View source for IA-85-636, Sanitized Version of Commission Paper Recommending That Attached Order Be Issued Denying Business & Prof People for Public Interest Request for Award of Atty Fees Under Equal Access to Justice Act

{{Adams
| number = ML20138H057
| issue date = 04/29/1985
| title = Sanitized Version of Commission Paper Recommending That Attached Order Be Issued Denying Business & Prof People for Public Interest Request for Award of Atty Fees Under Equal Access to Justice Act
| author name = Fitzgerald J
| author affiliation = NRC OFFICE OF THE GENERAL COUNSEL (OGC)
| addressee name = 
| addressee affiliation = 
| docket = 05000367
| license number = 
| contact person = 
| case reference number = FOIA-85-636, TASK-AIA, TASK-SE
| document report number = SECY-85-152, SECY-85-152-01, SECY-85-152-1, NUDOCS 8512170020
| package number = ML20138H052
| document type = COMMISSION PAPER, TEXT-SAFETY REPORT
| page count = 17
}}

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                                                  % ... . . J ADJUDICATORY ISSUE April 29, 1985                 (Affirmation)                  SECY-85-152 For:                        The Commission From:                       James A. Fitzgerald Assistant General Counsel

==Subject:==
DISPOSITION OF APPLICATION FOR AWARD OF ATTORNEY FEES UNDER, EQUAL ACCESS TO JUSTICE ACT BY BUSI-NESS AND PROFESSIONAL PEOPLE FOR THE PUBLIC INTEREST (NORTHERN INDIANA PUBLIC SERVICE COMPA-NY, BAILLY 1, DOCKET NO. 50-367)             ,
Discussion:               In June 1982, Business and Professional People for the Public Interest (BPI) filed an Applica-
                       .                 tion for Award of Attorney Fees under the Equal Access to Justice Act (EAJA), 5 U.S.C. S 504, in connection with its participation in the licensing proceeding relating to the Bailly Generating Station.         (Attachment 1).y The EAJA 1
The Bailly licensee, Northern Indiana Public Service Company,
!              received a CP from the AEC in 1974. In part because of court l              challenges, construction did not begin until 1977. At that time, the l
licensee proposed using shorter pilings to support the plant than had i
been contemplated in the CP application, where it was stated that the
!              pilings would be driven to bedrock. BPI and other intervenors requested the NRC to treat the "short pilings plan" as a request for a CP amendment. The Commission rejected the argument that a CP amendment was required. On July 1, 1981, the D.C. Circuit, in an unpublished opinion, reversed. People of the State of Illinois v.
j              NRC, No. 80-1163. Soon thereafter, the licensee decided to cancel the facility, the estimated cost of which had risen from S180 million, when the application was filed, to over $2 billion. At the
[ Footnote Continued]

==Contact:==
8512170020 851206 Beverly Segal, OGC            PDR   FOIA           PDR X43224                        AFTERGO85-636 t

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2                                     ,
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provides that "[f]ees and other expenses awarded
                                        ... may be paid by any agency over which the party prevails from any funds made available to the agency,.by appropriation or.otheryise, for       ,
such purpose."    5 U.S.C. S 504 (d) (1)
In light of a Congressional directive banning intervenor funding, the application was held in abeyance pending a Commission request for a decision by the Comptroller General of the United States on the availability of Commission funds to pay an award under the EAJA. The Comptroller General's decision (Attachment 2) advised OGC that unless monies from fiscal years prior to 1982 were available in the Commission's coffers, no funds could be paid to any intervenor because of a Congressional ban on intervenor funding written into the Commission's FY 1982 and subsequent appropriations.
The Commission has two options in disposing of l
the pending BPI application.
i (Footnote. Continued]
time that the licensee cancelled the plant, a request for an extension of the construction permit completion date was pending before an Atomic Safety and Licensing Board. The licensee's motion to terminate that proceeding was opposed by the intervenors,. who
                                    ~
sought the imposition of _ conditions for the restoration -of the Bailly-site, which adjoins a National La'Keshore. NIPSCO, the.NRC_ staff, and the intervenors agreed on a site restoration plan,.which was approved by order ofLthe_ASLB on January 29, 1982. A proposed order terminating the proceeding was issued by the ASLB cn1 April 12, 1982 (15 NRC 762); in response to* objections and proposed modifications filed by1the intervenors,'a revised final order terminating the proceeding was issued on May 6, 1982 (15 NRC 1139).                         j I
2 BPI-asserts it.is a prevailing party in a-licensing proceeding      i
:   because the Licensing Board's May 7,-1982 order terminating the             j proceeding echoed'BPI's position that the Bailly construction permit         i Lshould not be-extended and the plant should not be built.
Furthermore,--~BPI claims victory on the short pilings issue when the utility moved to terminate the short piling proceeding.
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l Recommendation:       .I a
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                                                      ,, 4d.9, . :3 f James A. Fitzgerald Assistant General Counsel Attachments:
: 1. Application for Award of Fees and Expenses Under the Equal Access to Justice Act
: 2. Comptroller General of United States opinion
: 3. Graft order b

