I concur in the result reached by the majority, but write separately to address recent Supreme Court and Court of Appeals for the Federal Circuit cases and the legislative history of the Federal Courts Administration Act of 1992 (FCAA), Pub.L. No. 102-572, § 506, 106 Stat. 4506, 4513 (codified at 28 U.S.C.A. § 2412 note (West Supp.1993) (Application of 1992 Amendment to Pending Cases)).
The most recent Supreme Court case addressing waivers of sovereign immunity was decided in May 1993. In United States v. Idaho, ex rel. Director, Idaho Dep’t of Water Resources, — U.S. -, 113 S.Ct. 1893, 123 L.Ed.2d 563 (1993), the Court reaffirmed the principles of construction applicable to waivers of sovereign immunity followed in April 1992 in United States Dep’t of Energy v. Ohio, — U.S. -, -, 112 S.Ct. 1627, 1635, 118 L.Ed.2d 255 (1992) (statutory language did not provide a “clear and unequivocal” waiver), and in February 1992 in United States v. Nordic Village, Inc., — U.S. -, -, 112 S.Ct. 1011, 1016, 117 L.Ed.2d 181 (1992) (“‘unequivocal expression’ of elimination of sovereign immunity that we insist upon is an expression in statutory text”), by stating that “[tjhere is no doubt that waivers of federal sovereign immunity must be ‘unequivocally expressed’ in the statutory text.” Idaho, ex rel., — U.S. at -, 113 S.Ct. at 1896 (emphasis added) (citation omitted).
In Smith v. United States, — U.S. -, 113 S.Ct. 1178, 122 L.Ed.2d 548 (1993), a case decided in March 1993, just two months before Idaho, ex rel., the Supreme Court held that the waiver of sovereign immunity in the Federal Tort Claims Act (FTCA) did not encompass tort claims arising in Antarctica. However, in construing Antarctica as a “foreign country” within the meaning of the foreign-country exception to FTCA applicability, the Court, unlike in Idaho, ex rel., not only relied upon the language and the structure of the statute, but also utilized FTCA legislative history to bolster its interpretation of the statute. Smith, — U.S. at - n. 4, 113 S.Ct. at 1182 n. 4. In so doing, the Supreme Court cited United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), where the Court had also analyzed both the language and the legislative history of the statute to determine congressional intent. Kubrick, 444 U.S. at 118-120, 100 S.Ct. at 357-358. By referring to legislative history, and by citing to Kubrick, the Supreme Court in Smith seemed to indicate that legislative history has a role in interpreting statutory waivers of sovereign immunity, contrary to the seemingly decisive language in Nordic Village, — U.S. at -, 112 S.Ct. at 1016, that, “[i]f clarity does not exist ... [in statutory text], it cannot be supplied by a committee report.”
Finally, in Ardestani v. INS, — U.S. -, 112 S.Ct. 515, 520, 116 L.Ed.2d 496 (1991), relied upon by the majority here and by the Court in Nordic Village, the Supreme Court extensively examined the Equal Access to Justice Act (EAJA) legislative history after stating that the “ ‘strong presumption that the plain language of the statute expresses congressional intent is rebutted only in ‘rare and exceptional circumstances,’ when a contrary legislative intent is clearly expressed” (citations omitted).
Further confusion arises from a decision issued in June 1993 by the Court of Appeals for the Federal Circuit subsequent to both Idaho, ex rel. and Smith. In M.A. Mortenson Co. v. United States, 996 F.2d 1177 (Fed.Cir.1993), a ease which also dealt with the applicability of EAJA, the Federal Circuit held that EAJA waived sovereign immunity with respect to an award of fees for abuse of discovery assessed against the Government pursuant to Rule 37 of the Rules of the Federal Court of Claims, a rule patterned after Rule 37 of the Federal Rules of Civil Procedure. The Court stated:
The present case is representative of a situation in which congressional intent is clear, even though imprecisely couched in the statutory phraseology of section 2412(b). The legislative history of the EAJA and the circumstances surrounding the passage thereof demonstrate that the drafters explicitly contemplated recovery of attorney fees against the government under circumstances other than those narrowly revealed by the “terms of any statute” language [of 28 U.S.C. § 2412(b) ].
*109Id. at 1181. While decisions of the Federal Circuit are binding on this Court, see 38 U.S.C.A. § 7292 (West 1991), it should be noted that in M.A Mortenson the Federal Circuit did not reference any of the Supreme Court cases discussed above.
Given the ambiguity now created by Smith, Ardestani, and M.A. Mortenson on the one hand, which seem to permit the use of legislative history, and Idaho, ex rel., Department of Energy, and Nordic Village on the other hand, which seem to preclude its use, and resolving this ambiguity by concluding that recourse to legislative history has not been unequivocally foreclosed by binding precedent opinions, an examination of the legislative history of the FCAA itself reveals considerable ambiguity.
