Hexamer v. Foreness ( 1993 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 91-5115
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MAURY HEXAMER,
Plaintiff-Appellant,
versus
PATRICK FORENESS, ET AL.,
Defendants-Appellees.
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Appeal from the United States District Court for the
Eastern District of Texas
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(July 27, 1993)
Before WISDOM, JOLLY, and DeMOSS, Circuit Judges.
BY THE COURT:
Following our ruling in her favor, Maury Hexamer filed a
motion for attorney's fees pursuant to the Equal Justice Act, 28
U.S.C. § 2412.1 We denied her motion in an unpublished order.
Hexamer now asks us to reconsider.
Under the Equal Access to Justice Act, a party that prevails
against the United States is generally entitled to attorney's fees
unless the United States' position was "substantially justified" or
"special circumstances make an award unjust." 28 U.S.C. §
2412(d)(1)(A). Although Hexamer is a prevailing party, she is not
1
For our original decision, see Hexamer v Foreness, 981 F2d
821 (5th Cir. 1993).
entitled to attorney's fees for three reasons. First, Hexamer
represented herself pro se and attorney's fees simply are not
available to pro se litigants under the Equal Access to Justice
Act. See Demarest v. Manspeaker, 948 F.2d 655 (10th Cir. 1991);
Sommer v. Sullivan, 898 F.2d 895 (2d Cir. 1990); Naekel v.
Department of Transportation, 845 F.2d 976, 981 (Fed. Cir. 1988);
Merrell v. Block, 809 F.2d 639 (9th Cir. 1987); Crooker v. EPA, 763
F.2d 16, 17 (1st Cir. 1985).
Second, Hexamer is not entitled to attorney's fees because the
government's position was "substantially justified." Although the
government did not prevail in this action, that does not mean that
its position was not "substantially justified." The government's
position is substantially justified if it has a "reasonable basis
in law and fact." Pierce v. Underwood, 487 U.S. 552, 553, 108
S. Ct. 2541, 2543 (1988). The government made reasonable,
supportable arguments and, at all times, acted in good faith. We
find that the government's position was clearly "substantially
justified."
Finally, assuming that Hexamer was otherwise justified in
claiming attorney fees, we would deny her request for fees because
she did not adequately document the time she spent. Although
Hexamer did submit a handwritten list of dates she worked on the
case and the amount of time she allegedly spent on those days, she
did not attempt to explain how she spent this time. We cannot
approve an application for attorney's fees under the Equal Access
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to Justice Act unless we have some idea of how the attorney
justified his or her time. Obviously, the documentation does not
have to be perfect, but the documentation we have in this case is
plainly insufficient.
Any one of the foregoing reasons requires us to reject
Hexamer's claims. Therefore, Hexamer's motion to reconsider our
decision denying her attorney's fees under the Equal Access to
Justice Act is
D E N I E D.
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