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4 Commissioners comments or consent should be provided directly to the Office of the Secretary by c.o.b. Tuesday, May 14, 1985.
Commission Staff Office comments, if any, should be submitted to the Commissioners NLT Tuesday, May-7, 1985, with an infor-mation copy to the Office of the Secretary. If the paper is of such a nature that it requires additional time for analytical review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected.
This paper is tentatively scheduled for affirmation at an Open Meeting during the Week of May 20, 1985. Please refer to the appropriate Weekly Commission Schedule, when published, for a specific date and time.
DISTRIBUTION:
Commissioners OGC
       . OPE OI OCA OIA OPA EDO ELD ASLBP ASLAP SECY 1
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                                          .                                     l

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                                                         %b, Attachment 2 I
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                                                   ~                                         .
                     .                                    ,   THE COMPTROLLER GENERAL
            .- , D EcilSIO N l           .!               f. iOF THE U N ITE O GTATEG                         E < .~ -
A' W A S w s N O T o N . o.C.        2o340
                                .               ~m FILE: B-208637 DATE: Septe=ber 29, 1983 o             MATTER OF:
                                       . Availability of funds for payment of intervenor                    .
attorney fees--Nuclear Regulator'f Comission
: 1. Section 502 of Nuclear Regulatory Cor:Tuission fiscal year 1982 appiv ziation act, which prohibits use of                   ,
                   -                 funds to " pay the expenses. of, or otherwise cor: pen-sate" intervenors, prohibits NRC frczn using 1982 funds to pay Equal Access to Justice Act. awards to r                      ,
intervenors, to the extent the underlying gvceed-ings were funded under the 1982 ay,4upciation act.
Bowever,1982 appropriation is available to pay                           .
award for fees and expenses incurred incident to that portion of a proceeding funded by a prior year's apprvpriation not subject to section 502.                                  ,
: 2. Under section.203 of Equal Access to, Justice Act (5 U.S.C. S 504) w6ich authorizes agencies to award
,                                    attorney fees and expenses 'to prevailing party upon                                  -
final resolution of adversary adjudication, the obligation for purposes of 31 U.S.C. 5 1501(a) arises when 'the agency rakes the award, that is, when the adjudicative officer ren6ers his decision in response to prevailing party's fee application.
: 3. Section 207 of Equal Access to Justice Act (EAJA)
(5 U.S.C. S 504 note) prohibits use of pentanent 4
judgment aww,4 iation established by 31 U.S.C.
S 1304 as alte:mative source of funds for payment                  .
of awards newly authorized by FATA unless and until Congress makes a specific appropriation for that purpose.
This respends to a request by the General Counsel of the l
Nuclear Pegulator'f Comission (NRC) for answers to a number of ques -
tions concerning the availability of appropriated funds for the pay-                                     -
ment of awards under the Equal Access to Justice Act (Act) to                          -
intervenors in NBC adversary adjudications. Most of the questions center around the issue of whether the NRC may pay such awards in light of seccion 502 of the agency's fiscal year 1982 appropriation act, the Energy and Water Develegnent Appropriation Act,1982, Public Law 97-88 (95 Stat.1135 (1981)). Below, we have stated each question and our answer to it. Fmever, before addressing the specific questions, we believe that a brief discussion of the Act's                                           I applicability to intervenors ray be helpful.                                                                 I l                                                                                                                            ,
l