The Senate Judiciary Committee report and the House Judiciary Committee report use the words “clarify” and “clarifies,” respectively, in describing, respectively, the FCAA’s “inclusion” of the Court in the EAJA and the “appli[cability]” of the EAJA to the Court. See S.Rep. No. 342, 102d Cong., 2d Sess. 39 (1992) (“The intent of section 508 [enacted as § 506] is to clarify the inclusion of the Court of Veterans Appeals as a ‘court’ for purposes of EAJA”); H.R.Rep. No. 1006, 102d Cong., 2d Sess. 25 (1992), reprinted in 1992 U.S.C.C.A.N. 3921, 3934 (“Vets are among the types of individuals the statute was intended to help. Therefore, § 508 amends EAJA and clarifies that it applies to the Court of Veterans Appeals”). In this regard, the majority states:
We are asked to view the legislative history of the FCAA, ... as reflective of an expressed desire to clarify the existence of a past waiver of sovereign immunity rather than a waiver concurrent with the amendment.
... [W]e think it more plausible that the expression in the Senate report respecting clarification recognized that the question as decided by this Court in 1992 was still open and pending in the Federal Circuit. Thus, the Act, if the Senate report is at all relevant on this question of clarification, resolved or clarified that discrete issue that was sub judice, not the existence of a past waiver.
Ante at 106-07 (citations omitted). The preceding majority statement correctly indicates that the legislative history’s attempt at clarification has resulted in further ambiguity.
The Senate report further states: “The Committee intends to make clear that EAJA applies to the court to the full extent of the law, including the principles contained in ... Center for Science in the Public Interest v. Regan [, 802 F.2d 518 (D.C.Cir.1989)]” (CSPI). S.Rep. No. 342, 102d Cong., 2d Sess. 39 (1992). As the majority notes, ante at 105, CSPI held that, for purposes of applying the 1985 EAJA amendments, “cases pending” included pending applications for attorney fees. Appellants therefore have concluded that the Senate report’s citation to CSPI indicates congressional intent that the terms “case pending” and “appeal ... pending” in the FCAA include pending fee applications. Appellant Jones even asks in his memorandum to the Court that if this is not the proper conclusion, “... what was the Committee referring to in specifically citing this case?” Mem. of Sept. 7, 1993, at 7.
The response to appellant Jones’ inquiry is two-fold. First, the report language is not an expression from the Congress, but only from the Senate. Second, it is not clear what the Committee was referring to when it cited CSPI. A significant distinction exists between CSPI and the cases presently before the Court in that, while CSPI arose in the context of applying a clarifying definition of a term (“position of the United States”) used in the original EAJA that had been added by the 1985 EAJA amendments, our eases arise in the context of an original waiver of sovereign immunity. Had the Senate Committee meant to waive sovereign immunity for pending fee applications filed pursuant to the FCAA’s original waiver of sovereign immunity (as opposed, for example, to a future modification of that waiver), a clearer expression of such intent would have been a citation not to CSPI, but to United States for Heydt v. Citizens State Bank, 668 F.2d 444 (8th Cir.1982), or Knights of the KKK v. East Baton Rouge, 679 F.2d 64 (5th Cir.1982), both of which dealt with the scope of the original *110EAJA waiver enacted in 1981 and which are discussed immediately below.
The Court of Appeals for the District of Columbia Circuit in CSPI itself distinguished its earlier strict construction approach in Nichols v. Pierce, 740 F.2d 1249 (D.C.Cir.1984), a case which, like ours, deals with an original waiver of sovereign immunity for purposes of EAJA applicability, by stating:
[T]he concerns which prompted the courts to decline to apply retroactively the original EAJA to cases which were closed save for the fee petition are inapplicable in the context of the application of the [1985] ... Amendments. By virtue of the original EAJA, the Government has already expressly waived sovereign immunity from attorneys’ fees in this case. The EAJA is no longer “temporary and experimental”, but has been made permanent by the [1985] Amendments.
CSPI, 802 F.2d at 524 n. 11 (citations omitted).
In contrast, Heydt and KKK, although arising in the context of applying the original waiver contained in the 1980 EAJA, did not follow the strict construction approach as exemplified in Nichols, but, rather, held that “pending” eases included cases pending only on applications for fees. Because Heydt and KKK are more analogous than CSPI to the cases presently before the Court in that they arose in the context of an original waiver of sovereign immunity, a citation to one of them in the legislative history would better support appellants’ position. Therefore, the Senate Judiciary Committee’s choice of CSPI is, at best, ambiguous, and thus does not constitute “clearly expressed” legislative intent. See Ardestani — U.S. at -, 112 S.Ct. at 520; cf. M.A. Mortenson Co., 996 F.2d at 1181.
As the legislative history here cannot be seen as unambiguous, I agree with the majority’s holding that, “for purposes of FCAA section 506 and the EAJA, the term ‘case pending’ [and ‘appeal pending’] includes only cases pending before the Court on the merits on or after [the effective date of enactment of the FCAA]; it does not include cases in which the only matters pending before the Court [were] EAJA applications [on such date].” Ante at 107.