United States District Court, District of Columbia
March 24, 2000
UNITED STATES OF AMERICA, PLAINTIFF,
CHARLES WADE, ET. AL., DEFENDANTS.
The opinion of the court was delivered by: Lamberth, District Judge.
Pending are third-party intervenors Sheila Gant's, and Shelton,
Angel, Jean, and Dorothy Wade's Petition for Payment of
Attorney's Fees and Expenses pursuant to 28 U.S.C. § 2412(d) of
the Equal Access to Justice Act ("EAJA") and the Hyde Amendment,
Pub.L. No. 105-119, 111 Stat. 2440, 2519 (1997), to which the
Government has filed its Response in Opposition. Having carefully
considered the parties' written arguments, the supporting
documentation before the Court, and the record herein, the Court
will deny petitioners' request for attorney's fees and expenses.
Beginning in 1994, the Washington Metropolitan Police
Department received numerous complaints of drug trafficking in
front of the rowhouse at 647 G Street, S.E., Washington D.C. See
United States v. Wade, 992 F. Supp. 6, 8 (D.D.C. 1997). In
response to these complaints, the Metropolitan Police initiated
an investigation of the residence in October 1994. Id. The
investigation documented the use of 647 G Street as a storage
site for drugs and a locus for drug trafficking. Id. Undercover
police purchased drugs, in front of 647 G Street, on multiple
occasions from seven different individuals, including Charles and
Love Wade. Id. In addition, drugs were recovered at the house
during two police searches in 1995 and 1996. Id.
On December 19, 1996, Charles Wage, Eugene Wade, and their
father, James Wade, among others, were charged with narcotics
conspiracy and related offenses, including keeping a disorderly
house in violation of D.C.Code § 22-2722. Id. at 9. On May 28,
1997, Charles Wade and his brother Eugene Wade pleaded guilty to
conspiracy to distribute and to possess with intent to distribute
cocaine base, in violation of 18 U.S.C. § 371; unlawful
distribution of cocaine base, in violation of D.C.Code § 33-541;
and maintenance of a disorderly house in the District of
Columbia, in violation of D.C.Code § 22-2722. In their September
25, 1997 sentencing, the Court entered an order of abatement
against 647 G Street, S.E., pursuant D.C.Code § 22-2717. On
January 23, 1998, petitioners filed a motion for reconsideration,
which the Court subsequently denied. On appeal, the order of
abatement was vacated. See United States v.
Wade, 152 F.3d 969 (D.C.Cir. 1998). Petitioners, intervening
family members with possible equitable interests in the premises,
then filed the pending application for attorney's fees and
expenses pursuant to the Equal Access to Justice Act and the Hyde
Amendment. They seek an award of $18,316.17.
1. Claim for Attorney's Fees and Expenses Under the Equal Access
to Justice Act
Under sovereign immunity, the Government is free from
attorney's fees liability "except to the extent it has waived its
immunity." Ruckelshaus v. Sierra Club, 463 U.S. 680
, 685, 103
S.Ct. 3274, 77 L.Ed.2d 938, (1983). The Equal Access to Justice
Act ("EAJA") is one such waiver. The EAJA provides, in relevant
a court shall award to a prevailing party other than
the United States fees and other expenses . . .
incurred by that party in any civil action (other
than cases sounding in tort) brought by or against
the United States in any court having jurisdiction of
that action, 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. § 2412(d)(1)(A).
The plain language of the statute clearly limits this waiver of
sovereign immunity to "civil cases other than cases sounding in
tort". Id. Nevertheless, petitioners argue that this waiver
should be extended to criminal cases.
The Court "must `construe waivers of immunity strictly in favor
of the sovereign'". Sierra Club, 463 U.S. at 685, 103 S.Ct.
3274, (quoting McMahon v. United States, 342 U.S. 25, 27, 72
S.Ct. 17, 96 L.Ed. 26 (1951)). Therefore, the Court may not
create a waiver where one is not "unequivocally expressed" by
Congressional intent. United States v. Mitchell, 445 U.S. 535,
538, 100 S.Ct. 1349, 63 L.Ed.2d 607, (1980). Petitioners,
however, wish the Court to construe a waiver for their
third-party intervention in a criminal sentencing proceeding,
arguing that as an "in rem proceeding", the abatement is not a
criminal action. Pet. Motion at 4.
As the Court of Appeals for this Circuit has yet to decide this
issue, petitioners cite cases that involve the awarding of
attorney's fees, under the EAJA, to third-party intervenors in
criminal forfeitures. These cases, however, are neither
authoritative nor on point. Beyond the difference in permanence
between forfeiture and abatement, these cases involve action
under the narrow statutory auspices of 21 U.S.C. § 853(n), which,
according to its legislative history, was considered an
"essentially civil" ancillary proceeding. United States v.
