US v. Bunn

• Citation: 215 F.3d 430
• Decision Date: 06 April 2000
• Docket Number: No. 99-2110,DEFENDANT-APPELLAN,V,PLAINTIFF-APPELLE,AND,99-2110
• Parties: (4th Cir. 2000) IN RE: 1997 GRAND JURY UNITED STATES OF AMERICA,KERMIT BUNN,TRI STATE ASPHALT CORPORATION, PARTY IN INTEREST. . Argued:
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 430

215 F.3d 430 (4th Cir. 2000)

IN RE: 1997 GRAND JURY

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

V.

KERMIT BUNN, DEFENDANT-APPELLANT, AND TRI STATE ASPHALT CORPORATION, PARTY IN INTEREST.

U.S. Court of Appeals, Fourth Circuit.

No. 99-2110.

Argued: April 6, 2000.

June 15, 2000.

Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling.

W. Craig Broadwater, District Judge. (CA-97-10-5-MC).

Counsel Argued: William Anthony Kolibash, Phillips, Gardill, Kaiser & Altmeyer, Wheeling, West Virginia, for Appellant. David Earl Godwin, United States Attorney, Clarksburg, West Virginia, for Appellee.

Before Luttig and Williams, Circuit Judges, and Gerald Bruce Lee, United States District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed by published opinion. Judge Williams wrote the opinion, in which Judge Luttig and Judge Lee joined.

OPINION

Williams, Circuit Judge

Kermit Bunn filed an application in the United States District Court for the Northern District of West Virginia for attorney's fees and expenses pursuant to the Hyde Amendment after the United States (the Government) voluntarily dismissed without prejudice contempt proceedings against him, which were grounded upon allegations that he threatened a grand jury. The district court denied Bunn's application, concluding that the Government's prosecution was not vexatious, frivolous, or in bad faith. For the reasons that follow, we affirm the district court's denial of Bunn's application for fees and expenses under the Hyde Amendment.

I.

On December 17, 1998, Kermit Bunn appeared before a federal grand jury in response to a subpoena requiring him to authenticate certain records from his corporation, Bunn Construction of Ohio, Inc. At the grand jury hearing, Bunn initially refused to take the oath because he believed that the Assistant U.S. Attorney, Michael Stein, was not authorized to practice law in the Northern District of West Virginia. Bunn, who apparently had various papers that he wanted to present to the grand jury relating to rules of the practice of law in West Virginia, appeared to threaten the grand jury by stating, "I have legal paperwork on all of you. You need to go get legal counsel."¹ (J.A. at 40 (emphasis added).) Following this statement and his refusal to take the oath, the district court held a hearing on Stein's ability to practice law in West Virginia. The district court denied Bunn's motion to disqualify Stein and ordered Bunn to take the oath, which he did. Bunn then presented the documents to the grand jury. Afterwards, apparently at the prompting of the grand jury foreman, the district court considered whether to hold Bunn in contempt based upon Bunn's apparent threat to the grand jury. Stein called the court reporter to the stand, who testified that Bunn's statement was, "I have legal paperwork on all of you. You need to go get legal counsel." (J.A. at 40 (emphasis added).) This is the statement that appears in the court reporter's transcript.² The grand jury foreman also confirmed that the grand jury perceived the statement to be a threat. Neither the court reporter nor Stein checked the backup tape to confirm what Bunn had said. Based upon this testimony, the district court entered an order to show cause why Bunn should not be held in criminal contempt. The district court scheduled a trial for January 21, 1999 and required Bunn to post $5,000 bond. Bunn could not pay the bond and, as a result, he was handcuffed and taken into custody in front of several members of the grand jury, who were seated in the courtroom during the proceedings.

On January 11, 1999, Bunn moved for discovery and asked for a copy of the tape recording made by the court reporter. The Government did not object, but it apparently did not supply the tape. On February 10, 1999, after reviewing the tape, the Government moved to dismiss the contempt proceeding without prejudice. The Government concluded that Bunn's statement on the tape was too vague to prove beyond a reasonable doubt that Bunn had actually threatened the grand jury.

On April 15, 1999, Bunn filed an application for fees and other expenses under the Hyde Amendment seeking reimbursement from the Government for attorney's fees and expenses incurred in defending what he alleged to be vexatious, frivolous, and bad faith charges.³ On July 7, 1999, the district court denied the motion. On August 5, 1999, Bunn filed his notice of appeal.

