The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
The Southwest Regional Director of the Bureau of Indian Affairs ("BIA"), at the request of the Nambe Pueblo Indian tribe, issued a decision declaring, inter alia, that a management agreement between GasPlus, L.L.C. ("GasPlus") and the Nambe Pueblo Development Corporation was terminated immediately for lack of approval by the Secretary of the Interior, as 25 U.S.C. § 81 ("Section 81") requires. That decision was sustained on administrative review within the Department of the Interior ("DOI") but reversed by this Court. See Gasplus, L.L.C. v. United States Dep't of Interior, 510 F. Supp. 2d 18 (D.D.C. 2007). Although the government initially appealed this Court's decision, it subsequently withdrew that appeal. GasPlus now applies for costs and attorneys' fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. GasPlus argues that in addition to allowable costs under 28 U.S.C. § 2412(a)(1) ("Subsection 2412(a)(1)"), it is entitled to attorneys' fees under 28 U.S.C. § 2412(d)(1)(A) ("Subsection 2412(d)(1)(A)") because it is a prevailing party and the government's position was not substantially justified. GasPlus also urges the Court to award discretionary fees, under 28 U.S.C. § 2412(b) ("Subsection 2412(b)"), as a punitive measure for the government's bad faith.
Pursuant to Subsections 2412(a)(1) and 2412(d)(1)(A), the Court will award GasPlus the allowable costs and fees it incurred in suing the United States but not the costs and fees it incurred in suing government officials in their individual capacities under Bivens*fn1 because those are not claims against the United States and, therefore, not covered by EAJA. See Kreines v. United States, 33 F.3d 1105, 1109 (9th Cir. 1994) ("a Bivens action is not a 'civil action . . . against the United States'" under EAJA). The Court does not find the bad faith necessary to support a further award of discretionary fees under Subsection 2412(b).
Section 81 requires government approval of a contract that is between a non-Indian and an Indian tribe, when the contract encumbers tribal land and is for a term greater than seven years.*fn2 This case deals with its application. For purposes of this decision on costs and attorneys' fees, the Court assumes familiarity with its decision on the merits and provides only a brief summary.
On February 7, 2002, the Regional Director declared that a Management Agreement ("Agreement") between GasPlus and the Nambe Pueblo Development Corporation was subject to Section 81; that the Agreement was immediately terminated because it had not received prior approval by the Secretary of the Interior; and that GasPlus must disgorge all monies received under the Agreement. The Agreement at that time was more than one year old but the Regional Director issued his Decision with no notice to, or hearing from, GasPlus.
On February 28, 2002, GasPlus appealed the Director's decision to the Interior Board of Indian Appeals ("IBIA"). On June 9, 2003, the Assistant Secretary of the BIA issued its decision affirming the Director. GasPlus appealed to this Court, and on September 6, 2007, the Court granted summary judgment to GasPlus. See Gasplus, 510 F. Supp. 2d 18. The government appealed the Court's decision to the D.C. Circuit on November 2, 2007, but then withdrew its appeal on February 13, 2008. The Circuit entered an order dismissing the appeal on March 12, 2008. Thereafter, on April 7, 2008, GasPlus applied for attorneys' fees and costs pursuant to EAJA. See Dkt. # 70.
Costs are governed by Subsection 2412(a)(1) of EAJA. It provides: 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 . . . . A judgment for costs when taxed against the United States shall . . . be limited to reimbursing in whole or in part the prevailing party for the costs incurred by such party in the litigation.
28 U.S.C. § 2412(a)(1). Costs allowable under 28 U.S.C. § 1920 may be recovered against the United States under Subsection 2412(a)(1) to the extent that the costs relate to a litigant's obtaining "the functional equivalent of a final judgment against the government that entitles him to some relief." In re Turner, 14 F.3d 637, 641 (D.C. Cir. 1994).
Mandatory fees are governed by Subsection 2412(d)(1)(A) of EAJA. It provides: a court shall award to a prevailing party . . . fees and other expenses . . . incurred by that party in any civil action . . . 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). Only fees attributable to civil actions brought by or against the United States - defined to include "any agency and any official of the United States acting in his or her official capacity" - may be awarded under Subsection 2412(d)(1)(A). Id. § 2412(d)(2)(C). In addition, the fees are capped at $125 per hour "unless the court determines that an increase in the cost of living or a special factor, such as the ...