Petition for Writ of Certiorari — Trout v. Mabus (No. 08-1086)

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OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

YVONNE G. TROUT, CLARA PERLINGIERO, ET AL.,

PETITIONERS

Vv.

SECRETARY OF THE NAVY, ET AL.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR WRIT OF CERTIORARI

JOHN F. KARL, JR.

Counsel of Record

BRADLEY G. MCDONALD

McDonald & Karl

1090 Vermont Avenue, N.W.

Surte 500

Washington, D.C. 20005

(202) 293-3200

Attorneys for Petitioners

CURRY & TAYLOR @ (202) 393-4141

QUESTIONS PRESENTED

Whether this Court’s decision in Austria v.

Altmann, 541 U.S. 677 (2004), interpreting

Landgraf v. USI Film Products, 511 U.S. 244

(1994), controls waivers of sovereign immunity by

the federal government so that the waiver in

Section 114(2) of the Civil Rights Act of 1991

applies to the federal government's assertion of a

sovereign immunity defense after the passage of

the Act?

Whether the lower court disregarded Hensley v.

E'ckerhart, 461 U.S. 424 (1983), and adopted a

definition of “claim” contrary to that used by ten

other circuits when, instead of defining “claim” as

a "cause of action," the lower court treated a

request for pre-November 21, 1991 prejudgment

interest within a single cause of action as a

separate “claim” that was factually and legally

distinct from the underlying backpay on which the

interest was based.

PARTIES TO THE PROCEEDING

Petitioners: Susan L. Alf, Dorothy M. Amendolair, Sandra

M. Aquino, Judy M. Bedell, Sandra H. Bennett, Margaret

Bents, Lavon Boisen, Patricia A. Boyd, Anna L. Bradford,

Marie M. Broughton, Nancy J. Brown, Ellen Callier,

Claire C. Chong, Carole A. Clum, Lyndall Chambers

Dally, Ellen S. Davis, Patricia Deroche, Anne W. Eakin,

Lorene Tuggle Fields, Frances 8. Fiorillo, Latricia A.

Fleetwood, Patricia H. Fox, Sandra R. Gaskins, Barbara

C. Gibson, Marjorie K. Groover, Crystal G. Halicki, Janice

M. Harlow, Shirley EF. Harris, Carolyn Harwood, Marilyn

J. Herrington, Rosie B. Hopkins, Essie D. Horton, Linda

L. Jackson, Suzanne A. Jafari, Joyce J. Jenkins, Donna H.

Johnson, Pear] M. Jones, Delores A. Kelly, Rose H.Y.

Kim, Caroline J. Kratz, Vernice Lee, Thelda MacMillian,

Flora C. Malterud, Janice K. Mengel, M. Frances Miles,

Helen E. Miner, Edith L. Nankivel, Bernice W. Nelson,

Judith J. Newton, Joanne Kelly O’Malley, Danice G.

Owens, Clara A. Perlingiero, Catherine E. Quade, Helen

D. Reveley, Kay E. Rouse, Susan K. Russell, Kathleen N.

Schabacker, Ruby E. Smith, Susan Stanhope, Ruby G.

Stough, Faye G. Tolliver, Kristen K. Trimble, Carole A.

Velvin, Andrea Dean Wallace, BrendaJ. Weaver, Sharon

K. Woods.

Respondents: Secretary of the Navy and Commanding

Office Naval Command Systems Support Activity.

TABLE OF CONTENTS

Page

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,EASONS FOR GRANTING THE PETITION.........ccccceeccececeeeceeees 12

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APPENDIX

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Inistrict Court Memorandum & Order cvicccccccccccccccccceccereeces 35a

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Order Denying Panel Rehearing.........1ccsscccesssssseerseereeeess 4la

Order Denying Rehearing Er Bane ...ccccccccccsessecesececeeersees 42a

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TABLE OF AUTHORITIES

Page

CASES

ANDREWS V. UNITED STATES, 122 F.3D 1867 (11TH

eR» 5 BUREN ee apg erie g Meany Seat na he ert ene Se OS 31

AUSTRIA V. ALTMANN, 541 U.S. 677 (2004) ................... passim

BLOCK V. NEAL, 460 U.S. 289, 298 (1982) ................0cscececeossseee OO

BOWEN V. GEORGETOWN UNIV. HOSPITAL, 488 U.S.

Oe CO sas eae a vee ea ce zt

BRADLEY V. SCHOOL BD. OF RICHMOND, 416 U.S. 696

So | EE ene Re RAEN PITT aT Le Rc ne MEO ea SS FE Gem 17

BROWDER V. CITY OF MOAB, 427 F.3D 717 (LOTH CIR.

sola aati anes es cigs eaacaepta senate ao oes 31

BROWN V. SECRETARY OF ARMY, 78 F.3D 645, REH'G

DENIED, 8&6 F.3D 225 (D.C. CIR.), CERT. DENIED,

Pe re EN aioli ess siessoevananacceucoaetisenecs 7,8, 15

CITY OF MILWAUKEE V. CEMENT Div. NAT'L

Seg Bae Fk... are poeneees 27

CoDyY V. HILLARD, 304 F.3D 767 (8TH CIR. 2002)... 34

COMBS V. COMMISSIONER OF SOCIAL SECURITY, 459 F.3D

re Ge, BI I Roose ects Sidecceesexeacessseicconsccccentac 22

COMMISSIONER, INS Vv. JEAN, 496 U.S. 154 (1990).......... 32, 33

COUTIN V. YOUNG & RUBICAM PUERTO RICO, INC.,

Oe ae CC Fer is FT ike canes Bin eceonisicdevvicsarcnsacnietcnes 30

DURAN V. CARRUTHERS, 885 F.2D 1492 (10TH CIR.

RF a a aU RAR NT LN Hs MEU O ENG On OT RO ENE ORIN Carte 35

FERNANDEZ-VARGAS V. GONZALES, 548 U.S. 30

RONAN ne SRL STE NEE ELA EATS Rol WI SIO AIR eo DOP IDR ee 21

GREEN V. TORRES, 361 F.3D 96 (2ND CIR. 2004) ...... eee. 30

HENSLEY V. ECKERHART, 461 U.S. 424 (19838) ............. passim

HUGHES AIRCRAFT Co. V. UNITED STATES, 520 U.S.

Sy f See Ms EMO REDMON Oe ANN Rae aa Oe Sere a 12

IMWALLE V. RELIANCE MEDICAL PRODUCTS, INC.

Rh eee Gee CO Oe Ie, nice ion tcacasavaece 31

SIS ST GR, Be Us he ED incase scorscsetcwinsncsaneavincceccnss iz

JAFFEEF V. REDMOND, 142 F.3D 409 (7TH CIR. 1998) ............. 15

JENKINS V. STATE OF MISSOURI, 127 F.3D 709 (8TH

Se ARNO re ie Se Pye eC RE ER RT ne 34

JOHNSON V. CITY OF TULSA, OKLAHOMA, 489 F.3D

I ca oa enipspnindnchodadamsaseanasiineed 35

JOHNSON V. HUGO'S SKATEWAY, 949 F.2D 1338 (4TH

EAN AD gs eas depen aekawbddaaceiena 30

KAISER ALUMINUM & CHEM. CORP. V. BONJORNO,

Be er ee cased kaa cdc cen deidacuscnsenwnnvaconesisinasa 13, 22, 23

KANSAS V. COLORADO, 583 U.S. 1 (2001) ................ccscesssvessers 27

LANDGRAF V. USI FILM PRODUCTS, 511 U.S. 244

CO icia tia dar ts tice atic ta tances ida dh ciated Ld an atccbny ecieeadpairaisstpailiinens passim

LEHMAN V. TROUT, 465 U.S. 1056 (1984)......... ce eee ness 3,4

LIBRARY OF CONGRESS V. SHAW, 478 U.S. 310 (1986)............ 4

EIND V. BRU Y Sil USS. Ba CIB) eiccccccciiecctenciscsssanscescees 12

LOEFFLER V. FRANK, 486 U.S. 549 (1988) ................cecceceeeeeeee 27

MARTIN V. HADI, 527 U.S. 348 (1990)...................2..0....0.0.00.... 12

McCCOWN V. CITY OF FONTANA, 550 F.3D 918 (9TH

I a oT 631 a 31

MCKESSON CORP. V. ISLAMIC REPUBLIC OF IRAN, 52

F.3D 346 (D.C. CIR. 1995), CERT. DENIED, 516 U.S.

EEE ERED SoRE AAR Cea SE TE 10

MILLS V. FREEMAN, 118 F.3D 727 (11TH CIR. 1997).....0........ 35

MINNESOTA SUPPLY Co. Vv. RAYMOND CORP., 472

Be ae EE ys MMII acu kis cecsincnvecnenancdacesicseensuateimacdcccecoaaas 31

MONESSEN SOUTHWESTERN RY. Co. V. MORGAN, 486

a ar a, 27

OLDHAM V. KOREAN AIR LINES Co., 127 F.3D 43

(D.C. CIR. 1997), CERT. DENIED, 523 U.S. 1005

TA ea are OEP pons ES at SNP Aa a ae ee 27

PENNSYLVANIA V. DELAWARE VALLEY CITIZENS'

COUNCIL FOR CLEAN AIR, 478 U.S. 546 (1986) woo... 33

PLYLER V. EVATT, 902 F.2D 273 (4TH CIR.1990).....0.. eee eee 35

PRUETT V. HARRIS COUNTY BAIL BOND BD., 499

Dry CR, BO von ivssSneincscvasapnvccaccsdecccsecercedosen Seta 31

QUINTANA V. JENNE, 414 F.3D 1306 (LITH CIR. 2005).......... 3

REPUBLIC NAT. BANK OF MIAMI V. UNITED STATES,

Ee ae aude cunienauentamatons 17, 18

RIVERS V. ROADWAY EXPRESS, INC., 511 U.S. 298

(MES EATER ODP eat to REESE ECA eA a ee >

STEWART V. GATES, 987 F.2D 1450 (9TH CIR. 1993)...............35

TEXAS TEACHERS ASS'N V. GARLAND INDEP. SCH.

er Sr . E UEED .. ., . .; cncosunnansasunsavbetouvecpenvcenocsnssaten OOM

TRAVENOL LABORATORIES, INC. V. UNITED STATES,

ea saa abeinintisinahicuunnabalian 13. 25

TROUT V. GARRET’, 780 F. SUPP. 1396 (D.D.C. 1991)......... ee

TROUT V. HIDALGO, 1981 WL 416 (1981) .............. eect cee cee 3

TROUT V. HIDALGO, 517 F. SUPP. 873 (D.D.C. 1981)................ 3

TROUT V. LEHMAN, 652 F’. SUPP. 144 (D.D.C. 1986) ................ 4

TROUT V. LEHMAN, 702 F.2D 1094 (D.C. CIR. 1988)............0008. 3

TROUT V. O'KEEFE, 144 F.R.D. 587 (D.D.C. 1992)......0...... 4,27

TROUT V. SECRETARY OF THE NAVY, 317 F.3D 286

EE a sc csanpbasecnacennherwannesienrs 8, 9, 10, 11

TURNER V. ORR, 785 F.2D 1498 (11TH CIR.), CERT.

ea A Pe Rit BOP © ntncesecosnsesonscenavnesoesssonsecsesvonvecses OO

UNIROYAL GOODRICH TIRE Co. v. MUTUAL

TRADING CORP., 63 F.3D 516 (7TH CIR. 1995)... 15

USTRAK V. FAIRMAN, 851 F.2D 983 (7TH CIR. 1988)..............31

WILLIAMS V. TRI-COUNTY GROWERS, INC., 747 F.2D

I es sib nvdaneurseveetnasvausbaaussueuusencess 30

STATUTES

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No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 2008

YVONNE G. TROUT, CLARA PERLINGIERO,

etal.,

Petitioners,

SECRETARY OF THE NAVY, et al.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Petitioners, sixty-seven prevailing plaintiffs,

respectfully petition for a Writ of Certiorar: to review

the judgment of the United States Court of Appeals for

the District of Columbia Circuit entered in this case on

September 2, 2008. App la-l4a.' Petitioners timely

filed a Petition for Rehearing and Suggestion for

'References to the Appendix to this Petition are the page number

followed by “a.”

Rehearing F'n Banc, which were denied on November

19, 2008. App 41a & 42a.

OPINIONS BELOW

The court of appeals opinion, affirming the trial

court’s judgment, is reported at 540 F.3d 442 (D.C. Cir.

2008). App la-l4a. The orders of the court of appeals

denying the Petition for Rehearing and Suggestion for

Rehearing /'n Banc are not reported. App 41la-42a.

The district court’s December 15, 2006, decision

denying Petitioners’ Motion for the Award of

Attorney’s Fees and Costs was published at 464

F.Supp.2d 25. App 15a. The district court’s July 22,

1998, Memorandum Opinion and Orders granting

plaintiff's motion for the award of interest on backpay

and attorney’s fees are not reported. App 35a-40a.

JURISDICTION

The judgment of the court of appeals was

entered on September 2, 2008. The court of appeals

denied the Petition for Rehearing and Suggestion for

Rehearing kn Banc on November 19, 2008. The

jurisdiction of this Court is invoked under 28 U.S.C.

Section 1254(1).

RELEVANT PROVISIONS INVOLVED

The first statute at issue is Section 114(2) of the

Civil Rights Act of 1991, which amended Section 717(d)

of the Equal Employment Opportunity Act of 1972,

read as follows:

‘?

The provisions of section 2000e-5(f) through (k)

of this title, as applicable, shall govern civil

actions brought hereunder, and the same

interest to compensate for delay in payment

Shall be available as in cases involving

nonpublic parties. (emphasis added.)

42 U.S.C. Section 2000e-16(d) (2002).

The second statute at issue is Section 113 of the

Civil Rights Act of 1991, 42 U.S.C. §2000e-5(k), which

states: “In any action or proceeding under this

subchapter the court, in its discretion, may allow the

prevailing party .. a reasonable attorney's fee

(including expert fees) as part of the costs....”

STATEMENT

1. Initial Proceedings

Petitioners prevailed on a _ one-count sex

discrimination lawsuit under Title VII based on an

undisputed disparity in salaries between similarly

situated men and women. U.S. District Judge Harold

H. Greene found class-wide liability. Trout v. Hidalgo,

517 F. Supp. 873, 878 (D.D.C. 1981). Judge Greene

ordered relief. T’rout v. Hidalgo, 1981 WL 416 (1981).

The court of appeals affirmed the finding of

class-wide liability. Trout v. Lehman, 702 F.2d 1094,

1106 (D.C. Cir. 1983). This Court granted the Navy’s

Petition for Certiorari and summarily vacated and

remanded for “findings of fact, based on new evidence if

necessary.” Lehman v. Trout, 465 U.S. 1056 (1984).

