United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 6, 2002 Decided January 31, 2003
No. 01-5325
Yvonne G. Trout, et al.,
Appellees
v.
Secretary of the Navy and
Commanding Officer, Naval Command Systems
Support Activity,
Appellants
Appeal from the United States District Court
for the District of Columbia
(No. 73cv00055)
Daniel F. VanHorn, Assistant U.S. Attorney, argued the
cause for appellants. With him on the briefs were Roscoe C.
Howard, Jr., U.S. Attorney, and R. Craig Lawrence, Assis-
tant U.S. Attorney.
Bradley G. McDonald argued the cause for appellees.
With him on the brief were John F. Karl, Jr. and William P.
Farley.
Bruce A. Fredrickson, Susan L. Brackshaw, and Jonathan
C. Puth were on the brief for amicus curiae Metropolitan
Washington Employment Lawyers Association in support of
appellees.
Before: Edwards, Rogers and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge: In the most recent chapter of this
extremely protracted litigation, the district court, invoking
s 114(2) of the Civil Rights Act of 1991 ("Act"), Pub. L. No.
102-166, 105 Stat. 1071, 1079 (codified as an amendment to 42
U.S.C. s 2000e-16(d)), ordered the U.S. Navy to pay prejudg-
ment interest on backpay and attorneys' fees for periods
before November 21, 1991, to a class of women who success-
fully established that the Navy discriminated against them in
employment on the basis of sex. Trout v. England, No. 73-
55 (D.D.C. July 17, 2001); see also Trout v. Dalton, No. 73-55
(D.D.C. Aug. 12, 1998); Trout v. Dalton, No. 73-55 (D.D.C.
July 22, 1998). The Navy appeals on the ground that
s 114(2) cannot be applied retroactively to periods predating
November 21, 1991, when s 114(2) became effective, citing
Brown v. Sec'y of the Army, 78 F.3d 645 (D.C. Cir. 1996),
cert. denied, 519 U.S. 1040 (1997), as dispositive. Appellees
would distinguish Brown on the ground that the Navy's
liability was not finally determined until after s 114(2) be-
came effective. Because the holding in Brown rested on
considerations of sovereign immunity as enhanced by the rule
of no-interest against the sovereign, it is dispositive, and
accordingly we reverse the award of prejudgment interest to
the Trout class for periods before November 21, 1991.
I.
In 1991, when Congress enacted s 114(2), the Trout class
action was almost twenty years old. The litigation began in
1973 when Navy computer analyst Yvonne Trout and other
female employees of the Navy's computer operations center
sued the Navy for sex discrimination in violation of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. s 2000e et seq. The
district court consolidated the complaints and certified a class
of civilian women employees who worked for the Navy's
computer operations center at any time between June 6, 1972
and June 4, 1979. In 1981, after a lengthy trial involving
forty-two witnesses, more than 7,000 pages of exhibits, and
extensive regression analyses demonstrating sex discrimina-
tion in the Navy's hiring, promotion, evaluation, and assign-
ment of women, the district court found the Navy liable for
violating Title VII, Trout v. Hidalgo, 517 F. Supp. 873
(D.D.C. 1981), and granted relief to the Trout class in the
form of backpay. Trout v. Hidalgo, 1981 WL 416 (D.D.C.
1981). Following appeals by the Navy, Trout v. Lehman, 702
F.2d 1094 (D.C. Cir. 1983); vacated and remanded, Lehman
v. Trout, 465 U.S. 1056 (1984), the district court reinstated its
finding of discrimination in 1986 on remand. Trout v. Leh-
man, 652 F. Supp. 144 (D.D.C. 1986).
On August 5, 1988, the district court made an interim
award of attorneys' fees and costs to the Trout class, in the
amounts of $276,044.00 and $15,434.01, respectively. Trout v.
