Shaw v. Library of Congress

¶7SPOTTSWOOD W. ROBINSON, III, Chief Judge:

¶8A corollary to the doctrine of sovereign immunity exempts the United States from liability for interest absent its express consent thereto.1 The sole issue on this appeal is whether the District Court dishonored that precept when, in assessing an attorneys’ fee against the United States, it effected a 30 percent upward adjustment of the lodestar2 to compensate the attorney for delay in receipt of payment. ■

¶9We sustain the adjustment alternatively on two grounds. First, we conclude that the language of the statute authorizing allowances of attorneys’ fees against the United States in employment-discrimination cases waives its sovereign immunity with respect to the delay component of the fee award. Second, we find that component validated by a line of cases relaxing the traditional rigor of the sovereign-immunity doctrine.

¶10I

¶11In 1976 and again in 1977, Tommy Shaw, a black employee of the Library of Congress, submitted complaints of job-related racial discrimination to the Library’s Equal Employment Office.3 In 1978, after the Library remained resistant to these complaints, Shaw’s counsel engaged in administrative proceedings and during the course thereof entered into negotiations which culminated in a settlement agreement.4 As part of the settlement, the Library agreed to promote Shaw retroactively with back-pay provided the Comptroller General first determined that the Library had authority to do so without a specific finding of racial discrimination.5 The Comptroller General, however, held that the Library lacked pow*1471er under the Back Pay Act of 19666 to pursue that course.7

¶12Dissatisfied with this turn of events, Shaw sued in the District Court8 and ultimately prevailed on his position that the Library had authority to afford the relief specified in the settlement accord.9 As a result of Shaw’s victory, the court ordered that he be awarded litigation costs and reasonable attorneys’ fees,10 withholding, however, determination of the dollar amount thereof until after further proceedings and this court’s decision in Copeland v. Marshall,11 then pending en banc.12By this time, primary responsibility for prosecution of Shaw’s claim had devolved upon new lawyers, but the efforts of his earlier counsel before the Library and in the District Court had involved considerable time and energy.13 After our decision in Copeland was announced, counsel moved for an allowance of attorneys’ fees,14 requesting compensation at the rate of $85 per hour for 103.75 hours of work on Shaw’s behalf during the course of those proceedings.15

¶13Largely dismissing the Library’s challenges to both the hourly rate and the number of hours claimed by Shaw’s counsel,16 the District Court computed a lodestar of $8,435,17 based on 99 hours of work at the $85 proposed hourly rate, excluding from its calculation 4.75 hours which counsel devoted to research in an abortive effort to impart a class-action aspect to Shaw’s administrative complaints.18 The court then reduced the lodestar by 20 percent to reflect the quality of counsel’s representation.19 Lastly, and most importantly for this appeal,, the court increased the lodestar by 30 percent to compensate counsel for the delay in actual payment for the legal services he had rendered.20 The court explained:

This case should have ended in August 1978, or at the latest in November of that year. If [Shaw’s counsel] had been com*1472pensated at about that time, he could have invested the money at an average yield of not less than 10% per year. It is the fault of neither [Shaw] nor [counsel] that payment was not made sooner. It is reasonable to assume that if payment is made promptly, counsel will receive his reimbursement by December 1, 1981. Accordingly, the accompanying order reflects an upward adjustment of 30% for delay.21

¶14Then, offsetting the 30 percent increase in the lodestar by the 20 percent reduction in the lodestar, the District Court granted a net 10 percent addition to the lodestar22 and, accordingly, awarded counsel a fee of $9,278.50.23 The Library has appealed,24 arguing that the 30 percent upward adjustment for delay infringes the rule that interest may not be assessed against the United States in the absence of waiver.25

¶15II

¶16The issue posed on appeal is hardly one of first impression. In Copeland v. Marshall,26 we declared en banc that the United States can be held liable under Title VII of the Civil Rights Act of 196427 for attorneys' fees in an amount augmented to compensate for the lag attending payment. We said:

The delay in receipt of payment for services rendered is an additional factor that may be incorporated into a contingency adjustment. The hourly rates used in the “lodestar” represent the prevailing rate for clients who typically pay their bills promptly. Court-awarded fees normally are received long after the legal services are rendered. That delay can present cash-flow problems for the attorneys. In any event, payment today for services rendered long in the past deprives the eventual recipient of the value of the use of the money in the-meantime, which use, particularly in an inflationary era, is valuable. A percentage adjustment to reflect the delay in receipt of payment therefore may be appropriate.28

¶17*1473We have subsequently reaffirmed this principle29 and, indeed, have upheld an award of attorneys’ fees against the United States that in fact was adjusted upward to compensate for delay.30

¶18Despite the seemingly clear applicability of these precedents, however, we do not rest our disposition on stare decisis alone. Whether an upward delay adjustment in an attorneys’-fee award satisfies the rigorous requirements of the sovereign-immunity doctrine is an issue we have dealt with only peripherally,31 and one we have never squarely addressed. We recognize, too, the jurisdictional implications of any legal bar created by that doctrine, and acknowledge the existence of decisions of this circuit arguably in conflict with Copeland and its progeny on this point.32 We therefore opt to consider the Library’s argument much as if it were presented upon a clean slate.

