dissenting as to Part II:
I agree with the panel that the Back Pay Act, 5 U.S.C. § 5596, applies to actions by federal employees under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and thus waives, to the extent of its coverage, the federal government’s sovereign immunity from prejudgment interest on awards of back pay resulting from successful Title VII actions. Consistent with the ratio decidendi of that conclusion, however, I dissent from the panel’s holding that the Back Pay Act does not encompass denials of promotions that are held to be unlawful under Title VII.
As part of the Civil Service Reform Act of 1978, Congress amended the Back Pay Act to expand the definition of “unjustified or unwarranted personnel action[s]” covered by the Act to include “the omission or failure to take an action or confer a benefit.” Pub.L. No. 95-454, § 702, 92 Stat. 1111, 1216 (1978) (codified at 5 U.S.C. § 5596(b)(4)). An unlawful failure to promote an individual is a quintessential example of an “unwarranted personnel action” committed by failing to “take an action” or to “confer a benefit.” Moreover, the legislative history indicates that the amendment was meant “to reflect the broader interpretation ... given [to] the Back Pay Act in recent years by the Comptroller General and the Civil Service Commission through decision and regulation.” S.Rep. No. 969, 95th Cong., 2d Sess. 114 (1978), reprinted in 1978 U.S.Code Cong. & Ad.News 2723, 2836. As the panel notes, these agencies had interpreted the Back Pay Act to apply to at least certain categories of promotions. See, e.g., In re John Cahill, 58 Comp. Gen. 59, 61-62 (1978) (extending Act to “mandatory” promotions required by collective bargaining agreements); 5 C.F.R. § 550.802 (1978) (applying Act to “nondis-cretionary” promotions).
The unqualified language added by the 1978 amendment, extending the Back Pay Act to cover the “failure to take an action or confer a benefit,” presumptively applies to all categories of actions covered by the Act, including — as the panel has decided— those under Title VII, absent strong evidence indicating that Congress intended to give the language less than its plain meaning. The panel, however, concludes that the 1978 amendment extended the Act only to promotions of a very limited kind rarely if ever at issue in Title VII promotions cases. Majority Opinion (“Maj. op.”) at 219-221. I am unpersuaded.
The panel is uncomfortable, as was the district court, with the fact that Congress in 1978 left unchanged the Back Pay Act’s requirement that an aggrieved employee suffer a “withdrawal or reduction” in pay. 5 U.S.C. § 5596(b)(1). Because the wrongful denial of a promotion results in neither a “withdrawal” nor a “reduction” in an employee’s existing pay, but merely deprives the employee of an increase in that pay, the panel concludes that this language is in tension with Congress’ extension of the Act to “omission[s] or failure[s] to take an action or confer a benefit.” Maj. op. at 218-219. The legislative history of the amendment, however, provides a satisfactory explanation that reinforces the plain language of the amendment itself. The *222Senate Report, after stating that the amendment reflects the “broader interpretation” given to the Act by the Civil Service Commission and the Comptroller General, indicates that Congress intended the words “withdrawal or reduction” to be read more expansively in the future to cover “a withdrawal, reduction, denial, or denial of an increase in” all or part of an employee’s compensation. S.Rep. No. 969 at 115, reprinted in 1978 U.S.Code Cong. & Ad.News at 2837 (emphasis added). This indication of an intent to adopt a more expansive construction of an old term to accommodate a new one resolves the tension and emphasizes the amendment's extension of the Act to unlawful denials of promotions and other acts of omission or failures to confer benefits.1
In any event, the panel refuses in at least some cases to allow the “withdrawal or reduction” language to trump Congress’ clear intent to expand the Back Pay Act to promotions.2 Relying on the broader interpretation that had theretofore been given to the Back Pay Act by the Comptroller General and the Civil Service Commission, the panel concludes that Congress intended back pay to extend only to those promotions that are “mandatory” or “nondis-cretionary” so that the aggrieved employee may “be treated as one already ‘duly appointed’ to the higher position” and the failure to promote as the equivalent of a “withdrawal or reduction” in pay. Maj. op. at 220. The panel reads this standard as applying only where an agency is required to take a specified action. Id. at 220. The problem with this analysis, however, is that promotions denied for discriminatory reasons in violation of Title VII also meet this test. Title VII is an instruction to employers not to permit discrimination to infect their employment decisions, and the finding required in order to hold an employer liable for back pay in a Title VII promotions case — that an employee would have been promoted absent illegal discrimination3 — falls squarely within the Civil Ser*223vice Commission’s definition of a “nondis-cretionary” action. That definition encompassed
any provision of law, Executive order, regulation, personnel policy issued by an agency, or collective bargaining agreement that requires an agency to take a prescribed action under stated conditions or criteria.
