civilian job.”
Fishgold y. Sullivan Drydock & Repair Corp., 328
U.S. 275, 284 (1946). The statute forbids, as weli,

5

an employer’s imposition of penalties upon those who,
like respondent, choose to serve the United States in
the armed forces reserves. 38 U.S.C. 2021(b) (3);
see Monroe vy. Standard Oil Co., 452 U.S. 549, 556-
560 (1981). To implement those guarantees, the
VRRA, which “is to be liberally construed for the
benefit of those who [leave] private life to serve their
country,” Fishgold, 328 U.S. at 285, has from its
earliest form authorized the federal courts to order
the Act’s violators to “compensate [a covered] per-
son for any loss of wages or benefits suffered by
reason of [an] employer’s unlawful action.” Selective
Training and Service Act of 1940, ch. 720, § 8(e),
54 Stat. 885, 891.

Prejudgment interest on lost wages comprises one
element of the compensatory remedy. As this Court
has explained in other contexts, “[p]rejudgment in-
terest serves to compensate for the loss of use of
money due as damages from the time the claim ac-
crues until judgment is entered, thereby achieving
full compensation for the injury those damages are
intended to redress.” West Virginia v. United States,
479 U.S. 305, 310-311 n.2 (1987); accord General
Motors Corp. v. Devex Corp., 461 U.S. 648, 654
(1983). Indeed, referring to the backpay award au-
thorized by Title VII of the Civil Rights Act of 1964,
42 U.S.C. 2000e-5(g¢)—relief that is closely anal-
ogous to the compensation for lost wages authorized
by the VRRA—this Court has expressly recognized
that “[p]rejudgement interest, of course, is ‘an ele-
ment of complete compensation.’ ” Loeffler v. Frank,
486 U.S. 549, 558 (1988). In the context of the
VRRA, the courts of appeals have considered pre-
judgment interest so central to the Act’s compensa-
tory purpose that they have found it an abuse of dis-

6

cretion to deny such interest, even when the em-
ployer has acted in good faith. See, e.g., Hanna v.
American Motors Corp., 724 F.2d 1300, 1311 (7th
Cir.), cert. denied, 467 U.S. 1241 (1984); Hembree
v. Georgia Power Co., 637 F.2d 423, 429-30 (Sth
Cir. 1981).

In 1974, Congress extended the Act to state em-
ployers, Pub. L. No. 93-508, § 404(a), 88 Stat. 1478,
1596, and, in so doing, abrogated state sovereign im-
munity by unequivocally clear language. The VRRA
now reads in relevant part as follows:

If any employer, who is a private employer or a
State or political subdivision thereof, fails or re-
fuses to comply with the provisions of [the Act],
the [appropriate] district court of the United
States * * * shall have the power * * * specifi-
cally to require such employer * * * to compensate
[a covered] person for any loss of wages or bene-
fits suffered by reason of such employer’s unlaw-
ful action.

38 U.S.C. 2022 (emphasis added). Petitioner does
not dispute that the foregoing provision abrogates
state sovereign immunity, and extends the district
court’s authority to award backpay as make-whole
relief against the States. Rather, petitioner argues
that Congress stopped short of extending the district
court’s authority to award prejudgment interest as
part of the complete compensation for lost wages.
That contention, however, is not supported by the
statutory language. The Act draws no distinction be-
tween private and state employers for purposes of
the remedial provisions of Section 2022, but subjects
“any employer, who is a private employer or a State
or political subdivision thereof,” to the full panoply
of available remedies. It is not surprising, therefore,

_
‘

that lower courts have routinely awarded prejudg-
ment interest against state government employers un-
der the Act. See, eg., Jennings vy. Illinois Office of
Educ., 589 F.2d 935, 937 (7th Cir.), cert. denied, 441
U.S. 967 (1979); Peel v. Florida Dep't of Transp.,
900 F. Supp. 526, 528 (N.D. Fla. 1980). As peti-
tioner concedes, moreover, the holding of the present
case is uncontradicted by the decision of any other
court of appeals. Pet. 15 n.6.

The legislative history of the 1974 amendment
confirms that States are to be subject to the same
remedies as private employers under the VRRA. In
discussing 38 U.S.C. 2022, the Senate Report noted
that the 1974 amendment “extends to employees of
State * * * governments * * * enforcement rights
in the same manner and to the same extent as are
currently provided for employees of private employ-
ers.” S. Rep. No. 907, 93d Cong., 2d Sess. 111 (1974)
(emphasis added). That report also explained that
Congress sought to extend “full coverage to veterans
who were employed by States and their political sub-
divisions.” Jd. at 109. Hence, that amendment is
properly understood to subject the States to the dis-
trict court’s remedial power to award full compensa-
tion for lost wages, including prejudgment interest,
under the VRRA.

2. Petitioner seeks to avoid the VRRA’s authori-
zation of prejudgment interest by extending to fed-
eral statutes abrogating state sovereign immunity this
Court’s presumption that Congress does not intend
to subject the federal government to an award of
interest, absent express references to interest. That
contention alsu does not warrant rev‘ew.

a. The snecial “no-interest rule” recently reaf-
firmed by this Court in Library of Congress vy. Shaw,
478 U.S. 310 (1986), does not apply to congression-

8

ally created remedies against state governments. As
this Court made clear in Missouri vy. Jenkins, supra,
the “special no-interest rule” is “applicable to the
immunity of the United States and * * * provides an
‘added gloss of strictness’ * * * only where the United
States’ liability for interest is at issue.” 491 U.S.
at 281 n.3.