¶19Ill

¶20The initial inquiry, of course, is whether the District Court’s 30 percent augmentation of the lodestar for delay in payment of the fee constitutes “interest” against the United States within the contemplation of the rule invoked by the Library. Shaw characterizes this component of the fee award as a proper ingredient of a reasonable attorneys’ fee, in contradistinction to interest.33 The only way to determine whether this addition to the lodestar is condemned by the traditional interest rule is to ascertain what that rule prohibits.

¶21Perhaps the clearest example of interest appears when a court, after calculating the amount of a monetary judgment, adds a percentage of that amount to compensate the claimant for loss of use of the money during the period between the claimant’s initial entitlement to the money and the day the judgment is rendered.34 Here the long-*1474established rule refuses to view the sovereign as having consented to the addition, even though consent to suit on the claim has been established.35 The same results follow court-awarded sums which, though not interest calculated in the classic manner, nonetheless are functionally equivalent to interest. Thus the Supreme Court has rejected a contention that an increase in an assessment by the Court of Claims against the United States, made as compensation for loss of use and occupation of a mining claim appropriated by the United States years earlier, was “compensation” rather than interest.36 The Court reasoned that because “the loss of the use of the money results from the failure to collect sooner a claim held to have accrued when the company’s property was taken, that which the company seeks to recover is, in substance, interest.”37 We ourselves recently held an “inflation adjustment” in awards of back-pay to federal employees amounted to interest against the United States because it served “the same general end of compensating the recipient for differences in the worth of her award between the date of actual receipt and the date as of which the money should have been paid.”38

¶22In the case at bar, the District Court’s 30 percent addition to the lodestar was designed to reimburse Shaw’s counsel for the decrease in value of his uncollected legal fee between the date on which he concluded his legal services and the court’s estimated date of likely ac.tual receipt.39 By the court’s own description, the addition was based on a rough determination of the “average yield” of the amount of the fee if invested at 10 percent per annum for three years.40 We think the adjustment falls well within the contours of the interest concept. Only by ignoring applicable case-law as well as as the real nature of the disputed adjustment could we find anything other than an assessment of interest against the United States.41 We proceed, *1475then, to the Library’s contention that the District Court’s action in this regard disregards the dictates of the doctrine of sovereign immunity.

¶23IV

¶24The United States cannot be subjected to monetary liability save pursuant to a waiver of its sovereign immunity.42 Moreover, the scope of such a waiver is to be strictly construed.43 The instant case involves a corollary of these principles, which for convenience we term the “interest rule.” By this rule, the United States may not be held liable for interest absent an express waiver of its immunity.44 The question we face here is whether Congress has waived that immunity with respect to an allowance of interest as part of an attorneys’ fee awarded, as here, under Title VII.

¶25The relevant section of Title VII provides that

[i]n any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the [Equal Employment Opportunity] Commission or the United States, a reasonable attorney’s fee as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person.45

¶26A private person, of course, may be held liable for interest as an ingredient of a Title VII attorneys’-fees award,46 and this section subjects the United States to liability for “costs the same as a private person,” and authorizes assessment of “a reasonable attorney’s fee as part of the costs.” We conclude that Congress thus has waived the immunity of the United States from liability for interest as a component of an attorneys’ fee allowed under Title vn.

¶27The statutory waiver is express, and its range is defined in unmistakable language. To say that a private person, but not the United States, is liable under Title VII for interest as an element of an attorneys’ fee would rob the unambiguous statutory language of its plain meaning. It would defeat the statutory imposition upon the United States of a liability for costs, and the statutory inclusion of “a reasonable attorney’s fee as part of the costs,” identical to *1476that of a private party in similar circumstances. The scope-setting statutory words — “the same as a private person”— mark out the United States’ liability for attorneys’ fees as well as costs in the traditional sense. Our responsibility as judges is to enforce this provision according to its terms.47

¶28We think Congress articulated its goal clearly enough by providing for governmental liability “the same as a private person.” Conceivably, Congress might have attempted to effectuate its purpose by legislation listing each item of costs, including interest, for which the United States might' be held accountable. That approach, however, could well have led to the discovery of interstices among the enumerated items, especially since the courts would have had to obey the rule requiring strict construction of waivers of sovereign immunity;48 its adoption, consequently, would not likely have achieved the congressional objective, manifest here, that the United States be treated no differently from private parties in similar circumstances.49 It seems to us that, despite the availability of alternative statutory schemes waiving immunity from interest liability, there is simply no more direct and effective way to ensure complete parity between the United States and other litigants with respect to costs than to say so in so many words. That Congress did so in this section, we conclude, evinces an “express” waiver within the meaning of the interest rule.

¶29Congress obviously understood the broad sweep of language which makes the United States just as liable as “a private person.” In the Federal Torts Claims Act,50 which later we discuss further,51 Congress made the United States liable for certain torts “in the same manner and to the same extent as a private individual under like circumstances,”52 but immediately curtailed the obvious import of this language by providing that the United States “shall not be liable for interest' prior to judgment.”53 It is difficult to understand why Congress bothered to exclude pre-judgment interest if the imposition upon the United States of liability “to the same extent as a private individual under like circumstances” was insuffi*1477cient to constitute an express waiver of liability for that interest.