Justice Stevens, writing in dissent, prophetically

stated:

The Court's action today encourages the kind of

litigating strategy that gives the party with the

greater resources a_ significant advantage

unrelated to the merits of the case. The kind of

casual command to begin anew that is reflected

in today's order tends to undermine the ability of

trial judges to exercise firm control over the

progress of litigation.

Id. at 1061 (footnote omitted).

2. Proceedings Following Remand From

This Court

On remand, the district court again found the

avy liable for sex discrimination. Trout v. Lehman,

652 F. Supp. 144 (D.D.C. 1986). On November 27, 1991,

Judge Greene ordered the Navy to comply with the

relief awards to sixty-seven class members. T'rout v.

Garrett, 780 F. Supp. 1396 (D.D.C. 1991). The district

court ordered interim backpay of $670,402.75 through

April 30, 1979, to class members. /d. at 1412 n.30. It

also ruled that class members were entitled to

additional backpay from 1979 “through the present.”

Trout v. O'Keefe, 144 F.R.D. 587, 597 (D.D.C. 1992).

The Civil Rights Act of 1991 became law on

November 21, 1991, while 7’rowt was still pending on

the merits, days before the November 27, 1991 decision

discussed above. In response to Library of Congress v.

Shaw, 478 U.S. 310, 318 (1986), Congress enacted

Section 114(2) of the Act to compensate for delay in

payment, stating: “the same interest to compensate for

delay in payment shall be available as in cases involving

nonpublic parties.” See H.R. Rep No. 40. 102d Cong., 1"

Sess., pt. 1 at 87 (1991). It is undisputed that Section

114(2) provides the express waiver of sovereign

immunity that Shaw found lacking.

On January 22, 1993, the Navy agreed to provide

additional backpay through December 31, 1991. The

December 31, 1991 date was chosen because plaintiff's

expert witness calculated continuing, — statistically

Significant salary disparity based on gender from 1970

through December 31, 1991. R. 549.°

2. Proceedings Following Passage of the

1991 Act

On September 20, 1993, the parties reached a

tentative settlement of all claims by class members.

Joint Stipulation of Settlement. R. 553. The district

court held a "fairness hearing" and on November 22,

1993, approved settlement of backpay through

December 31, 1991. R. 569. Petitioners thus became

“prevailing parties” with the entry of the Consent

Decree.

This Court was considering two cases

interpreting the impact of the Civil Rights Act of 1991

on the date of the “fairness hearing.” Landgrafv. USI

Film Products, 511 U.S. 244 (1994); Rivers v. Roadway

Kapress, Inc., 511 U.S. 298 (1994). Therefore, the Joint

Stipulation of Settlement explicitly reserved the issue

““R” denotes the corresponding numbered entry in the district

court's docket.

of whether class members would be entitled to

prejudgment interest on backpay and interest on

attorney’s fees. R. 553.

The Navy did not determine its position on the

availability of costs and interest on backpay and

interest on attorney’s fees until after this Court decided

Landgraf. After Landgraf, the Navy filed a Notice to

the Court that said: “Section 114's provision of interest

on backpay and attorney’s fees against the United

States is not retroactive. Interest on the full amount of

both backpay and attorney’s fees begins to run as of

the effective date of the Act, November 21, 1991.”

Navy’s Notice to the Court, R. 586 (emphasis added).

There is no dispute that Section 114 of the Civil Rights

Act of 1991 applies to the Trout litigation after

November 21, 1991 and that Trout class members are

entitled to at least some pre-judgment interest on

backpay.*

On May 10, 1995, Judge Greene approved

stipulations to pay prejudgment interest on Petitioners’

backpay and attorney’s fees after November 21, 1991.

R. 597; R. 598. Those stipulations expressly stated that

they did not resolve Petitioners’ outstanding claims for

interest prior to November 21, 1991, as contemplated

by the Consent Decree. R. 597; R. 598. Judge Greene

then stayed a ruling on the pre-November 21, 1991]

interest issue pending a decision in Brown v. Secretary

The Navy acknowledged that Section 1138 of the 1991 Act, which

governs compensation of expert witnesses, applied to the 7rout

litigation for services rendered prior te November 21, 1991.

Notice to the Court, R. 5&6.

of Army, 78 F.8d 645, reh’g denied, 86 F.3d 225 (D.C.

Cir.), cert. denied, 519 U.S. 1040 (1996). R. 599.

On July 22, 1998 and August 12, 1998, the district

court ordered defendants to pay prejudgment interest

on backpay and attorney’s fees prior to November 21,

1991. App 35a-40a. Judge Greene observed that the

equities supported an interest award due to delays

caused by the Navy’s litigation strategy. Judge Greene

stated: “On November 22, 1993, the court approved a

stipulation of settlement in this protracted Title VII

litigation. It took twenty years to reach the point of

settlement because the defendant insisted on opposing,

appealing and moving to re-open already-litigated

issues at every turn.” App 35a.

Distinguishing the outcome in Brown, Judge

Greene wrote:

Limited to its facts, the rule of Brown applies

only to cases in which the merits of the

underlying action were completed prior to

November 21, 1991. Because the instant case

was very much alive and being actively litigated

on that date, Brown is not dispositive and

plaintiffs are entitled to prejudgment interest on

attorney fees.

App 36a-37a (footnote omitted). Judge Greene also

observed: “This case is the classic paradigm where

prejudgment interest is appropriate; a Jarndyceian case

that has taken on a life of its own and, more

importantly, been a constant presence in the lives of the

plaintiffs and on the decket of this Court.” App 38a

(footnote omitted).

Judge Greene died prior to entering final

judgment and the case was transferred to U.S. District

Judge Paul L. Friedman who ordered prejudgment

interest calculated at the prime rate. R. 659. Judge

Friedman entered final judgment on July 17, 2001,

awarding $8,627,276.50 in interest on backpay and

$1,477,020.90 in interest on attorney’s fees. R. 666.

3. The Court of Appeals 2003 Decision and

the Petition for Certiorari

The court of appeals relied heavily on Brown in

reversing the district court and in interpreting the

express Congressional waiver of sovereign immunity in

Section 114(2), although the facts and issues in Brown

were different from those in Trout.* Trout v. Secretary

of the Navy, 317 F.3d 286 (D.C. Cir. 2003).

The court of appeals applied a “completed”

conduct test to the acts of discrimination rather looking

to the date of entry of the judgment which finalized

payment of long-delayed backpay awards. 317 F.3d at

290-292. It held: “It is of no relevance whether the

liability phase or the merits phase of the litigation was

pending when Section 114(2) became effective.” 317

F.8d at 292. The court of appeals concluded “the

conduct underlying the complaint, rather than the

‘The Brown panel observed that "litigation on the merits of

s3rown's claim was completed and the attorney's fee incurred

before the statute became effective." 78 F.3d at 654 (emphasis

added). Brown’s final judgment by the district court was entered

in 1989 and was affirmed on the merits in 1990. Brown then sought

retroactive application of Section 114(2); no statutory right to

prejudgment interest existed when judgment was entered in his

favor. Id. at 617.

procedural posture of the litigation, has significance in

this context.” 317 F.3d at 291-292.

After denial of a Motion for Rehearing and a

Suggestion for Rehearing en Banc, the Trout class filed

a Petition for Writ of Certiorari with this Court. The

Court denied the petition on November 3, 2003. 540

U.S. 981.

This Court decided Austria v. Altmann, 541 U.S.

677 (2004), on June 7, 2004. The 7'rout class then filed a

Petition for Rehearing accompanied by a motion for

leave to file the petition out of time. In the motion,

Petitioners said they had not timely filed a petition for

rehearing inasmuch as grounds for such petition did not

exist before Altmann was decided.

By letter dated November 1, 2004, this Court

denied the “motion of petitioner for leave to file a

petition for rehearing.” App 43a. This Court never

denied the petition for rehearing itself and thus did not

address the argument made by Petitioners that

Altmann provided the rule of decision.

2. The Proceedings on Remand

On remand, the Trout class filed a Motion to

Dismiss Defendant’s Claim for Recoupment and for a

Stay of Proceedings. R. 676. The Trout class argued

that the Court is not precluded from awarding pre-

November 21, 1991 interest under the “law of the case”

doctrine or the “mandate rule” because the Court’s

decision in Austria v. Altmann constitutes an

intervening change in the controlling law.” The Navy

sought a refund of funds paid to class counsel to litigate

the issue of pre-November 21, 1991 interest and funds

paid to an expert retained by Petitioners’ counsel at the

direction of the district court to calculate the amount of

interest due. R 673 (“Motion for Final Determination

of Attorneys' Fees and Costs Owed to the Plaintiff’).

The district court ruled that Altmann did not

constitute “an intervening change in controlling law

that affects the court of appeals’ reversal.” Trout v.

Winter, 464 F. Supp.2d 25, 33 (D.D.C. 2006). App 31a.

The district court construed the language in the court

of appeals remand to the district court for “final

determination of the costs and fees owed to the Trout

class,” 317 F.3d at 293, (emphasis added), as authorizing

the district court to deny fees to the plaintiff class and

to require the class and their counse] to refund costs

and fees previously paid by the federal government

from the Judgment Fund for litigating the pre-

November 21, 1991 prejudgment interest issue. App

28a.

Stating it was relying on Hensley v. Eckerhart,

461 U.S. 424 (1988), and two decisions from the D.C.

Circuit, the district court held that the Trout class was

not entitled to recover fees for litigating the

prejudgment interest issue because the prejudgment

interest issue was a claim distinct from the underlying

Title VII litigation. App 22a-24a. The district court

*Where there is an intervening Supreme Court decision changing

the law, the law of the case doctrine does not apply. McKesson

Corp. v. Islamic Republic of Tran, 52 F.3d 346, 350 (D.C. Cir.

1995), cert. denied, 516 U.S. 1045 (1996) (citation omitted).

expressly ruled that the Petitioners’ request for pre-

November 21, 1991 pre-judgment interest was “distinct

from their successful Title VII litigation,” App 27a,

thus, in effect, finding that Petitioners lost their status

as “prevailing parties” on the prejudgment interest

issue of their one issue lawsuit. The district court

indicated it lacked discretion to award any attorney’s

fees litigating pre-November 21, 1991 prejudgment

interest. The district court ordered Petitioners and

their counsel to refund payments previously made for

attorney's fees, plus interest. App 32a-38a. The

district court also required Petitioners to return to the

federal government payments previously made to

Petitioners’ expert, who was retained at the direction

of the court. App 28a-29a.

6. The Court of Appeals Decision in 2008

The court of appeals rejected Petitioners’

argument that Altmann constituted an “intervening

change in law” and ruled Altmann was “inapposite.”

App 2a. The court of appeals stated: “We find nothing

in Altmann that alters the rule under Landgraf.

Altmann expresses no disagreement with the decision

in Landgraf.” App 9a. Since it determined that the

Court's decision in A/tmann was “specific to the statute

in that case,” the court of appeals concluded: “Altmann

has no effect upon the holding in Landgraf and

consequently this Court's decision in T'rout TV [Trout v.

Secretary of the Navy, 317 F.3d 286 (D.C. Cir. 2003)]

stands.” App 9a-10a.

The court of appeals affirmed the district court’s

ruling that under Hensley, the plaintiff class could not

be paid attorney’s fees or costs for litigating the pre-

November 21, 1991 prejudgment interest issue, even if

reviewed de novo. App 13a. Said the court of appeals:

“because the interest issue is distinct from the issue of

sex discrimination, we affirm the district court’s

rulings.” App 2a (emphasis added). In doing so, the

court of appeals found interest was a distinct issue

within the single cause of action brought by the plaintiff

class. The court of appeals held the interest “issue”

was not “inextricably intertwined” with the sex

discrimination issue because “it was not necessary to

obtain or protect any relief awarded, nor was it

necessary to preserve the integrity of the Consent

Decree as a whole.” App 13a (emphasis added).

Petitioners timely filed a Petition for Rehearing

and Suggestion for Rehearing En Banc, which were

denied by the court of appeals on November 19, 2008.

App 41la-42a.

REASONS FOR GRANTING THE PETITION

During the intervening period of almost fifteen

years since Landgraf, the Court has addressed on

numerous occasions the impact of a change in the law

on actions that occurred prior to the passage of the new

law and, in particular, whether the new law is

retroactive and whether the statutory change applies

to cases already pending in the court. F.g., Hughes

Aircraft Co. v. United States, 520 U.S. 939 (1997)

(Amendments to False Claims Act did not apply

retroactively); Lindh v. Murphy, 521 U.S. 320, 326

(1997); Martin v. Hadix, 527 U.S. 348 (1999); INS v. St.

Cyr, 5383 U.S. 289 (2001); Austria v. Altmann, 541 U.S.

677 (2004). As Justice Scalia observed: “It will remain

difficult in many cases, to decide whether the

presumption fof nonretroactivity] has been overcome

by text and indeed to decide whether a particular

application is retroactive.” Kaiser Aluminum & Chem.

Corp. v. Bonjorno, 494 U.S. 827, 858 (1990) (footnote

omitted) (Scalia, J. concurring).

This Petition raises important questions as to

whether a change in statutory law applies to a specific

set of circumstances or to a case pending in the federal

courts and what is the “relevant retroactivity event”

for determining whether the new law applies. This

Court’s decisions in Landgraf and Kaiser Aluminum,

494 U.S. at 839, as interpreted by Travenol

Laboratories, Inc. v. United States, 118 F.3d 749, 751,

753, reh'g denied (Fed. Cir. 1997), hold that where the

event triggering the application of the amended statute

occurs after the passage of the amendment, the

application of the statute is not “retroactive.” Here, the

triggering or “relevant retroactivity event” was the

assertion of the sovereign immunity defense to the

payment of pre-November, 1991, prejudgment interest

after the entry of final judgment which occurred two

years after the effective date of Section 114(2). The

court of appeals misconstrued the distinction between

the “retroactive” application of a statute and the

“prospective” application of that statute. The lower

court’s decision cannot be reconciled with this Court’s

holdings in Landgraf, Kaiser Aluminum, and Altmann

which require the “prospective” application of Section

114(2).

The Court should grant review because of the

importance of the issue and because of the need to

provide additional guidance to courts of appeal as to

when the default rule in Landgraf does not apply.

Petitioners urge the Court to rule that under Altmann

the “default rule” in Landgraf does not apply to

defenses of sovereign immunity, whether asserted by

foreign governments under the Foreign Sovereign

Immunities Act, 28 U.S.C. §§1602 et seq. (““FSIA”), or

by the United States because the “relevant

retroactivity event” was the assertion of the sovereign

immunity defense to the payment of pre-November 21,

1991, prejudgment interest after the entry of final

judgment which occurred two years after the effective

date of Section 114(2). Since the application of Section

114(2) to this case is not “retroactive,” the district court

possessed the discretion to award pre-November 21,

1991 prejudgment interest for delay in payment of

backpay and attorney’s fees.

