NOTE
INTERPRETING “POSITION OF THE UNITED STATES” IN THE
1997 HYDE AMENDMENT
Jackie Carney*
I
NTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 439
I. T
HE BACKGROUND OF THE HYDE AMENDMENT . . . . . . . . . . . . . . . . . . . 441
II. J
UDICIAL INTERPRETATION OF “POSITION OF THE UNITED STATES” IN THE
HYDE AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 444
A. Courts that Do Not Interpret the Hyde Amendment in
Accordance with EAJA
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 444
B. Courts that Interpret the Hyde Amendment in Accordance with
EAJA
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 446
III. “P
OSITION OF THE UNITED STATES” IN THE HYDE AMENDMENT SHOULD BE
INTERPRETED IN ACCORDANCE WITH EAJA’S DEFINITION. . . . . . . . . . . . 448
A. “Position of the United States” Was Borrowed Verbatim from
EAJA
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 448
B. The Hyde Amendment and EAJA are Remedial Statutes that
Serve Similar Purposes
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 453
C. The Surrounding Provisions of the Hyde Amendment Support
Incorporating EAJA’s Definition
. . . . . . . . . . . . . . . . . . . . . . 455
D. EAJA and the Hyde Amendment Are In Pari Materia
. . . . . . . 457
C
ONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 459
I
NTRODUCTION
In October 2017, Mario Nelson Reyes-Romero was indicted for unlawful reen-
try into the United States.
1
During his prosecution, it became apparent that the
Department of Homeland Security (DHS) officers who had conducted his initial re-
moval proceedings in 2011 had engaged in serious misconduct. The evidence indi-
cated that Reyes-Romero may have completed a form waiving his right to a
hearing before the form was translated into Spanish.
2
It also appeared that a DHS
officer, not Reyes-Romero himself, had checked the box waiving Reyes-Romero’s
* Georgetown University Law Center, J.D. 2021. I would like to thank Professor Victoria Nourse for her
thoughtful comments on early drafts of this Note and the American Criminal Law Review staff for their hard
work in preparing this note for publication. I’d also like to thank my family for their endless support. The views
expressed in this Note are entirely my own. © 2022, Jackie Carney.
1. United States v. Reyes-Romero, 959 F.3d 80, 85–86 (3d Cir. 2020), cert. denied, 141 S. Ct. 2622 (2021).
2. Id. at 85.
439
right to a hearing.
3
The Western District of Pennsylvania ultimately dismissed the
indictment, and Reyes-Romero filed a Hyde Amendment
4
application to recover
attorneys’ fees from the government on the ground that its position was “vexatious,
frivolous, [and] in bad faith.”
5
The district court considered the conduct of both the
prosecutors and the DHS officers underlying the prosecution and found that Reyes-
Romero was plainly “railroaded” out of the country and entitled to attorneys’ fees
under the Hyde Amendment.
6
However, the Third Circuit reversed. The court held
that Hyde Amendment analysis is limited to considering prosecutorial misconduct
only, not unlawful actions taken by DHS officers in removal proceedings, despite
acknowledging that DHS’s initial removal order was “a necessary element” of the
ultimate prosecution.
7
As a result, Reyes-Romero was saddled with costs and fees
upwards of $73,700.
8
This outcome is not the result that Congress intended when it passed the Hyde
Amendment. Modeled on the Equal Access to Justice Act (EAJA), which shifts
attorneys’ fees to the government in civil cases where the government’s position
was not substantially justified, the Hyde Amendment was similarly designed to
provide recourse for criminal defendants who prevail against government action
that is vexatious, frivolous, or in bad faith.
9
Both the Hyde Amendment and EAJA
direct a judge to consider the “position of the United States” in determining
whether fee shifting is appropriate. Significantly, Congress defined “position of the
United States” in EAJA to cover not only the government’s conduct during litiga-
tion but also any relevant underlying agency action. Despite Congress’s intent that
the Hyde Amendment incorporate this definition, many circuit courts have consis-
tently construed “position of the United States” more narrowly, as the Third
Circuit did in Reyes-Romero, with disastrous consequences for defendants.
Although Reyes-Romero petitioned the Supreme Court for certiorari last year, the
Supreme Court denied his petition in May of 2021. If presented with a future op-
portunity, the Court should grant certiorari to resolve the circuit split over the
meaning of “position of United States.”
3. Id. at 89.
4. The 1997 Hyde Amendment was enacted as part of the $31.8 billion Commerce, Justice, and State, the
Judiciary, and Related Agencies Appropriations Act. See Act of Nov. 26, 1997, Pub. L. No. 105-119, 111 Stat.
2440 (1997); United States v. Gilbert, 198 F.3d 1293, 1298 (11th Cir. 1999). This Amendment is not to be
confused with the 1976 amendment, named after the same legislator, which barred, with limited exceptions, the
use of federal funds to pay for abortions. See Act of Sept. 30, 1976, Pub. L. No. 94-439, 90 Stat. 1418 (1976).
5. Reyes-Romero, 959 F.3d at 90–91.
6. Id. at 91, 97.
7. Id. at 97–98.
8. Id. at 91.
9. See 28 U.S.C. § 2412(d)(2)(D) (defining “position of the United States” in EAJA as “in addition to the
position taken by the United States in the civil action, the action or failure to act by the agency upon which the
civil action is based; except that fees and expenses may not be awarded to a party for any portion of the litigation
in which the party has unreasonably protracted the proceedings”); 143 C
ONG. REC. H7791 (daily ed. Sept. 24,
1997) (statement of Rep. Hyde, describing how and why the Hyde Amendment is modeled after EAJA).
440 AMERICAN CRIMINAL LAW REVIEW [Vol. 59:439
Part I of this Note will discuss the background of the Hyde Amendment and its pas-
sage in Congress. Part II of this Note will survey how the circuit and district courts
have interpreted “position of the United States” when considering whether to award
fees under the Hyde Amendment. Finally, Part III of this Note will argue that “position
of the United States” should be accorded the same definition in the Hyde Amendment
as provided in EAJA. The text, legislative evidence, purpose, and other supporting pro-
visions of the Hyde Amendment, including the provision that fee awards “shall be
granted pursuant to the procedures and limitations (but not the burden of proof) pro-
vided for an award under [EAJA],” all indicate that Congress intended “position of the
United States” to be interpreted in alignment with EAJA—namely, that it should cover
government misconduct both before and during litigation.
I. T
HE BACKGROUND OF THE HYDE AMENDMENT
The Hyde Amendment was enacted in 1997 as part of the $31.8 billion Commerce,
Justice, and State, the Judiciary, and Related Agencies Appropriations Act.
10
The
Amendment was introduced during the House floor debate on the Appropriations bill
and was offered by Representative Henry Hyde as his version of an amendment that
Representative John Murtha had previously sponsored.
11
Representative Murtha’s
amendment proposed shifting attorneys’ fees to the government for members of
Congress and their staff members who successfully defended themselves against fed-
eral criminal prosecution.
12
However, Representative Hyde felt that Murtha’s amend-
ment was both overly narrow and overly broad: too narrow because it covered only
members of Congress and congressional staff, and too broad because it only required
a defendant’s acquittal for attorneys’ fees to be awarded.
13
The Hyde Amendment as
originally proposed, in contrast, would entitle any prevailing defendant, not just mem-
bers of Congress, in a federal criminal case to attorneys’ fees, unless the court found
that the position of the United States was substantially justified.
14
10. Act of Nov. 26, 1997, Pub. L. No. 105-119, 111 Stat. 2440; United States v. Gilbert, 198 F.3d 1293, 1298
(11th Cir. 1999).
11. Elkan Abramowitz & Peter Scher, The Hyde Amendment: Congress Creates a Toehold for Curbing
Wrongful Prosecution, 22 C
HAMPION, Mar. 1998, at 23.
12. 143 C
ONG. REC. H7791 (daily ed. Sept. 24, 1997) (statement of Rep. Hyde).
13. Id.
14. Id. The originally proposed text of the amendment read:
During fiscal year 1997 and in any fiscal year thereafter, the court, in any criminal case pending
on or after the date of the enactment of this Act, shall award, and the United States shall pay, to a
prevailing party, other than the United States, a reasonable attorney’s fee and other litigation costs,
unless the court finds that the position of the United States was substantially justified or that other
special circumstances make an award unjust. Such awards shall be granted pursuant to the proce-
dures and limitations provided for an award under section 2421 of title 28, United States Code.
