June Purcell Russell Purcell Shaun Purcell v. United States

June Purcell, Russell Purcell, and Shaun Purcell appeal from the district court’s order denying their request for attorneys’ fees pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412 . The Purcells maintain that the district court erred in determining that their motion for return of property pursuant to Fed.R. Crim.P. 41(e) was a criminal proceeding and in denying their request for attorneys’ fees under section 2412.

We must decide whether the fact that a criminal investigation is pending against a movant in a Rule 41(e) motion is sufficient to render the proceeding criminal in nature and thus bar recovery of attorneys’ fees under the EAJA. We conclude that the district court erred in determining that the Rule 41(e) motion was a criminal proceeding. We reverse and remand for a hearing on the question whether the government’s position was substantially justified.

I.

In 1983, June Purcell operated a sporting goods store known as Purcell’s in Boise, Idaho. She filed a bankruptcy petition for Purcell’s on February 14, 1983. In October 1987, Special Agent Kenneth J. Kaminsky of the Federal Bureau of Investigation received certain information from Boise City Police…