Does the Hyde Amendment inquiry into whether 'the position of the United States was vexatious, frivolous, or in bad faith' encompass actions of non-prosecutor government employees underlying the criminal case?

QUESTION PRESENTED The Hyde Amendment authorizes a district court to award attorney’s fees and costs to a prevailing criminal defendant “where the court finds that the position of the United States was vexatious, frivolous, or in bad faith.” Pub. L. No. 105-119, title VI, § 617, 111 Stat. 2519 (1997), reprinted at 18 U.S.C. § 3006A, historical and statutory notes. Congress modeled the Hyde Amendment on the Equal Access to Justice Act (EAJA), which defines “position of the United States” to mean, “in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based.” 28 U.S.C. § 2412(d)(2)(D). Congress also provided that Hyde Amendment “awards shall be granted pursuant to the procedures and limitations ... provided for an award under [EAJA].” Hyde Amendment. The circuit courts have divided 2—4 over whether the “position of the United States” under the Hyde Amendment is limited to the Department of Justice’s litigating position or whether it also encompasses the conduct of non-prosecutor government agencies or employees. Here, the Third Circuit reversed the district court’s award, which was based primarily on Department of Homeland Security officials’ egregious misconduct in removing Petitioner from the country, including apparently forging documents purporting to waive Petitioner’s right to a removal hearing, because it held that only the prosecutor’s position was relevant. The question presented is: Does the Hyde Amendment inquiry into whether “the position of the United States was vexatious, frivolous, or in bad faith” encompass actions of non-prosecutor government employees underlying the criminal case?