- 43 -
en banc) (“the panel’s decision is incompatible with the
teachings of” Shaw); Okla. Aerotronics, Inc. v. United States,
supra at 1353 (Williams, J., concurring and dissenting) (finding
Wilkett’s rationale “far from clear”); Masonry Masters, Inc. v.
Nelson, supra at 714 (Henderson, J., concurring) (asserting that,
because the EAJA lacks the express waiver contemplated in Shaw,
fees awarded thereunder “can never be enhanced for delay as a
matter of law”). In Shaw, the Supreme Court rejected the
argument that language in Title VII making the Government liable
for costs (including a reasonable attorney’s fee) “the same as a
private person” operated as an express waiver of sovereign
immunity with respect to interest, even though interest on
attorney’s fees may be recovered in a Title VII suit against a
private employer. In our view, the case for waiver was stronger
under the version of Title VII at issue in Shaw38 than it is under
the EAJA or, by extension, section 7430. See Wilkerson v. United
States, 67 F.3d 112, 120 n.15 (5th Cir. 1995) (“Nothing in � 7430
indicates that Congress intended to waive its immunity from
interest awards”); Miller v. Alamo, 992 F.2d 766, 767 (8th Cir.
1993) (same); Austin v. Commissioner, T.C. Memo. 1997-157 (same);
see also Intl. Woodworkers of Am., AFL-CIO, Local 3-98 v.
Donovan, 792 F.2d 762, 766-767 (9th Cir. 1985) (pre-Shaw; no
38 Title VII has since been amended to expressly allow the
recovery of interest against the Government in Title VII actions.
See 42 U.S.C. sec. 2000e-16(d) (2000); Landgraf v. USI Film
Prods., 511 U.S. 244, 251 (1994).
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