# United States of America, Plaintiff-Appellant/ Cross-Appellee v. Ranger Electronic Communications, Inc., Defendant-Appellee > Court of Appeals for the Sixth Circuit · April 24, 2000 · 210 F.3d 627 URL: https://www.frixlaw.com/law-library/cases/9493010 ## Case - **Full name:** UNITED STATES of America, Plaintiff-Appellant/Cross-Appellee, v. RANGER ELECTRONIC COMMUNICATIONS, INC., Defendant-Appellee/Cross-Appellant - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** April 24, 2000 - **Citations:** 210 F.3d 627; 2000 U.S. App. LEXIS 7342 - **Precedential status:** Published - **Opinion:** Concurrence by Jones - **Judges:** Jones, Norris, Siler - **Cited by:** 21 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Overruled on other grounds by Stella Townsend, Wolodymyr Cybriwsky Dodd D. Dixon, Plaintiff's Attorneys-Appellants v. Commissioner of Social Security, 415 F.3d 578 (2005). - Negative treatments: 2 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9493010 ## How later opinions describe it (automated extraction) - stating that “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-day limitation” - noting that a construction of the Hyde Amendment that does not apply § 2412(d) “does not give effect to the plain meaning of the Hyde Amendment nor the policy considerations behind it” - stating that the thirty-day time limit of § 2412(d)(1)(B) “is jurisdictional and cannot be waived.” - holding thirty-day limitation for filing award for attorney’s fees provided'in § 2412(d)(1)(B) ap plies to Hyde Amendment application ## Opinion text 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-appeal-able 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 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, *635 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 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 ap-pealable, 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 , 111 S.Ct. 2157 , 115 L.Ed.2d 78 (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 & Whinney, 489 U.S. 169, 179 , 109 S.Ct. 987 , 103 L.Ed.2d 146 (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 *636 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 , 104 S.Ct. 1051 , 79 L.Ed.2d 288 (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. 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 *637 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 TriState, despite its close relationship with parent company, was litigating on its own 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’n 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. 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 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 *638 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. . The 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 *636 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. . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9493010. Public record. Not legal advice.