Douglas, 55 F.3d 584, 586 n. 9 (11th Cir. 1995).
Furthermore, this Circuit has held that the EAJA "does not
parse `cases' into tort and non-tort issues but instead provides
a blanket exception for cases that sound in tort." In re
Turner, 14 F.3d 637, 640 (D.C.Cir. 1994). Accordingly, as the
statute's plain language excludes criminal cases, the Court will
not parse criminal cases into criminal and "civil-like"
Petitioners, as third-party intervenors in a criminal matter,
cannot claim attorney's fees under the EAJA, which strictly
limits reimbursement to prevailing parties in civil actions.
Moreover, the EAJA only grants awards where the government is
guilty of bringing forth unjustified litigation. As the Court
will show in its analysis of petitioner's claim under the Hyde
Amendment, the Government was substantially justified in their
position, even if the EAJA were applicable.
2. Claim for Attorney's Fees and Expenses under the Hyde
In the alternative, petitioners raise their argument under the
Hyde Amendment. The Hyde Amendment was enacted precisely to
address cases which fall beyond
the reach of the EAJA, namely criminal cases. As Representative
Hyde stated, in discussing the EAJA and the Hyde Amendment, "now
it occurred to me, if that is good for a civil suit, why not for
a criminal suit?" 143 Cong.Rec. H7786-04, H7791.
The Hyde Amendment provides in pertinent part:
During fiscal year 1998, and in any fiscal year
thereafter, the court, in any criminal case . . . may
award to a prevailing party, other than the United
States, a reasonable attorney's fee and other
litigation expenses, where the court finds that the
position of the United States was vexatious,
frivolous, or in bad faith, unless the court finds
that special circumstances make such an award unjust.
Pub.L. No. 105-119, 111 Stat. 2440, 2519 (1997) (reprinted in
18 U.S.C. § 3006A, historical and statutory notes).
A. Petitioners are not Prevailing Parties within the Language
and Meaning of the Statute
A threshold consideration in the application of the Hyde
Amendment is whether petitioners qualify as a "prevailing party"
under the statute. The Amendment specifically states its
application to criminal cases and prevailing parties in such
cases. "The key language requires a successful criminal
defendant to establish that the position the government took in
the prosecution was `vexatious, frivolous, or in bad faith'."
United States v. Gilbert, 198 F.3d 1293
, 1298 (11th Cir. 1999)
(emphasis added). The statute was enacted for cases where, as
Representative Hyde stated, "Uncles Sam sues you, charges you
with a criminal violation, even gets an indictment and proceeds,
but they are wrong. They are not just wrong, they are willfully
wrong, they are frivolously wrong." 143 Cong.Rec. H7786-04, H7791
(Sept. 24, 1997).
Petitioners are not parties, as such, to the instant criminal
case, much less prevailing parties to the case. The petitioners
prevailed only within the context of their challenge to the
abatement order. The actual parties to the instant criminal case
have not prevailed and were validly charged and pleaded guilty to
the criminal activity. Therefore, the Court finds that the intent
and language of the statute targets prevailing criminal
defendants, not third-party claimants such as the petitioners.
B. The Government's Position was not Vexatious, Frivolous, or
in Bad Faith
Even if petitioners were found to be prevailing parties within
the context of the statute, they still must demonstrate that the
Government acted in bad faith or presented a vexatious or
frivolous argument to be awarded attorney's fees and expenses.
The Hyde Amendment reimburses for attorney's fees and expenses
"pursuant to [EAJA's] procedures and limitations (but not [its]
burden of proof)." 18 U.S.C. § 3006A. As the EAJA requires the
Government to bear the burden of proof, the Hyde Amendment,
alternatively, shifts that burden to the petitioner. See Kuhns
v. Board of Governors, 930 F.2d 39, 43 (D.C.Cir. 1991).
A "vexatious" position is one "without reasonable or probable
cause or excuse". Black's Law Dictionary at 1559 (7th ed. 1999).
The records of the Metropolitan Police Investigation demonstrate
that the residence at 647 G Street, S.E. was a hub of criminal
drug trafficking. These records provided sufficient evidence for
valid search warrants to be issued on at least two occasions.
Moreover, a grand jury indicted the Wade defendants, finding
probable cause for the Government's charges of drug trafficking
and related offenses. This evidence does not support petitioners'
claim that the Government's position in the instant case lacked
"probable cause or excuse".
