                                                                           RECOMMENDED FOR FULL-TEXT PUBLICATION
20    United States v. Ranger               Nos. 98-2255/2322                   Pursuant to Sixth Circuit Rule 206
      Electronic Communications                                         ELECTRONIC CITATION: 2000 FED App. 0146P (6th Cir.)
                                                                                    File Name: 00a0146p.06

behalf); Caremore, Inc. v. NLRB, 150 F.3d 628, 630 (6th Cir.
1998) (concluding that Caremore was litigating on its own           UNITED STATES COURT OF APPEALS
behalf, and “the merits of the underlying case involved a
bargaining unit consisting solely of Caremore employees”);                        FOR THE SIXTH CIRCUIT
National Truck Equipment Ass. v. National Highway Traffic                           _________________
Safety Admin., 972 F.2d 669 (6th Cir. 1992) (aggregating
member companies because trucking association was
                                                                                                     ;
litigating on behalf of those companies).
                                                                                                      
                                                                     UNITED STATES OF AMERICA,
                                                                                                      
  I believe that aggregation is clearly appropriate in this case.             Plaintiff-Appellant/
                                                                                                      
The “parties” in the litigation comprised closely linked                         Cross-Appellee,
                                                                                                      
entities. Peng was the president and chief financial officer of                                           Nos. 98-2255/2322

                                                                                                      
Ranger USA. Peng owned fifty-two percent of Ranger                                                     >
                                                                               v.
                                                                                                      
Taiwan, approximately 100 percent of Ranger Shanghai, and

                                                                                                      
100 percent of Ranger USA. Ranger Taiwan owned almost

                                                                                                      
100 percent of Ranger Malaysia. Most importantly, unlike the         RANGER ELECTRONIC

                                                                              Defendant-Appellee/ 
Caremore and Tri-State Steel cases, Peng, Ranger and the             COMMUNICATIONS, INC.,

                                                                                  Cross-Appellant. 
other co-defendants essentially litigated as a bloc, rather than

                                                                                                      
as independent entities. The very basis of the plea agreement

                                                                                                     1
was that Peng controlled each of the companies and their
respective litigation decisions. Indeed, the plea agreement
constituted an internal trade-off engineered by
Peng—dismissing charges against him personally and Ranger                  Appeal from the United States District Court
in exchange for a guilty plea by Ranger USA, a plea of no             for the Western District of Michigan at Grand Rapids.
contest by the unindicted co-conspirator (Ranger Shanghai),          No. 96-00211—Richard A. Enslen, Chief District Judge.
and Peng’s agreement to pay Ranger USA’s forfeiture amount
personally. J.A. at 195-201. Ranger’s argument that the                            Argued: January 26, 2000
“other Ranger companies’ pleas” can not be imputed to
Ranger is thus unpersuasive. Rather, aggregation is wholly                     Decided and Filed: April 24, 2000
appropriate.
                                                                      Before: JONES, NORRIS, and SILER, Circuit Judges.
  At the onset of litigation, Ranger Malaysia had 485
employees, Ranger Shanghai had 185 employees, and Ranger                              _________________
had twelve employees. J.A. at 417. A Dun & Bradstreet
report from November 1996 reported that the Ranger                                         COUNSEL
companies together had more than 800 plant workers.                 ARGUED: Joan E. Meyer, ASSISTANT UNITED STATES
Because the aggregated entities have well over 500                  ATTORNEY, Grand Rapids, Michigan, for Appellant.
employees, Ranger is ineligible to bring a Hyde Amendment           Daniel R. Gravelyn, WARNER, NORCROSS & JUDD,
claim.                                                              Grand Rapids, Michigan, for Appellee. ON BRIEF: Joan E.

                                                                                                1
2       United States v. Ranger                   Nos. 98-2255/2322          Nos. 98-2255/2322               United States v. Ranger        19
        Electronic Communications                                                                        Electronic Communications