Fees and other expenses awarded under this provision to a party shall be paid by the agency over
which the party prevails from any funds made available to the agency by appropriation. No new
appropriations shall be made as a result of this provision.
Id. (statement of the Chairman).
2022] INTERPRETING THE 1997 HYDE AMENDMENT 441
Representative Hyde borrowed the idea for and the language of his amendment
from the Equal Access to Justice Act (EAJA), which was originally passed in
1980
15
and was renewed by Congress in 1985 without its original sunset provi-
sion.
16
In relevant part, EAJA states 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 . . . brought by or against the United States . . . unless the court finds
that the position of the United States was substantially justified or that special cir-
cumstances make an award unjust.”
17
Representative Hyde pointed out that
extending EAJA’s fee-shifting regime to the criminal context was sensible in large
part because of the seventeen years of case law interpreting EAJA. He argued, “[t]
here are cases interpreting [EAJA], interpreting what substantial justification for
the Government to bring the litigation is, and we have had 17 years of successful
interpretation and reinforcement of that law. Now, it occurred to me, if that is good
for a civil suit, why not for a criminal suit?”
18
Although the Hyde Amendment passed with overwhelming bipartisan support
in a House vote of 340 to 84,
19
some members of the House raised concerns.
Representative David Skaggs opposed the bill because he was concerned about
passing the amendment as a rider to an appropriations bill without any committee
reports or hearings to examine the amendment more closely.
20
Further,
Representative Lynn Rivers opposed the bill because she believed that the criminal
justice system already effectively protected defendants from frivolous prosecu-
tions, primarily through the constitutional requirements of probable cause and
grand juries.
21
Both representatives also cited the Department of Justice’s (DOJ)
objections that attorneys’ fee awards would deplete prosecutorial resources and
chill federal prosecutions.
22
Due to warnings from DOJ that it would urge President Bill Clinton to veto the
entire appropriations bill if the Hyde Amendment were included in its then-current
form, the Senate passed the bill without the amendment.
23
As a result, the House-
Senate Conference Committee convened to adapt Representative Hyde’s amend-
ment for passage in both Houses. The Committee made several major changes to
the Hyde Amendment—the final version barred recovery of fees by defendants
15. Act of Oct. 21, 1980, Pub. L. No. 96-481, 94 Stat. 2321 (codified in relevant part at 28 U.S.C. § 2412).
16. Act of Aug. 5, 1985, Pub L. No. 99-80, 99 Stat. 183. For present purposes, the most important change was
that the amended EAJA defined “position of the United States” to include the position underlying the litigation as
well as the government’s position in the litigation. Id. § 2(c)(2)(D), 99 Stat. at 185 (codified at 28 U.S.C. § 2412
(d)(2)(D)).
17. 28 U.S.C. § 2412(d)(1)(A).
18. 143 C
ONG. REC. H7791 (daily ed. Sept. 24, 1997) (statement of Rep. Hyde).
19. 143 C
ONG. REC. H7849-01 (daily ed. Sept. 25, 1997), 1997 WL 590950.
20. 143 C
ONG. REC. H7791–92 (daily ed. Sept. 24, 1997) (statement of Rep. Skaggs).
21. Id. at H7792–93 (statement of Rep. Rivers).
22. Id. at H7792 (statements of Rep. Skaggs and Rep. Rivers).
23. See United States v. Gilbert, 198 F.3d 1293, 1301 (11th Cir. 1999) (citing Harvey Berkman, The Wrongly
Prosecuted May Get Legal Fees Help, N
AT’L L.J., Nov. 24, 1997, at A10).
442 AMERICAN CRIMINAL LAW REVIEW [Vol. 59:439
represented by public counsel, removed the burden of proof from the government,
and provided for the review of evidence ex parte and in camera to protect any clas-
sified government
information.
24
Most importantly, the Committee replaced the
requirement that the position of the United States be “substantially justified” with a
requirement that the position of the United States be “vexatious, frivolous, or in
bad faith” before attorneys’ fees could be awarded.
25
In its report accompanying
the revised amendment, the Committee stated: “The conferees understand that a
grand jury finding of probable cause to support an indictment does not preclude a
judge from finding that the government’s position was vexatious, frivolous or in
bad faith.”
26
The final text of the Hyde Amendment as enacted states:
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 vexa-
tious, frivolous, or in bad faith, unless the court finds that special circumstan-
ces 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 section 2412 of title 28, United States Code . . . Fees and other expenses
awarded under this provision to a party shall be paid by the agency over which
the party prevails from any funds made available to the agency by appropria-
tion. No new appropriations shall be made as a result of this provision.
27
Although the Hyde Amendment does not define the phrase “position of the United
States,” the Equal Access to Justice Act does. In EAJA, “position of the United
States” means, “in addition to the position taken by the United States in the civil
action, the action or failure to act by the agency upon which the civil action is
based; except that fees and expenses may not be awarded to a party for any portion
of the litigation in which the party has unreasonably protracted the proceedings.”
28
This definition was added to EAJA by Congress in 1985 and has been interpreted
by the Supreme Court to require that “only one threshold determination” be made
by the court, considering both prelitigation conduct and subsequent litigation posi-
tions, to decide whether attorneys’ fees should be awarded to a prevailing party.
29
Further, EAJA defines “United States” to include “any agency and any official of
the United States acting in his or her official capacity.”
30
24. H.R. REP. NO. 105-405, at 193–94 (1997).
25. Id. at 194.
26. Id.
27. Act of Nov. 26, 1997, Pub. L. No. 105-119, tit. VI, § 617, 111 Stat. 2440, 2519 (1997) (emphasis added)
(codified at 18 U.S.C. § 3006A note (Award of Attorneys’ Fees and Litigation Expenses to Defense)).
28. 28 U.S.C. § 2412(d)(2)(D).
29. Comm’r, INS v. Jean, 496 U.S. 154, 159 (1990).
30. 28 U.S.C. § 2412(d)(2)(C).
2022] INTERPRETING THE 1997 HYDE AMENDMENT 443
II. JUDICIAL INTERPRETATION OF “POSITION OF THE UNITED STATES” IN THE
HYDE AMENDMENT
The circuit courts are divided over whether “position of the United States” under
the Hyde Amendment should be interpreted in accordance with the same phrase in
EAJA. Most circuits that have considered the issue hold that “position of the
United States” only covers the conduct of prosecutors during the criminal litiga-
tion, an interpretation that is more limited than EAJA’s definition of the same
term.
31
Some of these circuits believe that only the prosecution’s actual litigating
position can be considered,
32
while others believe that misconduct by other govern-
ment officials may be considered only to the extent that prosecutors leverage that
misconduct to bring a frivolous, vexatious, or bad faith prosecution.
33
A minority
of circuits and some district courts interpret “position of the United States” to have
the same meaning in the Hyde Amendment that it does in EAJA and therefore con-
sider both the conduct of prosecutors during litigation and the conduct of any gov-
ernment agents underlying and prior to prosecution.
34
A. Courts that Do Not Interpret the Hyde Amendment in Accordance with EAJA
The Second, Third, Ninth, and Eleventh Circuits have not incorporated EAJA’s
definition of “position of the United States” into the Hyde Amendment. These cir-
cuits typically consider only the conduct of prosecutors in determining whether
attorneys’ fees are due under the Hyde Amendment and refuse to award fees for
the actions of any government agents leading up to the prosecution.
In United States v. Bove, the defendant was acquitted of attempted extortion and
extortion conspiracy and unsuccessfully sought attorneys’ fees under the Hyde
Amendment.
35
The Second Circuit affirmed the denial of fees, recognizing that the
Hyde Amendment “apparently borrowed the phrase ‘position of the United States’
from the Equal Access to Justice Act” but interpreted that phrase to mean “the gov-
ernment’s general litigation stance: its reasons for bringing a prosecution, its char-
acterization of the facts, and its legal arguments.”
36
The court reasoned that the
definition of “position of the United States” given in EAJA could not mean
31. See, e.g., United States v. Bove, 888 F.3d 606, 608 (2d Cir. 2018); United States v. Reyes-Romero, 959
F.3d 80, 92 (3d Cir. 2020), cert. denied, 141 S. Ct. 2622 (2021); United States v. Shaygan, 652 F.3d 1297, 1301
(11th Cir. 2011); United States v. Mixon, 930 F.3d 1107, 1110 (9th Cir. 2019); see also United States v. Monson,
636 F.3d 435, 439 (8th Cir. 2011) (describing the Hyde Amendment as intending to deter “prosecutorial
misconduct, not prosecutorial mistake,” without analyzing the scope of “position of the United States” (emphases
added)).
