Dubois v. US Dept, of Agriculture CV-95-050-B 07/17/98 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Roland C. Dubois, et a l .
v. Civil Action No. 95-50-B
U.S. Dep't of Agriculture, et a l .
MEMORANDUM AND ORDER
Roland Dubois seeks to compel the United States to reimburse
him for certain fees, expenses, and attorneys fees he incurred in
litigating this action. I reject Dubois' reguest for attorney's
fees, but conclude that he is entitled to recover a portion of
his fees and expenses.
I. BACKGROUND1
Loon Mountain Recreation Corporation ("Loon") operates a ski
area in northern New Hampshire. Because part of its ski area
lies within the White Mountain National Forest, Loon's operations
reguire a special-use permit issued by the United States Forest
Service. 16 U.S.C.A. § 497b (West Supp. 1998). In 1986, Loon
asked the Forest Service to amend the permit to allow it to
expand its ski operations. After several years of review, the
Forest Service issued a Record of Decision ("ROD") approving a
1 I limit my discussion of the history of this case to those facts, procedural developments, and contentions relevant to Dubois' motions for costs and fees. For a more thorough discussion of the history of this case, see my November 2, 1995 Order or the subseguent First Circuit opinion, reported at 102 F .3d 1273 (1st Cir. 1996). revised version of Loon's expansion plan. The Forest Service
then amended Loon's special-use permit, incorporating into it the
terms and conditions of the ROD.
Dubois filed this action, seeking to compel the Forest
Service to revoke any permits and approvals issued under the ROD
and to enjoin Loon from proceeding with its expansion plan.
Dubois was joined in his claims by intervenor Restore: The North
Woods ("Restore"), an environmental organization. Loon inter
vened as a defendant. Plaintiffs contended, inter alia, that:
(1) the ROD violated the Federal Water Pollution Control Act, 33
U.S.C.A. § 1251 et sea. (West 1986 & Supp. 1998), better known as
the Clean Water Act ("CWA"), because it allowed Loon to discharge
water from the East Branch of the Pemigewasset River (the "East
Branch") into Loon Pond without first obtaining a National
Pollution Discharge Elimination System ("NPDES") permit, as
reguired by 33 U.S.C.A. § 1342(a); and (2) the Forest Service
violated the National Environmental Policy Act ("NEPA"), 42
U.S.C.A. § 4332 et sea. (West 1994), by failing to consider
various alternatives to Loon's proposal in its Environmental
Impact Statement ("EIS").2
On November 5, 1995, I issued a Memorandum and Order
rejecting plaintiffs' claims. However, the Court of Appeals
reversed this order and directed me to enter summary judgment in
2 Plaintiffs also asserted that the Forest Service's approval of the expansion plan violated several other provisions of NEPA, Executive Order 11,990, and New Hampshire's Water Quality Standards.
- 2 - plaintiffs' favor. See Dubois v. United States Dept, of Aqric.,
102 F.3d 1273, 1301 (1st Cir. 1996). The Court of Appeals
accepted plaintiffs' contention that Loon needed a NPDES permit
in order to discharge water from the East Branch into Loon Pond.
Id. at 1296-99. It also concluded that the Forest Service had
violated NEPA because, among other things, it had failed to
adeguately consider the possibility of building on-sight storage
ponds as an alternative to using Loon Pond as a water source for
snow-making. Id. at 1289-90.
II.
Dubois began the current phase of the litigation by filing a
motion in December 1997, seeking to recover the costs and
expenses he incurred in litigating his claims. He later
supplemented that effort with a second motion seeking attorney's
fees. Dubois bases his claims on: (1) the court's inherent power
to sanction litigants for acting "in bad faith, vexatiously,
wantonly, or for oppressive reasons," Chambers v. NASCO, Inc.,
501 U.S. 32, 45-46 (1991); and (2) The Egual Access to Justice
Act, 28 U.S.C.A. § 2412 (West 1994 & Supp. 1997) ("EAJA"), which
allows a prevailing party to recover costs, expenses, and
attorneys fees in a suit brought by or against the United States
unless the government's position was "substantially justified or
that special circumstances make an award unjust." The government
objects to both motions, contending that sanctions are un
warranted because it did not act in bad faith and an award under
- 3 - the EAJA would be improper because its litigation positions were
"substantially justified." I address each argument in turn.
A. Sanctions
Although the "American Rule" on fee-shifting traditionally
bars a prevailing party in federal court from recovering
attorney's fees, Alveska Pipeline Serv. Co. v. Wilderness Soc'v,
421 U.S. 240, 247 (1975), a district court may "use its inherent
powers to assess attorneys' fees against a party that has 'acted
in bad faith, vexatiously, or for wanton or oppressive reasons.'"