Meyer, ASSISTANT UNITED STATES ATTORNEY, Grand                                                             B.
Rapids, Michigan, for Appellant. Daniel R. Gravelyn,
WARNER, NORCROSS & JUDD, Grand Rapids, Michigan,                                Ranger, however, must live with the consequences of being
for Appellee.                                                                treated as one with the other co-defendants. In particular,
                                                                             grouping the co-defendants into one entity means that Ranger
  SILER, J., delivered the opinion of the court, in which                    was not an “eligible” party under § 2412(d). For that reason,
NORRIS, J., joined. JONES, J. (pp. 14-20), delivered a                       the award to Ranger must be reversed.
separate concurring opinion.
                                                                               A party is only eligible to receive a Hyde award if it is:
                       _________________
                                                                               (i) an individual whose net worth did not exceed
                           OPINION                                             $2,000,000 at the time the civil action was filed, or (ii)
                       _________________                                       any owner of an unincorporated business, or any
                                                                               partnership, corporation, association, unit of local
  SILER, Circuit Judge. The government appeals from an                         government, or organization, the net worth of which did
award of attorneys’ fees and costs to Ranger Electronic                        not exceed $7,000,000 at the time the civil action was
Communications, Inc. (“Ranger”) under the Hyde                                 filed, and which had not more than 500 employees at the
Amendment. Ranger was indicted for violating 18 U.S.C.                         time the civil action was filed . . . .
§§ 545 and 1956(a), importing illegal radio equipment and
related money laundering charges. The prosecution ended in                   28 U.S.C. § 2412(d)(2)(B). In this case, as in previous cases
a dismissal with prejudice of the illegal importation charges                under the EAJA, the rather straightforward analysis of
against Ranger and its primary officer, Jim Peng, but an                     eligibility is complicated because several related companies
associated corporation, Ranger USA, also owned by Peng,                      and individuals, including subsidiaries, are the co-defendants.
pled guilty to money laundering in violation of 18 U.S.C.                    We are thus presented with the question of whether to
§ 1956(a)(2) and agreed to a criminal forfeiture of                          aggregate the assets and employees of the related companies,
$990,000.000. Another sister corporation, Ranger Shanghai,                   or look independently at the particular entity bringing the
pled no contest to one count of importing merchandise in                     Hyde Amendment claim. Contrary to Ranger’s argument, in
violation of 18 U.S.C. § 545.                                                analogous EAJA cases, this Court has not simply “adhered to
                                                                             the principle that corporations, even if ‘related,’ must be
   On appeal, the government argues that Ranger did not file                 treated as independent entities.” Ranger’s Br. at 27. In fact,
a timely request for attorneys’ fees and costs under the Hyde                “a rule that would prevent aggregation under any
Amendment,1 and that, even if timely filed, as a matter of                   circumstances would contravene the purpose of EAJA.” Tri-
                                                                             State Steel Construction Co. v. Herman, 164 F.3d 973, 981
                                                                             (6th Cir. 1999) (Gilman, J., concurring). We therefore look
    1                                                                        beyond the formal structure of the litigating parties to inquire
     Pub. L. No. 105-119, 111 Stat. 2440, 2519 (1997) (reprinted in 18       whether a purported independent entity is litigating on its own
U.S.C. § 3006A, historical and statutory notes). In its entirety, the Hyde   behalf, or on behalf of other, related entities as well. See id.
Amendment provides:
    During fiscal year 1998 and in any fiscal year thereafter, the           at 979-80 (majority concluding that Tri-State, despite its close
    court, in any criminal case (other than a case in which the              relationship with parent company, was litigating on its own
    defendant is represented by assigned counsel paid for by the
18   United States v. Ranger               Nos. 98-2255/2322       Nos. 98-2255/2322                   United States v. Ranger             3
     Electronic Communications                                                                     Electronic Communications