The Court should grant review to the second

question because i! is important to clarify that under

Hensley, district courts have discretion to award

attorneys’ fees for work performed on _ successive

phases of a single cause of action, particularly when

excellent results were obtained in the overall claim.

The issue is important because many statutes

allow for awards of reasonable attorney’s fees to

prevailing plaintiffs, and virtually all lower courts look

to Hensley for instruction in how to make those awards.

According to the Westlaw Keycite database, as of

January 50, 2009, 9,485 cases cited Hensley.

As we show below, all of the circuits squarely

addressing the meaning of “claim,” as used in Hensley,

have decided cases concluding that the term “claim” is

synonymous with “cause of action.” The Court should

grant Certiorari to correct the D.C. Circuit’s error in

treating separate issues within a single cause of action

as separate “claims” and to resolve the split in the

circuits whether the word “claim,” as used in Hensley,

is correctly defined as “cause of action.”

The Court should also grant review to the

question of whether “claim” means “cause of action” to

provide guidance on the troubling public policy and

ethical concerns created by the court of appeals

decision here that class counsel representing the

prevailing plaintiff class could not be compensated for

services they were ethically obligated to provide after

the entry of the Consent Decree. After Landsgraf and

the D.C. Circuit’s decision in Brown, 78 F.3d 645, the

Trout class counsel were under a clear ethical

obligation to litigate the pre-November 21, 1991

interest issue. Class counsel would have breached their

duty of diligent representation owed to the class had

they failed to litigate the interest issue when the

language of Brown appeared to allow civil rights

litigants whose claims that were pending “on the

merits” when the 1991 Act became law to recover pre-

November 21, 1991 prejudgment interest. See 36a-37a.

Both Judge Greene and Judge Friedman read Brown to

permit interest to the Trout class. Once two district

court judges ruled in Petitioners’ favor, class counsel

had an even more compelling obligation to defend the

interest award on appeal.®

‘Other courts would find these services compensable. See, e.g.,

Plyler v. Evatt, 902 F.2d 278, 281 (4th Cir. 1990); Uniroyal

Goodrich Tire Co. v. Mutual Trading Corp., 63 F.3d 516, 526 (7*

Cir. 1995); Jaffee v. Redmond, 142 F.3d 409, 412, 414, 416-418 (7

Cir. 1998).

Allowing the court of appeals decision to stand

runs the risk of discouraging counsel from providing

diligent post-judgment representation to prevailing

parties in class actions and thus defeating the

Congressional intent in allowing statutory fees. As

Justice Brennan observed in his concurrence in

Hensley: “All of these civil rights laws depend heavily

upon private enforcement, and fee awards have proved

an essential remedy if private citizens are to have a

meaningfui opportunity to vindicate the important

Congressional policies which these laws contain.” 461

USS. at 445. |

I. CERTIORARI SHOULD BE GRANTED

BECAUSE THE DECISION BELOW IS

CONTRARY TO AUSTRIA V.

ALTMANN.

In Altmann, the Court analyzed how to

determine whether a waiver of sovereign immunity is

“retroactive” under FSIA. The Court’s decision in

Altmann holds that the “default rule” against

retroactivity announced in Landgraf, does not apply to

statutory waivers of sovereign immunity under the

FSIA. The Court noted that its “approach to

retroactivity in this case thus parallels that advocated

by Justice Sealia in his concurrence in Landgraf” in

which Justice Scalia stated that the “relevant

retroactivity event” for determining whether the

application of a waiver of sovereign immunity is

retroactive or retrospective is not determined by the

dates of the conduct at issue. Altmann, 541 U.S. at 696,

n. 17. Thus, the Government of Austria could be held

liable in United States courts for past wrongful actions,

even though the government of Austria and its

predecessors were absolutely immune to suit in federal

court at the time of the wrongful conduct, because the

“relevant retroactivity event” was the assertion of the

defense of sovereign immunity that occurred after the

passage of the FSIA.

In Landgraf, the Court focused on the apparent

tension between two seemingly contradictory canons

for interpreting statutes that do not specify their

temporal reach: the rule that a court must apply the

law in effect at the time it renders its decision, see

Bradley v. School Bd. of Richmond, 416 U.S. 696, 711

(1974), and the axiom that statutory retroactivity is not

favored, see Bowen v. Georgetown Univ. Hospital, 488

U.S. 204, 208 (1988). Landgraf, 511 U.S. at 261, 264-265.

In Landgraf, the Supreme Court observed:

[a] statute does not operate ‘retrospectively’

merely because it is applied in a case arising

from conduct antedating the statute's

enactment, see Republic Nat. Bank of Miami v.

United States, 506 U.S. 80, 100 (1992) (Thomas,

J.. coneurring in part and concurring in

judgment), or upsets expectations based in prior

law.

Id. at 269 (footnote and parallel citation omitted).

The Court instructed:

Rather, the court must ask whether the new

provision attaches new legal consequences to

events completed before its enactment. The

conclusion that a particular rule operates

‘retroactively’ comes at the end of a process of

judgment concerning the nature and extent of

the change in the law and the degree of

connection between the operation of the new

rule and a relevant past event.

Id. at 269-70 (footnote and parallel citation omitted)

(emphasis added).

In construing the waiver of sovereign immunity

in the FSIA to apply to pre-act conduct, the Court in

Altmann adopted the approach set forth by Justice

Scalia in his concurrence in Landgraf:

The critical issue, I think, is not whether the

rule affects ‘vested rights,’ or governs

substance or procedure, but rather what is

the relevant activity that the rule regulates.

Absent clear statement otherwise, only such

relevant activity which occurs after the effective

date of the statute is covered. Most statutes are

meant to regulate primary conduct, and hence

will not be applied in trials involving conduct

that oecurred before their effective date. But

other statutes have a different purpose and

therefore a different relevant retroactivity

event.

Altmann, 541 U.S. at 697, n.17, quoting Landgraf, 511

U.S. at 291 (opinion concurring in judgment) (emphasis

added),

In Altmann, the Court held: “Immunity ‘claims'’-

-not actions protected by immunity, but assertions of

immunity to suits arising from those actions--are the

relevant conduct regulated by the Act and are

‘henceforth’ to be decided by the courts.” 4541 U.S. at

697 (footnote omitted). The Court concluded that

Congress intended courts “to resolve all such claims ‘in

conformity with [FSIA principles] regardless of when

the underlying conduct occurred,” so long as the

sovereign immunity defense was asserted after the

Act’s passage. [d. at 697-698 (footnote omitted). The

Court stated: “whether an entity qualifies as an

‘instrumentality’ of a ‘foreign state’ for purposes of the

FSIA's grant of immunity depends on the relationship

between the entity and the state at the time suit is

brought rather than when the conduct occurred.” /d. at

698 (citation omitted).

The Court further stated that [U]nder Landgraf,

it is appropriate to ask whether |FSIAJ affects

substantive rights (and thus would be impermissibly

retroactive if applied to preenactment conduct) or

addresses only matters of procedure (and thus may be

applied to all pending cases regardless of when the

underlying conduct occurred)." Jd., at 694 (emphasis

supphed). The Court relied on Landgraf for the

proposition that intervening statutes that merely

confer or oust jurisdiction are not subject to the

presumption against retroactivity. /d. at 693.

In his concurring opinion in Altmann, Justice

Scalia noted the Court’s ‘consistent practice of giving

immediate effect to statutes that alter a court's

jurisdiction.’ Jd. at 703, discussing his concurrence in

Landgraf, 511 U.S. at 292.

“(T]he purpose of provisions conferring or

eliminating jurisdiction is to permit or forbid the

exercise of judicial power,’ rather than to

regulate primary conduct, so that the relevant

time for purposes of retroactivity analysis is not

when the underlying conduct occurred, but when

judicial power was invoked. Jd. at 293. Thus,

application of a new jurisdictional statute to

eases filed after its enactment is_ not

“retroactive” even if the conduct sued upon

predates the statute.

Id. citing Landgraf, at 292-293.

Justice Scalia stated he noted that “this rule

applies even when the effect of a jurisdiction-restricting

statute in a particular case is to ‘deny a litigant a forum

for his claim entirely, or [to] leave him with an alternate

forum that will deny relief for some collateral reason.’"

Id., 541 US. at 703 citing Landgraf, at 292-293

(emphasis in original). As Justice Scalia further

observed: “The logical corollary of this last statement is

that a jurisdiction-expanding statute should be applied

to subsequent cases even if it sometimes has the effect

of creating a forum where none existed.” 541 U.S. at

703. (emphasis in original). Thus, the waiver of

sovereign immunity in the FSIA is not subject to the

usual presumption against retroactivity.

The court of appeals below held that Altmann

was specific to the FSIA and rejected Petitioners’

argument that it should analyze the waiver of sovereign

immunity in Section 114(2) of the Civil Rights Act in

the same manner as waivers of sovereign immunity

under FSIA. App 6a-10a. In reaching this conclusion,

the court cf appeals relied on language in a footnote in

Fernandez-Vargas v. Gonzales, 548 U.S. 30, 38 n.6

(2006). App Q9a-10a. Fernandez-Vargas addressed

whether a provision to reinstate removal orders against

aliens illegally reentering this country applied to aliens

who reentered the United States before the effective

date of the liberalizing terms of the Illegal Immigration

Reform and Immigrant Responsibility Act. The case

had absolutely nothing to do with sovereign immunity

of any kind. In Fernandez-Vargas footnote 6, the Court

rejected the government’s argument that a Landgraf

analysis could be avoided pursuant to Altmann, saying

that the Court’s conclusion in Altmann “turned on the

peculiarities of the [FSIA].” 548 U.S. at 38 n.6. The

court of appeals below found that since “those

peculiarities are absent”’ in Fernandez-Vargas, they

must also be absent here. App 10a.

The lower court erred, however, in holding that

held that the Altmann “peculiarities” are missing in the

Trout litigation because there is no logical reason not to

use the date of the assertion of a claim of sovereign

immunity for determining whether the application of a

statute is retroactive or prospective. Just as

Altmann’s reading of the FSIA imposed liability on

Austria in litigation when the defendant asserted

defense of sovereign immunity after the passage of the

FSIA, so also does Section 114(2) impose liability on the

federal government for pre-November 21, 1991

prejudgment interest, pursuant to the statute’s

undisputed waiver of sovereign immunity, when the

‘relevant retroactivity event,” the assertion of

sovereign immunity occurred after the passage of the

Act.’

‘The U.S. Court of Appeals for the Sixth Cireuit, Combs v.

Commissioner of Social Security, 459 F.3d 640, 645 (6 Cir. 2006)

In waiving the sovereign immunity of the federal

government to the payment of prejudgment interest

contained in Section 114(2) of the 1991 Act, Congress

surely knew that prejudgment interest to compensate

for the “delay in payment” could not be measured prior

to the entry of final judgment in November, 1993. The

words “take effect upon enactment” found in Section

402(a) of the Act mean that Section 114(2) applies to all

judgments entered after the effective date of the Act

because judgment is the point at which "expectations

with respect to interest liability were fixed." Kaiser

Aluminum, 494 U.S. at 839. The “same interest”

provision of Section 114(2) logically can apply only to

cases in which judgment on the merits is entered after

enactment, because where there is no judgment, there

can be no prejudgment interest.

The Navy did not assert its defense of sovereign

immunity to payment of prejudgment interest until the

entry of judgment on November 22, 1993. The Navy

could not have asserted the defense of sovereign

immunity against the payment of prejudgment interest

before the entry of judgment on that date because

prejudgment interest cannot begin to run against the

United States [or against any party] until judgment is

entered.

Under the principles articulated in Austria v.

Altmann, the “relevant retroactivity event” for the

purposes of determining whether the waiver of

(en banc), expressly held that the principles articulated in

Altmann apply outside the “unique context” of FSIA and relied on

Altmann in interpreting a change in the regulations under the

Social Security Act.

sovereign immunity is retroactive depends on the

timing of the assertion of the defense of sovereign

immunity. Where the United States asserts sovereign

immunity after the passage of the Act waiving that

sovereign immunity, the application of the waiver of

sovereign immunity is not retroactive.

The November 22, 1993 judgment is the final

reckoning which determines whether there is liability

and defines the only basis upon which interest can be

determined due. Kaiser Aluminum, 494 U.S. at 839.

The underlying unlawful discriminatory conduct cannot

be the wrongful conduct at issue here; rather the act

the “relevant retroactivity event” for the assertion of

the defense of sovereign immunity is the entry of

judgment. See Landgraaf, 511 U.S. at 293 (for

jurisdiction cases the “relevant event for retroactivity

purposes is the moment at which that power is sought

to be exercised.) (Scalia, J. concurring).

The lower court should have followed the

Court’s analysis in Altmann and applied the waiver of

sovereign immunity in Section 114(2) of the Act to allow

prejudgment interest on the backpay and attorney’s fee

awards included in the final judgment entered on

Nevember 22, 1993, two full years after the effective

date of the Act. The waiver of sovereign immunity

found in Section 114(2) of the Act applies to waivers of

sovereign immunity to the payment of prejudgment

interest asserted by the United States after the date of

passage of the Act. Since the “relevant retroactivity

event” regulated by Section 114(2) of the Act is the

assertion of sovereign immunity, the application of

Section 114(2) of the Act waiving sovereign immunity

of the United States to the November, 1993 judgment

is not impermissibly retroactive. Under the rule of

decision announced in Altmann, the application of the

Civil Rights Act of 1991 to pre-statute actions did not

violate the presumption against retroactive legislation

where the government first asserts sovereign

immunity after the passage of the Act. 541 T).S. ai 692-

700.

The outcome in Landgraf does not argue against

looking to Altmann as authority for analyzing the

“relevant retroactivity event” that determines the

application of Section 114(2). The Landgraf majority

heid that “there is no special reason to think that all the

diverse provisions of the [Civil Rights Act of 1991]

must be treated uniformly for such purposes [of

retroactive application)’). 534 U.S. at 280. The

Altmann Court’s adoption of Justice Sealia’s analysis of

how to determine whether a waiver of sovereign

immunity is retroactive is fully consistent with

Landgraf.

The Navy has no reliance interests at stake.

Gender discrimination against federal employees, like

the expropriation at issue in Altmann, had always been

unlawful, at least since the passage of the Equal

Employment Opportunity Act of 1972, 42 U.S.C.

§$2000e-16(a). The Navy can make no claim that the

agency relied on the defense of sovereign immunity

against paying prejudgment interest in making its

unlawful employment decisions and in delaying this

litigation for more than two decades.

There is no bona fide sovereign immunity issue

raised here because where the “relevant retroactivity

event” requiring the payment of interest occurred after

the date of enactment, payment of interest does not

offend sovereign immunity. Travenol Laboratories, 118

F.3d at 753, (the payment of interest by the federal

government on pre-act customs duties was a

“prospective” application of the law. See Block v. Neal,

460 U.S. 289, 298 (1982) (“The exemption of the

sovereign from suit involves hardship enough where

consent has been withheld. We are not to add to its

rigor by refinement of construction where consent has

been announced.”) (citations omitted).