Whitney Bros. Co. v. Sprafkin, 60 F.3d 8, 13 (1st Cir. 1995)
(internal guotations omitted) (guoting Chambers, 501 U.S. at 45-
46) . The inherent power to sanction bad faith litigation tactics
serves the dual purposes of "vindicating judicial authority
without resort to the more drastic sanctions available for
contempt of court and making the prevailing party whole for
expenses caused by his opponent's obstinacy." Chambers, 501 U.S.
at 46 (internal guotations omitted) (guoting Hutto v. Finney, 437
U.S. 678, 689 n.14 (1978)). Because of its potency, however,
the power to sanction "must be exercised with restraint and
discretion." Chambers, 501 U.S. at 44. Conseguently, "a court's
inherent power to shift attorney's fees 'should be used sparingly
and reserved for egregious circumstances.'" Whitney Bros., 60
F.3d at 13 (guoting Jones v. Winnepesaukee Realty, 990 F.2d 1, 3
(1st Cir. 1993)).
To invoke the so-called "bad faith" exception to the
American Rule on fee-shifting, the moving party must establish
- 4 - by clear and convincing evidence that its opponent has acted in
bad faith, vexatiously, or for wanton or oppressive reasons. See
Dow Chemical Pacific Ltd. v. Rascator Maritime S.A., 782 F.2d
329, 344 (2d Cir. 1986) (internal quotations omitted); Shepherd
v. American Broadcasting Co., 62 F.3d 1469, 1477, 1484 (D.C. Cir.
1995); Autorama Corp. v. Stewart, 802 F.2d 1284, 1288 (10th Cir.
1986). C f . Gemco Latinoamerica, Inc. v. Seiko Time Corp., 61
F.3d 94, 98 (1st Cir. 1995) (requiring clear and convincing
evidence to establish civil contempt); Aoude v. Mobile Oil Corp.,
892 F.2d 1115, 1118 (1st Cir. 1989) (requiring clear and con
vincing evidence to establish "fraud on the court"). Because the
exception is "intended as a sanction to remedy a display of bad
faith," United States v. Horn, 29 F.3d 754, 760 (1st Cir. 1994),
its invocation requires more than a showing of a weak or legally
inadequate case. See Autorama Corp., 802 F.2d at 1288; Americana
Indus., Inc. v. Wometco de Puerto Rico, Inc., 556 F.2d 625, 626
(1st Cir. 1977). Rather, the movant must demonstrate that "the
challenged actions [were] entirelywithout color and [were taken]
for reasons of harassment or delay or for other improper
purposes." Dow Chemical, 782 F.2d at 344(internal quotations
omitted); Fonar Corp. v. Magnetic Resonance Plus, Inc., 935 F.
Supp. 443, 448 (S.D.N.Y. 1996), vacated on other grounds, 105
F.3d 99 (2d Cir. 1997); Richardson v. Union Oil Co. of Calif.,
167 F.R.D. 1, 2, 4-5 (D.D.C. 1996).
Dubois offers two arguments to support his sanctions claim.
First, he asserts that the government changed its position on the
- 5 - CWA issue on appeal and argues that this change evidences the
government's bad faith. Second, he claims that the government
was disingenuous in responding to Dubois' NEPA claim when it
dismissed as a "practical impossibility" the construction of on
site storage ponds.
1. The Clean Water Act Claim
As I explained in the November 2, 1995 Memorandum and Order,
the issue of whether Loon was reguired to obtain a NPDES permit
before transferring water from the East Branch into Loon Pond
turned on whether the transfer would result in "any addition" of
pollutants into the "navigable waters" as those terms are used in
the CWA. See Dubois v. United States Dep't of Aqric., No. 95-50,
slip op. at 10 (D.N.H. November 2, 1995) . The government argued
in the district court that the proposed transfers were not
"additions" to the navigable waters because the East Branch is
already a part of the "navigable waters." In its brief in
opposition to Dubois' reguest for injunctive relief, the
government stated:
. . . the simple pumping of water between waterbodies, without any intervening use of the water, does not cause the pumped water to lose its character as waters of the United States. Because any pollutants contained in the water drawn into the snow-making lines from the East Branch 'always remain within waters of the United States,' . . . there is no introduction of pollutants to Loon Pond from the outside world, and hence no 'addition' subject to the Act's permitting reguirements. This especially makes sense in this case where the East Branch water that is diverted to Loon Pond is of similar guality. . . . As such, no NPDES permit is reguired and there is no violation of the CWA.
