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October 25, 1982

Mary P. Laffey, et al., Plaintiffs
Northwest Airlines, Defendant

The opinion of the court was delivered by: ROBINSON


 This Title VII and Equal Pay Act case is in the final phases of litigation in this Court. After more than eleven years, a trial on the merits, and several rounds of appeals, only three issues remain before this Court: First, whether a final judgment may be entered without specifying the amount of attorney fees ultimately to be awarded. Second, whether "retroactive" wage payments made by Defendant in 1976 pursuant to a belatedly-negotiated collective bargaining agreement covering the years 1974 and 1975 eliminate Defendant's liability for both backpay and liquidated damages for those years; and Third, whether the rate of post-judgment interest is governed by the new federal interest statute or by this Court's Order of April 3, 1974, which set the post-judgment interest rate in this action at six percent. As the parties are unable to resolve these matters by agreement, the Court enters the following Memorandum Order.

 I. Entry of Final Judgment on the Merits

 The parties to this action agree upon the form of final judgment, but disagree sharply whether the judgment must specify the amount of attorney fees and litigation expenses to be awarded the successful plaintiffs. Citing White v. New Hampshire Department of Employment Security, 455 U.S. 445, 102 S. Ct. 1162, 71 L. Ed. 2d 325, 50 U.S.L.W. 4255 (1982) and the public interest in prompt remedy of Title VII and Equal Pay Act violations, Plaintiffs urge the Court to enter final judgment as soon as all merits issues are resolved, without awaiting determination of the amount of attorney fees. Defendant opposes the motion, claiming that a decision awarding an indeterminate amount of attorney fees is not a final judgment (the question not having been squarely addressed in White), and suggesting that the parties undertake to negotiate the amount of fees.

 After several months of inconclusive negotiations between the parties on the attorney fees issue, the Court concludes that agreement, if it is forthcoming at all, is not imminent. Entry of final judgment is therefore appropriate, without regard to the "unfinished business" of attorney fees. See White v. New Hampshire, supra. As the Court noted in White, a request for attorney's fee "raises legal issues collateral to the main cause of action."

Regardless of when attorney's fees are requested, the court's decision of entitlement to fees will therefore require an inquiry separate from the decision on the merits -- an inquiry that cannot even commence until one party has "prevailed." Nor can attorney's fees fairly be characterized as an element of "relief" indistinguishable from other elements. Unlike other judicial relief, [attorney's fees] are not compensation for the injury giving rise to an action. Their award is uniquely separable from the cause of action to be proved at trial.

 White, supra, at 451-452 (footnotes omitted). The Court perceives no impediment to entry of final judgment at this time. To the extent that it becomes necessary to do so, this Court can litigate the attorney fee question with reasonable dispatch and, as White suggests, thereby permit the appeal from the fee award "to be considered together with any appeal from a final judgment on the merits." Id. at 454 (footnote omitted). *fn1"

 Therefore, final judgment shall be entered in this action on November 30, 1982, approximately forty days from the date of this order. *fn2"

 II. Backpay Due Equal Pay Act Plaintiffs

 The parties' dispute concerning the amounts due the "Equal Pay Act" Plaintiffs derives from the following chronology of events. On November 12, 1973 this Court entered a finding that female stewardesses and male pursers were performing "equal work," and that Defendant was violating both Title VII and the Equal Pay Act by paying stewardesses less than pursers. Laffey v. Northwest Airlines, Inc., 366 F. Supp. 763, 789 (D. D.C. 1973). Shortly thereafter, at the end of 1973, the collective bargaining agreement between Defendant and Plaintiffs' union expired. For the next two years, pursuant to what Defendant terms the "customary collective bargaining practices in the airline industry," Plaintiffs continued working under the terms of the expired contract while a new contract was being negotiated. On April 3, 1974 the Court entered its remedial order, directing Defendant to equalize the wages and ordering backpay in the amount of the differential between stewardess and purser salaries. Laffey v. Northwest Airlines, 374 F. Supp. 1382 (D. D.C. 1974). The Order specified that backpay would continue to accrue until salaries were equalized, but declined to award liquidated damages.

 The April 3 order was stayed pending appeal, and most of it was ultimately affirmed. The Court's finding concerning liquidated damages, however, was reversed. Laffey v. Northwest Airlines ("Laffey I"), 185 U.S. App. D.C. 322, 567 F.2d 429, 465 (D.C. Cir. 1976). On December 20, 1975 (effective January 31, 1976) Defendant entered into a new collective bargaining agreement with the union, including a provision for "retroactive wage payments" that equalized the salaries of stewardesses and pursers for 1974 and 1975. On November 21, 1980, following a remand by the Court of Appeals, this Court determined that liquidated damages were mandatory under the circumstances of the case and ordered their payment in an additional amount equal to the backpay previously ordered. *fn3"

 The dispute before the Court centers on Defendant's retroactive wage payments for the years 1974 and 1975. The parties agree that the retroactive payments are credited against Defendant's backpay liability, but disagree on whether Defendant is liable for liquidated damages equal to the retroactive payments. Plaintiff claims that, by its terms, the 1980 Order requires liquidated damages in an amount "equal to the previously ordered backpay," without exception for situations in which Defendant chose to remit the backpay without awaiting final judgment. In any event, Plaintiff asserts that liquidated damages are mandatory because liability attached at the time of the violation, even though it was later cured. The issue, as Defendant frames it, is the effect of a contractually agreed-upon retroactive wage adjustment in determining the amount of differential between purser's wages and stewardess' wages. Defendant contends that the retroactive payments were not in partial satisfaction of the Court's judgment, but a "standard feature of labor agreements in the airline industry." Defendant argues that retroactive wages paid pursuant to a collective bargaining agreement relate back to the date on which the parties would have been paid if they reached agreement on a new contract prior to the expiration of the old agreement. Thus, the retroactive payments are treated as having been received when earned and they eliminate any differential pro tanto. Since there is no differential, there are no backwages owing, and there can be no liquidated damages to pay. *fn4"

 After carefully considering the papers submitted by the parties and the relevant (albeit scarce) case law, the Court concludes that Defendant's retroactive pay increase did not obliterate its obligation to pay liquidated damages equal to the amount of backpay ordered.

 It is clear that an employee cannot waive its right to liquidated damages, even when such waiver is in compromise of a bona fide dispute, e.g., over the coverage of the Act. Schulte v. Gangi, 328 U.S. 108, 90 L. Ed. 1114, 66 S. Ct. 925 (1946), Brooklyn Bank v. O'Neil, 324 U.S. 697, 89 L. Ed. 1296, 65 S. Ct. 895 (1945). The reason lies in the fact that liquidated damages are not punitive but compensatory, intended to compensate a worker for the retention of his pay, which might result in damages too obscure and difficult of proof to be compensated for other than by liquidated damages. Brooklyn Bank, supra, at 707. The Court acknowledged that "It is quite true that the liquidated damage provision acts harshly upon employers whose violations are not ...

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