The question before us is whether the United States is liable under the Equal Access to Justice Act, 28 U.S.C. Sec. 2412(b) (1982), for attorneys' fees incurred by Dr. Bhartur Premachandra in his suit against the Veterans Administration based on an alleged constitutional violation. As we find no basis in the language of the statutes or legislative history to support an award, we reverse the judgment of the district court granting Premachandra fees.

Premachandra is a research endocrinologist with the VA. On December 30, 1980, the VA told him that he would be terminated on January 16, 1981 and that his laboratory must be dismantled by then. Premachandra appealed his termination to the Merit Systems Protection Board. He also filed a suit in federal court, seeking to enjoin the termination and the dismantling of the laboratory pending a hearing before the MSPB. Premachandra alleged that the fifth amendment guaranteed him the right to a pretermination hearing.

The district court denied the preliminary injunction. Premachandra v. Mitts, 509 F. Supp. 424 (E.D.Mo.1981). On appeal, this court stayed the dismantling of the laboratory pending oral argument, when the parties agreed that the laboratory would be left intact until the MSPB ruled. Premachandra prevailed in the MSPB appeal; the VA was ordered to reverse the termination and pay Premachandra's attorneys' fees in the administrative proceedings. We dismissed the injunction appeal as moot. Premachandra v. Mitts, No. 81-1246 (8th Cir. Oct. 27, 1981) (judgment).

On February 26, 1982, Premachandra asked the district court for an attorneys' fee award in the injunction litigation. The court found that Premachandra was a "prevailing party," and entitled to fees under 42 U.S.C. Sec. 1988 (1982) and section 2412(b). Premachandra v. Mitts, 548 F. Supp. 117 (E.D.Mo.1982). The court decided that section 2412(b) supported an award "because Sec. 1988 explicitly allows the award of fees to 'prevailing parties' in civil rights actions." Id. at 121. The award was affirmed by a divided panel of this court. Premachandra v. Mitts, 727 F.2d 717 (8th Cir.1984). The panel majority commented: "Candor compels us to admit that both parties' interpretations and supporting arguments are persuasive. The problem we face is deciding which one of the two interpretations is more consistent with Congress' intent." Id. at 725. The panel essentially held that section 2412(b) authorizes fee awards in cases that are analogous to actions brought under 42 U.S.C. Sec. 1983 (1982). This is tantamount to holding that section 1988 applies in suits against the United States or its officials based on rights analogous to those protected by the laws specifically listed in section 1988. See Lauritzen v. Lehman, 736 F.2d 550, 553 (9th Cir.1984).

We granted rehearing en banc. Premachandra supports the decisions of the district court and the panel with the following reasoning: Section 1988 allows fees for suits brought under section 1983, which covers violations of the Constitution and federal laws by persons acting under color of state law. The defendants' conduct would have been actionable under section 1983 had they acted under color of state law. Thus, section 2412(b) should be interpreted to make the United States liable for fees when it loses a lawsuit based on conduct that would support an award against a party acting under color of state law. Premachandra maintains that this interpretation is consistent with the statute's remedial purpose and legislative history. A few courts have adopted this reasoning. See Boudin v. Thomas, 732 F.2d 1107, 1114 (2d Cir.1984) (dictum); Trujillo v. Heckler, 587 F. Supp. 928, 931-32 (D.Colo.1984); Clemente v. United States, 568 F. Supp. 1150, 1171 (C.D.Cal.1983).

The VA argues that section 2412(b) is a limited waiver of sovereign immunity and must be strictly construed. It contends that section 2412(b) authorizes fees only "to the same extent that" another fee-shifting statute--in this case section 1988--would make "any other party" liable for fees. Section 1988 would not authorize a fee against "any other party" because there has been no violation of any statute encompassed by section 1988. Because no "other party would be liable" for fees under section 1988, the VA argues that the United States is non-liable "to the same extent." This is the majority view. See Holbrook v. Pitt, 748 F.2d 1168, at 1176-77 (7th Cir.1984); Lauritzen, 736 F.2d 553-59; Saxner v. Benson, 727 F.2d 669, 673 (7th Cir.1984); Northwest Indian Cemetery Protective Association, 589 F. Supp. 921, 924-26 (N.D.Cal.1983); Unification Church v. Immigration & Naturalization Service, 574 F. Supp. 93, 95-96 (D.D.C.1983); Venus v. Goodman, 556 F. Supp. 514, 521-22 (W.D.Wis.1983); United States v. Miscellaneous Pornographic Magazines, 541 F. Supp. 122, 127-29 (N.D.Ill.1982).