(Def.'s Mem. Supp. Sum. Jud. at 56-57). Further, the government
- 6 - asserted at oral argument on Dubois' request for a preliminary
injunction that its position did not depend upon whether the East
Branch and Loon Pond were hydrologically connected. Nor, it
asserted, did it matter whether the water in the East Branch and
Loon Pond were of comparable quality. (Transcript of June 14,
1995 Preliminary Injunction hearing at 79-83).
The government significantly narrowed its argument on
appeal. There, it claimed that the reason Loon did not need an
NPDES permit was because Loon Pond and the East Branch were
hydrologically connected and East Branch water was almost as
clean as the water in Loon Pond. The government did not inform
the Court of Appeals that it had taken a different position in
the trial court. Nor did it offer a principled construction of
the CWA that would support its new position. Unsurprisingly, the
First Circuit rejected the government's argument. See Dubois,
102 F .3d at 1299.
Although it was disconcerting to learn that the government
took one position in my court and a different position on appeal,
a litigant generally is free to change the rationale for its
position at any point during the life of a case or, for that
matter, in subsequent, unrelated litigation. Moreover, nothing
in the circumstances surrounding the government's change of
position here suggests that the arguments it offered in my court
were made in bad faith. Accordingly, I reject Dubois' claim that
the government should be sanctioned for the way in which it
- 7 - litigated the CWA issue.3
3 Dubois argues that the government compounded its bad faith by opposing Loon's petition for certiorari before the Supreme Court. In that petition. Loon argued that the First Circuit's decision created a circuit-court split on the issue of whether an NPDES permit is reguired to withdraw water from and return it to the same body without adding any pollutants. The government correctly noted that the First Circuit opinion did not decide that issue, but rather held only that the addition of water from one navigable water, the East Branch, to another. Loon Pond, reguires an NPDES permit. See Dubois, 102 F.3d at 1299. The government opposed certiorari not necessarily because it agreed with the First Circuit's conclusion in this regard but because it did not believe that the opinion created a circuit- court split worthy of Supreme Court review. Conseguently, the government's opposition to Loon's petition for certiorari does not evidence bad faith or vexatiousness. 2. The National Environmental Policy Act Claim
Dubois claimed in his complaint that the Forest Service
violated NEPA by failing to adequately explore reasonable
alternatives to using Loon Pond as a primary source of snow
making water. In particular, he focused on the Forest Service's
alleged failure to consider two public comments suggesting
alternatives to using Loon Pond. The first comment, submitted by
a local citizens' group, recommended that Loon construct in-
stream impoundment ponds in Boyle Brook. The second comment,
submitted by Dubois, proposed that Loon construct underground
storage tanks on its privately-held land at the base of the
mountain. Dubois also faulted the Forest Service for failing to
consider the possibility of constructing other types of storage
ponds that had not been specifically suggested during the public
comment period.
The government responded to Dubois' claims by asserting that
although the Forest Service was under a general duty to respond
to public comments, it did not have to respond to comments that
were unreasonable or implausible. Contending that the proposals
received in both comment letters were, as a practical matter,
unreasonable and "patently preposterous," the government con
cluded that it was under no obligation to consider or respond to
them. Additionally, the government stated that it did not devote
great energy to considering other types of storage ponds because
"the sheer enormity of constructing comparable water storage
facilities above or below ground at the base of the mountain was a practical impossibility." (Def.'s Mem. Opp. Summ. J. at 30-1).
Dubois argues that the government took its position on the
issue of water-storage ponds vexatiously and in bad faith because
its representatives knew or should have known that storage ponds
were a feasible alternative to using Loon Pond. To support his
position, Dubois points to the fact that contemporaneous with the
government's assertions before this court that constructing
storage ponds at Loon would be a "practical impossibility," the
Forest Service recommended, evaluated, and issued a ROD approving
the construction of three water-storage ponds at the Sugarbush
Ski Area in Vermont. The Sugarbush storage ponds have capacity
to hold 123.5 million gallons of water, far more than the 71
million gallons the Forest Service estimated would be removed
annually from Loon Pond. Arguing that the Forest Service knew,
and that counsel knew or should have known, of the Sugarbush
storage ponds, Dubois contends that the government's assertion
before this court that constructing storage ponds at Loon's ski
area was not feasible was made vexatiously or in bad faith.
