*1 make his statement not necessary to facts Rubin,
misleading.
information NICATIONS, INC., Defendant- Id. at 268 speak.” which he to undertakes Appellee/Cross-Appellant. Schwartz, (citing Ackerman v. (7th Cir.1991)). Applying Rubin 98-2255, Nos. 98-2322. case, when chose to
to this defendants duty provide have a to com speak they Appeals, United States Court of non-misleading information re plete and Sixth Circuit. garding those statements. Defendants Argued: Jan. Accordingly, I would
failed to do so. re verse the April Decided and Filed: dismiss, deny defendants’ motion court for
remand to the district further
proceedings. narrow, rigid interpretation our given the Private Lit-
Court Securities Act makes it now
igation Reform almost
impossible allege securities fraud suc-
cessfully. The effect of the Court’s deci-
sion to be that no statements about seems prospects (“forward-looking”
the future
statements) actionable, a company are long they
no matter how dishonest as accompanied by “magic words” dis-
claiming knowledge. It makes no differ- selling
ence that insiders are their stock knowledge company’s
with secret that the saying are bad
prospects oppo- while public.
site to the It me of reminds
rigidity with which the common law courts interpret forms of
came old action century. system
the seventeenth Our or
equity pleading sup- code notice
posed changed to have all that once and all, but our Court has returned it
with a vengeance this case under the Litigation
Private Securities Reform Act.
SILER, J., opinion delivered the J., NORRIS, joined. in which 634-38), JONES, delivered a (pp. J. concurring opinion. separate OPINION SILER, Judge. Circuit from award appeals government Ranger costs attorneys’ and Communications, (“Rang- Inc. Electronic er”) Ranger Hyde Amendment. §§ 545 violating for 18 U.S.C. was indicted equip- 1956(a), illegal radio importing money laundering and related ment in a dis- prosecution ended charges. The illegal impor- prejudice missal pri- and its Ranger charges against tation officer, Peng, but an associated Jim mary USA, also owned corporation, money laundering guilty pled Peng, 1956(a)(2) § of 18 U.S.C. violation $990,- forfeiture agreed to corporation, Another sister 000.000. pled no contest to Ranger Shanghai, in viola- importing merchandise count of tion of 18 U.S.C. 545. argues that appeal,
On timely request for did not file a Hyde under the attorneys’ fees and costs filed, Amendment,1 that, even if law, no “vexa- there was as matter of tious, frivolous, faith” prosecution or bad Act. under the We hold required Equal incorporates briefed), (argued and Meyer E. Joan (“EAJA”) thirty- to Justice Act’s2 Access Attorney, Grand States Assistant United set filing limit for claims. As day time Michigan, Appellant. for Rapids, below, REVERSE for lack forth we jurisdiction. briefed), Gravelyn (argued R. Daniel Judd, Rapids, Warner, & Grand Norcross I. BACKGROUND Irvine, CA, Olson, Michigan, Michael C. Appellee. 19, 1996, Ranger, December On
USA, illegal indicted for Peng SILER, equipment violation JONES, NORRIS, of radio importation Before: addition, Ranger, § 545. In of U.S.C. Judges. Circuit Act, 105-119, 2. Equal Access to Justice 111 Stat. Pub.L. No. attor- seq., the award of 3006A, et authorizes (1997) his- (reprinted in 18 U.S.C. private parties who and costs to neys' fees notes). entirety, statutory In its torical ac- against government in civil prevail provides: tions. USA, Gouvion, Peng and John agreed provide “to all Brady, Giglio, and USA, president of Ranger were indicted Jencks material on January 1998—three conspiracy import sell days electronic before trial.” devices violation of 18 U.S.C. 545. On Defense counsel also tried to obtain evi- March a superseding indictment dence from the to help prove FCC that the *3 charged that Ranger, Ranger USA and regulations in question were vague. In Peng conspired to violate the customs laws 1997, June they requests made under the in §§ violation of 18 545; U.S.C. 371 and Freedom of (“FOIA”) Information Act4 conspired to commit money laundering in documents that related to CB and amateur 1956(h); violation of 18 U.S.C. brought radios. On June 20 8, and August 1997, merchandise into the United States con- the FCC produce declined to several of the trary to law violation 545; of 18 U.S.C. requested documents on the grounds that money