United States of America v. Ranger Electronic Communications, Inc.

20 United States v. Ranger
Electronic Communications
Nos. 98-2255/2322
behalf); Caremore, Inc. v. NLRB, 150 F.3d 628, 630 (6th Cir.
1998) (concluding that Caremore was litigating on its own
behalf, and “the merits of the underlying case involved a
bargaining unit consisting solely of Caremore employees”);
National Truck Equipment Ass. v. National Highway Traffic
Safety Admin., 972 F.2d 669 (6th Cir. 1992) (aggregating
member companies because trucking association was
litigating on behalf of those companies).
I believe that aggregation is clearly appropriate in this case.
The “parties” in the litigation comprised closely linked
entities. Peng was the president and chief financial officer of
Ranger USA. Peng owned fifty-two percent of Ranger
Taiwan, approximately 100 percent of Ranger Shanghai, and
100 percent of Ranger USA. Ranger Taiwan owned almost
100 percent of Ranger Malaysia. Most importantly, unlike the
Caremore and Tri-State Steel cases, Peng, Ranger and the
other co-defendants essentially litigated as a bloc, rather than
as independent entities. The very basis of the plea agreement
was that Peng controlled each of the companies and their
respective litigation decisions. Indeed, the plea agreement
constituted an internal trade-off engineered by
Peng—dismissing charges against him personally and Ranger
in exchange for a guilty plea by Ranger USA, a plea of no
contest by the unindicted co-conspirator (Ranger Shanghai),
and Peng’s agreement to pay Ranger USA’s forfeiture amount
personally. J.A. at 195-201. Ranger’s argument that the
“other Ranger companies’ pleas” can not be imputed to
Ranger is thus unpersuasive. Rather, aggregation is wholly
appropriate.
At the onset of litigation, Ranger Malaysia had 485
employees, Ranger Shanghai had 185 employees, and Ranger
had twelve employees. J.A. at 417. A Dun & Bradstreet
report from November 1996 reported that the Ranger
companies together had more than 800 plant workers.
Because the aggregated entities have well over 500
employees, Ranger is ineligible to bring a Hyde Amendment
claim.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0146P (6th Cir.)
File Name: 00a0146p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED S TATES OF AMERICA ,
Plaintiff-Appellant/
Cross-Appellee,
v.
R ANGER ELECTRONIC
C OMMUNICATIONS, INC.,
Defendant-Appellee/
Cross-Appellant.
;>

1
Nos. 98-2255/2322
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 96-00211—Richard A. Enslen, Chief District Judge.
Argued: January 26, 2000
Decided and Filed: April 24, 2000
Before: JONES, NORRIS, and SILER, Circuit Judges.
_________________
COUNSEL
ARGUED: Joan E. Meyer, ASSISTANT UNITED STATES
ATTORNEY, Grand Rapids, Michigan, for Appellant.
Daniel R. Gravelyn, WARNER, NORCROSS & JUDD,
Grand Rapids, Michigan, for Appellee. ON BRIEF: Joan E.

