If They Holler, Make ‘Em Pay…The Hyde Amendment
by Neal Davis and Dick DeGuerin
Three years ago, the federal government began investigating a nursing home for Medicare fraud. Jane Smith, a single mother who had custody of her three children, earned $30,000 a year as a business administrator for the nursing home. Federal investigators and prosecutors assured her that she was not a target of an investigation, and persuaded her to speak with federal agents. A year and several hundred thousand dollars later, the federal government completed its investigation. A grand jury indicted Ms. Smith and three other nursing home administrators for Medicare fraud.
The scenario of Jane Smith, while hypothetical, is not uncommon. Every year, the federal government prosecutes approximately 7000 defendants who, although not found guilty of any wrongdoing, must suffer the traumatic consequences that invariably attend a criminal prosecution. What the English poet Percy Shelley wrote in the early nineteenth century applies with equal force today:
Of accusation kills an innocent name,
And leaves for lame acquittal the poor life,
Which is a mask without it.
The question is do you and your client, who have prevailed, have any recourse against the federal government?
A Civil Remedy: Equal Access to Justice Act
Since 1980, the Equal Access to Justice Act (EAJA) has allowed the recovery of monetary damages in civil cases where the federal government was a party. Under the EAJA, “prevailing parties” are entitled to “reasonable fees and other expenses” when the federal government could not show that its position was “substantially justified or that special circumstances make an award unjust.” From 1990 to 1994, the government paid between $1 million and $8.2 million each year for damages awarded under the EAJA. In 1995, there were 2395 applications for awards under the EAJA, of which an astounding 2190 were granted, and approximately $10 million in total damages was awarded. Since the EAJA only applies to civil suits, the question remains: What recourse is available to defendants who have prevailed in a frivolous or malicious federal prosecution? Until recently, such defendants could not do much. You could seek a judicial remedy in the form of a contempt citation or a fine against the prosecutor, or pursue nonjudicial sanctions, such as lodging an ethical complaint against the prosecutor.
Passage of the Hyde Amendment
This all changed in September 1997, when the United States Congress overwhelmingly approved Public Law 105-119. Section 617 of this law, which amends 18 U.S.C. § 3006A (Adequate Representation of Defendants), allows a court to award a “prevailing” defendant “a reasonable attorney’s fee and other litigation expenses” when the federal prosecution was “vexatious, frivolous, or in bad faith, unless the court finds that special circumstances make such an award unjust.” Section 617 is popularly known as the “Hyde Amendment,” named after its sponsor, Representative Henry Hyde (R-IL).
Three major factors gave rise to the Hyde Amendment. First, frivolous or malicious prosecutions have almost always evaded punishment. As a leading commentator on legal ethics has observed: “[There are] literally hundreds of truly egregious instances of prosecutorial misconduct.... To my knowledge, none of these cases resulted in punishment of the prosecutor by his superiors ... courts or bar associations.” In 1990, the Department of Justice conceded that it had taken no disciplinary action in the ten cases that federal judges had made a written finding of prosecutorial misconduct. Second, over the last several years, the Department of Justice has taken the position that federal prosecutors are no longer subject to the ethical rules of the states in which they are licensed or practice. Third, the EAJA only applied to civil parties, and a criminal analogue was necessary to protect defendants subjected to federal prosecutions. As Representative Hyde explained about his amendment: “[A]s in the Equal Access to Justice Act for civil litigation, you should be entitled to your attorney’s fees reimbursed and the costs of litigation [for criminal cases]....”
