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 ...