Show Me the Money! (Please)

By Wayne C. Fricke; Sept 2000

     Recently the Ninth Circuit addressed an issue of first impression involving the “Hyde Amendment.”  See United States v. Lindberg, 2000 WL 1028929 (9^th Cir.)  The Hyde Amendment, 18 U.S.C. § 3006A, allows for the recovery of litigation expenses to a prevailing criminal defendant when the government’s position was “vexatious, frivolous, or in bad faith.”  See 18 U.S.C. § 3006A. 

     It allows the court to:

…award to a prevailing party, other than the United States, reasonable 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.  Such awards shall be granted pursuant to the procedures and limitations (but not the burden of  proof) provided for an award under § 2412 of title 28, United States Code [the EAJA]…18 U.S.C. § 3006A.

    In Lindberg the court for the first time addressed the defendant’s burden prior to recovery of costs under the Hyde Amendment’s civil counterpart, the Equal Access to Justice Act, 20 U.S.C. § 2412D(1)(a).  Additionally, the court held that the district court’s ruling on the amendment’s application is reviewed for abuse of discretion.

     In the underlying criminal action, the Ninth Circuit, which reversed the defendant’s conviction, indicated that the evidence was insufficient to convict the defendant, but there was evidence sufficient for the grand jury to indict, for the district court to deny a motion for acquittal, and for the jury to convict.

     Preliminarily, the Ninth Circuit noted that the burden was on the defendant to demonstrate that the government’s position was vexatious, frivolous, or in bad faith.  Although the defendant’s conviction had been reversed on appeal, the defendant needed to prove more than a favorable outcome to be awarded litigation expenses.  Ultimately, the court held that the defendant must show more than that the government’s position was not substantially justified.   However, the court refused to settle on a precise formula as to what this meant, because under any standard it found that it could not conclude that the district court abused its decision.

     The court did note with approval, however,  that the approach taken in Black’s Law Dictionary (used by the 11^th and 4^th Circuits) seemed reasonable.  That approach is stated as follows:

“Vexatious” means “without reasonable or probable cause or excuse.”  Black’s Law Dictionary 1559 (7^th ed. 1999).

A “frivolous action” is one that is “[g]roundless … with little prospect of success; often brought to embarrass or annoy the defendant.  Black’s Law Dictionary 668 (6^th ed. 1990).  “Bad faith” is not simply bad judgment or negligence, but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity; … it contemplates a state of mind affirmatively operating with furtive design or ill will.  Black’s Law Dictionary 139 (6^th ed. 1990).  

See United States v. Gilbert, 198 F.3d 1293, 1298 (7^th Cir. 1999).

     Thus, it takes more than successfully defending a case, but positive proof, perhaps even demonstrating that the prosecution intentionally refused to provide exculpatory evidence to the grand jury.