ML20058J537

Requests Comptroller General Opinion Re Availability of Funds to Pay Awards by Us Agency to Intervenors Under Equal Access to Justice Act (Eaja).Eaja Conflicts W/Nrc FY82 Appropriations Act

ML20058J537
Person / Time
Site:	Bailly
Issue date:	08/06/1982
From:	Bickwit L NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Bowsher C GENERAL ACCOUNTING OFFICE
References
NUDOCS 8208110087
Download: ML20058J537 (4)

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. BRANCH The Honorable Charles A. Bowsher Comptroller General of the United States - t ,- '""r,72 .q.

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Washington, DC 20548

Dear Mr. Bowsher:

I am writing to seek the advice of the General Accounting Office (GAO) on several questions that have arisen with regard to the payment of awards under the Equal Access to Justice Act (EAJA), Pub. L. No.96-481, 94 Stat. 23e5 (1980). Specifically, we are interested in the GAO's opir. ion about the availability of appropriated funds to pay any awards by this agency or a court to those who are intervenors in Nucl. ear Regulatory Commission (NRC) adversary

. adjudications. .

Under the EAJA, any party to an NRC adversary adjudication '

that meets certain net worth and other requirements is entitled to an award of attorney fees if it is demonstrated to the adjudicative officer that the party prevailed in the adjudication, that the agency's position was not -

substantially justified, and that there are no special circumstances that make an award unjust. 5 U.S.C.

S 504 (a) (1) . As defined in the EAJA, a " party" is any party to an agency proceeding as defined under 5 U.S.'C. S 551(3),

which could include intervenors in NRC adjudications. ,

With regard to the payment of awards, the Act provides that:

Fees and other expenses awarded under this section may be paid by any agency over which the party prevails from any funds made available to the agency, by appropriation or otherwise, for such purpose. If not paid by any agency, the fees and other expenses shall be paid in the same manner as the payment of final judgments is made pursuant to section 2414 of title 28, United States Code.

5 U.S.C. 9 504 (d) (1) . In a May 15, 1981 letter to the Chairman of the Administrative Conference of the United States (B-40342.1), the Acting Comptroller General of the United States stated that the GAO interpreted this language 8208110087 820806 h

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, The Honorable Charles A. Bowsher 2 August 6, 1982 as making agency appropriated funds the first source for the payment of EAJA awards, whether or not there had been a specific agency appropriation for the payment of EAJA awards. Further, the Acting Comptroller General indicated that in light of section 207 of the EAJA, 1/ the alternative provision for payment from the permanent judgment appropriation established by 31 U.S.C. S 724a would not be available as a source of funds unless there was a specific annual appropriation to cover payments for EAJA awards.

With regard to th'e use of NRC's appropriated funds for the payment of intervenors, section 502 of the agency's fiscal year 1982 appropriations act declares that "[n)one of the funds in this Act shall be used to pay the expenses of, or otherwise compensete, parties intervening in regulatory or adjudicatory proceedings funded in this Act." Energy and Water Development Appropriation Act, 1982, Pub. L.

No. 97-88, S 502, 95 Stat. 1135 (1981). 2/ Despite the evident intent of Congress in the EAJA to make all parties, whether intervenors or otherwise, eligible for EAJA awards, the broad language of this appropriations measure raises serious questions about the legal authority of the NRC to disburse appropriated funds for EAJA awards. 3/ Further, ,

because there has been, to the best of our knowledge, no appropriation to the permanent. judgment fund for the payment ,

of EAJA awards, there appears to be no alternative source of

'/

Section 207 of the EAJA provides that "[t] he payment of judgments, fees and other expenses in the same manner as the payment of final judgments as provided in this Act is effective only to the extent and in such amounts as are provided in advance in appropriations Acts."

-2/ Previously, the GAO has interpreted the same language in the agency's 1981 appropriations measure to preclude NRC from using appropriated funds to implement a procedural cost reduction program. (B-200585, Dec. 3, 1980).

$! Because section 502 of tne Energy and Water Development Appropriation Act, 1982, is also applicable to the fiscal year 1982 appropriation of the Federal Energy Regulatory Commission, a copy of this request is being sent to the General Counsel of that agency.

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The Honorablo Charles A. Bowsher 3 August 6, 1982 funds available to pay an award to an intervening party under the EAJA.

. Against this background, we are seeking the advice of the GAO on the following questions:

1. Does the language of section 502 of the NRC's fiscal year 1982 appropriations measure, Pub. L. No. 97-88, preclude the agency from disbursing NRC fiscal year 1982 appropriated funds to an intervenor who is otherwise found to be entitled to an EAJA award as a prevailing party in an adversary adjudication funded under the fiscal year 1982 appropriations act?

2. To what extent does the language of section 502 of the NRC's fiscal year 1982 appropriations measure, Pub. L.

No. 97-88, preclude the agency from disbursing fiscal year 1982 funds to an intervenor as payment of an award for its participation in an adversary adjudication, portions of which were funded under earlier NRC appropriations legislation that did not include the section 502 restriction.

3. Does the EAJA i s alternative provision for payment of an r'tC award out of the permanent judgment fund now ..

provide a source of funds in the absence of a specific appropriation to that fund for the payment of EAJA awards?

4. If there is no present source of funds for the payment of EAJA awards to NRC intervenors, would an NRC award, issued during a. fiscal year in which there is no source of funds, be subject to payment at any time in the future when unrestricted funds are available to the l ' agency or in the permanent judgment appropriation?

5. If in answering question 4 you conclude that there is no time limitation on when an award can be paid, can the NRC set a time limitation within which an award must be presented for payment, even if funds are not presently available for disbursement?

In addition to the GAO's advice concerning the NRC's ability I to pay intervenors under the terms of 5 U.S.C. S 504 (d) (1) ,

we would appreciate being advised with regard to the questions above as they relate to payments to intervening parties who, under 28 U.S.C. S 2412 (d) , might be given an award in judicial proceedings as a result of their participation in agency regulatory or adjudicatory

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proceedings.

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l The Honorable Charles A. Bowsher 4 August 6, 1982 The agency is seeking the GAO's guidance on these questions so that any final rules the Commission may adopt to implement the EAJA can include the proper instruction to intervenors and other parties for seeking the payment of awards. In addition, the Commission has pending befors it an intervenor's application for fees under the EAJA that is being held in abeyance pending a GAO response to our inquiries. We would, accordingly, appreciate as prompt a response as possible to our quesrions. ,

The Commission a[preciates your assistance in this matter.

If you have further questions concerning the request, please contact Paul Bollwerk of my office (634-3224), who will be coordinating this effort for the Commission.

Sincerely, k k 8 s.

Leonard Bickwit, Jr.

General Counsel cc: Charles A. Moore, GC, FERC P

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