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,

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

(a); and (2) the Forest Service

violated the National Environmental Policy Act ("NEPA"),

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.,

(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.

. 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.

.

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.,

(1991); and (2) The Egual Access to Justice

Act,

(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,

(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,

(1st Cir. 1995)

(internal guotations omitted) (guoting Chambers,

-

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,

(internal guotations omitted) (guoting Hutto v. Finney,

, 689 n.14 (1978)). Because of its potency, however,

the power to sanction "must be exercised with restraint and

discretion." Chambers,

. Conseguently, "a court's

inherent power to shift attorney's fees 'should be used sparingly

and reserved for egregious circumstances.'" Whitney Bros.,

(guoting Jones v. Winnepesaukee Realty,

(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.,

(2d Cir. 1986) (internal quotations omitted); Shepherd

v. American Broadcasting Co.,

(D.C. Cir.

1995); Autorama Corp. v. Stewart,

(10th Cir.

1986). C f . Gemco Latinoamerica, Inc. v. Seiko Time Corp.,

(1st Cir. 1995) (requiring clear and convincing

evidence to establish civil contempt); Aoude v. Mobile Oil Corp.,

(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,

(1st Cir. 1994),

its invocation requires more than a showing of a weak or legally

inadequate case. See Autorama Corp.,

; Americana

Indus., Inc. v. Wometco de Puerto Rico, Inc.,

(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,

(internal quotations

omitted); Fonar Corp. v. Magnetic Resonance Plus, Inc.,

(S.D.N.Y. 1996), vacated on other grounds,

(2d Cir. 1997); Richardson v. Union Oil Co. of Calif.,

(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,

. 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,

(internal

guotations omitted); Fonar Corp.,

. C f . Aoude,

(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."

(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,

§ 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,

(1st Cir. 1989); Sierra Club v. Secretary of the Army,

(1st Cir. 1987); United States v. Yoffe,

(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,

(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,

; see also De Allende,

. That

the government lost the underlying litigation does not mandate a

finding that its position was not substantially justified.

Pierce,

; Sierra Club,

. Con­

versely, that the government prevailed at some earlier stage of

the litigation does not necessarily exempt it from liability

under the EAJA.

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.,

(197 8); Roosevelt Campobello Int'l Park Comm'n v. United

States EPA,

, 1047 (1st Cir. 1982). C f . Dubois,

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,

("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,

(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,

; 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,

; Sierra

Club,

. 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,

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,

; Yoffe,

.

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,

(a) (1997), and include that discussion in the EIS,

(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,

.

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,

; Sierra Club,

; Yoffe,

. 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,

(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,

(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.,

(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,

(West 1994 & Supp. 1998). Kay v. Ehrler,

(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."

(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,

. 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.

Conseguently, the court found no reason to treat pro se

attorney-litigants differently from pro se non-attorney-

litigants.

In either event, the court reasoned, the pro se

litigant may serve as "a hindrance rather than an aid to the

judicial process."

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,

. 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.

(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

(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.,

(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."

(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,

(1990); Kelly

v. Bowen,

(8th Cir. 1988); Oliveira v. United

States,

(Fed Cir. 1987); Ashton v. Secretary

of Health and Human Servs.,

(2d Cir. 1986);

International Woodworkers of Am. v. Donovan,

(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,

;

de Allende v. Shultz,

(D. Mass. 1989), rev'd

on other grounds,

(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,

; Tavlor Group, Inc. v. Johnson,

(M.D. Ala. 1996); Kimball v. Shalala,

(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."

(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,

). 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,

, 163 n.10

(1990) (citing Hensley v. Eckerhart,

(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.

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,

(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,

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,

.

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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