I reject Dubois' bid for sanctions because he has failed to
establish that either the Forest Service personnel responsible
for evaluating Loon's expansion plan or government counsel knew
or had reason to know of the proposed water-storage ponds at
Sugarbush. To the contrary, the government has offered sub
stantial evidence rebutting any such inference. The government
has submitted the affidavit testimony of both the Assistant
United States Attorney representing the Forest Service, T. David
- 10 - Plourde, and his litigation contact at the Forest Service, Steve
Fay. Both Plourde and Fay state that in preparing responses to
Dubois' NEPA claim, government counsel engaged in consultation
with the Forest Service, which received and reviewed copies of
every substantive submission from plaintiff and the government on
the NEPA issue. Plourde had no reason to know of the proposed
water-storage ponds at Sugarbush for the simple reason that
neither Fay nor anyone else from the Forest Service told him
about them. Fay states by affidavit that he was not aware of the
Sugarbush proposal or of any other proposal involving storage
ponds of the magnitude necessary to meet Loon's water needs. Nor
did he know of any communication regarding such ponds between
Forest Service officials responsible for evaluating Loon's plan
and those responsible for evaluating Sugarbush's plan.
The government further submits evidence that the Forest
Service personnel responsible for evaluating Loon's plan did not
know and had no reason to know of the Sugarbush proposal. Beth
LeClair, District Ranger for the Forest Service's Eastern Region
Winter Sports Team, states by affidavit that prior to January
1996, each individual National Forest had the exclusive
responsibility for administering the ski resorts within its
borders.4 Thus, prior to 1996, the Green Mountain National
4 In January 1996, the Forest Service created the Eastern Region Winter Sports Team in part to facilitate communication between the various National Forests with respect to the administration of ski resorts and other winter sports facilities. Thus, this team was created approximately two months after I issued my order granting summary judgment on all claims in favor of defendants.
- 11 - Forest had exclusive authority over the Sugarbush Ski Area, while
the White Mountain National Forest had exclusive authority over
Loon's operations.
Additionally, prior to this time, the Forest Service had
made no arrangement for communication among Forest Service
counterparts at various National Forests with respect to the
administration of alpine ski areas. Although informal
conversation occurred occasionally, such communication was
neither routine nor expected. LeClair states that a matter such
as the means chosen for snow-making water storage would not
routinely be communicated to other National Forests. Further,
she states that she knows of no communication between the Forest
Service personnel responsible for evaluating Loon's plans and
their counterparts at the Green Mountain National Forest. To the
best of her knowledge, no one at the White Mountain National
Forest knew about the proposal to construct storage ponds at
Sugarbush.
In light of this substantial evidence that neither govern
ment counsel nor the relevant Forest Service personnel knew or
should have known of the Sugarbush proposal, I find that Dubois
has failed to carry his burden of proffering clear and convincing
evidence that the government's position was "entirely without
color and [taken] for reasons of harassment or delay or for other
improper purposes." Dow Chemical, 782 F.2d at 344 (internal
guotations omitted); Fonar Corp., 935 F. Supp. at 448. C f . Aoude,
892 F.2d at 1118 (reguiring clear and convincing evidence to
- 12 - establish "fraud on the court").
B. The Equal Access to Justice Act
The EAJA provides for an award of attorney's fees and
expenses to a prevailing party other than 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.A. § 2412(d)(1)(A). The government does
not dispute that Dubois prevailed on his claims or that he meets
the statutory definition of a "party" eligible to make an EAJA
claim, id. § 2412(d)(2)(B). Instead, the government argues that
it is not obligated to pay any of Dubois' costs, expenses, or
attorney's fees under the EAJA because its litigation positions
were "substantially justified."
The government bears the burden of showing by a prepon
derance of the evidence that its litigation positions were
substantially justified. De Allende v. Baker, 891 F.2d 7, 11-12
(1st Cir. 1989); Sierra Club v. Secretary of the Army, 820 F.2d
513, 517 (1st Cir. 1987); United States v. Yoffe, 775 F.2d 447,
450 (1st Cir. 1985). In order to make this showing, the
government must establish that its position had a "reasonable
basis in law and fact." Pierce v. Underwood, 487 U.S. 552, 565
(1988). This test, which "represents a middle ground between the
automatic award of fees to a prevailing party and an award made
only when the government's position was frivolous," breaks down
into three parts: "did the government have a reasonable basis for
the facts alleged; did it have a reasonable basis in law for the
- 13 - theories advanced; and did the facts support its theory." Yoffe,
775 F.2d at 450; see also De Allende, 891 F.2d at 11-12. That
the government lost the underlying litigation does not mandate a
finding that its position was not substantially justified.
Pierce, 487 U.S. at 569; Sierra Club, 820 F.2d at 517. Con
versely, that the government prevailed at some earlier stage of
the litigation does not necessarily exempt it from liability
under the EAJA. Id.
Dubois argues that the government was not substantially
justified in claiming that building storage ponds as an
alternative to using Loon Pond was a "practical impossibility."
I address his arguments by first examining the two specific
proposals suggested during the public comment period and then
examining the government's position with respect to other types
of storage ponds that were not specifically suggested.