32. Shaygan, 652 F.3d at 1301–02.
33. Reyes-Romero, 959 F.3d at 92.
34. See, e.g., United States v. Heavrin, 330 F.3d 723, 727–28 (6th Cir. 2003); United States v. Knott, 256 F.3d
20, 31 (1st Cir. 2001); United States v. Gardner, 23 F. Supp. 2d 1283, 1294–95 (N.D. Okla. 1998).
35. No. 07-CR-304S, 2016 WL 6573838, at *1 (W.D.N.Y. Nov. 7, 2016), aff’d, 888 F.3d 606.
36. Bove, 888 F.3d at 608 n.10.
444 AMERICAN CRIMINAL LAW REVIEW [Vol. 59:439
precisely the same thing in the Hyde Amendment because it does not “appl[y]
exactly in a criminal prosecution.”
37
Similarly, in United States v. Reyes-Romero, the case discussed in the introduc-
tion to this Note, the defendant was prosecuted for unlawful reentry after being
removed to El Salvador by the Department of Homeland Security (DHS).
38
The
Third Circuit reversed a grant of fees under the Hyde Amendment, reasoning that
the district court should not have considered the conduct of DHS officers in deter-
mining whether the “position of the United States” was “frivolous, vexatious, or in
bad faith.”
39
The court explicitly held that EAJA’s definition of “position of the
United States” should not be incorporated into the Hyde Amendment, determining
that only “the position taken by the department and officers charged with adminis-
tering the prosecution” should be considered.
40
While the Third Circuit did explain
that “misconduct by law enforcement officers or other executive departments can
be relevant to a Hyde Amendment application if prosecutors leverage that miscon-
duct to further a prosecution that has no factual or legal basis or that is brought for
purposes of harassment,” the court ultimately held that the Hyde Amendment “is
concerned only with prosecutorial misconduct” and therefore, “alleged misconduct
by DHS or its officers cannot independently create liability for attorney’s fees and
costs.”
41
The Ninth and Eleventh Circuits take an even narrower approach than the
Second and Third Circuits in interpreting “position of the United States.” In United
States v. Mixon, the defendant, a case manager at a federal penitentiary, was
indicted for knowingly engaging in a sexual act with a prisoner she was supervis-
ing.
42
The Ninth Circuit held that “position of the United States” in the Hyde
Amendment means “the government’s litigation position” and stated the
Amendment does not shift attorneys’ fees for “other types of bad conduct by gov-
ernment employees during an investigation.”
43
As a result, the court did not con-
sider the alleged improper conduct of an
FBI agent and a Bureau of Prisons
investigator underlying the defendant’s indictment.
44
Further, in United States v. Shaygan, the defendant was indicted for distributing
and dispensing controlled substances outside the scope of his professional practice
after an undercover investigation by the Drug Enforcement Administration.
45
The
Eleventh Circuit overturned an award of attorneys’ fees under the Hyde
Amendment, holding that a defendant must, “at a minimum, satisfy[] an objective
37. Id.
38. 959 F.3d at 84–85.
39. Id. at 96–97.
40. Id. at 98.
41. Id.
42. 930 F.3d 1107, 1110 (9th Cir. 2019).
43. Id. at 1111.
44. Id. at 1109–10.
45. 652 F.3d 1297, 1301 (11th Cir. 2011), reh’g en banc denied, 676 F.3d 1237 (11th Cir. 2012).
2022] INTERPRETING THE 1997 HYDE AMENDMENT 445
standard that the legal position of the United States amounts to prosecutorial mis-
conduct.”
46
Dissenting from the Eleventh Circuit’s denial of rehearing en banc,
Judge Beverly Martin argued that a Hyde Amendment award should be based on
“an array of government conduct both before the indictment and during litigation,”
an interpretation that aligns with EAJA’s definition.
47
Finally, the Eighth Circuit has assumed, without undertaking any analysis, that
“position of the United States” in the Hyde Amendment refers to prosecutorial mis-
conduct only. In United States
v. Monson, the defendant was indicted for various
drug and firearm offenses after an investigation by Nebraska law enforcement.
48
The Eighth Circuit affirmed the district court’s denial of attorneys’ fees under the
Hyde Amendment and stated that “[t]he intent of the Hyde Amendment is to deter
prosecutorial misconduct, not prosecutorial mistake.”
49
Both the defendant and the
Eighth Circuit framed their arguments around whether the “government’s prosecu-
tion” was vexatious or frivolous.
50
B. Courts that Interpret the Hyde Amendment in Accordance with EAJA
In contrast, the First and Sixth Circuits interpret “position of the United States”
in accordance with EAJA’s definition and permit consideration of non-prosecuto-
rial government conduct. In United States v. Knott, the defendants were indicted
for violating the Clean Water Act after two Environmental Protection Agency
(EPA) inspectors investigated the defendants’ steel mesh plant.
51
The district court
suppressed evidence from the EPA’s investigation as the fruits of an unlawful
search, and after the indictment was voluntarily dismissed, the defendants filed to
recover attorneys’ fees under the Hyde Amendment.
52
Both the district court and
the First Circuit considered the conduct of EPA investigators prior to the criminal
litigation in determining whether the government’s position was “vexatious, frivo-
lous, or in bad faith,”
53
and the First Circuit explicitly held that “it is permissible
for courts to consider the conduct of the investigation” prior to litigation in order to
“provide a context in which to assess whether a prosecution was ‘vexatious’ within
the terms of the Hyde Amendment.”
54
The court did not discuss whether, consist-
ent with EAJA, the conduct of government agents prior to litigation could create
46. Id. at 1312.
47. Shaygan, 676 F.3d at 1251 (Martin, J., dissenting) (quoting United States v. Knott, 256 F.3d 20, 31 (1st
Cir. 2001)).
48. 636 F.3d 435, 437–38 (8th Cir. 2011).
49. Id. at 439.
50. Id. at 439–42.
51. 256 F.3d at 23–24.
52. Id. at 25–26.
53. See United States v. Knott, 106 F. Supp. 2d 174, 180 (D. Mass. 2000) (“After consideration of the conduct
of the EPA personnel and the government in connection with this case, this Court finds that the United States’
prosecution of defendants, although not provably frivolous or in bad faith, was clearly vexatious.”), aff’d in part,
rev’d in part, 256 F.3d 20 (1st Cir. 2001); Knott, 256 F.3d at 31–33.
54. Knott, 256 F.3d at 31.
446 AMERICAN CRIMINAL LAW REVIEW [Vol. 59:439
independent Hyde Amendment liability. This is in contrast to the Third Circuit in
United States v. Reyes-Romero, where the court explicitly limited consideration of
agency misconduct to situations in which prosecutors “leverage that misconduct to
further a prosecution that has no factual or legal basis or that is brought for the pur-
poses of harassment.
”
55
While it is possible that the First Circuit might limit Hyde
Amendment liability similarly to the Third Circuit in a future case, the First Circuit
declined to take that step in Knott.
Similarly, in United States v. Heavrin, the defendant was indicted for bank-
ruptcy fraud and, after he was acquitted, moved for attorneys’ fees under the Hyde
Amendment.
56
In interpreting the term “position of the United States,” the Sixth
Circuit held that “[b]ecause the Hyde Amendment is subject to the procedures and
limitations of the EAJA, the term ‘position’ should be accorded the same meaning
under the Hyde Amendment as it is in the EAJA.”
57
As a result, the court reasoned
that the district court should make just one determination based on the “case as an
inclusive whole” in accordance with the Supreme Court’s interpretation of “posi-
tion of the United States” in EAJA.
58
More recently, in Amezola-Garcia v. Lynch,
the Sixth Circuit affirmed that “position of the United States” has the same mean-
ing in both the Hyde Amendment and EAJA.
59
Some district courts have also interpreted “position of the United States” in ac-
cordance with EAJA’s definition and have considered a broad range of govern-
mental conduct in deciding whether to award fees. First, in United States v.
Holland, the Eastern District of Virginia found the conduct of both the Federal
Deposit Insurance Corporation (FDIC) and the prosecution to be “vexatious” under
the Hyde Amendment, and assessed fees against the FDIC, DOJ, and U.S.
Attorney’s Office for the Eastern District of Virginia.
60
Similarly, in United States
v. Gardner, the Northern District of Oklahoma considered the conduct of
IRS
agents underlying the defendant’s prosecution in determining a fee award under
the Hyde Amendment.
