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Attorney Fees under CAFRA

The government is not typically liable for attorneys’ fees incurred by the owner of the property if the government returns the property within 90 days of the verified claim being filed.

When the money is returned within 90 days, the government rarely offers to pay the property owner any interest even though it deposits the money in an interest-bearing account.

The government can be held liable for attorneys’ fees and interest when it fails to return the property within the 90-day deadline or if it files a complaint for forfeiture, but does not prevail in the action.

Forfeiture cases are more difficult because of the government’s obstinacy that is often contrary to settled law. Justice in these cases requires not just getting your money back quickly, but getting the court to award attorney fees and costs.

How To Get Attorney Fees in Civil Asset Forfeiture Cases

If your property was seized for civil asset forfeiture, contact Leslie Sammis, an experienced civil asset forfeiture attorney in Tampa, FL. Depending on the circumstances, we take civil asset forfeiture cases on a contingency fee basis in Florida and throughout the United States.

Many of these cases involve a local attorney contacting us to assist in the case.

No matter the circumstances, contact attorney Leslie Sammis to contest a wrongful or illegal seizure of money or other valuable property in a civil asset forfeiture proceeding.

Whether your money was seized at the airport, from a bank account, or during a traffic stop, we can help.

Call 813-250-0500.


CAFRA’s Provisions on Attorney Fees

CAFRA provides that the government is liable for “reasonable attorney fees and other litigation costs reasonably incurred by the claimant.” 28 U.S.C. § 2465(b)(1)(A), although the statute does not specify precisely how fee awards should be calculated. Few cases address the proper method of determining an attorney fee award under CAFRA.

Most courts have used the “lodestar method” to determine the amount to be awarded under CAFRA. See U.S. v. One Star Class Sloop Sailboat, 546 F.3d 26, 37-8 (1st Cir. 2008); U.S. v. $60,201 in U.S. Currency, 291 F. Supp. 2d 1126, 1129-1130 (C.D. Cal. 2003).

In some cases, the government will argue that the lodestar approach should not be used and that the attorney fees should primarily be based on the actual agreement between the Claimant and the Claimant’s attorney.


Reasons Why the Courts Should Award Attorney Fees in Forfeiture Cases

As U.S. Attorney General Eric Holder explained, “[f]orfeiture law is complex and requires specific expertise.” See Oversight of Federal Asset Forfeiture: Its Role in Fighting Crime: Hearing Before the Subcomm. on Criminal Justice Oversight of the S. Comm. on the Judiciary, 106th Cong. 110 (1999).

The fact that civil asset forfeiture cases are “so rarely challenged has nothing to do with the owner’s guilt, and everything to do with the arduous path one must journey . . . often without the benefit of counsel, and perhaps without any money left after the seizure with which to fight the battle.” H.R. Rep. No.
106-192 at 14 (1999).

Civil forfeitures involve a “risk that an innocent person will be deprived of his property.” United States v. $191,910.00, 16 F.3d 1051, 1069 (9th Cir. 1994). The risk is greater when the property owners lack effective counsel.

Congress created CAFRA’s fee-award provision, in part, to encourages private counsel to take forfeiture cases. In other words, the provisions on awarding attorney fees help facilitate legal representation for claimants.

In fact, the goal of the attorney fee provisions in CAFRA is to incentivize “private lawyers to become more involved in civil forfeiture cases.” See Louis S. Rulli, The Long Term Impact of CAFRA: Expanding Access to Counsel and Encouraging Greater Use of Criminal Forfeiture, 14 FED. SENT. R. 87, 88 (2001).

Congress worded CAFRA’s fee-award provision in the way that it did: “to liberalize the award of attorney fees” in federal civil forfeiture cases, and thus make it easier for property owners facing wrongful civil forfeitures to obtain effective counsel and make themselves whole. United States v. $60,201.00,
291 F. Supp. 2d 1126, 1130 (C.D. Cal. 2003).

