concurring.
I agree that Turner’s attorneys’ fees are not recoverable under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). The issue turns on whether his dispute with the government should be lumped together with the overall “case”, which indisputably “sound[ed] in tort”, or should be considered a separate dispute. Given ordinary legal usage of the word “case”, and the instruction that waivers of sovereign immunity are to be strictly construed, Ruckelshaus v. Sierra Club, 463 U.S. 680, 685-86, 103 S.Ct. 3274, 3277-78, 77 L.Ed.2d 938 (1983), I conclude that the dispute must be viewed as part of the tort case.
The pertinent portion of EAJA allows recovery of counsel fees under the following conditions:
[A] court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency 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) (emphasis added).
Turner’s dispute with the government was over the application of a section of the Federal Tort Claims Act, 28 U.S.C. § 2679(d), which provides for substitution of the United States as defendant when the Attorney General certifies that a government employee originally named as defendant “was acting within the scope of his office or employment at the time of the incident out of which the claim arose”. 28 U.S.C. § 2679(d)(1). When the Attorney General refuses that certification, the defendant employee may petition the court to make it, id. § 2679(d)(3), as Turner did successfully here. Congress devised this substitution arrangement in response to Westfall v. Erwin, 484 U.S. 292, 108 S.Ct. 580, 98 L.Ed.2d 619 (1988), which found no absolute immunity for government employees sued under state law for torts committed in the exercise of non-discretionary functions. See Federal Employee Liability Reform and Tort Compensation Act of 1988, Pub.L. No. 100-694, 102 Stat. 4563, 4564 (1988) (codified in part as amended at 28 U.S.C. § 2679) (the ‘Westfall Act”). Thus Turner prevailed against the government in the one dispute between him and it that arose in this “civil action”. Turner should recover attorneys’ fees unless the exception for “cases sounding in tort” applies.
The panel is surely correct in saying that individual issues arising in a tort case may not be peeled off as a means of limiting the application of Congress’s exception for cases sounding in tort. See Op. at 640-41. But Turner could prevail here on a more limited theory — that an issue may qualify as an independent “case” (or at least as a legal dispute separate from the underlying tort case) if it is the only issue between the government and the party seeking EAJA fees. Here, the sole controversy between Turner and the *643government was whether he was acting within the scope of his employment at the time of the incident as to which Mebane sued. Moreover, the entire substance of the dispute is one that, under a slightly different statutory arrangement, could readily have been the sole subject of a litigation between Turner and the government. For example, Congress might have responded to the problem revealed by Westfall by allowing tort suits to proceed against government employees unimpeded, but provided a right over against the government if liability were found and if the employee were acting within the scope of his employment. Had it done so, the legal relationship between government and employee would have been substantially similar to what the Westfall Act created, yet the employee’s right over against the government would have been subject to possible vindication in a separate ease. Such a dispute would be in essence contractual (with the indemnity statute supplying the terms of the contract), and it would be hard to say that it sounded in tort. Indeed, it would be hard to so classify it even when it happened to be resolved in the same litigation as the tort claim itself, by means of a third-party complaint under Rule 14(a) of the Federal Rules of Civil Procedure.
The trouble with this hypothetical analysis is just that — it rests on a state of the law quite different from what Congress chose. Instead of creating a right of indemnity that might under some circumstances be vindicated in an independent lawsuit, Congress simply provided for the substitution of the United States as defendant in tort suits brought against government employees as to incidents within the scope of their employment. That such a dispute might have constituted the entirety of a “case” under some alternative state of the law does not seem enough to justify characterizing it as a separate case (or as something independent of the case in which it arose). If a dispute between the government and a party can never constitute the whole of a lawsuit under the rules Congress adopted, and in fact arises within a case “sounding in tort”, I think it must be regarded as part of that case for purposes of EAJA’s tort exception.
Our decision here, then, does not consider the application of the tort exception to non-tort claims that may constitute the whole of a lawsuit but that happen to be resolved in a litigation arising out of tort law. It may well make sense to disaggregate such claims from the surrounding tort “case” for purposes of 28 U.S.C. § 2412(d)(1)(A), just as Congress clearly contemplates such disaggregation in other contexts. See, e.g., 28 U.S.C. § 1441(c) (providing for removal from state court of an “entire case” when “separate and independent” federal question' “claims” are joined with non-removable claims, and for possible remand of the latter claims).
Turner argues that denial of attorneys’ fees here violates the rationale of the tort exception, pointing to a committee report saying that tort cases had been excluded because EAJA’s sponsors “considered the legal remedies adequate and equitable in those cases”, H.R.Rep. No. 1418, 96th Cong., 2d Sess. 18 (1980), reprinted in 1980 U.S.C.C.A.N. 4984, 4997. He also points to a sponsor’s statement that “the economic deterrents to litigate are not as great an obstacle in [tort] cases.” Award of Attorneys’ Fees Against the Federal Government; Hearings on S. 265 Before the Subcomm. on Courts, Civil Liberties, and the Administration of Justice of the House Comm, on the Judiciary, 96th Cong., 2d Sess. 24 (1980) (prepared statement of bill sponsor Senator Dennis DeConeini). This reasoning may work on the plaintiffs side in a tort case, if, for example, we assume that most such cases are brought on a contingent fee basis, that pain-and-suffering damages serve in part to fund the reimbursement of prevailing plaintiffs’ lawyers, see, e.g., Clarence Morris, Liability for Pain and Suffering, 59 Colum.L.Rev. 476, 477 (1959), and that their partial diversion to that end represents sound policy. Whatever the validity of that theory, of course, it has no application where the party opposing the government is a tort defendant — as here or in any case where the government seeks affirmative relief in tort. If Turner is right on this issue, he has identified a serious glitch in EAJA’s tort exception, but he has not provided a basis for our *644interpreting EAJA to embrace the scope-of-employment issue here.