B-193284, MAY 3, 1979

B-193284, MAY 3, 1979

DIGEST: AWARD OF COSTS AND ATTORNEYS' FEES AGAINST ENVIRONMENTAL PROTECTION AGENCY (EPA) UNDER 33 U.S.C. SEC. 1365(D) IS PAYABLE FROM PERMANENT APPROPRIATION CONTAINED IN 31 U.S.C. SECTION 724A RATHER THAN FROM EPA APPROPRIATIONS, SINCE NOTHING IN FEDERAL WATER POLLUTION CONTROL ACT OR IN EPA'S APPROPRIATION LANGUAGE PROVIDES FOR PAYMENT OF SUCH AWARDS BY EPA. GENERAL AUTHORIZATION OF APPROPRIATIONS IN FEDERAL WATER POLLUTION CONTROL ACT IS NOT SUFFICIENT TO OVERCOME RULE THAT AGENCY'S OPERATING APPROPRIATIONS ARE NOT AVAILABLE TO PAY JUDGMENTS UNLESS EXPRESSLY PROVIDED BY LAW.

NATURAL RESOURCES DEFENSE COUNCIL V. COSTLE - PAYMENT OF ATTORNEYS' FEES:

THIS DECISION CONCERNS THE QUESTIONS OF WHETHER ATTORNEYS' FEES AND COSTS AWARDED TO PLAINTIFF IN THE AMOUNT OF $100,976.14 IN THE CASE OF NATURAL RESOURCES DEFENSE COUNCIL V. COSTLE, UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, CA NOS. 2153-73 ET AL., SHOULD BE PAID FROM THE ENVIRONMENTAL PROTECTION AGENCY'S (EPA) APPROPRIATIONS OR FROM THE PERMANENT INDEFINITE APPROPRIATION ESTABLISHED BY 31 U.S.C. SECTION 724A FOR THE PAYMENT OF FINAL JUDGMENTS, AWARDS AND COMPROMISE SETTLEMENTS WHICH ARE NOT "OTHERWISE PROVIDED FOR." SECTION 724A PROVIDES IN PERTINENT PART AS FOLLOWS:

"THERE ARE APPROPRIATED, OUT OF ANY MONEY IN THE TREASURY NOT OTHERWISE APPROPRIATED, SUCH SUMS AS MAY BE NECESSARY FOR THE PAYMENT, NOT OTHERWISE PROVIDED FOR, AS CERTIFIED BY THE COMPTROLLER GENERAL, OF FINAL JUDGMENTS, AWARDS, AND COMPROMISE SETTLEMENTS, WHICH ARE PAYABLE IN ACCORDANCE WITH THE TERMS OF SECTION 2414, 2517, 2672, OR 2677 OF TITLE 28 ***."

THE AWARD WAS MADE IN AUGUST 1978 PURSUANT TO SECTION 505(D) OF THE FEDERAL WATER POLLUTION CONTROL ACT, 33 U.S.C. SEC. 1365(D) (ADDED BY PUB. L. NO. 92-500, THE FEDERAL WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972), WHICH AUTHORIZES A COURT TO AWARD COSTS OF LITIGATION, INCLUDING REASONABLE ATTORNEY FEES, IN CONNECTION WITH A FINAL ORDER UNDER SECTION 505. SECTION 505 AUTHORIZES CITIZEN SUITS TO COMPEL THE EPA ADMINISTRATOR TO PERFORM CERTAIN STATUTORY DUTIES.

IT IS WELL SETTLED THAT THE APPROPRIATIONS OR FUNDS PROVIDED FOR REGULAR OPERATIONS OF THE GOVERNMENT ARE NOT AVAILABLE TO PAY JUDGMENTS. EXCEPTIONS ARE RECOGNIZED ONLY WHERE THE STATUTORY PROVISIONS FOR THE APPROPRIATIONS OR SPECIAL FUNDS FOR ACTIVITIES OUT OF WHICH THE CAUSE OF ACTION AROSE EXPRESSLY INCLUDE AUTHORITY FOR THE PAYMENT OF JUDGMENTS OR WHERE OTHER EXPRESS PROVISIONS OF LAW PROVIDE FOR PAYMENT OF JUDGMENTS. 56 COMP.GEN. 592, 595 (1977), 56 COMP.GEN. 615, 618 (1977), 34 COMP. GEN. 221 (1954). HENCE, THE AVAILABILITY OF EPA'S APPROPRIATIONS DEPENDS UPON THE EXISTENCE OF SOME SPECIFIC STATUTORY AUTHORIZATION TO PAY JUDGMENTS.

