                     Rinding of Attorney Fee Awards Under the
                            Equal Access to Justice Act

U nder the Equal A ccess to Justice A c t, the authority and responsibility of an agency adjudicative
   officer o r ju d g e to m ake an award o f attorney fees against the U nited States does not depend upon
   the availability o f appropriated funds to pay the award. If no appropriated funds are available to pay
   an aw ard, it rem ains an obligation of the U nited States until sufficient funds are appropriated.

Section 207 of the E qual Access to Justice A ct precludes paym ent of a fee award against the U nited
   States from the jud g m en t fund w ithout som e additional legislative action However, under the
   funding provision o f the Act, an ag en cy ’s unrestricted general appropriation is available to pay
   such awards.

C ongress intended agencies to bear th e m ajor burden o f paying fee awards under the Act from their
   ow n general appropriation, so as to encourage m ore responsible agency behavior, and an agency
   thus has only lim ited discretion to decline to pay such awards.

                                                                                                         March 23, 1982

                    MEMORANDUM FOR THE GENERAL COUNSEL,
                       DEPARTMENT OF TRANSPORTATION

   The Deputy Attorney General has asked me to respond to your request for an
opinion on several issues relating to the funding provisions of the Equal Access to
Justice Act, Pub. L. No. 96-481, Tit. II, 94 Stat. 2325 (the Act).1 Briefly, you
wish to know whether fees and expenses may be awarded under 5 U.S.C. § 504
(Supp. V 1981) and 28 U.S.C. § 2412(d) (Supp. V 1981), as added to the United
States Code, respectively by §§ 203(a)(1) and 204(a) of the Act, and whether
such awards may be paid, in the absence of an express appropriation by Congress
for that purpose.2
   At the outset, we would emphasize that the funding provisions of the Act are
sui generis and ambiguous. Their legislative history, while somewhat helpful in
illuminating their intended meaning, does not definitely resolve all the questions
which their ambiguity creates. With this caveat, we conclude, for reasons set


    1 S ection 203 of the A ct (94 Stat. 2325) am ends Title 5 o f the U nited States C ode by adding a new § 504. T he
funding provision o f that section is 5 U S .C . § 504(d)(1). S ection 204 o f the A ct am ends 28 U .S .C § 2412. That
sectio n , as am en d ed , contains three funding provisions, 28 U .S .C §§ 2412(c)(1), (c)(2), and (d)(4)(A ) We
understand that y o u r request relates only to 5 U S C . § 504(d)(1) and 28 U S .C § 2412(d)(4)(A ) as they are
qualified by § 2 0 7 o f the A ct. T h is opinion w ill not discuss 28 U S .C . §§ 2 4 1 2 (c )(l)o r(c )(2 ), neither o f w hich are
o f co n cern to you.
    2 A second q u estio n posed in your N ovem ber 17 m em orandum , relating to the aw ard o f fees in adjudications
u n d er § 609 o f the F ederal Aviation Act o f 1958, is separately addressed in an opinion o f this date. [See p 197,
infra.]


                                                               204
forth below, as follows: (1) the authority to make fee awards to a prevailing party
under the Act does not depend upon there being funds available to pay those
awards; (2) § 207 of the Act (94 Stat. 2330) prevents payment of awards from the
judgment fund3 without a specific advance appropriation; (3) awards may be paid
by agencies from unrestricted appropriations; and (4) a reasonable amount from
the unrestricted appropriations of an agency must be allocated to the payment of
awards for fees and expenses.

                                  I. Authority to Make Awards

   Section 504(a)(1) of Title 5 provides for an award of fees in agency adjudica­
tions in the following terms:
            An agency that conducts an adversary adjudication 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 position of the agency as a party to the proceeding was
          substantially justified or that special circumstances make an
          award unjust. (Emphasis added.)
Section 2412(d)(1)(A) of Title 28 provides for fee awards in certain judicial
proceedings involving the United States in similar mandatory terms:

