MEMORANDUM AND ORDER
JACKSON, District Judge.
In September, 1982, at the behest of plaintiff Unification Church which sought judicial review of decisions of defendant INS pursuant to section 279 of the Immigration and Nationality Act, 8 U.S.C. § 1329, this Court reversed "INS" denials of the applications of three illegally-resident aliens to remain in the United States to continue to work for it.
Unification Church now asks to be awarded some $75,000 in attorneys' fees, and approximately $1,000 in expenses, as a "prevailing party" under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412.
For the reasons stated below, plaintiff's motion will be denied.
The central objective of the EAJA is to encourage "relatively impecunious private parties" to challenge unreasonable or oppressive governmental behavior by relieving them of the fear of incurring large litigation expenses. Spencer v. NLRB, 229 U.S. App. D.C. 225, 712 F.2d 539, 549 (D.C.Cir.1983). Two provisions of the EAJA would authorize an award of "reasonable fees and expenses of attorneys" against the United States here if the relevant conditions are met: 28 U.S.C. § 2412(d)(1)(A), the so-called "mandatory" subsection, requiring attorneys' fees to be awarded to a successful "party" (as elsewhere defined)
to litigation with the government unless the "position of the United States was substantially justified" or "special circumstances make an award unjust;" and 28 U.S.C. § 2412(b), the "discretionary" counterpart, which allows them to be assessed against the government, in the court's discretion, "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."
To be entitled to a "mandatory" award the would-be "prevailing party" has only to show that it is such and is "eligible" to receive it, and to submit evidence in support of the amount claimed. 28 U.S.C. § 2412(d)(1)(B).
As an organization exempt from taxation under Section 501(c)(3) of the Internal Revenue Code, the church is, of course, relieved of the EAJA's eligibility requirement that a "party" not have a net worth in excess of $5,000,000. 28 U.S.C. § 2412(d)(2)(B). But even tax-exempt entities must not have employed more than 500 individuals at the time the action was filed to be eligible. Id., H.R.Rep. No. 1418, 96th Cong., 2d Sess. 9, reprinted in 1980 U.S.Code Cong. & Ad.News 4953, 4984, 4988. Yet by its own admission Unification Church had some 7,000 members who "devote[d] their full-time services" to performing precisely such church activities as it expected of the individual plaintiffs. (Complaint, para. 6, at 4). It argues that its members are not "employees" for purposes of the EAJA and refers to them as members of a religious family who receive for their ecclesiastical services what amounts to a subsistence allowance.
It says that the EAJA intended employees to be enumerated only for would-be "parties" who prevail in litigation with the government in a "business capacity." See H.R.Rep. No. 1418, supra, at 9, 1980 U.S.Code Cong. & Ad.News at 4988. The argument conveniently ignores the rationale of this entire litigation which turned upon the alien plaintiffs' status as laborers seeking permission to reside in the U.S. to work at jobs for which the Secretary of Labor had certified a dearth of U.S. citizens qualified and available to perform the same work.
Having vindicated their right to remain here as "employees," the church cannot now claim that they and their spiritual brethren are something else when they are counted up to determine whether it may be eligible to recover its attorneys' fees under 28 U.S.C. § 2412(d)(1)(A).
Unification Church also claims attorneys' fees pursuant to EAJA's discretionary subsection, 28 U.S.C. § 2412(b), which permits an award against the United States "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." It authorizes an award of attorneys' fees to parties prevailing against the United States when one of the common law exceptions to the American rule requiring litigants to bear their own legal fees obtains or when a specific fee-shifting statute applies. See Spencer v. NLRB, 712 F.2d at 543-45. Neither the eligibility requirements nor the presence of "substantial justification" for the government's position inhibit discretionary awards.
The parties agree that neither of the exceptions to the American rule -- "bad faith" or "common benefit" -- apply to this litigation. Unification Church can recover, if at all, therefore, under Section 2412(b) only if it can show that it would be entitled to receive them under some other fee-shifting statute, and the statute it relies on is the Civil Rights Attorneys' Fees Awards Act of 1976, 42 U.S.C. § 1988, which permits awards of attorneys' fees in civil rights cases including those brought against state officials under 42 U.S.C. § 1983 for violations of federal constitutional and statutory rights.
Plaintiff contends that this action could have been brought as a section 1983 suit had the offending officials been employed by a state rather than the federal government,
and attorneys' fees would then have been recoverable pursuant to 42 U.S.C. § 1988; therefore, the reasoning continues, since section 2412(b) makes the United States liable for attorneys' fees "to the same extent as any other party," so it must have been intended to permit an award here. See Lauritzen v. Secretary of the Navy, 546 F. Supp. 1221, 1228-29 (C.D.Cal.1982).
The EAJA is, however, like other statutes allowing recovery against the United States, a limited waiver of sovereign immunity and must be narrowly construed. The government's liability is not to be implied when it is not expressly and clearly imposed by Congress. NAACP v. Civiletti, 197 U.S. App. D.C. 259, 609 F.2d 514, 516 (D.C.Cir.1979), cert. denied, 447 U.S. 922, 100 S. Ct. 3012, 65 L. Ed. 2d 1114 (1980); Shannon v. U.S. Dept. of Housing & Urban Development, 577 F.2d 854, 855-56 (3d Cir.), cert. denied, 439 U.S. 1002, 99 S. Ct. 611, 58 L. Ed. 2d 677 (1978). To conclude that Congress intended to subject the United States to an award of attorneys' fees in any case in which federal officials are found to have misapplied federal law because state officials would be liable had they done the same thing would entail a pure implication of legislative intent which Congress was fully capable of expressing had it so meant to do. See Venus v. Goodman, 556 F. Supp. 514, 520-22 (W.D.Wis.1983); United States v. Miscellaneous Pornographic Magazines, 541 F. Supp. 122, 127-29 (N.D.Ill.1982).
Therefore, it is this 28th day of October, 1983,
ORDERED, that plaintiffs' application for attorneys' fees and other expenses is denied.