- _ - - _ _ g( , +. | ~~. UNITED STATES OF AMERICA s (%j / s 7 HUCLEAR REGULATORY COMKISSION oV /,K ! Y ,s ATOKIC SAFETY AND LICENSING APPEAL PANEL j ,;;.S ' ,{ , 5 ._g gf# A ' # Before Administrative Judges ' Q .}?h_ gg:qs Christine N. Kohl, Chairman . "g- Alan S. Rosenthal y j Howard A. Wilber : ( , v- ) I ) Docket No. 30-16055-SP In The Matter Of: ) ASLBP No. 87-545-01-SP ) It..spension Order) ADVANCED MEDICAL SYSTEMS, INC. ) EA 86-155 121 North Eagle Street ) Dated: April 20, 1989 Geneva, OH 44041 ) BRIEF IN SUPPORT OF NRC'S 'j ) AUThC.'*ITy TO PAY ATTORNEYS' FEES ) AND COSi'S TO ADVANCED MEDICAL ) SYSTEMS, INC. INTRooucrIon On April 4, 1989, the USNRC Atomic Safety and Licensing Appeal Board issued an order wherein it determined that briefing of the issue of whether the NRC may pay attorneys' fees and costs was warranted. As will be set forth below, Section 502 of the fiscal year 1989 Energy and Water Development Appropriations Act, Pub. L. No. 100-371, 102 Stat. 857 does not preclude the Nuclear Regulatory Commission ("NRC") from using fiscal year 1989 funds to pay an award of attorneys' fees and expenses under the Equal Access to Justice Act, 5 USC Section 504 resulting from a party's successful challenge to NRC actions where, as here, the party involved is not an intervenor because Section 502 only applies to interveners. Intervention has been judicially defined as the admission of a person, not an original party, into the proceeding by which that person becomes a party for the protection of some right or interest alleged to be affected by the proceeding. In re, Willacy County Water Control Improvement Dist. No. 1, 36 F. Supp. 36, 40 (S.D. Tex. 1940). Since FAS was an original party, this deprivation and the restrictions surrounding it are inapplicable. [$ 0905020127 890420 NMSS LIC30 i 34-19089--01 PDR '
Transcript
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~~.UNITED STATES OF AMERICA s (%j / s7
HUCLEAR REGULATORY COMKISSION oV /,K!Y ,s
ATOKIC SAFETY AND LICENSING APPEAL PANEL j ,;;.S ' ,{,
5 ._g gf# A '#Before Administrative Judges
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.}?h_ gg:qsig "* [;,Christine N. Kohl, Chairman. "g-Alan S. Rosenthal y j
) It..spension Order)ADVANCED MEDICAL SYSTEMS, INC. ) EA 86-155121 North Eagle Street ) Dated: April 20, 1989Geneva, OH 44041 ) BRIEF IN SUPPORT OF NRC'S
'j
) AUThC.'*ITy TO PAY ATTORNEYS' FEES) AND COSi'S TO ADVANCED MEDICAL) SYSTEMS, INC.
INTRooucrIon
On April 4, 1989, the USNRC Atomic Safety and Licensing Appeal Board issued
an order wherein it determined that briefing of the issue of whether the NRC may
pay attorneys' fees and costs was warranted.
As will be set forth below, Section 502 of the fiscal year 1989 Energy and
Water Development Appropriations Act, Pub. L. No. 100-371, 102 Stat. 857 does not
preclude the Nuclear Regulatory Commission ("NRC") from using fiscal year 1989
funds to pay an award of attorneys' fees and expenses under the Equal Access to
Justice Act, 5 USC Section 504 resulting from a party's successful challenge to
NRC actions where, as here, the party involved is not an intervenor because
Section 502 only applies to interveners. Intervention has been judicially defined
as the admission of a person, not an original party, into the proceeding by which
that person becomes a party for the protection of some right or interest alleged
to be affected by the proceeding. In re, Willacy County Water Control Improvement
Dist. No. 1, 36 F. Supp. 36, 40 (S.D. Tex. 1940).
Since FAS was an original party, this deprivation and the restrictions
surrounding it are inapplicable. [$0905020127 890420NMSS LIC30 i
34-19089--01 PDR '
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ARGUMENT
A. The Equal Access to Justice Act Statute 5 USC S 504
The Equal Access to Justice Act Statute ("EAJA") provides for awards of
attorneys' fees and expenses to eligible prevailing parties meeting certain net
worth and other requirements, such as Advanced Medical Systems, Inc. ("AMS"), in )administrative proceedings that are " adversary" adjudications, unless the,
I
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adjudicative officer finds that the position of the agency as a party to the I
proceedings was substantially justified, or that special circumstances make an
award unjust. 5 USC S 504(a)(1); See also, 28 USC S 2412(d)(1)(B). " Adversary
adjudication" is defined es meaning "an adjudication under Section 554 of. . . Title
[5] in which the position of the United States is represented by counsel or
otherwise...." 5 USC S 504(b)(1)(C). The application must be filed "within thirty
days of a final disposition in the adversary adjudication." 5 USC S 504(a)(2).
