Wesley T. Bailey v. Chattem, Inc.

KRUPANSKY, Circuit Judge,

concurring in part, dissenting in part.

I concur with the majority in its disposition of this case in all respects except that I would not apply the post judgment interest rate mandated by the amended version of 28 U.S.C. § 1961 retroactively to the October 27, 1980 judgment date assigned by the majority in its opinion because retroactive application would conflict with the clear and concise language of § 1961, which became effective on October 1, 1982.

An objective analysis of the pertinent statutory language of § 1961 which provides that “interest shall be calculated from the date of the judgment, at a rate equal to the coupon issue yield equivalent ... of the average accepted auction price for the last auction of fifty-two week United States Treasury bills settled immediately prior to the date of the judgment”, reflects a congressional intent of prospective and not retroactive effect of its enactment of the statute.

Initially, in Bradley v. Richmond School Board, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974), the Supreme Court advised that a court is to apply the law, in effect, at the time it rendered its judgment, unless such action would result in manifest injustice, or the legislative history of an enactment directs the contrary.

Mindful of the pronouncements of Bradley, my attention is directed to the Fifth Circuit’s comments in Brooks v. United States, 757 F.2d 734, 741-42 (5th Cir.1985) wherein that court in commenting upon the Second Circuit's analysis of the issue at bar in Litton Sys. v. American Tel. & Tel. Co., 746 F.2d 168 (2d Cir.), cert. denied, 464 U.S. 1073, 104 S.Ct. 984, 79 L.Ed.2d 220 (1984) stated:

In the instant case, a fair construction of the FCIA leads to the conclusion that Congress did not intend for the T-bill rate to apply to judgments entered prior to the effective date of the FCIA. The statute directs that the “interest shall be calculated from the entry of the judgment at a rate equal to the coupon issue yield equivalent ... of the average accepted auction price for the last auction of fifty-two week United States Treasury bills settled immediately prior to the date of the judgment.” 28 U.S.C. § 1961(a) (emphasis supplied). Section 402 of the FCIA provides that the act “shall take effect on October 1, 1982.” As the Second Circuit noted, the conjunction of the provision creating the effective date of the statute and the “statutory direction to calculate a rate based [on the T-bill rate] ... ‘immediately prior to the date of the judgment’ is a strong indication that Congress expected the new formula to apply only to judgments entered after the effective date of the statute.” Litton, 746 F.2d at 174.
Moreover, this result is consistent with the practice of courts in applying and interpreting the FCIA’s amendments to section 1961. In providing for the effective date of the FCIA, Congress noted, “The delay is intended to provide time for planning the transition and for permitting the bar to become familiar with the provisions.” S.Rep. No. 97-275, 97th Cong., 1st Sess. (1981), U.S.Code Cong. & Admin.News 1982, pp. 11, 42.

In Litton, the Second Circuit, recognizing the dilemma posed by the retroactive application of § 1961 as suggested by the majority opinion herein, stated:

If amended section 1961 were applied to judgments entered before its effective date but with interest at an increased rate accruing only from the effective date, choice would have to be made as to the applicable rate. Litton contends that the rate should be the average coupon yield of Treasury bills auctioned just pri- or to June 30, 1981, the date the judgment entered. That makes no economic sense at all and could not have been intended by Congress. Since Litton’s *157judgment was properly accruing interest at 9% from the date of its entry until at least October 1, 1982, it would be an unwarranted windfall to have it accrue interest thereafter at a rate determined by market conditions 15 months earlier. On the other hand, if the rate accruing from the effective date of the statute was the average coupon yield of Treasury bills auctioned just prior to that effective date, the result would be economically defensible, but hopelessly inconsistent with the terms of the statute, which tie the applicable rate to the date of the judgment. We therefore reject Litton’s fall-back position, but see Handgards, Inc. v. Ethicon, Inc., 552 F.Supp. 820 (N.D.Cal.1982), aff'd, 743 F.2d 1282 (9th Cir.1984), and construe amended section 1961 to have no application to judgments entered before October 1, 1982.

Litton Sys. v. American Tel. & Tel. Co., 746 F.2d 168 (2d Cir.), cert. denied, 464 U.S. 1073, 104 S.Ct. 984, 79 L.Ed.2d 220 (1984), see also Merit Ins. Co. v. Leatherby Ins. Co., 728 F.2d 943 (7th Cir.1984); and United States v. Dollar Rent a Car Systems, Inc., 712 F.2d 938, 9410 n. 5 (4th Cir.1983).

Because I conclude that the reasoning and disposition of the Fifth and Second Circuits in Brooks and Litton, respectively, are more persuasive than the rationale of the Ninth Circuit in Campbell v. United States, 809 F.2d 563 (9th Cir.1987), I would apply the pre-1982 version of § 1961 which would, in turn, apply the post judgment interest rate as prescribed by the Tennessee statute to the entire 1980-83 post judgment period in issue.