We granted a rehearing, 692 F.2d 75, on the question of whether an award to Pellicano of attorneys’ fees can be made. We adopt the reasoning of Nibali v. United States, 634 F.2d 494 (Ct.C1. 1980), in which the Court of Claims held that attorney fees may not be awarded in a civilian pay case that was pending in a court when the Civil Service Reform Act became effective. On that basis, the request for attorney fees pursuant to 5 U.S.C. § 5596(b)(1)(A)(ii) cannot be granted.

The case is remanded for further proceedings consistent with our opinion filed on November 8, 1982, and with this opinion.