committed laundering viola- they would “interfere with an ongoing 1956(a)(1) tion (a)(2)(A). of 18 U.S.C. criminal investigation.”5 The FCC arrived at this conclusion based at part least in on indictments, At the time of the Federal the recommendation of AUSA Daniel Mek- (“FCC”) Communications Commission reg- aru, who, along with AUSA Mark Cour- required ulations that Citizens Band tade, handled the (“CB”) Ranger prosecution. radios “type accepted”3 by the they FCC before could be distributed 1997, In August the district court ruled this country. §§ C.F.R. 2.803 and that regulations the FCC regarding “open” 95.603. The government argued the radi- radios were clear and unambiguous. On os that specified were in the indictments January the court ruled the defen- radios, “open” were operate which illegally dants could not attack the regula- FCC in that they not to forty restricted tions being confusing, they but could bands, CB operate but on additional chan- present evidence they were confused nels as well. argued Defendants the radi- about regulations they and that rea- os were import- “amateur” radios and thus sonably believed the radios legal were ed under an exemption. The district court “amateur” radios and not illegal, non-type- found that in question “[t]he radios were accepted CB radios. not type accepted by the FCC and would In early 1998, January the FCC advised not type have been accepted they because the prosecutors it had approxi- discovered frequencies broadcast on other than those mate 400 more documents to responsive approved the FCC.” United States v. request. FOIA prosecutors asked Communications, Inc., Electronic to immediately FCC fax those docu- F.Supp.2d (W.D.Mich.1998). ments thought that the FCC impor- were Ranger attempted to exculpatory obtain tant prosecutors for the to review. The
material from
government pursuant
to prosecutors
received
facsimiles on or
Brady
v. Maryland, 373 U.S.
about January
S.Ct.
1998.
these se-
Among
(1963).
contained in court. testimony outside Gouvion’s addition, created they were indictment. charged time frame for the testified Gouvion Thus, determined the prosecutors day 20-21, the second On January be- the trial the date On them. produce money that the examination, testified he Courtade AUSA January gan, unau- for the bank account joint in the had received that he the defendants told owned refurbished radios sale thorized he documents FCC additional examination, re-cross On Ranger USA. before trial ended review. yet to testimony elicited counsel defense their review completed prosecutors and that he had lied Gouvion documents. FOIA FCC undocu- loans personal claimed *4 the defend attempted to had Ranger also rate and interest mented, carried no rec- bank suspicious to charges by pointing part. or in in whole repaid been never claimed defendants The of Gouvion.6 ords 1998, counsel 22, defense January On Gouvion, president former the that a committed had prosecutors argued the witness, government and a Ranger USA enti- the defense Brady violation Ranger USA. from embezzling money The the indictment. to a dismissal tled on a assumption this based Defendants prosecutor the that found court showing confirmation transfer wire coun- to inform defense intentionally failed awith joint a bank account had Gouvion the testimony that to Gouvion’s prior sel In December Ranger USA. customer lie. was a Rolex watch the story about the bank subpoenaed 1997, the defendants Brady awas this concluded court The January to from 1992 of Gouvion records the violation, found specifically but to motion government’s 15, The 1998. any prejudice not suffered had defense the was denied subpoena the quash the Gouvion about they confronted because January 16. on court Additionally, re-cross examination. on lie be- day after trial January On prej- was not he admitted counsel defense about asked Mekaru Gouvion AUSA gan, a the defense offered The court udiced. wire the stated wire transfer. Gouvion the declined. defense which mistrial a Rolex watch sale of for the transfer shortly reached agreement pleaA Fe, company a of Santa to the owner without thereafter, the case ended so AUSA Ranger USA. with did business agreement, plea Under jury verdict. awere if loans asked Gouvion Mekaru Peng charges against money skimming or Gouvion if pay-off pleaded Ranger USA while dismissed replied that Gouvion