United States District Court, District of New Jersey
February 19, 1991
ROBERT AND ISABELL WILSON, PLAINTIFFS,
UNITED STATES OF AMERICA, DEFENDANT.
The opinion of the court was delivered by: Debevoise, District Judge.
This case presents a question of first impression, namely,
whether post-judgment interest may be awarded on the recovery
obtained in a suit against the United States brought under the
Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. for
negligent conduct by a Veterans' Administration hospital. For
the following reasons, I conclude that an award of interest is
barred by the doctrine of sovereign immunity.
Plaintiff, Robert Wilson, was injured in his right knee
while on active duty in the United States Navy. He sought
treatment at a Veterans' Administration hospital. As his pain
increased, plaintiff was referred to a physician at a
Veterans' Administration hospital in East Orange, New Jersey,
who recommended orthopedic surgery. Plaintiff underwent
surgery but continued to experience pain and discomfort.
Subsequently, plaintiffs, Robert and Isabell Wilson, his wife,
brought an action against the United States under the Federal
Tort Claims Act for the hospital's alleged negligence.
The case went to trial. The Court determined that the United
States, through the Veterans' Administration hospital, was
negligent and liable to plaintiffs under the Federal Tort
Claims Act. A judgment was entered in the amount of $28,000 on
December 22, 1989. On January 25, 1990, the Court granted
$1,837.00 in costs. The judgment, in the total amount of
$29,837.00 (including costs), was eventually paid on April 16,
1990. However, because there was a delay in payment,
plaintiffs moved for award of post-judgment interest of
$742.95, pursuant to 28 U.S.C. § 1961(a) and 28 U.S.C. § 2674.
The United States opposed the award of interest solely on
the ground that the judgment in this case did not expressly
provide for the payment of post-judgment interest. This
argument is without merit. Section 1961(a) provides that
"interest shall be allowed on any money judgment in a civil
case recovered in a district court." Courts which have
construed this section have concluded that money judgments
recovered in civil cases in federal district courts
automatically bear interest from the date of entry. Gele v.
Wilson, 616 F.2d 146, 148 (5th Cir. 1980). Regardless of
whether the judgment itself contains a specific award of
interest, once final judgment has been entered in a civil suit
in federal court the prevailing party becomes a judgment
creditor who is entitled to post-judgment interest under the
mandatory terms of the statute. United States v. Michael
Schiavone & Sons, Inc., 450 F.2d 875, 876 (1st Cir. 1971). The
mere lack of a provision in the judgment for post-judgment
interest does not bar plaintiffs' recovery under section
However, plaintiffs in this case are ultimately prohibited
from collecting post-judgment interest against the United
States government under either 28 U.S.C. § 1961(a) or 28 U.S.C. § 2674
because of the long-standing rule that interest cannot
be recovered in a suit against the United States government in
the absence of an express waiver of sovereign immunity.
As a general proposition, sovereign immunity precludes an
award of interest against the United States. This so called
no-interest rule is inapplicable where interest awards are
specifically provided for by statute or contract or are
otherwise expressly consented to by Congress, Library of
Congress v. Shaw, 478 U.S. 310, 317, 106 S.Ct. 2957, 2963, 92
L.Ed.2d 250 (1986), or where the United States government has
cast off the cloak of sovereignty and given an agency the
status of a commercial enterprise. See Loeffler v. Frank,
486 U.S. 549, 556, 108 S.Ct. 1965, 1970, 100 L.Ed.2d 549 (1988).
The first exception arises when the statute creating the cause
of action expressly subjects the government to interest
payments, and the second exception arises when it is determined
that Congress, when creating the agency, intended to waive
immunity from an award of interest. McGehee v. Panama Canal
Commission, 872 F.2d 1213, 1215 (5th Cir. 1989).
The issue in Library of Congress v. Shaw, supra, was whether
Congress when enacting section 706(k) of Title VII of the Civil
Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e-5(k),
waived sovereign immunity from interest awards.
Section 706(k) of Title VII provides in relevant part that the
United States shall be liable for attorney's fees "the same as
a private person." The Court noted that "[t]his basic rule of
sovereign immunity . . . gave rise to the rule that interest
cannot be recovered unless the award of interest was
affirmatively and separately contemplated by Congress" and
"that federal statutes cannot be read to permit interest to run
on a recovery against the United States unless Congress
affirmatively mandates that result." 478 U.S. at 315, 106 S.Ct.
at 2962. Furthermore, the Court observed that when Congress
waived the United States' immunity with respect to interest it
has done so expressly, not impliedly:
[T]here can be no consent by implication or by
use of ambiguous language. Nor can an intent on
the part of the framers of a statute or contract
to permit the recovery of interest suffice where
the intent is not translated into affirmative
statutory or contractual terms. The consent
necessary to waive the traditional immunity must
be express and it must be strictly construed.
Id. at 318, 106 S.Ct. at 2963 (quoting United States v. N Y
Rayon Importing Co., 329 U.S. 654, 659, 67 S.Ct. 601, 604, 91
L.Ed. 577 (1947)).
Accordingly, the Court concluded that the Title VII
provision making the United States liable for attorney's fees
"the same as a private person" waived the government's
immunity from attorney's fees but did not extend to an award
of interest on attorney's fees. The Court noted that the
statute as well as the legislative history contain no
reference to interest but that "[t]his congressional silence
does not permit us to read the provision as the requisite
waiver of the Government's immunity with respect to interest."