Lehman, 702 F. Supp. 3, 4 (D.D.C. 1988). The Navy appeal-
ed the order to pay the interim attorneys' fees on grounds of
sovereign immunity. Trout v. Garrett, 891 F.2d 332, 334
(D.C. Cir. 1989). This court, on December 15, 1989, denied
the Navy's petition for mandamus and dismissed the appeal
because the Navy conceded, and the court agreed, that 42
U.S.C. s 2000e-5(k) "waives the United States' immunity
from claims, whether final or interim, for attorneys' fees as an
element of costs." Id., 336.
While the award of interim attorneys' fees was pending
appeal, the district court, on October 12, 1988, ordered back-
pay relief for the Trout class dating back to 1970, with
individual hearings to be held before a special master to
determine each claimant's entitlement. Trout v. Webb, 708
F. Supp. 358, 358-59 (D.D.C. 1988). After denying the
Navy's motion for reconsideration, Trout v. Ball, 705 F. Supp.
705 (D.D.C. 1989), the district court referred the claims to a
special master with instructions to determine which statistical
methodology was most appropriate for determining backpay.
Id. at 358. By memoranda and orders of March 30, 1990 and
December 27, 1990, the special master accepted the statistical
analysis for calculating backpay provided by the Trout class,
and identified the members of the class entitled to relief.
Trout v. Garrett, 1990 WL 96640 (D.D.C. 1990); Trout v.
Garrett, 1990 WL 301806 (D.D.C. 1990).
Six days after s 114(2) became effective, the district court,
on November 27, 1991, issued an order that (1) identified the
class members entitled to backpay, (2) accepted the special
master's findings that the Trout class' regression analysis
should be used to determine the amount of backpay, and (3)
awarded an interim backpay award of $670,402.75 for the
period from June 1970 through April 30, 1979. Trout v.
Garrett, 780 F. Supp. 1396 (D.D.C. 1991). Following this
court's dismissal of the Navy's appeal of interim backpay for
lack of jurisdiction, Trout v. Sec'y of the Navy, 971 F.2d 766
(D.C. Cir. 1992) (per curiam), the district court ruled, on
November 12, 1992, that the Trout class was entitled to
additional backpay because of the Navy's "indefatigable" and
"inappropriate" delay tactics spanning twenty years of litiga-
tion, and expanded the backpay award to cover "1979 to the
present," then November 12, 1992. Trout v. O'Keefe, 144
F.R.D. 587, 588 (D.D.C. 1992).
By stipulation of January 22, 1993, the parties agreed that
the Trout class was entitled to additional backpay in the
amount of $368,277.18 for the period from June 1, 1979
through December 31, 1991. In a settlement agreement of
September 20, 1993, the parties agreed the eligible Trout
class members were entitled to backpay through December
31, 1991, and attorneys fees through May 17, 1993; the Trout
class reserved the right to seek interest on backpay and
attorneys fees under s 114(2). The district court approved
the settlement agreement on November 22, 1993. Regarding
the reservation in the settlement agreement for interest, the
Navy advised the district court that the government's position
was that s 114(2) was not retroactive, and consequently,
interest did not begin to run on backpay and attorneys' fees
until November 21, 1991. By stipulation of May 10, 1995, the
Navy agreed to pay interest on backpay and attorneys' fees
awards beginning on November 21, 1991, again preserving
the Trout class's right to seek interest for periods prior to
November 21, 1991.
After this court issued its decision in Brown, 78 F.3d 645,
holding that s 114(2) did not apply to a period before its
effective date, the district court awarded the Trout class
prejudgment interest back to 1970. Trout v. Dalton, No. 73-
55 (D.D.C. Aug. 12, 1998); Trout v. Dalton, No. 73-55
(D.D.C. July 22, 1998). The district court, adopting the Trout
class' argument, interpreted Brown to bar s 114(2) interest
only where the merits of the litigation had been completed
before s 114(2) became effective, and concluded that "[b]e-
cause the instant case was very much alive and being actively
litigated on [November 21, 1991], Brown is not dispositive and
the [Trout class members] are entitled to prejudgment inter-
est." While acknowledging that the "liability phase" had
ended on April 25, 1990, the district court focused on the fact
that the "award phase" was ongoing when s 114(2) became
effective. The court entered a final judgment for the Trout
class on July 17, 2001, ordering the Navy to pay prejudgment
interest, based on the prime rate, on backpay in the amount
of $8,627,276.40, and interest on attorneys' fees in the amount
of $1,477,020.90. Trout v. England, No. 73-55 (D.D.C. July
17, 2001).
