United States v. Hristov

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-

ZLATKO HRISTOV, RLH

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

UNITED STATES v. HRISTOV 1179

COUNSEL

Nicolette Glazer, Law Offices of Larry R. Glazer, Century

City, California, for the appellant.

1180 UNITED STATES v. HRISTOV

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

1

This 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).

2

We affirm the district court’s denial on the merits in a separately filed

memorandum disposition.

UNITED STATES v. HRISTOV 1181

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

3

We 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).

1182 UNITED STATES v. HRISTOV

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

4

The 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.

UNITED STATES v. HRISTOV 1183

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

1184 UNITED STATES v. HRISTOV

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

5

Scarborough, 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.

UNITED STATES v. HRISTOV 1185

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.