concurring in part and dissenting in part.
I concur in the court’s judgment insofar as it affirms the judgment of the district court. I also concur in that portion of the opinion which adopts the reasoning of the district court. However, I respectfully dissent from the award of attorney’s fees to the defendant.
In dealing with a pro se litigant, the line between bad faith and mere ineptitude is often difficult to ascertain. Here, I am unable to conclude with certainty that this case presents the sort of frivolous, vexatious appeal which would warrant the imposition of attorney’s fees.