3-205637            ..             t 6
APPLICAB~LITY 'IO INTERVDORS I
he Equal Access to Justice Act, Title II of Public Iaw 96-481, effective October 1,1981, generally authorizes the awarding of                                      -
attorney fees, expert witness fees, and other costs to private par-                             ,
ties in certain administrative and judicial proceedings against the                           -
United States in which they were not previously allowed. Specifi-cally, as relevant to this decision, 5 U.S.C. S 504(a)(1) (added by 203(a)(1) of the Act) provides:
        .                             "An agency that conducts an adversary adjudica-tion shall award, to a prevailing party other than the United States, fees and other expenses incurred by that party in connection with that proceeding, unless the adjudicative officer of the agency finds that the posi-tion of the agency as a party to the proceeding was substantially justified or that special circumstances
* rJce,an award unjust."                                                      .
Se Act defines " adversary adjudication" as "an adjudication i
under section 554 of this title [ Administrative Procedure Act) in . .
which the position of the United States is represented by counsel or o.herwise, but excludes an adiudication for the pu pose oflestaM lishine or firi6e a vara ne fnr *ha m w se of w e.4 L,g-ar rcr. ring T Tice_nse "       5 U.S.C. S 504-(b)(1)(C). However, according to tne ~
                     'Tegislative history, the exclusion for licensing hearings does not I                      extend to proceedings involving the suspension, annulnent, with-drawal, limitation, anendnent, nodification, or conditioning of a license. H.R. Rep. No. 1418, 96th Cong., 2d Sess.15 (1980); S.
Rep. No. 253, 96th Cong. ,1st. Sess. 17 (1979). (2 e NRC had indicated infor: rally that it conducts such proceedings in which intervenors participate and in which the position urged by the intervenors might prevail.)
The Act further defines " party" as a party for purposes of the Administrative Procedure Act, but having a net worth under a speci-fied ancunt or less than 500 e::ployees. 5 U.S.C. S 504(b)(1)(B).
This expressly includes a person " admitted by an. agency as a party for limited purposes." 5 U.S.C. S 551(3). This language would seem sufficiently broad to enco:: pass intervenors.                  -
his is also the view of the Administrative Conference of the United States although the Conference t:elieves that intervenors will rarely actually receive awards. Se conference acts as constiltant to Federal agencies which must ' establish unifom procedures for awarding fees in their administrative proceedings. 5 U.S.C.
S 504(c)(1).                                                                                .
j.
l i
2-

                   -208637 The Conference has published nodel rules to provide guidance to agencies in establishing their oin regulations. 46 Fed. Reg. 32900 (June 25, 1981).              The i::carrents preceeding the nedel rules state:.,
                                              ~                                                                      ~
                             " Interveners: The National Screw Machine Products Association, the National Association of Manufacturers,.                                                   !
and DOE suggested that the rules should limit or elimi-nate the eligibility of intervenors. We don't believe that the Act provides for this. We note, however, that situations in which intervenors actually receive awards will probably be rare. The Act exe1Mae -"' -^M~; .
licensing, and ratemakingsmdincs, in which volun-
  ,                         tary intervention is verv likelv. In adymrsa-v adiudi-cauons such as enforcement i.,imedings, intervention i
by parues w:Ltror a div.~- fi=nci.al-stake in tne ouii-                                            .
ccme is relatively infrecuent,_so the Act seens unlik_e-
                           ~}y to Decome a subst;4atial_sp; Ice _gf_ funds for advocacv                                    -
organizations promoting. generalized _ points of view in a{eh5fWoceedings. " M., at 32903.                                                                        -
Thus, if an intervenor 'oisalidies as a " prevailing party" in an adversary adjudication as defined in the Act and its legislative history, it is eligible to apply for a fee award under 5 U.S.C.
                                     ~
S 504.                                     .
THE SPECIFIC vurwnCNS Against t'his background, the cuestions raised by the NRC and                                           ,
l                our answers to them are as follows:                                                                             -
                                       "(1) D:es the 1<.nguage of section 502 of the NRC's fiscal year 1982 ay,,6 0,n iations neasure, Pub. L. No.
97 -88, preclude the agency from disbursing N!C fiscal year 1982 a,:propriated 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 aporopriations act?"
Restated, the question is whether section 502 overrides the nere general authority of the Equal Access to Justice Act with                                              -
respect to NRC proceedings. We believe it does.                                                         ,
i The Energy and Water Development Appropriation Act,1982, appropriated funds to the NRC to carry out its responsibilities l                under its major autlcrizing legislation, the Energy Reorganization

