¶19 (concurring/dissenting) — I agree with the majority that the statutory cap on attorney fees under RCW 4.84.350 applies to each level of judicial review. However, I agree with the dissent that the statute does not apply to our review of the Court of Appeals’ decision in this case. RCW 4.84.350(1) authorizes reasonable attorney fees only for “a qualified party that prevails in a judicial review of an agency action.” (Emphasis added.) Kathie Costanich did not come before us to challenge an agency action. She challenges only the Court of Appeals’ order limiting her entitlement to attorney fees under RCW 4.84.350(1). Because the Court of Appeals’ construction of RCW 4.84.350 is not an “agency action” within the meaning of that statute, I would hold that Costanich is not entitled to attorney fees for judicial review in this court.
¶20 As Costanich argues, the legislative intent of the equal access to justice act (EAJA) is to facilitate challenges to unreasonable agency actions by providing reasonable attorney fees to the prevailing party. In this case, Costanich is entitled to attorney fees because she successfully challenged the Department of Social and Health Services’ revocation of her foster care license, an action the trial court determined was not “substantially justified.” RCW 4.84-.350(1).4 Costanich prevailed before the superior court and again at the Court of Appeals. She is entitled to a separate *936assessment of attorney fees for each level of review of the agency action. However, she is not entitled to attorney fees for our review because the only issue on review is the Court of Appeals’ construction of the statutory attorney fee provision. RCW 34.05.010(2) defines “[a]gency” as “any state board, commission, department, institution of higher education, or officer, authorized by law to make rules or to conduct adjudicative proceedings, except those in the legislative or judicial branches.” (Emphasis added.) A court is not an “agency,” and a court’s application of a statutory attorney fee provision is not an “agency action.” Costanich’s petition for review to this court is for review of a lower court’s interpretation of a statute, not for review of a lower court’s ruling on an agency action.
¶21 As the majority itself notes, “[T]he EAJA . . . provides a partial waiver of sovereign immunity in allowing litigants to recover fees and costs from the State.” Majority at 931. As waivers of sovereign immunity are to be strictly construed in favor of the sovereign, United States v. Nordic Vill. Inc., 503 U.S. 30, 34, 112 S. Ct. 1011, 117 L. Ed. 2d 181 (1992), statutory waivers, such as the partial waiver in the EAJA, should not be enlarged beyond what the language of the statute requires. Klickitat County v. State, 71 Wn. App. 760, 765, 862 P.2d 629 (1993) (“When the government consents to be sued, the waiver is strictly construed and not enlarged beyond what the language requires.”).
¶22 Thus, I cannot agree with the majority that a statute authorizing attorney fees for judicial review of an “agency action” applies when the only issue reviewed is a prevailing party’s entitlement to attorney fees. The scope and availability of statutory attorney fees is determined by a court, not an agency. RCW 4.84.350(1) (“Except as otherwise specifically provided by statute, a court shall award a qualified party that prevails in a judicial review of an agency action fees and other expenses.” (emphasis added)). A judicial interpretation of an ambiguous attorney fee *937provision is not among the “inappropriate state agency actions” the EAJA was intended to remedy.
¶23 It is well established a court may award attorney fees for only that portion of the lawsuit for which attorney fees are authorized. See generally 14A Karl B. Tegland, Washington Practice: Civil Procedure § 37.16 (2003) (collecting cases). When only some portion of the lawsuit supports an award of attorney fees, a court must segregate, to the extent possible. Kastanis v. Educ. Employees Credit Union, 122 Wn.2d 483, 859 P.2d 26, 865 P.2d 507 (1993) (trial court erred by failing to segregate where plaintiff prevailed on one of four claims); Nordstrom, Inc. v. Tampourlos, 107 Wn.2d 735, 744, 733 P.2d 208 (1987) (CPA (Consumer Protection Act, chapter 19.86 RCW) plaintiff not entitled to attorney fees for aspects of suit unrelated to CPA violation); Sing v. John L. Scott, Inc., 83 Wn. App. 55, 920 P.2d 589 (1996) (time spent on consumer protection and tort claims should have been segregated for purposes of awarding attorney fees), rev’d on other grounds, 134 Wn.2d 24, 948 P.2d 816 (1997). Only when segregation is impracticable may a court award attorney fees encompassing claims for which such fees are not otherwise available. Kastanis, 122 Wn.2d at 502.
¶24 The majority considers the attorney fee dispute “inseparable” from the agency action. Majority at 933. I disagree. The issue of attorney fees is a separate issue from the agency action that necessitated judicial review. Because the attorney fee dispute is the only issue on review, it can be readily segregated.
¶25 The EAJA allows attorney fees only to a party who prevails in a judicial review of an agency action. The Court of Appeals’ ruling on Costanich’s entitlement to statutory attorney fees is not an agency action. I would hold, therefore, that Costanich is not entitled to attorney fees for our review of the Court of Appeals’ decision.
Notably, attorney fees are appropriate only when the agency action was not “substantially justified.” RCW 4.84.350(1). An agency action is “substantially justified” if it is justified to a degree it would satisfy a reasonable person. Silverstreak, Inc. v. Dep’t of Labor & Indus., 159 Wn.2d 868, 154 P.3d 891 (2007). This lends further support to the conclusion the legislature did not intend to award attorney fees when the only issue on review involves the construction of an *936ambiguous statute, an issue that necessarily presents a question on which reasonable minds may differ.