Ranger USA. from had Ranger Shanghai, guilty legitimate. loans were time, pleaded to that charged up been not Mekaru AUSA January On $990,000.00 forfeiture. contest, with a no his him for prepare to met with Gouvion terminating the At this meet- day. following testimony the Feb- on was entered against Ranger case about he lied admitted ing, Gouvion with- to Ranger refused 1998. ruary Instead, Gouvion the Rolex watch. sale of FCC documents to obtain its motion draw money he had borrowed declared March FOIA, it so received ac- bank joint and used USA pursuant the documents the mon- to hide the customer count However, not until June it was request. of Gou- Thus, learned government ey. at- its motion filed hearing on days after lie three vion’s costs under fees and torneys’ for Gou- subpoena quash motion U.S.C. accessory after the lion guilty pled 6. Gouvion viola- illegal importing merchandise fact (6th Cir.1997). The district recog- Amendment. court The district court ap- nized application for attorneys’ peared rely 2412(b) on sections 2412(d) fees and timely costs was not under 28 of the EAJA in determining 2412(d)(1)(B), requires that whether Ranger filed appli- its application for fees and expenses However, cation for fees. this court has within thirty days filed of the final ruled that the thirty-day EAJA time limit Therefore, judgment. the court tolled the 2412(d)(1)(B) found section jurisdic- limitation until June tional and cannot be waived. See Peters v. because the had concealed Secretary Serv., Health and Human Brady materials Cir.1991). FCC documents F.2d 693 addition, which were not produced until March 30. court reasoned: The thirty day
The district court time limitation prosecution contained found in the EAJA is áimply acted in faith in bad statute of withholding Brady limitations. It is a jurisdictional prereq- material from the by failing governmental uisite to liability.... reveal to the defense the fact that Gouvion Equal Access to Act prosecution had lied to the Justice significantly about the sale abridged watch, government’s of the Rolex which he immunity used as an from suits for attorneys’ excuse for fees. receipt As a money of wire *5 waiver sovereign of immunity, that transfer claim the act defendants was a must be strictly pay-off from a construed. competitor. Once the The court also government agrees suits, found that allow such withholding of the FCC “the of terms its requested documents which were consent be sued in any court define jurisdiction that court’s FOIA was a violation Brady. of to entertain that suit.” Courts have $40,106.74 court The awarded Ranger consistently held statutory that a time attorneys’ expenses. fees and In awarding limit is an integral condition of the sov- attorneys’ fees, the court concluded that ereign’s consent. Compliance with that only entitled to recover fees condition is a prerequisite jurisdic- incurred January after “the date tion. on which the promised United States dis- Allen v. Secretary Health of & Human Brady closure materials but failed to of Services, 92, (6th Cir.1986) 94 make those disclosures.”
(internal omitted). Thus, quotation cite 2412(d) the EAJA time limit in section is II. DISCUSSION jurisdictional, and rulings applying such A. Standard Review limit are reviewed de novo this court. The Hyde provides Lindert, See United States v. 1998 WL that an award of (6th attorneys’ fees “shall be 8, 1998) (un- at *3 April Cir. granted pursuant procedures and published opinion); Sullivan, v. Brown (but limitations not the of proof) burden Cir.1990) (issues con- provided for an award under Title cerning the proper interpretation of the 2412,” § EAJA, to prevailing novo). EAJA are reviewed de parties in criminal cases. Pub.L. No. 105- B. The (1997) 111 Stat. (reprinted 3006A,
in 18 U.S.C. historical and statu Amendment provides that at- notes). tory EAJA, Under the an award torneys’ may fees prevail- a awarded to or denial of attorneys’ fees is reviewed for ing criminal defendant where “the court an abuse of discretion. See Pierce v. Un that position finds of the United States derwood, vexatious, U.S. frivolous, 108 S.Ct. faith, or in bad (1988); L.Ed.2d 490 Damron Commis unless the court special finds that circum- sioner Social Security, 104 F.3d unjust.” stances make such an award 1283, 1289 Gardner, F.Supp.2d 2440, 2519 105-109, 111 Stat. No.