The term " prevailing party", however, is not defined in the EAJA.
Despite this fact, the United States Supreme Court has stated, in the context
of another fee shifting statute with the same phrase, that a party may he
considered to have prevailed if it " succeeded on any significant issue in
litigation which achieves some of the benefit the parties sought in bringingsuit." Hensley v. Eckerhart, 461 US 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed. 2d
40 (1983). See also, Union of Concerned Scientists v. NRC, 840 F.2d 957, 959 |
|(D.C. Cir. 1988)(Williams, J. dissent), reh'a (en banc) denied, 859 F.2d 237
(1988); Hirschey v. FERC, 760 F.2d 305, 309 (D.C. Cir. 1985)(applying Hensley in
an EAJA context); Massachusetts Fair Share v. Law Enforcement Assistance
Administration, 776 F.2d 1066, 1067 (D.C. Cir. 1985)(also applying Hensley in an
EAJA context); Jones v. Hodel, 685 F. Supp. 4, 7 (D.D.C. 1988).
Ir Jones, the cost out the Defendant's position that since the Plaintiff had
not prevailed in the underlying grievance position, he had not prevailed in the
litigation as being " irrelevant and missling) the mark." Jd., 685 F. Supp at 7
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(footnote omitted). The Court went on to state, "we find that plaintiff, in
successfully claiming he was denied procedural due process, has succeeded on the
significant issue in this litigation. plaintiff clearly has prevailed on the
merits, within the meaning of the statute. The fact that the government ulti-
mately denied his grievance is of no import." Ld .
| Further, as set forth in the Legislative History of the Equal Access to
Justice Act, Pub. L. No. 96-481:
Under existing fee-shifting statutes, the definition of prevailingparty has been the subject of litigation. It is the committee's inten-tion that the interpretation of the term in S. 265 be consistent withthe law that has developed under existing statutes. Thus, the phrase" prevailing party" should not be limited to a victor only after entry ofa final judgment following a full trial on the merits. A party may bedeemed prevailing if he obtains a favorable settlement of his case,Foster v. Boorstin, 561 F.2d 340 (D.C. Cir. 1977); if the plaintiff hassought a voluntary dismissal of a groundless complaint, Corcoran v.Columbia Broadcasting System, Inc., 121 F.2d 575 (9th Cir. 1941); oreven if he does not ultimately prevail on all issues, Bradley v. SchoolBoard of the City of Richmond, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed. 2d476 (197+) .
In cases that are litigated to conclusion, a party may be deemed" prevailing" for purposes of a fee award in a civil action prior to thelosing party having exhausted its final appeal. A fee award may thusbe appropriate where the party has prevailed on an interim order whichwas central to the case, Parker v. Matthews, 411 F. Supp. 1059, 1064(D.D.C. 1976), or where an interlocutory appeal is "sufficiently signi-ficant and discrete to be treated as a separate unit", Van Hoomissen v.Xerox Corp., 503 F.2d 1131, 1133 (9th Cir. 1974).
House Report (Judiciary Committee) No. 96-1418 (Septe:aber 26, 1980), reprinted in,
1980 U.S. Code Cong. & Admin. News 4984, 4990.
In the instant action, when determining whether the NRC's position was
substantially justified, the panel must examine the agency's actions and
explanations, as well as the its arguments before the panel. The EAJA defines
the " position of the agency" to mean "in addition to the position taken by the
agency in the adversary adjudication, the action or failure to act by the agency
upon which the adversary adjudication is based." 5 USC Section 504(b)(1)(E).
Further, as stated by the court in Jones: "The burden of proving that its
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substantially justified, both in agency proceedings and in litigation, rests with
the Government." M. 685 F. Supp. 4, 8 (D.D.C. 1988).
It is the NRC's position, however, that despite its lack of substantial just-
ification, it lacks the ability to pay attorneys' fees and costs. AMS, however,
is not an intervenor. Therefore, as will be set forth below, the basis for the
NRC's claim, Section 502 of the fiscal year 1989 Energy and Water Development
Appropriations Act, pub. L. 100-371, 102 Stat. 857, is inapplicable. Thus, the
NRC cannot avoid this obligation.