5 C.F.R. § 550.802 (1978). Title VII, a “provision of law,” “requires” a federal employer to “take a prescribed action under stated ... criteria,” namely, to promote an employee is not doing so would violate Title VII’s bar on discrimination.
If a failure to promote is illegal under substantive law, then, a federal employer has no discretion and must promote the employee. I read the Civil Service Commission’s use of the word “nondiscretionary,” and Congress’ adoption of it in the legislative history of the 1978 amendment, as merely indicating that the Back Pay Act is not intended to apply to any employment act that is legal because entrusted to the discretion of the federal employer. This is borne out by the language in the legislative history quoted by the panel, Maj. op. at 220 n. 4, indicating that “unjustified or unwarranted” personnel actions are “acts of commission as well as omission with respect to nondiscretionary provision^] of law, Executive order, regulation or collective bargaining agreement.” S.Rep. No. 969 at 115, reprinted in 1978 U.S.Code Cong. & Ad.News at 2837 (emphasis added). This, of course, is fully consistent with the fact that the Back Pay Act itself provides no substantive rights, but merely provides a remedy — back pay — where a federal employee is found to have suffered an “unjustified or unwarranted personnel action” by “an appropriate authority” under “applicable law, rule, regulation, or collective bargaining agreement.” 5 ' U.S.C. § 5596(b)(1).
The absence of any pre-1978 application of the “nondiscretionary” standard to discriminatory promotions actions by the Civil Service Commission or the Comptroller General can also be easily explained: The three major pieces of federal discrimination legislation that applied to federal employees prior to 1978 — Title VII, the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., and the Equal Pay Act, 29 U.S.C. § 206 — all provided for their own back pay remedies. Because the Back Pay Act at that time did not waive the government’s immunity from prejudgment interest, there was no need for a federal employee suing under one of these statutes to resort to the Back Pay Act for relief, and thus, there was nothing compelling the federal agencies that administered the Back Pay Act to address the question presented here — whether the Back Pay Act applies to wrongful denials of promotions under these statutes. That historic circumstance should not, however, detract from the plain text of the 1978 amendment itself, which broadened the Back Pay Act’s coverage to failures to take actions or confer benefits.
Finally, the panel demurs on the ground that Library of Congress v. Shaw, 478 U.S. 310, 106 S.Ct. 2957, 92 L.Ed.2d 250 (1986), instructs us to find waivers of the government’s sovereign immunity from interest only where Congress has clearly expressed such an intent. Once the panel has deter*224mined, however, that Congress waived the government’s immunity in the Back Pay Act with respect to Title VII actions, that waiver should be given its full and natural effect unless there are indications that Congress intended otherwise. This accords with the Supreme Court’s approach in Loef-fler v. Frank, 486 U.S. 549, 108 S.Ct. 1965, 100 L.Ed.2d 549 (1988), where the Court held that Congress had waived the government’s immunity from interest in Title VII actions against the United States Postal Service by providing in the Postal Reorganization Act of 1970, 39 U.S.C. § 401(1), that the Postal Service could “sue and be sued.” The Court stated that such waivers of governmental immunity “should be liberally construed” absent indications that Congress Sniended the waiver to be interpreted narrowly and absent any inconsistency with a broader statutory policy or scheme.'4 Id. at 554-57, 108 S.Ct. at 1968-70. For the reasons given above, I find no indication that Congress intended its 1978 amendment of the Back Pay Act to have any less comprehensive effect than its language naturally suggests — extending the scope of the Act to all cases involving an “unjustified or unwarranted” denial of promotion under applicable law, regulation, or collective bargaining agreement, including discriminatory denials of promotions under Title VII. Moreover, a liberal construction of the waiver of immunity accomplished by the Back Pay Act would be fully consistent with the Act’s general policy of providing federal employees with a remedy for compensation lost due to “unjustified or unwarranted personnel action[s].” I therefore respectfully dissent from the panel’s holding that denials of promotions held unlawful under Title VII are not encompassed by the Back Pay Act.