II.
Section 114(2) provides Title VII plaintiffs in suits against
the federal government with "the same interest to compen-
sate for delay in payment [as is available] in cases against
nonpublic parties." 42 U.S.C. s 2000e-16(d). Whether
s 114(2) permits prejudgment interest for periods prior No-
vember 21, 1991, when it became effective, is a question of
law that the court reviews de novo. Herbert v. Nat'l Acade-
my of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992); Cuddy v.
Carmen, 762 F.2d 119, 123 (D.C. Cir. 1985). However, this
appeal turns on the proper interpretation of Brown, which,
absent en banc review, binds the court on the question of law.
See LaShawn A. v. Barry, 87 F.3d 1389, 1395 (D.C. Cir.
1996). We turn, then, to an examination of the analysis in
Brown.
A.
Statutes waiving the sovereign immunity of the United
States are subject to the rule of strict construction. Library
of Congress v. Shaw, 478 U.S. 310, 318 (1986); Ruckelshaus v.
Sierra Club, 463 U.S. 680, 685 (1983). As such, waivers of
sovereign immunity are to be read "no more broadly than
[their] terms require." Brown, 78 F.3d at 649. Further, as
the court had previously observed, "any doubts about the
scope of a waiver [are to] be resolved in favor of the narrower
governmental liability." Nichols v. Pierce, 740 F.2d 1249,
1257 (D.C. Cir. 1984); see also Shaw, 478 U.S. at 318;
Ruckelshaus, 463 U.S. 680 at 685. These principles of sover-
eign immunity understandably take on "an added gloss of
strictness" when applied to claims of interest against the
United States because the historical "no-interest rule" bars
recovery of interest against the government "unless the
award of interest was affirmatively and separately contem-
plated by Congress." Shaw, 478 U.S. at 315, 318-19; see also
Brown, 78 F.3d at 651; Thompson v. Kennickell, 797 F.2d
1015, 1017 (D.C. Cir. 1986).
In Brown, the court held that the rule of strict construc-
tion, enhanced by the no-interest rule, applies whether the
court is examining a statute's substantive scope or its tempo-
ral reach. 78 F.3d at 650. The court's rationale was twofold.
First, absent express direction from Congress that a statute
is retroactive, to hold that a statute "waives sovereign immu-
nity from an element of damages not contemplated by [ ]
Congress" or applies to "a period of time not envisioned by
Congress," risks "imposing upon the public fisc an unantic-
ipated and potentially excessive liability." Brown, 78 F.3d at
650; see also Shaw, 478 U.S. at 316; Nichols, 740 F.2d at
1255. Second, the strict construction rule provides an impor-
tant backdrop against which Congress acts when it waives
sovereign immunity. Having indicated that this court "would
take the legislature strictly at its word when it specifies
whether and to what extent it waives sovereign immunity,"
the court in Brown concluded that it must presume that when
Congress promulgates a waiver of sovereign immunity, it
knows which principles will govern our interpretation of the
waiver. Id.
Therefore, Brown examined the temporal reach of s 114(2)
through the lens of strict construction, taking care not to
extend the provision beyond Congress's intention. Finding
no evidence in the text or the legislative history of the Civil
Rights Act of 1991 that Congress intended its provisions to
operate retroactively, id. at 648, and noting that with the
exception of two provisions of the Act that operate prospec-
tively, the Act otherwise states that it is to "take effect upon
enactment," s 402(a), Pub. L. No. 102-166, 105 Stat. 1071,
1099, the court held that s 114(2) was inapplicable where the
government's liability was established and attorney's fees
were incurred before s 114(2) became effective. Id. at 647,
654. The court explained that to apply s 114(2) retroactively
would be to impose liability on the government without its
explicit, required consent. Id. at 654.