B. NRC'S Authority to pay Attorneys' Fees and Costs Under FA7A
As set forth above, the EAJA provides that parties to adversary adjudications
before agencies or to court actions against the United States, who meet certain
net worth and other requirements, are entitled to awards of fees and expenses if1
the party is a " prevailing party" and the position of the United States was not
substantially justified. 5 USC S 504(a)(1); 28 USC S 2412(d)(1)(B). The EAJA
further provides that awards "shn11 be paid by any agency over which the party
prevails from any funds made available to the agency by appropriation or other-
wise." 5 USC S 504(d); 28 USC S 2412(d)(4).
Each year the NRC receives a lump-sum appropriation. The EAJA awards are to
be paid from these appropriations. These appropriations are no-year monies and
are available until expended. See pub. L. No. 100-371, 102 Stat. at 873; pub. L.
No. 96-367, 94 Stat 1331, 1344-45. It is from these funds that AMS may be paid
its attorneys' fees and costs.
NRC cannot argue that AMS is an intervenor, therefore its argument that AMS
is barred from payment by Section 502 of the 1989 Appropriations Act, the
appropriations act under which the NRC receives its appropr11tions, is without
merit. See Matter of Availability of Funds for payment of Intervenor Attorney
Fees--Nuclear Regulatory Commission, 62 Comp. Gen. 692 (1983)(B-208637); Business
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and Professional People for the Public Interest v. NRC, 793 F.2d 1366 (D.C. Cir.s
1986).
Section 502 was first added to the general provisions of the Energy and
Water Development Appropriations Act for fiscal year 19F4. Pub. L. No. 96-367,!
94 Stat. 1331, 1345.
The provision states:,
"None of the funds of this Act shall be used to pay the expenses of, orotherwise compensate, parties intervening in regulatory or adjudicatoryproceedings funded in this Act."
This provision remained the same through fiscal year 1987, was revised for
fiscal year 1989, see Pub. L. No. 100-202, 101 Stat. at 1329-129, and was returned
to its original verbiage for fiscal year 1989.
In 1983, the Comptroller General analyzed Section 502 and determined that the
NRC was precluded from using appropriated funds to pay EAJA awards to interveners
in adjudicatory or regulatory proceedings conducted by the NRC in Matter of
Availability of Funds for Payment of Intervenor Attorney Fees--Nuclear Regulatory
Commissiorz, 62 Comp. Gen. 692 (1983)(B-208637). The United States Court of
Appeals for the District of Columbia Circuit reached the same result in Business
and Professional People in the Public Interest v. NRC, 793 F.2d 1366 (D.C. Cir.
1986). Both decisions were based on the current language of Section 502. Neither i
!ldecision nor any to follow, however, extended that holding to non-interveners. J
|Following the Business and Professional People for the Public Interest i
!
decision, the Federal Energy Regulatory Commission (FERC), which receives fundingi
under the same appropriations act as the NRC, argued before the same court that
the language in Section 502 precluded it from paying an award of attorneys' fees
stemming from court litigation. Electrical District No. 1 v. FERC, 813 F.2d
1246, 1247 (D.C. Cir. 1987). The court rejected this argument, holding that
"Section 502 cannot be viewed as an exception to EAJA" Id. , 813 F.2d at 1247 ]d
(footnote omitted). The court further found that the Section 502 bar applied
5
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only to agency's proceedings funded under the appropriations act of which Section
502 was a part. M. Because the judicial proceedings brought by the plaintiff|
not funded from the FERC Appropriations Act, the Section 502 preclusion waswas
inapplicable. M. , 813 F.2d at 1247-48. The court went on to state: "We have
never held that the payment of fees otherwise authorized under EAJA is conditioned
upon the passage of earmarked congressional appropriations, see, e.g., Herschey v.
For the reasons set forth above, Section 502 off the fiscal year 1989 Energy
and Water Development Appropriations Act, Pub. L. No. 100-371, 102 Stat, 857 does
not exempt the NRC from liability to non-interveners under the Equal Access to
Justice Act. AMC is, therefore, entitled to an award of attorneys' fees and
expenses under the Equal Access to Justice Act, 5 USC 5 504, upon the panel's
determination that it h the prevailing party.
Respectfully submitted,
11/~
'f. G. Aldrich,' Esq. F9 Colesville Road
Silver Spring, MD 20901(301) 565-0049
CO-COUNSEL FOR ADVANCED MEDICALSYSTEMS, INC.
$ t
S(erry J. S $ f,/Esq'."' ~
l131 North EglVStreetGeneva, OH 44041 i
(216) 466-4671
CO-COUNSEL FOR ADVANCED MEDICALSYSTEMS, INC.
