B-231838 January 4, 1989

B-231838 January 4, 1989

GAO declines to review an attorney fees award arising from employment discrimination complaints because the award is currently under reconsideration by the United States Equal Employment Opportunity Commission Office of Review and Appeals.

Mr. David P. Ryan Comptroller U.S. Environmental Protection Agency Washington, D.C. 20460

Dear Mr. Ryan:

This is in response to your letter dated June 24, 1988, in which you request an opinion regarding the Environmental Protection Agency's (EPA) authority to implement a United States Equal Employment Opportunity Commission (EEOC) award of attorney fees under federal anti-discrimination statutes, in view of the fact that no finding of discrimination was made by the agency, and no settlement agreement was reached.

The award was made to Mr. Owen F. Beeder, an EPA employee who alleged employment discrimination against the agency in several administrative complaints. In these complaints, brought under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Sec. 2000e et Alp., and section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. Sec. 701 et. seq., Mr. Beeder sought various forms of relief, including attorney fees. The EPA investigated the complaints and provided partial relief before offering Mr. Beeder a formal settlement agreement, which contained a $2,500 payment for attorney fees. Mr. Beeder refused to enter into the settlement agreement. The EPA then cancelled the complaints in accordance with 29 C.F.R. Sec. 1613.215(a)(6) and (7) (1988), citing Mr. Beeder's failure to prosecute his claim and his refusal to accept an offer providing full relief. Mr. Beeder appealed the EPA's cancellation of his complaints to the EEOC.

By decision dated May 13, 1988, the EEOC Office of Review and Appeals vacated EPA's decision to cancel the complaints, and ordered the agency to determine the proper amount of legal fees and expenses to award. In a letter dated June 10, 1988, the EPA filed a request to reopen the EEOC decision pursuant to 29 C.F.R. Sec. 1613.235, and characterized one of the issues to be reconsidered as follows: "Whether the EPA is authorized under applicable laws and regulations to award attorney fees, when . . . no finding of discrimination has been made . . . and no settlement agreement has been reached . . . ." A final decision by the EEOC is pending.

It has long been the policy of the GAO to decline ruling on matters in litigation or under administrative review by an appropriate agency. See e.g. 58 Comp.Gen. 282 (1979); 4 C.F.R. Sec.(s) 22.7 and 22.8 (1988). The award of attorney fees, from which your request to our Office arose, was contained in the May 13, 1988 EEOC decision currently under reconsideration. The EPA specifically requested review of the EEOC's analysis of the attorney fees award in its request for reopening of the decision. Indeed, the agency posed the same issues to the EEOC in its request for reconsideration as it presented to our Office, namely, whether attorney fees could be awarded under certain federal anti-discrimination statutes when no finding of discrimination had been made and when no settlement agreement had been entered into.

Accordingly, inasmuch as the EEOC is now reviewing these matters, we decline to offer an opinion. We are enclosing copies of the cited materials for your reference.

Sincerely yours,

Henry R. Wray Senior Associate General Counsel

Enclosures

cc: Mr. Owen F. Beeder, Jr. 515 North Oak Street Falls Church, Virginia 22046