Bennett v. City of Holyoke

United States Court of Appeals
For the First Circuit

No. 03-1520

GARY A. BENNETT,

Plaintiff, Appellee,

v.

CITY OF HOLYOKE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Smith,* District Judge.

John H. Fitz-Gibbon, with whom Harry L. Miles and Green,
Miles, Lipton, White & Fitz-Gibbon were on brief, for appellant.
Tani E. Sapirstein, with whom Sapirstein & Sapirstein was on
brief, for appellee.

March 22, 2004

*
Of the District of Rhode Island, sitting by designation.
 SELYA, Circuit Judge. After a jury found for plaintiff-

appellee Gary A. Bennett in a whistleblower action, his employer,

the City of Holyoke (the City), sought to set aside the verdict by

reason of the plaintiff's failure to comply with a statutory notice

requirement. Alternatively, it asked the district court to

defenestrate the ancillary award of prejudgment interest. The

court rejected both of these overtures, and the City appealed. We

affirm: the City has not properly preserved the first issue and

the Massachusetts whistleblower statute broadly authorizes awards

of prejudgment interest against municipal defendants.

I. BACKGROUND

The plaintiff served as a Holyoke police officer for

twenty-one star-crossed years. The district court's opinion on

summary judgment, Bennett v. City of Holyoke, 230 F. Supp. 2d 207,

213-19 (D. Mass. 2002), chronicles the long history of rancor

between the plaintiff and the police department, and we need not

rehearse that history here. For our purposes, it suffices to say

that, during his tenure, the plaintiff became a self-appointed

crusader against what he perceived as corruption at the highest

levels of the police department. In time, he filed a complaint on

behalf of a fellow officer with the Massachusetts Commission

Against Discrimination (MCAD) and shared the results of his

internal investigations with the state Attorney General.

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 According to the plaintiff, these steps provoked

immediate retaliation by those in power. They disciplined him for

failing to comply with a departmental policy requiring officers to

follow certain procedures before complaining to outside agencies.

Then, they twice passed him over for promotion to lieutenant

despite his outstanding test scores. The plaintiff responded by

filing another MCAD complaint, this time on his own behalf. The

relationship between the parties went steadily downhill from there.

In 1998, the plaintiff retired. In short order, he sued

the City, the mayor, and several police department hierarchs. His

complaint, filed in a Massachusetts state court, limned mainly

state-law claims but included a claim brought pursuant to 42 U.S.C.

§ 1983. Seizing upon this appendage, the defendants removed the

action to the United States District Court for the District of

Massachusetts. See 28 U.S.C. §§ 1331, 1441.

In due course, the district court disposed of several of

the claims on summary judgment. Bennett, 230 F. Supp. 2d at 231-

32. It then embarked upon a six-day trial with respect to the

remaining claims. The jury found for the defendants on most of

those claims,1 but returned a $90,000 verdict against the City on

1
The plaintiff has prosecuted a cross-appeal seeking to set
aside the judgment on some of his unsuccessful claims (No. 03-
1525). Although we consolidated the two appeals for briefing and
argument, we decide them in separate opinions.

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the whistleblower claim. The court subsequently added $41,278 in

prejudgment interest and entered judgment accordingly.

The City responded with, inter alia, a motion to alter or

amend the judgment, Fed. R. Civ. P. 59(e), by striking the award of

prejudgment interest. The district court denied the motion. The

City subsequently moved for relief from the judgment, Fed. R. Civ.

P. 60(b), on the ground that the plaintiff had not complied with

the notice provisions of the whistleblower statute. The court

denied that motion as well. This appeal followed.

II. APPELLATE JURISDICTION

Before reaching the merits of the appeal, we must address

a threshold matter. The plaintiff notes that the City filed its

notice of appeal a day late and maintains that this court lacks

jurisdiction to hear the appeal. The City parries this thrust by

pointing to the district court's extension of the filing date. The

plaintiff replies that the extension was improvidently granted

(and, thus, impuissant).

We recount the background needed to resolve this impasse.

The applicable rule requires the filing of a notice of appeal in a

civil case, not involving the federal government, "within 30 days

after the judgment or order appealed from is entered." Fed. R.

