959 F.3d 80
3rd Cir.2020Background
- In 2011 Reyes‑Romero, a noncitizen, was subject to expedited administrative removal; his A‑file contained irregular, contradictory forms (I‑826 and I‑851) and questionable time stamps. He was removed to El Salvador.
- He later returned to the U.S., was indicted for unlawful reentry under 8 U.S.C. § 1326, and conceded the basic elements of the offense.
- He moved to dismiss under § 1326(d), arguing the 2011 removal was invalid (invalid waiver and not an aggravated felony) and that the administrative defects caused prejudice; the District Court held hearings, received DHS witnesses, and ordered production of A‑files.
- The District Court found the A‑file irregularities (and later the color copies) convincing, concluded exhaustion and review prongs were excused, found prejudice (including relying on a presumption), granted the § 1326(d) motion and dismissed the indictment with prejudice.
- Reyes‑Romero then sought Hyde Amendment fees; the District Court awarded $73,757 finding the Government’s position frivolous and in bad faith, in part by folding in DHS misconduct and criticizing the AUSA’s handling.
- The Third Circuit reversed, holding the Hyde Amendment targets prosecutorial misconduct (DOJ/AUSA conduct) not independent agency errors, and concluding the Government had reasonable legal arguments on § 1326(d)(3) prejudice and acted in good faith.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether findings in the District Court’s § 1326(d) opinion are preclusive for the Hyde application | Reyes‑Romero: District Court’s prior findings are final and binding (issue preclusion) | Govt: Hyde application is same litigation stage; law‑of‑the‑case/appeal review applies, not collateral preclusion | Not preclusive; appellate court may review district findings and law‑of‑the‑case does not bind this Court |
| Whether the Government waived appellate arguments by not relitigating matters below | Reyes‑Romero: Govt failed to raise defenses below so they are waived | Govt: Relitigating would have been futile given District Court’s posture; no waiver | No waiver; appellate consideration permitted because further district litigation would be futile |
| Scope of "the position of the United States" under the Hyde Amendment | Reyes‑Romero: Includes DOJ plus agency (DHS) actions that produced the removal order | Govt: Limited to the prosecution’s (DOJ/AUSA) litigating position and conduct | Limited to DOJ/prosecutorial position; independent DHS misconduct cannot alone ground a Hyde award |
| Whether the government’s litigation position was vexatious, frivolous, or in bad faith | Reyes‑Romero: Prosecution was frivolous/bad faith given A‑file defects, DHS testimony, Govt’s motion to dismiss and late production of color copies | Govt: Had objectively reasonable arguments—especially on §1326(d)(3) prejudice—and AUSA acted ethically and promptly when new evidence appeared | Reversed: Government’s position was neither frivolous nor in bad faith; Hyde award improper |
Key Cases Cited
- United States v. Manzo, 712 F.3d 805 (3d Cir. 2013) (Hyde Amendment focuses on prosecutorial conduct and whether government’s position as a whole was unreasonable)
- United States v. Charleswell, 456 F.3d 347 (3d Cir. 2006) (§ 1326(d) requires exhaustion, opportunity for judicial review, and prejudice; prejudice ordinarily must be shown)
- United States v. Monson, 636 F.3d 435 (8th Cir. 2011) (frivolous prosecution standard—must be utterly without foundation)
- United States v. Mixon, 930 F.3d 1107 (9th Cir. 2019) (Hyde focus is on prosecutors’ litigating position, not separate agency misconduct)
- United States v. Bove, 888 F.3d 606 (2d Cir. 2018) (defines "position of the United States" under Hyde as government’s litigation stance)
- United States v. Gilbert, 198 F.3d 1293 (11th Cir. 1999) (Hyde Amendment narrowed relative to EAJA)
- United States v. Harris, 498 F.2d 1164 (3d Cir. 1974) (prosecutor’s duty to correct testimony that is obviously false or substantially misleading (Napue line))
- Musacchio v. United States, 136 S. Ct. 709 (2016) (appellate courts are not bound by district court rulings under law‑of‑the‑case doctrine)
- United States v. Heavrin, 330 F.3d 723 (6th Cir. 2003) (standard for reversal of Hyde award where record shows error)