Fee Agreement Can Be Taken Into Account But Payment Goes to Client, Ninth Circuit Holds in a 2-1 Opinion.
So far today, 2-1 appellate opinions have been the entrees on the menu in the fee area.
The Civil Asset Forfeiture Reform Act, at 28 U.S.C. § 2465(b)(1)(A), makes the U.S. liable for both reasonable attorney’s fees and costs incurred by a substantially prevailing claimant in a civil forfeiture proceeding initiated by the United States. This special fee shifting provision was up front and center in the next 2-1 opinion from the Ninth Circuit.
In U.S.A. v. $186,416.00 U.S. Currency, Case No. 07-56549 (9th Cir. Apr. 26, 2011) (for publication), the majority (Circuit Judges Hawkins and Clifton) decided that the lodestar method governed a prevailing claimant’s fee request, even though the fee agreement between plaintiff-counsel could be taken into account. However, the majority determined the fees should be paid to plaintiff, not its counsel, relying on the reasoning in Astrue v. Ratliff, 130 S.Ct. 2521 (2010) [discussed in our June 16, 2010 post] (an EAJA case).
In an equally scholarly dissent, Circuit Judge Berzon expressed the view that the district judge should have case-by-case discretion to award fees to either plaintiff or plaintiff’s counsel, finding that Ratliff involved a much different statute than the civil forfeiture scheme. (Circuit Judge Berzon did agree with the majority’s conclusion that the lodestar method should apply.)