Interpreting 'position of the united states' in the 1997 hyde amendment

• Author: Jackie Carney
• Pages: 439-460

NOTE

INTERPRETING “POSITION OF THE UNITED STATES” IN THE

1997 HYDE AMENDMENT

Jackie Carney*

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 439

I. THE BACKGROUND OF THE HYDE AMENDMENT . . . . . . . . . . . . . . . . . . . 441

II. JUDICIAL 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. “POSITION 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

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 459

INTRODUCTION

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 CONG. 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