United States v. 2005-01-26 | 03-10179 | USA VHRISTOV | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 03-10179
Plaintiff-Appellee, D.C. No.
v. CR-02-00012-1-  RLHZLATKO HRISTOV,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, District Judge, Presiding
Argued and Submitted
Submitted December 9, 2004*
San Francisco, California
Filed January 27, 2005
Before: Dorothy W. Nelson, Andrew J. Kleinfeld, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge D.W. Nelson
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
1177

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COUNSEL
Nicolette Glazer, Law Offices of Larry R. Glazer, Century
City, California, for the appellant.
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Roger W. Wenthe, Assistant United States Attorney, Las
Vegas, Nevada, for the appellee.
OPINION
D.W. NELSON, Circuit Judge:
We answer today a question of law presented for the first
time in this Circuit: May a timely-filed motion for attorney’s
fees under the Hyde Amendment, Pub. L. No. 105-119, Title
VI, § 617, 111 Stat. 2440, 2159, codified at 18 U.S.C.
§ 3006A, Statutory Notes, be amended outside the statutory
deadline for filing such a motion, to include required informa-
tion that was omitted from the motion when initially filed?
We hold that a motion under the Hyde Amendment may be
amended under the “relation-back” doctrine.1
DISCUSSION
Appellant Zlatko Hristov was prosecuted for marriage
fraud in violation of United States law, and was acquitted on
all charges by a jury. After acquittal, he filed a motion for
attorney’s fees under the Hyde Amendment, but he omitted
two required pieces of information: an allegation that his net
worth was less than $2 million, and an itemized statement of
attorney’s fees. The district court denied Hristov’s motion in
a brief order on the merits of the claim, and denied as moot
Hristov’s request to amend his motion with the missing informa-
tion.2 Hristov timely appealed. The government, noting that
Hristov’s original application was incomplete, urges that the
failure to file a motion with all of the required information
1This Circuit has determined that motions for attorney’s fees under the
Hyde Amendment are civil, not criminal matters. United States v. Braun-
stein, 281 F.3d 982, 992-93 (9th Cir. 2002).
2We affirm the district court’s denial on the merits in a separately filed
memorandum disposition.
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within the thirty-day statutory deadline should be a complete
bar to a Hyde Amendment attorney’s fees motion. We dis-
agree.
[1] The Hyde Amendment was enacted to provide defen-
dants who have been wrongfully prosecuted a means “to sanc-
tion the Government for ‘prosecutorial misconduct.’ ” United
States v. Manchester Farming P’ship, 315 F.3d 1176, 1182
(9th Cir. 2003). It provides, in relevant part:
[T]he court, in any criminal case . . . may award to
a prevailing party, other than the United States, a
reasonable attorney’s fee and other litigation
expenses, where the court finds that the position of
the United States was vexatious, frivolous, or in bad
faith, unless the court finds that special circum-
stances make such an award unjust. Such awards
shall be granted pursuant to the procedures and limi-
tations (but not the burden of proof) provided for an
award under section 2412 of title 28, United States
Code.
18 U.S.C. § 3006A, Statutory Notes.3 The law specifically
incorporates the filing requirements of the Equal Access to
Justice Act, 28 U.S.C. § 2412 (“EAJA”). The EAJA requires,
in relevant part, that an applicant for attorney’s fees submit
within thirty days of final judgment an application for fees
“which shows that the party is a prevailing party and is eligi-
ble to receive an award under this subsection, and the amount
sought, including an itemized statement . . . stating the actual
time expended and the rate at which fees and other expenses
were computed.” 28 U.S.C. § 2412(d)(1)(B). “Party” is subse-
quently defined as “an individual whose net worth did not
3We review statutory interpretations of the Hyde Amendment de novo.
Zambrano v. INS, 282 F.3d 1145, 1149 (9th Cir.), amended by 302 F.3d
909 (9th Cir. 2002) (reviewing de novo a district court’s statutory interpre-
tation of the Equal Access to Justice Act).
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exceed $2,000,000 at the time the civil action was filed.” Id.
at § 2412(d)(2)(B). Hristov did not submit a statement that his
net worth was under $2,000,000, and submitted only a very
basic summary of his attorney’s fees.4
[2] The Supreme Court recently ruled on a related issue,
while reserving specifically the question presented here. See
Scarborough v. Principi, ___ U.S. ___, 124 S. Ct. 1856, 1861,
1869 n.7 (2004). The Court ruled that an EAJA attorney’s
fees application could be amended by “relation back” to
include an omitted allegation that the government’s position
was not substantially justified, but specifically stated that it
offered “no view on the applicability of ‘relation back’ ” in
cases where an applicant failed to meet other application
requirements of the EAJA. Id. at 1867-68, 1869 n.7. Permit-
ting parties to amend deficient fee applications, the Court rea-
soned, would advance Congress’s purpose in enacting the
EAJA to allow parties to challenge unjust governmental
action without fear of the cost of litigation. Id. at 1867 (quot-
ing H.R. Rep. 96-1005, at 7). Furthermore, relation back
would not prejudice the government, because “the Govern-
ment is aware, from the moment a fee application is filed, that
to defeat the application on the merits, it will have to prove
its position ‘was substantially justified.’ ” Id. Congress’s
waiver of sovereign immunity is not unduly broadened by
permitting amendment, because “[o]nce Congress waives sov-
ereign immunity,” equitable civil procedure rules, such as
relation back or equitable tolling, “should generally apply to
the Government ‘in the same way that’ they apply to private
parties.” Id. at 1869 (quoting Franconia Assocs. v. United
States, 536 U.S. 129, 145 (2002) (quoting Irwin v. Dep’t of
4The attorney’s fees statement that Hristov submitted might be suffi-
cient under the EAJA, because it contained the number of hours worked
and the rate at which they were calculated. We do not determine whether
or not the fee statement Hristov submitted was sufficient as a matter of
law. For our purposes, this is not relevant, since we hold that the fee state-
ment could be amended after the initial filing to provide the more specific
details sought by the government.