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e_CERTIFICATE OF SERVICE
I HEREBY. CERTIFY that copies of the foregoing instrument, BRIEF IN SUPPORT OFNRC'S AUTHORITY TO AWARD ATTORNEYS' FEES AND COSTS TO ADVANCED MEDICAL SYSTEMS,INC. have been served upon the folly ing persons via ordinary First Class U.S.Mail, postage prepaid on on this d T ay of April, 1989:
Atomic Safoty & Licensing Appeal Board Administrative JudgeU.S. Nuclear Regulatory Commission Robert M. Lazo, ChairmanWashington, DC 20555 Atomic Safety and Licensing Board
U.S. Nuclear Regulatory ConmissionAdministrative Judge Washington, DC 20555Ernest E. HillHill Associates Director210 Montego Drive office of Inspection & EnforcementDanville, CA 94526 U.S. Nuclear Regulatory Commission
Washington, DC 20555Administrative JudgeHarry Foreman Stephen H. Lewis, Esq.1564 Burton Avenue Senior Supervisory Trlal CounselSt. Paul, MN 55108 Office of the General Counsel
U.S. Nuclear Regulatory ConmissionRegional Administrator Washington, DC 20555U.S. Nuclear Regulatory CommissionRegion III799 Roosevelt RoadGlen Ellyn, IL 60137
.
SHfRXY'J. Syf/IN ESQ'.~
131 North E M StreetGeneva, OH 041(216) 466-4671
CO-COUNSEL FOR ADVANCED MEDICALSYSTEMS, INC.
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6 /3 COMP. GEN. PAGE .1-
iCitation- . Rank (R) Database Mode67 COMP. GEN. R 1 0F 5 CG P'B-208637.2
Matter of: Whether the Nuclear Regulatory Commission May Pay Attorneys' Feesand Costs
August 1, 19881
DIGESTS.
I
..1.'Section 502 of the. fiscal year 1988 Energy and Water Development I
Appropriations Act. Pub.L. No. 100-202, 101 Stat. at 1329-129, does notpreclude the Nuclear Regulatory Commission (NRC) from.using .isc.'. year 1988funds to pay -a court aw4rd of attorneys' fees and expenses undet the EqualAccess to Justice Act resulting from a party's successful challenge to an NRC| rule.- The party involved was not an intervenor and section 502 anly applies tc)interveners.
|
2. Section 502 of the fiscal year 1988 Energy and Water DevelopmentAppropr iat ions Ac t , Pub.L . No. 100-202, 101 Stat. at 1329-129. does notpreclude the Nuclear Regulatory Commission from using prior year appropriationsto pay an award for attorneys' fees and expenses under the Equal Access toJustice Act made in fiscal year 1988 to the . extent that such appropriations art )
tva11able.- The restriction in section 502. as amended for fiscal year'1988,would only apply to fiscal year 1988 appropriations and not prior yearappropriations.
3. For purposes of determining the availability of fiscal year 1987 funds topay Equal Access to Justice Act awards for-attorneys' fees and expenses that,by virtue of the restriction in section 502 of the fiscal year 1988 Energy.andWater , Development Appropriations Act. Pub.L. No. 100-202, 101 Stat. 1329-129,could not be- paid f rom fiscal year 1988 funds, the Nuclear Regulatory
- Conmission (NRC) should subtract its total obligations incurred since theof fective date of its fiscal year 1987 appropriations act f rom the amount ofthe fiscal year .1987 appropriation. If the amount of funds obligated is lessthan the amount of the 1987 appropriation, the NRC should consider the
. difference as the amount of the fiscal 1987 appropriation still available for-obligation to pay the award. Conversely, the NRC should consider itself asoperating on fiscal year 1988 funds if the obligated amount is greater than the-fiscal year 1987. appropriation.-
4. The. Nuclear Regulatory Commission can use available deobligated fiscal year1987 funds to pay an award of attorneys' fees and expenses under the EqualAccess to Justice Act that could not be paid from fiscal year 1988 funds byvirtue of a restriction contained in its fiscal year 1988 appropriations actsince deobligated no year appropriations are available for obligation or theacame basis as if they were unobligated balances of no year appropriations.DECISION
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The Nuclear Regulatory Commission (NRC) asks several questions about itsauthority to pay court awarded attorneys' fees and costs under the Equal Accessto Justice Act (EAJA). 5 U.S.C. s 504: 28 U.S.C. s 2412.