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2 United States v. Ranger
Electronic Communications
Nos. 98-2255/2322
1Pub. L. No. 105-119, 111 Stat. 2440, 2519 (1997) (reprinted in 18
U.S.C. § 3006A, historical and statutory notes). In its entirety, the Hyde
Amendment provides:
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
Meyer, ASSISTANT UNITED STATES ATTORNEY, Grand
Rapids, Michigan, for Appellant. Daniel R. Gravelyn,
WARNER, NORCROSS & JUDD, Grand Rapids, Michigan,
for Appellee.
SILER, J., delivered the opinion of the court, in which
NORRIS, J., joined. JONES, J. (pp. 14-20), delivered a
separate concurring opinion.
_________________
OPINION
_________________
SILER, Circuit Judge. The government appeals from an
award of attorneys’ fees and costs to Ranger Electronic
Communications, Inc. (“Ranger”) under the Hyde
Amendment. Ranger was indicted for violating 18 U.S.C.
§§ 545 and 1956(a), importing illegal radio equipment and
related money laundering charges. The prosecution ended in
a dismissal with prejudice of the illegal importation charges
against Ranger and its primary officer, Jim Peng, but an
associated corporation, Ranger USA, also owned by Peng,
pled guilty to money laundering in violation of 18 U.S.C.
§ 1956(a)(2) and agreed to a criminal forfeiture of
$990,000.000. Another sister corporation, Ranger Shanghai,
pled no contest to one count of importing merchandise in
violation of 18 U.S.C. § 545.
On appeal, the government argues that Ranger did not file
a timely request for attorneys’ fees and costs under the Hyde
Amendment,1 and that, even if timely filed, as a matter of
Nos. 98-2255/2322 United States v. Ranger
Electronic Communications
19
B.
Ranger, however, must live with the consequences of being
treated as one with the other co-defendants. In particular,
grouping the co-defendants into one entity means that Ranger
was not an “eligible” party under § 2412(d). For that reason,
the award to Ranger must be reversed.
A party is only eligible to receive a Hyde award if it is:
(i) an individual whose net worth did not exceed
$2,000,000 at the time the civil action was filed, or (ii)
any owner of an unincorporated business, or any
partnership, corporation, association, unit of local
government, or organization, the net worth of which did
not exceed $7,000,000 at the time the civil action was
filed, and which had not more than 500 employees at the
time the civil action was filed . . . .
28 U.S.C. § 2412(d)(2)(B). In this case, as in previous cases
under the EAJA, the rather straightforward analysis of
eligibility is complicated because several related companies
and individuals, including subsidiaries, are the co-defendants.
We are thus presented with the question of whether to
aggregate the assets and employees of the related companies,
or look independently at the particular entity bringing the
Hyde Amendment claim. Contrary to Ranger’s argument, in
analogous EAJA cases, this Court has not simply “adhered to
the principle that corporations, even if ‘related,’ must be
treated as independent entities.” Ranger’s Br. at 27. In fact,
“a rule that would prevent aggregation under any
circumstances would contravene the purpose of EAJA.” Tri-
State Steel Construction Co. v. Herman, 164 F.3d 973, 981
(6th Cir. 1999) (Gilman, J., concurring). We therefore look
beyond the formal structure of the litigating parties to inquire
whether a purported independent entity is litigating on its own
behalf, or on behalf of other, related entities as well. See id.
at 979-80 (majority concluding that Tri-State, despite its close
relationship with parent company, was litigating on its own

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18 United States v. Ranger
Electronic Communications
Nos. 98-2255/2322
In my view, however, final judgment did not occur until
May 19, 1998, the date of the sentencing order. In the
criminal context, an order is final and appealable only after
both conviction and sentencing. See Flanagan v. United
States, 465 U.S. 259, 263 (1984); United States v. One
Juvenile Male, 40 F.3d 841, 843 (6th Cir. 1994). Even when
there is a plea agreement and a dismissal of charges, the
dismissal of those charges is not final until the sentencing
order is issued for the charges that remain. The rationale for
this rule is that until the sentencing order issues, the
possibility remains that the defendant will either breach or
withdraw the plea, at which point the previously dismissed
charges can be reinstated. In this case, Ranger USA was
sentenced pursuant to the plea agreement on May 19, 1998.
Prior to sentencing, Ranger USA could have negated the plea
agreement by moving to withdraw the plea under Fed. R.
Crim. Pro. 32(e) or by breaching one of the agreement’s
conditions. After such a withdrawal, the government would
no longer have been bound by the dismissal of the charges
against Ranger, and could re-prosecute those charges. J.A. at
199-200. For this reason, the May 19 sentencing order, not
the earlier dismissal of the charges against Ranger, constituted
the relevant final judgment.
This conclusion of course hinges on an underlying
determination that the co-defendants in the case should be
treated as one party. Technically, Ranger itself did not reach
a plea agreement, only Ranger USA did. A strictly
formalistic approach would therefore deem Ranger’s filing of
the Hyde award claim untimely. But because the co-
defendants in this case were essentially litigating as one, see
infra, and withdrawal or breach by Ranger USA before
sentencing would have terminated the entire agreement, I
believe that the sentencing order for Ranger USA constituted
the final order with respect to all the parties in this case.
Therefore, the May sentencing order of Ranger USA and
Ranger Shanghai comprised the final order for the dismissal
of charges against Ranger, and Ranger’s filing on June 19 was
timely.
Nos. 98-2255/2322 United States v. Ranger
Electronic Communications
3
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 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 Title 28, U.S.C. § 2412. To determine whether or not to
award fees under this section, the court, for good cause shown,
may receive evidence ex parte and in camera (which shall
include the submission of classified evidence or evidence that
reveals or might reveal the identity of an informant or
undercover agent or matters occurring before a grand jury) and
evidence or testimony so received shall be kept under seal. 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.
2The Equal Access to Justice Act, 28 U.S.C. § 2412 et seq.,
authorizes the award of attorneys’ fees and costs to private parties who
prevail against the government in civil actions.
law, there was no “vexatious, frivolous, or bad faith”
prosecution as required under the Act. We hold the Hyde
Amendment incorporates the Equal Access to Justice Act’s2
(“EAJA”) thirty-day time limit for filing claims. As set forth
below, we REVERSE for lack of jurisdiction.
I. BACKGROUND
On December 19, 1996, Ranger, Ranger USA, and Peng
were indicted for illegal importation of radio equipment in
violation of 18 U.S.C. § 545. In addition, Ranger, Ranger
USA, Peng and John Gouvion, the president of Ranger USA,
were indicted for conspiracy to import and sell electronic
devices in violation of 18 U.S.C. § 545. On March 27, 1997,
a superseding indictment charged that Ranger, Ranger USA
and Peng conspired to violate the customs laws in violation of
18 U.S.C. §§ 371 and 545; conspired to commit money