Pub.L. 2412(d) requires 3006A, (N.D.Okla.1998). Section (1997) 18 U.S.C. (reprinted file a detailed seeking award to notes).7 Thus, party a statutory a and historical “final thirty days within application must show defendant criminal successful is defined judgment” “Final judgment.” “vexa- position government’s that appeal- and “final is judgment even frivolous, in bad faith” tious, of settlement.” an order able, includes special are if recover there not may then (d)(2)(G). 2412(d)(1)(B) and §§ the award make 28 U.S.C. which circumstances show matter, must a suc- application, its As threshold unjust. fees and state party” comply “prevailing must it cessful the rates limitations” of time expended actual “procedures calcu- expenses application to ensure his fees EAJA 2412(d)(1)(B). of at- award filed. No properly lated. in excess $125 be made can torneys’ fees limiting provisions One special court finds hour unless per attorneys’ claims provides that EAJA 2412(d)(2)(A). present. are factors days of a thirty filed within must be 2412(d) a “party” defines Finally, section is no there final civil that, time the at the corporation aas 2412(d)(1)(B) §§ 28 U.S.C. appeal. See which did filed, a net worth action (1994). defendants (d)(2)(G) than $7,000,000 and no more exceed not time. period this within to file failed 2412(d)(2)(B). §See employees. due to delay argue They to disclose failure underlying government’s however, held Another argue that materials, further they set forth limitations procedural seek party to permits Hyde Amendment 2412(d) appli- EAJA section *6 under section costs attorneys’ fees party chooses prevailing if the cable satisfying 2412(b) without the EAJA of (b) in under section attorneys’ fees seek 2412(d). of section requirements Amend- Hyde fees under for applying Holland, 34 v. States United ment. See Hyde yet determined circuit No (E.D.Va.1999). 346, 358-59 F.Supp.2d the proce- incorporation Amendment’s 2412(b) for provides the EAJA Section The EAJA.8 limitations dures expenses attorneys’ fees recovery of this have addressed courts civil action any party prevailing a conclude split. Some issue are the United States against by or brought the EAJA limitations procedures extent 2412(d). “to the same in U.S.C. contained 28 law or the common liable under be would Peterson, F.Supp.2d v. States United spe- any statute terms of v. under the States (S.D.Tex.1999); United 695, 698 far opinions issued thus only circuit Representative 8. original proposal, his In appeal and whether time construe government's the EAJA’s standard simply Hyde extended "vexatious, frivo- position burden of of the the allocation awards Circuit, lous, Tenth in bad faith.” defen- federal proof to successful Robbins, v. States United Thus, per- have Hyde’s version would dants. Cir.1999), R.App. that Fed. (10th concluded costs attorneys' fees and recovery of mitted to "file a 4(b) requires parties applies and P. defendant, unless any prevailing criminal days the 10 after appeal within notice position in that its showed re- entered.” Most appealed from is order "substantially justi- been prosecution a crimi- Circuit held cently, Eleventh version did original Additionally, the fied.” Hyde eligible for a was not nal referring disclo- language alleged contain government's on the award based rele- of evidence from exculpatory review withholding in camera information sure and jury convicts trial See 143 "the grand jury claim. where Hyde Amendment vant to a United 24, 1997); evidence.” knowledge Sept. (daily with States ed. Cong. H7791 Rec. Gilbert, § 2412. Cir.1999). cifically provides faith conduct and the section under which for such an award." Sec- 2412(b) require statutory awarding tion does not it was fees. filing deadline, specify requiremer~ts as to interpreta We believe the correct application, the contents of the fee limit procedures tion of the and limitations of hourly permitted attorney, rate an nor incorporated Hyde the EAJA as in the provide ceiling that, a net worth if exceed- Amendment includes the limitations of sec ed, disqualifies prevailing party 2412(d). 