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B-40342.3 1 (1984-03-19)

handle is hein.gao/gaobadloz0001 and id is 1 raw text is: e THE COMPTROLLER GENERAL OECISION ,. OP THE UNITED *TATES ' WASHINGTON. O.C. 20546 FILE: B-40342.3 DATE: March 19, 1984 MATTER OF: Attorney fees--judicial awards under Equal Access to Justice Act DIGEST: Permanent indefinite appropriation for judgments established by 31 U.S.C. S 1304 is available to pay attorney fees, except for bad faith cases, awarded under the authority of 28 U.S.C. I S 2412(b), as long as award is final and payment is not otherwise provided for. However, judgment appropriation is not available to pay awards under 28 U.S.C. S 2412(d), nor bad faith awards under S 2412(b), both of which must be paid from agency appropriations. This decision responds to a question that has arisen in a number of recent cases--whether the permanent indefinite ap- propriation for judgments (31 U.S.C. S 1304) is available to pay attorney fees awarded under the authority of! 28 U.S.C. S 2412(b). As discussed below, except for awards' based on a finding that the United States acted in bad faith, we believe it is. A sample of the cases raising this issue is.National Trust for Historic Preservation, et al., v. Corps of Engineers, 570 F. Supp. 465 (S.D. Ohio 1983) . The plaintiffs in that case alleged that the Corps of Engineers violated Federal historic preservation statutes by issuing a permit to construct and maintain a barge loading facility on the Ohio River. The Court found that the Corps had violated the National Historic Preservation Act, and then awarded costs and attorney fees to the plaintiffs in the amount of $46,726.43. Under 16 U.S.C. S 470w-4 (1982), courts may award attorney fees in actions to enforce provisions of the National Historic Preservation Act: In any civil action brought in any United States district court by any interested person to enforce the provisions of this subchapter, if such person substantially prevails in such action, the court may award attorneys' fees, expert witness fees, and other costs of partic- ipating in such action, as the court deems reasonable. Background Prior to 1981, the liability of the United States for attorney fees was governed by the so-called American Rule, OA 0

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