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4 United States v. Ranger
Electronic Communications
Nos. 98-2255/2322
3Under the FCC regulations, radios cannot operate on the CB band
unless express approval is obtained from the FCC to operate on the CB
channels.
laundering in violation of 18 U.S.C. § 1956(h); brought
merchandise into the United States contrary to law in
violation of 18 U.S.C. § 545; and committed money
laundering in violation of 18 U.S.C. § 1956(a)(1) and
(a)(2)(A).
At the time of the indictments, Federal Communications
Commission (“FCC”) regulations required that Citizens Band
(“CB”) radios be “type accepted”3 by the FCC before they
could be distributed in this country. See 47 C.F.R. §§ 2.803
and 95.603. The government argued the radios that were
specified in the indictments were “open” radios, which
operate illegally in that they are not restricted to the forty CB
bands, but operate on additional channels as well. Defendants
argued the radios were “amateur” radios and thus imported
under an exemption. The district court found that “[t]he
radios in question were not type accepted by the FCC and
would not have been type accepted because they broadcast on
frequencies other than those approved by the FCC.” United
States v. Ranger Electronic Communications, Inc., 22 F.
Supp. 2d 667, 670 (W.D. Mich. 1998).
Ranger attempted to obtain exculpatory material from the
government pursuant to Brady v. Maryland, 373 U.S. 83
(1963). In March 1997, defense counsel sought production of
“all evidence known to the government which may be
favorable to the defendant and material either to guilt or
punishment.” In April 1997, the government agreed “to
provide all Brady, Giglio, and Jencks material on January 9,
1998 - three days before trial.”
Defense counsel also tried to obtain evidence from the FCC
to help prove that the regulations in question were vague. In
June 1997, they made requests under the Freedom of
Nos. 98-2255/2322 United States v. Ranger
Electronic Communications
17
1The district court circumvented this bar to Ranger’s application by
carving out an “equitable tolling” exception to this jurisdictional
requirement, allowing a “limited extension of the application period” in
a situation where the government has concealed exculpatory evidence.
United States v. Ranger Electronic Communications, Inc., 22 F.Supp.2d
667, 675 (W.D. Mich. 1998). This was error for two reasons. Most
seriously, the court’s tolling defied precedent that courts can not extend
a jurisdictional deadline except in the narrow circumstance described
supra, which was not present in this case. Second, even assuming
arguendo that some form of equitable tolling is permissible, because
Ranger filed its Hyde Amendment claim 30 days after it had received the
FOIA documents, the district court’s extension of time into June was
unreasonable.
(1991). Because the thirty-day deadline is jurisdictional, see
Allen v. Secretary of Health & Human Serv., 781 F.2d 92, 94
(6th Cir. 1986), a district court is permitted to extend the
deadline in only one instance: when a party has “performed an
act which, if properly done, would have postponed the
deadline for filing his application,” and a court has
affirmatively assured a party that the act was properly done.
United States v. Lindert, No. 96-4321, 1998 WL 180519 at *4
(6th Cir. 1998) (unpublished opinion); cf. Osterneck v. Ernst
& Whitney, 489 U.S. 169, 179 (1989) (concluding that an
appellate court can forgive a party’s failure to file a timely
appeal “only where a party has performed an act which, if
properly done, would postpone the deadline for filing his
appeal and has received specific assurance by a judicial
officer that this act has been properly done”).
According to the majority, adherence to the thirty-day
deadline dooms Ranger’s award application. The case against
Ranger ended on January 22, 1998, with Ranger USA’s guilty
plea and Ranger Taiwan’s plea of no contest. The district
court entered judgment terminating the criminal case against
Ranger on February 3, 1998. The majority therefore finds that
Ranger’s filing on June 11, 1998 came well after the thirty-
day window had closed.1