  In my view, however, final judgment did not occur until          law, there was no “vexatious, frivolous, or bad faith”
May 19, 1998, the date of the sentencing order. In the             prosecution as required under the Act. We hold the Hyde2
criminal context, an order is final and appealable only after      Amendment incorporates the Equal Access to Justice Act’s
both conviction and sentencing. See Flanagan v. United             (“EAJA”) thirty-day time limit for filing claims. As set forth
States, 465 U.S. 259, 263 (1984); United States v. One             below, we REVERSE for lack of jurisdiction.
Juvenile Male, 40 F.3d 841, 843 (6th Cir. 1994). Even when
there is a plea agreement and a dismissal of charges, the                                 I. BACKGROUND
dismissal of those charges is not final until the sentencing
order is issued for the charges that remain. The rationale for       On December 19, 1996, Ranger, Ranger USA, and Peng
this rule is that until the sentencing order issues, the           were indicted for illegal importation of radio equipment in
possibility remains that the defendant will either breach or       violation of 18 U.S.C. § 545. In addition, Ranger, Ranger
withdraw the plea, at which point the previously dismissed         USA, Peng and John Gouvion, the president of Ranger USA,
charges can be reinstated. In this case, Ranger USA was            were indicted for conspiracy to import and sell electronic
sentenced pursuant to the plea agreement on May 19, 1998.          devices in violation of 18 U.S.C. § 545. On March 27, 1997,
Prior to sentencing, Ranger USA could have negated the plea        a superseding indictment charged that Ranger, Ranger USA
agreement by moving to withdraw the plea under Fed. R.             and Peng conspired to violate the customs laws in violation of
Crim. Pro. 32(e) or by breaching one of the agreement’s            18 U.S.C. §§ 371 and 545; conspired to commit money
conditions. After such a withdrawal, the government would
no longer have been bound by the dismissal of the charges
against Ranger, and could re-prosecute those charges. J.A. at
199-200. For this reason, the May 19 sentencing order, not             public) pending on or after the date of the enactment of this act
the earlier dismissal of the charges against Ranger, constituted       (Nov. 26, 1997), may award to a prevailing party, other than the
                                                                       United States, a reasonable attorney’s fee and other litigation
the relevant final judgment.                                           expenses, where the court finds that the position of the United
                                                                       States was vexatious, frivolous or in bad faith, unless the court
   This conclusion of course hinges on an underlying                   finds that special circumstances make such an award unjust.
determination that the co-defendants in the case should be             Such awards shall be granted pursuant to the procedures and
treated as one party. Technically, Ranger itself did not reach         limitations (but not the burden of proof) provided for an award
                                                                       under Title 28, U.S.C. § 2412. To determine whether or not to
a plea agreement, only Ranger USA did. A strictly                      award fees under this section, the court, for good cause shown,
formalistic approach would therefore deem Ranger’s filing of           may receive evidence ex parte and in camera (which shall
the Hyde award claim untimely. But because the co-                     include the submission of classified evidence or evidence that
defendants in this case were essentially litigating as one, see        reveals or might reveal the identity of an informant or
infra, and withdrawal or breach by Ranger USA before                   undercover agent or matters occurring before a grand jury) and
sentencing would have terminated the entire agreement, I               evidence or testimony so received shall be kept under seal. Fees
                                                                       and other expenses awarded under this provision to a party shall
believe that the sentencing order for Ranger USA constituted           be paid by the agency over which the party prevails from any
the final order with respect to all the parties in this case.          funds made available to the agency by appropriation. No new
Therefore, the May sentencing order of Ranger USA and                  appropriations shall be made as a result of this provision.
Ranger Shanghai comprised the final order for the dismissal            2
of charges against Ranger, and Ranger’s filing on June 19 was           The Equal Access to Justice Act, 28 U.S.C. § 2412 et seq.,
timely.                                                            authorizes the award of attorneys’ fees and costs to private parties who
                                                                   prevail against the government in civil actions.
4       United States v. Ranger               Nos. 98-2255/2322         Nos. 98-2255/2322                   United States v. Ranger           17
        Electronic Communications                                                                       Electronic Communications

laundering in violation of 18 U.S.C. § 1956(h); brought                 (1991). Because the thirty-day deadline is jurisdictional, see
merchandise into the United States contrary to law in                   Allen v. Secretary of Health & Human Serv., 781 F.2d 92, 94
violation of 18 U.S.C. § 545; and committed money                       (6th Cir. 1986), a district court is permitted to extend the
laundering in violation of 18 U.S.C. § 1956(a)(1) and                   deadline in only one instance: when a party has “performed an
(a)(2)(A).                                                              act which, if properly done, would have postponed the
                                                                        deadline for filing his application,” and a court has
   At the time of the indictments, Federal Communications               affirmatively assured a party that the act was properly done.
Commission (“FCC”) regulations required        that Citizens Band       United States v. Lindert, No. 96-4321, 1998 WL 180519 at *4
(“CB”) radios be “type accepted”3 by the FCC before they                (6th Cir. 1998) (unpublished opinion); cf. Osterneck v. Ernst
could be distributed in this country. See 47 C.F.R. §§ 2.803            & Whitney, 489 U.S. 169, 179 (1989) (concluding that an
and 95.603. The government argued the radios that were                  appellate court can forgive a party’s failure to file a timely
specified in the indictments were “open” radios, which                  appeal “only where a party has performed an act which, if
operate illegally in that they are not restricted to the forty CB       properly done, would postpone the deadline for filing his
bands, but operate on additional channels as well. Defendants           appeal and has received specific assurance by a judicial
argued the radios were “amateur” radios and thus imported               officer that this act has been properly done”).
under an exemption. The district court found that “[t]he
radios in question were not type accepted by the FCC and                  According to the majority, adherence to the thirty-day
would not have been type accepted because they broadcast on             deadline dooms Ranger’s award application. The case against
frequencies other than those approved by the FCC.” United               Ranger ended on January 22, 1998, with Ranger USA’s guilty
States v. Ranger Electronic Communications, Inc., 22 F.                 plea and Ranger Taiwan’s plea of no contest. The district
Supp. 2d 667, 670 (W.D. Mich. 1998).                                    court entered judgment terminating the criminal case against
                                                                        Ranger on February 3, 1998. The majority therefore finds that
  Ranger attempted to obtain exculpatory material from the              Ranger’s filing on June 111, 1998 came well after the thirty-
government pursuant to Brady v. Maryland, 373 U.S. 83                   day window had closed.
(1963). In March 1997, defense counsel sought production of
“all evidence known to the government which may be
favorable to the defendant and material either to guilt or
punishment.” In April 1997, the government agreed “to
provide all Brady, Giglio, and Jencks material on January 9,                1
1998 - three days before trial.”                                              The district court circumvented this bar to Ranger’s application by
                                                                        carving out an “equitable tolling” exception to this jurisdictional
                                                                        requirement, allowing a “limited extension of the application period” in
   Defense counsel also tried to obtain evidence from the FCC           a situation where the government has concealed exculpatory evidence.
to help prove that the regulations in question were vague. In           United States v. Ranger Electronic Communications, Inc., 22 F.Supp.2d
June 1997, they made requests under the Freedom of                      667, 675 (W.D. Mich. 1998). This was error for two reasons. Most
                                                                        seriously, the court’s tolling defied precedent that courts can not extend
                                                                        a jurisdictional deadline except in the narrow circumstance described
                                                                        supra, which was not present in this case. Second, even assuming
    3                                                                   arguendo that some form of equitable tolling is permissible, because
     Under the FCC regulations, radios cannot operate on the CB band    Ranger filed its Hyde Amendment claim 30 days after it had received the
unless express approval is obtained from the FCC to operate on the CB   FOIA documents, the district court’s extension of time into June was
channels.                                                               unreasonable.
16   United States v. Ranger              Nos. 98-2255/2322       Nos. 98-2255/2322                    United States v. Ranger           5
     Electronic Communications                                                                     Electronic Communications