               ;   ,;D-208 637         c.             o
                      .                                 b. '.
Act of 1974 and the Atomic Energy Act. Pub. L. No. 97-88, 95 Stat.
1135, 1147 (1981). Since, as will be discussed later, agency funds                                                        ,
are at present the sole source for FA7A award paymmts, funds appro-                                                       '!
priated by Pub. L. No. 97-88 ordinarily would be available forliRC awards, including those made to intervenors. Section 502, hcwver, limits the availability of the NRC's fiscal year 1982 awiveriation                                  ,
.                     with respect to intervenors. It provides:
                                   "None of the funds in this Act shall be,used to pay the expenses of, or otherwise cernoensate, parties intervening in regulatory or adjudicatory proceedings funded in this Act." 95 Stat. 1148     (Emphasis addedi)
We note that the NRC's 1984 appropriation contains the same prohibition. Energy and Water Development Apprcpriation Act,1984,
     ',               Pub. L. No. 98-50 (July 14,1983), S 502, 97 Stat. 247, 261. The same apprcpriation act includes a similar prohibition applicable to                                     ,
the Department of Energy. Pub. L. No., 98-50, S 305, 97 Stat. 259.
l The Department of Housing and Urban Development-Independent Agencies Awcvfciation Act,1984, also includes a similar provision. Pub.
L. No. 98-45 (July 12,1983), S 410, 97 Stat. 219, 239. Thus, the                              ~
effect of section 502 and similar provisions appears ,to be a 1                      continuing and nere general cluestion, apart from the relatively
* limited scope o,f the original question NRC raised. While we will respond in tenns of NRC's 1982 apprcpriation, our cements apply to any agency in any fiscal year in which it is subject to a prohibi-tionlikesection502.1/
We note further that the NR2's " Salaries and Expenses" appropriation for 1982 remains available until expended; that is, it is a no year app wfciation. The sa:re is true for 1984. Bowever, some agencies subjec. to section 502 or similar restrictions may be 1
operating under one year appropriations. ~We will address both l                      situations in the remainder of this decision whenever the l                      distinction is relevan
                 -           The plain terms of section 502, particularly the underscored phrase, unambiguously prohibit the use of appropriated funds for payments of any kind to intervenors. On its face, this would include awards under the EMA., E.,VA paynents would constitute a
        ~
I f   The relevant provision of the Equal Access to Justice Act, 5 U.S.C. S 504, is subject to a " sunset" provision and is sche-duled to expire as of October 1, 1984 Legislation 'to trake the Act permanent has been introduced in the 98th Congress (S.919) but has not yet been acted upon.                                                                        .
9
                                                                                      ,---,..e   , , . - - - - - -              - , -  ,#+---