To decide this issue, we must look primarily to the statute itself, for we believe that the ordinary meaning of its language expresses the legislative purpose. See Immigration & Naturalization Service v. Phinpathya, 464 U.S. 183, 104 S. Ct. 584, 589, 78 L. Ed. 2d 401 (1984). Section 2412(b) provides:

Unless expressly prohibited by statute, a court may award reasonable fees and expenses of attorneys, in addition to the costs which may be awarded pursuant to subsection (a), to the prevailing party in any civil action brought by or against the United States or any agency and any official of the United States acting in his or her official capacity in any court having jurisdiction of such action. The United States shall be liable for such fees and expenses to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such an award.

Premachandra's claim to fees under the common law was not reached by the district court. Accordingly, we must first examine whether "the terms of any statute * * * specifically" provide for attorneys' fees. The only statute arguably applicable is section 1988, which provides:

In any action or proceeding to enforce a provision of Section 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.

Premachandra's underlying lawsuit was brought against federal officials acting in their individual and official capacities. The action was brought to vindicate his alleged fifth amendment due process rights.1 Section 1983 is the only statute named in section 1988 that provides a remedy for violations of the Constitution. Because Premachandra did not allege that the defendants acted under color of state law, no section 1983 liability could be found. See Ellis v. Blum, 643 F.2d 68, 83 n. 17 (2d Cir.1981). Thus, the action was not brought to "enforce a provision" enumerated in section 1988. Consequently, there is no statute that specifically provides for attorneys' fees in this case, and section 2412(b) does not apply. Sections 1988 and 2412(b) have recently been analyzed under similar circumstances in Lauritzen, 736 F.2d at 553-54, and the same conclusion was reached.

Even if it is accepted that section 2412(b) is facially vague or ambiguous, the next step is not to delve into the "ashcans of the legislative process." C. Curtis, It's Your Law 52 (1954). Rather, resort should be had to a more formal expression of congressional intent--the context in which section 2412(b) appears. See Richards v. United States, 369 U.S. 1, 11, 82 S. Ct. 585, 591-92, 7 L. Ed. 2d 492 (1962); Sierra Club v. Clark, No. 84-5042, slip op. at 7 (8th Cir. Jan. ---, 1984); C. Sands, Statutes and Statutory Construction Sec. 27.02, at 310 (4th ed. 1972). 28 U.S.C. Sec. 2412(d)(1)(A) (1982) provides:

Except as otherwise specifically provided by statute, 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) brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

Adopting Premachandra's interpretation of section 2412(b) could render nugatory the "substantially justified" and "special circumstances" limits in section 2412(d). Many of the civil actions for which fees may be sought under subsection (d) are based on violations of federal law or the Constitution. These actions could support suits under section 1983 but for the fact that they involve officials acting under color of federal rather than state law. If subsection (b) allowed fee awards in cases analogous to section 1983 actions, persons prevailing against the United States in a wide variety of civil suits could receive attorneys' fees in cases where the government's position was substantially justified.2 Consequently, the restrictions in subsection (d) would be circumvented, and congressional intent thwarted. This result should be avoided. See South Eastern Human Development Corp. v. Schweiker, 687 F.2d 1150, 1155 (8th Cir.1982).

Premachandra's response is that the current limitations on section 1983 actions will prevent most parties who sue the government from invoking the "analogous" link to section 1988. It is true now that not every violation of a federal statute will support a section 1983 action. See, e.g., Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 20-21, 101 S. Ct. 2615, 2626-27, 69 L. Ed. 2d 435 (1981); Pennhurst State School v. Halderman, 451 U.S. 1, 15, 101 S. Ct. 1531, 1538-39, 67 L. Ed. 2d 694 (1981); First National Bank v. Marquette National Bank, 636 F.2d 195, 198 (8th Cir.1980), cert. denied, 450 U.S. 1042, 101 S. Ct. 1761, 68 L. Ed. 2d 240 (1981). Our task is not, however, to discern past congressional intent on the basis of current judicial developments. Rather, the focus must be on the law when section 2412 was enacted. In 1980, when this section was passed, section 1983 meant what it says: causes of action could be based on violations of federal law by officials acting under color of state law. In June 1980, the Supreme Court observed that the phrase "and laws" in section 1983 was not encumbered by any modifiers. The Court held that section 1983 was not confined to violations of civil rights or equal protection laws. Maine v. Thiboutot, 448 U.S. 1, 4-8, 100 S. Ct. 2502, 2504-06, 65 L. Ed. 2d 555 (1980). Consequently, when section 2412 was passed, it was conceivable that all federal statutes could support section 1983 actions. See id. at 11, 100 S.Ct. at 2507-08 (Powell, J., dissenting) (interpreting majority opinion to provide an action for violation of "any federal statutory right"). If so, parties could readily bypass the "substantially justified" requirement and evade the other substantive limits in subsection (d) under Premachandra's theory.3 A plain reading of the statute and its context does not support Premachandra's position.