While petitioner argues that the relevant passage
from Missouri v. Jenkins was dictum, Pet. 21, that
characterization is incorrect. In that case, the State
resisted the inclusion of an interest component in an
award of attorney’s fees assessed against it as “costs.”
Relying on Shaw, 478 U.S. at 321, the State argued
that interest was not a component of costs. Missouri
v. Jenkins, 491 U.S. at 281 n.3. This Court responded
that its observation in Shaw that interest was not an
element of costs could properly be understood only
in the context of the no-interest rule, which applied
only to the federal government, and not the States.
Ibid. Hence, the distinction between the federal, and
a state, government for purposes of the no-interest
rule, was necessary to respond to an argument, the
success of which would have dictated a contrary re-
sult in Missouri v. Jenkins.

In any case, the distinction drawn in Jenkins
Seart between the applicability of the no-interest
rule to congressional waivers of federal, as opposed
to state, sovereign immunity is correct. The federal
no-interest rule, as such, dates back to at least 1819
and appears in numerous decisions of this Court start-
ing in 1879. See Shaw, 478 U.S. at 315-317. In view
of that lengthy history, “[w]hen Congress has in-
tended to waive the United States’ immunity with re-
spect to interest, it has done so expressly; thus, waivers
of sovereign immunity to suit must be read against the

9

backdrop of the no-interest rule.”* Jd. at 318-319:
accord United States ex rel. Angarica v. Bayard, 127
U.S. 251, 260 (1888) (“Congress, though well know-
ing the [no-interest] rule observed at the Treasury,
and frequently invited to change it, has refused to
pass any general law for the allowance and payment
of interest on claims against the government.”). Pe-
titioner has not cited, and we ave unaware of, any
traditional no-interest rule that applies to congyes-
sional legislation concerning the immunity of the
States. See Missouri vy. Jenkins, 491 U.S. at 281 n.2
(rejecting the asserted “existence of an equivalent
rule relating to State immunity that embodies the
same ultrastrict rule of construction for interest
awards that has grown up around the federal no-
interest rule’).

b. Consistent with the distinction drawn by Mis-
sourit vy. Jenkins, the decisions of the lower courts
have routinely awarded interest under federal stat-
utes that authorize compensatory relief against the
States, even though the statutes do not expressly state

* Because of the no-interest rule, statutes—such as the
VRRA, 38 U.S.C. 2023(a)—that simply authorize compensa-
tory relief against the federal government do not thereby
authorize prejudgment interest as an element of complete
compensation. See, e.g., United States vy. Tillamooks, 341
U.S. 48, 49 (1951) (no waiver of federal immunity against
interest found in congressional authorization to recover “just
compensation”) ; Tillson v. United States, 100 U.S. 43, 45. 47
(1879) (interest award against the federal government not
authorized by statute establishing liability for the “amount
equitably due”). Rather, Congress must explicitly and sepa-
rately specify the availability of prejudgment interest. See.
e.g., Shaw, 478 U.S. at 314-317.

10

that interest is available.* See, e.g., Whiting v. Jack-
son State University, 616 F.2d 116, 127 n.8 (5th Cir.
1980) (Title VII); Jennings, 589 F.2d at 937
(VRRA); Gelof v. Papineau, 648 F. Supp. 912, 929-
931 (D. Del. 1986) (Age Discrimination in Employ-
ment Act), vacated on other grounds, 829 F.2d 452
(3d Cir. 1987); Peel, 500 F. Supp. at 528 (VRRA).
In addition to the decision in this case, moreover,
recent decisions of two other courts of appeals have
expressly considered and rejected the claim, ad-
vanced by petitioner here, that Shaw’s no-interest rule
requires Congress to authorize interest against the
States explicitly and separately from the authoriza-
tion to sue the States for compensatory relief. See
Peques vy. Mississippi State Employment Service, 899
F.2d 1449, 1453-1454 (5th Cir. 1990); Jenkins v.
Missouri, 838 F.2d 260, 265 (8th Cir. 1988), aff’d on
other grounds, 491 U.S. 274 (1989). Thus, as peti-
tioner concedes, Pet. 15 n.6, there is no split in au-
thority on the applicability, vel non, of the no-interest
rule to congressional abrogations of Eleventh Amend-
ment immunity. Further review is unwarranted.

5 Prior to Missouri Vv. Jenicins, the First Circuit had ex-
tended the federal no-interest rule of Shaw to cases involving
Eleventh Amendment immunity. See Rogers v. Olcin, 821 F.2d
22, 26-28 (1987), cert. denied, 484 U.S. 1010 (1988). In the
present case, the First Circuit abandoned that approach in
reliance on Jenkins. Pet. App. Al1-Al14.

11

CONCLUSION

The petition for a writ of certiorari should be
denied.

Respectfuily submitted.

KENNETH W. STARR
Solicitor General

STUART M. GERSON
Assistant Attorney General

MICHAEL JAY SiNGER
JONATHAN R. SIEGEL
Attorneys

NOVEMBER 1991

TY U.S. GOVEeNMENT PeiNtiNG OFrice, 1991 312324 45158

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2743%3A2. Public record. Not legal advice.