| Specifically the NRC asks (1) whether the language of section 502 of the'
fiscal year 1988 Energy and Water Development Appropriations Act(Appropriations Act). Pub.L. No. 100-202. 100 Stat. 1329-129, precludes the NRCf rom using fiscal year 1988 funds to pay a cour t award of at torneys' fees andexpenses under the EAJA to the Union of Concerned Scientists (UCS), a partywhich challenged an NRC rule in court: (2) whether the language of section 502of the fiscal year 1988 Appropriations Act precludes the NRC from usingappropriated funds from previous fiscal years to pay the award described in"(1)": and (3) if section 502 does not preclude the NRC frn . sing previousfiscal year funds to pay the described award, how the availaEs i.ty of thesefunds is to be determined. Since this matter is currently in court, the NRC
!asks for expedited consideration of these issues. [FN1]For the reasons given below, we conclude that (1) section 502 does not
preclude payment of the award to the UCS since the UCS was not an intervenor ir;the proceeding in which the award was made: (2) as a general ,atter therestriction that was added to section 502 of the fiscal year 1988Appropriations Act does not preclude the NRC from using appropriated funds fromprevious fiscal years to pay EAJA awards in court proceedings involving appeals!of agency administrative decisions; and (3) the availability of prior yearfunds is to be determined consistent with our quidance in 62 Comp. Gen. 690,696. This guidance also is applicable to deobligated prior year funds thatbecome available for reprogramming and reobligation in fiscal year 1988.BACKGROUND
Section 161 of the Atomic Energy Act. 42 U.S.C. s 220!. authorizes the NRC toestablish rules and regulations governing the possession and use of nuclearmaterials. In September 1983, the NRC published an advance notice of proposedrulemak ing inviting public comment on draf t back f it ting rules. [FN2] Thetorm. "backfitting," refers generally to NRC actions that require modificationof the design, equipnent, or operating procedures of nuclear power reactorsp r ev i.ous ly licensed for construction or operation. Some 14 months later, the 'NRC published a proposed version of the rule. 49 Fed. Reg. 47.034 (Nov. 30.1984).NRC regulations require the NRC to afford interested persons an opportunity to
participate in rulemaking proceedings through the submission of statemonts .information, opinions and arguments. 10 C.F.R. s 2.805. The UCS was onc of
,the groups which chose to comment on the back fit ting rule. Although the same '
regulation also authorizes the NRC to hold informal hearings in ru;e-akingproceedings. NRC informs us that no such hearings were held on the amendedback f i t ting rule.
Af ter publication of the final back f itting rule, the UCS filed a petition forreview of the rule in the United States Court of Appeals for the Dist rict ofColumbia Circuit. [FN3) Union of Concerned Scientists v. NRC. 824 F.2d 100.112-13 (D.C.Cir.1987). The court eventually determined that the rule wasinvalid and under the EAJA awarded the UCS. as the prevailing party. 560,513.35in attorneys fees and costs. Union of Concerned Scientists v. NRC, No. 85-
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i1757 (D.C.Cir. filed Mar. 4. 1988).{The EAJA provides that parties to adversary adjudications before agencies or|to court actions against the United States, who meet certain net worth and I
other requirements, are entitled to awards of fees and expenses if the party ua " prevailing party" and the position of the United States was notsubstantially justified. 5 U.S.C. s 504(a)(1): 28 U.S.C. s 2412(d)(1)(B).The EAJA also provides that awards "shall be p. tid by any agency over which theparty prevails from any funds made available to the agency by appropriation or iotherwise." Id. s 504(d); s 2412(d)(4).