SECTION 517 OF THE ACT, 33 U.S.C. SEC. 1376, AUTHORIZES APPROPRIATIONS "TO CARRY OUT THIS CHAPTER, OTHER THAN SECTIONS ***." SECTION 517 THEN SPECIFIES A NUMBER OF SECTIONS WHICH ARE NOT INCLUDED IN THE AUTHORIZATION. SECTION 505 IS NOT LISTED. THUS, SINCE SECTION 505 WAS NOT EXPRESSLY EXCLUDED, THE QUESTION IS WHETHER IT WAS INTENDED THAT APPROPRIATIONS MADE PURSUANT TO SECTION 517 BE AVAILABLE TO PAY COSTS AND ATTORNEYS FEES AWARDED UNDER SECTION 505(D).

EACH OF THE SECTIONS MENTIONED IN SECTION 517 CONTAINS ITS OWN AUTHORIZATION OF APPROPRIATIONS. SECTION 517 IS ENTITLED "GENERAL AUTHORIZATION," (86 STAT. 896) AND IS DESIGNED TO COVER THOSE SECTIONS OF THE FACT WHICH DID NOT ALREADY HAVE SPECIFIC AUTHORIZATIONS. SEE H.R. REP. NO. 92-911, 92 CONG., 1ST SESS. 87 (1972). THUS, IT APPEARS THAT SECTION 517 WAS INTENDED TO SERVE TWO PURPOSES: TO ESTABLISH ANNUAL CEILINGS FOR THE WATER POLLUTION PROGRAM, AND TO PRECLUDE THE RAISING OF A "POINT OF ORDER" UNDER RULE XXI OF THE RULES OF THE HOUSE OF REPRESENTATIVES, WHICH PROVIDES GENERALLY THAT AN APPROPRIATION FOR ANY EXPENDITURE NOT PREVIOUSLY AUTHORIZED BY LAW SHALL NOT BE IN ORDER. THUS WE DO NOT BELIEVE ANY SPECIAL SIGNIFICANCE ATTACHES TO THE STRUCTURE OF SECTION 517 WITH RESPECT TO THE AVAILABILITY OF APPROPRIATIONS TO PAY JUDGMENTS. FURTHER, WE HAVE FOUND NOTHING IN THE LEGISLATIVE HISTORY OF THE 1972 AMENDMENTS TO INDICATE ANY SPECIFIC INTENT THAT APPROPRIATIONS MADE TO EPA PURSUANT TO SECTION 517 BE AVAILABLE FOR AWARDS MADE BY A COURT UNDER SECTION 505(D). SUCH AWARDS ARE THEREFORE NOT "OTHERWISE PROVIDED FOR" SOLELY BY VIRTUE OF SECTION 517, AND IN THE ABSENCE OF SOMETHING MORE SPECIFIC IN THE APPROPRIATION ITSELF, MAY NOT BE PAID FROM EPA APPROPRIATIONS. 95-1195, THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT-INDEPENDENT

EPA'S FISCAL YEAR 1978 APPROPRIATIONS ARE FOUND IN PUB. L. NO. AGENCIES APPROPRIATION ACT, 1978, 91 STAT. 1073, 1078. WHILE THE APPROPRIATIONS FOR "ABATEMENT AND CONTROL" AND "ENFORCEMENT" MIGHT APPEAR RELEVANT TO THIS KIND OF EXPENDITURE, THEY CONTAIN NO PROVISION FOR THE PAYMENT OF JUDGMENTS OR AWARDS UNDER SECTION 505(D), NOR HAVE WE FOUND ANYTHING IN THE LEGISLATIVE HISTORY TO INDICATE THAT SUCH EXPENDITURES WERE INTENDED. IN 56 COMP.GEN. 592 (1977), WE HELD THAT A JUDGMENT AGAINST EPA AS EMPLOYER-GARNISHEE COULD NOT BE PAID FROM THE EPA APPROPRIATION "ABATEMENT AND CONTROL". WHILE THIS DECISION DID NOT CONCERN A SECTION 505 AWARD, WE BELIEVE THE PRINCIPLE IS NEVERTHELESS APPLICABLE, AND THAT IT ALSO APPLIES TO EPA'S OTHER APPROPRIATIONS.

FINALLY, WE ARE NOT AWARE OF ANY OTHER STATUTORY PROVISION WHICH WOULD SPECIFICALLY COVER THE SOURCE OF PAYMENT FOR AWARDS UNDER SECTION 505(D). AS NOTED, 31 U.S.C. SEC. 724A PROVIDES FOR PAYMENT FROM THE PERMANENT INDEFINITE APPROPRIATION OF JUDGMENTS AGAINST THE UNITED STATES WHICH ARE "NOT OTHERWISE PROVIDED FOR." IN VIEW OF THE FOREGOING, WE CONCLUDE THAT AWARDS AGAINST EPA UNDER 33 U.S.C. SEC. 1365(D) ARE NOT "OTHERWISE PROVIDED FOR" AND THUS MAY NOT BE PAID FROM EPA APPROPRIATIONS BUT ARE PAYABLE FROM THE PERMANENT APPROPRIATION CONTAINED IN 31 U.S.C. SEC. 724A.