tasked with showing that the government’s “position” was          Information Act4 (“FOIA”) for documents that related to CB
“vexatious, frivolous, or in bad faith.” See id. at 1300-02.      and amateur radios. On June 20 and August 8, 1997, the FCC
Still, the Hyde Amendment’s origin as a replica of § 2412(d)      declined to produce several of the requested documents on the
provides additional support for applying the procedures of        grounds that they    would “interfere with an ongoing criminal
§ 2412(d). In sum, I agree with the majority that the Hyde        investigation.”5 The FCC arrived at this conclusion based at
Amendment requires a criminal defendant to meet the               least in part on the recommendation of AUSA Daniel Mekaru,
limitations and procedural requirements of § 2412(d).             who, along with AUSA Mark Courtade, handled the Ranger
                                                                  prosecution.
                              II.
                                                                     In August 1997, the district court ruled that the FCC
  I believe that Ranger failed to meet the requirements under     regulations regarding “open” radios were clear and
§ 2412(d), but not for the reason articulated by the majority.    unambiguous. On January 9, 1998, the court ruled the
While Ranger filed its application for an award in a timely       defendants could not attack the FCC regulations for being
manner, it did not meet the eligibility criterion of having not   confusing, but they could present evidence that they were
more than 500 employees.                                          confused about the regulations and that they reasonably
                                                                  believed the radios were legal “amateur” radios and not
                              A.                                  illegal, non-type-accepted CB radios.
  Unlike the majority, I believe that Ranger satisfied the          In early January 1998, the FCC advised the prosecutors it
thirty-day deadline to file for an award of attorney’s fees.      had discovered approximate 400 more documents responsive
Section 2412(d)(1)(B) requires that                               to the FOIA request. The prosecutors asked the FCC to
                                                                  immediately fax those documents that the FCC thought were
  [a] party seeking an award of fees and other expenses           important for the prosecutors to review. The prosecutors
  shall, within thirty days of final judgment in the action,      received the facsimiles on or about January 12, 1998. Among
  submit to the court an application for fees and other           these selected documents were some of the e-mails attached
  expenses which shows that the party is a prevailing party       to Ranger’s Hyde motion. The prosecutors examined the
  and is eligible to receive an award under this subsection,      facsimiles and concluded that they, like the FCC documents
  and the amount sought, including an itemized statement          they had reviewed in July 1997, concerned only “modifiable”
  from any attorney or expert witness representing or             radios and contained no reference to “open” radios. In
  appearing in behalf of the party stating the actual time        addition, they were created outside the time frame charged in
  expended and the rate at which fees and other expenses          the indictment. Thus, the prosecutors determined not to
  were computed.                                                  produce them. On the date the trial began, January 13, 1998,
28 U.S.C. § 2412(d)(1)(B) (emphasis added). The EAJA
defines a final judgment as “a judgment that is final and not         4
appealable, and includes an order of settlement.” 28 U.S.C.               5 U.S.C. § 552 et seq.
§ 2412(d)(2)(G); see Buck v. Secretary of Health and Human            5
Serv., 923 F.2d 1200, 1202 (6th Cir. 1991). The thirty-day              The government contends the investigation referred to concerned
                                                                  inquiries into the defendants’ attempts to circumvent the type acceptance
clock begins to run after the time to appeal the final judgment   requirements for “modifiable” radios, which were not the subject of the
has expired. See Melkonyan v. Sullivan, 501 U.S. 89, 96           indictments.
6       United States v. Ranger                  Nos. 98-2255/2322          Nos. 98-2255/2322               United States v. Ranger      15
        Electronic Communications                                                                       Electronic Communications