Petitioners respectfully contend there is no

principled basis in the law for distinguishing between

the “relevant retroactivity event” used to determine

whether waivers of sovereign immunity by foreign

states are retroactive and the “relevant retroactivity

event” used to determine whether waiver of sovereign

immunity for the federal government is retroactive.

Altmann’s interpretation of Landsgraf should be

applicable to all waivers of sovereign immunity,

regardless of whether it is the sovereign immunity of

the United States or of a foreign nation that is at issue,

as the Court should look to the date of the assertion for

sovereign immunity to determine whether the waiver

of sovereign immunity is retroactive.

Under the Supreme Court’s holding in Austria v.

Altmann, the lower court erred in ruling that the

waiver of sovereign immunity in Section 114(2) did not

apply to judgments entered after the passage of the

Act, because this application of Section 114(2) of the

1991 Act is not retroactive under Altmann, 541 U.S. at

696-697 (“Immunity ‘claims’--not actions protected by

immunity, but assertions of immunity to suits arising

from those actions--are the relevant conduct regulated

by the [FSIA]”).

The Court should grant the Petition to consider

whether the Altmann rule of decision applies to this

case and whether the waiver of sovereign immunity

applies to the judgment entered in this case more than

two years after the passage of Section 114 of the Act.

The Court should grant the petition, apply Altmann to

analyze the waiver of the Navy’s sovereign immunity in

Section 114(2), and reverse the lower court’s decision.

Il. CERTIORARI SHOULD BE GRANTED

BECAUSE THE DECISION BELOW IS

INCONSISTENT WITH HENSLEY AND

THE DECISIONS OF THE CIRCUITS

WHICH HOLD THAT “CLAIM” MEANS

“CAUSE OF ACTION.”

The Court should grant Certiorari because the

decision below is contrary to Hensley and the decisions

from eleven other courts of appeal interpreting the

term “claim” as meaning “cause of action.” The court of

appeals here misread Hensley when it ruled that the

interest issue was a separate "claim" from the backpay

on which the interest was based.

In the instant case, Petitioners sought relief

solely for discrimination under Title VII, and they

prevailed on their single cause of action when the

Consent Decree provided for payment of all of the

backpay Petitioners’ expert said was due. It is

undisputed that the Petitioners were “prevailing

parties” in the underlying Title VII litigation. App.

10a.

Relief in the form of prejudgment interest is

not a separate cause of action. Prejudgment interest is

an integral part of the relief used to make a winning

plaintiff whole. Kansas v. Colorado, 533 U.S. 1, 10-11

(2001) (a monetary award does “not fully compensate

for an injury unless it includes an interest component”)

(citations omitted); Monessen Southwestern Ry. Co. v.

Morgan, 486 U.S. 330, 335 (1988) (“Prejudgment

interest is normally designed to make the plaintiff

whole and is part of the actual damages sought to be

recovered.”) (citations omitted). City of Milwaukee v.

Cement Div. Nat’l Gypsum, 515 U.S. 189, 195 (1998);

Loeffler v. Frank, 486 U.S. 549, 557-558 (1988)

(complete relief requires payment of interest). The

purpose of an award of interest is to compensate the

prevailing plaintiff for delay in payment resulting from

litigation. Oldham v. Korean Air Lines Co., 127 F.3d

43, 54 (D.C. Cir. 1997), cert. denied, 523 U.S. 1005 (1998)

(prejudgment interest to be paid as an ordinary part of

any award in a civil rights case); Cf Trout v. O'Keefe,

144 F_.R.D. at 597 (condemning the Navy’s “overzealous

litigation strategy” as causing delays which forced the

prevailing plaintiffs to wait for more than twenty years

for backpay awards arising as early as June, 1970).

In announcing how a statutory attorney's fee

award for a “prevailing party” should be computed

under federal civil rights statutes, the Court

distinguishes between "claims" (or defenses), on the one

hand, and "contentions" or "grounds" or “issues,” on the

other. See Hensley, 461 U.S. at 435. This is a

distinction of determinative importance in the instant

case. As this Court explained:

In some cases a plaintiff may present in one

lawsuit distinctly different claims for relief that

are based on different facts and legal theories.

In such a suit, even where the claims are

brought against the same defendants--often an

institution and its officers, as in this case--

counsel's work on one claim will be unrelated to

his work on another claim.... The congressional

intent to limit awards to prevailing parties

requires that these unrelated claims be treated

as if they had been raised in separate lawsuits,

and therefore no fee may be awarded for

services on the unsuccessful claim.

Id., at 434-435. (emphasis added).

This Court opined that cases involving unrelated

claims “are unlikely to arise with great frequency” in

part because “[mJany civil rights cases will present only

a single claim.” Id. at 435. (emphasis added). It said

even when separate claims are brought, “[mJuch of

counsel's time will be devoted generally to the litigation

as a whole, making it difficult to divide the hours

expended on a claim-by-claim basis. Such a lawsuit

cannot be viewed as a series of discrete claims.” /d.

The Court said when a plaintiff has obtained excellent

results in the litigation, “the fee award should not be

reduced simply because the plaintiff failed to prevail on

every contention raised in the lawsuit.” /d. (citation

omitted) (emphasis added). The Hensley Court also

said: “Litigants in good faith may raise alternative legal

grounds for a desired outcome, and the court's rejection

of or failure to reach certain grounds is not a sufficient

reason for reducing a fee. The result is what matters.”

Id. (footnote omitted) (emphasis added).

This Court distinguished between “issues” and

“claims” in a footnote:

We agree with the District Court's rejection of

“a mathematical approach comnaring the total

number of isswes in the case with those actually

prevailed upon.” Such a ratio provides little aid

in determining what is a reasonable fee in light

of all the relevant factors.

Id. at 435 n.11 (citation omitted) (emphasis added). In

short, attorney's fees generally may be awarded to a

prevailing plaintiff on a per "claim" basis, unless several

claims are so interrelated that they are better

evaluated for purposes of attorney time as one large

claim. The litigation is not sorted more finely into

"issues" or "contentions" or "grounds" for fee-award

purposes.

This Court, “recognizfing] that there is no

certain method of determining when claims are ‘related’

or ‘unrelated,’ 461 U.S. at 486 n.12, held that attorneys’

fees should not be awarded for an unsuccessful claim

only when that claim is “distinct in all respects from

[the plaintiff's] successful claims.” Jd. at 440 (emphasis

added). See Texas Teachers Ass'n v. Garland Indep.

Sch. Dist., 489 U.S. 782, 789 (1989) (“If claims are

peripheral to the primary claim or do not share a

common nucleus, the court is to treat those claims as if

they were raised in separate lawsuits.”).

The lower court treated the request for pre-

November 21, 1991 prejudgment interest as a separate

claim, not as an integral part of the Title VII cause of

action itself.* This is contrary to the case law discussed

above holding prejudgment interest an integral part of

“make-whole’” relief.

Instructive is the approach taken by the Firs®

Circuit which squarely addressed the meaning of the

word “claim” as used in Hensley in Coutin v. Young &

Rubicam Puerto Rico, Inc., 124 F.3d 331 (1* Cir. 1997).

The Coutin court held:

In the fee-shifting context, a “claim” is an

allegation of a legal injury comprised of various

elements and equivalent to a cause of action,

whereas “damages” are the compensation

awarded to the plaintiff who has suffered a legal

wrong and who therefore has a valid claim

against the defendant.

Id. at 340. The Court ruled that “punitive damages and

loss of income (no matter how they are denominated in

the complaint) are not failed claims, but are categories

of relief.” /d. (refusing to reduce fees even though

plaintiff did not obtain punitive damages or backpay).

Other courts of appeal have reached the same

conclusion defining or noting that “claim” means “cause

of action” and distinguishing between “cause of action”

and categories or types of relief. Green v. Torres, 361

F.3d 96, 98 (2™ Cir. 2004); Williams v. Tri-County

Growers, Inc., 747 F.2d 121, 187-1388 (3 Cir. 1984);

Johnson v. Hugo’s Skateway, 949 F.2d 1388, 1852 (4th

Cir. 1991); Pruett v. Harris County Bail Bond Bd., 499

*The panel decided that the standard of review did not matter.

App. 13a.

F.3d 4038, 418 (5th Cir. 2007); Jmwalle v. Reliance

Medical Products, Inc. 515 F.3d 531, 554 (6 Cir. 2008);

Ustrak v. Fairman, 851 F.2d 983, 986, 988 (7 Cir.

1988); Minnesota Supply Co. v. Raymond Corp., 472

I’.3d 524, 529, 531, 545 (8"" Cir. 2006); McCown v. City of

Fontana, 550 F.3d 918, 921, 923-925 (9'" Cir. 2008);

Browder v. City of Moab, 427 F.3d 717, 718-19, 722 (10"

Cir. 2005); Quintana v. Jenne, 414 F.3d 1306, 13812 (11""

Cir. 2005); Andrews v. United States, 122 F.3d 1367,

1375-1376 (11' Cir. 1997).

Had the D.C. Circuit used the same meaning of

“claim” as the other eleven circuits used, that court

would have reached the conclusion that under Hensley

the prejudgment interest issue was not a separate

“claim.” The panel erred in finding the interest

request “distinct in all respects” from the backpay relief

awarded under Title VII. App. 18a. This is error

because the request for further relief on the backpay

awarded under Title VII is not a separate “claim” or

“cause of action” under Hensley. By definition, interest

cannot be separate in all respects from the backpay on

which the award of interest is based.

Here, there is no cause of action for interest that

could be raised in a separate lawsuit because there can

be no demand for interest that is separate and

independent from the claim seeking backpay. The

lower court misapprehended the facts and the law when

it treated the prejudgment interest issue as a separate

“claim,” distinct from the gender discrimination in

promotion claim and when it held that the litigation was

not necessary to “obtain or protect any relief awarded.”

App. 18a.

‘oe

Hensley teaches that the prejudgment interest

litigation here cannot be the “distinctly different claims

for relief that are based on different facts and legal

theories,” 461 U.S. at 434, from the rest of the Title VII

litigation and which must be “treated as if they had

been raised in separate lawsuits.” Since the Trout

class could not have requested interest in a separate

lawsuit and could not have been awarded interest in the

absence of an award of backpay, their claim for interest

is interrelated with the merics of the case.

The Court should grant the Petition for

Certiorari because the lower court’s decision is

inconsistent with Hensley and because the D.C.

Circuit’s failure to recognize that “claim” used in

Hensley is synonymous with “cause of action” creates a

split in the circuits that this Court should resolve.

The effect of the ruling by the court of appeals

that under Hensley, prejudgment interest is a separate

and distinct issue from backpay awarded because of

discrimination, App 12a-l38a, was to require the

plaintiff class to demonstrate again that the plaintiff

class was a “prevailing party” on the narrow interest

issue in order to be entitled to request reasonable

attorney’s fees for its legal services performed after the

Consent Decree was entered. The Court should grant

Certiorar: because the holding below is contrary to

Commissioner, INS v. Jean, 496 U.S. 154 (1990), which

stated:

Any given civil action can have numerous

phases. While the parties’ postures on individual

matters may be more or less justified, the

EAJA--like other fee-shifting statutes--favors

oo»

treating a case as an inclusive whole, rather than

as atomized line-items.

496 U.S. at 161-162. The determination that a plaintiff

is a prevailing party thus “operates as a one-time

threshold for fee eligibility” for the entire action.” /d.

al 160.

Petitioners should be eligible to apply for

attorney’s fees and costs for services reasonably

rendered after they became “prevailing parties” upon

entry of the Consent Decree, even if Petitioners do not

prevail on their requests for pre-November 21, 1991

prejudgment interest on backpay and attorney’s fees.

Pennsylvania v. Delaware Valley Citizens' Council for

Clean Air, 478 U.S. 546, 558-60 (1986).

Even though Delaware Valley involved a post-

judgment request for fees for administrative

enforcement of a judicial decree, its reasoning applies

equally apply to Petitioners’ litigation of the

prejudgment interest issue.

Protection of the full scope of relief afforded by

the consent decree was thus crucial to safeguard

the interests asserted by Delaware Valley; and

enforcement of the decree, whether in the

courtroom before a judge, or in front of a

regulatory agency with power to modify the

substance of the program ordered by the court,

involved the type of work which is properly

compensable as a cost of litigation under § 304.

Td. at 5d&.

That there should be only one determination

whether Petitioners are a “prevailing party” applies to

matters litigated after judgment on the merits, as well

as those decided during the trial phase, even if the

prevailing party does not prevail on a particular post-

judgment issue. F.g., Jenkins v. State of Missouri, 127

F.3d 709, 714 (8'" Cir. 1997), citing Jean and Delaware

Valley. No subsequent event deprives the Trout class

of their status as “prevailing parties,” although they did

not prevail on every issue. /d. at 712, 716 (approving

the award of fees to the plaintiff class for work

performed in unsuccessfully opposing a Petition for

Certiorar?).

Other courts of appeal have properly applied

Jean and Delaware Valley to permit the award of

attorney’s fees for unsuccessful efforts by taking into

account the class’s considerable success in the litigation

as a whole to support a fee award in unsuccessful post-

judgment actions. EF.g., Cody v. Hillard, 304 F.3d 767,

773 (8th Cir. 2002). According to Cody, once the

plaintiff class members become “prevailing parties” by

securing the underlying court-ordered relief, their

success or failure in post-judgment enforcement actions

is only one factor to consider in determining whether

plaintiffs are entitled to attorney's fees. 304 F.3d at

773-75. This is the correct analysis. Thus, the lower

courts here should have considered that the plaintiff

class achieved the maximum success because the 1993

Consent Decree awarded Petitioners every dollar in

backpay recommended in the report by their expert

witness. App. 1-2.

Other courts of appeal have ruled “prevailing”

class action plaintiffs are entitled to reasonable

uttorney’s fees for litigation on issues that arose after

entry of decrees, even when the civil rights plaintiffs

lost on those particular issues. Plyler v. Evatt, 902 F.2d

273, 280-281 (4th Cir.1990) (affirming an award of fees

in post-decree proceedings where the issues were “so

‘inextricably intermingled with the original claims in

the lawsuit,’ that severing those proceedings for a

separate analysis of ‘prevailing party’ status was not

justified.”) (internal quotation and citation omitted);

Johnson v. City of Tulsa, Oklahoma, 489 F.3d 1089,

111t (10th Cir. 2007) (plaintiffs’ counsel entitled to

compensation for reasonable efforts to preserve fruits

of the decree); see also Turner v. Orr, 785 F.2d 1498

(11 Cir.), cert. denied, 478 U.S. 1020 (1986); Stewart v.