              Except as otherwise specifically provided by statute, a court
          shall award to a prevailing party other than the United States fees
          and other expenses, in addition to any costs awarded pursuant to
          subsection (a), incurred by that party in any civil action (other
          than cases sounding in tort) brought by or against the United
          States in any court having jurisdiction of that action, unless the
          court finds that the position of the United States was substantially
          justified or that special circumstances make an award unjust.
          (Emphasis added.)
   Under both of these sections, awards for fees and expenses, if sought, must be
made to those who qualify. Uncertainty as to the source of funding for such
awards in no way restricts the authority of agency adjudicative officers or judges,
respectively, to make them. There is nothing in the language of these two
sections, or elsewhere in the Act, which conditions the authority to make awards
under it on Congress’ making available money to pay them from one source or
another, or, indeed, from any source. Even in the complete absence of appropria­
tions, the law, unless amended or repealed, would require that the awards be
made. See generally New York Airways Inc. v. United States, 369 F.2d 743

   3 By paym ent from the judgm ent fund, we m ean paym ent from the Treasury in accordance w ith the procedures set
forth in 28 U S C §§ 2414 and 2517 (1976 & Supp. V 1981), under the authority o f the perm anent, indefinite
ap propriation for judgm ents against the U nited S tates established by 31 U .S .C § 724a (Supp. V 1981). We u se
“ ju d g m en t fund" as a shorthand rendition of that process and source throughout this opinion


                                                      205
(Ct. Cl. 1966).4 Once made, they would remain obligations of the United States
until satisfied.5 They could, of course, remain unsatisfied forever if Congress
never acted to authorize their payment, but history suggests that such obligations
usually are paid.6

                                           II. Authority to Pay Awards

   We turn now to the provisions pertaining to payment of awards under the Act to
determine whether and how these awards may be paid. As relevant here,7 the
funding provisions for awards in administrative and judicial actions are essen­
tially identical:

             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

    4 A t th e tim e o f this w riting we know o f several fee awards w hich have been m ade under authority o f the A ct,
 tho u g h in a n u m b e r o f o th e r cases courts have considered applications for fee aw ards. See Florida Farm Workers
 C ouncils v. Donovan (N o. 81-1453, D C . Cir. D ec. 29, 1981); Photo Data v. Sawyer, 533 F.Supp 348 (D .D .C .
 1982); Berman v. Schweicker, 531 F.Supp. 1149 (N D . Ill 1982); Arvin v. United States, N o. 81-6476, (S .D . Fla
 Feb. 10, 1982); United States v. Howard Pomp, 538 F.Supp. 513 (M .D .F la 1982); Costantino v. United States, 536
 F.Supp. 6 0 (E .D Pa. 1981). See also Alspach v. D istrict Director, 527 F.Supp. 225, 527 F.Supp. 225 (D M d 1981),
M atthew sv U nited States. 526 F.Supp 9 9 3 ( M D .G a \98\),W allisv. United Slates. N o 4 5 3 -7 9 c(C t. C l. Nov. 25,
 1981). In none o f these ca ses has the court q u estio n ed w hether its authority to m ake an award m ight depend upon the
availability o f funds to pay it Nor, in resisting an aw ard of fees in these cases, has this D ep artm en t suggested that the
 v alidity o f th e aw ard d epends in any way upon the prior availability o f funds to satisfy it.
    5 O n ce the aw ard o f fees and costs has b eco m e final in the sense that the dead lin e for an appeal has passed and the
