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U.S. v. WADE

March 24, 2000


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.

I. Background

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.

II. Discussion

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 part, that:

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 ...

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