App. P. 4(a)(1)(A). This thirty-day period does not begin to run

until after the entry of the order disposing of a motion for

attorneys' fees so long as "the district court extends the time to

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appeal under Rule 58." Fed. R. App. P. 4(a)(4)(A)(iii). The

district court granted such an extension here, so that a notice of

appeal would be considered timely if filed within thirty days of

the court's adjudication of the plaintiff's application for

attorneys' fees.

On March 6, 2003, the court issued a memorandum and order

in which it awarded attorneys' fees to the plaintiff. That order

started the running of the thirty-day period. See Fed. R. App. P.

4(a)(7)(A)(i) (providing that "entry" occurs at docketing for those

orders the disposition of which does not require a separate

document); see also Fed. R. Civ. P. 58(a)(1)(C) (stating that an

order disposing of a motion for attorneys' fees does not require a

separate document). Thus, the last day for filing a notice of

appeal was Monday, April 7, 2003. See Fed. R. Civ. P. 6(a)

(explaining how time periods are computed).

On March 18, however, the district court issued an

amended judgment that, in effect, replicated its March 6 order. On

April 8, 2003 — one day after the deadline — the City filed its

notice of appeal and moved for a one-day extension. It asserted

that it had been misled by the gratuitous entry of the amended

judgment on March 18 and had assumed (erroneously, as matters

turned out) that the appeal period would run from the date of that

amended judgment.

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 The district court accepted this explanation and granted

the one-day extension. In doing so, the court acknowledged that

its own actions (in particular, the entry of the amended judgment)

had created "confusion over the date of the [attorneys' fee]

ruling." On this basis, the court determined that the City's

neglect (i.e., not filing its notice of appeal on or before April

7) was excusable. The plaintiff challenges this determination.

Although the time parameters for filing notices of appeal

usually are deemed "mandatory and jurisdictional," Browder v. Dir.,

Dep't of Corr., 434 U.S. 257, 264 (1978), those time parameters may

be extended upon a showing of "excusable neglect or good cause."

Fed. R. App. P. 4(a)(5)(A)(ii). That is precisely what the lower

court found in this instance. We review a trial court's decision

as to the existence vel non of excusable neglect for abuse of

discretion. Mirpuri v. ACT Mfg., Inc., 212 F.3d 624, 627 (1st Cir.

2000). We discern none here.

Under the excusable neglect rubric, courts are permitted,

when appropriate, to accept late filings caused by inadvertence or

mistake. See Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.

P'ship., 507 U.S. 380, 388 (1993) (interpreting "excusable neglect"

under the bankruptcy rules); see also Virella-Nieves v. Briggs &

Stratton Corp., 53 F.3d 451, 454 n.3 (1st Cir. 1995) (holding that

"Pioneer's exposition of excusable neglect . . . applies equally to

Fed. R. App. P. 4(a)(5)"). A trial court's determination as to

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whether an instance of neglect is (or is not) excusable has a

significant equitable component and must give due regard to the

totality of the relevant circumstances surrounding the movant's

lapse. Pioneer, 507 U.S. at 395.

Here, the circumstances plainly support the district

court's ruling. The one-day delay in this case was very brief; the

entry of an essentially duplicative order obfuscated matters,

rendering the delay (as the district court put it)

"understandable"; and there is no indication of either bad faith or

undue prejudice. The lower court, which had the best coign of

vantage, concluded that a one-day delay, in these circumstances,

constituted excusable neglect — and there is no principled way that

we can label that conclusion an abuse of discretion. Where, as

here, a district court takes an unusual procedural step and then

admits that its actions have caused confusion over the proper time

for filing a notice of appeal, an appellate court should not deem

the decision to grant a brief extension of the filing date an abuse

of discretion without some compelling justification for doing so.

See, e.g., Alpha State Bank v. Ohio Casualty Ins. Co., 941 F.2d

554, 556 n.2 (7th Cir. 1991); see also Mirpuri, 212 F.3d at 631

(noting that "a plausible misconstruction" of a court order

sometimes may satisfy the requirements for excusable neglect).

There is no such justification here.

