Rinding of Attorney Fee Awards Under the

Equal Access to Justice Act

Under the Equal Access to Justice A ct, the authority and responsibility of an agency adjudicative 

officer or judge to m ake an award o f attorney fees against the United States does not depend upon 

the availability of appropriated funds to pay the award. If no appropriated funds are available to pay 

an award, it rem ains an obligation of the United States until sufficient funds are appropriated.

Section 207 of the Equal Access to Justice Act precludes payment of a fee award against the United 

States from the judgm ent fund w ithout some additional legislative action However, under the 

funding provision of the Act, an agency’s unrestricted general appropriation is available to pay 

such awards.

Congress intended agencies to bear the m ajor burden of paying fee awards under the Act from their 

own general appropriation, so as to encourage more responsible agency behavior, and an agency 

thus has only limited 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 Section 203 of the A ct (94 Stat. 2325) am ends Title 5 o f the United States Code by adding a new § 504. The 

funding provision o f that section is 5 U S .C . § 504(d)(1). Section 204 o f the Act am ends 28 U .S.C § 2412. That 

section, as am ended, contains three funding provisions, 28 U .S .C §§ 2412(c)(1), (c)(2), and (d)(4)(A) We 

understand that your 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 his opinion w ill not discuss 28 U S .C . §§ 2 4 1 2 (c)(l)o r(c )(2 ), neither of which are 

of concern to you.

2 A second question posed in your N ovem ber 17 m em orandum , relating to the award o f fees in adjudications 

under § 609 o f the Federal Aviation Act o f 1958, is separately addressed in an opinion of this date. [See p 197, 

infra.]

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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 adjudications 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 appropriations, 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 mean paym ent from the Treasury in accordance with the procedures set 

forth in 28 U S C §§ 2414 and 2517 (1976 & Supp. V 1981), under the authority of the perm anent, indefinite 

appropriation for judgm ents against the United States established by 31 U .S.C § 724a (Supp. V 1981). We use 

“judgm ent 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 essentially 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 At the tim e o f this w riting we know o f several fee awards w hich have been made under authority of the Act, 

though in a num ber o f other cases courts have considered applications for fee awards. See Florida Farm Workers

Councils 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. District Director, 527 F.Supp. 225, 527 F.Supp. 225 (D M d 1981), 

M atthew sv United States. 526 F.Supp 9 9 3 (M D .G a \98\),W allisv. United Slates. No 453-79c(C t. C l. Nov. 25, 

1981). In none of these cases has the court questioned whether its authority to make an award m ight depend upon the 

availability of funds to pay it Nor, in resisting an award of fees in these cases, has this D epartm ent suggested that the 

validity o f the award depends in any way upon the prior availability of funds to satisfy it.

5 O nce the award o f fees and costs has becom e final in the sense that the deadline for an appeal has passed and the 

judicial proceedings have been terminated. Congress may not constitutionally elim inate the liability of the United 

States under the final jud g m en t. See McCullough v Virginia, 172 U .S 102, 123-24 (1898) (“ It is not w ithin the 

pow er o f a legislature to take away rights w hich have been o nce vested by a judgm ent. Legislation may act on 

subsequent proceedings, may abate actions pending, but when those actions have passed intojudgm ent the pow er of 

the legislature to disturb 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 Congress to overturn finaljudgm ent requiring removal of bridge 

as obstruction to navigation, but stating “ if the rem edy in this case had been an action at law, and a judgm ent 

rendered in favor of the plaintiff for dam ages, the right to these w ould have passed beyond the reach of the pow er of 

congress” ); Hodges v. Snyder, 261 U.S 6 0 0 , 6 0 3 -0 4 (1923) ( “ a suit brought for the enforcem ent of a public right 

. . . even after it has been established by the judgm ent of the co u rt, may be annulled by subsequent legislation and 

should not be thereafter enforced; although, in so far as a private right has been incidentally established by such 

ju d g m en t, as fo r special damages to the plaintiff or fo r his costs, it may not be thus taken away” ) (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, 466 F. Supp. 745, 764—65 (N.D. 111. 1979) ( “ It is clear that the River and H arbor Act o f 1958couId n o t . . . 

interfere with plaintiffs’ rights under the condem nation decrees” ); Battaglia v. General Motors Corp., 169 F 2d 254, 

259 (2d Cir. 1948) (C ongress m ay eliminate o r modify claim s, “ so long as the claim s, if they were purely statutory, 

had not ripened into finalju d g m en t” ). In o u r view, these cases com pel the conclusion that once the award o f fees and 

costs under the A ct has becom e final, the prevailing party has a “ vested rig h t” to them , and Congress may not 

rem ove that right w ithout violating the Fifth A m endm ent. This conclusion is not altered by the fact that, under § 203 

o f the A ct, the o rd er o f fees and costs is rendered by an agency rather than a court. T he rule prohibiting takings of 

“ vested rights” depends on the finality of the order in favor of the litigant, not on any interference with the judicial 

function.

6 We are inform ed by the General A ccounting O ffice that the instances in this century in w hich Congress has 

failed o r refused to m ake the appropriations necessary to pay in full an adjudicated claim against the United States 

can be counted on the fingers o f one hand

7 O th er provisions o f the A ct waive sovereign im m unity for purposes of com m on law and statutory exceptions to 

the “A m erican ru le” on fee-shifting, see 28 U S .C § 2412(b), and provide that fees aw arded against the United 

States in such cases ordinarily w ill be paid o u t of the judgm ent fund. If an agency is found to have acted in bad faith, 

the fee award is to be paid by the agency from its ow n funds 28 U S C § 2412(c)(2). The provisions o f the Act 

discussed in this opinion extend the governm ent's liability to a fee assessm ent well beyond the limits im posed by the 

com m on law and other existing statutes, an d are effective only for a three-year period

206
shall be paid in the same manner as the payment of final judgments 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. 