Response to the Hyde Amendment
Based on its language, the Hyde Amendment was obviously modeled after the EAJA. The original draft of Representative Hyde’s amendment allowed recovery only when the government’s position was not “substantially justified.” However, due to fierce opposition from the Justice Department, the Hyde Amendment was altered to replace the “substantially justified” standard with the higher standard of “vexatious, frivolous, or in bad faith,” which was taken from the Firearms Owners’ Protection Act of 1986. Also, language was added to the Hyde Amendment expressly stating that the “burden of proof” from the EAJA did not apply. The final version of the Hyde Amendment, as two shrewd commentators have written, “[reflected] a compromise between the Department of Justice and original proponents of the bill.” Generally, criminal defense attorneys have praised the Hyde Amendment,even with its “vexatious, frivolous, or in bad faith” language, as a step in the right direction. As two authors observed last year: “[T]he Hyde Amendment has put into place a much-needed vehicle for vindicated criminal defendants.... More specifically, arguments relating to inappropriate prosecution can now more easily be made and heard in federal court.”
Federal prosecutors have consistently criticized the Hyde Amendment as being unduly burdensome and an unlawful interference with their discretion. According to a memorandum widely circulated during the drafting of the Hyde Amendment, the Justice Department believed that “[d]efending against [a criminal prosecution] has always been deemed to be one of the costs of American citizenship.”
Attorney General Janet Reno urged President Clinton to oppose the passage of the Hyde Amendment; Deputy Attorney General Eric Holder warned that, if the Hyde Amendment became law, people such as the “three Johns”—Gotti, Hinckley, and DeLorean—“could wind up with big taxpayer checks.” Former Attorney General Griffin Bell wrote a newspaper editorial invoking the image of Manuel Noriega receiving a government check for the attorney fees and costs that led to his partial acquittal.
In congressional debates, Representative Hyde responded to critics of his amendment. He explained that his amendment was aimed at federal prosecutions that were “willfully wrong, ... frivolously wrong. [Prosecutors] keep information from you that the law says they must disclose.... They suborn perjury.” He hoped that his amendment would force federal prosecutors to “think twice about bringing cases for which there is no substantial justification.” “What is the remedy,” he posed to his opponents, “if not this [amendment], for someone who has been unjustly, maliciously, improperly, abusively tried by the government, by faceless bureaucrats who ... get a U.S. Attorney looking for a notch on his gun?”
Hyde Amendment’s Affair with the EAJA
As Representative Hyde has stated, his amendment “takes the concepts in the Equal Access to Justice Act and applies them in the criminal context.” Because the Hyde Amendment does not set out the procedures and limitations for awarding attorney fees and litigation expenses, it must be read in conjunction with the EAJA and cases interpreting the procedures and limitations of the EAJA.
Hyde Amendment Evades Interpretation
As of late July 1999, few courts, almost all of which were federal district courts, have ventured to publish opinions addressing the Hyde Amendment. Until more courts address the Hyde Amendment, it is instructive to first examine the plain meaning of the Hyde Amendment’s language and review the handful of published opinions that interpret the Hyde Amendment. When this fails to elucidate the Hyde Amendment, then it is helpful to turn to case law interpreting the relevant provisions of the EAJA.
It is well established that statutory construction always begins with an examination of the plain meaning of the statute’s language. Other methods of statutory interpretation, such as excavating legislative intent or examining case precedent, are never reached unless the plain meaning of the statute is ambiguous or leads to absurd results. As one court interpreting the Hyde Amendment has put it: “[I]t is this Court’s duty to interpret statutes as meaning what they say, unless there is some obvious ambiguity. ‘There is generally no need for a court to inquire past the plain language of the statute.’”
Turning to how the Hyde Amendment has been interpreted, the courts have differed in their approaches. Some courts have examined only its plain meaning. Other courts have, with little or no explanation, bypassed the plain meaning and immediately proceeded to discern legislative intent. Only one court has examined both the plain meaning and legislative intent.
The Hyde Amendment applies “in any criminal case (other than a case in which the defendant is represented by assigned counsel paid for by the public) pending....” As the plain meaning reveals, the Hyde Amendment does not apply to court-appointed lawyers who are either in private practice or with the Federal Defenders Office. However, the definition of “criminal case” is less obvious. Does an investigation of a party qualify as a “criminal case?” One Hyde Amendment opinion has held that issues involving a grand jury subpoena, such as a subpoena duces tecum, constitute a “criminal case.” However, another Hyde Amendment opinion has stated in dicta that a “criminal case” is limited to proceedings that follow the party’s arrest or indictment.
