and Submitted June 13, 2019 San Francisco, California
from the United States District Court for the District of
Arizona D.C. No. 4:14-cr-00631-JGZ-LAB-1 Jennifer G. Zipps,
District Judge, Presiding
Bates Butler III (argued), Tucson, Arizona, for
Bradley G. Silverman (argued), Special Attorney; Helen H.
Hong, Chief, Appellate Section; United States Attorney's
Office, San Diego, California; for Plaintiff-Appellee.
Before: Ronald M. Gould and Sandra S. Ikuta, Circuit Judges,
and Benita Y. Pearson, [*] District Judge.
Law / Attorneys' Fees
panel affirmed the district court's denial of a motion
for attorneys' fees under the Hyde Amendment and a motion
for reconsideration filed by a criminal defendant following
with the Eighth Circuit, the panel held that a defendant is
eligible for attorneys' fees under the Hyde Amendment
only where there is egregious prosecutorial misconduct that
renders the litigating position of the United States as a
whole "vexatious, frivolous, or in bad faith." The
panel held that the appellant was not eligible for
attorneys' fees because she conceded that there was no
prosecutorial misconduct in her case.
Mixon appeals the district court's order denying her
motion for attorneys' fees under the Hyde Amendment and
the denial of her motion for reconsideration of that order. A
defendant is eligible for attorneys' fees under the Hyde
Amendment only when there is egregious prosecutorial
misconduct that renders the litigating position of the United
States as a whole "vexatious, frivolous, or in bad
faith." 18 U.S.C. § 3006A note. Because Mixon
concedes that there was no prosecutorial misconduct in her
case, we affirm.
was employed as a case manager on the sex offender yard at a
maximum security federal penitentiary in Tucson, Arizona.
While employed as a case manager, she was the subject of two
2006, an inmate alleged that Mixon was smuggling drugs to
inmates at the prison. The Department of Justice's Office
of the Inspector General (OIG) and the Federal Bureau of
Prisons (BOP) opened an investigation into this allegation.
While federal agents concluded there was insufficient
independent evidence to substantiate the allegation, they
also determined that Mixon made a material false statement in
an affidavit to investigators, and referred the alleged false
statement to the U.S. Attorney's Office in Tucson for
possible prosecution. Prosecutors declined to charge Mixon
for the alleged falsehood, but BOP initiated internal
disciplinary proceedings and gave Mixon a fifteen-day
suspension. While this investigation was pending, Mixon
alleged to two officials of her union that the BOP
investigators, including Lieutenant Alfonso Mendez, had
coerced inmates into making ...