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December 17, 1992

UNITED STATES, Defendant. v. JACK MCMENIMEN, et al., Defendants.

The opinion of the court was delivered by: STANLEY A. WEIGEL

 I. Background

 In October, 1985, Plaintiff rented a studio apartment in a house located at 28 Filbert Street in Sausalito, California. The main house at 28 Filbert Street was owned and occupied by Mr. John Rupp. The apartment, which had a separate street entrance, was downstairs from the main house and connected to it by an interior door which led to a shared storage area.

 On January 22, 1986, members of an inter-agency police task force who suspected Rupp's involvement in narcotics trafficking and money-laundering, executed a warrant to search the premises of 28 Filbert Street. In executing the warrant, several federal agents entered Plaintiff's apartment. Plaintiff immediately showed the agents her lease. The agents interrogated plaintiff for 45 minutes before they concluded that Plaintiff was not involved in Rupp's alleged activity and permitted her to leave.

 In January, 1987, Plaintiff filed a complaint in state court against the United States and various state, individual and Doe defendants. The suit was removed to federal court. After some discovery, Plaintiff amended her complaint to add the names of individual Defendants involved in executing the warrant. The amended complaint sought relief under (1) Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971) for violation of her Fourth Amendment rights; *fn1" and (2) the Federal Torts Claims Act (FTCA) for negligence, trespass, assault, invasion of privacy and false imprisonment. *fn2"

 Plaintiff's Bivens claim was tried before a jury and her FTCA claim was tried before the court. The jury returned a verdict against Defendants McMenimen and Yamashita, two individual federal agents, on the Bivens claim. On April 19, 1990, the court entered a judgment of $ 7000 against each of these Defendants. On July 23, 1990, the court entered judgment for the United States on the FTCA claim.

 Defendants appealed the Bivens claim verdict, which verdict was upheld on appeal. Plaintiff now moves for attorneys' fees for time spent by her attorneys on the successful Bivens claim.

 II. Discussion

 Plaintiff moves for attorneys fees under The Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A) (EAJA). EAJA provides, in relevant part, ". . . [A] court shall award to a prevailing party . . . fees and other expenses . . . incurred by that party in any 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 ...

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