|The NRC receives a yearly l ump-s um app rop r i a t ion . These are the ;appropriations used to pay EAJA awards. Moreover, these appropriations have '
been no year monies for many years: that is, they are available untilexpended. E.g.. Pub.L. No. 96-367. 94 Stat. 1331, 1344-45.The NRC maintains that the UCS was an intervenor and, as such. is barred from
paynant by section 502 of the 1988 Appropriations Act. Pub.L. No. 100-202, 101Stat. at 1329-129. the appropriations act under which the NRC receives itsappropriations. Section 502 was first added to the general provisions of theEnergy and Water Development Appropriations Act for fiscal year 1981. Pub.L.No. 96-367. 94 Stat. 1331 1345. The provision stated:
"None of the funds of this Act shall be used to pay the expenses of or '
otherwise compensate. parties intervening in regulatory or adjudicatoryptaceedings funded in this Act."This provision remained the same tStough fiscal year 1987.In 1983, this Office determinea roat the NRC was precluded from using
appropriated funds to pay EAJA ewards of fees or expenses for those interveningin adjudicatory or regulatory proceedings conducted by the ioC. 62 Comp. Gen.692 (1983). The United States Court of Appeals for the District of ColumbiaCircuit reached the same result in a similar case. Business and ProfessionalPeople fo- the Public Interest v. NRC. 793 F.2d 1366 (D.C.Cir.1986). Bothdecisions were based on the language in section 502.Subsequen t to the Business and Professional People decision, the Federal
Energy Regulatory Commission (FERC). 'hich receives funding under the sameappropriations act as the NRC. argued before the same court that the quotedlanguage in section 502 precluded it from paying an award of attorneys' feesstemming from court litigation. in contrast to agency proceedings. InElectrical District No. I v. FERC. 813 F.2d 1246 (D.C.Cir.1987), the courtroJoc ted this argument . in essence holding that the section 502 prohibitionapplied only to agency proceedings f unded under the appropriations act of whichsection 502 was a patt. Since the Judicial proceeding brought by the plaintiffwas not funded from the FERC appropriations act. Se prohibition in section 502did not apply. Id. at 1247-48.Soon after the Electrical Distr +ct decision, che Congress amended sectico502. The fiscal year 1986 Energy and Water Development Appropriations Act
added a sen ,nce mak ing it clear that the section 502 bar also applied to.Judicial proceedings stemming from appeals of administrative decisions to The Ifederal courts. H.R.Re,. No. 162. 100th Cong., 1st Sess. 133 (1987). The nausentence states:
"This prohibition bars paymeit to a party intervening in an administrativeproceeding for expenses incurred in appealing an administrative decision to thecourts." P ub . L . No . 100-202 101 Stat. at 1329-129.The NRC is concerned that the United States Court of Appeals has erred in
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67' COMP. GEN.PAGE 4
mak ing an EAJA award to the UCS. which NRC considers to be an intervenor. Itrelies primarily on section 502 as amended in 1988. The NRC raises questionsboth about the specif te award to the UCS and about the general applicability oftha 1988 amendment to section 502. We will answer these questions seriatimbalow and include the NRC's position as part of the discussion of eachqusstion.
Legal Discussion
1. Whether the language of section 502 of the fiscal year 1988 Energy andWater Development Appropriations Act precludes the NRC from using fiscal year1988 funds to pay a court award of attorneys' fees and expenses resulting from ,the UCS's challenge to an NRC rule. i
The NRC suggests that the answer to this question depends upon whether the UCSis considered a party appealing an administrative decision to the courtsresulting from its intervention in an NRC administrative proceeding. The NRCsuggests that rulemak ing commenters such as the UCS are interveners forpurposes of section 502's prohibitions. The NRC contends that the Webster'sdictionary definition of " intervene" as "to become a party to an action orother legal proceeding begun by others for the protection of an allegedinterest" encompasses commenters on rulemak ing such as the UCS. The NRC alsoreasons by analogy to section 189(a) of the Atomic Energy Act. 42 U.S.C. s2339(a), which affords party intervenor status to persons requesting a hearingin any proceeding under the Atomic Energy Act "for the granting, suspending,revoking, or amending of any license or construction permit ... and in anyproceeding for the issuance or modification of rules and regulations dealingwith the activities of licensees...."Wo disagree that the UCS was a party intervening in an administrative
proceeding it appealed to the courts. The word intervenor is a term of art inlaw to describe "a person who voluntarily interposes in an action or otherproceeding." Black 's Law Dictionary (5th Ed.1979). ' Intervention has beenJudicially defined as the admission of a person not an original party into theproceeding by which the person becomes a party for the protection of some rightor interest alleged to be affected by the proceeding. In re Willacy CountyWator Control Improvement Dist. No. 1, 36 F.Supp. 36, 40 (S.D. Tex.1940).In this instance, the UCS was not a party intervening in an agency proceeding
but merely was a party commenting on the back fitting rule, consistent with HRC,
procedures on "Rulemaking." 10 C.F.R. s 2.805. We do not view rule commentersas being involved in an agency proceeding in which they can be characterized asintervening parties. The rulemaking procedures do not characterize rulecommenters as interveners nor do they provide for formal hearings. [FN41 Theseprocedures contrast with NRC regulations on " Rules of General Applicability"for adjudications and hearings, 10 C.F.R. s 2. 700 e t seq. . which specificallyallow for participation through intervention in the adjudications and hearingscovered by the rule. As the original party that initiated the lawsuit, it alsois evident that the UCS is not an intervenor in the action in the United StatesCourt of Appeals for the Distrtet of Columbia Circuit.Wa recognize that the amendment to section 502 was intended to cover appeals
