Civil Rights/Reasonableness Of Fees: Ninth Circuit Reverses District Court Award Of Reduced Fees On Numerous Grounds In Civil Asset Forfeiture Reform Act Case

 

Case Is A Primer On How To Satisfy Lodestar Factor And Fight An Award Reduced By A District Judge, Whether In CAFRA Or Other Cases.

     In U.S.A. v. Moser, No. 13-55266 (9^th Cir. Oct. 6, 2015) (published), the Ninth Circuit, in a majority decision by Circuit Judge Hurwitz and a concurrence by Circuit Judge Reinhardt, reversed a district judge’s award of $14,000 in attorney’s fees under the Civil Asset Forfeiture Reform Act of 2000 (CAFRA) to a prevailing claimant out of a requested $50,000 where the government only opposed on the ground it should be capped under a contingency agreement between the claimant and claimant’s attorney. (Claimant prevailed after the government seized currency during an improper marijuana cultivation search.)

     Here are the reasons that the reduced award was reversed and remanded for recalculation given that the lodestar method guides CAFRA awards:

1. Government waiver: Although the claimant still bears the burden of proof, once this is done, the government waived contesting the reasonableness by not presenting any competent proof in opposition to the fee petition.

2. Hourly rate proof: Claimant’s proof on this was entitled to a presumption of correctness.

3. Claimant’s presentation of fee experts on hourly rate: The district judge erred by ignoring three declarations by attorneys or experts on hourly rates (including forfeiture practitioners), reducing the hourly rate from $500 to $300.

4. Reliance on inapt criminal indigent representation principles: The district court also relied on inapt criminal indigent representation standards where the hourly rate is $125, because CAFRA is not just criminal but has a purpose to make sure claimants are adequately represented in government civil forfeiture battles.

5. Error in reducing for non-delegation to associates. The district judge reduced hours because he felt that tasks could be delegated to associates; however, the problem was that most CAFRA cases are handled by small firms or sole practitioners.

6. Using “stale” prior fee awards. The district court erred in using a 9-year-old fee award as a basis to reduce the claimed rate down to $300/hour—too stale.

7. Improper task reduction: The district court can reduce work effort under an hour-by-hour analysis or an across-the-board percentage cut, if adequately explained. Here, the judge could only identify 6.75 hours which were improper but still cut them down by an overall 40%.

8. Decrease based on contingency fee: The district court also improper reduced the lodestar based on the contingency fee in the fee agreement between claimant and his attorney.

     In concurrence, Circuit Judge Reinhardt added that unopposed government oppositions meant the district court had a modest task to review the fee petition to make sure it was not unjust or a fraud on the system, with careful review needed where there is a fee proceeding involving sophisticated private clients with resources and where the claimant is claiming a lot of fee recovery.