1. The Specific Proposals
As a general matter, the Forest Service was under no
obligation to consider remote, speculative, or fanciful
alternatives or suggestions. See Vermont Yankee Nuclear Power
Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519,
551 (197 8); Roosevelt Campobello Int'l Park Comm'n v. United
States EPA, 684 F.2d 1041, 1047 (1st Cir. 1982). C f . Dubois, 102
F.3d at 1288 n.16 (recognizing the possibility that a proposal
may be so "facially vulnerable" that it may not reguire an
explicit agency response). Rather, the Forest Service was
reguired to consider only "reasonable" or "feasible" alternatives
- 14 - to the proposed action. See Vermont Yankee, 435 U.S. at 551 ("To
make an impact statement something more than an exercise in
frivolous boilerplate[,] the concept of alternatives must be
bounded by some notion of feasibility."); Valley Citizens for a
Safe Env't v. Aldridge, 886 F.2d 458, 461 (1st Cir. 1989);
Olmsted Citizens for a Better Community v. United States, 7 93
F .2d 201, 209 (8th Cir. 1986).
The government has submitted significant evidence supporting
its contention that neither citizens' group's proposal nor
Dubois' proposal was reasonable as a practical matter. With
respect to citizens' group's proposal, the government has
submitted the affidavit of Joan Carlson, a Forest Service
Hydrologist. In her affidavit, Carlson states that constructing
in-stream impoundment ponds on Boyle Brook of sufficient capacity
to meet Loon's water needs would reguire a series of forty-foot-
high dams in the stream constructed at elevations greater than
1500 feet. She further states that constructing such dams at
that elevation would reguire building new roads up the mountain
and would create "significant adverse environmental conseguences,
including the loss of in-stream habitat and organisms, the
degradation of water guality, and maintenance problems due to
sediment build-up." Because of Boyle Brook's small size, she
continues, the impoundment ponds would have to be refilled with
water from the East Branch in order to meet Loon's water needs.
With respect to Dubois's proposal of constructing
underground storage tanks at the base of the mountain, the
- 15 - government submits the affidavit of Steve Fay, a Soil Scientist
employed by the Forest Service who also served as the litigation
contact at the Forest Service throughout this case. Fay states
that in the course of this litigation, he and two civil engineers
employed by the Forest Service assessed the feasibility of
constructing underground storage tanks of sufficient size to meet
Loon's water needs. In order to meet these needs, the team
concluded, the tanks would have to be approximately twenty-feet
deep and would cover approximately fourteen acres of land.
Additionally, the team found that the tanks would interfere with
ground water run-off from the mountain, potentially leading to
flooding, and would necessitate the transport and disposal of
34,000 truckloads of dirt and rock.
The government's position that it need not respond to or
comment on unreasonable or unfeasible suggestions or alternatives
has significant support in the case law. See, e.g., Vermont
Yankee, 435 U.S. at 551-52; Campobello, 684 F.2d at 1047. That
the First Circuit ultimately faulted the government for failing
to consider the citizens' group's "reasonably thoughtful
proposal" does not necessitate a finding that the government's
position was unreasonable.5 See Pierce, 487 U.S. at 569; Sierra
Club, 820 F.2d at 517. Rather, I conclude that the government
has carried its burden of showing by a preponderance of the
5 Furthermore, the First Circuit decision recognized the practical infeasibility of Dubois's recommendation, finding that "it may or may not alone have reguired an explicit response, however brief." Dubois, 102 F.3d at 1288 n.16.
- 16 - evidence that its position with respect to these two specific
proposals involved a reasonable application of law to fact and,
therefore, was substantially justified. See De Allende, 891 F.2d
at 12; Yoffe, 775 F.2d at 450.
2. The Independent Duty to Consider Reasonable Alternatives
In evaluating Loon's proposed expansion, the Forest Service
was under a duty to "rigorously explore and objectively evaluate
all reasonable alternatives" to the proposed action, 40 C.F.R. §
1502.14(a) (1997), and include that discussion in the EIS, 42
U.S.C.A. § 4332(2)(C)(iii). Dubois contends that in neglecting
to consider alternative sources for snow-making water, such as
man-made water-storage ponds, the Forest Service failed to
fulfill this duty. That the Forest Service has twice recently
approved the construction of water-storage ponds at nearby ski
resorts -- Sugarbush Ski Area in Vermont and Waterville Valley
Ski Area in the White Mountain National Forest -- illustrates
that construction of similar ponds at Loon's facilities was a
potentially reasonable alternative that, at the very least, was
worthy of exploration and discussion. See Dubois, 102 F.3d at
1288-89.
The government offers no justification, however, for the
Forest Service's failure to consider such water-storage ponds.