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

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

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14 United States v. Ranger
Electronic Communications
Nos. 98-2255/2322
___________________
CONCURRENCE
___________________
NATHANIEL R. JONES, Circuit Judge, concurring. I
concur with the majority’s well-reasoned conclusion that the
Hyde Amendment incorporated all the procedures and
limitations of the EAJA, including § 2412(d), and that
reversal is warranted because Ranger failed to meet those
criteria. Nevertheless, I disagree with the majority’s
determination that Ranger failed to file its application for a
Hyde Award within thirty days of the final judgment. My
conclusion instead rests on the fact that Ranger was not an
eligible corporation under § 2412(d).
I.
Looking closely at the language and history of the Hyde
Amendment, I agree with the majority that by incorporating
the EAJA’s “procedures and limitations,” the Hyde
Amendment also adopted the restrictions set forth in
§ 2412(d). I find unpersuasive Ranger’s argument that it can
satisfy the procedural requirements of the Hyde Amendment
only by complying with § 2412(b), which provides neither
procedural guidance nor eligibility limitations. Ranger thus
was required to file for fees within thirty days of a non-
appealable final judgment and to meet the requirements for
eligibility as defined under § 2412(d).
First, as the majority opines, the Government’s reading is
the only fair interpretation of the statutory language of the
Hyde Amendment, which references all of § 2412 and not its
specific provisions. There is nothing to suggest that the Hyde
Amendment meant to allow a party merely to point to
§ 2412(b) to circumvent the requirements enumerated in
§ 2412(d). Indeed, § 2412(d) provides by far the most
concrete procedures and limitations in all of § 2412. Without
the thirty-day rule and the requirements of “eligibility,” courts
would be left directionless in trying to apply the Hyde
Nos. 98-2255/2322 United States v. Ranger
Electronic Communications
7
money in the joint bank account was for the unauthorized sale
of refurbished radios owned by Ranger USA. On re-cross
examination, defense counsel elicited testimony from
Gouvion that he had lied and that the claimed personal loans
were undocumented, carried no interest rate and had never
been repaid in whole or in part.
On January 22, 1998, defense counsel argued the
prosecutors had committed a Brady violation and the defense
was entitled to a dismissal of the indictment. The district
court found that the prosecutor intentionally failed to inform
defense counsel prior to Gouvion’s testimony that the story
about the Rolex watch was a lie. The court concluded this
was a Brady violation, but specifically found that the defense
had not suffered any prejudice because they confronted
Gouvion about the lie on re-cross examination. Additionally,
defense counsel admitted he was not prejudiced. The court
offered the defense a mistrial which the defense declined.
A plea agreement was reached shortly thereafter, so the
case ended without a jury verdict. Under the plea agreement,
charges against Peng and Ranger were dismissed while
Ranger USA pleaded guilty and Ranger Shanghai, which had
not been charged up to that time, pleaded no contest, with a
$990,000.00 forfeiture.
The judgment terminating the criminal case against Ranger
was entered on February 3, 1998. Ranger refused to withdraw
its motion to obtain FCC documents under the FOIA, so it
received on March 30, 1998, the documents pursuant to the
request. However, it was not until June 9, 1998, that Ranger
filed its motion for attorneys’ fees and costs under the Hyde
Amendment. The district court recognized that the
application for attorneys’ fees and costs was not timely under
28 U.S.C. § 2412(d)(1)(B), which requires that the application
for fees and other expenses be filed within thirty days of the
final judgment. Therefore, the court tolled the thirty-day
limitation until June 9, 1998, because the government had