253,96th Cong., 1st Sess. 18 (1979) [hereinaftercited as Senate Report]. “ This 

fiscal responsibility [was] intended to make the individual agencies and department [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 The C om m ittee on the Judiciary held hearings on S. 265. Before the C om m ittee on Sm all Business, S. 265 was 

incorporated into H R. 6429 as Title II o f that bill.

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96th Cong., 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 bill,” 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 The point o f order, as summarized by the Speaker pro tem pore, was

that the conference report on the bill H .R . 5612 contains provisions o f the Senate am endm ent 

constituting appropriations on a legislative bill in violation of clause 2, rule X X , which prohibits 

H ouse conferees from agreeing to such provisions w ithout prior authority of the House

T he provisions in title U [in] question authorize appropriations to pay court costs and fees levied 

against the U nited S tates, but also provide that if paym ent is not made out o f such authorized and 

appropriated funds, payment will b e made in the sam e m anner as the paym ent o f final judgm ents 

under sections 2414 and 2517 of title 28, U nited Slates Code. Judgm ents under those sections of 

existing law are paid directly from th e Treasury pursuant to section 724a of title 31 o f the United 

States C ode, w hich states that there are appropnated out of the Treasury such sums as may be 

necessary for the paym ent of judgm ents, aw ards, and settlem ents under section 2414 and 2517 of 

title 28. Thus the provision in the S enate am endm ent contained in the conference report extends the 

purposes to w hich an existing perm anent appropriation may be put and allows the withdrawal 

directly from the Treasury; without approval in advance by appropriation acts, of funds to carry out 

the provisions o f title II of the S enate am endm ent.

126 C ong Rec. 28638 (1980).

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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 Representative 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 judgments 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 he law could take the form o f a specific appropriation for that purpose or it could repeal or amend § 207 in 

som 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 provisions 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).12 The 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 sentence, 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 well settled principle o f law that a lum p sum appropriated for an agency's general program s and activities 

may be used by th e agency for any otherwise authorized purpose, even if the legislative history o f the appropriation 

statute prescribes specific priorities for allocating funds am ong authorized activities. See, e.g.. In re Newport News

Shipbuilding and Drydock Co., 55 Comp. G en . 812, 819-21 (1976); In re LTV Aerospace Corp., 55 Com p. G en. 

3 0 7 , 3 1 8 -1 9 (1975). T h e absence of specific lim itations o r prohibitions in the term s o f an appropriations statute 

im plies that C ongress did not intend to im pose restraints upon an agency’s flexibility in shifting funds w ithin a 

p articu lar lum p sum account am ong otherwise authorized activities o r program s— unless of course Congress has in 

som e oth er law specified that funds from the appropriation in question should be spent (or not, as the case may be) in 

a p articu lar manner. See Fisher, Reprogramming c f Funds by the Defense Department, 36 Journal o f Politics 7 7 ,7 8 

(1974). In an analogous situation, if an agency runs short of funds during the course of a fiscal year, the courts have 

recognized that an agency h ea d ’s discretion to reprogram funds am ong authorized program s under a lum p sum 

appropriation is lim ited only if a specific statutory directive requires the expenditure or distribution o f funds in a 

p articular m anner. See. e.g.. City cf Los Angeles v Adams, 556 F.2d 40, 4 9 -5 0 (D .C . Cir. 1977):

I f C ongress do es not appropriate enough money to m eet the needs of a class of beneficiaries prescribed by

C ongress, and if C ongress is silent on how to handle this predicam ent, the law sensibly allows the

adm inistering agency to establish reasonable priorities an d classifications.

T h e S uprem e C o u rt, in Morton v. Ruiz, 415 U .S . 199, 230-31 (1974), has affirm ed an agency head's “ pow er to 

create reasonableclassifications and eligibility requirem ents in o rd er to allocate the limited funds available to him .”

12 It is clear, o f co u rse, that funds appropriated specifically to pay awards for fees and expenses would have to be 

spent by agencies for that purpose unless rescinded pursuant to the Im poundm ent Control A ct of 1974, 31 U .S.C . 

§ 1400 et seq.

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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 appropriations to agencies for fee awards; and, second, to permit the payment of awards 

from the judgment fund in at least some cases.13 As 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 discretion 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 conference 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 affect13 We note that the H ouse C om m ittee on the Judiciary's version was developed before § 207 was added to the Act

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 consequences. Second, we are aware of no situations in which agency flexibility to 

zero-budget authorized activities has been thought to include the power to zerobudget 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 contingent 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 e o d o r e B . O l s o n

Assistant Attorney General

Office cf Legal Counsel

14 The G eneral A ccounting Office has independently reached the sam e conclusions as this Office with respect to 

the availability o f agency funds to pay awards under the Act. In a letter of M ay 15, 1981, to the Chairm an o f the 

Administrative Conference of the United States, A cting Com ptroller General Socolar opined that paym ent of awards 

from agency funds under the Act w ould require neither a specific appropriation nor even a specific budget request by 

the agency. In support of this conclusion, he stated that “ the purpose of the Act would be frustrated by an 

interpretation w hich would perm it an agency to avoid payment merely by failing to include an appropriate item in its 

budget justifications ’* 1 have attached a copy of the Acting 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 views on issues intimately related to 

the budget/appropriation process are entitled to som e respect due to his institutional expertise in this area.

We would add that an agency’s determ ination of what constitutes a reasonable am ount of funds to be allocated 

from lum p sum appropriations to pay awards would be less vulnerable to challenge in the courts if a specific figure 

was presented to Congress in connection with subm ission of the agency’s budget requests

213