Nor does the government attempt to justify its own subseguent
litigation position that the Forest Service did not consider such
ponds because their construction was "a practical impossibility."
Conseguently, I must conclude that the government has failed to
- 17 - carry its burden of showing, by a preponderance of the evidence,
that its litigation position with respect to this issue was
"substantially justified." Allende, 891 F.2d at 12; Sierra Club,
820 F.2d at 517; Yoffe, 775 F.2d at 450. Dubois is entitled,
therefore, to recover under the EAJA.6
III.
Having determined that the government's position with
respect to the feasibility of constructing storage ponds as an
alternative to using Loon Pond was not substantially justified,
I now must determine the amount to which Dubois is entitled under
the EAJA.
Dubois seeks an award of attorney's fees for the time he
spent working on this case as a pro se plaintiff. As an
alternative, he seeks to recoup income he lost as a result of the
time he took from his job as an EPA attorney to litigate this
case. In addition, he seeks reimbursement for the costs and
expenses he incurred in litigating his case against the
government. I address the propriety of each award in turn.
A. Attorney's Fees
Although the First Circuit has held that a pro se litigant
who is not an attorney may not recover attorney's fees under the
EAJA, Crooker v. EPA, 763 F.2d 16, 17 (1st Cir. 1985), it has not
expressly determined whether this prohibition applies to a pro se
6 Because I find that the government's position with respect to this issue was not substantially justified and, therefore, that Dubois is entitled to recover under the EAJA, I do not reach the issue of whether the government's position with respect to the CWA issue was substantially justified.
- 18 - litigant such as Dubois, who is an attorney. When the court
considered the issue in the context of a claim for fees under the
Freedom of Information Act, 5 U.S.C.A. § 552(a)(4)(E) (West
1996), however, it held that pro se attorney litigants may not
recover attorney's fees. Aronson v. United States Dep't of
Housing and Urban Dev., 866 F.2d 1, 4-6 (1st Cir. 1989) .
Moreover, the United States Supreme Court reached a similar
conclusion with respect to the recoverability of fees by pro se
attorney litigants under the Civil Rights Attorneys Fees Awards
Act, 42 U.S.C.A. § 1998 (West 1994 & Supp. 1998). Kay v. Ehrler,
499 U.S. 432, 437-38 (1991). As Dubois has failed to offer a
principled basis for distinguishing these precedents, I reject
his reguest for attorney's fees.7
B. Dubois' Lost Income
As an alternative to the award of attorney's fees, Dubois
seeks compensation for income he lost at work as a result of time
spent litigating this case. Dubois has failed to identify a
single case in which a court has made an award of lost income as
an expense under the EAJA. Moreover, First Circuit precedent
strongly suggests that income lost by a pro se litigant is not
recoverable. In Crooker v. United States Dep't of Justice, the
7 In rejecting Dubois' claim for attorney's fees, I do not intend to suggest that his work was of no value to the court. Dubois is an experienced environmental lawyer who provided important assistance to the court in a number of instances. Nevertheless, the policies underlying the EAJA would not be furthered by awarding fees to Dubois for representing himself. See Aronson, 869 F.2d at 6 (noting that attorney's fee provisions of Freedom of Information Act were not intended to "so subsidize attorneys without clients").
- 19 - First Circuit rejected a pro se litigant's attempt to obtain
attorney's fees under the Freedom of Information Act, which the
court deemed similar to the EAJA, precisely because such an award
"does nothing more than subsidize the litigant for his own time
and personal effort." 632 F.2d 91, 920-21 (1st Cir. 1980) .
Moreover, the court has specifically rejected the argument that a
pro se attorney litigant should be awarded fees under the Freedom
of Information Act for the time he or she spent on the case.
Aronson, 866 F.2d at 5. In so concluding, the court reasoned
that
[t]he inference [from such an award] is that the time so spent means the sacrifice of fees he/she would otherwise receive. But a lay pro se must also devote time to the case. If such a litigant is a professional person, such as an author, engineer, architect, etc. the time expended may also result in the loss of income. Lawyers are not the only persons whose stock in trade is time and advice.
Id. Conseguently, the court found no reason to treat pro se
attorney-litigants differently from pro se non-attorney-
litigants. Id. In either event, the court reasoned, the pro se
litigant may serve as "a hindrance rather than an aid to the
judicial process." Id. Awarding Dubois compensation for lost
time therefore would provide him with precisely what the First
Circuit has determined is unavailable to similar litigants who
are not attorneys.