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 For these reasons, we conclude that we have jurisdiction

over the City's appeal.

III. THE WHISTLEBLOWER CLAIM

We turn next to the first of the City's two assignments

of error. To recapitulate, after judgment had entered on the

whistleblower claim, the City sought to set it aside on the ground

that the plaintiff had failed to satisfy the notice requirement of

the Massachusetts whistleblower statute, Mass. Gen. Laws ch. 149,

§ 185. The district court denied the motion, ruling that "[t]he

notice issue, in the form now presented, was not raised with

sufficient clarity before trial to justify disturbing the verdict."

We review that ruling for abuse of discretion. See Farm Credit

Bank v. Ferrera-Goitia, 316 F.3d 62, 65-66 (1st Cir. 2003). "We

will find an abuse of discretion when we are convinced that the

district court has made an error of law or has reached a plainly

erroneous decision." Id. at 66.

The Massachusetts whistleblower statute prohibits a

public employer — including a municipality, Mass. Gen. Laws ch. 149

§ 185(a)(2) — from taking any retaliatory action against an

employee who engages in protected activities. Retaliatory action

is defined to include discharge, suspension, demotion, or any other

action that adversely affects the terms and conditions of the

employment. Id. § 185(a)(5). Protected activities include

disclosing "to a public body an activity, policy or practice of the

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employer . . . that the employee reasonably believes is in

violation of a law." Id. § 185(b)(1). The term "public body" is

defined broadly to include legislative, judicial, administrative,

and law enforcement agencies at the federal, state, and local

levels. Id. § 185(a)(3).

The whistleblower statute gives an aggrieved employee a

private right of action against his or her employer. Id. § 185(d).

Most whistleblower plaintiffs — there are exceptions, but we shall

assume for argument's sake that none applies here — must satisfy a

statutory notice requirement. According to the requirement, "the

protection against retaliatory action . . . shall not apply to an

employee who makes a disclosure to a public body unless the

employee has brought the [allegedly illegal or corrupt] activity .

. . to the attention of a supervisor . . . by written notice and

has afforded the employer a reasonable opportunity to correct the

activity." Id. § 185(c)(1). Since filing a suit constitutes

disclosure to a public body, a prospective whistleblower plaintiff

must give written notice of the alleged wrongdoing to the employer

before filing a civil action. Dirrane v. Brookline Police Dep't,

315 F.3d 65, 73 (1st Cir. 2002).

The City contends that the plaintiff failed to provide it

with this advance notice before filing suit, and the record

supports this claim. The rub, however, is that the City did not

rely upon this notice defense in the pretrial proceedings, at the

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trial itself, during the charge conference, or in its motion for

judgment as a matter of law. When a party persistently sleeps upon

its rights, waiver almost inevitably results. Amcel v. Int'l

Executive Sales, Inc., 170 F.3d 32, 35 (1st Cir. 1999) (finding

waiver when affirmative defense was not raised in pretrial papers,

during trial, or in motion for judgment as a matter of law); Correa

v. Hosp. San Francisco, 69 F.3d 1184, 1195 (1st Cir. 1995) (same).

By the time that the City advanced the defense for the first time

in a post-trial motion for relief from judgment, it was too late.

The City offers several rebuttal arguments. First, it

notes that it referred to the notice requirement in its answer to

the complaint. But this was, at most, a glancing reference — and

the City never followed through. Simply mentioning a possible

defense in an initial pleading, without further development in

subsequent stages of the proceedings, does not preserve it for

post-trial review. Violette v. Smith & Nephew Dyonics, Inc., 62

F.3d 8, 11 (1st Cir. 1995); Wallace Motor Sales, Inc. v. Am. Motor

Sales Corp., 780 F.2d 1049, 1067 (1st Cir. 1985).

The City also points out that it successfully contended

in its motion for summary judgment that the plaintiff's failure to

provide the statutorily required notice barred claims of

retaliation stemming from the filing of charges with the MCAD. See

Bennett, 230 F. Supp. 2d at 219-20 (granting partial summary

judgment for the City on this ground). The City now suggests that

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its raising of the notice defense in one context preserved that

defense for all purposes. This is wishful thinking. The City's

notice defense was tailored to the plaintiff's MCAD complaints. It

did not address the plaintiff's failure to give notice either

before complaining to the Attorney General or before filing suit.