2412(b) tion Section directs the eligibility for a fee award. applicant independent to look for an stat case, Ranger In this moved for an award gives remedy attorneys' ute which Hyde expenses independent under the Amendment without ref- of the EAJA. erence to the BAJA. The district court Hyde incorporates As the Amendment jurisdictional "[the] determined that limita- EAJA, go it would be circular to back to especially Hyde tion is fatal to claims for attor- Amendment to treat it as an ney independent giving right fees in criminal actions because the statute sovereign immunity attorneys' BAJA waiver of as to fees without the limi other fee statutes and under the common addition, tation. as this is a waiver of applies only sovereign immunity, law to civil and not criminal some limitations must 2412(b)." Rang- applicable fifing actions. See 28 U.S.C. of a claim. Communications, Inc., er Electronic Although opposite one court reached the F.Supp.2d at 674. The court dismissed conclusion, Holland, F.Supp.2d see prejudice charges against Peng ("[h]ad Congress 357-58 intended to limit February 3, 1998; Ranger applicant's rights granted by to those received the FCC e-mails on or about 2412(d), section it could have said so 30, 1998; March filed its mo- [t]here is no reason to believe the attorneys' tion for fees on June 1998. It intended to confer lesser decided: rights upon criminal defendants than the give Congress's In order to effect to upon litigants"), EAJA conferred civil purpose awarding and words in attor- give construction does not effect to the neys' involving fees in criminal cases plain meaning "bad faith" where the United States con- policy nor the considerations behind it. ceals its bad faith until more than 30 *7 Moreover, the Holland court admits that days entry judgment, after of a further only procedural requirement "the in the period per- reasonable time should be 2412(d), EAJA is found in section which filing application mitted for the of an for requires parties that must submit their attorney [T]he fees.... defendant was application days for fees within 30 of final permitted under the statute a reason- judgment predicate in the action." Id. at period able of time to discover the Bra- 358. There is no reason to believe that dy violation from the documents and to Congress procedural did not intend this application attorney file its for fees un- requirement apply to to criminal cases via der the BAJA. The Court determines Hyde the Amendment. that, such, application timely as the filed. Thus, Ranger did not file its opinion granting application attorneys' Id. at 675. In the the for fees with the dis Hyde Ranger, 9, 1998, application award to the district court trict as its June thirty days Ranger "prevailing par- was more than after the final found that was a (the ty" meaning in the case dismissal of within the of section 2412(d)(2)(B). Ranger February 3, 1998) See id. at 676. In its sec- on and more thirty days Ranger's receipt opinion specifically granting $40,106.74 than after of ond Ranger, the FCC c-mails on or about March 28 to to the district court cited section April 2, 2412(b) applicable 1998. Even if the date of the as the section for bad Hyde the that nothing suggest to There is FCC documents FOIA disclosure merely a party to allow meant Amendment which the date used as 2412(b) the to circumvent §to point to limitation thirty-day the with comply must 2412(d). § enumerated requirements EAJA, attorneys’ applica- fees the the of 2412(d) far the most Indeed, provides § latest at the be filed required to tion in all limitations and procedures concrete application the As May rule the § 2412. Without the district until June not filed “eligibility,” requirements the ap- Ranger’s over jurisdiction lacked court trying directionless be left would courts plication. clear di- Hyde Amendment’s