61
The court found that “‘position of the United States’ is a
procedure or limitation incorporated into the Hyde Amendment” and stated that
“in accordance with the EAJA definition, the term ‘position of the United States’
includes the activities of the ‘agency’ involved in this matter and is not limited to
55. 959 F.3d 80, 98 (3d Cir. 2020), cert. denied, 141 S. Ct. 2622 (2021).
56. 330 F.3d 723, 727 (6th Cir. 2003).
57. Id. at 730.
58. Id. (quoting Comm’r, INS v. Jean, 496 U.S. 154, 159 (1990)).
59. 835 F.3d 553, 556 (6th Cir. 2016).
60. 34 F. Supp. 2d 346, 375 (E.D. Va.), vacated in part on reconsideration, 48 F. Supp. 2d 571 (E.D. Va.
1999), aff’d, 214 F.3d 523 (4th Cir. 2000). The district court ultimately vacated the awards against the FDIC
because the defendants’ Hyde Amendment petition only requested that the award be paid by the United States
Department of Justice and/or the United States Attorney’s Office for the Eastern District of Virginia, and thus
“the FDIC did not have sufficient notice that attorneys’ fees and litigation expenses might be assessed against it.”
Holland, 48 F. Supp. 2d at 581.
61. 23 F. Supp. 2d 1283, 1294–95 (N.D. Okla. 1998).
2022] INTERPRETING THE 1997 HYDE AMENDMENT 447
the litigating position taken by the Department of Justice.”
62
It is worth noting,
however, that the circuits in which these district courts sit, namely the Fourth and
Tenth Circuit, have not yet explicitly weighed in on the interpretation question.
III. “P
OSITION OF THE UNITED STATES” IN THE HYDE AMENDMENT SHOULD BE
INTERPRETED IN ACCORDANCE WITH EAJA’S DEFINITION
“Position of the United States” in the Hyde Amendment should be interpreted in
accordance with the definition provided in EAJA. When Congress uses the same
language in two statutes with similar purposes, “it is appropriate to presume that
Congress intended that text to have the same meaning in both statutes.”
63
Further,
when interpreting an ambiguous phrase in a statute, the court must be guided by
the statute’s surrounding provisions.
64
Finally, when statutes are in pari materia—
on the same subject—they “are to be taken together, as if they were one law.”
65
Section A focuses on the text and legislative evidence of the Hyde Amendment
and argues that, because Congress borrowed “position of the United States” verba-
tim from EAJA, Congress intended EAJA’s definition to carry over to the Hyde
Amendment context. Section B focuses on the purpose of the Hyde Amendment
and argues that the EAJA and the Hyde Amendment serve similar purposes and
therefore should be construed in alignment. Section C focuses on the structure of
the Hyde Amendment and argues that other provisions in the Amendment, espe-
cially the explicit command that fee awards “shall be granted pursuant to the pro-
cedures and limitations (but not the burden of proof) provided for an award under
[EAJA],” confirm that Congress intended “position of the United States” to be
interpreted in accordance with EAJA’s definition. Section D focuses on the in pari
materia canon of construction and argues that EAJA and the Hyde Amendment are
in pari materia because they are both fee-shifting statutes, and therefore should be
interpreted cohesively. Taken together, these tools of statutory interpretation com-
pel the conclusion that “position of the United States” should mean the same thing
in the Hyde Amendment as it does in EAJA—namely, both the government’s liti-
gation position and related underlying agency conduct.
A. “Position of the United States” Was Borrowed Verbatim from EAJA
By using the exact phrase “position of the United States” in the Hyde
Amendment, Congress intended that text to carry with it its definition from EAJA.
“There is a presumption that Congress uses the same term consistently in different
statutes,”
66
especially when that term is “obviously transplanted from another legal
62. Id. at 1294.
63. Smith v. City of Jackson, 544 U.S. 228, 233 (2005) (plurality opinion).
64. See Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 99 (1992).
65. United States v. Freeman, 44 U.S. 556, 564 (1845).
66. Water Quality Ins. Syndicate v. United States, 225 F. Supp. 3d 41, 75 (D.D.C. 2016) (quoting Nat’l
Treasury Emp.’s Union v. Chertoff, 452 F.3d 839, 857–58 (D.C. Cir. 2006)); see also Hawaiian Airlines, Inc. v.
448 AMERICAN CRIMINAL LAW REVIEW [Vol. 59:439
source.”
67
Twelve years before the Hyde Amendment was passed, Congress
amended EAJA to clarify the proper definition of “position of the United States” as
including both “the position taken by the United States in the civil action” and “the
action or failure to act by the agency upon which the civil action is based.”
68
Congress’s definition makes intuitive sense given the text: EAJA says “position of
the United States,” not “litigating position of the United States.” Congress chose to
add this explicit definition specifically to address confusion among the circuits
about whether courts conducting a fee award analysis under EAJA could consider
conduct outside the government’s litigating position—the same interpretive issue
that has now arisen under the Hyde Amendment.
69
Therefore, when Congress
passed the Hyde Amendment, “position of the United States” had a settled mean-
ing under EAJA; it covered both the government’s litigation position and its
actions underlying the litigation.
Courts uniformly agree that Representative Hyde patterned the Hyde
Amendment after EAJA.
70
And “position of the United States” in particular was
borrowed verbatim from that statute,
71
raising the presumption that Congress
intended “position of the United States” to have the same meaning in both statutes.
This conclusion is bolstered by the repeated references to EAJA and its history by
members of Congress during the passage of the Hyde Amendment. The bill’s spon-
sor, Representative Hyde, repeatedly referenced EAJA and its amendments during
the House floor debate.
72
He pointed to “17 years of successful interpretation and
Norris, 512 U.S. 246, 254 (1994) (interpreting an undefined word in an employment contract in a way that was
“common in the labor law context”).
67. Stokeling v. United States, 139 S. Ct. 544, 551 (2019) (quoting Hall v. Hall, 138 S Ct. 1118, 1128 (2018)).
68. Act of Aug. 5, 1985, Pub. L. No. 99-80, § 2(c)(2)(D), 99 Stat. 183, 185 (1985) (codified as amended at 28
U.S.C. § 2412(d)(2)(D)).
69. See H.R. R
EP. NO. 99-120(I), at 8–9 (1985), as reprinted in 1985 U.S.C.C.A.N. 132, 137 (explaining that
when EAJA was originally passed “it was understood that ‘position of the United States’ was not limited to the
government’s litigation position but included the action—including agency action—which led to the litigation,”
but because the federal courts were split on its proper meaning, the amendment “clarifies that the broader
meaning applies”); see also Spencer v. N.L.R.B., 712 F.2d 539, 546–47 (D.C. Cir. 1983) (describing the circuit
split in interpreting “position of the United States” in EAJA prior to congressional amendment).
70. See, e.g., United States v. Gilbert, 198 F.3d 1293, 1300 (11th Cir. 1999) (“Hyde patterned his amendment
after the Equal Access to Justice Act . . . .”); United States v. Knott, 256 F.3d 20, 28 (1st Cir. 2001) (“The Hyde
Amendment was patterned after the Equal Access to Justice Act . . . .”); United States v. Reyes-Romero, 959
F.3d 80, 92 (3d Cir. 2020) (describing the Hyde Amendment as “generally modeled” off of EAJA); United States
v. Shaygan, 676 F.3d 1237, 1244 (11th Cir. 2012) (describing the original version of the Hyde Amendment as
“patterned after the Equal Access to Justice Act”).
71. See, e.g., United States v. Bove, 888 F.3d 606, 608 n.10 (2d Cir. 2018) (“The Hyde Amendment
apparently borrowed the phrase ‘position of the United States’ from the Equal Access to Justice Act . . . .”);
Shaygan, 676 F.3d at 1251 (Martin, J., dissenting) (“Congress adopted the term ‘the position of the United States’
from the Equal Access to Justice Act.”).
72. Statements of sponsors are accorded significant weight in statutory interpretation. See FEA v. Algonquin
SNG, Inc., 426 U.S. 548, 564 (1976) (noting that statements of sponsors “deserv[e] to be accorded substantial
weight in interpreting the statute”); Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the
Inside—An Empirical Study of Congressional Drafting, Delegation and the Canons: Part I, 65 S
TAN. L. REV.
901, 978 (2013) (noting that many of the respondents in the authors’ study, all of whom were congressional
2022] INTERPRETING THE 1997 HYDE AMENDMENT 449
reinforcement”
73
of EAJA in arguing for its adaption to the criminal context via
the Hyde Amendment, which suggests an awareness of EAJA’s history and
scope.