(rates, 987 F.2d 1450, 1452 (9th Cir. 1993) (providing for

the award of attorney's fees “for “useful and necessary”

post-judgment proceedings); Duran v. Carruthers, 885

F.2d 1492, 1495-96 (10th Cir. 1989); see Mills v.

Freeman, 118 F.3d 727, 733-34 (11th Cir. 1997).

The Court should grant Certiorari to bring the

District of Columbia Circuit into compliance with Jean

and Delaware Valley and to resolve a split in the

circuits created by the court of appeals whose ruling

which differs from the approaches taken by other

circuits as to the standards for compensating class

counsel for services following entry of a consent decree.

Granting Certiorari will also provide guidance on the

troubling public policy and ethical concerns created by

the court of appeals decision that class counsel

representing the prevailing plaintiff class could not be

compensated for services they were ethically obligated

to provide after the entry of the Consent Decree in

November, 1993.

CONCLUSION

The Petition for a Writ of Certiorari should be

granted to answer whether Altmann applies to

assertions of sovereign immunity by the United States.

The Petition should also be granted to resolve the

important legal issue of how to identify the “relevant

retroactivity event” which determines whether a

statute waiving sovereign immunity is “prospective”

and to resolve the conflict between the decision below

and that of the Federal Circuit in Travenol in

determining the “relevant retroactivity event.”

The Petition should also be granted to resolve

the conflict between the court of appeals below and the

other eleven circuits whether Hensley’s use of the term

“claim” means “cause of action,” and whether the

interest component of a judgment can be separate and

distinct from a Title VV backpay award when

determining eligibility to apply for attorney’s fees. The

Petition should also be granted because the court of

appeals decision is contrary to Jean and Delaware

Valley and the public policies underlying those cases.

Respectfully submitted,

John F. Karl, Jr.

Counsel of Record

Bradley G. McDonald

McDONALD & KARL

1090 Vermont Avenue, N.W.

Suite 500

Washington, D.C. 20005

(202) 293-3200

Attorney for Petitioners

(any footnotes trail end of each document)

No. 07-5053

UNITEDSTATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

YVONNE G. TROUT AND CLARA A.

PERLIGIERO,

APPELLANTS

SECRETARY OF THE NAVY AND

COMMANDING OFFICER NAVAL COMMAND

SYSTEMS SUPPORT ACTIVITY,

APPELLEES

March 18, 2008, Argued

September 2, 2008, Decided

Appeal from the United States District Court for the

District of Columbia. (No. 73¢ev00055).

COUNSEL: Bradley G. McDonald argued the cause

for appellants. With him on the brief was John F. Karl,

Jr..

Daniel F. VanHorn, Assistant U.S. Attorney, argued

the cause for appellees. With him on the brief were

Jeffrey A. Taylor, U.S. Attorney, and R. Craig

Lawrence, Assistant U.S. Attorney.

JUDGES: Before: SENTELLE, Chief Judge, and

GINSBURG and BROWN, Circuit Judges. Opinion for

the Court filed by Chief Judge SENTELLE.

OPINION

SENTELLE, Chief Judge: In the latest saga of this

apparently never-ending battle between the parties

over liability and damages for violating Title VII of the

Civil Rights Act, the district court denied a motion of

Appellants Trout, et al., ("the Trout class") secking pre-

November 21, 1991, interest on backpay and attorneys’

fees awarded to them for being subject to sex

discrimination in employment during the 1970's. The

Civil Rights Act of 1991, which included a provision for

the award of prejudgment interest, was enacted on

November 21 of that year. Although this court

previously held that the interest provision did not apply

to conduct that preceded enactment of the Civil Rights

Act, Trout v. Secretary of the Navy, 354 U.S. App. D.C.

384, 317 F.8d 286 (D.C. Cir. 2008) ("Trout IV"), the

Trout class claims that a subsequent Supreme Court

case, Republic of Austria v. Altmann, 541 U.S. 677, 124

S. Ct. 2240, 159 L. Ed. 2d 1 (2004), is an "intervening

change in law" that entitles them to interest on backpay

and attorneys’ fees that accrued before the change in

law. The district court also granted Appellee Navy's

motion for a refund of interim attorneys’ fees and costs

paid to the Trout class for litigating the interest issue.

Because Altmann is inapposite and because the

interest issue is distinct from the issue of sex

discrimination, we affirm the district court's rulings on

the motions.

Background

In 1973 Yvonne Trout and other female employees of

the Department of the Navy filed an employment

discrimination lawsuit against the Navy, alleging sex

discrimination in violation of Title VII of the Civil

Rights Act of 1964 ("the 1964 Act"), 42 U.S.C. § 2000e et

seq. After twenty years of litigation the parties entered

into a stipulation settling the case on its merits, which

was approved by the district court on November 22,

1993 (hereinafter "Consent Decree"). Pursuant to the

Consent Decree and other stipulations and orders, the

Navy paid the Trout class backpay for the period 1970

to 1992, as well as attorneys' fees up until 1993 for

litigating the sex discrimination matter. The doctrine of

sovereign immunity shields the government from

liability for such payments, except when waived by

statute. See Gomez- Perez v. Potter, 128 S.Ct. 1931, 1942,

170 L. Ed. 2d 887 (2008). Subsections 2000e-5(g) and

2000e-5(k) of the 1964 Act waive the government's

immunity from liability for backpay and attorneys’ fees,

respectively, for violations of that act. Because the 1964

Act did not allow for the payment of interest on

damages, and because any waiver of sovereign

immunity must be strictly construed in favor of the

government, see, e.g., Library of Congress v. Shaw, 478

U.S. 310, 318, 106 S. Ct. 2957, 92 L. Ed. 2d 250 (1986),

and further because of the no-interest rule, i.e., "the

historical rule that interest is a separate element of

damages and may be recovered only against a party

that has agreed to be liable therefor,” Brown v. Sec'y of

the Army, 316 U.S. App. D.C. 284, 78 F.8d 645, 651

(D.C. Cir. 1996), under the 1964 Act the Trout class was

not entitled to receive interest on the backpay and

attorneys’ fee awards. On November 21, 1991, however,

Congress amended Title VII. Civil Rights Act of 1991

("the 1991 Act"), Pub. L. No. 102-166, 105 Stat. 1071.

Under section 114(2) of that act the government is

liable for "the same interest to compensate for delay in

payment [as is available] in cases involving nonpublic

parties." 42 U.S.C. § 2000e-16(d). The Navy

consequently agreed to pay interest on its liability for

backpay and attorneys' fees incurred after November

21, 1991. The Navy argued, however, that section

114(2), 42 U.S.C. § 2000c-16(d), was not retroactive and

therefore it was not liable for interest on backpay and

attorneys’ fee awards for periods prior to November 21,

1991. The Trout class argued otherwise and litigated

the issue, culminating in this court's resolution of the

matter in Trout /V. In the meantime, pursuant to

stipulations and orders in 1999 and 2001, the Navy paid

the Trout class $106,375.45 in attorneys' fees and expert

fees for litigating the pre-November 21, 1991, interest

issue.

In Trout IV we addressed the question of whether

section 114(2), 42 U.S.C. § 2000e-16(d), has retroactive

effect. In determining that it did not, we relied on our

decision in Brown, 316 U.S. App. D.C. 284, 78 F.3d 645,

which also concerned the question of whether section

114(2), 42 U.S.C. § 2000e-16(d), applies retroactively.

See Trout TV, 317 F.8d at 290-92. Brown in turn relied

on the Supreme Court's decision in Landgraf v. USI

Film Prods., 511 U.S. 244, 1148. Ct. 1488, 128 L. Ed. 2d

229 (1994), in which the Court declined to give

retroactive effect to provisions of the 1991 Act that

would attach new monetary liability to conduct

occurring before the statute's enactment. See Brown, 78

F.3d at 648-49. Guided by Brown and Landgraf, we

held that section 114(2), 42 U.S.C. § 2000e-16(d), does

not apply to conduct that occurred before November 21,

1991, and therefore the Navy was not liable for interest

on backpay and attorneys’ fees awarded for conduct

betore that time. T'rout 1V, 317 F.3d at 292-93. We

remanded the case to the district court for a "final

determination of costs and fees owed to the Trout

class." Jd. at 293.

On remand, the Navy filed a motion seeking a refund

from the Trout class for $106,375.45, plus interest, that

was paid by the Navy to the Trout class for attorneys’

fees for litigating the prejudgment interest issue. The

Trout class also filed a motion seeking, despite this

Court's decision in Trout IV, an entry of judgment for

pre-November 21, 1991, interest on backpay and

attorneys’ fees. The Trout class claimed in the motion

that the Supreme Court's decision in Altmann is an

intervening and controlling decision that entitles them

to pre-November 21, 1991, interest. The district court

granted the Navy's motion and ordered the Trout class

to refund the Navy the $106,375.45 plus interest

awarded to the Trout class for litigating the interest

issue; the court denied the Trout class's motion to

award it pre-November 21, 1991, interest in light of

Altmann. Trout v. Winter, 464 F. Supp. 2d 25, 34

(D.D.C. 2006).

Discussion

The Trout class now appeals the district court's rulings

on the motions, arguing, inter alia, that under Altmann

it is entitled to pre-November 21, 1991, interest on

backpay and attorneys’ fees, and that as the "prevailing

party’ in the sex discrimination litigation it is entitled

to attorneys’ fees incurred in litigating the interest

issue.

Altmann

Despite this Court's holding in 7rout IV that section

114(2) of the 1991 Act does not apply to conduct that

preceded its enactment, the Trout class argues that

Altmann "constitutes an intervening change in law that

requires reversal" of Trout IV. Altmann concerned a

suit filed sometime after 1998 against the state of

Austria for conduct that occurred for the most part in

1948. 541 U.S. at 681-84. The Foreign Sovereign

Immunities Act of 1976 ("FSIA"), 28 U.S.C. § 1602 et

seq., grants foreign states immunity from suits in the

United States subject to certain exemptions. The

question for the Court was whether the FSIA, and

therefore the exemptions thereunder, applied to claims

based on conduct that occurred before the FSIA's

enactment. Altmann, 541 U.S. at 686-87. As discussed

in more detail below, the Court held that the FSIA does

apply to pre-enactment conduct. /d. at 697. Attempting

to analogize its case to Altmann, the Trout class argues

that Altmann now controls statutes that concern

waivers of sovereign immunity, and consequently under

Altmann, section 114(2) of the 1991 Act, 42 U.S.C. §

2000e-16(d), applies to conduct that preceded its

enactment. The Trout class therefore claims that it is

entitled to interest on backpay and attorneys' fees

incurred prior to November 21, 1991. We disagree.

In Altmann the plaintiff sued Austria for

expropriating, before and after World War II, painting's

owned by her family. Austria asserted the defense of

sovereign immunity. As noted above, the question

addressed by the Court was whether the FSIA applied

to conduct that occurred prior to the FSIA's enactment

in 1976. Altmann, 541 U.S. at 686-87. In answering this

question the Court first looked to the default rule of no

retroactive effect of congressional enactments

announced in Landgraf, 511 U.S. at 263, 280. Altmann,

541 U.S. at 692-94. The Court noted that under

Landgraf there is a presumption against retroactivity if

Congress has not expressly stated that the statute is to

have retroactive effect and the statute affects rights,

liabilities, or duties with respect to past conduct. Jd. at

693-94 (citing Landgraf, 511 U.S. at 280). On the other

hand, the Court noted that the application of a statute

to future as well as pending cases would be sanctioned

if the statute merely confers or ousts jurisdiction. Jd. at

693. The Court noted that although these principles

seemed comprehensive, they did not provide a clear

answer in the case before it because the FSIA could not

be categorized as exclusively affecting either

substantive rights or procedural matters. /d. at 694.

The Court then noted that the purpose of the

antiretroactivity presumption is "to avoid unnecessary

post hoc changes to legal rules on which parties relied

in shaping their primary conduct," and that this had

never been the purpose of foreign sovereign immunity.

Id. at 696. Rather, stated the Court, foreign sovereign

immunity aims to protect foreign states "from the

inconvenience of suit as a gesture of comity." /d.

(quoting Dole Food Co. v. Patrickson, 538 U.S. 468, 479,

123 S. Ct. 1655, 155 L. Ed. 2d 643 (2003)). The Court

consequently looked to the FSIA and the circumstances

surrounding its enactment for any suggestion that it

should not apply to the 1948 conduct at issue. /d. at 697.

In holding that the FSIA applies "to all pending cases

regardless of when the underlying conduct occurred,"

the Court relied on "[t]he FSIA's overall structure" as

well as "two of the Act's principal purposes: clarifying

the rules that judges should apply in resolving

sovereign immunity claims and eliminating political

participation in the resolution of such claims." /d. at

698-99. Additionally, the Court looked to Congress's

understanding of the FSIA as noted in its preamble,

which provides that "[c]laims of foreign states to

immunity should henceforth be decided by courts of the

United States and of the States . .. with the principles

set forth in" the Act. Jd. at 697 (quoting 28 U.S.C. §

1602) (emphasis omitted). The Court noted that

pursuant to this language "[iJmmunity ‘claims'-not

actions protected by immunity, but assertions of

immunity to suits arising from those actions--are the

relevant conduct regulated by the Act." Jd.

The Trout class argues that in applying the FSIA

retroactively Altmann held that the default rule

against retroactivity announced in Landgraf "does not

apply to statutory waivers of sovereign immunity." In

support of this argument the Trout class contends that

the Supreme Court in Altmann adopted Justice Scalia's

concurring opinion in Landgraf, see id. at 697-98; the

class argues that consequently whether a statutory

waiver of sovereign immunity may be _ applied

retroactively should not be determined by the dates of

the discriminatory conduct proven during the hability

phase, but by the date of the assertion of a waiver of

sovereign immunity. In other words, according to the

Trout class, the relevant conduct for the purpose of

retroactivity analysis in Altmann was not’ the

expropriation, which predated the FSIA, but rather

Austria's invocation of sovereign immunity at the time

of the suit. Quoting from Altynann that "assertions of

immunity to suits . . . are the relevant conduct

regulated by the [FSIA]," 541 U.S. at 697, the Trout

class contends that the "same interest" provision of

section 114(2), 42 U.S.C. § 2000e-16(d), "logically can

apply only to cases in which judgment on the merits is

entered after enactment, because where there is no

judgment, there can be no judgment interest, and hence

no assertion of a defense of sovereign immunity against

the payment of prejudgment interest."

The Trout class concludes that consequently section

114(2), 42 U.S.C. § 2000e-16(d), "applies to all judgments

entered after the effective date of the Act," and

therefore it is entitled to interest on backpay and

attorneys’ fees incurred prior to November 21, 1991.