AUSA Courtade told the defendants that he had received                      Amendment’s clear directive to apply the EAJA’s procedures
additional FCC documents which he had yet to review. The                    and limitations. Moreover, as the majority reasons, § 2412(b)
trial ended before the prosecutors completed their review of                itself shows that Ranger’s interpretation is circular, as that
the FCC FOIA documents.                                                     provision explicitly instructs courts to rely on either common
                                                                            law or the “terms of any statute which specifically provides
   Ranger also attempted to defend the charges by pointing to               for such an award” to determine the extent to which the
suspicious bank records of Gouvion.6 The defendants                         United States is liable for an award. 28 U.S.C. § 2412(b). In
claimed that Gouvion, the former president of Ranger USA                    other words, § 2412(b) tells courts to look elsewhere for
and a government witness, was embezzling money from                         procedural guidance.
Ranger USA. Defendants based this assumption on a wire
transfer confirmation showing that Gouvion had a joint bank                    In addition, the language and legislative history of the Hyde
account with a customer of Ranger USA. In December 1997,                    Amendment suggest that the Amendment was modeled
the defendants subpoenaed the bank records of Gouvion from                  precisely after § 2412(d), making the application of its
1992 to January 15, 1998. The government’s motion to quash                  procedures and limitations particularly appropriate. First, the
the subpoena was denied by the court on January 16.                         Hyde Amendment and § 2412(d) mirror one another in that
                                                                            each provides fees when the “position” of the government is
  On January 14, one day after trial began, AUSA Mekaru                     flawed. Second, the history of the Amendment evinces an
asked Gouvion about the wire transfer. Gouvion stated the                   even closer connection. To quote the Eleventh Circuit’s
wire transfer was for the sale of a Rolex watch to the owner                description of the Amendment’s legislative history:
of Santa Fe, a company that did business with Ranger USA.
AUSA Mekaru asked Gouvion if the loans were a pay-off or                      Hyde patterned his amendment after the Equal Access to
if Gouvion was skimming money from Ranger USA.                                Justice Act ("EAJA"), see 28 U.S.C. § 2412(d)(1)(A),
Gouvion replied that the loans were legitimate.                               which authorizes the award of attorneys’ fees and costs
                                                                              to private parties who prevail against the government in
  On January 19, 1998, AUSA Mekaru met with Gouvion to                        civil actions unless the government establishes that its
prepare him for his testimony the following day. At this                      position was “substantially justified.” See 143 Cong. Rec.
meeting, Gouvion admitted he lied about the sale of the Rolex                 H7786-04, H7791 (Sept. 24, 1997) (statement of Rep.
watch. Instead, Gouvion declared he had borrowed money                        Hyde). Thus, in its original form the Hyde Amendment
from Ranger USA and used the joint bank account with the                      would have allowed the award of attorney fees and costs
customer to hide the money. Thus, the government learned of                   to any federal criminal defendant who prevailed against
Gouvion’s lie three days after the hearing on the motion to                   the government, unless the government showed that its
quash the subpoena for Gouvion’s bank records and one day                     position in the prosecution had been “substantially
prior to Gouvion’s testimony in court.                                        justified.”
  Gouvion testified for the government on January 20-21,                    United States v. Gilbert, 198 F.3d 1293, 1300 (11th Cir.
1998. On the second day of examination, he testified that the               1999). After criticism by House members and the
                                                                            Department of Justice that the Amendment was too broad, the
                                                                            provision was altered in two ways: the burden of proof was
    6
     Gouvion pled guilty to accessory after the fact in importing illegal   placed on the party seeking the award, and that party was
merchandise in violation of 18 U.S.C. § 545.
14    United States v. Ranger               Nos. 98-2255/2322       Nos. 98-2255/2322              United States v. Ranger      7
      Electronic Communications                                                                Electronic Communications