74
He also consistently used the word “government”
75
rather than “prosecu-
tion,” “prosecutors,” or “Justice Department” in describing whose conduct would
be considered in determining fee awards, which is consistent with Congress’s
broad definition of “position of the United States” in EAJA. Even the representa-
tives who opposed the Amendment seemed to understand its potential to cover
non-prosecutorial conduct. For example, Representative Skaggs referred to “per-
sons that may be unjustly prosecuted by the Justice Department and the law
enforcement agencies of the United States,”
76
suggesting that something more than
the prosecution’s litigating position could be grounds for a fee award.
Representative Rivers made a similar suggestion by referring to disclosure of “law
enforcement techniques” during the hearings.
77
Legislative evidence that indicates
a “shared consensus” is generally viewed as reliable.
78
These statements by both
Democratic and Republican congressmembers indicate that Congress assumed that
EAJA’s broad definition of “position of the United States” would carry over into
the Hyde Amendment context.
79
Further, the Conference Report on the Hyde Amendment, which accompanied
the version of the Amendment ultimately signed into law, indicates that Congress
intended a broad range of governmental conduct to be considered in awarding fees.
Conference Reports are generally considered “‘more authoritative’ than comments
from the floor.”
80
The Report states: “The conferees understand that a grand jury
finding of probable cause to support an indictment does not preclude a judge from
counsels responsible for drafting legislation, were of the opinion that floor statements by a bill’s sponsor “should
be viewed as more reliable than other types of floor statements”).
73. 143 C
ONG. REC. H7791 (daily ed. Sept. 24, 1997) (statement of Rep. Hyde).
74. Although the Hyde Amendment’s burden of proof and substantive standard were both amended
significantly in Conference Committee, the phrase “position of the United States” remained unchanged
throughout the legislative process. Therefore, the statements of individual representatives regarding the initial
formulation of the Amendment still have probative value in parsing Congress’ intended meaning of “position of
the United States.”
75. See, e.g., 143 C
ONG. REC. H7792 (daily ed. Sept. 24, 1997) (statement of Rep. Hyde) (“What is the
remedy, if not this, for somebody who has been unjustly, maliciously, improperly, abusively tried by the
Government . . . . [I]f my colleagues are against my amendment, they are saying let the Government do whatever
it wants . . . .”).
76. Id. at H7791 (statement of Rep. Skaggs) (emphasis added).
77. Id. at H7793 (statement of Rep. Rivers) (“[T]here may be disclosure or required disclosure and
compromise of confidential sources or law enforcement techniques . . . .”).
78. While floor statements in opposition of a bill are generally considered unreliable, legislative evidence that
indicates a “shared consensus” is generally viewed as reliable. Gluck & Bressman, supra note 72, at 978.
79. See Cannon v. Univ. of Chi., 441 U.S. 677, 696–97 (1979) (noting that while “[i]t is always appropriate to
assume that our elected representatives, like other citizens, know the law,” that presumption is “especially
justified” when Members of Congress make “repeated references” to the relevant law).
80. Garcia v. United States, 469 U.S. 70, 76 (1984) (quoting Zuber v. Allen, 396 U.S. 168, 187 (1969)); see
also Gluck & Bressman, supra note 72, at 977 (nding that among respondents, “[b]y far, the types of legislative
history viewed as most reliable were committee reports and conference reports in support of the statute”).
450 AMERICAN CRIMINAL LAW REVIEW [Vol. 59:439
finding that the government’s position was vexatious, frivolous or in bad faith.”
81
This statement, albeit brief, suggests that Congress intended district courts, when
awarding fees under the Hyde Amendment, to holistically assess governmental
conduct, including but not limited to the prosecution’s successful procurement of
an indictment. Congress was striking a balance: It raised the substantive standard
for fee awards to “frivolous, vexatious or in bad faith” to alleviate DOJ’s concerns
of chilling prosecutions but cautioned the government that it would not be able to
rely on a probable cause determination alone to justify its conduct.
Interpreting “position of the United States” to have the same meaning in both
statutes is also in accord with Supreme Court and lower court precedent. In
Commissioner, INS v. Jean, the Court, in interpreting “position of the United
States” in EAJA, concluded that the use of the word “position” in the singular form
“buttresses the conclusion that only one threshold determination for the entire civil
action is to be made,” which may encompass “both the agency’s prelitigation con-
duct and the Department of Justice’s subsequent litigation positions.”
82
The Court
reasoned that because “any given civil action can have numerous phases,” fee-
shifting statutes like EAJA favor “treating a case as an inclusive whole, rather than
as atomized line-items.”
83
That reasoning applies with equal force to the Hyde
Amendment’s use of the same phrase, especially given that criminal cases often
also have numerous phases. Further, although the Supreme Court has not had the
occasion to interpret the Hyde Amendment and EAJA in the same case, the lower
courts have used Hyde Amendment cases to assist their interpretations of EAJA,
84
further counseling in favor of interpreting “position of the United States” to have
the same meaning in both statutes.
The other differences in text between EAJA and the Hyde Amendment do not
compel a different conclusion—they simply indicate that Congress was attuned to
concerns raised by opponents of the Amendment regarding the differences
between the criminal and civil fee-shifting contexts. The Conference Committee
altered the Hyde Amendment’s text from EAJA in important ways to provide spe-
cial safeguards for the government in criminal prosecutions, including for review
of evidence ex parte and in camera, shifting the burden of proof to the defendant,
and raising the substantive legal standard required to authorize fee shifting.
85
These changes specifically responded to objections raised in the House.
86
81. H. R. REP. NO. 105-405, at 194 (1997).
82. 496 U.S. 154, 159 (1990).
83. Id. at 161–62.
84. See Murkeldove v. Astrue, 635 F.3d 784, 790–91 (5th Cir. 2011) (using United States v. Claro, 579 F.3d
452 (5th Cir. 2009), which interpreted the Hyde Amendment requirement that a party “incur” fees, to interpret
the same requirement in EAJA); Amezola-Garcia v. Lynch, 835 F.3d 553, 556 (6th Cir. 2016) (interpreting
“position” in EAJA using United States v. Heavrin, 330 F.3d 723, 730 (6th Cir. 2003), which interpreted
“position” in the Hyde Amendment).
85. H. R. R
EP. NO. 105-405, at 194 (1997).
86. For example, Representative Skaggs found it problematic that the Hyde Amendment merely repeated the
“substantial justification” requirement from EAJA and stated that “were the words ‘malicious’ and ‘abuse’ in
2022] INTERPRETING THE 1997 HYDE AMENDMENT 451
However, these textual differences are not “overwhelming” and do not overcome
EAJA’s and the Hyde Amendment’s “parallel text and purposes,” which counsel
in favor of interpreting the two statutes consistently.
87
Further, “position of the
United States” is the only textual phrase in the Hyde Amendment that did not
change during the drafting process. Had Congress wanted “position of the United
States” to mean something different in the Hyde Amendment than it did in EAJA,
it arguably would have used different language.
Congress was not required to explicitly include EAJA’s definition “position of
the United States” in the text of the Hyde Amendment to convey its intent that the
phrases be interpreted consistently.
88
Although “it is generally presumed that
Congress acts intentionally and purposely in disparate inclusion or exclusion,”
89
Congress both included verbatim the phrase “position of the United States” from
EAJA and excluded EAJA’s corresponding definition. The interpretive balance
tips in favor of intentional inclusion when one considers the entire text of the Hyde
Amendment, which “indicates Congress’ intent to have proceedings under the
Hyde Amendment treated similarly to those under the EAJA.”
90
Congress has al-
ready been forced to override the courts that interpreted EAJA too narrowly; it
should not have to do so again in the Hyde Amendment context.
91
Although con-
gressional silence is sometimes presented as evidence of congressional acquies-
cence to the dominant position of the circuit courts, the Supreme Court has
[the Amendment], and maybe those are criteria that ought to be introduced, it would be a different matter.” 143
C
ONG. REC. H7792 (daily ed. Sept. 24, 1997) (statement of Rep. Skaggs). Congress responded to this concern by
changing the standard to “vexatious, frivolous or in bad faith.” Similarly, Representative Rivers was concerned
about “required disclosure and compromise of confidential sources or law enforcement techniques” or
“disclosure of classified information.” Id. at H7793 (statement of Rep. Rivers). Congress responded to this
concern by providing for review of evidence ex parte and in camera.