ju d ic ia l pro ceed in g s have been term inated. C ongress may not constitutionally elim inate the liability o f the U nited
S tates u n d er th e final ju d g m e n t. See McCullough v Virginia, 172 U .S 102, 1 23-24 (1898) ( “ It is not w ithin the
pow er o f a legislature to take away rights w hich have been o n ce vested by a ju d g m en t. Legislation m ay act on
su b se q u en t pro cee d in g s, m ay abate actions pen d in g , but w hen th o se actions have passed in to ju d g m e n t the pow er of
th e leg islatu re to d istu rb the rights created thereby ceases” ). See also Pennsylvania v Wheeling & Belmont Bridge
C o., 59 U .S . (18 H ow .) 4 2 1 ,4 3 1 (1856); (allow ing C ongress to overturn fin alju d g m en t requiring rem oval of bridge
as o b stru ctio n to navigation, b u t stating “ if the rem edy in this ca se had been an action at law, and a ju d g m en t
ren d ered in favor o f the p la in tiff for d am ages, the right to these w ould have passed beyond the reach o f the pow er o f
c o n g ress” ); Hodges v. Snyder, 261 U .S 6 0 0 , 6 0 3 -0 4 (1923) ( “ a suit bro u g h t for the enforcem ent of a public right
 . . . even afte r it h as been established by th e ju d g m en t of the c o u rt, m ay be annulled by subsequent legislation and
sh o u ld not be th e reafte r enforced; although, in so far as a private right has been incidentally established by such
ju d g m e n t, as fo r special damages to the p la in tiff or fo r his costs, it m ay not be thus taken aw ay” ) (em phasis added);
Daylo v. Administrator o f Veterans’ Affairs, 501 F. 2d 811 (D .C . Cir. 1974); Commissioners o f Highways v. United
States, 4 6 6 F. Supp. 7 4 5 , 764—65 (N .D. 111. 1979) ( “ It is clear th a t the R iver and H arbor A ct o f 1 9 58couId n o t . . .
in terfere w ith p la in tiffs’ rights under the condem nation decrees” ); Battaglia v. General Motors Corp., 169 F 2d 254,
259 (2d Cir. 1948) (C o n g ress m ay elim inate o r m odify claim s, “ s o long as th e claim s, if they w ere purely statutory,
had not rip en ed in to fin a lju d g m e n t” ). In o u r view, these cases co m p el the conclusion that once the award o f fees and
c o sts u n d er the A ct has b ec o m e final, the prevailing party has a “ vested rig h t” to th em , and C ongress m ay not
rem ove that rig h t w ith o u t violating the F ifth A m endm ent. T his conclu sio n is not altered by the fact that, under § 203
o f the A ct, the o rd e r o f fees an d costs is ren d ered by an agency rather than a co u rt. T h e rule prohibiting takings o f
“ vested rights” d epends on the finality o f th e order in favor of th e litigant, not on any interference w ith the judicial
fu nction.
    6 W e are inform ed by the G eneral A ccounting O ffice that th e instances in this century in w hich C ongress has
failed o r refu sed to m ake th e appropriations necessary to pay in full an adjudicated claim against the U nited States
can be co u n ted on the fingers o f one hand
    7 O th e r p rovisions o f th e A ct waive sovereign im m unity for purposes o f com m on law and statutory exceptions to
th e “A m erican ru le ” on fee-shifting, see 28 U S .C § 2412(b), and provide that fees aw arded against the U nited
S tates in such ca ses o rd in a rily w ill be paid o u t of th e jud g m en t fu n d . If an agency is found to have acted in bad faith,
th e fee aw ard is to be paid by th e agency from its ow n funds 28 U S C § 2412(c)(2). T he provisions o f the Act
d iscu ssed in th is opinion extend the governm ent's liability to a fee assessm en t well beyond the lim its im posed b y the
co m m o n law an d o th e r ex istin g statutes, a n d are effective only for a th ree-y ear period