See id. at 220. As a result, the whistleblower claim went to the

jury solely on the allegation of retaliation for the plaintiff's

contacts with the state Attorney General.

That effectively rebuts the City's argument. Because the

City did not previously argue what it argues now — that the

plaintiff's failure to provide written notice before filing suit

bars his whistleblower action in toto — it waived that defense.

Raising a defense to a particular claim does not automatically

preserve that defense with respect to other independent claims.

See Kelly v. Foti, 77 F.3d 819, 822-23 (5th Cir. 1996); cf. Beddall

v. State St. Bank & Trust Co., 137 F.3d 12, 22 (1st Cir. 1998)

(explaining that a party cannot preserve a claim by raising a

related but factually distinct claim below).

The City's next argument focuses on timing. The district

court entered judgment on the jury verdict on December 2, 2002; the

City filed its original post-trial motions on December 10 and 11;

and this court decided Dirrane on December 31. Based on this

chronology, the City insists that we should excuse its lapses

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because it acted celeritously, i.e., it raised the defense on

January 15, 2003 (roughly two weeks after Dirrane was decided).

This argument fails. While the raise-or-waive rule is

subject to a narrow equitable exception under which "a party cannot

be deemed to have waived objections or defenses which were not

known to be available at the time they could first have been made,"

Holzsager v. Valley Hosp., 646 F.2d 792, 796 (2d Cir. 1981), this

court has applied that exception with great circumspection.

Ordinarily, we will invoke the exception and excuse a party from

failing seasonably to have raised a defense only if (i) at the time

of the procedural default, a prior authoritative decision indicated

that the defense was unavailable, and (ii) the defense became

available thereafter by way of supervening authority (say, an

overruling of the prior decision or a legislative clarification).

See United States v. Lopez-Pena, 912 F.2d 1542, 1549 (1st Cir.

1989). Put another way, we will excuse a party for failing to

raise a defense only when the defense, if timely asserted, would

have been futile under binding precedent. See id. (refusing to

excuse the failure to object when "no binding rule in this circuit

. . . necessarily foredoomed an objection"). Other courts have

followed this same general praxis. See Curtis Pub. Co. v. Butts,

388 U.S. 130, 143-45 (1967); Holzsager, 646 F.2d at 794-96.

That is not the situation here. Dirrane interpreted the

notice provision of the whistleblower statute to require written

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notice before the filing of a whistleblower action. Dirrane, 315

F.3d at 73. Although that interpretation is certainly not the only

possible reading of the statutory language, see, e.g., Wagner v.

City of Holyoke, 241 F. Supp. 2d 78, 97-99 (D. Mass. 2003), it did

not contradict any previously binding precedent. When this case

was tried, no court had authoritatively construed this aspect of

the notice provision, and the question of whether filing a lawsuit

constituted a public disclosure sufficient to trigger the notice

requirement was wide open. Under these circumstances, the defense

was fairly available. Accordingly, we adhere to prior practice,

see, e.g., United States v. Terry, 240 F.3d 65, 73 (1st Cir. 2001);

Lopez-Pena, 912 F.2d at 1549, and hold the City to the natural

consequences of its procedural default. The absence of precedent

directly on point does not excuse a party's failure to assert an

available defense.

The City's last, and most bruited, argument is equally

unavailing. It invokes the familiar principle that the absence of

subject matter jurisdiction can be raised at any point in the

proceedings. See, e.g., Kontrick v. Ryan, 124 S. Ct. 906, 915

(2004) ("A litigant generally may raise a court's lack of subject-

matter jurisdiction at any time in the same civil action, even

initially at the highest appellate instance."); Mansfield, C. & L.

Ry. Co. v. Swan, 111 U.S. 379, 382 (1884) (same); Capron v. Van

Noorden, 6 U.S. (2 Cranch) 126, 127 (1804) (same); see also Fed. R.