The Hyde Amendment limits recovery to “a prevailing party, other than the United States....” Its plain language prohibits the federal government from recovering an award. Less clear is what “prevailing” means. Criminal cases are typically terminated in favor of the defendant through an acquittal, a dismissal without prejudice, or a dismissal with prejudice. Certainly, an acquitted defendant has prevailed and is eligible for an award. What about when it is unclear whether a party is considered “prevailing”? For example, what if federal prosecutors obtain and then dismiss an indictment against the defendant?
Courts interpreting the Hyde Amendment have shed some light on the term “prevailing.” A party has prevailed when it has obtained a dismissal, regardless of whether the dismissal was with or without prejudice. A party has not prevailed when it has obtained the dismissal without prejudice of a grand jury subpoena. When a mixed verdict has been returned against a defendant in a criminal case, one Hyde Amendment opinion has suggested that the “totality of the circumstances” should determine whether the party has prevailed. The “totality of the circumstances” includes the “litigation chronology” and whether the party has won the relief it sought. Courts interpreting the EAJA have taken a slightly different approach, holding that a party has prevailed when a mixed verdict is returned. These EAJA opinions have held that a party has prevailed so long as the party has “succeeded on any significant issue” that was litigated.
Thus far, no Hyde Amendment opinions have defined “prevailing” in the context of appeals. However, courts interpreting the EAJA have held that a party has prevailed when it loses at trial but wins on appeal. Conversely, a party has not prevailed when it wins at trial but loses on appeal.
The Hyde Amendment allows for the recovery of “a reasonable attorney’s fee....” The EAJA now caps attorney fees at $125 per hour, unless cost of living increases or “special circumstances” justify a higher award. “Special circumstances” that justify an increased hourly rate include the qualifications and skills of the attorneys, the market rate for attorney fees, and whether the attorney practices in a specialized area of law, such as criminal law.
Significantly, the Hyde Amendment also allows a prevailing defendant to recover “other litigation expenses.” As with the terms “case” and “prevailing,” the phrase “other litigation expenses” is not exactly clear. For example, do “expenses” include reimbursement for the amount of time that the defendant has been unable to work or to see loved ones as the result of the defendant’s prosecution? Do “expenses” cover compensation for damage to the defendant’s reputation?
One Hyde Amendment case has held that “expenses” include the cost of preparing and filing the petition. Several EAJA cases have held that the following costs were recoverable as “expenses”: clerk fees, copying and printing costs, and docket fees; the “reasonable” cost of expert witnesses; and on-line computer research, so long as it is routinely billed to the client. Costs that have been held nonrecoverable include overtime meals and local transportation.
Under the Hyde Amendment, any recovery is contingent upon a party’s showing that the government’s position was “vexatious, frivolous, or in bad faith....” The handful of Hyde Amendment opinions have defined this standard in different ways.
“Vexatious” has been defined as “[w]ithout reasonable or probable cause or excuse,” “unreasonable ... or without foundation, even though not brought in subjective bad faith ... either intentional or reckless disregard of the attorney’s duties to the court,” and “lacking justification and intended to harass.”
“Frivolous” has been defined as “of little weight or importance,” and “having no basis in law or fact ... light, slight, sham, irrelevant, superficial.”
“Bad faith” has been interpreted to mean a “reckless disregard for the truth,” including the failure to disclose exculpatory evidence, and a “conscious doing of a wrong because of dishonest purpose or moral obliquity.” Significantly, the House-Senate Conference Committee Report on the Hyde Amendment stated that “a grand jury finding of probable cause to support an indictment does not preclude a judge from finding that the government’s position was vexatious, frivolous, or in bad faith.”