Petitioners also argue that the Government was vexatious in
Wades' Emergency Motion for a Stay Pending Appeal against the
Court's abatement order. The Government had charged the Wades
with violating D.C.Code § 22-2722 for maintaining a disorderly
house and included the abatement portion of the criminal sentence
as part of Charles and Eugene Wade's plea agreements. An
opposition to the Wades' motion to stay the abatement order was
consistent with and substantiated by the Government's evidence
and position throughout the litigation against the Wade
defendants. As such, the Court does not hold the Government's
position regarding the Emergency Motion to be vexatious within
the meaning of the Hyde Amendment or the general meaning of the
Petitioners also assert that the Government withheld
exculpatory evidence in the form of testimony by AUSA Ramsey
Johnson. Petitioners claim that AUSA Johnson's testimony, before
the D.C. Council on March 26, 1997, urged for an amendment to §
2712 because it "does not apply to `drug-related' nuisances" and
thus revealed that the Government was aware that their position
was unfounded. Pet. Motion at 10. The Court has reviewed the
entirety of AUSA Johnson's testimony beyond the excerpt
petitioners cite in their application for fees. Pet. Motion at 7.
Far from providing evidence to support petitioners' claims
against the abatement order and the Government's position in the
instant criminal case, AUSA Johnson's testimony affirms the
Government's position. He states, "Our proposal also would
declare that a crackhouse is a disorderly house for criminal
purposes. We believe the law already supports this." Testimony of
Principal Assistant U.S. Attorney J. Ramsey Johnson to Committee
on the Judiciary, City Council of the District of Columbia (March
26, 1997). As such, AUSA Johnson's testimony is hardly
"exculpatory evidence", nor does it render the Government's
position vexatious as petitioners claim. Pet. Motion at 7.
Lastly, petitioners claim that the Government's position,
allegedly put forth in "bad faith", renders them deserving of
fees and costs under the Hyde Amendment. Petitioners base their
claim of bad faith on the Government's goal of using the instant
case as a "test case" while they allegedly were negotiating with
petitioners for a settlement. Pet. Motion at 11. The Court
rejects this argument because it is without appropriate
documentation to determine the significance of this claim.
"Unsupported assertions in a brief cannot substitute for evidence
in the record." ACLU v. Barnes, 168 F.3d 423, 436 (11th Cir.
1999). Moreover, such "evidence" can hardly meet the stringent
burden of "bad faith" on the part of the Government.
Petitioners also claim that the Government's position was not
substantially justified and thus was argued in bad faith. As
stated supra, citizen complaints prompted an undercover
investigation of 647 G Street which provided the evidence for the
Government's case. To directly address the source of the citizen
complaints, the Government made the appropriate charge of
maintenance of a disorderly house against the defendants and
argued for an abatement. Far from being a position of bad faith,
the Government, as advocates of the public, took a legal position
in their good faith efforts to rid the community of the drug
trafficking at 647 G Street.
The Government's position argued the finding of a disorderly
house under § 22-2722 to issue an order of abatement under §
22-2717. Although, the Court of Appeals interpreted the
Government's argument as proposing a novel construction of these
local statutes, the Government's position presented a reasonable,
good faith position. In fact, this Court found two cases that
provided authority for the Government's case that § 22-2722 and §
22-2717 support an abatement against a crackhouse found to be a
disorderly house. See Raleigh v. United States, 351 A.2d 510,
514 (D.C. 1976); Harris v. United States, 315 A.2d 569 (D.C.
1974). Unfortunately, however,
the Court of Appeals made no mention of this Court's
interpretation of these cases but only addressed them in the
context of the Government's rationale.
Furthermore, the Hyde Amendment is not intended to "chill the
ardor of prosecutors" in rejecting arguments such as the
Government's statutory position in the instant case. Gilbert,
198 F.3d at 1303 (holding that under the Hyde Amendment "allowing
fees and costs against the Department of Justice when a
conviction is reversed on a legal issue of first impression in
the circuit would chill the ardor of prosecutors and prevent them
from prosecuting with earnestness and vigor.") The Court finds
that petitioners have not met their burden to prove that the
Government acted in bad faith to warrant an award for fees and
For the reasons set forth above, the Court finds that the
petitioners are not entitled to recover attorney's fees and
expenses under the EAJA or the Hyde Amendment. The EAJA is
inapplicable to criminal cases as the instant case, nor have
petitioners shown that the United States' position was not
substantially justified even if the EAJA were applicable. The
Court further concludes that Petitioners have failed to raise a
claim of vexatious and frivolous arguments or bad faith on the
part of the United States to support an award of attorney's fees
and expenses under the Hyde Amendment. An order denying
petitioners' application for attorney's fees and costs will
accompany this Memorandum Opinion.
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