USA. v. Wade

• Decision Date: 03 July 2001
• Docket Number: No. 00-3058,00-3058
• Citation: 255 F.3d 833
• Parties: (D.C. Cir. 2001) United States of America, Appellee v. Shelton Wade, et al., Appellants
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 833

255 F.3d 833 (D.C. Cir. 2001)

United States of America, Appellee v. Shelton Wade, et al., Appellants

No. 00-3058

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 9, 2001

Decided July 3, 2001

Appeal from the United States District Court for the District of Columbia (No. 96cr00472)

Andrew P. McGuire argued the cause for the appellants.

John R. Fisher, Assistant United States Attorney, argued the cause for the appellee. Wilma A. Lewis, United States Attorney at the time the brief was filed, and Elana Tyrangiel, Assistant United States Attorney, were on brief for the appellee. Mary-Patrice Brown, Assistant United States Attorney, entered an appearance.

Before: Sentelle and Henderson, Circuit Judges, and Silberman, Senior Circuit Judge.

Opinion for the court filed by Circuit Judge Henderson.

Karen LeCraft Henderson, Circuit Judge:

Sheila Gant, Shelton Wade, Angel Wade, Jean Wade and Dorothy Wade appeal the district court order denying their petition for attorney's fees under either the Equal Access to Justice Act, 28 U.S.C.A. 2412(d) (EAJA), or the Hyde Amendment to the Departments of Commerce, Justice and State, the Judiciary and Related Agencies Appropriations Act of 1998, Pub. L. No. 105-119, 617, 111 Stat. 2440, 2519 (1997), 18 U.S.C.A. 3006A, historical and statutory notes (Hyde Amendment). We conclude that the EAJA does not apply to the appellants who are intervenors in a criminal abatement proceeding and that the appellants have failed to demonstrate an entitlement to fees under the Hyde Amendment. Accordingly, we affirm the district court.

I.

On May 28, 1997 Charles Wade and his brother Eugene Wade pleaded guilty to a three-count information alleging, inter alia, the maintenance of a disorderly house in the District of Columbia in violation of D.C. Code 22-2722. See United States v Wade, 152 F.3d 969, 970 (D.C. Cir. 1998) (recounting facts giving rise to this case). According to the government, the Wades sold drugs from and near a residence at 647 G Street, S.E., in the District. Although Charles and Eugene did not reside at that address, their parents and various other family members lived there at the time. Based on the pleas, the district court entered an order of abatement against 647 G Street. See D.C. Code 22-2717 (requiring abatement of nuisance in certain circumstances). The order directed the United States Marshal to close the house for one year.

The appellants, who either resided at or had an interest in 647 G Street, intervened seeking reconsideration of the order. The court permitted the appellants to intervene but refused to reconsider its decision, holding that an order of abatement is a mandatory sanction upon conviction of keeping a disorderly house under section 2722. See United States v. Wade, 992 F. Supp. 6, 10-11, 13 (D.D.C. 1997).

Charles and Eugene, joined by the appellants, appealed to this court. We vacated the abatement order reasoning that, "if confronted with this question, the D.C. Court of Appeals would hold that conviction for keeping a disorderly house under section 2722 will require an abatement order pursuant to section 2717 only if that house was used, at least in part" for "the purpose of lewdness, assignation, or prostitution." Wade, 152 F.3d at 972-73. The government failed to establish in the district court that the house was used for such purposes. See id.

Subsequently, the appellants petitioned this court for the payment of attorney's fees and litigation costs under the EAJA. We denied the petition "without prejudice to renewal of the matter before the district court." United States v. Wade, No. 97-3170 (consolidated with Nos. 97-3135, 97-3140, 97-3141, 97-3171) (D.C. Cir. Nov. 4, 1998). The appellants then filed a fee petition with the district court but their request was denied. See United States v. Wade, 93 F. Supp. 2d 19 (D.D.C. 2000). This appeal followed.

II.

We are asked to decide whether the appellants--intervenors in a criminal proceeding who successfully challenged an abatement order entered as part of a criminal sentence--may recover from the United States attorney's fees arising from their challenge of the abatement order. To reach a decision, we must consider three questions: (1) whether we have jurisdiction to hear this appeal, (2) whether the appellants' claim here is subject to the EAJA or the Hyde Amendment and (3) whether the district court correctly applied the appropriate legal framework. Because resolution of the jurisdictional dispute depends on the disposition of the statutory issue,¹ we consider first the statutory question. We then turn to jurisdiction and finally address the merits.