   .- 't 208637 I
form of co:pensation to intervenors and are therefore within the                          !
scope of the prohibition.                                                                 !
1 Thus, sectica 502 prohibits NRC award payments to intervenors while the FA7A appears to provide for such payments; the issue              .
arises as to which statute is controlling.. It is a well-settled principal of statutory construction that specific terms covering a given subject matter will prevail over general language of the same or another statute which might otherwise apply. Keener v. United States,195 U.S.100,125 (1904); B-152722, August 16, 1965. The FA7A is a general statute. It generally authorizes awards of fees and expenses for prevailing parties in covered proceedings against any governnental agency to which the Act applies. In ecxTparison, section 502 is the nore specific provision in that it concems only payments to intervenors in NR* proceedings funded under the 1982 F.nergy and Water Develo;nent App 4cpciation Act. Accordingly, sec-           .
tion 502 controls and the NR2's 1982 funds are not available to pay intervenor FA7A awards.2j
                      "(2) To what extent does the language of section
                                                                              . ~
502 of the NRC's fiscali. year.1982 appropriations mea-sure, Pub. L. No. 97-88,' predlude the agency from dis-bursing fiscal year 1982 funds to an intervenor as payment of an award for its participation in an adver-sary adjudication, portions of which were funded under earlier NRC appropriations legislation that did not include the section 502 restriction."
Inplicit in this question is the premise that the award is not             .
This is because the
       . actually made until fiscal year 1982 or later.                                           ,
statute doe's not permit the naking of an award prior to final disposition of the adjudication. Also, it should be kept in mind that the folicwing discussion pertains to the IE, an agency which
                                                                         ~
receives'ne-year appropriations.
l              As indicated in our answer 'to question 1, by enacting section 502 Congress clearly intended to insure that none of the l        Conmission's fiscal year 1982 aff%riated funds would be paid to intervenors. In view of the definitive nature of this limitation, 2
          /    For FY 1983, NRC did not receive a " regular" awsvpiiation but has been operating under a continuing resolution. Pub. L. No.
97-377 (Decen6er 21,1982), S 101(f), 96 Stat.1830,1906. It l
is clear from the conference report that. conditions in the 1982 appropriation act were intended to remain 2pplicable. B.R.               -
Rep. No. 980, 97th Cong., 2d Sess.184 (1982).                                 .
                        ,~                      ..
                ''3'-208637                                         -                                                                   -
y.
                            .                                           v we conclude that funds restricted by section 502 Eay not be used to
                   , satisfy an award in an adversary. adjudication recardless or une fact tFst psrt of the proceeding was conducted in an earlier "unrestrie-Ted fiscal year. section 502 thus precludes the NRC from disburs *                                           .
Tng fiscal year A:vez epsvpilated funds to an intervenor to satisfy b ==as a steimu,nc Hoa&*-i e spaH m h =" =+samrv ac7ucication
                   'which was funded in part bv an earlier unrestricted apscosciaHm.                                              -
On the other harv e. 4 h. r r==i==4m mav make and pay su& an                         '
              . award fmm the earlier unlimited .py,wetiation provideo runds.are stuA ava11aDJe for obligation frcm that pyswysiation at the
* tine                                                      ,:
      .          - t e "._e .' p on -b m                  o wu d. an earlics eggtvetier. ion ncr Almited by section 502 ray be used to pay awards to intervenors.
Tne fact that the Comnission issues an award durihg a restricted
         .         fiscal year does not prevent its bein'g paid out of a previous fi' scal year's apfivfri'ation so long as part of the yt% ding giving rise to the award was funded by an unrestricted. appivfriation.3/
As noted, generally, the Camission , annually rs:eives a nc year                                          -
accrocriation which "rerains available until exoended." For the
                                                                                           ~
pI. %.s of detemining the avath:abil'ty of funds to make awards of the type in question, the Cc:: mission s ld consider that it -
obigates its funds in the or6er in which they are appropriated.
Under this approach, the Comission should subtract its total obligations since the effective date of the earlier appropriation                           -
from the amount of that appropriation. If the anount of funds obigated is less than the anount of the unrestricted appropriation, then the Comission should consider the difference as the anount of
                . the unrestricted appropriation still available for obligation to pay the award. Tne award ray be satisfied up to the anount of the difference. Conversely, the Comission should consider itself as operating on restricted funds if the obligated anount is greater than the unrestricted appropriation and the. award should ,not be nede.
                              ~
                                                              ~.
                                     ." (3) Does the FAIA's alternative provision for                                                           l l                               paynent of an NRC 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
* FA7A awards?"
3 l                   /           This of course would not be true if we were dealing with annual apprcpriations because the pri'or appropriation would have expired foi obligational pug:oses.                                                                    .
1 t