The Hyde Amendment states that the “burden of proof” from the EAJA does not apply. However, the Hyde Amendment does not define the meaning of “burden of proof.” For example, does “burden of proof” mean that the “vexatious, frivolous, or in bad faith” standard replaces the EAJA standard of “substantial justification?” Does “burden of proof” mean that the government’s burden under the EAJA shifts to a petitioner under the Hyde Amendment? Or does “burden of proof” mean both of these things?
In one Hyde Amendment opinion, the court assumed “burden of proof” meant that the government’s burden shifted to the petitioner, but that the “vexatious, frivolous, or in bad faith” standard did not replace the EAJA standard of “substantial justification.” Undoubtedly, the Hyde Amendment would be less ambiguous if the phrase “burden of proof” had been divided into “burden of production” and “burden of persuasion.”
Only one Hyde Amendment opinion has discussed in detail the “burden of proof.” In that opinion, the court held that the petitioner has the burden of showing, by a preponderance of the evidence, that the government’s conduct was “vexatious, frivolous, or in bad faith.” Thus, the defendant never had to show that the government was not “substantially justified.”
The Hyde Amendment allows courts, in determining whether the government’s position was “vexatious, frivolous, or in bad faith,” to “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)....” As a result of this language, courts have not hesitated to examine the privileged and confidential documents of the Department of Justice, the Internal Revenue Service, and other federal agencies. In one case, the court directed the government to show cause why its internal documents should not be disclosed to the Hyde Amendment petitioner for purposes of arguing the fee award.
The Hyde Amendment provides that, even where an award is appropriate, the court may nevertheless decline the award if it finds that “special circumstances make such an award unjust....” No Hyde Amendment opinion has defined “special circumstances,” but several EAJA opinions have held that “special circumstances” include when the government advances, in good faith, a novel but credible interpretation of law.
Two commentators have persuasively argued that aggressive and novel legal theories should not constitute “special circumstances” under the Hyde Amendment: “When dealing with criminal statutes citizens are not required to act first and find out they committed a crime under a novel theory. Rather, notice and intent are key components of criminal law.”
The last part of the Hyde Amendment states: “Fees and other expenses awarded under this provision shall be paid by the agency over which the party prevails from any funds made available ... by appropriation....” Hyde Amendment opinions have defined “agency” to include any government agency, such as the Department of Justice, the United States Attorney’s Office for a particular district, the Internal Revenue Service, and the Federal Deposit Insurance Corporation. One court has discussed how, when multiple government agencies are responsible for misconduct, they are joint and severally liable for the total amount of damages awarded to a petitioner under the Hyde Amendment.
Another issue under the Hyde Amendment is standing. In order to have standing, individuals must have a net worth of less than $2 million, and corporations or other organizations must have a net worth of less than $7 million and 500 or fewer employees. Defendants lacking standing under the Hyde Amendment have successfully attempted to recover under the Federal Tort Claims Act.
The Hyde Amendment petition must be filed within 30 days of the judgment upon which the party seeks recovery. However, one Hyde Amendment opinion has tolled this period when the party did not learn of any government misconduct until after the 30-day period had lapsed.
The courts have differed on the amount of time that a party has to appeal a district court’s ruling on the Hyde Amendment. One appeals court has held that, because the Hyde Amendment proceeding arises out of a criminal case, Rule 4(b) of the Federal Rules of Appellate Procedure applies. Under Rule 4(b), the party must file a notice of appeal within 10 days after the district court has entered its order on the petition. However, a district court has held that the Hyde Amendment proceeding incorporates the EAJA and provides a civil remedy for money damages, suggesting that Rule 4(a) of the Federal Rules of Appellate Procedure applies. Under Rule 4(a), the party can file a notice of appeal up to 60 days after the district court has entered its order on the petition.
Some Final Words
The case law interpreting the Hyde Amendment is still in its infancy. As more criminal defense attorneys begin vigorously pursuing Hyde Amendment claims, we will gain a better understanding of both the Hyde Amendment and its impact on frivolous and malicious prosecutions. Until then, however, it remains to be seen whether “the breath of accusation” will continue resulting in “lame acquittal.”