¶30That the attorneys'-fee section of Title VII does not actually use the word “interest” does not, in our view, make the waiver any less express. Notwithstanding the long history and wide variety of verbal articulations of the interest rule, we have not uncovered a single case supporting the proposition that a waiver of sovereign immunity is not express merely on that account.54 In fact, several decisions weigh against that position. The Supreme Court has held that Congress may satisfy the requirements of an analogous rule — that the United States is not bound by its own statutes unless expressly named therein55 —without identifying the United States in so many words.56 Additionally, this circuit recently has held,57 when construing a purported waiver of governmental immunity from liability for attorneys’ fees under the Alyeska doctrine,58 that the words “attorneys’ fees” are not “magic words”59 that Congress must use to satisfy the requirement that the waiver be “specific, if not explicit.”60 On the basis of such close precedent, as well as common sense, we believe that “interest” is not a “magic word” the recital of which is prerequisite to a waiver of sovereign immunity respecting the interest component of an attorneys’ fee award. Surely if Congress were to enact a comprehensive and unambiguous statute abrogating entirely and for all purposes the sovereign-immunity doctrine, we would not resuscitate the United States’ immunity with respect to interest merely because Congress did not specifically enumerate “interest.” Rather, we would construe such a provision as an express waiver of interest immunity and implement it accordingly, and in reality we do no more here.

¶31We underscore our more general view that an insightful approach to the problem before us is undermined, if not entirely precluded, by logomachic applications of the interest rule. Courts bear this observation out by consistently avoiding a wooden or formulaic definition of express waiver when referring to the interest rule. This circuit itself has declined to fashion a rigid *1478concept of express waiver,61 and the courts have not perceived a need to establish any particular verbal formulation thereof. Rather, they have variously required, if anything at all,62 an “express”63 waiver, a “elearcut”64 waiver, a “specific”65 waiver, and “explicit”66 waiver, an “unequivocal”67 waiver, a “plain”68 waiver, a “manifest”69 waiver, an “affirmative”70 waiver, an “unambiguous”71 waiver, or a waiver described by a combination of these adjectives. There is nothing talismanic in the word “express,”72 and we would distort the interest rule were we to inform its application by resort to any intuitive call for clarity of legislative expression thought peculiarily to lurk in the recesses of the word, or any other term used analogously as an ostensible criterion by which claimed waivers are to be judged. Rather, our use of the interest rule is instructed more appropriately by reference to the touchstone of the sovereign-immunity doctrine: “that the liability of the United States ... is a matter of federal law, and its extent and the procedures for imposing it must be sought in the statutes.”73 The Supreme Court has echoed this view, declaring that the standard for gauging asserted waivers of sovereign immunity as express or not is whether the statute “can fairly be interpreted” as mandating governmental liability.74 Giving this counsel the respect it is due, we think a disclaimer of waiver here would impart to the concept of express waiver an understanding more limited and formalistic than necessary to achieve the objectives underlying the interest rule.

¶32This conclusion is reinforced by the resolve of several courts, recognizing the need for perspective when applying the rule requiring strict construction of sovereign-immunity waivers, to vigorously resist the tendency of the rule to become increasingly demanding by force of its own inertia.75 As one court has put it, the strict-*1479construction rule “is not entitled to be made a judicial vise to squeeze the natural and obvious import out of ... a statute or to sap its language of its normal and sound legal meaning.”76 The Supreme Court has reiterated the essence of this view:

The exemption of the sovereign from suit involves hardship enough where consent has been withheld. We are not to add to its rigor by refinement of construction where consent has been announced.77

¶33When dealing with the interest rule, we see as much need for perspective to avoid strangulation of legislative intent by an unwarranted use of judicial force.78 We think Congress spoke clearly enough when, with respect to attorneys’ fees, it ordained for the United States a liability “the same as a private person.”79 We hold that Congress thereby waived the immunity of the United States from liability for interest as part of a reasonable attorneys’ fee.

¶34V

¶35Even were we to find Title VII’s attorneys’-fee section inadequate as an express waiver, we would affirm the District Court’s fee award on the basis of a substantial body of caselaw relaxing the traditional rigor of the sovereign-immunity doctrine when a statute measures the liability of the United States by that of private persons. The doctrine espoused by these eases, while spanning numerous and diverse statutory schemes, has attained prominence in litigation under the Suits in Admiralty Act.80 It is, accordingly, with this legislation that we commence our examination of the doctrine for purposes of ascertaining its applicability to the case at bar.

¶36As originally framed, the Act provided that the United States could be held liable for harm inflicted by its merchant vessels “[i]n cases where if such vessel were privately owned or operated, or if such cargo were privately owned or possessed, a proceeding in admiralty could be maintained.”81 Congress later amended the Act by adding, as a third clause, the phrase “or if a private person or property were involved,”82 thus underscoring the Act’s plain command that governmental liability *1480in admiralty be equivalent to that of private persons in similar circumstances.83 Federal courts have interpreted this language broadly to effectuate the congressional purpose evident therefrom.84 The Supreme Court has explicitly rejected application of the customary rule of strict construction and held instead that “[tjhese liberal provisions indicate that the language used in the [Act] should have its broad and ordinary meaning and should not be interpreted in a restricted ... sense.”85

¶37Later decisions by other federal courts have reiterated the theme that Congress intended, and that the Act should accordingly be interpreted, to make governmental liability “coextensive” with that of private parties.86 They have rebuffed attempts to inject “unintended” or “irrational”87 refinements into the Act, and have construed the language “sensibly, naturally, [and] ... literally.”88 One court has even held that the United States is liable as a private person in new causes of action imported into admiralty law subsequent to passage or amendment of the Act.89 In short, federal courts generally have refused to wield the rule of strict construction to defeat the plain and natural meaning of the Act’s command that liability of the United States be identical to that of private counterparts.90