                                                                  206
           shall be paid in the same manner as the payment of final judg­
           ments is made pursuant to section 2412 [and 2517] of title 28,
           United States Code.
5 U.S.C. § 504(d)(1). See also 28 U.S.C. § 2412(d)(4)(A). The language and
structure of these provisions, particularly the words “ may,” “ or otherwise,” and
“ for such purpose” in the'first sentence, and the existence of the second
sentence, give rise to two legal questions:
           1. Which funds appropriated to an agency may be used to pay awards for
           fees and expenses?
           2. Which funds, if any, appropriated to an agency must, as a matter of law,
           be used to pay awards for fees and expenses?
  Before discussing these questions, however, we will consider the effect of
§ 207 of the Act, which qualifies both funding provisions in the following terms
(94 Stat. 2330):
           The payment of judgments, fees and other expenses in the same
           manner as the payment of final judgments as provided for in this
           Act is effective only to the extent and in such amounts as are
           provided in advance in appropriations Acts.

A. Background
   The funding provisions of the Act, as finally adopted, were developed by the
House Committee on the Judiciary in response to a prior Senate version of the
bill.
   In 1979, the Senate passed its version of what ultimately became the Act. That
bill, S. 265, 96th Cong., 1st Sess. (1979), contained funding provisions which
were unambiguous. Fees and expenses were to be paid “ by the particular agency
over which the party prevail[ed] from any sums appropriated to such agency,
except that no sums [were to be] appropriated to any such agency specifically for
the purpose of paying fees and other expenses.” Id. at § 2(5). The bill anticipated
that “ since no monies would be appropriated specifically to pay for awards of fees
and expenses,” that is, agency budgets would not be augmented for that purpose,
agencies would be required to reprogram funds from other activities. S. Rep. No.
2 5 3 ,96th Cong., 1st Sess. 18 (1979) [hereinaftercited as Senate Report]. “ This
fiscal responsibility [was] intended to make the individual agencies and depart­
ment [sic] accountable for their actions.” Id. at 21. It was also to “ provide a
quantitative measure of agency error which should encourage review of its
practices and its regulations.” Id. at 18.
   Hearings were held on the Act, including the funding provisions, in the House
before both the Committee on the Judiciary and the Committee on Small
Business.8 The Committee on Small Business reported out a bill, H.R. 6429,

  8 T he C om m ittee on the Judiciary held hearings on S . 265. Before the C om m ittee on S m all B usiness, S. 265 was
incorporated into H R. 6429 as Title II o f that bill.


                                                        207
96th C ong., 2d Sess. (1980), the funding provisions of which were substantively
identical to those of S. 265. That Committee believed, as had the Senate
Committee on the Judiciary, that placing the fiscal responsibility for payment of
fees and expenses on the agencies would make them more accountable for their
actions. H.R. Rep. No. 1005, 96th Cong., 2d Sess. (Pt. I) 11 (1980). The House
Committee on the Judiciary, however, took the position that the Senate provision
restricting the appropriation of funds for the payment of fees and expenses was
“ unduly punitive” and believed that it might result in “ a forced appropriation.”
H.R. Rep. No. 1418, 96th Cong., 2d Sess. 12 (1980) [hereinafter cited as
“ House Report” ]. Thus, to “ insurfe] that the prevailing party will be awarded a
fee if it meets the requirements in the b ill,” id., the House Committee on the
Judiciary softened the Senate provision, adopting the language eventually
enacted.
   The Act was never considered by the full House as an independent piece of
legislation. Rather, it was added, in conference, to a bill to amend the Small
Business Act, H.R. 5612, and first reached the House floor as a part of the
conference report. During the House debate on the conference report, the Act
was subjected to a point of order. The objection on the point of order, that the
funding provisions of the Act would open the judgment fund to new burdens and
thus would, in effect, be an appropriation on an authorization, was resolved by
the addition of § 207. 126 Cong. Rec. 28638-42 (1980).

B. Section 207
   Section 207 of the Act, quoted above, was clearly intended to qualify the
second sentence of the funding provisions, “ 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 in accordance with sections 2414 and 2517 of [Title 28].” As
indicated above, § 207 was added to the Act on the House floor in response to a
point of order to the conference report.9 The point of order, which at first was
sustained, 126 Cong. Rec. 28638(1980), was overruled only after the addition of
§ 207 to the Act. Id. at 28642. Contemporaneous discussion on the House floor
shows that § 207 was specifically intended to ensure that such payments could

  9 T h e po in t o f order, as sum m arized by th e S p eak e r pro tem pore, was
         that th e co n feren ce report on the bill H .R . 5612 contains provisions o f the Senate am endm ent
         con stitu tin g appropriations on a legislative bill in violation o f clause 2, rule X X , w hich prohibits
         H ouse conferees from agreeing to such provisions w ithout prior authority o f the H ouse
             T h e provisions in title U [in] q u estio n authorize appropriations to pay court co sts and fees levied
         ag a in st the U nited S tates, but also provide that if paym ent is not m ade out o f such authorized and
         appropriated funds, paym ent will b e made in the sam e m anner as the paym ent o f final ju d g m en ts
         under sectio n s 2 4 1 4 and 2517 of title 28, U nited S lates C ode. Judgm ents u n d er those sections o f
         existing law are paid directly from th e Treasury pursuant to section 724a o f title 31 o f the U nited
         States C o d e, w hich states that th e re are ap p ro p n ated out o f the Treasury such sum s as m ay be
         necessary for the paym ent of ju d g m en ts, aw ards, and settlem ents under section 2414 and 2517 of
         title 28. T hus the provision in the S en ate am endm ent contain ed in the conference report extends the
         pu rp o ses to w hich an existing perm anent appropriation m ay be put and allow s the withdrawal
         directly from th e T reasury; without approval in advance by appropriation acts, o f funds to ca rry out
         the provisions o f title II of the S en ate am endm ent.
126 C o n g Rec. 28638 (1980).


