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B-217990 1 (1984-11-29)

handle is hein.gao/gaobadopm0001 and id is 1 raw text is: LIMTED DISTRIBUTION UNTIM TATM G~i. 3GENERAL X 'C 1TING O MemorndumNovember 29, 1984 Memorandum . m° :: F:, . FILES TO Jon Ellifritz, GGD/Claims FROM Bob Centola, OGC suNJECT. v. United States, Z-2856642 The issue presented by this case is whether an award of attorney's fees against the United States made under the authority of Rule 37 of the Federal Rules of Civil Procedure may be ertified for payment from the permanent judgment appropriation, 31 U.S.C. § 1304 A Rule 37 authorizes the imposition of sanctions, including the award of attorney s fees, for certain specified abuses of discovery. Prior to the Equal Access to Justice Act (EAJA), it was clear that fees could not be awarded agaiq,.t the United States under Rule 37. In fact, Rule 37 included a subsection (f)hich expressly barred fee awards against the United States except to the extent permitted by statute. (See Attachment 1.) The courts, although reluctantly at times, recognized and applied subsection (f)/ E Eg, Equal Employment Opportunity Commission v. Los Alamos Constructors, Inc., f82 F. Supp. 1373' .N.Mex. 1974); United States v. Northside Realty Associatesj 324 F. Supp. 287N.D.Ga. 1971). The orislative history of EAJA makes it clear that the new 28 U.S.C. § 2412(b a was intended to encompass Rule 37 awards. S. Rep. No. 96-253, page.4 (Fees may also be recovered against the United States under rule 37, Federal Rules of Civil Procedure, which provides for sanctions for failure to make discovery . . . . ) (Attachment 2). While the EAJA conference report does not specifically mention Rule 37, it expressly adopted the Senate version. H.R. Rep. No. 96-1434, page 25 (Attachment 3). To remove any doubt, EAJA repealed subsection (f) of Rule 37. Pub. L. No. 96-481, § 205(a), 94 Stat. 2330 (Attachment 4). While there is still very little case law on the books on this point, the courts are beginning to. recognize that they now can make fee awards against the United States under P~e 37. Eg., National Lawyers Guild v. Attorney General, 94 F.R.D. 600, 615 n.32Y[S.D.N:Y. 1982). Accordingly, 28 U.S.C. § 2412(b)4(1982) permits fee awards against the United States under FRCP Rule 37. In cases which do not involve findings of bad faith, the awards are payable from the judgmvnt appropriation. 63 Comp. Gen. 260 0 984) ' The m award may therefore be certified for payment if otherwise proper. As we lawyers say,, the file is returned herewith. Attachments CC: Sharon Green, GGD/Claims

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