¶38Buttressing the exception to the strict-construction rule prevalent in Suits in Admiralty Act cases, federal courts also have liberally construed other similarly broad statutory waivers of sovereign immunity. For example, the Federal Torts Claims Act91 waives the immunity of the United States in unqualified language, imposing upon it liability for certain kinds of tortious conduct “to the same extent as a private *1481individual under like circumstances.”92 The Supreme Court has placed liability on the United States for activities which, as a practical matter, are never privately undertaken because it has felt compelled to implement the “broad and just purpose which the statute was designed to effect,”93 namely, to treat the government as any private person would be treated. Similarly, when the question arose whether the Act allowed the United States to be sued as a third-party defendant in an action for contribution initiated by a joint tortfeasor, the Court refused to read “fine distinctions” into the Act.94 Far from accepting a rule of strict construction, it specifically rejected an attempt to restrict the scope of the Act’s broad language, which clearly put the United States on the same footing as a private party.95 The Court quoted favorably a statement to which we earlier adverted: 96 “[t]he exemption of the sovereign from suit involves hardship enough where consent has been withheld. We are not to add to its rigor by refinement of construction where consent has been announced.” 97

¶39This same broad construction has been brought to bear on the Public Vessels Act,98 which provides that “[a] libel in per-

¶40sonam in admiralty may be brought against the United States ... for damages caused by a public vessel of the United States.” 99 It too has been given the interpretation borne by the plain and ordinary meaning of its language.100 Though this provision is less explicit than those of the Suits in Admiralty and Tort Claims Acts with respect to the comparative responsibilities of the United States and private persons, the Supreme Court has interpreted it “to impose on the United States the same liability ... as is imposed by the admiralty law on the private shipowner,” 101 noting that “congressional adoption of broad statutory language authorizing suit was deliberate and is not to be thwarted by an unduly restrictive interpretation.” 102 The Court has since reaffirmed this holding,103 and federal courts generally have construed the scope of governmental liability under the Public Vessels Act in' terms similar if not identical to those by which they have delineated liability under the Suits in Admiralty Act.104 A recent Supreme Court decision interprets and reconciles these statutes without recourse to or even mention of the strict-construction rule.105

¶41Another example is furnished by the recent Equal Access to Justice Act, a statute *1482strikingly similar to the Title VII section here at issue in its provision that the United States shall be liable for reasonable attorneys’ fees and expenses “to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such an award.” 106 While one circuit has found that this provision does not permit the award of interest,107 others have declared categorically that the United States’ liability thereunder is the same as private-party liability,108 and generally have interpreted the statutory language to effect its “plain, clear and common meaning.” 109 In light of the extension of such similar doctrine to such a variety of statutes,110 it cannot reasonably be disputed that the numerous decisions articulating this exception represent not scattered and aberrant caselaw, but a well-established and coherent line of precedent.111

¶42We think our approach in this case is fully consistent with the purposes of the rule of strict construction. This rule serves as a tool to calibrate judicial interpretation of purported waivers of sovereign immunity so as to minimize the risk of erroneous imposition of governmental liability under statutes that are ambiguous in scope, or are otherwise susceptible to expansion beyond the boundaries contemplat*1483ed by Congress.112 Strict construction thus ensures that any waiver of sovereign immunity will be a legislative and not a judicial act.113 When, however, Congress proclaims that the liability of the United States shall be the same as for a comparably-situated private individual — by enacting either an explicit provision to that effect or a sweeping waiver of immunity — the strict-construction rule poses a grave threat to effectuation of congressional purpose, and hence it should not be and is not applied. In such eases, courts interpret the waiver according to the plain and ordinary meaning of its language. The strict construction rule does not authorize judges to act as “self-constituted guardian[s] of the Treasury [to] import immunity back into a statute designed to limit it.”114

¶43Having determined that the doctrine we invoke constitutes a purposeful as well as an entrenched exception to the strict-construction rule, it remains only to consider whether the interest rule cedes a similar exception in cases involving statutes such as the Title VII section here under scrutiny. We conclude that it does, notwithstanding that almost all decisions articulating the doctrine have done so solely at the expense of the strict-construction rule.

¶44Apart from the absence of caselaw contradicting or disallowing application of the doctrine in interest-rule cases, the Supreme Court’s decision in Standard Oil Company v. United States115 adds weight to the conclusion that the principle of liberal construction applies as much to the interest rule as it does to other manifestations of sovereign immunity. There the Court held the United States liable for interest despite the absence of an express waiver therefor, and solely on the ground that by acting as a private insurer it had without more consented to be treated as a private insurer.116 This rationale bears a close resemblance to that underpinning the exception at issue, thus counseling inclusion of the interest rule within its ambit. We recognize, too, that the interest and strict-construction rules achieve similar objectives within the realm of sovereign immunity. Each operates hand-in-glove with the general rule that the United States cannot be held monetarily liable without its consent. The interest rule ensures that the United States will incur liability for interest only at the will of Congress, while the strict-construction principle operates similarly, though *1484more broadly, to curtail judicial extension of governmental liability beyond the range of likely congressional intent. Consequently, just as the stricbconstruction rule is obviated by statutes effecting sweeping waivers of immunity or otherwise equating governmental liability with that of private persons, so do we decline to use the interest rule in the case at bar as an instrument for insertion of unintended qualifications and refinements into an otherwise plain and unambiguous statutory mandate.