B.
The only question, then, is whether the holding in Brown
turns on the timing of the discriminatory conduct at issue, as
the Navy contends, or on procedural posture of the case, as
the district court concluded and the Trout class maintains on
appeal. For the following reasons, we conclude that the
district court misapplied Brown's retroactivity analysis by
focusing on the procedural posture of the Trout litigation
rather than the conduct underlying the litigation.
The last paragraph of the opinion in Brown states in
relevant part:
Section 114(2) of the 1991 Act waives sovereign
immunity with respect to interest on attorney's fees
awarded under Title VII. In the case at hand, the
litigation on the merits of Brown's claim was com-
pleted and the attorney's fee incurred before the
statute became effective. Therefore, to apply
s 114(2) retroactively in this case would be to im-
pose upon the United States a liability to which it
has not explicitly consented.
78 F.3d at 654. Both the district court and the Trout class
rely upon this paragraph as grounds for distinguishing the
instant case in which the final judgment on the remedy was
not entered until after s 114(2) became effective. See Trout
v. Dalton, No. 73-55, slip op. at 2-3 (D.D.C. July 22, 1998);
Appellee's Br. at 23. With the exception of the italicized
language, however, nothing in Brown suggests that the avail-
ability of prejudgment interest turns on the procedural pos-
ture of the litigation. To the contrary, the court in Brown
stated at the outset that the critical question was whether
s 114(2) applies retroactively "to a case arising from conduct
that occurred before it was enacted." 78 F.3d at 648 (empha-
sis added). The court thus understood its focus to be on the
conduct underlying the complaint, not the status of the litiga-
tion itself. However confusing the reference to the status of
the litigation in Brown be, it can only be understood as
illustrating that there was no basis for an award of prejudg-
ment interest under s 114(2); it cannot reasonably be read as
altering the analysis on which the court relied in rejecting
retroactive application of s 114(2).
This understanding of the last sentence of the opinion in
Brown is also clear from the fact that the court in Brown
explained its task as one of reconciling the principles applica-
ble to waivers of sovereign immunity, articulated in Shaw and
Ruckleshaus, with the principles applicable to retroactivity,
articulated in Bradley v. Richmond School Bd., 416 U.S. 696
(1974), and Landgraf v. USI Film Prods., 511 U.S. 244 (1994).
73 F.3d at 648. Adopting the rules of strict construction
central to Shaw and Ruckelshaus, the court stated that "the
rule of strict construction displaces the Bradley analysis [that
a court is to apply the law in effect at the time of its decision]
when the question is whether a waiver of sovereign immunity
is to be applied retroactively." 78 F.3d at 654. The court did
not displace, however, "the traditional presumption," affirmed
in Landgraf, "against applying statutes affecting substantive
rights, liabilities, or duties to conduct arising before their
enactment." 511 U.S. at 278 (emphasis added); see Brown,
78 F.3d at 649-52. To the contrary, Brown was informed by
the Supreme Court's holding in Landgraf, which declined to
give retroactive effect, absent congressional intent, to provi-
sions of the 1991 amendments that would attach new "mone-
tary liability ... to conduct occurring before the statute's
enactment." 511 U.S. at 284 (emphasis added). The two-
part rationale in Brown for employing the rule of strict
construction mirrors the Court's language in Landgraf.
Compare, e.g., Brown, 78 F.3d at 649-50, with Landgraf, 511
U.S. at 265-66. Moreover, Brown's conclusion that retroac-
tive application of s 114(2) would "impose upon the United
States a liability to which it ha[d] not explicitly consented," id.
at 654, was in keeping with Landgraf's instruction not to
"impose[ ] new burdens on persons after the fact." 511 U.S.
at 270.
The Supreme Court's decisions in INS v. St. Cyr, 533 U.S.