              ..           5-208637                    .-         .
                                                                           ~
No. Another provision of the FA7A, sec ion 207 (classified to 5 U.S.C. S 504 note) clearly prohibits the use of the judgment appropriation for the paynent of awards unless Corgess rakes a specific appiepsiation,for that purpose or otherwise amends the legislation.                                                                '
k'                                 The "altemative paynant provision" refers to the second         -
sentence of 5 U.S.C. S 504(d)(1). Subsection 504(d)(1) pr'vides:                  .
                                           " Fees and other expenses awarded under this section may be paid by any agency over which the party prevails from any funds trade available to
     ..                            the agency, by appropriation or otherwise, for                                        ;
such purpose. If not paid by an agency, the fees and other expenses shall be paid in the same manner as the payment of- final judgments is rade pursuant to section 2414 of title 28,                                        -
United States Code."
The permanent indefinite appicpriation established by 31 U.S.C.       .
51304 (fomerly 31 U.S.C. S 724a) is generally the source of pay-                            -
1 ment of final judgments covered by 28 U.S.C. 5 2414.                                       ,  !
In a
* letter to the Administrative Conference of the United States, 3-40342.1, May 15, 1981, we'.noted that the report of the Bouse Judiciary Conmittee on the bill that became the Equal Access to Justice Act states " Funds may be awtvetiated to cover the costs of fee awards or ray otherwis'e be made available by the agency (e.g. , through reyt w1amming)." H.R. Rep. No. 1418, 96th Cong.,
2d sess.16 and 18 (1980). We concluded that agency operating ewtoptiations~were available to pay FA7A awards wi'Jout the need for' specific approptiations.
Read alone, 5 U.S.C. S 504(d)(1) would appear to rake the judgment ayy,vfiiation av.111able as a back-up in limited situa-tions. 4/ Bowever, section 207 of the FA7A negates this possi-                  ,
bility. Section 207 provides:
                                              "The paynent of judgments, fees, and o'Jmr expenses in the same ranner as the payment of final judgnants as provided in this Act is effective.only to the extent and in such anounts as are provided in advance in appropriation Acts."                                         .
4
                            /      The Conference Report on the EAJA stated "The conference substitute directs that funds for an award * *
* come first from any funds appropriated to any agency * * *." H.R. Conf.
Rep. No.1434, 96th Cong., 2d Sess. 24 and 26 (1980). One of the major omcerns leading to the inclusion of the judgment awtefriation as a limited back-up was to prevent a small agency from being " disassembled" by a very large award. See Cong. Rec. , October 1,1980 (daily ed. ),- H-10223 (rerrarks of Rep. Kastenmeier).
,                 B-208637            ''              *
                                                         's Tne legislative history clearly establishes that section 207 was intended to prevent the expansion of the per rament judgment appre-priation. We discussed section 207 and its origin in detail in another letter to the Administrative Conference, B-40342.2,                                    ,
  --              October 21, 1981. The re:rainder of our res:ense to Question 3 is,                             !
taken essentially from that letter.                       .
Tne entire legislative history of seccion 207 is found in the Congressional Record for October 1, 1980, pages E-10213 through E-10218.      (Page references are to the daily edition.)
Tne conference report on E.R. 5612, which becane Pub. L.
No. 96-481, was issued on September 30,1980 (E.R. Rep.
No. 96-1434). Tne conference version of Title II (Equal Access to Justice Act) was identical to the version enacted into law except
                                                                     ~
that it did not include section 207.
The House of Representatives took up its debate on the con-ference repore on October 1, 1980. Representative Danielson raised a point of order, charging that the paynent provisions of Title II constituted "an appropriation on a legislative bill, in violation of clause 2 of rule XX of the ry,les of the House of Representatives.'-
(E-10214). The cited rule prohibits House conferees from agreeing                          .
to such a provision without prior authority of the House.
                          'Ibe Chair sunraarized the provisions in question and then stated:
                                 "Tnus the provision in the Senate anendnent con-tained in the conferer.ce report extends the purposes to which an existing permanent appropriation [31 U.S.C.
51304) may be put and allcws the withdrawal directly from the Treasury, without approval in advance by appropriatien acts, of funds to carry out the provi-siens of title II of the Senate anendnent." (B.10214)
Accordingly, for the spScific reason that the bill would hwe ex-panded the availability of the ju6gment appropriation, the Chair sustained the point of order. Thus, at this point, the bill was dead without some further legislative action.                   ,
Representative Smith then offered an anended version of the bill to cure the defect. The Smith amendnent was identical to the conference version with the addition of one new section-section 207. Representative Smith explained that his aner%nt " codifies e

