Summary: GAO recommended an amendment to the payment provisions of the recently enacted Equal Access to Justice Act. The act authorizes the awarding of attorney's fees and other expenses against the United States in certain administrative and judicial actions where they were not previously authorized to reduce the financial deterrent of defending against or seeking review of governmental action and to promote agency accountability for regulatory actions. Under the provisions of the law, final district court judgments against the United States are paid, upon certification by the Comptroller General, from a permanent indefinite appropriation unless oherwise provided for. The purpose of the permanent appropriation was to avoid the need to obtain specific congressional appropriations. The applicable regulations do not establish a standard to determine when awards must be paid from agency funds. Under the act, the total amount of fees awarded in administrative and court actions are to be reported annually to Congress. The reporting agencies will not have any way of knowing what proportion of the total was paid from the permanent appropriation. Problems may arise if the specific appropriation for any given year is delayed or exhausted. Under the amendment proposed by GAO, awards would be paid first from agency funds. If agency funds are not available or payment would significantly disrupt agency operations, payment would be made but the agency would be under an obligation to reimburse the judgment appropriation. There would be no need to question the agency's certification in any given case and no need to further define the standard of significantly disrupting agency operations. The GAO proposal would ensure that there will always be a source of funds available to make the payment, make it clear that the permanent appropriation is to be used as a back-up only in limited situations, and provide for agency accountability by virtue of the reimbursement requirement.