Premachandra's chief argument, that accepted by the panel opinion, is that congressional intent mandates the interpretation of section 2412(b) in a manner that authorizes payment of attorneys' fees here. The Equal Access to Justice Act, 28 U.S.C. Sec. 2412 (1982), originated as S. 265, 96th Cong., 1st Sess., 125 Cong.Rec. 1404 (1979). The bill originally provided that the United States shall be liable for attorneys' fees "in those circumstances where the courts may award such fees in suits involving private parties." It is the amendment of this language, particularly the substitution of the phrase "any other party" for "private parties" that gives rise to Premachandra's argument. He argues that this change was brought about by the testimony of a witness, Armand Derfner, in the legislative hearings. Derfner, of the Lawyer's Committee for Civil Rights Under Law, told a House subcommittee:

There is an area in which a slight drafting modification could carry out what I believe might be the intention of the committee; and that is to put the United States completely on a par as far as the enforcement of important constitutional and statutory rights.

In the Civil Rights Act of 1976 you provided that when someone, whether it be an individual or business, or whatever, sues a State or local government under 42 United States Code, section 1983, to vindicate a constitutional or Federal statutory right, that fees would be available under the Newman v. * * * [Piggie] Park standard. These bills say that the United States should pay fees--in the amendment to 28 United States Code 2412--in those circumstances where the court may award such fees in suits involving private parties.

That doesn't say State or local government, but if the language were amended to read, "in those circumstances where the court may award such fees in suits involving other litigants"; it would achieve that purpose. And I think it would go even further toward putting the United States on a par with other governmental bodies.

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. 100 (1980) [Hereafter Hearings].

Although the subcommittee did not adopt the language advocated by Mr. Derfner, it did change "a private party" to "any other party." This change was reflected in the bill as passed, but no explanation was ever offered for the amendment. Premachandra argues that this sequence reflects Congress's intent to make the federal government liable for attorneys' fees in suits to vindicate violations of the Constitution and federal law.

There is no need to resort to conjecture regarding the legislative history. The language and context of the statute obviate the need to evaluate Derfner's testimony. Nevertheless, we explore this issue to meet the panel's findings and the contention that the result we reach is inconsistent with congressional intent. See TVA v. Hill, 437 U.S. 153, 184, 98 S. Ct. 2279, 2296-97, 57 L. Ed. 2d 117 (1978); Ashley Drew & Northern Railway v. United Transportation Union, 625 F.2d 1357, 1356 (8th Cir.1980).

Courts are reluctant to give dispositive weight to statements made in the process of enacting laws.4 This is particularly true when the proferred meaning derives from the views of a single individual, espoused relatively early in the enacting process. See Allen v. State Board of Elections, 393 U.S. 544, 568-69, 89 S. Ct. 817, 833, 22 L. Ed. 2d 1 (1969). Nevertheless, we recognize that the proximity of the amendment to Derfner's testimony provides a better reason for exploring the testimony than is typically found in statutory construction cases. We decline, however, to adopt the inferences that Premachandra urges.

First, there is no statement in any of the legislative history that links the amendment to the Derfner testimony. Premachandra contends that the absence of discussion concerning the amendment demonstrates unanimous congressional agreement with the Derfner testimony. There is convincing authority to the contrary. See R. Dickerson, The Interpretation and Application of Statutes 181-82 (1975) ("There could hardly be less reputable legislative material than legislative silence.") (footnote omitted); see also American Smelting & Refining Co. v. OSHA, 501 F.2d 504, 510 (8th Cir.1974) (congressional failure to respond to comments in a committee hearing does not necessarily reflect agreement). Notwithstanding the amendment, the Conference Committee observed:

Conference substitute provision reflects the belief that, at a minimum, the United States should be held to the same standards in litigating as private parties. As such, it is consistent with the history of Sec. 2412 which reflects a strong movement by Congress toward placing the Federal government and civil litigants on a completely equal footing. (See generally, Natural Resources Defense Council v. E.P.A., 484 F.2d 1331 (1st Cir.1973).

