Americans for Forfeiture Reform has filed a request with the U.S. Court of Appeals for the Ninth Circuit. AFR is seeking permission to participate in oral arguments in United States v. Moser, an appeal of a District Court order slashing an attorney fee-shifting award arising from a civil forfeiture. Potentially at stake in Moser is whether the Civil Asset Forfeiture Reform Act of 2000's fee shifting provision continues to provide a compelling market incentive for private attorneys to take cases defending forfeiture victims on hopes of winning fee shift awards.

Whatever the U.S. Court of Appeals for the Ninth Circuit decides in Moser could thus shape whether forfeiture victims will be able to retain counsel when they lack the means to finance a forfeiture defense out-of-pocket or when legal costs threaten to surpass the value of the seized property---which is often.

I previously discussed the case here and here. Americans for Forfeiture Reform filed an amicus curiae brief in Moser, available here.



AFR's request for inclusion in oral arguments is below.

Introduction

In United States v. Moser, Appellant Robert Moser (“Moser”) challenges the District Court’s reduction of his attorney’s fees request under the Civil Asset Forfeiture Reform Act (“CAFRA”) by over 70%. On November 1, 2013, Americans for Forfeiture Reform (“Amicus”) filed an amicus brief in support of Moser with the consent of all the parties.

Amicus now respectfully seeks this Court’s permission under Fed. R. App. P. 29(g) to participate in the oral argument for this case scheduled for March 2, 2015. See Log Cabin Republicans v. United States, 2011 U.S. App. LEXIS 16311, at *5 (9th Cir. July 11, 2011) (“[T]he court may allow amicus curiae to participate in oral argument . . . .”). Amicus seeks 5 minutes of argument time, but Amicus does not seek to intrude on Moser’s or the Government’s time. Amicus also assents to the Government being given additional time for rebuttal if Amicus’s Motion is granted.

The parties have expressed the following positions on this Motion to counsel for Amicus: Moser consents to this Motion, so long as it does not intrude on Moser’s argument time. The Government takes no position, except to oppose any intrusion on the Government’s argument time.

Argument

Amicus respectfully seeks oral argument time in Moser because Amicus can provide the Court a broader perspective on why the District Court’s ruling in this case should be reversed. In this ruling, the District Court reduced a CAFRA fee award to Moser’s counsel because: (1) the District Court thought Moser’s counsel “gave the government’s litigation work more respect than it deserved”; and (2) the District Court thought Moser’s case required only the skills of a criminal defense attorney, rather than a veteran civil forfeiture attorney. See Amicus Br. 23–30.

Such reasoning is irreconcilable with 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); see Amicus Br. 23–30. Such reasoning also disregards why 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); see Amicus Br. 9–13.

Only Amicus addresses this reality. Moser and the Government focus instead on general principles of lodestar calculation and the specific facts of this case. See Moser’s Opening Br. 29–56; U.S. Br. 21–32; Moser’s Reply Br. 11–31. Amicus therefore respectfully submits that its participation at oral argument will help this Court better understand why the District Court’s ruling should reversed in order to uphold: (1) Congress’s intent in enacting CAFRA’s fee-award provision; and (2) the ability of property owners to defend themselves against wrongful forfeitures. Cf. Sanchez v. City of Austin, No. 13-50916 (5th Cir. Aug. 20, 2014) (unpublished order) (granting oral argument time to amici civil rights groups to address proper interpretation of the Civil Rights Attorney’s Fees Awards Act, 42 U.S.C. § 1988).

1. Amicus speaks for an important and unique position.

Amicus seeks oral argument time, first and foremost, to help this Court better understand both the purpose of CAFRA’s fee-award provision and the realities of federal civil forfeiture litigation. Congress enacted CAFRA’s fee-award provision in 2000 because it recognized that “the reason [civil forfeitures] 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). A recent investigation by the Washington Post confirms the ongoing existence of this problem, finding based on a review of 212,000 Justice Department seizure records and 400 federal cases since 2001 that less than 17% of federal civil forfeitures arising from roadside stops were challenged “in part because of the costs of legal action.”[1]

The fee-award provision that Congress enacted in CAFRA thus makes it easier for property owners to recover attorney’s fees when they prevail in a forfeiture case. In particular, this fee provision: (1) broadens the class of owners who can claim fees to all those who “substantially prevail”; (2) places no statutory hourly limit on fees (unlike fees under the Equal Access to Justice Act, or EAJA); and (3) 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); $60,201.00, 291 F. Supp. 2d at 1130. The net goal of these reforms is to incentivize “private lawyers to become more involved in civil forfeiture cases.”[2]

Given this intent, the reasons articulated by the District Court for cutting the CAFRA fee award requested by Moser in this case cannot be affirmed. Indeed, the District Court’s novel Rodney-Dangerfield-factor—that CAFRA fees cannot be recovered for attorney time spent opposing government positions that merit little or no respect—stands to discourage attorneys from taking forfeiture cases, which require exacting diligence in the face of government obstinacy that is often contrary to settled law. See Amicus Br. 19–23 (collecting a series of examples). And the District Court’s calculation of CAFRA fees by disaggregating the skills required to litigate a given forfeiture cannot be squared with the reality—conceded by even U.S. Attorney General Eric Holder himself—that “[f]orfeiture law is complex and requires specific expertise.”[3] See Amicus Br. 16–19, 27–30.

This Court has previously observed that civil forfeiture entails the “serious 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). This risk is especially present when property owners lack effective counsel. See Amicus Br. 6–9. Congress sought to fix this problem through CAFRA’s fee-award provision. The District Court’s misapplication of this provision, in turn, sends a chilling message to private counsel about taking forfeiture cases—one that will make it even harder for property owners to obtain counsel. As only Amicus has spoken to these realities in this case, Amicus believes that its participation at oral argument would benefit the Court.

2. Amicus is the only amicus curiae in this case, and its

participation at oral argument would prejudice no party.

Amicus also believes that its participation at oral argument is proper since it is the only amicus curiae in this case, and none of the parties object to Amicus being granted independent argument time (Moser consents and the Government takes no position). The Fifth Circuit recently granted 5 minutes of time to amici in a similar case concerning interpretation of § 1988, the Civil Rights Attorney’s Fees Awards Act. See Sanchez v. City of Austin, No. 13-50916 (5th Cir. Aug. 20, 2014) (unpublished order).

Conclusion

Amicus raises an important position in this case about the intended purpose and effect of CAFRA’s fee-award provision that is unrepresented by the parties. For this reason, and based on the argument above, Amicus respectfully asks this Court for 5 minutes of argument time, independent of the parties, during the oral argument in this case set for March 2, 2015. Amicus also assents to the Government being given additional argument time for rebuttal if Amicus’s Motion is ultimately granted.