the apply REVERSED. procedures the EAJA’s apply rective Moreover, majority the limitations. JONES, Circuit R. NATHANIEL 2412(b) Rang- that reasons, itself shows § concurring. Judge, circular, pro- as that interpretation er’s well-rea- majority’s the I with concur rely on courts to instructs explicitly vision Hyde the Amend- that conclusion soned “terms law or the either common procedures all incorporated ment such provides specifically statute EAJA, including limitations the extent to determine award” an is warranted 2412(d), that reversal § an is liable States United those crite- to meet failed because 2412(b). other In 28 U.S.C. award. ma- Nevertheless, with the disagree I ria. 2412(b) else- look words, § tells courts failed to
jority’s determination guidance. procedural where for with- Hyde Award for a application file its legislative addition, language My judgment. final days thirty suggest Amendment Hyde history of the fact on the instead rests conclusion precise- modeled Amendment corporation eligible was not 2412(d), application making ly after 2412(d). particu- limitations procedures of its First, larly appropriate. I. 2412(d) an- mirror his- language and closely at the Looking provides when each Amendment, agree I tory of flawed. “position” incorporating majority that Second, history of the limitations,” the “procedures To EAJA’s connection. an even closer evinces re- adopted also Hyde Amendment description Circuit’s quote Eleventh 2412(d). I find §in set forth history: strictions legislative Amendment’s it argument Ranger’s unpersuasive after his amendment Hyde patterned requirements procedural satisfy the can Act to Justice Access Equal complying *8 only by Hyde 2412(d)(1)(A), § (“EAJA”), 28 see U.S.C. neither 2412(b), provides § with attorneys’ award of authorizes eligibility limita- nor guidance procedural who parties private and costs fees file required to thus was tions. in civil against government prevail non-appeal- days of a thirty within for fees estab- government actions unless re- to meet judgment final able “substantially position its lishes under as defined eligibility for quirements H7786- Cong. Rec. 143 justified.” See 2412(d). § 1997) (statement 24, 04, (Sept. H7791 Thus, original form its Rep. Hyde). opines, Gov- First, majority as the al- have would Hyde Amendment interpre- only fair reading is the ernment’s attorney fees the award lowed statutory language of tation defendant federal all costs Amendment, which references Hyde government, against prevailed who provisions. specific its § and not 2412
635
unless the
showed
its
actual time expended and the rate at
position
prosecution
in the
had been
which fees and other expenses were
justified.”
“substantially
computed.
Gilbert,
United States v.
F.3d
2412(d)(1)(B)
§
28 U.S.C.
(emphasis add
(11th Cir.1999).
After
criticism
ed). The EAJA defines a
judgment
final
House members and the Department of
judgment
as “a
that is final and not ap-
Justice
the Amendment was too pealable, and
an
includes
order of settle
broad,
provision
in two
altered
2412(d)(2)(G);
§
ment.”
28 U.S.C.
see
ways:
of proof
placed
burden
v. Secretary
Buck
Health and Human
award,
the party seeking the
and that Serv.,
Cir.1991).
party was tasked with showing that
begins
clock
to run after
government’s “position”
“vexatious,
the time to appeal the final judgment has
frivolous, or in bad faith.” See
id.
1300-
expired.
Sullivan,
See Melkonyan v.
Still,
origin
Amendment’s
89, 96,
U.S.
S.Ct.
jority that
requires
(6th Cir.1986), a district court
permitted
a criminal
meet the limita-
extend
the deadline in only one in
tions and procedural
requirements
stance: when a party
“performed
has
an
2412(d).
which,
act
done,
if properly
would have
postponed the deadline for filing
appli
his
II.
cation,” and a
has affirmatively
court
as
I
believe that
failed to meet the
sured a
that the act
properly
requirements
2412(d),
but not for
Lindert,
done. United States v.
No. 96-
the reason
articulated
majority.
