civil action . . . brought by or against the United States . . . unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A).
Defendants contend that because Plaintiff prevailed in her suit against Defendants McMenimen and Yamashita in their individual, not their official capacities, EAJA does not apply. Defendants' point is well-taken. EAJA is a limited waiver of sovereign immunity which must be strictly construed. See Lane v. United States, 727 F.2d 18, 21-22 (1st Cir. 1984) cert. denied, 469 U.S. 829, 83 L. Ed. 2d 57, 105 S. Ct. 113 (1984). It provides for attorneys fees in actions brought "by or against the United States." EAJA defines the "United States" to include "any agency and any official of the United States acting in his official capacity." 28 U.S.C. § 2412(d)(2)(C).
Plaintiff's successful claims do not fall within the ambit of EAJA. Plaintiff prevailed against Defendants McMenimen and Yamashita in a Bivens action. A Bivens action is a suit for damages "against the employee in his individual rather than his official capacity, and is therefore not a suit against the sovereign at all." Holloman v. Watt, 708 F.2d 1399, 1402 (1983) cert. denied, 466 U.S. 958, 80 L. Ed. 2d 552, 104 S. Ct. 2168 (1984). Thus, in prevailing in her Bivens action, Plaintiff has not prevailed in an action "brought by or against the United States" as EAJA defines that phrase. See id. (If suit were against individual defendants as officials of the United States and not as individuals, reliance on Bivens would be misplaced).
Moreover, because the United States was not a party to Plaintiff's Bivens suit and could not be found liable on the merits for the claims asserted therein, Plaintiff is not entitled to collect attorneys' fees from the United States for legal work performed on that action. See Kentucky v. Graham, 473 U.S. 159, 165, 168, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985) (There is no fee liability where, because of legal immunity or otherwise, the party from whom fees are sought cannot be held liable on the merits).
Thus, EAJA does not permit Plaintiff to collect attorneys' fees for time spent prosecuting Plaintiff's Bivens claim. Accord, Lauritzen v. Lehman, 736 F.2d 550, 559 (9th Cir. 1984) (noting that EAJA awards are inappropriate in Bivens actions). Because EAJA does not apply, the court need not consider whether the position of the United States was "substantially justified" or whether "special circumstances" render a fee award "unjust."
IT IS HEREBY ORDERED that Plaintiff's Motion for Attorneys' Fees is DENIED.
Dated: 12/17, 1992.
Stanley A. Weigel