¶45The applicability of this doctrine in interest-rule cases thus established, we must, finally, determine whether the statutory provision upon which the District Court grounded its assessment of the disputed attorneys’ fee against the United States fits within the confines of the exception, and we hold that it does. When Congress declared that “the United States shall be liable for costs the same as a private person,” it revealed unmistakably its intention to subject the United States to treatment no different from that accorded private parties in equivalent circumstances. Title VII’s attorneys’-fee provision thus measures the waiver of immunity in terms essentially identical to those in statutes already held to be governed by the doctrine.117 We conclude, as a result, that the contours of this mandate must be delineated by ordinary and reasonable, not express or strict, judicial construction. •

¶46Under such an interpretation, we think it manifest that the attorneys’-fee section implements the overarching congressional purpose to accord “ ‘[ajggrieved [federal] employees or applicants ... the full rights available in the courts as are granted to individuals in the private sector under title VII.’ ” 118 Since claimants in private-sector Title VII cases may garner interest as one component of an attorneys’-fee award — itself defined as a part of “costs” 119 — we cannot sanction a variant doctrine of liability for the United States. We find that the District Court did not err when it fashioned an assessment of interest against the United States.120

¶47VI

¶48We affirm, on the alternative grounds explicated, the District Court’s decision to allow a 30 percent upward adjustment in the lodestar to compensate counsel for the delay in receipt of payment for the legal services he rendered under Title VII. We *1485modify the court’s order to correct a mathematical error in its computation of the lodestar,121 and remand solely in order that the court may confirm that Shaw’s counsel is not being paid twice for the delay he experienced.122 If, in calculating the lodestar for counsel’s services, the court utilized an hourly rate which reflected a reasonable charge to clients who pay their attorneys when billed, the court’s order as modified will stand, and the Library must remit to counsel $2,524.50, the portion of the court’s attorneys’-fee award contested on appeal.123 If, instead, the lodestar was based on a reasonable hourly rate for services rendered under a fee-shifting statute, that rate has already taken into account the pecuniary disadvantage resulting from the lengthy wait for payment, and the court’s upward adjustment to the lodestar therefore was inappropriate since it would result in double payment for the delay in receiving his money.

¶49So ordered.

¶176GINSBURG, Circuit Judge,

¶177dissenting:

¶178In my view, precedent constrains judicial inventiveness in this case more tightly than my colleagues acknowledge. Furthermore, I believe today’s decision will confound, not assist, district court judges as they labor to fathom and follow this court’s proliferating instructions regarding allowance of attorneys’ fees against the United States. I therefore dissent from the majority’s position on the government’s liability for interest.

¶179On September 9, 1982, when we heard oral argument on appeal, we faced, and our charge was to reconcile, two not fully consistent lines of decision. One line, long-established, forbids the award of pre- or post-judgment interest payable by the United States, absent deliberate waiver by Congress of the sovereign’s immunity. See Holly v. Chasen, 639 F.2d 795 (D.C.Cir.), cert. denied, 454 U.S. 822, 102 S.Ct. 107, 70 L.Ed.2d 94 (1981); Blake v. Califano, 626 F.2d 891 (D.C.Cir.1980), and decisions cited therein. The other, newer line contemplates an adjustment for delay in receipt of payment when counsel fees are awarded, pursuant to statute, as part of costs. See Copeland v. Marshall, 641 F.2d 880, 893, 906 n. 61 (D.C.Cir.1980) (en banc); National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1328-29 (D.C.Cir.1982). The difference between interest and a delay factor can be more than semantic. Interest, as that term is commonly used, is calculated retrospectively, at the completion of the period during which it accrues. A delay factor, as Copeland suggests, may figure as a contingency adjustment, applied prospectively to the lodestar. Just as an attorney setting an hourly rate in a contingent fee case may factor in the risk that the cause may not prevail, so too an attorney embarking on services for which he or she anticipates payment ultimately, but not promptly, may factor in the expected delay.

¶180When a statute provides for payment of an attorney’s fee by a private sector defendant, there is no need to grapple with delay in payment as a factor distinct from interest, for private defendants are not immune from the payment of pre- or post-judgment interest.1 When the sovereign is *1486the payor, however, precedent we are not at liberty to upset demands disallowance of interest add-ons unless Congress otherwise orders.

¶181Recently,- in Murray v. Weinberger, 741 F.2d 1423, at 1432-1434 (D.C.Cir.1984), a panel of this court attempted to chart a course between the interest-is impermissible/delay-factor-is-permissible lines of decision. Murray, argued on April 13, 1984, intercepted the instant case; it appeared to provide definitive instructions on the two inquiries the district court should make in ruling upon a request for a fee award adjustment to account for delay in payment. Under Murray, the court must determine first whether the rate incorporated in the lodestar already takes into account an anticipated time lag between rendition of services and receipt of payment. Second, if “the reasonable hourly rate incorporated into the lodestar did not reflect an increment for the expected delay in payment,” the court should next inquire “whether recalculation of the lodestar utilizing current, market rates instead of historic rates, is appropriate.” Id. at 1433. I do not find in the statute before us, 42 U.S.C. § 2000e-5(k) (1982), the conscious waiver of sovereign immunity entrenched decisional law contemplates. See, e.g., Ruckelshaus v. Sierra Club, 462 U.S. 680, 103 S.Ct. 3274, 3277, 77 L.Ed.2d 938 (1983), cited in Nichols v. Pierce, 740 F.2d 1249, 1256 nn. 38, 42 (D.C.Cir.1984) (courts must take care not to enlarge waiver of sovreign immunity beyond what language of statute requires); In re: Hamilton Jordan, 745 F.2d 1574, at 1576 (D.C.Cir. Indep.Couns. Div. Oct. 16, 1984); Phillips v. United States, 346 F.2d 999, 1000 (2d Cir.1965) (“spirit proper to judicial consideration” of alleged sovereign immunity waiver “is not one of generosity and broad interpretation”). I would therefore adhere to the letter of the Murray instructions and reject the large, “interest is permissible,” postscript the majority, espouses.