(6th Cir.1998)
party’s failure to file a “only appeal A. a party performed which, where has an act done, properly if postpone would the dead Unlike majority, I believe line for filing appeal his received Ranger satisfied the thirty-day deadline to by judicial specific assurance officer that file for an award of attorney’s fees. Sec- done”). this act has been properly 2412(d)(1)(B) tion requires that party seeking [a] an award of fees and According to the majority, adherence to shall, other expenses thirty days within the thirty-day dooms Ranger’s deadline action, in the submit award application. The against case of final to the court an application January ended on other expenses which shows guilty plea USA’s and Ranger Tai- party is a prevailing party eligible and is plea of wan’s no contest. The district to receive an award under subsec- court entered judgment terminating the tion, and *9 sought, the amount including against criminal case Ranger February on an itemized statement from any attorney 3, 1998. The majority therefore finds that expert or witness representing ap- or Ranger’s filing on June 1998 came well pearing in of the party stating behalf the after the window had closed.1 1. The district court tolling” exception circumvented this bar to table jurisdictional to this Ranger’s application by carving "equi- requirement, out an allowing a "limited extension of Ranger USA be- by breach or withdrawal however, did final view, my In the terminated would have sentencing of fore the date May until
not occur that the sen- con- I believe agreement, In the sentencing order. entire the only constituted text, appealable USA Ranger final and is order for tencing an order sentencing. all the respect with conviction order after both final the States, Therefore, May 465 U.S. the v. United Flanagan case. this parties (1984); L.Ed.2d Ranger USA 104 S.Ct. of sentencing order Male, 40 v. One Juvenile States final or- United the Shanghai comprised Ranger Cir.1994). when Even 841, 843 charges against dismissal for the der dismissal and a agreement plea a there is filing on June Ranger’s Ranger, and charges of those dismissal charges, the timely. is sentencing order the final until not is that remain. charges for the issued B. the that until rule is for this rationale however, the live with must Ranger, re- issues, possibility the sentencing order one with treated as being consequences will either breach the defendant mains particular, In other co-defendants. the the point at which plea, or withdraw entity into one co-defendants grouping the rein- can be charges dismissed previously “eligible” not an Ranger case, USA means Ranger In this stated. reason, 2412(d). For that under plea agreement party pursuant sentenced must be reversed. sentencing, Ranger award to Prior to May on plea negated the have could Ranger USA to receive only eligible A plea moving to withdraw by agreement if it is: Hyde award 32(e) or Pro. Fed. R.Crim. not (i) worth did net whose an individual condi- agreement’s of the breaching one the civil $2,000,000 the time exceed withdrawal, gov- such After tions. (ii) of an filed, any owner or action was been bound longer have no ernment would business, any partner- or unincorporated charges against dismissal association, of lo- unit corporation, ship, those re-prosecute and could Ranger, the net organization, government, cal For this rea- at 199-200. charges. J.A. $7,000,000 exceed did not worth which order, son, sentencing May filed, and the civil action at the time against charges dismissal earlier employees than 500 not more which had final relevant constituted Ranger, was filed.... civil time the action at the judgment. case, 2412(d)(2)(B). as this hinges of course conclusion This EAJA, the cases under previous co-de- underlying determination eligibili- analysis of straightforward rather as be treated case should fendants related several complicated because ty is did Technically, itself party. individuals, including sub- companies and only agreement, a plea not reach We are sidiaries, the co-defendants. strictly approach formalistic A did. USA wheth- question presented thus filing Ranger’s deem therefore would employees the assets aggregate toer untimely. But be- claim award indepen- look companies, or of the related in this case the co-defendants cause bringing entity particular infra, one, dently at the see essentially litigating supra, was not described circumstance a situation where period” application Second, assuming even present in case. exculpatory ev- government has concealed tolling equitable arguendo some form Electronic States United idence. its filed Inc., because Communications, permissible, F.Supp.2d re- days after it claim 30 (W.D.Mich.1998). for two rea- This error documents, the FOIA tolling ceived seriously, de- the court's Most sons. unrea- into June was of time court’s extension can not extend precedent courts fied . sonable. except in the narrow jurisdictional deadline