In Trout IV we held that section 114(2), 42 U.S.C. §

2000e-16(d), does not apply to conduct that preceded its

enactment on November 21, 1991. 317 F.3d at 292. In

doing so we relied on Brown which in turn relied on

Landgraf and its default rule against retroactivity. We

find nothing in Altmann that alters the rule under

Landgraf. Altmann expresses no disagreement with

the decision in Landgraf. Instead, the Court in

Altmann stated that the retroactivity inquiry set forth

in Landgraf "does not provide a clear answer in this

case" because "the FSIA defies such categorization." 541

U.S. at 694. Resolution of the question before the Court

turned on an analysis of the F'SIA itself. In holding that

the FSIA applies "to all pending cases regardless of

when the underlying: conduct occurred," the Court

relied specifically on the history of foreign sovereign

immunity, Congress's understanding of the FSIA as

noted in its preamble, "[t]he FSIA's overall structure"

us Well as "two of the Act's principal purposes." /d. at

696-99. It is clear, then, that the Court's decision in

Altmann was specific to the statute in that case. The

Court itself reinforced this conclusion by stating that

its analysis encompassed a "sui generis context." 541

U.S. at 696. And in Fernandez-Vargas v. Gonzalez, 548

U.S. 30, 126 S. Ct. 2422, 165 L. Ed. 2d 323 (2006), the

10a

Supreme Court noted that its "conclusion in [Altmann],

that Landgraaf was to be avoided, turned on the

peculiarities of the Foreign Sovereign Immunities Act."

Id. at 38 n.6. Just as in Fernandez-Vargas, "[t)hose

peculiarities are absent here, and we thus advert to

Landgraf, as we ordinarily do." /d. In sum, Altmann

has no effect upon the holding in Landgraf and

consequently this Court's decision in Trout IV stands.

Distinction of claims

Section 113 of the Civil Rights Act of 1991, 42 U.S.C. §

2000e-5(k), states: "In any action or proceeding under

this subchapter the court, in its diseretion, may allow

the prevailing party ... a reasonable attorney's fee

(including expert fees) as part of the costs... ." There is

no dispute that the Trout class was the prevailing party

on the primary issue of sex discrimination and that it is

entitled to an award of attorneys’ fees from the Navy

for litigating that issue. The Trout class contends,

however, that even if it is determined that it is not

eligible for pre-November 21, 1991, interest on backpay

and attorneys' fees, the district court nevertheless

erred when it ruled that the class was not entitled to

recovery of the attorneys’ fees incurred for litigating

that issue. In /lensley v. Eckerhart, 461 U.S. 424, 103 S.

Ct. 1933, 76 L. Ed. 2d 40 (1983), the Supreme Court

addressed the question of whether a plaintiff who has

succeeded on a significant claim, and therefore is

entitled to attorneys’ fees for work done on that claim,

is also entitled to attorneys’ fees for work performed on

an unsuccessful claim. The Court, "recognizling| that

there is no certain method of determining when claims

are ‘related' or ‘unrelated,'" 461 U.S. at 486 n.12, held

that attorneys' fees should not be awarded for an

lla

unsuccessful claim when that claim "is distinct in all

respects from [the plaintiffs] successful claims." /d. at

440 (emphasis added). The Navy argues that the

interest issue is distinct from the sex discrimination

issue and therefore no attorneys' fees should be

awarded for litigating that issue.

The Trout class asserts that the issues are in fact not

distinct, claiming that, for purposes of collecting

attorneys' fees, it remains the "prevailing party" in the

sex discrimination litigation, and that its request for

pre-November 21, 1991, interest was part of that

litigation because such interest was intended to

compensate the class for damages due to "the Navy's

bad faith delays." For authority the Trout class relies

on Cody v. Hillard, 304 F.3d 767, 773 (8th Cir. 2002), in

which the Eighth Circuit, in determining whether to

award attorneys' fees to the plaintiffs for civil rights

litigation, considered, inter alia, the plaintiffs’

"considerable success in the litigation as a whole," and

whether issues litigated later were "inextricably

intertwined" with the issues upon which the plaintiffs

prevailed. Jd. at 773-74. Here, argues the Trout class,

the 1993 Consent Decree gave them "maximum

success," and furthermore the interest issue is

"inextricably intertwined’ with the awards of backpay

and attorneys’ fees because the class would have no

claim for interest if it were not the "prevailing party" in

the underlying sex discrimination litigation. Under this

approach, a claim for prejudgment interest would

always be deemed related to the merits claim. The

Trout class further argues that the Consent Decree

contains express language reserving the pre-November

21, 1991, interest issue, and that under a fair reading of

the Consent Decree it was required to litigate that

12a

interest issue. Quoting from the Tenth Circuit's

decision in Johnson v. City of Tulsa, 489 F.3d 1089

(10th Cir. 2007), that attorneys' fees were to be

awarded for "compensation for reasonable efforts to

preserve the fruits of the decree," id. at 1111, the Trout

class argues that the Consent Decree expressly

contemplated that a post-judgment determination

would be made as to whether the class would receive

pre-November 21,1991, interest, and that in seeking

that interest the class was trying to "preserve the

fruits" of the Consent Decree. Therefore the Trout class

claims that the interest issue was "part and parcel of

the central issue in the case," i.e., the sex discrimination

allegations.

The Navy contends that the Trout class's argument

that it should be awarded attorneys' fees for litigating a

post-deecree issue even though it lost that issue on

appeal has no merit. According to the Navy, fees for

litigating post-decree issues have only been awarded in

two situations. The first situation is when the consent

decree expressly authorizes the court to award such

fees. Here, the Navy argues, the Consent Decree did

not obligate it to pay such fees regardless of the final

outcome of the issue, but merely reserved the Trout

class's right to seek such fees. And the Navy further

argues that any such fees already paid were subject to

explicit reservations of the right of the Navy to seek

recovery of those fees if it prevailed on the interest

issue. The second situation in which fees have been

awarded for litigating post-decree issues, according to

the Navy, is when that litigation was necessary to

protect the relief granted for the primary claims. But

the litigation issue here, argues the Navy, was not

necessary to secure any particular relief granted by the

l3a

Consent Decree. Instead, the Navy contends, the

litigation on the interest issue was undertaken in an

attempt to gain an additional remedy for the Trout

class. Consequently, contends the Navy, the district

court acted well within its discretion when _ it

determined that the interest issue was distinct from the

sex discrimination issue.

Relying on the factors set forth in Hensley, the district

court determined that the Trout class's unsuccessful

interest claim was distinct from its successful sex

discrimination claim, Trout, 464 F. Supp. 2d at 32, and

we agree. The Trout class and the Navy disagree as to

our standard of review on the issue of the distinctness

of the sex discrimination claim and the interest claim.

The Trout class contends that this is a purely legal

question which we should review de novo, while the

Navy believes that we should review the district

judge's decision for abuse of discretion, giving great

deference to the district judge's superior knowledge of

the case as a whole. On the present record we need not

establish a precedent on that subject as the same result

prevails in any event. Even applying the de novo

standard, we agree with the Navy that the claims are

distinct. Litigation of the interest issue was not

inextricably intertwined with the sex discrimination

litigation -- it was not necessary to obtain or protect

any relief awarded, nor was it necessary to preserve

the integrity of the Consent Decree as a whole. The

district court therefore correctly determined that the

issues were distinct and denied an award of attorneys’

fees for litigation of the interest Issue.

Remaining issues

14a

In its opinion the district court ruled "that in order to

restore the parties to the status quo," 464 F. Supp. 2d at

34, the Navy was entitled to interest on the refunded

$106,375.45. The Trout class argues that the district

court erred by not considering the "tax impact" of its

refund order on the class's counsel. As the Navy points

out, however, this argument was not raised during the

proceedings before the district court, and we therefore

deem it waived. We find no merit in the Trout class's

other claims made in this appeal.

Conclusion

For the reasons stated above, we affirm the judgment

of the district court.

l5a

Civil Action No. 73-0055 (PLF)

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

YVONNE TROUT, et al.,

Plaintiffs,

Vv.

DONALD C. WINTER, ! Secretary of the Navy, et al.,

Defendants.

COUNSEL: For YVONNE G. TROUT, Individually

and on behalf of others similarly situated, CLARA A.

PERLIGIERO, Plaintiffs: Bradley G. McDonald,

LEAD ATTORNEY, MCDONALD & _ KARL,

Washington, DC; John F. Karl, KARL & TARONE,

Washington, DC.

For SECRETARY OF NAVY, COMMANDING

OFFICER NAVAL COMMAND SYSTEMS

SUPPORT ACTIVITY, Defendants: Daniel Franklin

Van Horn, LEAD ATTORNEY, U.S. ATTORNEY'S

OFFICE, Washington, DC; Darya Geetter, LEAD

ATTORNEY, US. ATTORNEY'S OFFICE,

Washington DC; Scott Sutherland Harris, LEAD

ATTORNEY, U.S. SUPREME COURT, Washington,

DC.

JUDGES: PAUL L. FRIEDMAN, United States

District Judge.

OPINION BY: PAUL L. FRIEDMAN

16a

OPINION

The relevant facts and procedural history of this

lengthy class action Title VII lawsuit have been set

forth in many previous opinions, most recently by the

United States Court of Appeals for the District of

Columbia Circuit in Trout v. Sec'y of the Navy, 354 U.S.

App. D.C. 384, 317 F.3d 286, 288-89 (D.C. Cir.), cert.

denied, 540 U.S. 981, 124 8. Ct. 463, 157 L. Ed. 2d 371

(2003). To summarize briefly, the issue now before the

Court for resolution is whether plaintiffs are entitled to

prejudgment interest under Section 114(2) of the Civil

Rights Act of 1991 on theiraward of backpay and

attorneys' fees for periods prior to the effective date of

the Act. See 42 U.S.C. § 2000e-16(d). On July 17, 2001,

this Court entered a Final Judgment [666] awarding

the plaintiffs $8,627,276.40 in interest on the backpay

previously awarded, and $1,477,020.90 in interest on

attorneys’ fees. The defendants appealed.

On January 31, 2003, the court of appeals reversed,

holding that the defendants could not be ordered to pay

prejudgment interest on backpay and attorneys’ fees

for periods prior to November 21, 1991, when Section

114(2) of the Civil Rights Act became effective. See

Trout v. Sec'y of the Navy, 317 F.3d at 287-88, 290-91.

Furthermore, because defendants had paid interim

attorneys' fees to counsel for plaintiffs that was

attributable to litigation of the prejudgment interest

issue -- the issue on which plaintiffs ultimately lost in

the court of appeals -- the appellate court remanded to

this Court for a "final determination of the costs and

fees owed to the Trout class." See id. at 293. After

remand, the defendants filed a Motion [673] for Final

Determination of Attorneys’ Fees and Costs Owed

17a

tothe Plaintiff Class ("Mot. for Final Deter.") and

plaintiffs filed a Motion [687] for Entry of Declaratory

Judgment Awarding Plaintiffs' Pre-November, 1991

Interest on Backpay and Attorney's Fees Pursuant to

Austria v. Altman [sie | ("Pl.'s Altmann Mot."), both of

which are now before the Court.

I. BACKGROUND

Originally begun in 1973 as a Title VII class action

employment discrimination lawsuit, the Trout litigation

has now continued for over thirty years. In 1981, after a

lengthy trial involving forty-two witnesses, 7,000 pages

of exhibits, and extensive’ regression § analysis

demonstrating sex discrimination in the Navy's hiring,

promotion, evaluation and assignment of women, Judge

Harold H. Greene, the presiding judge, found that the

Navy had violated Title VII and ordered the award of

backpay. See Trout v. Hidalgo, 517 F. Supp. 873

(D.D.C. 1981), Trout v. Hidalgo, Civil No. 73-0055, 1981

WL 416 (D.D.C. Oct. 20, 1981). See also Trout ».

Lehman, 652 F. Supp. 144 ((D.D.C. 1986). As recounted

by the court of appeals, numerous additional decisions

and stipulations followed, awarding additional backpay.

See Trout v. Sec'y of the Navy, 317 F.3d at 288. On

September 20, 1993, the parties entered into a

stipulation settling the case on its merits [553]; Judge

Greene approved the stipulation on November 22, 1998

[569]. Because, as even defendants agree, plaintiffs

were the prevailing parties in the Title VII case, Judge

Greene properly also awarded attorneys’ fees and costs

to plaintiffs. Jd.

While the case w.- pending on its merits, the Civil

Rights Act of 1991 was enacted. It provided in Section

l&Sa

114(2) for the award of prejudgment interest: the

federal government is liable for "the same interest to

compensate for delay in payment [as is available] in

cases against nonpublic parties." 42 U.S.C. § 2000e-

16(d). By stipulations of May 10, 1995 [596, 597],

defendants agreed to pay prejudgment interest on the

backpay and attorneys’ fees awards, the interest to

begin running from November 21, 1991, the effective

date of the Civil Rights Act of 1991. Plaintiffs

preserved their right to seek interest for periods before

that date. See Stipulation [596] at 4; Stipulation [597] at

2-3.

The issue presented first to Judge Greene and then to

the court of appeals was whether Section 114(2),

which became effective on November 21, 1991, could be

applied where the discriminatory conduct had

terminated before the effective date of the law. Judge

Greene, who handled the case for most of its lengthy

history, concluded that even though the liability phase

of this case had ended on April 25, 1990, the application

of Section 114(2) was appropriate given’ the

government's efforts "to delay the litigation and to

drive up its costs." See Trout v. O'Keefe, 144 F.R.D. 587,

990 (D.D.C. 1992). On July 22, 1998 and August 12, 1998,

respectively, Judge Greene issued a Memorandum

Opinion and Orders awarding plaintiffs prejudgment

interest on attorneys’ fees [621] and on backpay awards

[622]. Prior to the entry of Final Judgment, however,

Judge Greene passed away. The case was randomly

reassigned to the undersigned and, on July 17, 2001,

this Court entered Final Judgment [666] and ordered

the defendants to pay interest on the backpay awards

and attorneys' fees.

19a

This Court's July 17, 2001 Final Judgment with respect

to prejudgment interest was based on two stipulations

that had been approved by Judge Greene and an Order

issued by the undersigned:

1. By stipulation and order of March 3, 1999 [644],

Judge Greene ordered the payment of $8715.00 to

compensate plaintiffs for the expert services of John

Chagnon.

2. By stipulation and order of May 5, 1999 [646], Judge

Greene ordered the payment of $76,097.45 to plaintiffs’

attorneys for work performed between June 5, 1997 and

January 20, 1999 litigating the pre-November 21, 1991

interest issue.

3. By order of May 31, 2001, the undersigned ordered

defendants to pay attorneys' fees to plaintiffs in the

amount of $21,563 for work done by plaintiffs’ counsel

between January 30, 1999 and April 30, 2000 litigating

the pre-November 21, 1991 interest issue.

