Jerry and Patricia A. Dixon, et al. - Page 41

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                    c.   The Delay Factor                                             
               In Library of Congress v. Shaw, 478 U.S. 310 (1986), the               
          Supreme Court held that a 30-percent increase in the lodestar               
          amount of a Title VII fee award to account for the delay factor             
          violated the “no-interest” rule, which prohibits the recovery of            
          interest in a suit against the Government absent an express                 
          waiver of sovereign immunity with regard to interest.  Two years            
          later, the Court of Appeals for the D.C. Circuit concluded that             
          the “special factor” provision of the EAJA provides the express             
          waiver of sovereign immunity required by Shaw.  Wilkett v. ICC,             
          844 F.2d 867, 876 (D.C. Cir. 1988).  The court therefore                    
          concluded that Shaw is not inconsistent with the law of that                
          circuit holding that delay may be regarded as a special factor              
          under the EAJA.  Id.; see also Masonry Masters, Inc. v. Nelson,             
          105 F.3d 708, 713-714 (D.C. Cir. 1997); Okla. Aerotronics, Inc.             
          v. United States, 943 F.2d 1344, 1350 (D.C. Cir. 1991).                     
               The Courts of Appeals for the Fifth and Eleventh Circuits              
          have sided with the D.C. Circuit on the delay issue in the                  
          context of the EAJA, while the Courts of Appeals for the Seventh            
          and Federal Circuits have gone the other way.  Compare Perales v.           
          Casillas, 950 F.2d 1066, 1077 (5th Cir. 1992) (agreeing with the            
          D.C. Circuit that “[e]ven after the Supreme Court’s sweeping                
          prohibition in Shaw of interest awards against the United                   
          States”, “some forms of delay may justify enhancing the statutory           






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