On appeal, Bunn argues that the district court abused its discretion in denying his request for attorney's fees and expenses under the Hyde Amendment because the Government's pursuit of contempt charges against him for allegedly threatening the grand jury was vexatious, frivolous, and in bad faith. The Government responds that we lack jurisdiction to hear Bunn's appeal because Bunn failed to file a timely notice of appeal. Because questions of subject matter jurisdiction "`concern the court's very power to hear the case,'" OwensIllinois, Inc. v. Meade, 186 F.3d 435, 442 n.4 (4th Cir. 1999) (quoting 2 James Wm. Moore et al., Moore's Federal Practice§ 12.30[1] (3d ed. 1998)), we must first determine whether we have jurisdiction to hear Bunn's appeal before proceeding to the merits of that appeal.

II.

As an initial matter, the Government argues that because the underlying contempt proceeding was a criminal matter, Bunn's appeal is subject to the ten-day time period for filing a notice of appeal from a criminal action. Consequently, the Government argues that Bunn's notice of appeal, which was filed on August 5, 1999, was untimely because it was filed more than ten days after the district court's July 7, 1999 order. Bunn responds that because the district court treated his Hyde Amendment action like a civil case, as evidenced by its civil docket number, and because his claim seeks remedial, rather than punitive, relief his Hyde Amendment action is in the nature of a civil proceeding. Bunn argues, therefore, that his notice of appeal was timely because it was filed within sixty days after the district court's order. Reviewing this question of subject matter jurisdiction de novo, see Tillman v. Resolution Trust Corp., 37 F.3d 1032, 1034 (4th Cir. 1994), we conclude that Bunn timely filed his notice of appeal.

The timely filing of the notice of appeal is mandatory and jurisdictional. See United States v. Robinson, 361 U.S. 220, 229 (1960). Federal Rule of Appellate Procedure 4(a), which governs appeals in civil cases, provides that "[w]hen the United States or its officer or agency is a party, the notice of appeal may be filed by any party within 60 days after the judgment or order appealed from is entered." Fed. R. App. P. 4(a)(1)(B). Federal Rule of Appellate Procedure 4(b), which governs appeals in criminal cases, provides that"[i]n a criminal case, a defendant's notice of appeal must be filed in the district court within 10 days after the later of" the entry of the judgment or order being appealed or the filing of the Government's notice of appeal. Fed. R. App. P. 4(b)(1). Bunn filed his notice of appeal more than ten days after, but within sixty days of, the district court's order. Thus, his notice of appeal is timely only if it is an appeal in a civil case, rather than an appeal in a criminal case. The Hyde Amendment provides that a prevailing defendant "in any criminal case" may seek attorney's fees and costs. See 18 U.S.C.A. § 3006A, Historical And Statutory Notes. Thus, by the plain language of the Hyde Amendment, the underlying action in which the fees and expenses are incurred must be criminal in nature. It does not, however, specify whether a Hyde Amendment claim itself is criminal or civil in nature, nor does it articulate a time period for filing the notice of appeal for a Hyde Amendment claim. See id. Although the Hyde Amendment explicitly incorporates "the procedures and limitations (but not the burden of proof) provided for an award under [28 U.S.C.A. § 2412 (West 1994 & Supp. 1999)],"⁴ id., "[t]he`procedures and limitations' contained in § 2412 do not address the time in which a party must appeal the denial of attorneys' fees under that section," United States v. Robbins, 179 F.3d 1268, 1270 (10th Cir. 1999). Rather, the "procedures and limitations" contained in § 2412 "concern the time in which a request for attorneys' fees and costs must be made to the district court and the steps a litigant must take in making such a request." Id. Thus, the plain language of the Hyde Amendment does not guide us in determining whether an appeal from a Hyde Amendment action is civil or criminal in nature.

The only federal courts of appeals that have addressed this issue are the Tenth Circuit in Robbins and the Fifth Circuit in United States v. Truesdale, 211 F.3d 898 (5th Cir. May 5, 2000). In Robbins, the Tenth Circuit held that"the `Hyde Amendment' applies to criminal cases where the government's position is vexatious, frivolous, or in bad faith. Because an appeal under the `Hyde Amendment' arises out of a criminal case, Fed. R. App. P. 4(b) applies and litigants must file a notice of appeal within the 10 days after the order appealed from is entered." Robbins, 179 F.3d at 1270. In Truesdale, the Fifth Circuit reached the opposite conclusion and held that an appeal from a denial of fees under the Hyde Amendment is governed by the appeal period applicable in civil cases. See Truesdale, 211 F.3d 898.

The Government relies upon Robbins and the Hyde Amendment's applicability "in any criminal case" to argue that an appeal from a Hyde Amendment action is a criminal appeal. Bunn responds that the remedial nature of the relief sought and the civil docket number at the district court clearly show that his claim is civil in nature, and, indeed, that the district court treated it as such.⁵

In other contexts, we have recognized that proceedings ancillary to a criminal prosecution can be civil...