A former government lawyer who successfully sued the Federal Energy Regulatory Commission for age discrimination missed his shot to seek interest on the award he received for back pay, a federal appeals court in Washington said Tuesday.
John Winslow sued FERC for age discrimination and, after a bench trial, a judge found in his favor. The ruling was in 1987. FERC paid Winslow nearly $180,000 in full back pay without interest, court records show. More than two years later, Winslow filed court papers seeking prejudgment interest under the Back Pay Act.
Magistrate Judge John Facciola of the U.S. District Court for the District of Columbia ruled against Winslow in June 2008, saying his motion for prejudgment interest was untimely filed. Citing Supreme Court precedent, Facciola said Winslow had a 10-day window in which to file the motion. Winslow appealed. Winslow's lawyer said the interest is at least $100,000.
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit unanimously agreed yesterday in an opinion written by Judge Brett Kavanaugh. The panel noted the Supreme Court’s ruling in 1989 in Osterneck v. Ernst & Whinney, where the Court said a motion for discretionary prejudgment interest must be filed within 10 days of the judgment. The Supreme Court suggested in a footnote said that a motion seeking mandatory prejudgment interest also must follow the 10-day rule.
A lawyer for Winslow at Swick & Shapiro in Washington argued in the D.C. Circuit in September that the Supreme Court footnote should not be controlling since it is dicta—an aside that doesn’t address the specific facts of the case before a court. At oral argument in September, Richard Swick, arguing for Winslow, urged the panel judges to go beyond dicta, saying that Winslow has a statutory right to the interest.
Chief Judge David Sentelle, sitting with Judges Thomas Griffith and Kavanaugh, were not so moved. Sentelle said in court “[w]e’re biting off an awful lot if we tell the Supreme Court, we know what you think but we’re not going to follow it because it’s dicta.” Kavanaugh said in court that he doubted the footnote was overlooked in the Supreme Court’s unanimous opinion.
“We decline Winslow’s invitation to flout the Supreme Court decision in Osterneck,” Kavanaugh wrote in yesterday's opinion.
Swick said there's been no immediate decision to challenge the D.C. Circuit opinion.