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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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