Appellate Law

CA1: attorney fees in successful forfeiture cut

By S. COTUS

US v. One Star Class Sloop, No. 08-1152. 

Boat: 2   Government: 1

This is a forfeiture case, where the court earlier held that the government didn?t do enough to notify a part owner of the vessel that was owned by JFK.  ?Since the government already had sold the vessel at auction, the court ? which determined that the sales price equalled the vessel's fair market value ? awarded a share of the net sales proceeds to Lane. It subsequently granted him attorneys' fees in an amount less than he had requested.?

The earlier opinion is here United States v. One Star Class Sloop Sailboat (Sloop I), 458 F.3d 16 (1st Cir. 2006) and our coverage is here.

Regarding fees under Civil Asset Forfeiture Reform Act of 2000 (CAFRA), 28 U.S.C. § 2465(b)(1).  The First says that it was okay to reduce fees because of ?limited success.?  Then it says that the District Court was ?uniquely suited? to determine whether the lawyers wasn?t their time ?or the court?s? litigating ?hopless? issues.  Whatever. Likewise, it wasn?t an abuse of discretion to rely on an agreed-upon rate.  The First then says that the District Court (somewhat vindictively) said that one of the lawyers engaged in "egregious overlitigation.? Strangely, the District Court reduced the rate, but not the hours.  However, the First does say that an inappropriate factor in calculating fees decision is ?perceived lack of diligence in seeking to intervene in the forfeiture proceeding.?  But, the First says that substantive, there was no way that the client could have known, so the lawyer shouldn?t be dinged for not knowing.

As to value, the First turns back the argument that the part-owner didn?t have enough of a chance to present his evidence as a due process argument.  But, this really looks like summary judgment.

Substantively, the First says that a DOJ handbook on A Guide to Interlocutory Sales and Expedited Settlement (2003) isn?t doesn?t give rise to a ?private right of action? and it isn?t relevant.  This misses the mark. The part-owner isn?t seeking to create a private right of action (one already has been).  Instead, he is arguing that the guide creates a rule of decision, or at least some kind of norm of behavior which the government is expected to follow. I don?t think Selya understands the distinction.  Anyway, the First says that the more rigorous methods required don?t apply when the court orders otherwise.

Full post as published by Appellate Law and Practice on October 20, 2008 (boomark / email).