¶182Although Congress has not provided for an interest add-on, and precedent does not place me at liberty to read into the statute an instruction or waiver Congress might have included had it thought about the matter, I am also bound by the more recent decisional line — opinions permitting delay factor supplementation of an attorney’s fee, even when the fee is payable by the sovereign. Our recent Murray opinion relieves me of the- reconciliation task confronting the panel when this appeal was new. The adjustment Murray permits serves the “important objective” of “[ejase of administration,” Murray, at 1433, and promises to simplify, not complicate, the chore we commit to the district court.2 I would not go beyond Murray without a direction to do so from Congress.

¶183I. The No-Interest Rule

¶184Nothing in the majority’s labyrinthian opinion genuinely demonstrates that Congress so much as adverted to the no-interest rule when it enacted .the statute in question. For all its intricacy, the majority opinion builds on a hunch: if Congress had adverted to the matter, it would have (or should have) waived immunity. I sympathize with the policy judgment the majority advances. But I cannot agree that the legislature “plainly” resolved an immunity waiver issue never even framed in the course of its deliberations.

¶185The delay calculation made by the district court, as the majority holds, was an interest computation. The district court applied a 10% per annum rate to the base award, determined that three years would separate the time when the fee should have been paid and its actual payment, and increased the award accordingly. This calculation resembles in all relevant respects the one our court disapproved in Holly v. Chasen3In that case the interest rate em*1487ployed was 6%, and the term over which interest was to accrue was indefinite, running from the judgment date to the date of payment. But the differences in the interest rates (10% versus 6%) and in the terms to which they were applied (three years versus an open-ended period) are not sufficient grounds for typing the award here as something other than interest. In both cases, augmentation of the award involved a retrospective calculation that placed upon the government the cost of an actual delay. A calculation of this order, by any name, is inescapably in the nature of “interest.”

¶186Contemporary conditions and equitable considerations cast doubt on the soundness of the no-interest rule governing judgments against the United States. The majority’s painstakingly embroidered opinion is comprehensible only as a labor sparked by that doubt. This circuit recently has stated, however, that the entrenched character of the no-interest rule militates against alteration by the judiciary. Our court has maintained that change, in view of the long-prevailing, rigorously-applied rule, lies within the province of Congress. See Holly v. Chasen, 639 F.2d at 798.

¶187In Blake v. Califano, we ruled that a Title VII back pay award against the government may not be augmented by prejudgment interest. .Similarly, the Holly court held that interest may not be added to an attorney’s fee payable by the United States pursuant to the Freedom of Information Act, 5 U.S.C. § 552(a)(4)(E) (1982). Both decisions underscore that waiver of the no-interest rule “cannot be by implication or by use of ambiguous language,” Holly v. Chasen, 639 F.2d at 797; Congress, we have emphasized, must signal the authorization advertently and with clarity. See Blake v. Califano, 626 F.2d at 894-95 & n. 7.4 Invited to reconsider Blake and allow a Title VII plaintiff to recover pre-judgment interest on a back pay award against the federal government, we adhered to our prior holding and stated: “When Congress amended Title VII in 1972 to bring the federal government under its provisions, Congress evinced no intention to waive sovereign immunity as to interest awards.” Segar v. Smith, 738 F.2d 1249, at 1296 (D.C.Cir.1984).

¶188Taken together, Blake, Segar, and today’s decision announce that Congress distinguished sharply and consciously between attorneys for Title VII litigants against government defendants, and the litigants themselves, the actual victims of discrimination. An interest calculation can augment the attorney’s fees, but not the client’s recovery. The majority attributes this unusual design to Congress because it was the legislature’s “overarching ... purpose” to accord aggrieved federal employees the full Title VII rights available to individuals in the private sector. Majority opinion at 1484. The right .available to individuals in the private sector to claim interest on back pay awards, however, cannot be secured to federal employees in cases brought in this circuit without overruling Blake, and now the relevant Segar holding as well. The majority thus settles for second best. It leaves the litigant without interest, takes care of the lawyer only, and pretends interest for the lawyer is in full harmony with Blake and Segar.

¶189Client and lawyer are on the same footing vis-a-vis interest on Title VII awards in private sector employment, the majority concedes. A Congress that thought about the problem at all, I believe, would have placed client and lawyer on the same footing as to interest awards in the federal sector as well. Though the majority strives mightily, it cannot convincingly explain why Congress would deliberately opt to treat awards to clients and lawyers differently by allowing lawyers, but not clients, to collect interest.

