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United States v. $116

United States District Court, D. South Carolina, Columbia Division

December 21, 2015

United States of America,
$116, 850 in United States Currency, Defendant in Rem .


Joseph F. Anderson, Jr. United States District Judge

I. Introduction

This matter is before the Court on the Claimant Tran’s (“Claimant”) Motion for Attorney’s Fees, Costs, and Interest pursuant to 28 U.S.C. § 2465(b)(1). ECF No. 114. This matter has been exhaustively briefed, and the Court heard extensive oral arguments on the afternoon of November 6, 2015. For the reasons discussed below, this Court awards attorney’s fees in the amount of one hundred fifty-two thousand and five hundred dollars ($152, 500.00), costs in the amount of eight thousand two hundred and five dollars and four cents ($8, 205.04), and statutory interest in the amount of one hundred and one dollars and forty-nine cents ($101.49).

II. Factual and Procedural Background

On December 13, 2013, the Government seized $116, 850.00 (the “Funds”) from Claimant based upon allegations of drug trafficking. On May 2, 2014, the Government filed a Complaint for Forfeiture where it alleged that the Funds were the proceeds of drug trafficking, money laundering, unlicensed money transmitting, and other unspecified unlawful activity. On May 23, 2014, Claimant filed a Verified Claim pursuant to 21 U.S.C. §853(n) and Fed. R. Crim. P. 32.2(c), which identified his interest in the Funds. On August 13, 2015, after more than a year of litigation, the Government moved to dismiss the action with prejudice. On August 14, 2015, the Court granted the Government’s motion and ordered the Funds returned without delay.[1] On August 21, 2015, Claimant filed the instant motion.

III. Legal Standard

The Civil Asset Forfeiture Reform Act of 2000 (“CAFRA”) provides that in “any civil proceeding to forfeit property under any provision of Federal law in which the claimant substantially prevails, the United States shall be liable for reasonable attorney fees and other litigation costs reasonably incurred by the claimant.” 28 U.S.C. § 2465(b)(1)(A); see also U.S. v. Davis, 648 F.3d 84, 2011 WL 2162897, at *11 (2d Cir. 2011). CAFRA thus requires the Government to pay the attorney’s fees and other litigation costs of a claimant who “substantially prevails” in a forfeiture proceeding.

To “substantially prevail” under CAFRA, a claimant must achieve an “alteration of the legal relationship of the parties” marked by “judicial imprimatur on the change.” Buckhannon Bd. and Care Home Inc. v. West Virginia Dept. of Health & Human Services, 532 U.S. 598, 605 (2001). For example, a claimant has “substantially prevailed” so as to entitle him to attorney’s fees, costs, and interest when the court denies the Government’s request for forfeiture of assets. See U.S. v. $10, 795, No. 8:08-3358, 2009 WL 2513440, at *1 (D.S.C. August 12, 2009).

Importantly, “[a] request for attorney's fees should not result in a second major litigation.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). “Ideally, of course, litigants will settle the amount of a fee.” Id. When settlement is not possible, the claimant bears the burden of establishing entitlement to and documentation of the appropriate hours and hourly rates. Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988)(citing Hensley, supra). Further, the claimant’s attorney should exercise “billing judgment” regarding hours worked and should maintain billing time records in a manner that will enable a reviewing court to identify distinct claims. Hensley at 437.

IV. Discussion

The parties agree that Claimant is entitled to an award of attorney’s fees, a reimbursement of reasonable costs, and statutory interest in the amount of one hundred and one dollars and forty-nine cents ($101.49). The only two issues in dispute are: A) the amount of attorney’s fees; and B) the amount of costs.

A. Attorney’s Fees

In the Fourth Circuit, the lodestar analysis applies to an award of attorney’s fees. Trimper v. City of Norfolk, Va., 58 F.3d 68, 73 (4th Cir. 1995). Under the lodestar method, attorney’s fees are determined by taking “the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Id. at 72 n.4 (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)).

The district court must look to the following factors to determine the reasonableness of an attorney’s lodestar: (1) the time and labor involved; (2) the difficulty and novelty of the issues; (3) the necessary legal skill required; (4) the attorneys’ opportunity costs in pressing the instant litigation; (5) the customary fee; (6) the contingent nature of the fee; (7) the time limitations imposed by circumstances or the client; (8) the amount in controversy and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. See, e.g., Barber v. Kimbrell’s Inc., 577 F.2d 216, 226 (4th Cir. 1978); McAfee v. Boczar, 738 F.3d 81, 89 (4th Cir. 2013), as amended (Jan. 23, 2014); Savani v. URS Professional Solutions, LLC, No. 1:06-cv-02805-JMC, 2014 WL 172503, at *3, 8 (D.S.C. Jan. 15, 2014); Local Rule 54.02(A) (D.S.C.).

1. The time and labor involved.

This litigation has spanned nearly two years and has been hard fought by both sides. Indeed, this Court can think of other cases before it that have or will proceed through the trial phase and likely involve less time on the part of counsel and the Court. Beginning with a hearing on the Motion to Dismiss, continuing with the hearing on the issue of standing, and culminating in the hearing on the Motion for Suppression, this case involved a number of interesting and time consuming issues. Add to those, the numerous orders on discovery disputes (See, e.g., ECF Nos. 22, 34, 35, 39, 44, 55, 58) and the near endless briefing (See, e.g., ECF Nos. 19, 20, 32, 36, 56, 57), then this case would consume a large part of the docket of any trial judge. Obviously, the attorneys on both sides devoted considerable time to this case.

Consequently, the Court is not surprised by the number of hours Claimant seeks for attorney’s fees in this case - 461 attorney hours and 46 paralegal hours. Equally unsurprising is the Government’s position that such a figure is “patently obscene.” While the Government has not suggested an exact number of appropriate hours, an analysis of its briefing would indicate that it might have agreed to fees somewhere in the range of thirty percent of what Claimant asks.

a. Administrative Forfeiture

Claimant seeks to recover attorney’s fees for twelve hours of work during the administrative forfeiture proceedings of the Defendant Currency between January 8, 2014 and February 24, 2014. However, the Government argues it is only liable for attorney’s fees incurred during the civil forfeiture proceedings.

Because the requested fee award implicates the Government's sovereign immunity, any waiver of immunity must be “unequivocally expressed, with all uncertainties being resolved in favor of the [G]overnment.” Boehms v. Crowell, 139 F.3d 452, 463 (5th Cir. 1998)(emphasis in original). Moreover, the “American Rule” generally precludes fee-shifting absent “express statutory authorization to the contrary.” Id. CAFRA's fee-shifting provision applies only to civil proceedings “to forfeit property, ” that is, civil forfeiture actions initiated by the Government. 28 U.S.C. § 2465(b)(1)(emphasis added). Cf. Carvajal v. United States, 521 F.3d 1242, 1247 (9th Cir. 2008)(explaining that the parallel provision of CAFRA providing for payment of interest, § 2465(b)(1)(C), “is triggered only when the government institutes civil forfeiture proceedings” and the party seeking fees “substantially prevails”).

Accordingly, Claimant is not entitled to an award of attorney’s fees for work performed during the ...

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