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8 United States v. Ranger
Electronic Communications
Nos. 98-2255/2322
concealed Brady materials in the FCC documents which were
not produced until March 30.
The district court found the prosecution acted in bad faith
in withholding Brady material from the defendant by failing
to reveal to the defense the fact that Gouvion had lied to the
prosecution about the sale of the Rolex watch, which he used
as an excuse for the receipt of a wire money transfer that the
defendants claim was a pay-off from a competitor. The court
also found that the withholding of the FCC documents which
were requested under the FOIA was a violation of Brady.
The court awarded Ranger $40,106.74 in attorneys’ fees
and expenses. In awarding attorneys’ fees, the court
concluded that Ranger was only entitled to recover fees
incurred after January 9, 1998, “the date on which the United
States promised disclosure of Brady materials but failed to
make those disclosures.”
II. DISCUSSION
A. Standard of Review
The Hyde Amendment provides that an award of attorneys’
fees “shall be granted pursuant to the procedures and
limitations (but not the burden of proof) provided for an
award under Title 28, U.S.C. § 2412,” the EAJA, to
prevailing parties in criminal cases. Pub. L. No. 105-119, 111
Stat. 2440, 2519 (1997) (reprinted in 18 U.S.C. § 3006A,
historical and statutory notes). Under the EAJA, an award or
denial of attorneys’ fees is reviewed for an abuse of
discretion. See Pierce v. Underwood, 487 U.S. 552 (1988);
Damron v. Commissioner of Social Security, 104 F.3d 853,
854 (6th Cir. 1997). The district court appeared to rely on
sections 2412(b) and 2412(d) of the EAJA in determining
whether Ranger had timely filed its application for fees.
However, this court has ruled that the thirty-day EAJA time
limit found in section 2412(d)(1)(B) is jurisdictional and
cannot be waived. See Peters v. Secretary of Health and
Nos. 98-2255/2322 United States v. Ranger
Electronic Communications
13
day limitation. In addition, as this is a waiver of sovereign
immunity, some limitations must be applicable to the filing of
a claim.
Although one court reached the opposite conclusion, see
Holland, 34 F. Supp.2d at 357-58 (“[h]ad Congress intended
to limit an applicant’s rights to those granted by section
2412(d), it could have said so... [t]here is no reason to believe
the Hyde Amendment intended to confer lesser rights upon
criminal defendants than the EAJA conferred upon civil
litigants”), this construction does not give effect to the plain
meaning of the Hyde Amendment nor the policy
considerations behind it. Moreover, the Holland court admits
that “the only procedural requirement in the EAJA is found in
section 2412(d), which requires that parties must submit their
application for fees within 30 days of final judgment in the
predicate action.” Id. at 358. There is no reason to believe
that Congress did not intend this procedural requirement to
apply to criminal cases via the Hyde Amendment.
Thus, Ranger did not timely file its application for
attorneys’ fees with the district court, as its June 9, 1998,
application was more than thirty days after the final judgment
in the case (the dismissal of Ranger on February 3, 1998) and
more than thirty days after Ranger’s receipt of the FCC e-
mails on or about March 28 to April 2, 1998. Even if the date
of the disclosure of the FOIA FCC documents was used as the
date from which Ranger must comply with the thirty-day
limitation of the EAJA, the attorneys’ fees application was
required to be filed at the latest on May 2, 1998. As the
application was not filed until June 9, 1998, the district court
lacked jurisdiction over Ranger’s application.
REVERSED.