of agency regulatory as well as adjudicatory decisions to the courts, and agreethat parties intervening in regulatory proceedings that appeal those decisions
i to the courts would be covered by the amendment to section 502. Although we1
agree that rulemak ing is one k ind of regulatory proceeding, as is enforcementof regulations and licensing, it does not f ollow that this makes ruleconmenters parties intervening in agency regulatory proceedings such that thesection 502 prohibition would apply. To do so would require a construction oftha term " intervene" f ar beyond i ts usual meaning in law. It also wouldfurther limit payment of EAJA awards without any clear intention from theCongress that this was intended.Na do not think that the Atomic Energy Act provision relied on by the NRC is a
porsuasive analogy . That provision, like the NRC regulations on adjudicatoryproceedings and hearings, contemplates a formal heartng process rather than aprocedure for merely commenting on agency rules.Since we do not think the UCS was a party appealing the decision in an agency
administrative proceeding in which it was an intervenor, section 502 of thefiscal year 1988 Appropriations Act is not applicable, and does not bar the NRC<from paying the award of attorneys' fees and costs to the UCS.2. Whether the language of section 502 of the fiscal year 1988 Energy and
Wator Development Appropriations Act precludes the NRC f rom using appropriatedfunds from previous fiscal years to pay the UCS award.Tha NRC suggests that the wording of the amendment to section 502 seems to say
that the Congress intended that sentence to be a definitive description of whatthe prohibition in the first sentence means in the context of awards ofexpenses for litigation relating to agency administrative actions. Thus, forany fiscal year in which section 502 was applicable, its prohibition, as stated,in fiscal year 1988, wouid cover not only parties intervening in agencyrcgulatory or adjudicatory proceedings but also parties intervening in !administrative proceedings at the agency level in which administrative
{dscisions were appealed to the courts. '
Furthermore, the NRC suggests that because the amending sentence of section502 does not contain the qualifier "In]one of the f unds of this Act" found inthe first sentence, it should be read as a total bar to use of any appropriatedfunds to pay intervenor litigation expenses, whether from fiscal year 1988funds or prior year funds rather than only a bar to the appropriations providedby the fiscal year 1988 Appropriations Act.As we have said, since we do not view the UCS as an intervenor, the
prohibition in section 502 included in the NRC appropriations acts f rom 1981-88would not apply. As the appropriations used to pay EAJA awards are no yearmonies, it is clear that previous years' funds if available may be used to paythe award.Notwithstanding this conclusion, we understand the NRC question to be more
ganoral. That is, assuming an EAJA award may not be paid with fiscal year 1988funds because of the 1988 amendment to section 502. may previous years' fundsbe used to pay the award? Consistent with 62 Comp. Gen. 692 (1983), we concludethat the language of section'502, as stated in the 1988 Appropriations Act,does not preclude the NRC f rom using appropriated f unds f rom previous fiscalyears to pay awards to interveners in fiscal 1988.
In 62 Comp. Gen. 692, we concluded that funds restricted by section 502 couldnot be used to satisfy an EAJA award in an agency adversary adjudicationregardless of whether part of the proceeding was conducted in a fiscal year inwhich section 502 was not appilcable. We also found, however, thatappropriations not limited by section 502, that is, no year NRC monies,
appropriated before section 502 first was enacted, could be used to pay'
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|intervenor awards to the extent those funds were still available. Specifically {wo said:
!"The fact that the Commission issues an award during a restricted f tscal yea {
doss not prevent its being paid out of a previous fiscal year's appropriation I
so long as part of the proceeding giving rise to the award was funded by an )unres t r ic ted app ropr iat ion . " Id. at 696. i
Wo think the same principle would apply to the additional restriction added to !ssction 502 in the 1988 Energy and Water Development Appropriations Act. Pub.LNo. 100-202, 101 Stat. 1329-129. The new restriction regarding appeals to thecourts of administrative decisions would not apply to monies previouslyappropriated. Awards made in 1988 could be paid from Previous years' monies t( ltha extent they still are available.No disagree with the NRC's suggestion that the amendment was intended to
extend to prior year funds. Neither the language of the amendment nor its ilegislative history shows that the amendment was intended to apply to fiscal )years other than that in which the amendment was contained, that is fiscal yea: '
1988. Furthermore, it is a general principle of statutory construction that alaw generally will not be construed to operate retroactively unless it clearlyindicates that it is to be so applied. 2 Sutherland, Statutory Construction s41.04 (4th ed. 1986). '