                                                            208
not be made under the appropriations authority of 31 U.S.C. § 724a (Supp. V
1981), the source of authority for what is commonly known as the judgment fund.
The effect of § 207 is, and was intended to be, that the promise of the second
sentence may be fulfilled only by additional congressional action in the form of
legislation. See generally 126 Cong. Rec. 28642 (1980) (remarks of Representa­
tive Smith). We believe the conclusion is inescapable that awards for fees and
expenses not paid by agencies under the authority of the first sentence of the
funding provisions may not be paid from the Treasury under the authority of the
second unless Congress passes a law.10

C. The Funding Provisions
  For the sake of convenience and for ready reference, we quote the funding
provision again (§ 204(a), 94 Stat. 2329):

           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 judg­
           ments is made in accordance with section 2414 and 2517 of this
           title.

   The word “ may” in the first sentence, at a minimum, authorizes an agency to
pay awards for fees and expenses in some circumstances. The question is whether
the phrase “ for such purpose,” modifying “ funds available,” restricts those
circumstances to instances in which monies have been appropriated to the agency
specifically to pay such awards. We think not. The linchpin of our analysis is the
word “ otherwise.”
   As reported by the Senate and the House Committee on Small Business, the
funding provisions would have required that an agency “ shall” pay awards
“ from any sums appropriated to such agency” and would have prohibited the
appropriation of monies to an agency for that specific purpose. To have complied
with those provisions, had they been enacted, an agency would have been
required to allocate or reprogram monies for that purpose from its general
appropriation. The Senate Committee on the Judiciary so recognized. Senate
Report at 18. The House Committee on the Judiciary changed “ shall” to “ may,”
permitted appropriations to an agency, and provided for the payment of awards
from funds made available for that purpose by appropriations, “ or otherwise.”
That Committee explained: “ Funds may be appropriated to cover the costs of fee
awards or may otherwise be made available by the agency (e.g., through
reprogramming).” House Report at 16, 18-19. Thus, both Judiciary Committees
and the House Committee on Small Business recognized and expressed the intent

   10 T h e law could take the form o f a specific appropriation for that purpose o r it could repeal o r am end § 207 in
so m e way to m ake 31 U S C § 724a a viable source


                                                        209
that funds not specifically appropriated for the payment of fee awards would be
available to be reprogrammed (or allocated) for that purpose. This intent was, we
believe, ultimately effectuated through specific inclusion in the funding provi­
sions of the phrase “ or otherwise,” to affirm an agency’s authority to allocate or
reprogram general appropriations to pay awards for fees and expenses (i.e., for
“ such purpose” )."
   The more difficult question is whether an agency is obligated, as opposed to
authorized, to allocate or reprogram any of its unrestricted, general appropriation
for the payment of fees and expenses awarded under 5 U.S.C. § 504 and 28
U .S.C . § 2412(d) (Supp. V 1981).12The argument against any such obligation is
primarily textual. The first sentence of the funding provisions provides that
agencies “ may” make payments from their own funds, in contrast to the
mandatory “ shall” of the Senate version. Read together with the second sen­
tence, which offers the judgment fund as an alternate source of funds to pay
awards, the provision might be viewed as indicative of a flexible system in which
complete discretion has been vested in the agencies whether to pay awards from
their own funds or to refer them for certification by the Comptroller General and
payment from the Treasury. The textual argument is buttressed by reference to the
broad principle that when Congress appropriates generally in so-called “ lump
sum ” appropriations, it does so with full awareness that it is vesting in agencies
complete discretion to allocate the unrestricted funds, including the discretion to
“ zero-budget” a particular authorized program. Cf. McCary v. McNamara, 390
F.2d 601 (3d Cir. 1968).
   An equally plausible reading of the text of the funding provision is that the term
“ may” was intended merely to vest some, but not unlimited, discretion in the
agencies to pass responsibility for the payment of some, but not all, awards on to
the general Treasury. It would follow from this reading that an agency could be
required to devote at least some of its otherwise available funds to the payment of
fee awards under the Act. A review of the Act’s legislative history shows this to be
the correct reading.