Id. 478 U.S. at 318, 106 S.Ct. at 2963.
Plaintiffs' suit against the United States was brought under
the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq., which
provides in pertinent part "that the United States shall be
liable respecting the provisions of this title relating to tort
claims, in the same manner and to the same extent as a private
individual under like circumstances, but shall not be liable
for interest prior to judgment. . . ." 28 U.S.C. § 2674. The
Federal Tort Claims Act makes no other mention of interest
Plaintiffs claim that they are entitled to an award of
post-judgment interest on the ground that section 2674 does
not expressly prohibit such an award against the United States
in an action brought under the Federal Tort Claims Act. As
noted in Shaw, when Congress has intended to waive the United
States' immunity with
respect to interest, it has done so expressly. While it is
true that section 2674 expressly prohibits an award of
pre-judgment interest but not post-judgment interest against
the United States, congressional silence regarding
post-judgment interest does not permit an inference that
post-judgment interest is available. In addition, there is no
legislative history which indicates a congressional intent to
effectuate a waiver of sovereign immunity from interest.*fn1
Accordingly, post-judgment interest cannot be assessed against
the United States government under the express waiver
Turning to the second exception to the no-interest rule, in
Loeffler v. Frank, 486 U.S. 549, 108 S.Ct. 1965, 100 L.Ed.2d
549 (1988), the Court held that pre-judgment interest may be
awarded in a suit against the United States Postal Service
brought under Title VII of the Civil Rights Act of 1964. The
Court noted that although the federal government is immune from
suit absent a waiver of sovereign immunity, "Congress . . . has
waived the sovereign immunity of certain federal entities from
the times of their inception by including in the enabling
legislation provisions that they may sue and be sued." Id. at
554, 108 S.Ct. at 1968. The Court determined that in empowering
the Postal Service "to sue and be sued in its official name,"
Congress has "launched [the Postal Service] into the commercial
world," and "cast off the Service's `cloak of sovereignty' and
given it the `status of a private commercial enterprise.'" Id.
at 556, 108 S.Ct. at 1970. See 39 U.S.C. § 401(1). Stating
that it has recognized that "authorization of suits against
federal entities engaged in commercial activities may amount to
a waiver of sovereign immunity from awards of interest when
such awards are an incident of suit," 486 U.S. at 555, 108
S.Ct. at 1969, the Court reasoned that "it follows that
Congress is presumed to have waived any otherwise existing
immunity of the Postal Service from interest awards." Id. at
556, 108 S.Ct. at 1970. Accordingly, the Court concluded that,
at the Postal Service's inception, Congress waived its immunity
from interest awards, authorizing recovery of interest from the
Postal Service to the extent that interest is recoverable
against a private party as a normal incident of suit.
Therefore, the Supreme Court held that prejudgment interest
may properly be awarded in a Title VII employment
discrimination suit against the Postal Service since (1) Title
VII authorizes prejudgment interest awards as a normal
incident of suits against private parties, and (2) Congress,
having provided in the Postal Reorganization Act that the
Postal Service may "sue and be sued," waived the Postal
Service's immunity from such awards of interest.
The Fifth Circuit reached a similar conclusion in a case
under the Federal Tort Claims Act against the Postal Service.
See Perez v. United States, 830 F.2d 54 (5th Cir. 1987).
Anticipating the Supreme Court's reasoning in Loeffler, the
Fifth Circuit determined that by providing that the Postal
Service can "sue and be sued" Congress waived the Postal
Service's immunity from post-judgment interest awards. Perez,
830 F.2d at 60. Furthermore, the court stated that nothing in
the Federal Tort Claims Act restricted the waiver of immunity
in that case because the Act does not contain an exemption from
the waiver of immunity for claims arising out of a Postal
employee's negligent operation of a motor vehicle. Id. at 60.
Therefore, the court held that plaintiffs were entitled to
post-judgment interest against the government under the Federal
Tort Claims Act. Id. at 60.
The present case, under the Federal Tort Claims Act, is
distinguishable from Loeffler and Perez because it is brought
against the Veterans' Administration. Unlike the Postal Service
to which Congress has given the status of a private commercial
enterprise, thereby effectuating a waiver of immunity from
interest awards, when establishing the Veterans'
Administration, Congress did not enable it to sue or be sued.
Instead, "[t]he Veterans' Administration is an independent
agency in the executive branch of the Government, especially
created for or concerned in the administration of laws
relating to the relief and other benefits provided by law for
veterans, their dependents, and their beneficiaries."
38 U.S.C. § 201. There is no reference in the statute and no
legislative history exists which suggests that Congress, when
creating the Veterans' Administration, intended it to be a
"sue-and be sued" agency making it amenable to suits the same
as a private party.
Furthermore, the function of the Veterans' Administration is
governmental in nature. The Veterans' Administration was set
up specifically to administer programs and services available
to veterans and their families — programs and services which
otherwise might not be available in the private sector. The
Veterans' Administration does not seek commercial profit or
operate in any way as a commercial enterprise.
Therefore, when creating the Veterans' Administration,
Congress did not waive its immunity from interest awards.
Since the nature of the federal agency involved in this case
is different from the Postal Service, Loeffler and Perez are
Neither exception to the rule that the doctrine of sovereign
immunity precludes an award of interest against the United
States is applicable in this case. Therefore, plaintiffs'
motion for an award of post-judgment interest must be denied.
An appropriate order will be entered.