¶190*1488The statute before us authorizes “a reasonable attorney’s fee” as part of costs, and provides that the United States “shall be liable for costs the same as a private person.” 42 U.S.C. § 2000e-5(k) (1982). The majority holds that the United States has thereby waived not only its immunity as to costs (in this instance, including attorneys’ fees) for which Congress made express provision, but also, sub silentio, its immunity as to interest on those costs.5“Costs,” as treated in the majority’s opinion, are thus accorded a uniquely expansive interpretation. It is established, for example, that a waiver of immunity with respect to a monetary award for discrimination in employment is not a waiver with respect to interest on that award. Blake v. Califano. Similarly, a waiver of immunity with respect to liability on a contract is not a waiver with respect to interest on that liability. Eastern Service Management Co. v. United States, 363 F.2d 729, 733 (4th Cir.1966); Economy Plumbing & Heating Co. v. United States, 470 F.2d 585 (Ct.Cl.1972). And in the adjustment of mutual claims, the government is entitled to interest on amounts owed to it, but is not obligated to pay interest on amounts it owes. United States v. North American Transportation & Trading Co., 253 U.S. 330, 336, 40 S.Ct. 518, 521, 64 L.Ed. 935 (1920).

¶191Enlarging an immunity waiver with respect to “costs” to include interest on costs draws on nothing inherent in the concept of “costs.” “Costs” is a term of specific and narrow content; in federal adjudication, the word “costs” has never been understood to include any interest component. See 28 U.S.C. § 1920 (1982); see also 10 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure §§ 2666, 2670 (2d ed. 1983) (hereafter, Wright & Miller).

¶192Pre-judgment interest (interest “on the claim”) generally ranks as an element of damages, not as a component of “costs.” Id.§ 2664, at 159-60. Its availability depends on the substantive law (state or federal( that governs the controversy. See General Motors Corp. v. Devex Corp., 461 U.S. 648, 103 S.Ct. 2058, 76 L.Ed.2d 211 (1983). Post-judgment interest (interest “on the judgment”) is a separate entitlement governed by statute or common law, not a “cost.” 10 Wright & Miller, supra,§ 2664, at 159. I therefore fail to spy in a statute allowing “costs” and specifically qualifying an attorney’s fee as part of “costs,” a clear, affirmative intention by Congress to displace the traditional principle that the sovereign is immune from the payment of interest on those costs. Cf. Parker v. Lewis, 670 F.2d 249, 250 (D.C.Cir.1982) (Title VII attorneys’ fee awards against Secretary of Transportation should be determined with expedition because Secretary, “as an officer of the government, cannot be charged with interest”) (citing Holly v. Chasen).

¶193The majority maintains most insistently that in rendering the United States liable for costs (including attorneys’ fees) “the same as a private person,” Congress unquestionably intended to waive the sovereign’s immunity with respect to interest on costs. But see Arvin v. United States, 742 F.2d 1301 (11th Cir.1984) (Equal Access to Justice Act provision (28 U.S.C. § 2412(b) (1982)) that United States shall be liable for the reasonable fees and expenses of attorneys “to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such an award” does not waive sovereign immunity with regard to interest on attorney fee *1489awards).6 Sparse case law is cited by the majority indicating that pre-judgment interest has been considered, on occasion, in determining the liability of private persons for attorneys’ fees. See majority opinion note 46. The terse statutory phrase (“the same as a private person”) on which the majority dominantly relies, coupled with sporadic and laconic judicial precedent in private sector cases,7 simply do not add up to the deliberate waiver of sovereign immunity that prior decisions emphatically require.8Cf. Blake v. Califano, 626 F.2d at *1490893-95 (in view of “specific entrenched immunity of the Government from prejudgment interest,” court is not free to allow such interest in Title VII back pay awards to federal employees; Congress must evince specific intention to authorize waiver of “settled governmental immunity”; “mere consistency with [remedial policies of Title VII] is not enough”).9

¶194The majority pushes beyond legitimate judicial license in stating that the interest issue here is “hardly one of first impression,” and in insinuating that one might even decide the question “on stare décisis” because of “the seemingly clear applicability of [our] precedents.” See majority opinion at 1472-1473. But cf. id. at 1473 (“we have dealt with [the issue] only peripherally,” it is “one we have never squarely addressed”). And see Parker v. Lewis, supra, p. 1473. In truth, we have never focused on the no-interest rule in this context before, because the government did not rely on or even refer to the rule in prior cases. We have indeed spoken with approval not of.interest, but of adjustment for delay in receipt of payment, as I observed at the outset when I said this panel initially faced the task of reconciling “two not fully consistent lines of decision.” Supra p. 1485. I now state why I believe the court's August 24, 1984, decision in Murray v. Weinberger renders it unnecessary to do more in this case than remand with directions to follow the instructions supplied in Murray.

¶195II. Delay in Payment Instructions in

¶196Murray v. Weinberger

¶197In Copeland, Holly, and a few cases thereafter, this court indicated that a delay factor adjustment to the lodestar may be appropriate, even in litigation involving federal government defendants. The court stated in Copeland: *1491641 F.2d at 893; see also id.at 906 n. 61.10 Along similar lines, the court in Holly, after rejecting an interest award, said: “We suggest ... that the possibility of a substantial delay in the payment of a fee is a factor which counsel may wish to bring to the court’s attention when submitting his application for compensation.” 639 F.2d at 798. Quoting the Copeland language set out above, the Murray panel instructed the district court that delay could be taken into account in either of two ways. Murray, at 1432-1434. Significantly, neither way involved the interest calculation eschewed in Holly but approved by my colleagues in this case.