Additionally, Congress enacted a fee-award provision in CAFRA that makes it easier for property owners to recover attorney’s fees when they prevail in a forfeiture case. CAFRA’s purpose: to “level[] the playing field between the government and persons whose property has been seized.” United States v. Section 9, 241 F.3d 796, 799 (6th Cir. 2001).

In particular, the attorney fee provision of CAFRA broadens the class of owners who can claim fees to all those who “substantially prevail”. Unlike the fees under the Equal Access to Justice Act (EAJA), CAFRA places no statutory hourly limit on fees.

CAFRA’s provision for awarding attorney fees requires the payment of fees even when the Government may have had a strong circumstantial case. See United States v. $186,416.00, 642 F.3d 753, 756 (9th Cir. 2011).


Should the Government Be Liable for Attorneys’ Fees Incurred Before the Complaint Was Filed?

The government might contend that it should not be liable for attorneys’ fees incurred before its verified complaint was filed.

However, the courts have found that “separating pre-complaint fees from post-complaint fees and awarding only the latter would deviate from the purpose of the Civil Asset Forfeiture Reform Act’s (“CAFRA”) fee-shifting provision.” United States v. $89,600 in United States Currency, 2011 U.S. Dist. LEXIS 151996, *6.

In United States v. Certain Real Prop., 579 F.3d 1315, 1323 (11th Cir. 2009), the court found that “[t]he CAFRA fee-shifting provision was designed to make claimants whole for their efforts to recover their property in a civil forfeiture action.”

For this reason, the court should not demarcate the fee award in this fashion.


Pre-Judgment and Post-Judgment Interest under CAFRA

Under 28 U.S.C. § 2465(b)(1)(B), (C)(ii), the successful claimants of civil asset forfeiture cases involving currency are also entitled to pre-judgment and post-judgment interest when the claimant has substantially prevailed in the litigation.

In these cases, the claimant will request an award of the interest paid to the United States from the date the currency was seized pursuant to 28 U.S.C. § 2465(b)(1)(C)(i). The claimant might also seek an award of imputed interest pursuant to 28 U.S.C. § 2465(b)(1)(C)(ii), for any non-excluded time period during which interest was not paid on the funds.

The statute provides that the “United States shall be liable for- – in cases involving currency, …

(i) interest actually paid to the United States from the date of seizure or arrest of the property that resulted from the investment of the property in an interest-bearing account or instrument; and

(ii) an imputed amount of interest that such currency, instruments, or proceeds would have earned at the rate applicable to the 30-day Treasury Bill, for any period during which no interest was paid (not including any period when the property reasonably was in use as evidence in an official proceeding or in conducting scientific tests for the purpose of collecting evidence), commencing 15 days after the property was seized by a Federal law enforcement agency, or was turned over to a Federal law enforcement agency by a State or local law enforcement agency.

28 U.S.C. § 2465(b)(1)(C).

Pursuant to §2465(b)(1)(B) and 28 U.S.C. § 1961, the Claimant is entitled to post-judgment interest from the date of the Judgment until the property is
returned.


The Government’s Defenses to Attorney Fees

Section 2465(b)(2)(C) of title 28 of the United States Code provides a defense for the United States when the payment of attorney fees are requested by one or more claimants:

(C) If there are multiple claims to the same property, the United States shall not be liable for costs and attorneys fees associated with any such claim if the United States–

(i) promptly recognizes such claim;

(ii) promptly returns the interest of the claimant in the property to the claimant, if the property can be divided without difficulty and there are no competing claims to that portion of the property;

(iii) does not cause the claimant to incur additional, reasonable costs or fees; and

(iv) prevails in obtaining forfeiture with respect to one or more of the other claims.

28 U.S.C. § 2465(b)(2)(C) (emphasis added).


How Attorney Fees and Costs Should Be Paid

CAFRA does not explain whether an award of attorney fees should be paid to the Claimant’s attorney or directly to the Claimant. Although policy justifications support awarding attorney fees and costs to the claimant’s attorney directly rather than to the client.

If fee awards are paid to the claimant, then attorneys may not be paid for their work. That problem reduces the likelihood of competent representation which undermines the goals of CAFRA.


This article was last updated on Tuesday, January 11, 2022.

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