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Civ. P. 12(h)(3). Building on this solid foundation, the City

hypothesizes that a plaintiff's failure to give written notice as

required by section 185(c)(1) deprives the court of jurisdiction

over any ensuing civil action under the whistleblower statute, see

Mass. Gen. Laws ch. 149, § 185(c)(1) (stating that "the protection

against retaliatory action . . . shall not apply" to a plaintiff

who fails to give the required notice) (emphasis supplied), and

therefore can be raised for the first time post-verdict.

We regard it as a bedrock principle that federal courts

are courts of limited jurisdiction and, thus, cannot adjudicate a

case in the absence of constitutional or congressional authority.

Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinee, 456 U.S.

694, 701 (1982). We have adhered to this principle in finding

nonwaivable objections that go to a federal court's power to

adjudicate a case. See, e.g., Halleran v. Hoffman, 966 F.2d 45, 47

(1st Cir. 1992); United States v. AVX Corp., 962 F.2d 108, 116 n.7

(1st Cir. 1992). But that principle has no application here: the

notice requirement in section 185(c)(1), while obligatory, is not

jurisdictional in the requisite sense.

A rule does not become jurisdictional simply because it

speaks in mandatory language. See Prou v. United States, 199 F.3d

37, 46 (1st Cir. 1999) (noting that if obligatory language were

determinative of waiver, "a whole range of constitutional and

statutory provisions employing compulsory language would give rise

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to nonwaivable claims"). Jurisdictional requirements are those

that affect a court's constitutional or statutory power to

adjudicate the case. Steel Co. v. Citizens for a Better Envmt.,

523 U.S. 83, 89 (1998). We conclude, without serious question,

that the statutory notice requirement is not jurisdictional in this

sense.

Fairly read, the notice requirement is a procedural

accouterment — no more, no less. It sets up a hoop through which

a whistleblower plaintiff must jump on his or her way to relief.

If the plaintiff fails to attempt the jump, the defendant has

available to it an affirmative defense (much like a statute of

limitations defense). And like other affirmative defenses, this

defense is fully subject to the ordinary rules of waiver. Cf.

Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982)

(holding that the timely filing of an EEOC charge is not a

jurisdictional prerequisite to filing a Title VII suit); Bonilla v.

Muebles J.J. Alvarez, Inc., 194 F.3d 275, 278 (1st Cir. 1999)

(similar; ADA suit); Vasys v. Metro. Dist. Comm'n, 438 N.E.2d 836,

839 (Mass. 1982) (holding that presentment requirement in the

Massachusetts Tort Claims Act is not jurisdictional and can be

waived if not timely raised).

Our characterization of the written notice requirement as

a waivable, nonjurisdictional affirmative defense jibes with recent

Supreme Court precedent. In Kontrick, the Court considered a

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bankruptcy rule providing that a "complaint objecting to the

debtor's discharge . . . shall be filed no later than 60 days after

the first date set for the meeting of creditors." Kontrick, 124 S.

Ct. at 911 (citing Fed. R. Bankr. P. 4004(a)). A creditor objected

to the discharge in an untimely pleading, but the debtor did not

raise the timeliness issue until after the bankruptcy court's

determination on the merits. The Court rejected the debtor's

attempt to characterize the notice requirement as "jurisdictional,"

holding that despite Rule 4004(a)'s mandatory language, it did no

more than provide the debtor with an affirmative defense to an

untimely complaint. Id. at 916-18. Like other affirmative

defenses, the defense could be forfeited if not raised at the

proper time. Id.

Characterizing the written notice requirement as a

waivable, nonjurisdictional affirmative defense is also consistent

with its underlying purpose. We recently observed that the

requirement "gives the employer one last chance to correct

wrongdoing before the employee goes public with his accusations."

Dirrane, 315 F.3d at 73. As such, the requirement inures to the

benefit of the employer. We see no reason why an employer cannot,

consistent with the statute, choose to relinquish that protection

in a given case. See, e.g., Prou, 199 F.3d at 47 ("Because [the

section's] temporal requirements exist for the defendant's benefit,

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it makes perfect sense to give the defendant the power to waive

(and the obligation not to forfeit) strict compliance with them.").