637 Contrary USA, Amendment claim. by Ranger plea of no contest Ranger’s argument, analogous EAJA the unindicted co-conspirator (Ranger cases, this Court not simply “adhered Shanghai), Peng’s agreement to pay principle corporations, if even Ranger USA’s forfeiture amount personal- ‘related,’ independent must be treated as ly. J.A. at 195-201. argument Ranger’s fact, Ranger’s entities.” Br. at 27. In “a that the Ranger “other companies’ pleas” prevent rule that would aggregation under can not imputed be to Ranger is thus - any circumstances would contravene the unpersuasive. Rather, aggregation purpose of EAJA.” Tri-State Steel Con- wholly appropriate. Herman, struction Co. v. 981 At litigation, Ranger onset Malay- (6th Cir.1999) (Gilman, J., concurring). sia had employees, 485 Ranger Shanghai beyond We therefore look the formal employees, 185 Ranger had twelve structure of the litigating parties inquire employees. J.A. at 417. DunA & Brad- a purported whether independent entity is report street from November report- 1996 behalf, litigating on its own or on behalf of ed that the Ranger companies together other, related entities as well. See id. had more than plant workers. Be- (majority concluding 979-80 that Tri- aggregated cause the entities have well State, despite its close relationship with over employees, Ranger ineligible parent company, litigating on its own bring a Hyde Amendment claim. behalf); Caremore, NLRB, Inc. v. During year fiscal any 1998 and in fiscal Cir.1998) F.3d (concluding thereafter, year court, crimi- litigating Caremore was on its own (other nal case than a in which behalf, case and “the merits underlying is represented by assigned involved a bargaining case unit consisting counsel paid solely of the public) pending Caremore employees”); National on or after the date of Equipment Truck the enactment Ass’n v. National High- (Nov. 26, Admin., 1997), this act way Safety may award to a Traffic (6th Cir.1992) prevailing party, (aggregating other member com- than the United panies States, because trucking association attorney’s reasonable fee and litigating on behalf those companies). litigation other expenses, where the court finds that position of the Unit-
I believe that aggregation is clearly ap- vexatious, ed States was frivolous or in propriate in this case. The “parties” in faith, bad unless the court finds that litigation comprised closely linked enti- special circumstances make such an Peng president ties. and chief unjust. award Such shall awards be financial officer Peng USA. granted pursuant to the procedures fifty-two Taiwan, owned percent Ranger (but limitations not the proof) burden of approximately percent provided for an award Shanghai, under Title and 100 percent Ranger USA. 2412. To Ranger Taiwan determine whether owned almost percent or not section, to award fees under this Malaysia. Most importantly, shown, good may unlike the Caremore and cause Tri-State Steel cases, Peng, receive evidence ex parte camera co- other (which essentially bloc, defendants shall include the litigated as a submission of than independent rather classified evidence or evidence that re- entities. The very basis of plea agreement might veals or reveal identity of an Peng controlled each of the informant or companies agent undercover or mat- their respective litigation occurring In- ters a grand jury) decisions. before deed, plea agreement or testimony constituted evidence so received shall internal engineered trade-off by Peng— kept under seal. Fees dismissing charges against him personally expenses awarded under provision and Ranger exchange guilty plea for a to a paid by agency shall be *11 prevails from
over agency made available
funds appropriations No new
appropriation. provi- of this a result made as
shall be
sion. MAURINO, Petitioner-
Michael
Appellant, JOHNSON, Warden,
Richard
Respondent-Appellee.
No. 98-1332. Appeals, States Court
United
Sixth Circuit. 20, 1999 Sept.
Argued: April and Filed:
Decided Rehearing Suggestion for
Rehearing and 1, 2000. Denied June
En Banc