A. Applicability of the EAJA and the Hyde Amendment

In the United States, under what is known as the "American Rule," each party to a lawsuit usually bears its own attorney's fees "unless there is express statutory authorization to the contrary." Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (citing Alyeska Pipeline Serv. Co. v. Wilderness Society, 421 U.S. 240 (1975)). See generally In re Turner, 14 F.3d 637, 640 (D.C. Cir. 1994) (per curiam) (discussing attorney's fees and sovereign immunity). Even if a fee award is otherwise authorized, sovereign immunity protects the United States from attorney's fees liability "except to the extent it has waived its immunity." Ruckelshaus v. Sierra Club, 463 U.S. 680, 685 (1983) (citing Alyeska Pipeline, 421 U.S. at 267268 & n.42). Any waiver of immunity, however, "must be 'construed strictly in favor of the sovereign,' " Sierra Club, 463 U.S. at 685 (quoting McMahon v. United States, 342 U.S. 25, 27 (1951)), and the court "may not find a waiver unless Congress' intent is ' "unequivocally expressed" ' in the relevant statute." Hubbard v. EPA, 982 F.2d 531, 532 (D.C. Cir. 1992) (quoting United States v. Mitchell, 445 U.S. 535, 538 (1980) (quoting United States v. King, 395 U.S. 1, 4 (1969))).

Of relevance here, the Congress has elected to waive sovereign immunity for attorney's fees in two circumstances: under the EAJA and under the Hyde Amendment. The two statutes respectively provide:

Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, 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.

EAJA, 28 U.S.C.A. 2412(d)(1)(A) (emphasis added).

During fiscal year 1998 and in any fiscal year thereafter, the court, in any criminal case (other than a case in which the defendant is represented by assigned counsel paid for by the public) pending on or after the date of the enactment of this Act [Nov. 26, 1997], 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.

Hyde Amendment, 18 U.S.C.A. 3006A, historical and statutory notes.

The appellants contend the district court erred in concluding their fee petition is governed by the Hyde Amendment rather than the EAJA. We are not persuaded. The EAJA by its terms authorizes the award of attorney's fees to a prevailing party "in any civil action." The statute does not define a "civil action" but, however else that phrase may be defined, "one definition that is always correct is that civil actions are those that are not criminal." United States v. Soueiti, 154 F.3d 1018, 1019 (9th Cir. 1998) (citing Black's Law Dictionary 245 (6th ed. 1990); Ballentine's Law Dictionary 202 (3d ed. 1969)). Here, the action against Charles and Eugene Wade was plainly criminal. The proceeding was instituted in order to "punish an infraction of the criminal laws." See Black's Law Dictionary 372 (6th ed. 1990). They were charged with a crime, brought to court, found guilty based on their pleas and sentenced. See Black's Law Dictionary 372 (defining criminal action as "[p]roceeding by which person charged with a crime is brought to trial and either found not guilty or guilty and sentenced"). The appellants intervened in the proceeding before the district court to challenge part of Charles's and Eugene's sentence. Their intervention did not change the nature of that proceeding. It was and remained criminal. Because the appellants were party to a criminal action and because the EAJA applies only to civil actions, they cannot recover under the EAJA. Rather, their fee petition is governed by the Hyde Amendment.

The appellants point to cases that treat criminal forfeiture proceedings as civil actions under EAJA. See Brief of Appellants at 10-11 (citing cases). They contend a similar conclusion is warranted with regard to an abatement order. We do not agree. A third party asserting an interest in a forfeiture proceeding is "expressly barred by 21 U.S.C. 853(k)(2) from 'commenc[ing] an action at law or equity against the United States concerning the validity of [its] alleged interest in the property.' " United States v. Douglas, 55 F.3d 584, 586 (11th Cir. 1995) (quoting 21 U.S.C. 853(k)(2)); accord United States v. Gilbert, 244 F.3d 888, 907 (11th Cir. 2001). A third party's only avenue for protecting his interest is the procedure set forth in 18 U.S.C. 853(n), which provides that "[a]ny person, other than the defendant, asserting a legal interest in property which has been ordered forfeited to the United States pursuant to this section" may "petition the court for a hearing to adjudicate the validity of his alleged interest in the...