The opinion of the court was delivered by: RICHEY
CHARLES R. RICHEY, UNITED STATES DISTRICT JUDGE
The plaintiff Mitchell is the prevailing party in a Title VII action. In its opinion dated September 2, 1988, the Court found, following trial, that the Department of Commerce (the "Department") had discriminated against Mitchell on the basis of his race in denying him a promotion. The Court retroactively awarded Mitchell the promotion, along with back pay.
Mitchell subsequently moved for additional relief, including the entry of a permanent injunction against further acts of discrimination, and interest on the back pay award.
Mitchell's entitlement to this additional relief has been fully briefed by the parties, and is now ripe for decision. The Court has determined to grant the requested injunction, but will deny Mitchell's request for interest on the award of back pay.
The Court is now informed that Mitchell, in fact, has not retired, and that he has no intention of retiring anytime soon. Further, the Court is informed that the Department's handling of Mitchell's recent sick leave
suggests that the Department may resent Mitchell's willingness to successfully litigate his claims. Under these circumstances, the entry of a permanent injunction against future acts of discrimination or retaliation against Mitchell would appear to be prudent. The Court is concerned that, absent such an injunction, the Department's mistreatment of Mitchell will continue, albeit in subtle ways that may be beyond immediate judicial supervision. The Department shall be permanently enjoined, from the date hereof, from engaging in any acts or omissions on account of Mitchell's race, or in reprisal for Mitchell's having instituted this or any other action.
Interest on Award of Back Pay
The Court initially awarded Mitchell back pay in an amount equal to the difference between what he has actually earned and what he would have earned had he received the promotion at issue. Mitchell now seeks interest on that award. Because the Court is of the view that, under the circumstances of this case, such an award would contravene the federal government's sovereign immunity, and that Congress has not expressly waived this sovereign immunity in either Title VII itself or the Back Pay Act, 5 U.S.C. § 5596, Mitchell's request shall be denied.
The Department discriminated against Mitchell in failing to promote him, because of his race, to a position for which he had applied. Accordingly, as it is specifically authorized to do, the Court awarded Mitchell back pay under $ Z 717(d) and 706(g) of Title VII, 42 U.S.C. $ Z 2000e-16(d) and 2000e-5(g).
As Mitchell concedes, however, Title VII itself nowhere authorizes the award of interest, whether on back pay or any other form of monetary relief. See generally, Loeffler v. Frank, 486 U.S. 549, 108 S. Ct. 1965, 100 L. Ed. 2d 549 (1988); Library of Congress v. Shaw, 478 U.S. 310, 106 S. Ct. 2957, 92 L. Ed. 2d 250 (1986). Absent such express statutory authorization, Title VII cannot be read to represent an intentional waiver by Congress of the sovereign immunity that otherwise protects the federal government from interest awards of any kind. See Shaw, 106 S. Ct. at 2961 ("In the absence of express congressional consent to the award of interest separate from a general waiver of immunity to suit, the United States is immune from an interest award.").
That is not to say, however, that Congress may not expressly waive sovereign immunity as to an interest award under Title VII through other legislative enactments. For instance, in Loeffler, the Supreme Court determined that because the Postal Reorganization Act, 39 U.S.C. § 401(1) (the "PRA), allows the Postal Service to "sue and be sued" as a private person, it must be treated as a private person for purposes of an action against it under Title VII. 108 S. Ct. at 1970. And, because interest may be assessed against a private defendant under § 706(g) of Title VII, see, e.g., Green v. USX Corp., 843 F.2d 1511, 1530 (3rd Cir. 1988), the Court construed the PRA's "sue and be sued" clause as representing an express waiver of the sovereign immunity that would have otherwise have barred the assessment of interest against the Postal Service in a Title VII suit.
As always, and particularly so when waivers of sovereign immunity are at issue, the Court begins with the statutory language. The Back Pay Act grants federal employees the right to receive back pay, and interest thereon, when they have been affected by "an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of all or part of the pay, allowances or differentials of the employee." 5 U.S.C. § 5596(b)(1). Further, the Back Pay Act includes within the class of "personnel actions" that will trigger its provisions "the ommission or failure to take an action or confer a benefit." 5596(b)(4). Mitchell contends that the latter-quoted language is sufficiently broad to cover a failure to promote of the type at issue here; accordingly, he contends that the Back Pay Act should be read to authorize an award of back pay and interest under the circumstances of this case, and thus to have waived the sovereign immunity of the federal government as to an award of interest.
The Court cannot agree. The language of the statute controls.
And the express terms of the Back Pay Act provide that it shall be effective only when the "unwarranted personnel action" being challenged results in the "withdrawal or reduction" of an employee's compensation. The Court simply cannot conclude that the failure to promote an employee, even where that failure is wrongful, as it was here, results in the "withdrawal or reduction" of an employee's compensation. United States v. Testan, 424 U.S. 392, 47 L. Ed. 2d 114, 96 S. Ct. 948 (1976); Donovan v. United ...