                   ___________________                              money in the joint bank account was for the unauthorized sale
                                                                    of refurbished radios owned by Ranger USA. On re-cross
                     CONCURRENCE                                    examination, defense counsel elicited testimony from
                   ___________________                              Gouvion that he had lied and that the claimed personal loans
                                                                    were undocumented, carried no interest rate and had never
   NATHANIEL R. JONES, Circuit Judge, concurring. I                 been repaid in whole or in part.
concur with the majority’s well-reasoned conclusion that the
Hyde Amendment incorporated all the procedures and                    On January 22, 1998, defense counsel argued the
limitations of the EAJA, including § 2412(d), and that              prosecutors had committed a Brady violation and the defense
reversal is warranted because Ranger failed to meet those           was entitled to a dismissal of the indictment. The district
criteria. Nevertheless, I disagree with the majority’s              court found that the prosecutor intentionally failed to inform
determination that Ranger failed to file its application for a      defense counsel prior to Gouvion’s testimony that the story
Hyde Award within thirty days of the final judgment. My             about the Rolex watch was a lie. The court concluded this
conclusion instead rests on the fact that Ranger was not an         was a Brady violation, but specifically found that the defense
eligible corporation under § 2412(d).                               had not suffered any prejudice because they confronted
                                                                    Gouvion about the lie on re-cross examination. Additionally,
                               I.                                   defense counsel admitted he was not prejudiced. The court
                                                                    offered the defense a mistrial which the defense declined.
   Looking closely at the language and history of the Hyde
Amendment, I agree with the majority that by incorporating            A plea agreement was reached shortly thereafter, so the
the EAJA’s “procedures and limitations,” the Hyde                   case ended without a jury verdict. Under the plea agreement,
Amendment also adopted the restrictions set forth in                charges against Peng and Ranger were dismissed while
§ 2412(d). I find unpersuasive Ranger’s argument that it can        Ranger USA pleaded guilty and Ranger Shanghai, which had
satisfy the procedural requirements of the Hyde Amendment           not been charged up to that time, pleaded no contest, with a
only by complying with § 2412(b), which provides neither            $990,000.00 forfeiture.
procedural guidance nor eligibility limitations. Ranger thus
was required to file for fees within thirty days of a non-             The judgment terminating the criminal case against Ranger
appealable final judgment and to meet the requirements for          was entered on February 3, 1998. Ranger refused to withdraw
eligibility as defined under § 2412(d).                             its motion to obtain FCC documents under the FOIA, so it
                                                                    received on March 30, 1998, the documents pursuant to the
  First, as the majority opines, the Government’s reading is        request. However, it was not until June 9, 1998, that Ranger
the only fair interpretation of the statutory language of the       filed its motion for attorneys’ fees and costs under the Hyde
Hyde Amendment, which references all of § 2412 and not its          Amendment.        The district court recognized that the
specific provisions. There is nothing to suggest that the Hyde      application for attorneys’ fees and costs was not timely under
Amendment meant to allow a party merely to point to                 28 U.S.C. § 2412(d)(1)(B), which requires that the application
§ 2412(b) to circumvent the requirements enumerated in              for fees and other expenses be filed within thirty days of the
§ 2412(d). Indeed, § 2412(d) provides by far the most               final judgment. Therefore, the court tolled the thirty-day
concrete procedures and limitations in all of § 2412. Without       limitation until June 9, 1998, because the government had
the thirty-day rule and the requirements of “eligibility,” courts
would be left directionless in trying to apply the Hyde
8     United States v. Ranger             Nos. 98-2255/2322      Nos. 98-2255/2322               United States v. Ranger       13
      Electronic Communications                                                              Electronic Communications

concealed Brady materials in the FCC documents which were        day limitation. In addition, as this is a waiver of sovereign
not produced until March 30.                                     immunity, some limitations must be applicable to the filing of
                                                                 a claim.
  The district court found the prosecution acted in bad faith
in withholding Brady material from the defendant by failing         Although one court reached the opposite conclusion, see
to reveal to the defense the fact that Gouvion had lied to the   Holland, 34 F. Supp.2d at 357-58 (“[h]ad Congress intended
prosecution about the sale of the Rolex watch, which he used     to limit an applicant’s rights to those granted by section
as an excuse for the receipt of a wire money transfer that the   2412(d), it could have said so... [t]here is no reason to believe
defendants claim was a pay-off from a competitor. The court      the Hyde Amendment intended to confer lesser rights upon
also found that the withholding of the FCC documents which       criminal defendants than the EAJA conferred upon civil
were requested under the FOIA was a violation of Brady.          litigants”), this construction does not give effect to the plain
                                                                 meaning of the Hyde Amendment nor the policy
  The court awarded Ranger $40,106.74 in attorneys’ fees         considerations behind it. Moreover, the Holland court admits
and expenses. In awarding attorneys’ fees, the court             that “the only procedural requirement in the EAJA is found in
concluded that Ranger was only entitled to recover fees          section 2412(d), which requires that parties must submit their
incurred after January 9, 1998, “the date on which the United    application for fees within 30 days of final judgment in the
States promised disclosure of Brady materials but failed to      predicate action.” Id. at 358. There is no reason to believe
make those disclosures.”                                         that Congress did not intend this procedural requirement to
                                                                 apply to criminal cases via the Hyde Amendment.
                     II. DISCUSSION
                                                                    Thus, Ranger did not timely file its application for
    A. Standard of Review                                        attorneys’ fees with the district court, as its June 9, 1998,
                                                                 application was more than thirty days after the final judgment
  The Hyde Amendment provides that an award of attorneys’        in the case (the dismissal of Ranger on February 3, 1998) and
fees “shall be granted pursuant to the procedures and            more than thirty days after Ranger’s receipt of the FCC e-
limitations (but not the burden of proof) provided for an        mails on or about March 28 to April 2, 1998. Even if the date
award under Title 28, U.S.C. § 2412,” the EAJA, to               of the disclosure of the FOIA FCC documents was used as the
prevailing parties in criminal cases. Pub. L. No. 105-119, 111   date from which Ranger must comply with the thirty-day
Stat. 2440, 2519 (1997) (reprinted in 18 U.S.C. § 3006A,         limitation of the EAJA, the attorneys’ fees application was
historical and statutory notes). Under the EAJA, an award or     required to be filed at the latest on May 2, 1998. As the
denial of attorneys’ fees is reviewed for an abuse of            application was not filed until June 9, 1998, the district court
discretion. See Pierce v. Underwood, 487 U.S. 552 (1988);        lacked jurisdiction over Ranger’s application.
Damron v. Commissioner of Social Security, 104 F.3d 853,
854 (6th Cir. 1997). The district court appeared to rely on        REVERSED.
sections 2412(b) and 2412(d) of the EAJA in determining
whether Ranger had timely filed its application for fees.
However, this court has ruled that the thirty-day EAJA time
limit found in section 2412(d)(1)(B) is jurisdictional and
cannot be waived. See Peters v. Secretary of Health and
12   United States v. Ranger               Nos. 98-2255/2322       Nos. 98-2255/2322                  United States v. Ranger           9
     Electronic Communications                                                                    Electronic Communications