3-208637 I
those provisions authorization            bill. which have been iolede to         b (E-10218)                                                 an    appre;piation on
  -                                                     It makes no other changes in the language " an      .
tending on    a legislative    thatbill.the     Smith amendment    e order, stillcorp anount d ' R
                                                                                                                                           \
point of order, offered the folicwing explanation: Representat
[section 207 tion for an a); s worded that it is just an author i                                .
appropriation,pmfriation. There has to be a specific laws around here." (E-10218)the same procedure we use in ainost a Repesantative McDade then confirmed Representati language has in fact becomevevery                                     Smith's state-anguage." ecmron  (The      since e gressional tract    authority.)  Budget Act of 1974, and is usually             nentfound of the iCon- -
n cases of con.. ,
The Chair then overvule5. the ~second point of ord accepted the conference report with the Smith                           er, the     House anenitent further207 section        debate,        and the bill was ultisnately signed'i          after some nto law with                         -
purpose                    of    section Chair to sustain Representative Danielson's 207    was       to     rcure fir t that thethe defect w ompted      the s point of virtue of section 207, we view                                     . . . the S 1304      theByEqual Acce as judgment cat     neitherappropr.iation.
expanding              nor d5Jninishing        the  o Justice availabiiltyAct       of th e per:rarr-Accordingly, the alternative payrent provisiont 5 U S S 504(d)(1), together with section 207, nerely.C.authorize f                    .
sppropriated to the ' judgment appropriation forunds awards.                                                                                 thetopayment be Since this has not been done, the judgment a                        of EAJA not ava'innie as a secondary paynent source.                              yfu,rfriation is
                                "(4                                                                                    -
the payae)nt of FA7A awards to                                    NRC intervenorsIf ther
                                                                                 , would an NRC award, issued during aerefiscal year in whi tine to able priation?
in the theagency futureorwhen    in theunrestricted permanent judgment funds are     appro-  avail i
_                            -                                _w                                                        , - - = -

                  ~                          ~~   ^~
7
                      ~~S-208637~             .         ,                                             ,
C.               .,,
                                        ..             s                                          y,              .-            s-
* 4 ., . .
         ..                                                                                     u. ',.
                                                           <~                                0              ..
v :.    ,
The'effect of section 502 is to prohibit the obligation of f .   .4: '
c '. ;''.
funds for awards to intervenors. At this point, therefore, it is useful to note exactly when an obligation arises under the Ecual .: G ,'
                                                                                       ~
Access to Justice Act. An award under 5 U.S.C. S 504 is not auto- ' '#                -
  "                   ratic. U;cn final disposition of the adversary adjudication, the party seeking an award nust apply to the agency. The applicatioif                             .
nuat show that the applicant is a " prevailing pa:ty". The agency                        -             -
adjudicative officer nust then issue a written decision on the applicatien. An award may be made only if the adjudicative officer finds that the agency's position was not substantially justified and th'at there are no special circumstances raking the award unjust.
            .         Also, the award may be reduced or denied if the applicant unduly and unreasonably delayed the final resolution. Under this statutory structu. e, we think the obligation arises, for ayftvy11ations
* accounting purposes (31 U.S.C. S 1501(a)), when the agency issues
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its decision on the fee application. See 1 Conp. Gen. 200 (1921);                                         '
         ,            38 Comp. Gen. 338 (1958); B-174762, January 24, 1972.
It is eienentary that an appropriation may be obligated only during its period of availability. Thus, an agency with fiscal year funds would record an obligation in the fiscal year in which it rakes the award. If the agency is subject to section 502 or a           -
                                                                                                                  ~
similar prevision, it cannotNmake 'a valid obligation for, a . fee award to an intervanor. Since NRC's 1982 aw wfciation was a no year -.                                                ,
effweiiation, the unobligated balance continues to be available for obligation. Bowever, section 502 " runs" with the appropriation also G
                                                                                                                                /
without fiscal year limitation, and thus continues to bar the crea-                              ;df' tion of a valid obligation for the prohibited purpose.                                  , gv
: q. 3      .
Since an agency obligates its aff wesi.ations when it rakes an                   f
              .       award under the FA7A, the answer to Question 4 is that the NRC could not nake an award in a fiscal year in which there was no available source of funds for paynent. To do so would violate two statutes -
1 31 U.S.C. 51301(a) (fornerly 31 U.S.C. S 628) and the Antidefi-ciency Act, 31 U.S.C. S 1341 (fornerly 31 U.S.C. S 665(a)).
                        . The first statute, 31 U.S.C. 51301(a), restricts the use of appropriations to their intended purposes. An " intended punose" need not be specified in the appropriation act. It is sufficient that the appropriation be legally available for the item in oues-tion. NRC a;propriations subject to section 502 are not legally                                       ;,-
available for EAJA awards to intervenors. Therefore, a purported                              . y ,?
obligation for such an award would contravene this statute.                                pf
                                                                                                           .?
Tne Antideficiency Act prohibits the making of obligatio'ns or / y ; c' expenditures in excess of or in' advance of appropriations. The applicable principle was stated in a 1981 decision as follows:                */ '                        ,
L.                               ,                                  -

