concurring in part and dissenting in part:
I agree with the majority that the district court’s award of attorney’s fees must be vacated but dissent from its affirmance of the award of costs. While litigation costs are, in general, more readily available than attorney’s fees, see Fed.R.Civ.P. 54, nonetheless, as with fees, they are recoverable from the Government only to the extent it has waived its sovereign immunity and any waiver must be strictly construed in the Government’s favor. Worsham v. United States, 828 F.2d 1525, 1527 (11th Cir.1987) (citing Fenton v. Federal Ins. Administrator, 633 F.2d 1119, 1122 (5th Cir.1981)). The district court awarded Turner costs as “the prevailing party” under section 2412(a)(1) of the EAJA, which provides in part:
§ 2412. Costs and fees
(a)(1) Except as otherwise specifically provided by statute, a judgment for costs, as enumerated in section 1920 of this title, but not including the fees and expenses of attorneys, may be awarded to the prevailing party in any civil action brought by or against the United States or any agency or any official of the United States acting in his or her official capacity in any court having jurisdiction of such action.
28 U.S.C. § 2412(a)(1). I believe that the language of this subsection, strictly construed in the Government’s favor, does not allow the court’s award of costs to Turner.
The phrase to the prevailing party in any civil action brought by or against the United States or any agency or any official of the United States” manifests an intent to award costs only to a party who prevails on a claim for relief against the Government or on a defense to a claim asserted by the Government. Turner, however, neither pressed a claim nor raised a defense against the Government.* His sole role, while it lasted, was that of co-defendant. While he succeeded in transferring to the Government his own potential liability, in so doing he prevailed not against the Government but against the plaintiff whose claim against him was consequently dismissed. Further, even if the majority is correct that a “reasonable interpretation” of subsection 2412(a)(1) permits recovery of costs here, that point is irrelevant. Because the subsection must be strictly construed in the Government’s favor, costs are recoverable only if unequivocally authorized by the statutory language. See Hubbard v. EPA, 982 F.2d 531, 532 (D.C.Cir.1992) (quoted in majority opinion at 640). A mere “reasonable interpretation” is not enough. Accordingly, I would vacate the district court’s award of costs as well as its award of fees.
Subsection 2412(a)(1) uses civil action' while subsection 2412(d)(1)(A) (the attorney's fees provision) uses "cases.” Both terms, however, contemplate awards only in lawsuits brought by or against the Government and Turner’s motion for certification and substitution was not a "civil action” (or case) against the Government. That Mebane’s suit was "brought against” the Government as well as Turner is irrelevant. Had Me-bane elected to sue only Turner in his individual capacity, without also joining the Government as defendant, and had Turner subsequently obtained substitution of the Government in his place, Mebane's lawsuit could not under any interpretation have fallen within subsection 2412(a)(1)’s purview, at least during Turner's involvement, because until the Government replaced him (and he dropped out of the case) there would have been no "civil action brought by or against the United States or any agency or any official of the United States acting in his or her official capacity.” That Mebane elected to sue both the Government and Turner should not ipso facto entitle Turner to a cost award against the Government.