87. See Lawson v. FMR LLC, 571 U.S. 429, 459 (2014) (interpreting two statutes consistently in light of their
“parallel text and purposes” despite the fact that Congress had failed to incorporate the definition from one
statute into the other and that one statute covered a far wider range of conduct than the other).
88. Although EAJA’s definition of “position of the United States” explicitly refers to civil actions, Congress
arguably intended this definition to be imported into the Hyde Amendment mutatis mutandis—that is, with the
necessary changes made—to adapt the text of EAJA’s definition to the criminal context.
89. Russello v. United States, 464 U.S. 16, 23 (1983) (quoting United States v. Wong Kim Bo, 472 F.2d 720,
722 (5th Cir. 1972)).
90. United States v. Truesdale, 211 F.3d 898, 905 (5th Cir. 2000); see also infra Part III.C, discussing other
provisions of the Hyde Amendment.
91. Although empirical analysis of congressional overrides has suggested that Congress actually is more
likely to override Supreme Court statutory decisions where the Court based its interpretation “in significant part
on whole act or whole code canons,” these overrides occur where the Court finds “plain meaning” due to whole
act or whole code comparisons and fails to appropriately consider legislative history and congressional purpose.
Matthew R. Christiansen & William N. Eskridge, Jr., Congressional Overrides of Supreme Court Statutory
Interpretation Decisions, 1967–2011, 92 T
EX. L. REV. 1317, 1469 (2014). Here, a whole code interpretation is
uniquely appropriate because it is supported by the legislative evidence and congressional purpose and because
Congress modeled the Hyde Amendment on EAJA. See Anita S. Krishnakumar, Cracking the Whole Code Rule,
96 N.Y.U. L. R
EV. 76, 146 (2021) (“[J]udicial efforts to interpret a later-enacted statute consistently with an
earlier statute that served as its model . . . are likely both to further congressional intent and to honor, rather than
ignore, legislative process realities.”).
452 AMERICAN CRIMINAL LAW REVIEW [Vol. 59:439
repeatedly cautioned that “[i]t is at best treacherous to find in congressional silence
alone the adoption of a controlling rule of law,”
92
especially when there is some di-
vision among the lower courts, as is present here.
93
Therefore, the text of the
Amendment and legislative evidence confirm that it is not only “appropriate but
also realistic” to presume that Congress was “thoroughly familiar” with EAJA’s
definition of “position of the United States” and that it expected the Hyde
Amendment “to be interpreted in conformity” with it.
94
B. The Hyde Amendment and EAJA are Remedial Statutes that Serve Similar
Purposes
In addition to sharing the text “position of the United States,” the Hyde
Amendment and EAJA also share similar purposes. When Congress uses the same
language in two statutes with similar purposes, “it is appropriate to presume that
Congress intended that text to have the same meaning in both statutes.”
95
Both
EAJA and the Hyde Amendment were passed to avoid Pyrrhic victories where a
litigant successfully defends against an unreasonable or abusive government law-
suit but is financially ruined in the process. Congress passed EAJA in 1980 in
response to its concern that persons “may be deterred from seeking review of, or
defending against, unreasonable governmental action because of the expense
involved in securing the vindication of their rights.”
96
As the D.C. Circuit
described the statute: “Congress hoped to provide relief to the victims of abusive
governmental conduct, to enable them to vindicate their rights without assuming
enormous financial burdens.”
97
Seventeen years later, Representative Hyde intro-
duced the Hyde Amendment as “tak[ing] the concepts in the Equal Access to
Justice Act and appl[ying] them in the criminal context.”
98
Although the Hyde
Amendment does not include an official congressional statement of purpose,
Representative Hyde made it clear that he intended his Amendment to solve the
same problem that EAJA would if it applied to criminal defendants.
99
92. United States v. Wells, 519 U.S. 482, 496 (1997) (alteration in original) (internal quotation marks
omitted); see also Brown v. Gardner, 513 U.S. 115, 121 (1994) (“[C]ongressional silence lacks persuasive
significance.” (internal quotation marks omitted)).
93. Wells, 519 U.S. at 496; see also supra Part II, discussing the circuit split in the interpretation of “position
of the United States.”
94. Cannon v. Univ. of Chicago, 441 U.S. 677, 698–99 (1979) (holding that Congress patterned Title IX after
Title VI of the Civil Rights Act of 1964 and intended for them to be interpreted and enforced in the same
manner).
95. Smith v. City of Jackson, 544 U.S. 228, 233 (2005).
96. Pub. L. No. 96-481, § 202, 94 Stat. 2321, 2325 (1980) (codified as amended at 5 U.S.C. § 504 note)
(setting forth congressional findings and articulating Congress’s purpose in enacting the legislation); Sullivan v.
Hudson, 490 U.S. 877, 883 (1989) (reiterating the same).
97. Spencer v. N.L.R.B., 712 F.2d 539, 550 (D.C. Cir. 1983).
98. United States v. Troisi, 13 F. Supp. 2d 595, 596 (N.D. W. Va. 1998) (quoting Comments, Questions, and
Answers on the Hyde Amendment, 105th Cong., 2d Sess. (1997) (statement of Rep. Hyde)).
99. See Corley v. United States, 556 U.S. 303, 318 (2009) (“[A] sponsor’s statement to the full Senate carries
considerable weight . . . .”).
2022] INTERPRETING THE 1997 HYDE AMENDMENT 453
Representative Hyde described the problem that the Hyde Amendment was
designed to combat as follows:
If you were to take a piece of paper and sit down and say, what is the most
unjust thing in all of the law, you would have to say when you are pursued by
somebody, and you are ultimately vindicated, and you have to swallow what
can be bankrupting costs. You mortgage your house, you mortgage your
future, and you may have won the case, but you have really lost the war
because you are bankrupt. So this simply says to Uncle Sam, look, if you are
going to sue somebody, and civilly we have had that for 17 years, under my
amendment criminally, and you cannot prove substantial justification after the
case is over, and the verdict is not guilty, then the prosecution pays something
toward the attorney’s fees of the victim. That is justice. It may be rough jus-
tice, but it is substantial justice.
100
Although the text of the Hyde Amendment was revised in Conference Committee
after Representative Hyde made these statements, the resulting statute was still
intended to serve a similar purpose to EAJA by compensating prevailing criminal
defendants when the government’s conduct met the relevant statutory standard.
Additionally, the fact that EAJA and the Hyde Amendment operate in the civil
and criminal contexts, respectively, does not indicate that Congress intended the
statutes to serve different purposes. “The best evidence of [a statute’s] purpose is
the statutory text adopted by both Houses of Congress and submitted to the
President.”
101
By modeling the text and structure of the Hyde Amendment on
EAJA, Congress indicated its belief that the statutes serve similar purposes.
Moreover, the use of the exact phrase “position of the United States” is strong evi-
dence that the Hyde Amendment was meant to serve a similar purpose to EAJA, at
least with respect to what range of conduct should be considered in deciding fee
awards. Given the heightened risks that criminal trials pose to defendants and the
structural protections that Congress built into the Hyde Amendment for the gov-
ernment’s benefit, there is no reason to think that Congress did not expect EAJA’s
compensatory rationale to also apply to the Hyde Amendment. Congress’s purpose
in passing the Hyde Amendment is best served by considering government conduct
holistically to determine whether a fee award is appropriate, just as Congress’s pur-
pose in passing EAJA was similarly served by “treating a case as an inclusive
whole.”
102
The context in which the Hyde Amendment was passed further confirms that
Congress intended the Amendment to serve a similar purpose to EAJA, especially
regarding EAJA’s broad definition of “position of the United States.” The Hyde
Amendment was proposed and passed during a period of great congressional
100. 143 CONG. REC. H7791 (daily ed. Sept. 24, 1997) (statement of Rep. Hyde).
101. W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 98 (1991).
102. Comm’r, INS v. Jean, 496 U.S. 154, 161–62 (1990).
454 AMERICAN CRIMINAL LAW REVIEW [Vol. 59:439
distrust of federal law enforcement agencies, not just of prosecutors.
103
A mere two
days before the House’s vote on the Hyde Amendment, the Senate Finance
Committee opened hearings into questionable investigative conduct by the IRS, a
federal agency that later interpreted the Hyde Amendment as imposing attorney
fee liability on the agency based on the behavior of agency personnel.