289 (2001), and Martin v. Hadix, 527 U.S. 343 (1999), remove
any doubt that the conduct underlying the complaint, rather
than the procedural posture of the litigation, has significance
in this context. Both St. Cyr and Martin reiterate the view
that "elementary considerations of fairness dictate that indi-
viduals should have an opportunity to know what the law is
and to conform their conduct accordingly ..." St. Cyr, 533
U.S. at 316 (citation omitted) (emphasis added); see also
Martin, 527 U.S. at 36-61. Absent clear congressional intent,
conduct "should be assessed under the law that existed when
the conduct took place." St. Cyr, 533 U.S. at 316. It follows,
as the statement in Brown illustrated, that s 114(2) does not
apply to conduct that occurred before November 21, 1991.
Here, the Navy's discriminatory conduct against the Trout
class ended in 1979, before s 114(2) became effective. Trout
v. Garrett, 780 F. Supp. 1396, 1400-01 (D.D.C. 1991). Conse-
quently, prejudgment interest may not be awarded to the
Trout class on backpay or attorneys' fees for periods prior to
that date. It is of no relevance whether the liability phase or
the merits phase of the litigation was pending when s 114(2)
became effective. The purpose of the rule of strict construc-
tion, coupled with the no-interest rule and informed by Land-
graf, is to "protect the United States Treasury from potential-
ly excessive liabilities which Congress did not anticipate."
Brown, 78 F.3d at 650 (internal quotations omitted).
The Trout class disputes that the Navy's discriminatory
conduct ended in 1979, maintaining that "the Navy continued
to discriminate against women through at least December 31,
1991." This position is based both on the district court's
extension of the backpay award to prevailing class members
through December 31, 1991, and what the Trout class views
as the Navy's implicit agreement, by stipulating to those
payments, that it was liable for conduct through that date.
But the district court's extension of the backpay award was
remedial in nature, intended only to compensate the Trout
class for the Navy's delaying litigation tactics; the district
court did not find that discrimination by the Navy against the
Trout class extended past 1979. Nor did the Navy implicitly
agree that it was liable for discriminatory conduct through
1991; rather, the Navy stipulated only to the liability deter-
mined by the district court in 1986 on remand.
Finally, in Brown the court found no evidence of congres-
sional intent to apply s 114(2) retroactively. 78 F.3d at 648.
The Trout class' attempt to revisit this question comes too
late, for it does not suggest that the court in Brown over-
looked material legislative history. See generally Barry, 87
F.3d 1389. Not only does its claim of congressional intent to
apply the 1991 amendments retroactively because the 1972
amendments to the Civil Rights Act applied retroactively
ignore Brown and previous holdings of this court, it finds no
explication in the language of the Civil Rights Act of 1991.
The 1972 amendments, unlike the 1991 amendments, included
"express congressional intent that [they were to] 'be applied
to the fullest extent possible.' " Tomasello v. Rubin, 167
F.3d 612, 620 (D.C. Cir. 1999) (quoting McKenzie v. Sawyer,
684 F.2d 62, 78 (D.C. Cir. 1982)); see also Thompson v.
Sawyer, 678 F.2d 257, 289 (D.C. Cir. 1989). Without lan-
guage to indicate such an intent, the court has declined to
give the 1991 amendments the same retroactive application as
the 1972 amendments. Tomasello, 167 F.3d at 620.
Accordingly, in light of the court's analysis of s 114(2) in
Brown and the Supreme Court's instruction that a "statement
that a statute will become effective on a certain date does not
suggest that it has any application to conduct that occurred at
an earlier date," Landgraf, 511 U.S. at 257, we hold that the
district court erred in awarding prejudgment interest under
s 114(2) on backpay and attorneys' fees for periods prior to
November 21, 1991. Because the Navy has paid interim
attorneys' fees to counsel for the Trout class that is attribut-
able to litigation of the prejudgment interest dispute, and
because the final amount of costs and fees remains to be
determined, we remand the case to the district court for final
determination of the costs and fees owed to the Trout class.