. In Spagnola v. Stockman, 732 F.2d 908, 912 (Fed.Cir.1984), the Federal Circuit construed this piece of the legislative history to indicate that Congress intended to expand the words "withdrawal or reduction" to cover only those types of promotions recognized by the Comptroller General and the Civil Service Commission, and no more. The court stated:
Previously, the Back Pay Act literally permitted recovery only when the employee incurred 'a withdrawal or reduction’ in pay, 5 U.S.C. § 5596(b) (1976) — thus omitting in words to blanket failures to make additional payments that were mandated by law, e.g., a statutory periodic increase or a benefit conferred by a non-discretionary administrative regulation. For some years, the General Accounting Office authorized such payment for non-discretionary benefits ... and in 1977 the Civil Service Commission adopted regulations along the same line_ The 1978 amendment ... was specifically intended to incorporate that general administrative position into the Act — and no more.
Id. (citing to Senate Report). As explained below, however, I believe this language in Spagno-la is fully consistent with construing the 1978 amendment to cover the types of promotions at issue in the typical Title VII promotions action.
. To this extent, then, the panel accepts that the 1978 amendment limited the Supreme Court's decision in United States v. Testan, 424 U.S. 392, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). In Testan, the plaintiffs sought the reclassification of their positions to a higher grade and claimed a corresponding right to back pay for the period when they were performing the work required of those in the higher grade. The Court denied them relief, holding that the Back Pay Act applies only where there is an actual "withdrawal or reduction” in an employee’s existing pay. Id. at 406-07, 96 S.Ct. at 957. The legislative history of the 1978 amendment recognized and confirmed the Testan decision, but expressly limited it to reclassification actions. See S.Rep. No. 969 at 114, reprinted in 1978 U.S.Code Cong. & Ad.News at 2836 (the amendment "reflects the 1976 decision of the Supreme Court in United States v. Testan by explicitly exempting reclassification actions from its provisions”).
.Prior to Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), the circuits were split over precisely what the plaintiff in a Title VII disparate treatment case had to prove in order to establish liability on the part of the employer. Some circuits required the plaintiff to prove that the decision would have been in her favor but for the discrimination, see, e.g., Peters v. City of Shreveport, 818 F.2d 1148, 1161 (5th Cir.1987); other circuits, including this one, held that once a plaintiff had shown that discrimination contributed to the employment decision, the burden shifted to the employer to show that the same decision would have been made absent consideration of the impermissible factor, see, e.g., Toney v. Block, 705 F.2d 1364, 1366 (D.C.Cir.1983); and still other circuits distinguished the question of liability from that of remedies, holding that a Title VII *223violation was made out upon plaintiffs showing that discrimination was a factor in the decision, but that equitable remedies such as back pay and promotions would not be granted if the employer could demonstrate that the same decision would have been made absent the discrimination. See, e.g., Fadhl v. City and County of San Francisco, 741 F.2d 1163, 1165-66 (9th Cir. 1984). All circuits, however, were united in refusing to impose equitable remedies absent a showing — either by direct proof or by the employer’s failure to rebut a presumption in favor of plaintiff — that plaintiff would have received the position but for discrimination by the employer.
The Supreme Court’s decision in Price Water-house resolved this intercircuit conflict by holding that a Title VII plaintiff must show only that discrimination was a factor in an adverse employment decision, but that the employer can avoid a finding of liability, along with remedies such as back pay and promotions, by demonstrating that its decision would have been the same absent consideration of the illicit factor. See 109 S.Ct. at 1784-93 (plurality opinion). Thus, after Price Waterhouse, the remedies question remains the same as before: whether, absent the discrimination, the person would have received the position.
. Although the Supreme Court in Loeffler applied this "liberal construction" rule only in the context of a “sue and be sued” clause in a federal agency's enabling legislation, there is no reason it should not be applied more generally to cover waivers of the type at issue in this case.