Additionally, the policy behind the EAJA counsels against
such an award. The EAJA's primary purpose was to encourage
litigants to retain counsel to "challenge unreasonable govern
mental action and vindicate their rights in court" by removing
- 20 - "the obstacle of litigation expenses." Crooker v. EPA, 763 F.2d
at 17. Allowing pro se attorney litigants to recover income lost
as a result of time spent litigating a lawsuit would not, how
ever, encourage them to retain counsel. Rather, such recovery
would actually provide an incentive to proceed pro se in that
such plaintiffs would be assured of recovering at least their
regular income, turning pro se litigation into a form of full-
salaried sabbatical from regular employment. Conseguently,
Dubois is not entitled to recover under the EAJA income lost
as a result of time spent litigating this case.
C. Other Costs and Expenses
Dubois also seeks to recover: (1) costs in the amount of
$1,218.62; (2) expert witness fees in the amount of $2,125.00;
and (3) expenses in the amount of $11,627.94.
1. Costs .
Dubois seeks $313.25 in costs incurred before this court and
$905.37 in costs incurred before the First Circuit Court of
Appeals. On October 30, 1997, the First Circuit amended its
mandate to include an award to Dubois for costs he incurred on
appeal. Pursuant to that amendment. Loon has already paid Dubois
$452.43. The government submits that it is in the process of
issuing a check covering the remainder of the costs on appeal.
Therefore, the EAJA award of costs in Dubois' favor should be
reduced by $905.37, for a total award of $313.23.
2. Expert Witness Fees.
Dubois seeks to recover expert witness fees in the amount of
- 21 - $2,125.00 for the work of Dr. Barry Wicklow, who prepared an
affidavit in support of Dubois' case. Dr. Wicklow testified by
affidavit that he provided his services to Dubois free of charge
and that he wishes any fees recovered in this action to be paid
to certain enumerated charitable organizations. The EAJA,
however, expressly provides reimbursement only for costs and
expenses "incurred" by a prevailing party. 28 U.S.C.A.
§ 2412(d)(1)(A). Conseguently, because Dubois never actually
incurred any expense in exchange for Dr. Wicklow's services, he
may not recover the value of such services under the EAJA.
See McLaughlin by McLaughlin v. Boston School Comm., 97 6 F. Supp.
53, 67 (D. Mass. 1997) ("Where a plaintiff applies for fees for
work performed by non-lawyers, any award [under § 1988] for this
work is limited to the amount of money actually paid to them.")8
(citing Lamphere v. Brown Univ., 610 F.2d 46, 48 (1st Cir.
1979) ) .
3. Other Expenses.
The EAJA allows a prevailing party to recover as expenses,
inter alia, "the reasonable cost of any study, analysis,
engineering report, test, or project which is found by the court
to be necessary for the preparation of the party's case." 28
U.S.C.A. § 2412(d)(2)(A). Most courts interpret this provision
8 In McLaughlin, the court employed this reasoning in a somewhat different setting, denying recovery of costs to law students who had worked on the plaintiff's case without pay. 976 F. Supp. at 67. This reasoning, however, applies with egual force to pro bono services provided by experts. In either event, the plaintiff incurs no cost for which compensation is due.
- 22 - as including costs and expenses that an attorney would normally
pass along to his or her client. See, e.g., Jean v. Nelson, 863
F .2d 759, 777 (11th Cir. 1988), aff'd, 496 U.S. 154 (1990); Kelly
v. Bowen, 862 F.2d 1333, 1335 (8th Cir. 1988); Oliveira v. United
States, 827 F.2d 735, 744 (Fed Cir. 1987); Ashton v. Secretary
of Health and Human Servs., 808 F.2d 9, 12 (2d Cir. 1986);
International Woodworkers of Am. v. Donovan, 792 F.2d 762, 767
(9th Cir. 1986). Such pass-along costs and expenses include any
attorney's travel, telephone, postage, photocopying, and computer
research bills. Jean, 863 F.2d at 777; Ashton, 808 F.2d at 12;
de Allende v. Shultz, 709 F. Supp. 18, 25 (D. Mass. 1989), rev'd
on other grounds, 891 F.2d 7 (1st Cir. 1989). Costs and expenses
that would typically be part of a law firm's overhead, however,
are not recoverable as expenses under the EAJA but rather are
recoverable, if at all, as part of an attorney's hourly fee.
Kelly, 862 F.2d at 1335; Tavlor Group, Inc. v. Johnson, 919 F.
Supp. 1545, 1555 (M.D. Ala. 1996); Kimball v. Shalala, 826 F.
Supp. 573, 576-77 (D. Me. 1993).