especially fatal to claims for attorney fees in criminal actions   Human Serv., 934 F.2d 693 (6th Cir. 1991). In addition, this
because the EAJA waiver of sovereign immunity as to other          court reasoned:
fee statutes and under the common law applies only to civil
and not criminal actions. See 28 U.S.C. § 2412(b).” Ranger           The thirty day time limitation contained in the EAJA is
Electronic Communications, Inc., 22 F. Supp.2d at 674. The           not simply a statute of limitations. It is a jurisdictional
court dismissed with prejudice the charges against Peng and          prerequisite to governmental liability.... The Equal
Ranger on February 3, 1998; Ranger received the FCC e-               Access to Justice Act significantly abridged the
mails on or about March 30, 1998; and Ranger filed its               government’s immunity from suits for attorneys’ fees.
motion for attorneys’ fees on June 9, 1998. It decided:              As a waiver of sovereign immunity, the act must be
                                                                     strictly construed. Once the government agrees to allow
  In order to give effect to Congress’s purpose and words            such suits, “the terms of its consent to be sued in any
  in awarding attorneys’ fees in criminal cases involving            court define that court’s jurisdiction to entertain that
  “bad faith” where the United States conceals its bad faith         suit.” Courts have consistently held that a statutory time
  until more than 30 days after entry of judgment, a further         limit is an integral condition of the sovereign’s consent.
  reasonable time period should be permitted for the filing          Compliance with that condition is a prerequisite to
  of an application for attorney fees.... [T]he defendant            jurisdiction.
  was permitted under the statute a reasonable period of
  time to discover the Brady violation from the documents          Allen v. Secretary of Health & Human Services, 781 F.2d 92,
  and to file its application for attorney fees under the          94 (6th Cir. 1986) (internal quotation cite omitted). Thus, the
  EAJA. The Court determines that, as such, the                    EAJA time limit in section 2412(d) is jurisdictional, and
  application was timely filed.                                    rulings applying such limit are reviewed de novo by this court.
                                                                   See United States v. Lindert, 1998 WL 180519, at **3 (6th
Id. at 675. In the opinion granting the Hyde award to Ranger,      Cir. April 8, 1998) (unpublished opinion); Brown v. Sullivan,
the district court found that Ranger was a “prevailing party”      916 F.2d 492, 494 (9th Cir. 1990) (issues concerning the
within the meaning of section 2412(d)(2)(B). See id. at 676.       proper interpretation of the EAJA are reviewed de novo).
In its second opinion specifically granting $40,106.74 to
Ranger, the district court cited section 2412(b) as the              B. The Hyde Amendment
applicable section for bad faith conduct and the section under
which it was awarding fees.                                           The Hyde Amendment provides that attorneys’ fees may be
                                                                   awarded to a prevailing criminal defendant where “the court
   We believe the correct interpretation of the procedures and     finds that the position of the United States was vexatious,
limitations of the EAJA as incorporated in the Hyde                frivolous, or in bad faith, unless the court finds that special
Amendment includes the limitations of section 2412(d).             circumstances make such an award unjust.” Pub. L. No. 105-
Section 2412(b) directs the applicant to look for an               109, 111 Stat. 2440, 2519 (1997) (reprinted      in 18 U.S.C.
independent statute which gives a remedy of attorneys’ fees        § 3006A, historical and statutory notes).7 Thus, a successful
and expenses independent of the EAJA. As the Hyde
Amendment incorporates the EAJA, it would be circular to go
back to the Hyde Amendment to treat it as an independent               7
                                                                        In his original proposal, Representative Hyde simply extended the
statute giving the right to attorneys’ fees without the thirty-    EAJA’s standard for awards and the allocation of the burden of proof to
                                                                   successful federal criminal defendants. Thus, Hyde’s version would have
10       United States v. Ranger                    Nos. 98-2255/2322           Nos. 98-2255/2322               United States v. Ranger       11
         Electronic Communications                                                                          Electronic Communications