104
Practices and Procedures of the Internal Revenue Service: Hearings Before the S. Comm. on Fin., 105th
Cong. 2, 288 (1997) (statements of Sen. William V. Roth, Chairman, S. Comm. on Fin., and Sen. Orrin G. Hatch,
Member, S. Comm. on Fin.); Internal Revenue Serv., Crim. Tax Div., Mem. No. 200024022, Attorney’s Fees
Awards Under the Hyde Amendment and the Equal Access to Justice Act (EAJA) (Nov. 12, 1999), https://www.
irs.gov/pub/
irs-wd/0024022.pdf (advising that the IRS “may be wholly or partially liable for payment of such
awards based on the conduct of its personnel during the underlying criminal investigation and/or referral of a
case for prosecution”).
This con-
text both explains why the Hyde Amendment received broad bipartisan support
and indicates that Congress intended the Hyde Amendment to reach not only the
actions of prosecutors but also relevant underlying agency misconduct in criminal
cases—exactly the reach of EAJA in the civil context.
In conclusion, both the Hyde Amendment and EAJA are broad remedial statutes
that should be interpreted in accordance with their purposes.
105
Congress, by
amending EAJA to include the definition of “position of the United States,”
responded to a then-existing circuit split by resolving the split against the govern-
ment and in favor of a broader remedy.
106
Therefore, since Congress borrowed
“position of the United States” from EAJA to be used in the Hyde Amendment and
since the Hyde Amendment serves a similar remedial purpose to EAJA, Congress
intended “position of the United States” to mean the same thing in both statutes.
C. The Surrounding Provisions of the Hyde Amendment Support Incorporating
EAJA’s Definition
The rest of the Hyde Amendment’s text supports the conclusion that “position
of the United States” should be interpreted using EAJA’s definition of the same
phrase. “A provision that may seem ambiguous in isolation is often clarified by the
103. Lawrence Judson Welle, Power, Policy, and the Hyde Amendment: Ensuring Sound Judicial
Interpretation of the Criminal Attorneys’ Fees Law, 41 W
M. & MARY L. REV. 333, 340–41 (1999) (describing
how “[t]he tragedies of Waco and Ruby Ridge, the accusations of FBI misconduct in the ‘File-gate’ imbroglio,
and the allegations of impropriety at the FBI crime lab coalesced to create a perception that every federal agency
was out of control”).
104.
105. See, e.g., Cnty. of Washington v. Gunther, 452 U.S. 161, 178 (1981) (taking a “broad approach” in
defining “equal employment opportunity” to avoid an interpretation that would “deprive victims of
discrimination of a remedy”). Although the Hyde Amendment is also a waiver of the United States’ sovereign
immunity, the principle that waivers of sovereign immunity should be strictly construed in favor of the sovereign
is inapposite here where other “traditional tools of statutory consideration” compel a different conclusion.
Richlin Sec. Serv. Co. v. Chertoff, 553 U.S. 571, 589 (2007). Given that traditional tools of statutory construction
demonstrate that Congress intended “position of the United States” to mean the same thing in both the Hyde
Amendment and EAJA, there is “no need . . . to resort to the sovereign immunity canon because there is no
ambiguity left . . . to construe.” Id. at 590.
106. H.R. R
EP. NO. 99-120(I), at 7 (1985), as reprinted in 1985 U.S.C.C.A.N. 132, 135.
2022] INTERPRETING THE 1997 HYDE AMENDMENT 455
remainder of the statutory scheme . . . .”
107
This is the case with “position of the
United States”—the remainder of the Hyde Amendment’s text indicates that “posi-
tion of the United States” is properly interpreted to cover government conduct
underlying the prosecution.
First, the Hyde Amendment states that fee awards “shall be granted pursuant to
the procedures and limitations (but not the burden of proof) provided for an award
under [EAJA].”
108
Congress did not specify which procedures and limitations qual-
ify, and the courts of appeals disagree about whether the definition of “position of
the United States” from EAJA is a “procedure or limitation” that must be incorpo-
rated into the Hyde Amendment.
109
While the definition of “position of the United
States” in EAJA is not a procedure, there is a strong argument that it is a limitation
—as the Supreme Court has observed, “[a] definition is [a] limitation.”
110
Additionally, many circuits have incorporated other definitions from EAJA into
the Hyde Amendment context as limitations, including the definition of “fees and
other expenses”
111
and the definition of “party.”
112
However, even if the definition of “position of the United States” is not a proce-
dure or limitation, Congress’s choice to mandate that the procedures and limita-
tions from EAJA be incorporated into the Hyde Amendment suggests that
Congress intended the complete Amendment to be interpreted in light of and in ac-
cordance with EAJA. As the Fifth Circuit explained while interpreting a different
issue under the Hyde Amendment, “Congress’ direction that the procedures of the
EAJA should apply to proceedings under the Hyde Amendment evinces its intent
that, absent statutory direction to treat the proceedings differently, . . . Hyde
Amendment proceedings and EAJA proceedings should be conducted in a like
manner.”
113
Congress wanted proceedings under the Hyde Amendment to be
107. United Sav. Ass’n of Tex. v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371 (1988).
108. 18 U.S.C. § 3006A note (Award of Attorneys’ Fees and Litigation Expenses to Defense).
109. Compare United States v. Reyes-Romero, 959 F.3d 80, 97 (3d Cir. 2020) (holding that “EAJA’s
substantive definition of ‘position of the United States’ is neither a ‘procedure[]’ nor a ‘limitation[],’ so it cannot
be read into the Hyde Amendment” (alterations in original)), cert. denied, 141 S. Ct. 2622 (2021), with United
States v. Heavrin, 330 F.3d 723, 730 (6th Cir. 2003) (holding that “[b]ecause the Hyde Amendment is subject to
the procedures and limitations of the EAJA, the term ‘position’ should be accorded the same meaning under the
Hyde Amendment as it is in the EAJA”).
110. Fed. Radio Comm’n v. Nelson Bros. Bond & Mortg. Co. (Station WIBO), 289 U.S. 266, 276 (1933).
111. See, e.g., United States v. Claro, 579 F.3d 452, 461 (5th Cir. 2009) (incorporating EAJA’s requirement
that “fees and other expenses” be “incurred” into the Hyde Amendment); United States v. Sherburne, 249 F.3d
1121, 1129 (9th Cir. 2001) (holding that the cap on attorney’s fees in EAJA also applies to recovery under the
Hyde Amendment).
112. See, e.g., United States v. Knott, 256 F.3d 20, 26–27 (1st Cir. 2001) (holding that the net-worth limitation
under EAJA, 28 U.S.C. § 2412(d)(2)(B), also applies to recovery under Hyde Amendment); United States v.
Adkinson, 247 F.3d 1289, 1291 n.2 (11th Cir. 2001) (same).
113. United States v. Truesdale, 211 F.3d 898, 905 n.5 (5th Cir. 2000). In Truesdale, the Fifth Circuit was
deciding whether to treat an appeal of a Hyde Amendment motion for fees under Federal Rule of Appellate
Procedure 4(a), which dictates the time limit for filing a civil appeal, or 4(b), which dictates the time limit for
filing a criminal appeal. See id. at 902–05. The court ultimately held that Rule 4(a), the civil standard, should
govern, in part based on its comparison of the Hyde Amendment and EAJA. Id. at 905.
456 AMERICAN CRIMINAL LAW REVIEW [Vol. 59:439
“treated similarly to those under the EAJA,”
114
which involves considering the
same type of conduct in determining fee awards under both statutes. Additionally,
Congress explicitly stated that EAJA’s burden of proof should not be incorporated
into the Hyde Amendment.
115
This suggests that Congress was aware that certain
EAJA provisions were not appropriate in the Hyde Amendment context and said
so explicitly; the definition of “position of the United States” was not similarly
excluded.
Second, the Hyde Amendment states that “fees and other expenses awarded
under this provision to a party shall be paid by the agency over which the party pre-
vails.”
116
This language is also modeled after EAJA
117
and is further evidence of
Congress’s intent that “position of the United States” cover more than prosecuto-
rial misconduct. If Congress intended to limit fee shifting under the Hyde
Amendment to instances of prosecutorial misconduct during litigation, it could
have specified that fees awarded under the statute will be paid by the Department
of Justice or by the “litigating agency.” Instead, by using the broader term
“agency,” Congress left open the possibility that a prevailing party could recover
attorneys’ fees from a government agency whose conduct prior to or outside of the
litigation served as the basis for a fee award. In fact, some district courts have
assessed fees against government agencies other than the DOJ for their misconduct
prior to the criminal litigation.
118
Thus, it is implausible that Congress wanted both
to permit the assessment of attorneys’ fees against any government agency and to
limit the awarding of fees to instances of prosecutorial misconduct. Overall, the
greater statutory context of the Hyde Amendment supports the conclusion that
“position of the United States” should be interpreted broadly, as defined in EAJA.