In its responses to Hyde Amendment petitions, the federal government has vigorously argued that the petitioners did not comply with the formal requirements of the Hyde Amendment. As a result, defense counsel should consult the following ten-point checklist when preparing a petition:
- The defendant meets the standing requirements of the EAJA.
a. The defendant should sign an affidavit stating the defendant’s net worth and that the defendant is eligible to receive an award.
- The petition was filed within 30 days of the final judgment in the defendant’s case.
- The case was pending on or after November 26, 1997.
- The case was a “criminal case.”
- Counsel was retained, not appointed, to represent the defendant.
- The defendant was a “prevailing” party.
- The prosecution was “vexatious, frivolous, or in bad faith.” Identify any and all government agencies, such as the Federal Bureau of Investigation and the United States Attorney’s Office, that are liable.
- Whether it is necessary for the court to hold an ex parte and in camera inspection of any government documents.
- The attorney fees and litigation costs were reasonable.
a. Defense counsel should sign an affidavit itemizing all attorney’s fees and expenses.
- No “special circumstances” make the award unjust.
1. See Elkan Abramowitz & Peter Scher, The Hyde Amendment: Congress Creates a Toehold for Curbing Wrongful Prosecution, The Champion 22, n.20 (1998) (citing statistics that the Administrative Office of U.S. Courts prepared for the year 1997).
2. Percy Bysshe Shelley, The Cenci (1819).
3. See Equal Access to Justice Act of 1948, 28 U.S.C. § 2412 (West Supp. 1999).
5. See Abramowitz & Scher, supra note 1 at 23 (citing the Equal Access to Justice Act, Annual Report of the DOJ (1995)).
6. See id. at n.7.
7. See The Hyde Amendment, Pub. L. No. 105-119, Title VI, § 617, 111 Stat. 2519 (1997).
9. Bennett L. Gershman, Prosecutorial Misconduct § 13.2, at n.4 (1998).
10. See Abramowitz & Scher, supra note 1 at n.3 (citing H. Rep. No. 101-986, 101st Cong., 2d Sess. 24 (1990)).
11. See Joseph F. Savage, Jr. & Geoffrey M. Stone, Recovering Attorney’s Fees After Wrongful Federal Prosecutions: New Amendment Opens the Door, 6 White-Collar Crime Rep. 1, 1-2 (1998); see also The “Ethical Standards for Attorneys for the Government,” which was codified at 28 U.S.C. § 530B (1999), and requires attorneys for the federal government to follow the ethical rules of the state in which they practice.
12. 143 Cong. Rec. H7786-04, H7791 (daily ed. Sept. 24, 1997) (statement of Rep. Hyde).
13. See Abramowitz & Scher, supra note 1 at 22.
14. Id.; see also Firearms Owners’ Protection Act of 1988, 18 U.S.C. § 924 (West Supp. 1999).
15. See Abramowitz & Scher, supra note 1 at 23.
16. Savage & Stone, supra note 11 at 1.
17. Abramowitz & Scher, supra note 1 at 23.
18. See id.
20. See id. at 24.
21. House Backs Measure Exposing Government to Attorneys’ Fee Awards in Criminal Cases, 82 Crim. L. Rep. 1019 (1997).
22. 143 Cong. Rec. H7786-04, H7792 (daily ed. Sept. 24, 1997) (statement of Rep. Hyde).