H.R.Rep. No. 1434, 96th Cong., 2d Sess. 25, reprinted in 1980 U.S.Code Cong. & Ad.News 5003, 5014 (emphasis added). This explanation does not reflect any intent to place the United States and state governments on parity. The NRDC case cited discusses only the relationship between the United States government and a "private litigant." 484 F.2d at 1335. The House Judiciary Committee report contains a similar discussion. H.R.Rep. No. 1418, 96th Cong., 2d Sess. 9, reprinted in 1980 U.S.Code Cong. & Ad.News 4984, 4987.5

Second, there is a disparity between the amendment Derfner offered and the language that Congress adopted. When introduced, the bill contained the phrase "in those circumstances in which the court may award fees in such suits involving private parties." Hearings, supra, at 230-31. Derfner proposed to change "private parties" to "other litigants." Id. at 100. As passed, the bill contained the phrase "to the same extent that any other party would be liable." The change to "other party" may be consistent with Derfner's suggestion. Elimination of the "circumstances" language, however, seems to cut against Premachandra's theory regarding suits "analogous" to section 1983. See Lauritzen, 736 F.2d at 556; Northwest Indian Cemetery Protective Association v. Peterson, 589 F. Supp. 921, 926 (N.D.Cal.1983). The ambiguous origin of the amendment is insufficient to contradict the express language of the statute.6

Finally, the totality of the legislative history demonstrates a congressional reluctance to assign expansive liability for attorneys' fees to the government. This is seen in the "substantially justified" limitation in subsection (d), as well as in discussions of the scope of subsection (b). See H.R.Rep. No. 1418, 96th Cong., 2d Sess. 8, reprinted in 1980 U.S.Code Cong. & Ad.News 4984, 4986 (section 2412(b) applies only in "limited situations").7

This court does not sit as the "self-constituted guardian of the Treasury." Indian Towing Co. v. United States, 350 U.S. 61, 69, 76 S. Ct. 122, 126, 100 L. Ed. 48 (1955). Section 2412(b) is, however, a waiver of sovereign immunity, and it must be strictly construed in the government's favor. See Ruckelshaus v. Sierra Club, 462 U.S. 680, 103 S. Ct. 3274, 3277, 77 L. Ed. 2d 938 (1983); Block v. North Dakota ex rel. Board of University & School Lands, 461 U.S. 273, 103 S. Ct. 1811, 1820, 75 L. Ed. 2d 840 (1983); McMahon v. United States, 342 U.S. 25, 27, 72 S. Ct. 17, 19, 96 L. Ed. 26 (1951).8 The panel's decision acknowledged that both parties' interpretations of the statute are persuasive. 727 F.2d at 725. Congress could have clearly made the United States liable for fees in constitutional deprivation actions but chose not to do so. Id. at 727. A concise amendment to section 2412(b) or a modification of section 1988 could have accomplished this purpose. Failure to take these specific steps casts doubt on whether Congress intended the result urged by Premachandra. See Sierra Club, 103 S. Ct. at 3277 n. 7, 3278 n. 8. The arguments and the conflicting judicial decisions reflect the doubt that shrouds the statute. This uncertainty must be resolved in the government's favor.9

Premachandra urges alternate grounds in support of his motion for attorneys' fees: that the government acted in bad faith and thus is liable for fees under the common law principles codified in section 2412(b); and that the government's actions were not "substantially justifiable" under section 2412(d). The latter ground will not be considered on the merits because it was not properly raised in the district court.10 The former ground was raised but not decided. 548 F. Supp. at 121 n. 1. We think that the district court should have an opportunity to consider whether common law principles justify an award under section 2412(b).

The order granting attorneys' fees is reversed and the case is remanded for determination of whether the VA is liable for attorneys' fees under the common law.

FLOYD R. GIBSON, Senior Circuit Judge, with whom HEANEY, Circuit Judge, joins dissenting.