criminal defendant must show that the government’s position                     Some conclude that the procedures and limitations of the
was “vexatious, frivolous, or in bad faith” and even then may                   EAJA are contained in 28 U.S.C. § 2412(d). See United
not recover if there are special circumstances which make the                   States v. Peterson, 71 F. Supp.2d 695, 698 (S.D. Tex. 1999);
award of fees unjust. As a threshold matter, a successful                       United States v. Gardner, 23 F. Supp.2d 1283, 1289 (N.D.
criminal defendant must comply with the “procedures and                         Okla. 1998). Section 2412(d) requires a party seeking an
limitations” of the EAJA to ensure that his application is                      award to file a detailed application within thirty days of “final
timely and properly filed.                                                      judgment.” “Final judgment” is defined as a judgment that is
                                                                                “final and appealable, and includes an order of settlement.”
  One of the limiting provisions of the EAJA provides that                      28 U.S.C. §§ 2412(d)(1)(B) and (d)(2)(G). In its application,
claims for attorneys’ fees must be filed within thirty days of                  the party must show that it is the “prevailing party”and state
a final judgment from which there is no appeal. See 28                          the actual time expended and the rates at which fees and other
U.S.C. §§ 2412(d)(1)(B) and (d)(2)(G) (1994). The                               expenses were calculated. § 2412(d)(1)(B). No award of
defendants failed to file within this period of time. They                      attorneys’ fees can be made in excess of $125 per hour unless
argue this delay was due to the government’s underlying                         the court finds that special factors are present. See
failure to disclose materials, and they further argue that the                  § 2412(d)(2)(A). Finally, section 2412(d) defines a “party” as
Hyde Amendment permits a party to seek attorneys’ fees and                      a corporation that, at the time the civil action was filed, had
costs under section 2412(b) of the EAJA without satisfying                      a net worth which did not exceed $7,000,000 and no more
the requirements of section 2412(d).                                            than 500 employees. See § 2412(d)(2)(B).
  No circuit has yet determined the Hyde Amendment’s                              Another district court, however, has held that the
incorporation of the procedures and limitations of the EAJA.8                   procedural limitations set forth in section 2412(d) of the
The district courts that have addressed this issue are split.                   EAJA are not applicable if the prevailing party chooses to
                                                                                seek attorneys’ fees under section (b) in applying for fees
                                                                                under the Hyde Amendment. See United States v. Holland,
permitted recovery of attorneys’ fees and costs to any prevailing criminal      34 F. Supp.2d 346, 358-59 (E.D. Va. 1999). Section 2412(b)
defendant, unless the government showed that its position in the                of the EAJA provides for recovery of attorneys’ fees and
prosecution had been “substantially justified.” Additionally, the original      expenses by a prevailing party in any civil action brought by
version did not contain the language referring to disclosure and in camera
review of evidence relevant to a Hyde Amendment claim. See 143 Cong.            or against the United States “to the same extent that any other
Rec. H7791 (daily ed. Sept. 24, 1997); 28 U.S.C. § 2412.                        party would be liable under the common law or under the
                                                                                terms of any statute which specifically provides for such an
     8                                                                          award.” Section 2412(b) does not require a statutory filing
      The only circuit opinions issued thus far construe the time for appeal
and whether the government’s position was “vexatious, frivolous, or in          deadline, specify requirements as to the contents of the fee
bad faith.” The Tenth Circuit, in United States v. Robbins, 179 F.3d            application, limit the hourly rate permitted an attorney, nor
1268, 1270 (10th Cir. 1999), concluded that Fed. R. App. P. 4(b) applies        provide a net worth ceiling that, if exceeded, disqualifies a
and requires parties to “file a notice of appeal within the 10 days after the   prevailing party from eligibility for a fee award.
order appealed from is entered.” Most recently, the Eleventh Circuit held
that a criminal defendant was not eligible for a Hyde award based on the
government’s alleged withholding of exculpatory information from the              In this case, Ranger moved for an award under the Hyde
grand jury where “the trial jury convicts with knowledge of that                Amendment without reference to the EAJA. The district
evidence.” United States v. Gilbert, 198 F.3d 1293, 1304 (11th Cir.             court determined that “[the] jurisdictional limitation is
1999).