The short of it is that the City neglected to raise the

absence of advance written notice at any point prior to its post-

verdict motion. It has offered no plausible basis on which that

neglect might be excused. Accordingly, we sustain the lower

court's determination that the City waived its objection to the

absence of the notice required by Mass. Gen. Laws ch. 149, §

185(c)(1).2

IV. PREJUDGMENT INTEREST

The district court added $41,278 in prejudgment interest

to the jury's verdict. The City moved to strike the award on the

ground that the whistleblower statute does not authorize

prejudgment interest. The district court rebuffed this challenge.

2
The parties have briefed this issue as a matter of waiver vel
non, and we have honored their choice of phrase. We recognize,
however, that the City's failure to raise the defense might more
appropriately be termed a forfeiture. See United States v. Olano,
507 U.S. 725, 733 (1993) ("Whereas forfeiture is the failure to
make the timely assertion of a right, waiver is the intentional
relinquishment or abandonment of a known right.") (citation and
internal quotation marks omitted); United States v. Rodriguez, 311
F.3d 435, 437 (1st Cir. 2002) (same), cert. denied, 538 U.S. 937
(2003). The distinction can have practical implications because
forfeited arguments, unlike waived arguments, may be subject to
plain error review. See Olano, 507 U.S. at 733-34; Rodriguez, 311
F.3d at 437. Here, however, this difference is of no moment.
Under plain error review, an error will not be recognized unless,
among other things, it "seriously impaired the fairness, integrity,
or public reputation of judicial proceedings." United States v.
Duarte, 246 F.3d 56, 60 (1st Cir. 2001). The omission of advance
written notice had no impact whatsoever on the fairness, integrity,
or public repute of the proceedings in this case.

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The City's assignment of error poses an isthmian question of

statutory interpretation: does the Massachusetts whistleblower

statute authorize the automatic addition of prejudgment interest to

damage awards? Questions about whether a statute authorizes

certain types of damages in particular instances are

quintessentially legal in nature, so this question engenders de

novo review. Protective Life Ins. Co. v. Dignity Viatical Sett.

Partners, 171 F.3d 52, 54 (1st Cir. 1999); Correa, 69 F.3d at 1195.

Our starting point is, of course, the text of the

statute. Plumley v. S. Container, Inc., 303 F.3d 364, 369 (1st

Cir. 2002); Rambert v. Commonwealth, 452 N.E.2d 222, 223-24 (Mass.

1983). When the statutory language "points unerringly in a single

direction, and produces an entirely plausible result, it is

unnecessary — and improper — to look for other signposts." United

States v. Charles George Trucking Co., 823 F.2d 685, 688 (1st Cir.

1987). This is such a case.

Section 185(d) delineates the remedies available to

whistleblower plaintiffs.3 The section is structured in two tiers.

3
The section reads:

Any employee or former employee aggrieved of a
violation of this section may, within two years,
institute a civil action in the superior court. Any
party to said action shall be entitled to claim a jury
trial. All remedies available in common law tort actions
shall be available to prevailing plaintiffs. These
remedies are in addition to any legal or equitable relief
provided herein. The court may: (1) issue temporary
restraining orders or preliminary or permanent

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The first tier declares that "[a]ll remedies available in common

law tort actions shall be available to prevailing [whistleblower]

plaintiffs." The second tier adds a list of additional remedies

that the court may, in its discretion, award to prevailing

plaintiffs. This list includes such perquisites as injunctive

relief, multiple damages, and attorneys' fees.

We think it is plain that the first tier encompasses

prejudgment interest. The language is direct and unequivocal, and

Massachusetts law grants prejudgment interest, as a matter of

right, to prevailing plaintiffs "[i]n any action in which a verdict

is rendered or a finding made . . . for pecuniary damages for

personal injuries," directing the clerk of court to add such

interest to the amount of damages "at the rate of twelve per cent

per annum from the date of commencement of the action." Mass. Gen.

Laws ch. 231, § 6B.

Section 6B is broad in its scope. It applies to

compensatory damage awards in all tort and tort-like causes of

action for, inter alia, injuries to the person. See Blockel v.

injunctions to restrain continued violation of this
section; (2) reinstate the employee to the same position
held before the retaliatory action, or to an equivalent
position; (3) reinstate full fringe benefits and
seniority rights to the employee; (4) compensate the
employee for three times the lost wages, benefits and
other remuneration, and interest thereon; and (5) order
payment by the employer of reasonable costs, and
attorneys' fees.

