United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 24, 2009 Decided December 1, 2009
No. 08-5228
JOHN F. WINSLOW,
APPELLANT
v.
FEDERAL ENERGY REGULATORY COMMISSION AND UNITED
STATES DEPARTMENT OF ENERGY,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:84-cv-1316-JMF)
Richard L. Swick argued the cause for appellant. With
him on the briefs was David H. Shapiro.
Jane M. Lyons, Assistant U.S. Attorney, argued the cause
for appellees. With her on the brief were Jeffrey A. Taylor,
U.S. Attorney at the time the brief was filed, and R. Craig
Lawrence, Assistant U.S. Attorney.
Before: SENTELLE, Chief Judge, and GRIFFITH and
KAVANAUGH, Circuit Judges.
2
Opinion for the Court filed by Circuit Judge
KAVANAUGH.
KAVANAUGH, Circuit Judge: After losing his job as an
attorney at the Federal Energy Regulatory Commission, John
Winslow sued and prevailed on an age discrimination claim.
The District Court awarded back pay; the court’s order did not
include prejudgment interest. Several years later, Winslow
moved for prejudgment interest, which he claimed was
mandatory under the Back Pay Act. The District Court
treated Winslow’s claim as a Rule 59(e) motion to alter or
amend the judgment. The problem for Winslow was that
Rule 59(e) motions must be filed no later than 10 days after
the entry of judgment. Therefore, the District Court denied
Winslow’s motion as time-barred. Winslow now appeals,
arguing that the motion is better categorized as a motion
under Rule 60(a) to correct a clerical mistake or a motion
under Rule 69 or 70 to enforce the judgment. Because those
motions are not subject to time constraints, he asks us to reach
the merits of his prejudgment interest argument. The
Supreme Court has flatly stated, however, that motions for
mandatory prejudgment interest are governed by Rule 59(e)
and, therefore, by its 10-day filing requirement. See
Osterneck v. Ernst & Whinney, 489 U.S. 169, 176-77 n.3
(1989). We therefore affirm the judgment of the District
Court.
I
After a bench trial, the District Court found that FERC
had unlawfully fired John Winslow on the basis of age. As
relief, the District Court ordered reinstatement as well as back
pay and other benefits.
3
The parties entered into a stipulated agreement with
respect to the components of the award. The stipulation
included a precise calculation of the back pay due Winslow:
“payment of backpay in the gross amount of $179,126.34.”
Winslow v. FERC, No. 84-1316, at 2 (D.D.C.) (stipulation to
relief granted) (J.A. 62). It also included other relief such as
the “correction of all agency records, including plaintiff’s
official personnel folder” and “payment of an additional
$931.36 for health expenses.” Id. at 2-3 (J.A. 62-63).
The District Court accepted the parties’ stipulation and
issued an order directing FERC to make the listed payments
to Winslow. Winslow v. FERC, No. 84-1316 (J.A. 60-65).
FERC paid Winslow $179,126.34 – full back pay without
interest.
Two and a half years later, Winslow moved to obtain
prejudgment interest under the Back Pay Act. That Act
provides that certain awards of back pay “shall be payable
with interest.” 5 U.S.C. § 5596(b)(2)(A).
In accord with the Supreme Court’s decision in
Osterneck v. Ernst & Whinney, 489 U.S. 169, 176-77 n.3
(1989), the District Court classified Winslow’s motion as a
Rule 59(e) motion to alter or amend the judgment. Because
Rule 59(e) motions must be filed no later than 10 days after
the entry of judgment and because Winslow’s motion was
filed two and a half years after the entry of the judgment, the
District Court ruled that Winslow’s motion was untimely.
This appeal followed. We exercise de novo review of this
legal question regarding interpretation of Rule 59(e).
4
II
Winslow contends that he is entitled under the Back Pay
Act to receive prejudgment interest on his back pay award.
The Back Pay Act provides that back pay awards “shall be
payable with interest,” 5 U.S.C. § 5596(b)(2)(A), and the Act
applies to employment discrimination suits such as
Winslow’s. See Brown v. Secretary of the Army, 918 F.2d
214, 218 (D.C. Cir. 1990).
In light of what he views as a clear legal entitlement to
prejudgment interest on his back pay award, Winslow
principally argues that the District Court’s failure to award
prejudgment interest was simply a clerical error. Motions to
correct clerical errors fall under Rule 60(a); under that rule, a
clerical error may be corrected “whenever one is found in a
judgment.” FED. R. CIV. P. 60(a). Winslow alternatively
suggests that his motion may be characterized as a motion
under Rule 69 or 70 to enforce the original judgment.
Whether under Rule 60, Rule 69, or Rule 70, Winslow asserts
that his motion – which was filed two and a half years after
the District Court’s entry of judgment – was timely.
Winslow’s argument faces an insurmountable hurdle,
however – namely the Supreme Court’s decision in Osterneck
v. Ernst & Whinney. In that case, the Supreme Court held that
“a postjudgment motion for discretionary prejudgment
interest constitutes a motion to alter or amend the judgment
under Rule 59(e)” and is subject to the strict 10-day time limit
for Rule 59(e) motions. 489 U.S. 169, 175 (1989) (emphasis
added). More to the point for present purposes, the Osterneck
Court also addressed the related issue of mandatory
prejudgment interest: “We do not believe the result should be
different where prejudgment interest is available as a matter
5
of right.” Id. at 176 n.3. The Court explained that courts and
litigants are best served by a “bright-line rule” and that even a
motion for mandatory prejudgment interest “implicates the
merits of the district court’s judgment” and thus is governed
by Rule 59(e). Id. at 177 n.3.
Winslow contends that Osterneck’s statement regarding
mandatory prejudgment interest is dicta. He urges us to “take
a different course” than the Osterneck Court and to allow
motions for mandatory prejudgment interest under Rule 60(a).
Winslow Br. at 29-30. He says that his position better
“comports with the Congressional and judicial policies
favoring the enforcement of anti-discrimination laws via full
compensation to prevailing plaintiffs.” Id. at 30.
We decline Winslow’s invitation to flout the Supreme
Court’s decision in Osterneck. Vertical stare decisis – both in
letter and in spirit – is a critical aspect of our hierarchical
Judiciary headed by “one supreme Court.” U.S. CONST. art.
III, § 1. And as we have said before, “carefully considered
language of the Supreme Court, even if technically dictum,
generally must be treated as authoritative.” United States v.
Dorcely, 454 F.3d 366, 375 (D.C. Cir. 2006). We note,
moreover, that we are not alone in choosing to adhere to
Osterneck on this question of mandatory prejudgment
interest: The five other courts of appeals to consider the
question have reached the same result. See Crowe v. Bolduc,
365 F.3d 86, 92 (1st Cir. 2004); Kosnoski v. Howley, 33 F.3d
376, 378 (4th Cir. 1994); Pogor v. Makita U.S.A., Inc., 135
F.3d 384, 387 (6th Cir. 1998); McCalla v. Royal MacCabees
Life Ins. Co., 369 F.3d 1128, 1132 (9th Cir. 2004); McNickle
v. Bankers Life & Cas. Co., 888 F.2d 678, 682 (10th Cir.
1989).
6
We affirm the judgment of the District Court.
So ordered.