We also disagree that because the phrase "None of the funds of this Act" isused in the first sentence of section 502, but not the amendment, the amendmen-should not be so limited and should extend to prior year funds. Again, neitne <tha language of the amendment nor its legislative history indicates this Iintention. In any event, as a matter of syntax. we think the better jconstruction is that the first two words of the amendment- "This prohibition"--refers back to the first sentence and, thus, by reference, incorporates thelimitation "None of the funds of this Act."3. If the language of section 502 as provided in the fiscal year 1988 Energy
and Water Development Appropriations Act does not preclude the NRC from usingfiscal year funds to pay awards to interveners in Judicialprevious
proceedings, how is the availability of these funds to be determined?The NRC quotes f rom our guidance in 62 Comp. Gen. at 696 about how prior years'f unds , appropriated wi thout the section 502 prohibition, were to be used to pasawards in a fiscal year for which section 502 applied. We said:"For the purposes of determining the availability of f unds to make awards of
the type in question, the Commission should consider that it obligates its<
funds in the order in which they are appropriated. Under this approach, theCommission should subtract its total obligations since the effective date oftho earlier appropriation f rom the amount of that appropriation. If the amountof funds obligated is less than the amount of the unrestricted appropriation,than the Commission should consider the difference as the amount of theunrestricted appropriation still available for obligation to pay the award.Tha award may be satisf ied up to the amount of the difference. Conversely, theCcmmission should consider itself as operating on restricted funds if theobligated amount is greater than the unrestricted appropriation and the awardshould not be made." ,
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Tho NRC understands the quoted language to mean that, for example, indatormining the availability of fiscal year 1987 Funds to satisfy an EAJAaward, it should look at all obligations made from the effective date of theficcal year 1987 Appropriations Act up to the date of the court award and if ;
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these obligations exceed the amount of fiscal year 1987 appropriated funds,then there are no appropriated funds available to pay the award. The NRC alsounderstands our guidance to mean that if funds obligated during fiscal year1987 or any earlier fiscal year are later deobligated and otherwise becomeavailable f or reprogramming and reobligation in fiscal year 1988, they
, nonetheless may not be considered pre-fiscal year 1988 funds available to pay| fee award. In this regard, the NRC points out that the House AppropriationsCommittee has established procedures specifying that utilization of_unobligate.carry over funds to fund other than prior year commitments is considered areprogramming action that must be submitted for Committee approval.In part, the NRC correctly interprets 62 Comp. Gen. at 696 regarding use of
fiscal year 1987 appropriations to pay awards made in fiscal year 1988. If th.amount of total obligations since the ef fective date of the fiscal year 1987appropriations exceeds the amount of funds provided in fiscal year 1987, thenno fiscal year 1987 monies would be ave.11able to pay awards made in fiscal yea !1988. If, however, the amount of monies appropriated in fiscal year 1987 |oxceeds total obligations, then, to the extent of the excess, those monies can ibe used to pay EAJA awards. These monies would not be subject to the fiscal1988 amendment to section 502.We disagree, however, that deob11 gated prior year monies would not be
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available to pay such awards. We have held that deobligated no year funds are !available for obligation on the same basis as if they were unobligated balancet !of no year appropriations. 8-200519, Nov. 28, 1980; 40 Comp. Gen. 694, 697(1961). Accordingly, the guidance we provided in 62 Comp. Gen. at 696 alsowould apply to any such balances.Na see no inconsistency with the House Appropriations Committee'sreprogramming procedures. The required notification and approval processdescribes the relationship between the NRC and the Committee concerningreprogramming. It does not directly speak to the availability of the f unds.
Milton J. SocolarComptroller General of the UnitedStates
FN1 The matter is before the United States Court of Appeals for the District ofColumbia. Union of Concerned Scientists v. NRC. No. 85-1757 (D.C.Cir.). OnApril 18, 1988, the NRC filed a petition for rehearing and a suggestion for arehearing en banc. Consistent with our policy to refrain from commenting onmatters in litigation unless requested to do so by a court, 63 Comp Gen. 98,99 (1983), the Union of Concerned Scientists, in essence, asks that we notcomment on the questions the NRC has presented to us. We have decided to givethe NRC the advice requested for three reasons. First, since we had previouslyissued a decision to the NRC on a similar matter, 62 Comp. Gen. 692 (1983), wefool a responsibility to provide additional assistance in determining itsapplicability in this case; second, the NRC informed the court that it hadasked for our opinion on the appropriation issue: and third, the particularissues the NRC raises have not been addressed by the court, nor has the NRCdirectly raised these issues in its petition for rehearing.FN2 The NRC promulgated its first backfitting rule in 1970. Subsequent
-criticism ied to its amending the rule. Union of Concerned Scientists v. NRC,824 F.2d.108, 110 (D.C.Cir.1987).
FN3 In April'1986, the UCS filed a separate petition for review challeng!ng achapter of an NRC Manual which relates to the rule. By order of June 20, 1986-ths court consolidated the two petitions. 824 F.2d at 113.
FN4 Although the NRC may convene informal hearings for rule commenters, 10C.F.R. s 2.805(b). none were held in this instance.Comptroller _ General |