Mass. Gen. Laws ch. 149, § 185(d).

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J.C. Penney Co., 337 F.3d 17, 29-30 & n.4 (1st Cir. 2003)

(employment discrimination); Patry v. Liberty Mobilhome Sales,

Inc., 475 N.E.2d 392, 394-95 (Mass. 1985) (unfair or deceptive

trade practices); see also Shawmut Cmty. Bank v. Zagami, 586 N.E.2d

962, 966 (Mass. 1992) (collecting cases). Moreover, its command

that prejudgment interest shall be added at the specified rate

applies unreservedly to all such awards. See Griffin v. Gen.

Motors Corp., 403 N.E.2d 402, 406 (Mass. 1980). Viewed in this

light, there can be no doubt but that, in the idiom of section

185(d), prejudgment interest is a "remed[y] available in common law

tort actions" in Massachusetts. Consequently, the plain meaning of

section 185(d) indicates that the plaintiff was entitled to

prejudgment interest on the award of compensatory damages.

We have every reason to believe that the drafters of

section 185(d) intended this straightforward result. Section 6B

was in force long before the legislature passed the whistleblower

statute. Thus, it seems fair to presume that the legislature was

aware of the interest-on-verdicts statute when it enacted the

whistleblower law and that the legislature intended the natural

consequences of the language that it used in crafting the newer

statute. Charland v. Muzi Motors, Inc., 631 N.E.2d 555, 557 (Mass.

1994).

The task of statutory construction often is informed by

reading the whole of a statute, Plumley, 303 F.3d at 370, and an

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holistic appraisal of section 185(d) strongly supports the

conclusion that prevailing whistleblower plaintiffs are entitled to

prejudgment interest on compensatory damage awards. Section

185(d)'s overall structure indicates the drafters' intent to

provide successful whistleblower plaintiffs with remedies above and

beyond those generally available to tort plaintiffs. A good

example is the language that gives the trial court the authority to

order reinstatement — a remedy not commonly available to tort

plaintiffs. See Rosario-Torres v. Hernandez-Colon, 889 F.2d 314,

321 (1st Cir. 1989) (en banc) (describing reinstatement as an

equitable remedy); see also Dan B. Dobbs, 1 The Law of Torts § 1

(2001); 2 op. cit. supra §§ 377, 455. Another example is the

provision that gives the trial court discretion to order payment of

reasonable attorneys' fees. That contradicts the American rule,

followed in Massachusetts, that each party ordinarily must defray

his or her own legal expenses. See, e.g., Waldman v. Am. Honda

Motor Co., 597 N.E.2d 404, 406-07 (Mass. 1992). Depriving

prevailing whistleblower plaintiffs of a remedy — prejudgment

interest — that is broadly available to prevailing tort plaintiffs

in Massachusetts is flatly inconsistent with this philosophy.

In lobbying for a different construction of section

185(d), the City points to the second tier's remedial array. The

statutory language authorizing an award of "three times the lost

wages, benefits and other remuneration, and interest thereon,"

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Mass. Gen. Laws ch. 149, § 185(d)(4), shows — or so the City says

— that the legislature did not intend to authorize an award of

interest in any other circumstance. That is resupinate reasoning,

and we reject it.

Under the City's balkanized reading of section 185(d),

prejudgment interest would be available on punitive damage awards

but unavailable on compensatory damage awards. This would stand

the usual rule on its head. In tort cases, Massachusetts mandates

prejudgment interest on compensatory damages but prohibits

prejudgment interest on punitive damages.4 See, e.g., Mirageas v.

MBTA, 465 N.E.2d 232, 236 (Mass. 1984). Courts should not strain

to interpret a statute in a way that would produce an entirely

illogical result, United States v. O'Neil, 11 F.3d 292, 297 (1st

Cir. 1993); 2A Norman J. Singer, Sutherland Statutory Construction

§ 45.12 (6th ed. 2000), and we decline to do so here. Section

185(d)(4)'s authorization of interest on multiple damages is most

naturally read as an expansion of the usual rule authorizing

prejudgment interest only on compensatory damages, not as a

truncation of that rule.

