Chapter 12: Attorneys’ Fees
12-2 Asset Forfeiture Policy Manual 2023
II. Payment of Attorneys’ Fees in Criminal Forfeiture Cases
A. Defendant’s attorneys’ fees
Thedefendantinacriminalforfeitureproceedingmayleforanawardofattorneys’feesonly
under the Hyde Amendment.
7
Amotionforfeesandcostsledinacivilforfeitureproceeding
under 28 U.S.C. § 2465(b) cannot include fees and costs incurred in even a directly related criminal
proceeding.
8
To prevail on a Hyde Amendment claim, the defendant must prove that: (1) the
defendantwastheprevailingpartyintheunderlyingaction;(2)thegovernment’spositionwas
vexatious, frivolous, or in bad faith; and (3) there are no special circumstances that would make the
award unjust.
9
This burden is higher than the one the party opposing forfeiture and seeking fees must
meet under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412, for civil actions.
10
A request
forattorneys’feesundertheHydeAmendmentbasedonacriminalprosecutionmustbeapproved
bytheHydeAmendmentCommitteeandtheExecutiveOceforU.S.Attorneys(EOUSA).Ifthe
requestspecicallyaddressescriminalforfeiture,thedefendantshouldalsosubmitacopytotheChief
of MLARS. Hyde Amendment claim awards are paid from the Judgment Fund.
Despite arising from a criminal proceeding, most courts have found a Hyde Amendment action
to be a civil proceeding governed by the Federal Rules of Civil Procedure.
11
Moreover, the Hyde
Amendment provides that the procedures and limitations for granting an award shall be derived
from those set forth in EAJA.
12
Inparticular,EAJArequiresthepartiesseekinganawardtoletheir
claimswithin30daysofnaljudgmentoftheunderlyingcivilaction.
13
EAJA also provides for the
determinationofreasonableattorneys’feesandotherexpenses.
14
7
Hyde Amendment to the Department of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations
Actof1998,Pub.L.105-119,§617,111Stat.2440,2519(1997),codiedasanotefollowing18U.S.C.§3006A
(permittingawardofattorneys’fees“wherethecourtndsthatthepositionoftheUnitedStateswasvexatious,frivolous,
orinbadfaith,unlessthecourtndsthatspecialcircumstancesmakesuchanawardunjust”).
8
See United States v. 317 Nick Fitchard Rd. N.W. Huntsville, AL, 579 F.3d 1315, 1319 (11th Cir. 2009).
9
See Hyde Amendment to the Department of Commerce, Justice, and State, the Judiciary and Related Agencies
AppropriationsActof1998,Pub.L.105-119,§617,111Stat.2440,2519(1997),codiedasanotefollowing18U.S.C.
§ 3006A.
10
See United States v. Gilbert, 198 F.3d 1293, 1299–1302 (11th Cir. 1999) (discussing legislative history of the Hyde
Amendment). In its original form, the Hyde Amendment tracked EAJA in its burden and standard of proof but was
changedpriortoenactmentbyswitchingtheburdenfromthegovernmenttotheplaintiandheighteningthestandard
of misconduct that must be shown. Id. at 1302; see also United States v. Wade, 255 F.3d 833, 839 n.6 (D.D.C. 2001)
(discussing in footnote that the Hyde Amendment is a heavier burden for petitioner than the EAJA standard); and
Sec. II.B in this chapter.
11
United States v. Braunstein, 281 F.3d 982, 994 (9th Cir. 2002); United States v. Holland, 214 F.3d 523, 525–526 (4th Cir.
2000); United States v. Truesdale, 211 F.3d 898, 902–904 (5th Cir. 2000); United States v. Wade, 255 F.3d 833, 839
(D.D.C. 2001). But see United States v. Robbins,179F.3d1268,1270(10thCir.1999)(ndingaHydeAmendment
action was a criminal proceeding to which the appellate rule for criminal actions applies).
12
“Such awards shall be granted pursuant to the procedures and limitations (but not burden of proof) provided for an award
under Title 28, U.S.C. § 2412.” Hyde Amendment to the Department of Commerce, Justice, and State, the Judiciary and
RelatedAgenciesAppropriationsActof1998,Pub.L.No.105-119,§617,111Stat.2440,2519(1997),codiedasanote
following 18 U.S.C. § 3006A.
13
28 U.S.C. § 2412(d)(1)(B).
14
28 U.S.C. § 2412(d)(2)(A).