    11 It is a w ell settled p rin c ip le o f law that a lu m p sum appropriated fo r an ag en cy 's general program s and activities
m ay b e u sed by th e ag en cy for an y otherwise authorized purpose, even if the legislative history o f the appropriation
statu te p rescrib e s specific p rio ritie s for allocating funds am ong authorized activ ities. See, e.g.. In re Newport News
Shipbuilding and D rydock C o., 55 Comp. G e n . 812, 819-21 (1 9 7 6 ); In re LTV Aerospace Corp., 55 C om p. G en.
3 0 7 , 3 1 8 -1 9 (1975). T h e ab sen ce of specific lim itations o r prohibitio n s in th e term s o f an ap p ropriations statute
im plies that C o n g ress d id n o t intend to im p o se restraints upon an ag e n cy ’s flexibility in sh iftin g funds w ith in a
p a rtic u la r lum p sum a c co u n t am ong otherw ise authorized activities o r program s— unless o f co u rse C ongress has in
s o m e o th e r law specified that funds from the appropriation in q u estio n should be spent (or not, as the case m ay be) in
a p a rtic u la r m anner. S ee Fisher, Reprogramming c f Funds by the Defense Department, 36 Journal o f Politics 7 7 ,7 8
(1 9 7 4 ). In an a n a lo g o u s situ a tio n , if an agency runs short of funds durin g the co u rse of a fiscal year, the co u rts have
reco g n ized that an ag e n cy h e a d ’s discretion to reprogram funds am ong authorized program s u n d er a lu m p su m
a p p ro p riatio n is lim ited o n ly if a specific statu to ry directive requires the expenditure o r distrib u tio n o f funds in a
p a rtic u la r m anner. See. e .g .. C ity c f Los Angeles v Adams, 556 F.2d 4 0 , 4 9 -5 0 (D .C . Cir. 1977):
            I f C o n g ress d o e s not appropriate e n o u g h m oney to m eet th e needs o f a class o f beneficiaries p rescribed by
            C o n g re ss, an d if C o n g ress is silent o n how to handle th is p redicam ent, the law sensibly allow s the
            ad m in iste rin g ag e n cy to establish reaso n ab le priorities a n d classifications.
T h e S u p rem e C o u rt, in Morton v. Ruiz, 415 U .S . 199, 230-31 (1974 ), has affirm ed an ag en cy head's “ p o w er to
crea te re a so n a b le c la ssific a tio n s and eligibility requirem ents in o rd e r to allocate th e lim ited fu n d s available to h im .”
    12 I t is clear, o f c o u rs e , th a t funds appropriated specifically to pay aw ards fo r fees an d expenses w ould have to be
sp en t b y ag e n cies fo r th a t p u rp o se unless rescin d ed pursuant to th e Im poundm ent C ontrol A ct o f 1974, 31 U .S .C .
§ 1400 et seq.


                                                                     210
   In the first place, the substitution of “ may” for “ shall” can be explained in
purely grammatical terms. The House Judiciary Committee’s amendment of the
Senate language had two intended effects: first, to authorize specific appropria­
tions to agencies for fee awards; and, second, to permit the payment of awards
from the judgment fund in at least some cases.13As a matter of both grammar and
substance, some element of discretion had to be introduced into the wording of
the funding provisions to achieve the latter effect.
   Nothing affirmative in the legislative history indicates that either the House or
the Senate intended or understood that the modifications made by the House
Committee on the Judiciary in the funding provisions would vest unlimited
discretion in agencies whether to use their funds to pay awards. The only
indicators are to the contrary. Representative Kastenmeier, the prime mover
behind the modifications, had a restricted view of the purpose for which discre­
tion was vested. He explained on the House floor: “ We have changed the funding
for attorneys’ fees to prevent the disassembling of an agency based on one lost
case.” 126 Cong. Rec. 28647 (1980). The view of the conferees was equally
parsimonious:
         The conference substitute directs that funds for an award and [sic]
         fees and other expenses to come first from any funds appropriated
         to any agency . . . (emphasis added).