In the March 3, 1999 and May 5, 1999 stipulations,

defendants expressly reserved their right to seek

recovery of the amounts agreed to and paid should they

“ultimately obtain a judgment that they do not owe pre-

November 21, 1991 interest on backpay and/or

attorneys’ fees." See Stipulation [644] at 2; Stipulation

[646] at 1-2. Defendants’ partial opposition to and

partial concurrence in the motion leading to the May 31,

2001 Order contained a similar reservation. The total

amount of attorneys' fees, expert fees and costs covered

by the two stipulations and the Order described above

is $106,375.45.

20a

The defendants appealed the July 17, 2001 Final

Judgment. On January 31, 2003, the court of appeals

reversed on the issue of pre-November 21, 1991

interest, holding that Section 114(2) of the Civil Rights

Act did not apply to a period before its effective date.

The court of appeals remanded the case to this Court

for a "final determination of the fees and costs owed to

the Trout class." 7'rout v. Sec'y of the Navy, 317 F.3d at

292-93.

In its opinion, the court of appeals emphasized two

points. First, any statute waiving the sovereign

immunity of the United States is subject to the rule of

strict construction. See Trout v. Sec'y of the Navy, 317

F.3d at 289-90 (citing Library of Congress v. Shaw, 478

U.S. 310, 318, 106 8S. Ct. 2957, 92 L. Ed. 2d 250 (1986)

and Ruckelshaus v. Sierra Club, 463 U.S. 680, 685, 103

S. Ct. 8274, 77 L. Ed. 2d 938 (1983)). Any doubts about

the scope of waiver are to be "resolved in favor of the

narrower, governmental liability." /d. (quoting Nichols

v. Pierce, 239 U.S. App. D.C. 146, 740 F.2d 1249, 1257

(D.C. Cir. 1984). Because there is no express language

in Section 114 or in the legislative history of the Civil

Rights Act of 1991 suggesting that Congress intended

retroactively to waive immunity as to the government's

liability for interest payments, the court explained that

"to apply § 114(2) retroactively would be to impose

liability on the government without its explicit,

required consent." Trout v. Sec'y of the Navy, 317 F.3d

at 290 (citing Brown v. Sec'y of the Army, 316 U.S. App.

D.C. 284, 78 F.8d 645, 654 (D.C. Cir. 1996)).

Second, the court of appeals reasoned that the ongoing

nature of the litigation at the time of the enactment of

Section 114(2) and the fact that final Judgment on

21a

remedy was not entered until after the statute's

effective date were insufficient justifications for

applying that provision to this case. The court

emphasized that the relevant issue was not the

procedural posture of the case and its ongoing nature,

but rather whether the discriminatory conduct was

ongoing at the time of the provision's passage. See

Trout v. Sec'y of the Navy, 317 F.3d at 291. Since the

Title VII violations at issue had ended in 1979, over a

decade before the enactment of Section 114(2), and the

liability phase of the case was concluded by April 25,

1990, there was no basis for the award of pre-November

21, 1991 interest. See zd. at 292. For these reasons, the

court of appeals held that this Court had erred in

awarding prejudgment interest on backpay and

attorneys’ fees for periods prior to November 21, 1991.

See id. at 293. Since the Navy already had paid some

interim attorneys’ fees and costs to the plaintiffs, the

court of appeals remanded the case for the proper

determination of the fees and costs owed to the Trout

class. See 7d. Plaintiffs filed a petition for rehearing and

a suggestion of rehearing en banc, which were denied

by the court of appeals on March 28, 2003. Plaintiffs also

filed a petition for a writ of certiorari with the United

States Supreme Court which was denied on November

- 10, 2003.

After this case was remanded, defendants filed their

motion for a final determination of attorneys’ fees and

costs owed, seeking a refund of $106,375.45, plus

interest. See Mot. for Final Deter. at 1. On December

22, 2003, plaintiffs filed an opposition. On December 17,

2003, plaintiffs also filed a separate motion to

dismiss with prejudice defendants’ claim for

recoupment of $106,375 [676]. That motion was

22a

administratively closed, but the arguments therein

have been treated as further opposition to the motion

for a final determination. See Order of September 30,

2004 [684].

In the interim, the Supreme Court issued a decision in

Austria v. Altmann, 541 U.S. 677, 124 S. Ct. 2240, 159

L. Ed. 2d 1 (2004), which plaintiffs contend was an

intervening and controlling decision. Plaintiffs filed

with the Supreme Court a petition for rehearing of the

denial of their petition for a writ of certiorari. See

October 5, 2004 Notice [685]. That petition was denied

on November 1, 2004. See November 5, 2004 Notice

[686]. Plaintiffs then filed a motion [687] with this Court

for entry of judgment awarding plaintiffs pre-

November, 1991 interest on backpay and attorneys'

fees pursuant to Austria v. Altmann, which also is

before the Court.

Il. ATTORNEYS' FEES AND COSTS

The funds the defendants seek to recover include the

interim attorneys' fees and costs paid to the plaintiffs

after 1997 that relate exclusively to the time spent and

costs incurred in connection with litigating the issue of

the right to prejudgment interest for the period prior to

the enactment of the Civil Rights Act of 1991, plus

interest thereon. The relevant question here is whether

the plaintiffs are entitled to attorneys' fees and costs as

the "prevailing party" for that time period because of

their success in the underlying Title VII litigation or, as

defendants argue, whether the plaintiffs’ failure with

respect to the prejudgment interest dispute precludes

"prevailing party" status as to that claim and therefore

precludes the award of fees and costs regarding that

23a

claim.

Under the Supreme Court's decision in Hensley v.

Eckerhart, 461 U.S. 424, 434-85, 103 S. Ct. 1933, 76 L.

Ed. 2d 40 (1983), a party's entitlement to attorneys' fees

must be premised on successful litigation of a claim. "In

some cases a plaintiff may present in one lawsuit

distinctly different claims for relief that are based on

different facts and legal theories. In such a suit, even

where the claims are brought against the same

defendants . . . counsel's work on one claim will be

unrelated to his work on another claim. Accordingly,

work on an unsuccessful claim cannot be deemed to

have been expended in pursuit of the ultimate result

achieved." Hensley v. Eckerhart, 461 U.S. at 484-35. In

light of Hensley, our court of appeals has noted that a

plaintiff "may recover fees only for work related to the

claim on which he prevailed." Wiliams v. First

Government Mortgage & Investors Corp., 343 U.S. App.

D.C. 222, 225 F.8d 738, 746 (D.C. Cir. 2000) (citing

Hensley v. Eckerhart, 461 U.S. at 434); see also

Anthony v. Sullivan, 299 U.S. App. D.C. 198, 982 F.2d

586, 589 (D.C. Cir. 1993) ("[W]hen a party has obtained

no favorable results in a particular aspect of a litigation,

that party may receive no fee for work on that part of

the case.").

The defendants argue that the prejudgment interest

claim that plaintiffs unsuccessfully litigated was

discrete from their successful litigation of the Title VII

claim and that plaintiffs therefore are not entitled to

attorneys’ fees and costs on that issue. See

Memorandum of Points and Authorities in Support of

Mot. Final Deter. at 10-11. The defendants note that

the Final Order regarding backpay was signed on

24a

November 22, 1993 and that the prejudgment interest

claim continued to be litigated for years after the Title

VII litigation had terminated. See id. at 7. The

defendants also note that the parties stipulated on July

9, 1997 that the "only remaining issue before the Court

is the award of interest on attorneys’ fees and costs." /d.

at 3. Defendants argue that the prejudgment interest

litigation therefore is a separate claim, distinguishable

from the earlier litigation. See id. at 8-10. Since

plaintiffs ultimately were unsuccessful on that claim,

defendants contend that plaintiffs are not entitled to

attorneys’ fees and costs as a "prevailing party" on that

claim. See 2d. at 9.

A. Judgment Fund

While the plaintiffs do not dispute their ultimate lack of

success on the prejudgment interest issue, they make

several arguments as to why the defendants’ motion

nevertheless should be denied. Plaintiffs’ primary

argument is that a refund is precluded because the

payments were financed by the government's judgment

fund. See Plaintiffs' Opposition to Defendants' Motion

for Final Determination ("Opp.") at 2. Under 31 U.S.C. §

1304, Congress created the "judgment fund" statute to

allocate "[nlecessary amounts” to be "appropriated to

pay final judgments, awards, compromise settlements,

and interest and costs specified in the judgments or

otherwise authorized by law." 31 U.S.C. § 1804(a)

(emphasis added). Under the statute, payment is only

provided when a judgment is final under 28 U.S. C. §

2414. * Plaintiffs argue that the explicit language of 28

U.S.C. § 2414 regarding "final judgments" indicates that

any payment made through the judgment fund is

precluded from further appeals. See Opp. at 2.

25a

Alternatively, plaintiffs maintain that even if the

payments are subject to appeal, the defendants should

have appealed at the time of each of the interim

payments rather than at the conclusion of the litigation

because each payment -- made, as it was, from the

judgment fund -- necessarily was final. See 7d.

Ironically, this line of argument was last discussed by

the court of appeals in J'rout v. Garrett, 282 U.S. App.

D.C. 33, 891 F.2d 382 (D.C. Cir. 1989), an appeal from an

earlier decision by Judge Greene in this very case. At

that point in the litigation, it was the government that

argued that it was unable to make interim payments

through the judgment fund because the express

language of the fund only allowed for payment of "final"

judgments. The court of appeals disagreed, noting that

under 42 U.S.C. § 2000e-5(k) Congress expressly

waived the immunity of the United States from claims,

whether final or interim, for attorneys’ fees and costs.

See id. at 333. The court of appeals reasoned that if

Congress expressly allowed a claim for interim fees

against the government by a Title VII plaintiff, then it

must also have intended that there be some means by

which to pay the interim fees and costs. See 2d. at 334.

The court explained that "to acknowledge an interim

fee as awardable against the government but not

payable prior to a[final] judgment ... ‘makes nonsense

of the concept of an interim award.” Id.

(quoting Rosenfeld v. U.S., 859 F.2d 717, 727 (9th Cir.

1988)) (emphasis in originals). The court continued: "We

find no tenable support for the notion that Congress

designed the judgment fund measure to retract or limit

duly enacted waivers of sovereign immunity, and we do

not doubt the government's ability to arrange for

payment of its lawfully-declared debts." /d. at 335. The

26a

court went on to state that once it is understood that

sovereign immunity does not preclude the payment of

"interim" fee awards, it was apparent that the district

court's order was not immediately reviewable. /d. The

court also noted that "[i]nterlocutory is indeed the word

descriptive of the district court's fee award. The award

does not even dispositively determine fees .. ." Zd.

Interim payments, because they were neither final nor

dispositive, could not be immediately appealed. Jd. at

333.

While the Trout class may now want to suggest that

each of the payments through the "judgment fund" was

final and that the time to appeal each has passed, the

court of appeals’ decision in Trout v. Garrett rejected

this line of reasoning. See Trout v. Garrett, 891 F.2d at

335. The D.C. Circuit dismissed the appeal, expressly

requiring that the government wait to appeal until

after a final decision was rendered; nothing about the

means of payment through the judgment fund prevents

a later appeal. Jd. Finally, as defendants note, in this

case stipulations were entered into by the parties at the

time of two of the three interim payments that

defendants retained the "right to seek recovery" in the

event that they ultimately obtained a decision that they

did not. owe pre-November 21, 1991 interest. See

Memorandum of Points and Authorities in Support of

Mot. for Final Deter. at 5. As a result, neither payment

through the “judgment fund" nor the government's

failure to immediately appeal therefrom precludes the

instant request for a refund.

B. Relatedness of Claims

The next question before the Court is whether the

Zia

plaintiffs’ previous successful litigation of the Title VII

claim is sufficiently related to the unsuccessful

prejudgment interest dispute that attorneys’ fees and

costs should be granted for litigation of the latter. In

Hensley v. Hckerhart, the Supreme Court

acknowledged that "there is no certain method of

determining when claims arerelated or unrelated."

Hensley v. Eckerhart, 461 U.S. at 487 n. 12 (internal

quotations and citations omitted). The Court also

emphasized that it was within the district court's

discretion to consider factors, like “the extent of a

plaintiffs success" and "the scope of the litigation as a

whole" in making the relatedness determination. /d. at

438-39. While the district court clearly has such

discretion in calculating an appropriate fee, our court of

appeals has held that under Hensley "when a party has

received no favorable results in a particular aspect of a

litigation, that party may receive no fee for work on the

part of the case." Anthony v. Sullivan, 982 F.2d at 589. "

[Njo fee may be granted for work done on claims on

which the party did not prevail, unless the unsuccessful

claims were submitted as alternative grounds for a

successful outcome that the plaintiff did actually

achieve." Jd. (emphasis in original). See also Williams v.

First Government Mortgage & Investors Corp., 225

F.3d. at 746 (holding that party may recover fees only

for work related to the claim on which he prevailed).

Applying the principles enunciated by the courts in

Hensley, Anthony and Williams, this Court concludes

that plaintiffs’ unsuccessful claim for pre-November 21,

1991 prejudgment interest was distinct from their

successful Title VII litigation. The court of appeals

rejected plaintiffs’ claim for such interest and reversed

Judge Greene's decision awarding such _ interest

28a

payments. Thus, plaintiffs did not prevail on this

discrete claim, which was neither an alternative ground

for a successful outeome nor integral to the larger Title

VII litigation. Attorneys’ fees and costs therefore may

not be awarded to plaintiffs with respect to that claim.

C’. Scope of Remand

Plaintiffs’ only remaining argument against the refund

concerns the precise scope of the remand from the court

of appeals. Plaintiffs argue that the court of appeals

remanded for a "final determination of the costs and

fees owed to the Trout class " and not for the purpose of

determining the costs and fees owed to the Navy. See

Memorandum of Points and Authorities in Support of

Plaintiffs’ Motion to Dismiss’ with Prejudice

Defendants' Claim for Recoupment [676] at 2 (emphasis

added). The Court disagrees. The Court is not awarding

the Navy its costs and fees, of course -- the Court is

issuing a final determination of the costs and fees

actually owed to the Trout class. Following the decision

of the court of appeais, the Court concludes that the

Trout class is not owed certain of the specific costs and

fees which defendants already paid on an interim basis.

Plaintiffs therefore must return those _ interim

payments to defendants.

Hl. EXPERT FEES

Plaintiffs’ expert, John Chagnon, is a certified public

accountant hired by plaintiffs for the sole purpose of

determining the proper amount of pre-November 21,

1991 interest owed to the Trout class under Judge

Greene's orders. Congress included expert costs as a

part of an award of a prevailing party's attorneys’ fees.

29a

See 42 U.S.C. § 1988(c). * Because expert costs are

awarded as a part of attorneys' fees, it follows that a

refund of related expert fees awarded will accompany a

refund of any attorneys’ fees awarded. By stipulation

and order of March 3, 1999 [644], defendants agreed to

pay for Mr. Chagnon's services in the amount of $8715,

but they reserved their right to seek the recovery of

this amount if it were ultimately determined that they

did not owe pre-November 21, 1991 interest on backpay

or attorneys’ fees -- the amount that Mr. Chagnon was

hired to calculate. See March 3, 1999 Stipulation [644] at

2. Since Mr. Chagnon was hired and used for the

exclusive purpose of helping plaintiffs pursue this

unsuccessful claim, see Reply [678] at 14, the payments

for his services therefore must be included in the

refund.