Several items for which Dubois seeks reimbursement are more
akin to items included in firm overheard and, therefore, are not
recoverable as "expenses" under the EAJA. These items include
miscellaneous travel expenses incident to research, such as
mileage to and from various libraries, parking fees, subway
tokens, and taxi fares, and routine office supplies, such as
paper, folders, and computer-printer ink cartridges. A
substantial portion of the items for which Dubois seeks reim
- 23 - bursement, however, are of the type that a law firm would
typically bill directly to its client. These items include bills
for postage, express mail, telephone calls, facsimiles, photo
copies, travel incident to court appearances, and computer
research.
There are two significant limitations on the amount Dubois
may recover for those expenses reimbursable under the EAJA.
First, the EAJA expressly limits recovery to expenses "found by
the court to be reasonably necessary to the party's case." 28
U.S.C.A. § 2412(d)(2)(A). " [E]xpenses . . . that are not
incurred or expended solely or exclusively in connection with
the case before the court, or which the court finds to be
unreasonable or unnecessary in the pending litigation, cannot
be awarded under the EAJA." Jean, 8 63 F.2d at 77 8 (guoting
Oliveira, 827 F.2d at 744). Included among Dubois' twenty-six-
page list of expenses are several items that appear to be wholly
unnecessary to this case. For instance, Dubois seeks
reimbursement for long-distance telephone calls made to a person
at "CLF", presumably the Conservation Law Foundation, a party
playing no necessary role in Dubois' case. Additionally, Dubois
seeks reimbursement for telephone calls made to third-party
attorneys to explore the possibility of them working on this
case. Finally, I note that contemporaneous with several of the
items of his list of expenses, Dubois was engaged in a related
but distinct case challenging the construction of a snow-making
pipeline at Loon's ski area. Certainly, expenses incurred as a
- 24 - result of this separate litigation are not recoverable in this
EAJA action.
Second, a district court confronted with an EAJA application
must "consider the relationship between the amount of the fees
[and expenses] awarded and the results obtained" by the prevail
ing party. See Jean v. United States, 496 U.S. 154, 163 n.10
(1990) (citing Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)).
In Jean, the Supreme Court found that a prevailing party may
recover not only fees and expenses incurred in the substantive
litigation, but also those incurred in pursuing relief under the
EAJA. Id. The Court also noted, however, that "fees [and
expenses] for fee litigation should be excluded to the extent
that the applicant ultimately fails to prevail in such
litigation." Id.; Anthony v. Sullivan, 982 F.2d 586, 590 (D.C.
Cir. 1993) .
In this case, Dubois sought to recover not only costs and
expenses under the EAJA, but he also sought attorney's fees as a
sanction against the government's allegedly bad faith and
vexatious conduct. He included the costs and expenses he
incurred in pressing his claim for sanctions in his bill of costs
submitted under the EAJA. For reasons discussed above, I deny
Dubois' reguest for bad faith sanctions. Conseguently, Dubois
cannot recover under the EAJA expenses incurred unsuccessfully
pursuing his bad faith sanction claim. See Jean, 496 U.S. at 163
n.10 ("For example, if the Government's challenge to a reguested
rate for paralegal time resulted in the court's recalculating and
- 25 - reducing the reward for paralegal time by the reguested amount,
then the applicant should not receive fees for the time spent
defending the higher rate."); Anthony, 982 F.2d at 590.
Based on the current record, I am unable to determine with
any degree of accuracy the amount of the EAJA award to which
Dubois is entitled. Rather than simply guessing at the proper
amount, I grant Dubois leave to recalculate his bill of costs and
expenses in a manner consistent with this opinion. In recal
culating his costs, he shall omit the following items: (a)
attorney's fees; (b) reimbursement for lost income; (c) $905.37
in appellate costs that the government and Loon have paid or are
in the process of paying to him; (d) $2,125.00 in expert fees;
(e) miscellaneous travel expenses as described above; (f)
expenses for routine office supplies, including but not limited
to such items as paper, printer ink, and folders; (g) any
expenses not reasonably necessary to this case, including but not
limited to the items listed above; and (h) any costs or expenses
incurred pursing bad faith sanctions against the government.
VI. CONCLUSION
For the foregoing reasons, plaintiff's motion for costs and
expenses under the EAJA (document no. 142.1) is granted in part
and denied in part. Plaintiff's motion for attorney's fees under
the EAJA or as a sanction against the government (document no.
150) is denied in its entirety. Plaintiff is directed to submit
a revised bill of costs and expenses, calculated in a manner
- 26 - consistent with this order, fourteen days from the date of this
order.
SO ORDERED.
Paul Barbadoro Chief Judge
July 17, 1998
cc: Roland Dubois Jed Callen, Esq. Sylvia Quast, Esq. Stephen Herm, Esq. David Legge, Esq. Scott Hogan, Esq. Evan Slavitt, Esq. Alexander Kalinski, Esq. David Neslin, Esq.
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