*1490The delay in receipt of payment for services rendered is an additional factor that may be incorporated into a contingency adjustment. The hourly rates used in the “lodestar” represent the prevailing rate for clients who typically pay their bills promptly. Court-awarded fees normally are received long after the legal services are rendered. That delay can present cash-flow problems for the attorneys. In any event, payment today for services rendered long in the past deprives the eventual recipient of the value of the use of the money in the meantime, which use, particularly in an inflationary era, is valuable. A percentage adjustment to reflect the delay in receipt of payment therefore may be appropriate.

¶198*1491I reiterate here Murray’s two instructions, starting with the one the Murray panel labeled “[fjirst.” The court in Murray explained that if the expected wait for payment “is reflected in the lodestar figure itself, an additional enhancement for delay would not be appropriate”:

First, the court should determine whether the hourly rates incorporated into the lodestar ... contain [delay] increments ____ The basic hourly rate used in the lodestar figure [in Murray] was the rate prevailing in Title VII litigation, where lengthy delays often attend the payment of attorney’s fees____ According to the fee applicants’ affidavits ..., the attorneys’ hourly rates for billing concurrently ... were substantially lower than the rates they charged pursuant to awards for attorney’s fees under fee-. shifting statutes, where lengthy delays are typically expected____ Thus the lodestar figures may already include adjustments for delay in payment.

¶199Murray, at 1432-1433 (footnote omitted).

¶200Only when the basic hourly rate incorporated into the lodestar did not “include[ ] a component for the delay which would have been expected in the payment of fees,” id. at 1433, does Murray authorize a further inquiry. With an eye on the “pressing need for simple rules in attorney’s fee cases,” id. at 1433, the Murray court countenanced use of “current market rates instead of historic rates” in calculating lodestars, id., if that would produce a reasonable fee “without generating a windfall for the plaintiff’s attorneys.” Id. at 1433. There the matter would end under Murray v. Weinberger, for “where the hourly rate used in computing the lodestar is based on present hourly rates a delay factor has implicitly been recognized and no [further] adjustment for delay should be allowed.” Id. (quoting National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d at 1329).

¶201III. Application of Murray to the Present Case

¶202In calculating the fee for Shaw’s attorney Shalon Ralph, the district court, for the most part, followed the formula this court specified in Copeland. The district court first computed a lodestar of time and rate. It found that ninety-nine hours of Ralph’s effort could be attributed to issues on which Shaw succeeded. See Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 1940-41, 76 L.Ed.2d 40 (1983) (where plaintiff achieves only partial success, fee awarded must exclude compensation for services rendered in connection with any unsuccessful claim). It then determined that an $85 hourly rate was appropriate for an attorney of Ralph’s experience working on problems of employment discrimination in 1978 and 1979.11 The district court did *1492not consider, however, as Murray now requires, whether the $85 rate prevailed for clients who paid their bills promptly or whether it “included a component for the delay which would have been expected in the payment of fees” in cases of this genre. Murray, at 1432; see id.at 1428 n. 21, 1433 n. 46 (lodestar rates of $80 to $95 per hour for 1978 to 1981 may have included a delay element where attorney billed plaintiff $50 per hour at time services were rendered); cf. majority opinion note 28.

¶203Next, the district court determined that the lodestar should be reduced by 20% because the court judged the representation only 80% efficient. Correctly anticipating in this regard guidance our court just supplied in Murray, the district court declined to make any upward adjustment for the risk Ralph assumed by taking on a case in which part of the fee was contingent on victory.12See Murray, at 1430-1432 (upward adjustment for risk of losing on merits is unwarranted to the extent that lodestar itself comprehended allowance for contingent nature of fee payment; or fee arrangement with client substantially reduced attorney’s risk of nonpayment; or risk of not prevailing was unexceptional).

¶204Finally, the court increased the award to account for the three-year delay between the time Ralph should have been paid and the time he might finally expect payment. The court stated first that the case should have ended in 1978, upon or shortly after execution of the administrative settlement agreement, not in late 1981, after a court proceeding that attentive counsel on both sides might have avoided. Next, the court reasoned that if Ralph had been compensated in 1978 he could have invested the money at an average yield of at least 10%. Therefore, the court announced, its judgment would reflect an upward adjustment of 30% for delay.13 That adjustment was an impermissible award of interest. I would instruct the district court, as Murray does, that, if it finds the basic hourly rate did not include a delay component, it may consider whether the use of current market rates might produce a reasonable fee.

¶205Augmenting the inquiries Murray prescribed, and limiting the prospect Murray’s plan held for a uniform, manageable approach in the district court, the majority’s opinion seemingly allows anything at all reasonable to go in the name of interest. No particular computation is instructed. Each judge has “broad latitude” to choose from a range of- rates, concepts, and approaches, running from the simple to the compound, so long as the court’s sizable discretion is not “abused.” See Majority opinion note 22. Murray’s effort to accommodate, not overturn, decisional lines, to promote “[ejase of administration,” and, most of all, to “simplify the task of the district court,” Murray, at 1433, has been undermined by today’s decision.14

¶206*1493For the reasons stated, I would return this case to the district court with a direction to follow to the letter the delay in payment analysis and instructions set out in Murray v. Weinberger.