IV. THE IMPACT OF AUSTRIA V. ALTMANN

Following the court of appeals' reversal and remand,

the Supreme Court decided Austria v. Altmann, 541

U.S. 677, 124 8. Ct. 2240, 159 L. Ed..2d 1 (2004).

Plaintiffs argue that the decision in Altmann was an

"intervening and controlling decision" that should

render the court of appeals’ decision in this case moot.

See Pl.'s Altmann Mot. at 4, 7, 12. According to

plaintiffs, the decision in Altmann alters the "default

rule" against retroactivity announced in Landgraf v.

USI Film Products, 511 U.S. 244, 114 S. Ct. 1483, 128

L. Ed. 2d 229 (1994). They argue that Landgraf "does

not apply to statutory waivers of sovereign immunity."

Pl.'s Altmann Mot. at 7. Defendants respond that this

Court has no power to (1) expand the scope of the

remand from the court cf appeals, (2) disregard the

Supreme Court's denia! of certiorari to hear the Trout

30a

case, or (3) effectively reverse the court of appeals'

judgment in this case. See Defendants' Opposition to

Plaintiffs Motion for Entry of Judgment at 2. Further,

defendants emphasize that nothing in the Altmann

decision affects the remand because Landgraf is still

the law and the court of appeals properly applied it in

this case. See zd. at 5.

The Court agrees with defendants’ final argument and

concludes that the decision in Altmann does not affect

the present remand. The decision in Austria v.

Altmann did not alter the rule set forth in Landgraf

that absent a clear congressional intent to the contrary,

statutes do not operate retroactively. See Landgraf v.

USI Film Products, 511 U.S. at 280. On the contrary,

the Supreme Court in Altmann stated that the decision

in Landgraf did "not provide a clear answer in this

case." Austria v. Altmann, 541 U.S. at 694 (emphasis

added). In significant part, the Supreme Court's

decision in Altmann hinged on _ the substantial

differences between statutes such as Title VII, which

Landgraf involved, and the sovereign immunity of

foreign states, the issue inve ved in Altmann. See id. at

696. In examining the ianguage in the preamble to the

Foreign Sovereign Immunities Act ("FSIA"), the

Supreme Court discussed the ambiguity surrounding

whether the statute might be intended to be

retroactive. The Court emphasized the words of the

preamble: " /c/laims of foreign states to immunity

should henceforth be decided by courts .. ." Austria v.

Altmann, 541 U.S. at 697 (quoting 28 U.S.C. § 1602).

Throughout its opinion, the Supreme Court reiterated

that its holding wasa narrow” one, applicable

specifically to the FSIA. See 541 U.S. at 700. As a

result of the narrowness of the holding in Altmann and

sla

the significant distinctions between the facts of

Altmann and those of the present case -- also, like

Landgraaf, a Title VII case involving the 1991

amendments to the Civil Rights Act -- it is evident that

the decision in Altmann is not an intervening change in

controlling law that affects the court of appeals'

reversal and remand in this case.

V. INTEREST ISSUE

One final issue remains: whether the refund to the

Navy should include interest, and if such interest is

granted, at what rate. Defendants note that the Trout

class and its counsel have had the use of the attorneys’

fees and expert costs for many years. See Memorandum

of Points and Authorities in Support of Mot. for Final

Deter. at 13. Defendants argue that in order to restore

the parties to the status quo, the government is entitled

to interest on the refund. /d. The Court agrees.

This Court's initial Memorandum Opinion and Order

granting prejudgment interest to the Trout class

ordered defendants to pay interest at the prime rate

rather than at the more favorable Treasury Bill rate, as

defendants had urged. See Memorandum Opinion and

Order issued May 31, 2001 [659]. While the fairest

result now would be to require plaintiffs in making

their refund to defendants to pay interest at the same

prime rate they received, the government continues to

believe that the Treasury Bill rate is more appropriate

for such calculations and consistent with precedents

involving prejudgment interest calculations in other

contexts. See Memorandum of Points and Authorities

in Support of Mot. for Final Deter. at 13-14. It therefore

proposes that the rates and procedures specified in 28

32a

U.S.C. § 1961 be adopted to calculate interest with

respect to the excess interim payments, even though

this approach provides a financial windfall to the

plaintiffs. The Court adopts defendants’ suggestion.

A separate Order consistent with this Opinion will issue

this same day.

SO ORDERED.

PAUL L. FRIEDMAN

United States District Judge

DATE: December 15, 2006

ORDER

For the reasons set forth in the Opinion issued this

same day, it is hereby

ORDERED that Defendants’ Motion [673] for Final

Determination of Attorneys' Fees and Costs Owed to

the Plaintiff Class is GRANTED; it is

FURTHER ORDERED that Plaintiffs’ Motion [687]

for Entry of Judgment Awarding Plaintiffs’ Pre-

November, 1991 Interest on Backpay and Attorneys'

Fees Pursuant to Austria v. Altman [sic] is DENIED;

it is

FURTHER ORDERED that plaintiffs and their

counsel shall refund $106,375.45 of the interim

attorneys’ fees and costs previously paid by the

government in this action plus interest on that amount,

doa

computed using the Treasury bill rate of interest

pursuant to 28 U.S.C. § 1961, from the dates on which

the excess payments were made up to the date of

repayment; and it is

FURTHER ORDERED that the total amount due

pursuant to the foregoing paragraph shall be paid to the

government by plaintiffs and their counsel within thirty

(30) days from the date of this Order. This is a final

appealable order. See FED. R. APP. P. 4(a).

SO ORDERED.

PAULL. FRIEDMAN

United States District Judge

DATE: December 15, 2006

Footnotes

1 Under Rule 25(d)(1) of the Federal Rules of Civil

Procedure, Secretary Donald C. Winter has been

substituted for former Secretary John H. Dalton.

2 28 U.S.C. § 2414 provides, in part, that "payment of

final judgments rendered by a district court... against

the United States shall be made on settlements by the

Secretary of the Treasury,” and that "[wJhenever the

Attorney General determines that no appeal shall be

taken from a judgment or that no further review will be

sought from a decision affirming the same, he shall so

certify and the judgment shall be deemed _ final."

(emphasis added).

34a

3 42 U.S.C. § 198&8(c) provides: "In awarding an

attorney's fee under subsection (b) of this section in any

action or proceeding to enforce a provision of section

1981 or 1981la of this title, the court, in its discretion,

may include expert fees as part of the attorney's fee."

35a

Filed: 7/22/1998

Civil Action No. 73-55 (consolidated with 76-1206) (HH)

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

YVONNE TROUT, CLARA PERLINGIERO et al,

Plaintiffs,

Vv.

JOHN H. DALTON, Secretary of the Navy, et al.,

Defendants.

Memorandum and Order

This matter is before the Court on cross-motions for

summary judgment on the issue of prejudgment

interest on attorney fees. Resolution of these motions

will mark the completion of one of the longest-running

eases in this Court's memory. For the reasons That

follow, plaintiffs’ motion is granted.

On November 22, 1993, this Court approved a

stipulation of settlement in this protracted Title VII

litigation. [It took twenty years to reach the point of

settlement because the defendant insisted on opposing,

appealing, and moving to re-open already-litigated and

already-decided issues at every turn. See e.g. Trout v.

Lehman, 702 F. 2d 1094, 1106 (D. C. Cir. 1983); Trout v.

Garrett, 780 F. Supp. 1896, 1420-29 (D.D.C. 1991)

(“[T]he government has sought to prolong this litigation

O'Keefe, 144 F.R.D. 587, 588-90 (D.D.C. 1992); Trout v.

36a

by every means possible, both fair and foul.")

On May 10, 1995, this Court stayed resolution of the

final issue in this case, availability of prejudgment

interest against the defendants, pending our Court of

Appeals’ decision in Brown v. Secretary of the Army.

See 78 F’. 3d 645 (D.C. Cir. 1996). Brown has since been

decided and, almost twenty five years after this case

began, this final issue is now ripe for decision.

II.

Brown addressed whether Section 114(2) of the Civil

Rights Act of 1991, which took effect on November 21,

1991, could be applied retroactively to cases pending

when the section took effect. See 78 F. 3d at 648.

Section 114(2) waives the sovereign immunity of the

United States for interest payments on amounts

awarded in Title VII litigation.' Brown, decided on

March 12, 1996, held that section 114(2) is not

retroactive and that sovereign immunity barred

application of the new interest provision. See 78 F.3d. at

647, 651.

Ill

The parties dispute whether Brown applies to this case.

The plaintiffs contend that Brown applies only to cases

like Brown, those in which the merits of the case were

litigated and completed prior to November 1, 1991. The

defendant argues that Brown applies to any case

pending on the date of enactmtent.

Limited to its facts, the rule of Brown applies only to

cases in which the merits of the.underlying action were

37a

completed prior to November 21, 1991. Because the

instant case was very much alive and being actively

litigated on that date,® Brown is not dispositive and the

plaintiffs are entitled to prejudgment interest on

attorney fees.

As of November 21, 1991, the effective date of the Act,

the award phase of this case was being actively

litigated. The following examples are representative of

the tenor of this litigation after Sec. 114(2) took effect.

Long after this Court concluded that the Nary had

discriminated against the class on the basis of sex, on

April 24, 1990 Navy counsel represented to the Court

that it retroactively would promote five claimants. See

Trout, 144 F.R.D. at 591. Then, on September 20, 1990

the Navy filed a_ pleading entitled "Statement

Regarding the Status of Backpay Claims for [the Five

Claimants]" in which the department made a

"fundamental change in position."See Trout, 144 F.R.D,

at 591-93. In that filing Navy counsel stated, contrary

to the previous representations, that the promotions

had+- not taken place and that the Navy would not

promote the five women until it had fully exhausted its

claimed right to appeal the question of liability for

discrimination of the entire class. See id. at 591-92. This

matter was not resolved fully until November 23, 1993,

the date this Court entered the final order approving

the parties' "Joint Stipulation of Settlement.

Additionally, as of November 12, 1992, almost one year

after Sec. 114(2) took effect, this Court was. still

refereeing disputes Over the backpay period and

oda

backpay amounts due to the claimants. These backpay

issues also were not resolved until November 23, 1993.

As evidenced by the foregoing, although the Court had

made a final determination of liability, the award phase

was ongoing and the case still far from over when §

114(2) became effective on November 21, 1991.

In addition to the above, the Court notes the purpose of

prejudgment interest: to compensate a party for the

delay in receiving payment. See Library of Congress v.

Shaw, 478 U.S. 310 (1986). This case is the classic

paradigm where prejudgment interest is appropriate; a

Jarndyceian case’ that has taken on a life of its own and,

more importantly, been a constant presence in the lives

of the plaintiffs and on the docket of this Court.

Foremost in the Court's memory are the epic delays

that prevented the efficient closure of an unfortunate

chapter in the Navy's history. With this Order, that

chapter hopefully shall close and the women who

suffered discrimination by the Navy ean finally put

behind them this lengthy journey:

Based on the lengthy delay endured by the plaintiffs in

this case, the Court concludes that they are entitled to

pre judgment interest. Additionally, as discussed

above, § 114(2) applies to this case and the government

is thus liable for the prejudgment interest awarded

today.

Accordingly, it is this 22" day of July 1998 hereby

39a

ORDERED that plaintiffs' motion for prejudgment

interest on attorney fees is GRANTED; and it is

further

ORDERED that within sixty (60) days of the date of

this order the plaintiffs shall submit to the Court a

calculation of the interest amount due using the prime

rate.

Harold H. Greene

U.S. District Court Judge

Footnote

iSection 114(2) provides that “the same interest to

compensate for delay in payment shall be available as in

cases involving nonpublic parties.” 42 U.S.C. 2000e-16

(d).

2The Court recognizes that as of April 25, 1990 it had

concluded that "the liability phase of the class action is

final, and the class litigation is no longer pending."

Trout v Garrett, Civ. A. No. 73-55, 1990 WL 96647 at * 2

(D.D.C. Apr. 25, 1990). As discussed below, however,

the award phase of the litigation was ongoing and was

picking up steam when § 114(2) became effective. See

e.g. Trout, 144 F.R.D. at 596-97

35ee C. Dickens, Bleak House (1853).

40a

Filed: 8/12/1998

Civil Action No. 73-55 (consolidated with 76-1206)

(HHG)

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

YVONNE TROUT, CLARA PERLINGIERO et al,

Plaintiffs,

JOHN H. DALTON, Secretary of the Navy, et al.,

Defendants.

ORDER

For the reasons set forth in this Court's Memorandum

and Order of July 2, 1998, it is this 11" day of August,

1998 hereby -

ORDERED that the plaintiffs’ motion for prejudgment

interest on back pay awards is GRANTED); and it is

further

ORDERED that within sixty (60) days of the date of

this Order the plaintiffs shall submit to the Court a

statement of the amount of interest due calculated

using the prime rate.

Harold H. Greene

U.S. District Court Judge

4la

Filed 11/19/2008

No. 07-5053

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

YVONNE G. TROUT AND CLARA A.

PERLIGIERO,

APPELLANTS

SECRETARY OF THE NAVY AND

COMMANDING OFFICER NAVAL COMMAND

SYSTEMS SUPPORT ACTIVITY,

APPELLEES

Before: SENTELLE, Chief Judge, and GINSBURG

and BROWN, Circuit Judges

ORDER

Upon consideration of appellants’ petition for panel

rehearing filed on October 14, 2008, it is ORDERED

that the petition be denied.

42a

Filed 11/19/2008

No. U7-5053

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

YVONNE G. TROUT AND CLARA A.

PERLIGIERO,

APPELLANTS

Vv,

SECRETARY OF THE NAVY AND

COMMANDING OFFICER NAVAL COMMAND

SYSTEMS SUPPORT ACTIVITY,

APPELLEES

Before: SENTELLE, Chief Judge, and GINSBURG

and BROWN, Circuit Judges

ORDER

Upon consideration of appellants’ petition for rehearing

en banc, and the absence of a request by any member of

the court for a vote, it is

ORDERED, that the petition be denied.

Per Curiam

A3a

Supreme Court of the United States

Office of the Clerk

Washington, DC 20548-0001

November 1, 2004

Mr. Bradley G. McDonald

McDonald & Karl

900 Seventeenth Street, N.W.

Washington, DC 20006

Re: Yvonne G. Trout, et al v. Hansford T. Johnson,

Acting Secretary of the Navy, et al. No. 08-22

Dear Mr. McDonald:

The Court today entered the following order in

the above-entitled case:

The motion of petitioner for leave to file a petition for

rehearing is denied.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.