D. EAJA and the Hyde Amendment Are In Pari Materia
The textual, legislative evidence-based, purposive, and contextual arguments
above are bolstered by the familiar canon that statutes in pari materia, as EAJA
and the Hyde Amendment are, should be interpreted cohesively. When statutes are
in pari materia—on the same subject—it is presumed that if “the same word be
used in both, and a special meaning were given it in the first act, that it was
intended it should receive the same interpretation in the latter act.”
119
Both the
Hyde Amendment and EAJA are fee-shifting statutes, and fee-shifting statutes
114. Id. at 905.
115. 18 U.S.C. § 3006A note (Awarding of Attorneys’ Fees and Litigation Expenses to Defense).
116. Id.
117. See 28 U.S.C. § 2412(d)(4).
118. See, e.g., United States v. Holland, 34 F. Supp. 2d 346, 375 (E.D. Va. 1999) (granting an award against
the DOJ and the FDIC for pre-trial misconduct). The district court ultimately vacated the award against the FDIC
because the defendants’ amended petition only requested that the award be paid by the DOJ or the U.S.
Attorney’s Office for the Eastern District of Virginia. See United States v. Holland, 48 F. Supp. 2d 571, 581 (E.D.
Va. 1999).
119. Reiche v. Smythe, 80 U.S. 162, 165 (1871); cf. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53,
62 (2006) (nding the in pari materia doctrine inapplicable where statutes had “linguistic differences”).
2022] INTERPRETING THE 1997 HYDE AMENDMENT 457
have been interpreted in pari materia even when they cover vastly different areas
of the law. Famously, in West Virginia University Hospitals, Inc. v. Casey, the
court looked at “[a]t least 34 statutes in 10 different titles of the United States
Code,” including statutes on environmental law, consumer protection law, mari-
time employment
law, health law, and civil rights law, to interpret the phrase “a
reasonable attorney’s fee” in 42 U.S.C. § 1988.
120
Although the Court’s approach
in that case has been criticized,
121
no such wide-ranging inquiry is required here to
discover the statutory definition of “position of the United States.”
The phrase “position of the United States” is only used in four fee-shifting stat-
utes in the entire United States Code: EAJA, the Hyde Amendment, 26 U.S.C §
7430 (which covers fee shifting under the Internal Revenue Code), and 28 U.S.C §
1498 (which covers federal government patent use). Section 7430 awards reasona-
ble litigation costs (including attorneys’ fees) and reasonable administrative costs
to litigants in any “administrative or court proceeding . . . brought by or against the
United States in connection with the determination, collection, or refund of any
tax, interest, or penalty” under the Internal Revenue Code, except if the “United
States establishes that the position of the United States in the proceeding was sub-
stantially justified.”
122
Section 1498 permits a patent holder whose invention is
used or manufactured by the United States without permission to bring an action in
the U.S. Court of Federal Claims to recover reasonable compensation from the
government.
123
Barring statutory exceptions, reasonable compensation does not
include attorneys’ fees “if the court finds that the position of the United States was
substantially justified.”
124
Of these four statutes, “position of the United States” is only defined in EAJA
and § 7430, and both statutes define the phrase similarly. As discussed already,
“position of the United States” in EAJA is defined as “the position taken by the
United States in the civil action” and “the action or failure to act by the agency
upon which the civil action is based.”
125
Similarly, in 1996, Congress amended §
7430 to define “position of the United States” as both “the position taken by the
United States in a judicial proceeding” and “the position taken in an administrative
proceeding.”
126
Both of these definitions were on the books before the passage of
the Hyde Amendment, and courts “assume that Congress is aware of existing law
120. 499 U.S. 83, 89–90 & n.4 (1991); see also Anuj C. Desai, The Dilemma of Interstatutory Interpretation,
77 W
ASH. & LEE L. REV. 177, 232–34 (2020) (discussing Casey’s use of the in pari materia canon).
121. See T. Alexander Aleinikoff & Theodore M. Shaw, The Costs of Incoherence: A Comment on Plain
Meaning, West Virginia University Hosps. Inc. v. Casey, and Due Process of Statutory Interpretation, 45 V
AND.
L. R
EV. 687, 689 (1992).
122. 26 U.S.C.§ 7430(a)(1)–(2), (c)(4)(B)(i).
123. 28 U.S.C § 1498(a).
124. Id.
125. 28 U.S.C. § 2412(d)(2)(D).
126. 26 U.S.C. § 7430(c)(7).
458 AMERICAN CRIMINAL LAW REVIEW [Vol. 59:439
when it passes legislation.”
127
In contrast, § 1498 does not define “position of the
United States.”
128
The Hyde Amendment should be harmonized with EAJA and § 7430 by giving
“position of the United States” consistent meaning, especially since the Hyde
Amendment explicitly borrowed the phrase from EAJA. In two out of the three
times that Congress used “position of the United States” in the fee-shifting context
before the passage of the Hyde Amendment, it defined the phrase broadly to cover
government conduct both in the relevant litigation and in any related agency pro-
ceeding.
129
This statutory usage strongly suggests that “position of the United
States” is a term of art that has a specific meaning within the context of fee-shifting
statutes and that it had that meaning at the time the Hyde Amendment was passed.
Given that Congress affirmatively intended that EAJA and the Hyde Amendment
be interpreted consistently,
130
the in pari materia canon further reinforces the fact
that “position of the United States” in the Hyde Amendment should be harmonized
with the above-mentioned fee shifting statutes and should cover both the govern-
ment’s litigating position and any relevant underlying government action.
C
ONCLUSION
As one scholar has recently argued, comparisons between statutes “are most de-
fensible, and most powerful, when there is evidence that Congress intended for the
specific statutes at issue to be construed similarly.”
131
Such is the case here.
Congress, through the text of the Hyde Amendment itself and through legislative
evidence, indicated its desire that “position of the United States” in the Hyde
Amendment be interpreted in accordance with the definition of the same phrase in
EAJA. By using the verbatim phrase “position of the United States” and modeling
the Hyde Amendment to suggest a purpose and procedure parallel to those of
EAJA, Congress could not have foreseen the narrow interpretation given to the
statute by some federal appellate courts. The Hyde Amendment requires courts to
consider both the actions of prosecutors and any governmental conduct underlying
the criminal litigation to determine whether the “position of the United States” was
“vexatious, frivolous, or in bad faith.” However, circuit courts have ignored this
congressional command, often with costly consequences for defendants. Mr.
127. Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990).
128. Although the Court of Federal Claims recently interpreted “position of the United States” in § 1498(a) to
only cover the “litigation positions taken by the United States in the civil action in which the attorneys’ fees were
incurred,” this interpretation is not binding in the Hyde Amendment context and is distinguishable. Hitkansut
LLC v. United States, 958 F.3d 1162, 1168 (Fed. Cir. 2020). The Federal Circuit relied on the absence of any
legislative history to the contrary to determine that Congress did not intend EAJA’s definition of “position of the
United States” to be incorporated into § 1498. Id. In contrast, the Hyde Amendment was indisputably modeled on
EAJA, and there is both strong legislative and textual evidence indicating that Congress intended the two statutes
to be harmonized.
129. 28 U.S.C. § 2412(d)(2)(D); 26 U.S.C. § 7430(c)(7).
130. See supra Part III.A.
131. Krishnakumar, supra note 91, at 145.
2022] INTERPRETING THE 1997 HYDE AMENDMENT 459
Reyes-Romero petitioned the Supreme Court for certiorari to answer the question
of whether “position of the United States” should be given the same meaning in
the Hyde Amendment as it has in EAJA,
132
but the Court denied the petition in
May 2021.
133
Since the high Court has declined to resolve the circuit split, lower
courts should fulfill their duty to give effect to congressional intent by interpreting
EAJA and the Hyde Amendment consistently, considering each criminal case “as
an inclusive whole” when deciding whether to award fees under the Hyde
Amendment.
134
Otherwise, the Hyde Amendment’s power to combat injustices
like the one Mr. Reyes-Romero experienced will continue to depend on where the
government hales a defendant into court.
132. See Petition for Writ of Certiorari, Reyes-Romero v. United States, 141 S. Ct. 2622 (2021) (No. 19-
1923), 2020 WL 6945921.
133. Reyes-Romero, 141 S Ct. 2622.
134. Comm’r, INS v. Jean, 496 U.S. 154, 162 (1990).
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