concurring in part and dissenting in part:
I agree with the view of the Ninth Circuit in Tulalip Tribes of Washington v. FERC, 749 F.2d 1367, 1369 (9th Cir.1984), and the dissenting opinion of Judge Rubin in United States v. 329.73 Acres of Land, 704 F.2d 800, 813, 817 (5th Cir.1983) (en banc), that in requiring the award of “fees and other expenses, in addition to any costs awarded pursuant to subsection (a),” § 2412(d)(1)(A) of the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A) (1982), conditions the award of fees and expenses upon the award of costs. Since I agree with the majority that costs cannot be awarded in the present case by reason of the prohibition in the Federal Power Act, 16 U.S.C. § 825p (1982), which prohibition is not eliminated by the Equal Access to Justice Act, 28 U.S.C. § 2412(a), the recovery of fees and expenses is also barred.
Though I acknowledge that the language “in addition to any costs awarded” is not the clearest way of expressing such a condition, I believe the language bears that *312interpretation, which is preferable for two reasons:
(1) It would be extraordinary for Congress to provide for recovery of such items as attorneys’ fees and expert witness expenses while positively prohibiting award of the much more basic element of court costs. The statutory scheme should not be interpreted to produce such a result when it is avoidable.
(2) Even without reference to the positive prohibition of costs under the Federal Power Act, § 2412 itself produces a strange result if the subject phrase is not interpreted as a condition. It makes the award of costs, when they are permissible, discretionary (subsection (a)), but the independent award of attorneys’ fees and other expenses mandatory (subsection (d)(1)(A)). That is, to say the least, an improbable intent. The only way to avoid that result without interpreting the subject phrase as a condition is to say, as did the Eighth Circuit, that the qualifying phrase means that “prevailing parties shall be awarded attorney’s fees and, when available, costs as well,” United States v. 341.45 Acres of Land, More or Less, 751 F.2d 924, 935 (8th Cir.1984) — that is, to interpret the phrase not as conditioning the mandatory grant of attorneys’ fees, but as extending that mandatory grant to costs. The problem with this interpretation is that the language will not bear it. The qualifying phrase is “in addition to any costs awarded pursuant to subsection (a)” (which subsection provides for a discretionary award), not “in addition to any costs awardable pursuant to subsection (a).”
The legislative history provides no specific answer to this question, but does suggest that Congress regarded the award of costs and the award of expenses as linked —indeed, that Congress sometimes failed to recognize any distinction between the two for purposes of subsection (d). See H.R.Rep. No. 1418, 96th Cong., 2d Sess. 12-13 (1980); S.Rep. No. 253, 96th Cong., 1st Sess. 7-9 (1979). The only disposition which the language of the statute will bear that produces this similar treatment is the interpretation suggested above.