24. Comments, Questions, and Answers on the Hyde Amendment, 105th Cong., 2d Sess. (1997) (statement of Rep. Hyde).
25. See supra note 7; see also supra note 3.
26. See generally United States v. Robbins, 1999 WL 387207 (10th Cir. June 14, 1999); United States v. Holland, 1999 WL 321555 (E.D. Va. May 18, 1999); United States v. Hall, 1999 WL 236750 (S.D.N.Y. Apr. 21, 1999); United States v. Holland, 34 F. Supp. 2d 346 (E.D. Va. 1998), modified, 1999 WL 321555 (E.D. Va. May 18, 1999); In re Grand Jury Subpoena Duces Tecum, 31 F.Supp.2d 542 (N.D. W.Va. 1998); United States v. Gardner, 23 F. Supp. 2d 1283 (N.D.Okla. 1998); United States v. Ranger Elec. Communs., Inc., 22 F. Supp. 2d 667 (W.D. Mich. 1998); United States v. Yee Chan, 22 F. Supp. 2d 1123 (D. Hawaii 1998); United States v. Reyes, 16 F. Supp. 2d 759 (S.D. Tex. 1998); United States v. Troisi, 13 F.Supp.2d 595 (N.D. W.Va. 1998).
27. See Wayne R. LaFave & Austin W. Scott, Jr., Handbook on Criminal Law, § 2.2, 75-76 (2d ed. 1986), quoting Caminetti v. United States, 242 U.S. 470 (1917); See also United States v. Ron Pair Enterprises, 489 U.S. 235, 241 (1989).
29. Holland, 34 F. Supp. 2d at 357, quoting Reyes, 16 F. Supp. 2d at 760.
30. See Holland, 1999 WL 321555; see also Holland, 34 F. Supp. 2d at 357; In re Grand Jury Subpoena Duces Tecum, 31 F. Supp. 2d at 543-44; Reyes, 16 F. Supp. 2d at 760.
31. See Ranger Elec. Communs., Inc., 22 F. Supp. 2d at 673-75; see also Troisi, 13 F. Supp. 2d at 596. Aside from Representative Hyde’s comments, there is little legislative history underlying his amendment. See Holland, 34 F. Supp. 2d at 357-58, n.18 (describing as the legislative history of the Hyde Amendment as “sparse”).
32. See Gardner, 23 F. Supp. 2d at 1295 n.22.
33. Supra note 7.
34. See In re Grand Jury Subpoena Duces Tecum, 31 F. Supp. 2d at 543-44.
35. See Holland, 34 F.Supp. at 359, n.21, citing Kirby v. Illinois, 406 U.S. 682 (1972).
36. Supra note 7.
37. See, e.g., Troisi, 13 F. Supp. 2d at 598.
38. See Gardner, 23 F. Supp. 2d at 1290-91, n.10; see also Ranger Elec. Communs., Inc., 22 F. Supp. 2d at 669, 676.
39. See In re Grand Jury Subpoena Duces Tecum, 31 F. Supp. 2d at 543-44.
40. See Gardner, 23 F. Supp. 2d at 1291.
42. See Tex. St. Tchrs. Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782 (1989).
43. See, e.g., Hirschey v. F.E.R.C., 760 F.2d 305 (D.C. Cir. 1985).
44. See, e.g., Alliance to End Repression v. City of Chicago, 119 F.3d 472 (7th Cir. 1997).
45. Supra note 7.
46. See supra note 3.
47. See Gary Knapp, The Award of Attorneys’ Fees in Excess of $75 per Hour Under Equal Access to Justice Act, 119 A.L.R.Fed. 1.
48. See Ranger Elec. Communs., Inc., 22 F. Supp. 2d at 676.
49. See Photo Data, Inc. v. Sawyer, 533 F. Supp. 348 (D. D.C. 1982); see also Massachusetts Fair Share v. Law Enforcement Assistance Admin., 776 F.2d 1066 (D.C. Cir. 1985) (duplication fees).
50. See Walton v. Lehman, 570 F. Supp. 490 (E.D. Pa. 1983).
51. See Nat’l Ass’n of Mfrs. v. U.S. Dept. of Lab., 962 F. Supp. 191 (D. D.C. 1997).
52. See Mass. Fair Share v. Law Enf. Assistance Admin., 776 F. 2d 1066 (D.C. Cir. 1985); see also Photo Data, Inc. v. Sawyer, 533 F.Supp. 348 (D.D.C. 1982).
