aff'd, 766 F.2d 1227 (8th Cir.1985) ("even where a court’s rejection of a novel legal argument suggests that the Government’s position was not 'substantially justified’ the advancement of a novel legal argument might justify invocation of the ‘special circumstances’ exception to fees liability”). But see Traveler Trading Co. v. United States, 713 F.Supp. 409, 413 (Ct. Int. Trade 1989) (treating determination that the government's position was not substantially justified as answering whether there was a novel but credible position). 3 . This is not a case of a party other than the debtor having been willing to undertake the litigation on behalf of the debtor without charge to the debtor. See In United States v. 27.09 Acres of Land in Town of Harrison, 43 F.3d 769, 775 (2d Cir.1994) (<HOLDING>) (internal quotation marks and citation
holding that ajlthough the  action is nominally one against individual defendants the acts complained of consist of actions taken by defendants in their official capacity as agents of the united states and that under such circumstances the action is in fact one against the united states holding under special circumstances exception that where one or more ineligible parties are willing and able to pursue the litigation against the united states the parties eligible for eaja fees should not be able to take a free ride through the judicial process at the governments expense holding that the commandant of the united states disciplinary barracks and the united states are identical parties holding that the governments litigation position which allegedly prolonged the litigation cannot be a special factor warranting an increase above the statutorily allowed 75 per hour under the eaja holding that under the sixth amendment to the united states constitution before imposing an obligation to reimburse the state the court must make a finding that the defendant is or will be able to pay the reimbursement amount ordered