H.R. Conf. Rep. No. 1434, 96th Cong., 2d Sess. 24, 27 (1980). Thus, the only
statements in the legislative history related to agency discretion indicate that
Congress intended that the funding arrangement would ensure that the bulk of
awards would come from agency funds. The discretion envisioned was to refer
prevailing parties to the general Treasury only when making an award out of
agency funds would be a very heavy financial blow to the agency {i.e., cause its
“ disassembly” ).
   The direct, although admittedly sketchy, evidence that Congress intended
agencies to have only limited discretion not to pay awards from their own funds is
supported circumstantially by one of the major expressed intentions of Congress
in adopting the Act. This is the same intent that inspired the original Senate
version of the funding provisions. It is an intent which is evident throughout the
legislative history in both the House and the Senate, and which was best
expressed by Senator Thurmond in his statement on the adoption of the con­
ference report, a report described by Senator DeConcini as not in essence “ at
variance with the concept and premise of S. 265 as originally passed by the
Senate.” 126 Cong. Rec. 28103 (1980). Senator Thurmond observed:

           The second purpose of this legislation is to encourage the
         agency to be as careful as possible in the exercise of its regulatory
         powers and to be more responsive to citizen needs. The implicit
         assumption in the approach taken by this legislation is that affect­

 13 We note that th e H ouse C om m ittee on the Judiciary's version was developed before § 207 was ad d ed to the A ct


                                                        211
        ing the “ pocketbook” of the agency is the most direct way to
        assure more responsible bureaucratic behavior.
Id., at 28106. There is no indication that the House modifications in the Senate
funding provisions were intended to undermine this basic purpose of the Act.
Rather, the House Report theorized that “ fee shifting becomes an instrument for
curbing excessive regulation and the unreasonable exercise of Government
authority.” House Report at 12.
   We believe that this legislative history demonstrates Congress’ belief that the
payment of some awards would come from agency funds either specifically
appropriated to the agencies or allocated to this program from lump sum
appropriations for all an agency’s general activities. Thus, we have little reason to
doubt that Congress, in accepting the language reported by the House Committee
or the Judiciary on this point, assumed that payment for at least some awards
would be available from general lump sums appropriated to the various agencies
against whom awards were entered.
   Given this apparent intent, the question is whether the intent and the language
of the funding provisions is sufficient to overcome the presumption that agencies
are generally free to zero-budget authorized programs funded by a lump sum
appropriation. Although the answer is not free from doubt, we believe the courts
would most likely hold at least some fee awards to be payable from general funds
appropriated to the agencies against whom awards were entered. We reach this
conclusion for several reasons. First, a conclusion that all awards may be paid
from other than an agency’s own funds would undermine Congress’ declared
purpose to encourage agencies to act more responsibly or suffer the con­
sequences. Second, we are aware of no situations in which agency flexibility to
zero-budget authorized activities has been thought to include the power to zero-
budget actual obligations of agencies which themselves come into existence
through the operation of law. Cf. note 5, supra.




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   We do not believe that the existence of § 207 in the bill avoids this result. As we
have shown, § 207 merely makes access to the so-called judgment fund con­
tingent on a specific appropriation by Congress. Thus, § 207 does no more than
shift to Congress consideration of the payment of fee awards which are, in the
opinion of the agency involved, a major drain on the resources of the agency.14

                                                                 T h eo d o r e B . O lso n
                                                             Assistant Attorney General
                                                              Office cf Legal Counsel




   14 T h e G eneral A ccounting O ffice has independently reached the sam e conclusions as this O ffice w ith resp ect to
the availability o f agency funds to pay awards under the A ct. In a letter of M ay 15, 1981, to the C hairm an o f the
A dm inistrative C onference of the U nited States, A cting C om ptroller G eneral S ocolar opined that paym ent of aw ards
from agency funds under the A ct w ould require neither a specific appropriation n o r even a specific budget req u est by
the agency. In support of this conclusion, he stated that “ the purpose o f th e A ct w ould be frustrated by an
interpretation w hich w ould perm it an agency to avoid paym ent m erely by failing to include an appropriate item in its
budget justifications ’* 1 have attached a copy o f the A cting C om ptroller G eneral’s letter for your convenience We do
not, o f course, regard the C om ptroller G eneral’s views as dispositive, but his view s on issues intim ately related to
the b u d get/appropriation process are entitled to som e respect due to his institutional expertise in this area.
   We w ould add that an agency’s determ ination o f what constitutes a reasonable am ount of funds to be allocated
from lum p sum appropriations to pay awards w ould be less vulnerable to challen g e in the courts if a specific figure
was p resented to C ongress in connection w ith subm ission of the agency’s budget requests


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