Relying on the reasoning set forth in the panel opinion, I dissent. See Premachandra v. Mitts, 727 F.2d 717, 723-30 (8th Cir.1984). I write simply to highlight what I perceive to be the weaknesses in the majority opinion. The majority reaches its conclusion first by treating the language of the statute as clear. The language of the statute is far from clear. The cases cited by the majority, see supra at 636 - 37, which represent the varying conclusions reached by other courts, are evidence of the difficulty that the language of the statute presents. When a statute is ambiguous it clearly is appropriate for a court to look to the legislative history in order to discern the Congressional intent behind the statute. See Lambur v. Yates, 148 F.2d 137, 139 (8th Cir.1945). Indeed, a court may be obligated to do so. See Ashley Drew & N. Ry. v. United Transp. Union, 625 F.2d 1357, 1365 (8th Cir.1980). Not only is the majority opinion inconsistent with the Congressional intent behind the Equal Access to Justice Act, but the majority could reach its conclusion only by completely disregarding the legislative history.

Second, the majority argues that Premachandra's interpretation of Sec. 2412(b) could "render nugatory the 'substantially justified' and 'special circumstances' limits in section 2412(d),"1 even though the majority concedes that not every violation of a federal statute will support a Sec. 1983 action. See infra at 638. As noted in the panel opinion Sec. 2412(d) was designed primarily to encourage small businesses to contest the unreasonable exercise of federal agency action. See H.R.Rep. No. 1418 at 9, 10; 1980 U.S.Code Cong. & Ad.News 4988. Accordingly, Sec. 2412(d) was envisioned as a catchall provision, encompassing a broad range of federal regulatory litigation not already covered by existing fee shifting statutes. Id. at 18; 1980 U.S.Code Cong. & Ad.News 4997.

Instead of adopting an interpretation of Sec. 2412(b) which would leave it and Sec. 2412(d) intact, the majority adopts an interpretation of Sec. 2412(b) that, in effect, reads out of the statute the language at issue here. The statute provides as follows:

The United States shall be liable for such fees and expenses to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such an award.

28 U.S.C. Sec. 2312(b). Under the majority's interpretation the United States is not liable to the "same extent that any other party would be liable under ... any statute which specifically provides for such an award," because the federal government does not share the same liability that local governments bear under Sec. 1983 and Sec. 1988 for the unconstitutional acts of their officials. Under the majority's interpretation of Sec. 2412(b), the only time the federal government would be liable for the unconstitutional acts of its officers is when those officers act in concert with a state official and thus meet the state action requirement of Sec. 1983. This circumstance is one so rare as to be virtually non-existent. It is true, as the majority opinion notes, that a waiver of sovereign immunity should be construed strictly. A court should not, however, construe a remedial statute so strictly that, as a practical matter, recovery under the statute becomes unduly restrictive.

Finally, the majority goes to some length to explain why the Derfner testimony and the amendment of the statute subsequent to that testimony were irrelevant. Derfner's remarks centered around the liability of other governmental bodies in civil rights cases, and he suggested a change in the wording of the statute in order to put the federal government "completely on a par as far as the enforcement of important constitutional and statutory rights." 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. 100 (1980). The fact is that the statute was amended following Derfner's testimony, and it was amended in substantial accordance with his suggestion. Thus, it is a mischaracterization to say that there was Congressional silence regarding Derfner's testimony. While true literally, the amendment itself must be seen as a significant response to Derfner's suggestion. If that suggestion was in fact consistent with the intent behind the statute, then one would not suspect the amendment to be surrounded by a great deal of discussion. Indeed, one would expect discussion to have ensued if the amendment had been inconsistent with Congressional intent.

Further, the entire thrust of the legislative history lends significance to Derfner's testimony because his suggestions were consistent with the result Congress was trying to reach. At this point it cannot be disputed that the EAJA was intended to put the federal government and civil litigants on equal footing. See Premachandra, 727 F.2d at 727-28, 729. It is also clear that Congress intended this parity to exist with regard to civil rights actions. See id. at 729. That is, Congress sought to guarantee that citizens would not be deterred from vindicating their rights simply because of the enormous costs involved in civil rights litigation. Yet the majority opinion disregards this intent2 and federal officials are as free under the majority opinion to violate the constitutional rights of citizens as they were before the EAJA was enacted. What then, could have been the purpose of enacting this waiver of sovereign immunity?

It is clear that the majority has made a policy decision regardless of Congressional intent, which is precisely what the federal government has been asking this court to do all along. From the perspective of public policy, the decision may or may not be a good one. That is beside the point, however, because courts of law are not supposed to be in the business of enacting public policy. This is true particularly where the Congress has, as a matter of public policy, decided to enact a law which would deter unconstitutional acts by federal officials and would serve as a basis of recovery for the victims of unconstitutional acts by federal officials acting in their official capacities.

I therefore, would affirm the district court and do respectfully dissent from the majority view in this opinion.