B-212585 March 29, 1984

B-212585 March 29, 1984

Employee was awarded attorneys' fees under 28 U.S.C. Sec. 2412(d) when he prevailed in a suit to prevent his suspension. The question raised was what appropriation may be used to pay the award. Section 207 of the Equal Access to Justice Act (EAJA), Pub. L. 96-481, October 21, 1980, prohibits the use of the judgment appropriation (31 U.S.C. Sec. 1304) for the payment of awards under 28 U.S.C. Sec. 2412(d) unless Congress makes specific appropriation for that purpose. However, agency operating appropriations are avail able to pay EAJA awards without the need for specific appropriations.

Ms. Allie B. Latimer General Counsel General Services Administration Washington, D.C. 20405

Dear Ms. Latimer:

This responds to your inquiry of August 1, 1983, as to whether a court order for the payment of attorneys' fees under the Equal Access to Justice Act (EAJA), Public Law 96-481, October 21, 1980, should be paid out of GSA's appropriations rather than out of permanent indefinite appropriations established for judgments by 31 U.S.C. Sec. 1304. The order for attorneys' fees in the amount of $4,356 was awarded because Or a lawsuit brought by Mr. Angelo J. Valenti, a General Services Administration (GSA) employee, who succeeded in preventing GSA from suspending Aim for 14 days for an alleged rules infraction. (Valenti v. United States, C.A. 80-4600 (E.D. Pa. March 25, 1983).)

In decision, B-208637, September 29, 1983, 62 Comp.Gen.___, we held that section 207 of the EAJA (5 U.S.C. Sec. 504 note) clearly prohibits the use of the judgment appropriation (31 U.S.C. Sec. 1304) for the payment of awards unless Congress makes a specific appropriation for that purpose, or otherwise amends the legislation. We held that this applies to both administrative and judicial awards for attorneys' fees under EAJA. We also nerd, however, that agency operating appropriations were available to pay EAJA awards without the need for specificappropriations unless otherwise prohibited by law. We know of no prohibition in the law which would preclude use of GSA's operating appropriations for payment of this order for attorneys' fees.

The latter decision has been clarified in our more recent decision B-40342.3, March 19, 1984, in which we held that the judgment appropriation is available to pay attorneys' fees, except for bad faith cases, awarded under the authority of 28 U.S.C. Sec. 2412(b), but the judgment appropriation is not available to pay awards for attorneys fees under 23 U.S.C. Sec. 2412(d). Awards for attorneys fees under 28 U.S.C. Sec. 2412(d) must be paid from agency appropriations.

In regard to the question as to whether the award for attorneys fees in Valenti was made under the authority of 2.3 U.S.C. Sec. 2412(b) or Sec. 2412(d), it is our view that the court made the award under the latter provision.

Accordingly, payment for the attorneys' fees may be made from GSA's operating appropriations on that basis.

Sincerely yours,

Harry R. Van Cleve Acting General Counsel