e B-208137                   ,
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                                 "Aben an appropriation act specifies that an agen-cy's aperopriation is not available for a designated pur;cse, and the agency has no other funds available for that purpose, any officer of the agency who au-thorizes an obligation or expenditure of agency funds for that purpose violates the Antideficiency Act.                "
Since the Congress has not zw w g lated funds f6r the designated purpose, the obligation may be viewed either as being in excess of the anount (zero) available for that purpose or as in advance of appie,.ulations made for that purpose. In either case the Antideficiency
  ..                      Act is violated."     60 Cong. Gen. 440, 441 (1981).
* It would make no difference whether or not the agency actually recorded the obligation pursuant to 31 U.S.C S 1501(a). E.c.,
55 Cortp. Gen: 812, 824 (1976).
If the NRC actually made the award, the effect would be the              '
same as making an obligation after the applicable apprcpriation has been exhausted.         Tne obligation, albeit an invalid one, is against funds available for obligation at the time it is made. Should                         -
appropriations - either NRC , appropriations or the judgment                ,
appropriatic.: - subsequently.become available for ERA awards to              '
intervenors, they would still not be available to satisfy the prior invalid award unless the legislative action which made those funds available expressed such an intent.
                                "(5) If in answering question 4 you conclude that there is no tine limitation on when an award can be
                       ' paid, can the NRC set a time limitation within which an award mast be pesented for payment, even if funds are                       1
:                        not presently available for disbursement?
In view of our answer to Question 4, a response to this ques-tion is unneessary.
Finally, the NRC asks that we address the sane questions as i
they relate to judicial fee awards under 28 U.S.C. 5 2412(d) (added                         ,
l by section 204(a-) of the EMA) to intervenors as a result of their                          i participation in NRC regulatory or adjudicatory r c dings.
l Judicial awards in this context could ccue ab:mt in ~one of two ways. First, a party might seek' judicial review of the underlying              -
decision of an adversary adjudication. Should the party ultimately                          {
prevail, 5 U.S.C. S 504(c)(1) requires. that fees be awarded only under the authority of 28 U.S.C. S 2412(d)(3), and the award may i
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      ,           5-208637                  .
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      ,4 .J . . . .                                 -
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enconpass the ad:ninistrative portion of the proceedings. Second, a                                              '
party might seek judicial. review of an agency's, determination on its fee application. 5 U.S.C. S 504(c)(2).                                                                 J"
  .                      Basically, what we have said at:ove with respect to administra-tive awards applies equally to judicial awards. Agency operatingI                           O. , ?e appropriations afe available to make payments unless otherwise pro-                             -       -
hibited, for exanple, by a provision such as section 502 Also, for the same reasons set forth in our answer to Question 3, section 207 of the FA7A bars payment from the judgment app 4O          f tlation absent some feJwr congressional action. There is one significant difference, however. A judicial award would not be viewed as violating either 31 U.S.C. S 1301(a) or the Antideficiency Act. Thus,.the result                             ,
might be a valid award with no available source of funds for pay-nent, leaving little recourse but to attengt to obtain funds frcan
    ,             the Congress.                                           ~
In sum,' NRC ayf vj;iations provided under an affs vf2 intion act                          '
which contains the section 502 prohibition are not available to pay FA7A fee awards to inte:venors, except 'to the extent the proceedings j                 were funded under an afftufriation not subject to the prohibition.
By virtue of section 207 of the EA7A, the pe:Tanent judg: rent approp ,
riation is also not availab1'e'.fio pa,y awards, administrative.or.judi-                          .
cial, newly authorized by that Act. In the event apet vetiations-either agency funds or the judg: rent appivftiation - are later made available to pay FA7A awards to intervenors, the applicability to prior time periods would depend on the intent of the legislative action establishing that availability.
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Ccaptroller of the United States t
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