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

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10 United States v. Ranger
Electronic Communications
Nos. 98-2255/2322
permitted recovery of attorneys’ fees and costs to any prevailing criminal
defendant, unless the government showed that its position in the
prosecution had been “substantially justified.” Additionally, the original
version did not contain the language referring to disclosure and in camera
review of evidence relevant to a Hyde Amendment claim. See 143 Cong.
Rec. H7791 (daily ed. Sept. 24, 1997); 28 U.S.C. § 2412.
8The only circuit opinions issued thus far construe the time for appeal
and whether the government’s position was “vexatious, frivolous, or in
bad faith.” The Tenth Circuit, in United States v. Robbins, 179 F.3d
1268, 1270 (10th Cir. 1999), concluded that Fed. R. App. P. 4(b) applies
and requires parties to “file a notice of appeal within the 10 days after the
order appealed from is entered.” Most recently, the Eleventh Circuit held
that a criminal defendant was not eligible for a Hyde award based on the
government’s alleged withholding of exculpatory information from the
grand jury where “the trial jury convicts with knowledge of that
evidence.” United States v. Gilbert, 198 F.3d 1293, 1304 (11th Cir.
1999).
criminal defendant must show that the government’s position
was “vexatious, frivolous, or in bad faith” and even then may
not recover if there are special circumstances which make the
award of fees unjust. As a threshold matter, a successful
criminal defendant must comply with the “procedures and
limitations” of the EAJA to ensure that his application is
timely and properly filed.
One of the limiting provisions of the EAJA provides that
claims for attorneys’ fees must be filed within thirty days of
a final judgment from which there is no appeal. See 28
U.S.C. §§ 2412(d)(1)(B) and (d)(2)(G) (1994). The
defendants failed to file within this period of time. They
argue this delay was due to the government’s underlying
failure to disclose materials, and they further argue that the
Hyde Amendment permits a party to seek attorneys’ fees and
costs under section 2412(b) of the EAJA without satisfying
the requirements of section 2412(d).
No circuit has yet determined the Hyde Amendment’s
incorporation of the procedures and limitations of the EAJA.8
The district courts that have addressed this issue are split.
Nos. 98-2255/2322 United States v. Ranger
Electronic Communications
11
Some conclude that the procedures and limitations of the
EAJA are contained in 28 U.S.C. § 2412(d). See United
States v. Peterson, 71 F. Supp.2d 695, 698 (S.D. Tex. 1999);
United States v. Gardner, 23 F. Supp.2d 1283, 1289 (N.D.
Okla. 1998). Section 2412(d) requires a party seeking an
award to file a detailed application within thirty days of “final
judgment.” “Final judgment” is defined as a judgment that is
“final and appealable, and includes an order of settlement.”
28 U.S.C. §§ 2412(d)(1)(B) and (d)(2)(G). In its application,
the party must show that it is the “prevailing party”and state
the actual time expended and the rates at which fees and other
expenses were calculated. § 2412(d)(1)(B). No award of
attorneys’ fees can be made in excess of $125 per hour unless
the court finds that special factors are present. See
§ 2412(d)(2)(A). Finally, section 2412(d) defines a “party” as
a corporation that, at the time the civil action was filed, had
a net worth which did not exceed $7,000,000 and no more
than 500 employees. See § 2412(d)(2)(B).
Another district court, however, has held that the
procedural limitations set forth in section 2412(d) of the
EAJA are not applicable if the prevailing party chooses to
seek attorneys’ fees under section (b) in applying for fees
under the Hyde Amendment. See United States v. Holland,
34 F. Supp.2d 346, 358-59 (E.D. Va. 1999). Section 2412(b)
of the EAJA provides for recovery of attorneys’ fees and
expenses by a prevailing party in any civil action brought by
or against the United States “to the same extent that any other
party would be liable under the common law or under the
terms of any statute which specifically provides for such an
award.” Section 2412(b) does not require a statutory filing
deadline, specify requirements as to the contents of the fee
application, limit the hourly rate permitted an attorney, nor
provide a net worth ceiling that, if exceeded, disqualifies a
prevailing party from eligibility for a fee award.
In this case, Ranger moved for an award under the Hyde
Amendment without reference to the EAJA. The district
court determined that “[the] jurisdictional limitation is

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