4
This rule is based on sound policy. The fundamental purpose
of prejudgment interest is to ensure that compensatory damages make
an injured party whole. Conway v. Electro Switch Corp., 523 N.E.2d
255, 258 (Mass. 1988). Such interest is inappropriate on punitive
damages, however, because it is not meant "to penalize the
wrongdoer or to make the damaged party more than whole." McEvoy
Travel Bureau, Inc. v. Norton Co., 563 N.E.2d 188, 196 (Mass.
1990).

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 As a fallback, the City says that the quoted language

must at least mean that interest is restricted to economic damages.

Since the jury failed to indicate what portion of the $90,000

damage award was intended as compensation for economic loss (as

opposed to compensation for emotional distress), the district court

should not have tacked on prejudgment interest.

This argument lacks force. As discussed above, we find

the authority for prejudgment interest awards not in section

185(d)(4), but, rather, in the general "first tier" language of

section 185(d), which provides prevailing whistleblower plaintiffs

with "[a]ll remedies available in common law tort actions."

Because that is so, prejudgment interest is available — as in any

Massachusetts tort action — on both economic and non-economic

damages (save only punitive damages). See, e.g., Wynn & Wynn, P.C.

v. MCAD, 729 N.E.2d 1068, 1072 n.3 (Mass. 2000). We do not believe

that section 185(d)(4) sensibly can be read to restrict the

operation of this general rule.

In a last-ditch effort to cut its losses, the City

asseverates that the granting of prejudgment interest flouts the

fundamental principle that waivers of sovereign immunity are to be

construed narrowly. This asseveration contains more cry than wool.

Massachusetts municipalities historically have enjoyed

sovereign immunity shielding them from liability for the tortious

acts of their officers or employees. See, e.g., Whitney v. City of

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Worcester, 366 N.E.2d 1210, 1213-14 (Mass. 1977). But

municipalities are creatures of the state, and the state

legislature has the right to strip away municipal immunity in whole

or in part. Bain v. City of Springfield, 678 N.E.2d 155, 159-60

(Mass. 1997). The Massachusetts whistleblower statute does just

that: it gives aggrieved parties the right to institute suits for

damages against, inter alia, cities and towns. Mass. Gen. Laws ch.

194, § 185(a)(2).

Of course, statutes that are in derogation of sovereign

immunity should be construed narrowly. See Woodbridge v. Worcester

State Hosp., 423 N.E.2d 782, 784-85 (Mass. 1981); see also In re

Perry, 882 F.2d 534, 538 (1st Cir. 1989) (noting that when a

statute constitutes a waiver of sovereign immunity, "its words must

be narrowly construed and its borders rigorously observed"). Thus,

courts must be careful not to extend a plaintiff's right to recover

against a sovereign "beyond those [rights] expressly conferred by

statute." Broadhurst v. Dir. of Div. of Emp. Sec., 369 N.E.2d

1018, 1023 (Mass. 1977) (quoting Gurley v. Commonwealth, 296 N.E.2d

477, 481 (Mass. 1973)).

That imperative, however, merely commemorates a

background rule of construction. It does not make the sovereign

bulletproof, nor does it require that a court abandon the usual

tools of the interpretive trade. Whatever the background rule of

construction, legislative intent, as expressed in the text of the

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statute, remains the key determinant of the scope of a waiver of

sovereign immunity. United States v. Idaho, 508 U.S. 1, 6-7

(1993); Bain, 678 N.E.2d at 160.

Here, that intent is manifest. As we already have

explained, reading the statute as the City suggests would ignore

the plain meaning of the words chosen by the drafters, distort the

statutory structure, and countervail the legislature's discernible

intent. To impose such a reading in the name of narrow

construction would give narrow construction a bad name.

V. CONCLUSION

We need go no further. For the reasons elucidated above,

we conclude that the district court properly denied both the City's

motion for relief from judgment and its motion to strike the award

of prejudgment interest.

Affirmed.

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