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Veterans Affairs, 498 U.S. 89, 95 (1990))). Though it does not
address the specific issue that concerns us here, Scarborough
guides us by providing that the relation back doctrine permits
amendment of a deficient EAJA motion as long as doing so
would not prejudice the government, without overly broaden-
ing Congress’s waiver of sovereign immunity.
[3] This circuit has, in the EAJA context, permitted a party
to amend a timely filed affidavit that contained only a portion
of the information required to establish that a non-profit orga-
nization was “an eligible party,” but we have not addressed
this issue in the context of a Hyde Amendment motion that
completely lacks a required assertion. See Thomas v. Peter-
son, 841 F.2d 332, 337 (9th Cir. 1988). Other circuits have
more squarely addressed the issue of both Hyde Amendment
and EAJA applications filed without required elements, and
have held that amendment of such a motion is permissible
even when the required elements are completely missing, as
was Hristov’s statement of net worth. See United States v.
True, 250 F.3d 410, 421 (6th Cir. 2001) (holding that a failure
to timely file statement of net worth is not fatally deficient in
Hyde Amendment case); Singleton v. Apfel, 231 F.3d 853,
858 (11th Cir. 2000) (permitting amendment of EAJA fee
motion to include net worth statement and “substantially justi-
fied” language); Bazalo v. West, 150 F.3d 1380, 1383-84
(Fed. Cir. 1998) (holding that a failure to file statement of net
worth does not render EAJA application deficient); Dunn v.
United States, 775 F.2d 99, 103-104 (3d Cir. 1985) (permit-
ting, under EAJA, amendment of attorney’s fees statement
lacking amount sought after thirty-day period elapses).
[4] In True, the Sixth Circuit considered a nearly identical
situation to the one presented to us here: a criminal defendant
failed to allege his net worth and provide an itemized state-
ment of attorney’s fees in his Hyde Amendment application.
250 F.3d at 419. The court’s analysis reflects the same princi-
ples grounding the Supreme Court’s opinion in Scarborough:
that the government is not prejudiced by an amended claim
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because it has been put on notice in a timely manner that fees
have been sought; and that permitting relation back does not
constitute an undue broadening of sovereign immunity, while
denying relation back would narrow that waiver unnecessar-
ily. Id. at 420-421. Given the Supreme Court’s recent reitera-
tion of these principles in the EAJA context,5 we believe that
the Sixth Circuit’s approach strikes the most appropriate bal-
ance between fairness to the parties and accomplishing Con-
gress’s objectives in enacting the Hyde Amendment.
[5] We note that relation back is permitted under the Fed-
eral Rules of Civil Procedure only when so doing will not
prejudice the opposing party’s ability to mount a defense on
the merits. Fed. R. Civ. P. 15(c). As the Court noted in Scar-
borough, once Congress has waived sovereign immunity, par-
ties litigating against the government should be given the
same lenient treatment — if they deserve it — that they would
be given if litigating against a private party. 124 S. Ct. at
1869-70. This includes, of course, considering the prejudice
that would befall the government if an opposing party that
doesn’t follow the rules is allowed to amend its pleadings. Id.
at 1870. When the government can show no prejudice from
allowing an amendment to a fees application, it is unduly
harsh not to allow an amendment to bring the application in
5Scarborough, as the government correctly notes, distinguishes in one
paragraph the elements that a party must “show,” which include net worth
and an attorney’s fees statement, and the allegation at issue in that case,
that the government’s position was not “substantially justified.” 124 S. Ct.
at 1865. However, the opinion clearly states that it does not address
whether relation back applies to a motion lacking the required “show-
[ings].” Id. at 1869 n.7. The government argues that the Court intended to
make “mandatory” those elements that a party must “show” under
§ 2412(d)(1)(B), analogous to the party name required in Torres v. Oak-
land Scavenger Co., 487 U.S. 312 (1988). Torres addressed the failure to
name a party in a notice of appeal, not the failure to make a fairly techni-
cal assertion, and was premised on the fact that not naming a party pro-
vides inadequate notice to the court and parties of the identity of the party
appealing. Id. at 316-17. Notice in this case is satisfied by Hristov’s
motion, though it may lack certain required assertions.
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conformity with a technical pleading requirement. The gov-
ernment was on notice of Hristov’s intent to seek attorney’s
fees once he timely filed his motion, and was aware that it
would have the opportunity to dispute his eligibility for such
an award on any ground, just as it could dispute the quantity
of fees he requested.
[6] To boot Hristov from court for failure to comply with
a technical requirement of an application would be equivalent
to an insistence on a technical form of pleading, a practice
disfavored under the Federal Rules of Civil Procedure. See
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513-14 (2002).
The Supreme Court has specifically cautioned against such a
narrow approach: “The Federal Rules reject the approach that
pleading is a game of skill in which one misstep by counsel
may be decisive to the outcome.” Conley v. Gibson, 355 U.S.
41, 48 (1957). Indeed, by not establishing that Hristov’s net
worth was less than $2,000,000, Hristov’s counsel made a
misstep — but the misstep should not be a fatal one.
AFFIRMED.
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