53. Supra note 7.
54. United States v. Reyes, 16 F. Supp. 2d 759, 761 (S.D. Tex. 1998); see also United States v. Gardner, 23 F. Supp.2d 1283, 1293 (N.D. Okla. 1998); United States v. Holland, 34 F. Supp. 2d 346, 360, n.23 (E.D. Va. 1998) (quoting Black’s Law Dictionary, 1565 (6th ed.1990)).
55. Gardner, 23 F. Supp. 2d at 1293 (quoting Christianburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978) and Braley v. Campbell, 832 F.2d 1504, 1512 (10th Cir. 1987) (en banc)).
56. Holland, 34 F. Supp. 2d at 359-60 (quoting Merriam-Webster’s New International Dictionary (1993)).
57. Reyes, 16 F. Supp. 2d at 761 (quoting Black’s Law Dictionary 668 (6th ed.1990)); see also Holland, 34 F. Supp. 2d at 359-60, n.22 (quoting Merriam-Webster’s New International Dictionary (1993)).
58. Holland, 34 F. Supp. 2d at 359-60, n.22 (quoting Merriam-Webster’s New International Dictionary (1993)).
59. See United States v. Troisi, 13 F. Supp. 2d 595, 596 (quoting Franks v. Delaware, 438 U.S. 154, 171 (1978) and citing Kyles v. Whitley, 514 U.S. 419, 435 (1995); see also United States v. Ranger Elec. Communs., Inc., 22 F. Supp. 2d 667, 676 (W.D. Mich. 1998).
60. Reyes, 16 F. Supp. 2d at 761 (quoting Black’s Law Dictionary 139 (6th Ed.1990)).
61. H.R. Conf. Rep. NO. 105-405 at § 617; see also Holland, 34. F. Supp. 2d at 365, n.30.
62. See supra note 7.
63. See Troisi, 13 F. Supp. 2d at 596-97.
64. See Holland, 34 F. Supp. 2d at 358.
65. See id.
66. See id.
67. Supra note 7.
68. See Garder, 23 F. Supp. 2d at 1297-98; see also United States v. Holland, 1999 WL 321555, 6 (E.D. Va. May 18, 1999).
69. See Irvin B. Nathan & John C. Massaro, Shekels & Hyde: Little Money, Many Lessons from Hyde, 6 No. 1 Bus. Crimes Bull: Compliance & Litig. 1, 2 (1999).
70. Supra note 7.
71. See, e.g., Jackson v. Bowen, 807 F.2d 127 (8th Cir. 1986).
72. Savage & Stone, supra note 11 at 5-6 (citing United States v. Anzalone, 766 F.2d 676 (1st Cir. 1985)).
73. Supra note 7.
74. See, e.g., Holland, 1999 WL 321555; see also Holland, 34 F.Supp.2d 346; Gardner, 23 F. Supp. 2d 1283.
75. See, e.g., Holland, 1999 WL 321555 at 9.
76. See supra note 3.
77. See The Federal Tort Claims Act, 28 U.S.C. § 1346 (West Supp. 1999); See, e.g., General Dynamics v. United States, 139 F.3d 1280 (9th Cir. 1998) (district court’s $25 million award to General Dynamics under the Federal Torts Claim Act, based on the malpractice of government auditors, overturned because the harm caused to General Dynamics was in fact prosecutorial discretion, not auditors’ malpractice, and the act expressly prohibits recovery on claims arising out of prosecutorial misconduct).
78. See supra note 3.
79. See Ranger Elec. Communs., Inc., 22 F. Supp. 2d at 674-75.
80. See United States v. Robbins, 1999 WL 387207, 2 (10th Cir. June 14, 1999).
81. Id.; see also Fed. R. Civ. Proc. 4(b).
82. See Holland, 1999 WL 321555 at 1.
83. See Robbins, 1999 WL 387207 at p. 2; see also Fed. R. app. Proc. 4(a).
84. See Shelley, supra note 2.