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United States v. 3234 Washington Ave. North: US Distrct Court : FORFEITURE | FEES - fees award in civil forfeiture case

United States of America,
v. Civil No. 03-5765 (JNE/FLN)
3234 Washington Avenue North, Minneapolis,
Minnesota, Hennepin County, with all buildings,
fixtures, improvements and appurtenances thereto,
Minnesota Church of Angels,
Plaintiff brought this action to forfeit the real property located 3234 Washington Avenue
North, Minneapolis (Property). The Minnesota Church of Angels (MCA) contested the
forfeiture. The case was tried to a jury in January 2008. The jury found that the Property was
not used to commit or to facilitate the commission of a violation of the Controlled Substances
Act punishable by more than one year of imprisonment, and judgment in favor of the MCA was
entered. Plaintiff now moves for a certificate of reasonable cause, and the MCA moves for an
award of attorney fees and costs.1 For the reasons set forth below, the Court grants Plaintiffs
motion for a certificate of reasonable cause and awards ,315.14 in fees and costs to the MCA.
Certificate of reasonable cause
Upon the entry of a judgment for the claimant in a proceeding to forfeit property seized
under federal law, a court shall enter a certificate of reasonable cause if it appears that there was
1 The MCA also requests permission to file an attachment to its counsels affidavit under
seal. The Court grants the request.
reasonable cause for the seizure. 28 U.S.C. 2465(a)(2) (2000). Here, there was reasonable
cause for the seizure of the Property. Cf. United States v. 3234 Washington Ave. N., 480 F.3d
841, 843 (8th Cir. 2007) (We have no doubt that this evidence, if credited by the finder of fact,
would satisfy the governments burden to prove a substantial connection between the [MCAs]
clubhouse property and violations of the federal drug laws punishable by more than one years
imprisonment.). The Court therefore grants Plaintiffs motion for a certificate of reasonable
Attorney fees and litigation costs
Where a certificate of reasonable cause issues, the Civil Asset Forfeiture Reform Act of
2000 (CAFRA) provides that neither the person who made the seizure . . . nor the prosecutor
shall be liable to suit or judgment on account of such suit or prosecution, nor shall the claimant
be entitled to costs, except as provided in subsection (b). 28 U.S.C. 2465(a)(2). With
exceptions not at issue here, section 2465(b) provides that the United States shall be liable for
reasonable attorney fees and other litigation costs reasonably incurred by the claimant in any
civil proceeding to forfeit property under federal law in which the claimant substantially prevails.
Id. 2465(b)(1)(A). In this case, it is undisputed that the MCA prevailed. The MCA seeks an
award of fees and costs in the amount of ,682.12. Plaintiff maintains that the Court should
award a lesser amount.
Plaintiff first notes that courts have reached different conclusions with regard to whether
the Equal Access to Justice Act (EAJA) applies to awards of attorney fees under section 2465.
Compare United States v. ,201.00 U.S. Currency, 291 F. Supp. 2d 1126, 1130 (C.D. Cal.
2003) ([T]he Court finds that the attorney fees should not be subject to EAJA fee caps here.),
with United States v. ,000 in U.S. Currency, Civ. No. 02-6805, slip op. at 1 (E.D. Pa. Jan. 20,
2005) ([T]he Court will apply the [EAJA] fee caps to the [CAFRA].). The Court declines to
apply the EAJA here: [T]he EAJA and CAFRA are irreconcilably at odds. Section
2465(b)(2)(A) expressly and unequivocally provides that [t]he United States shall not be
required to . . . make any other payments to the claimant not specifically authorized by this
subsection. Thus, CAFRA is exclusive of all other remedies. United States v. Khan, 497 F.3d
204, 211 (2d Cir. 2007) (alteration in original) (footnote omitted).
Plaintiff next argues that the Criminal Justice Act (CJA), 18 U.S.C. 3006A (2000 &
Supp. V 2005), should apply to the MCAs fee request. Plaintiff relies on the CAFRAs
provisions that allow for appointment of counsel in two situations. The first provides:
If a person with standing to contest the forfeiture of property in a judicial
civil forfeiture proceeding under a civil forfeiture statute is financially unable to
obtain representation by counsel, and the person is represented by counsel
appointed under section 3006A of this title in connection with a related criminal
case, the court may authorize counsel to represent that person with respect to the
18 U.S.C. 983(b)(1)(A) (2000). The second states:
If a person with standing to contest the forfeiture of property in a judicial
civil forfeiture proceeding under a civil forfeiture statute is financially unable to
obtain representation by counsel, and the property subject to forfeiture is real
property that is being used by the person as a primary residence, the court, at the
request of the person, shall insure that the person is represented by an attorney for
the Legal Services Corporation with respect to the claim.
Id. 983(b)(2)(A). For representation under section 983(b), the court shall set compensation
equivalent to that provided for court-appointed representation under section 3006A of this title.
Id. 983(b)(3). Because the CAFRA included the attorney-fee provisions of section 2465(b) and
section 983(b), Plaintiff asserts that the provisions should be interpreted consistently. Thus,
Plaintiff argues that the CJA should apply to the MCAs fee request under section 2465(b). The
Court is not persuaded by Plaintiffs argument. Had Congress intended to equate reasonable
attorney fees under section 2465(b)(1)(A) to compensation set under section 3006A, it would
have used language in section 2465(b)(1)(A) similar to that of section 983(b)(3). Instead, section
2465(b)(1)(A) authorizes recovery of reasonable attorney fees. Accordingly, the Court
declines to limit the MCAs recovery of fees by the rates specified in the CJA.
To determine the amount of attorney fees reasonably incurred by the MCA, the Court
begins with the number of hours reasonably expended on the litigation multiplied by a
reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The party seeking an
award of fees should submit evidence supporting the hours worked and rates claimed. Where the
documentation of hours is inadequate, the district court may reduce the award accordingly. Id.
In addition, hours not reasonably expended must be excluded from the initial calculation. Id.
at 434. The court may adjust the fee calculation based on several factors: (1) the time and labor
required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal
service properly; (4) the preclusion of employment by the attorney due to acceptance of the case;
(5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by
the client or the circumstances; (8) the amount involved 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. Id. at 434 n.9 (citing Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 (5th
Cir. 1974)). The initial calculation usually accounts for many of the factors. Id. Explicit and
exhaustive analysis of the factors is not required in every case. Griffin v. Jim Jamison, Inc., 188
F.3d 996, 997 (8th Cir. 1999).
A reasonable hourly rate is usually the ordinary rate for similar work in the community
where the case has been litigated. Emery v. Hunt, 272 F.3d 1042, 1048 (8th Cir. 2001). In
determining a reasonable hourly rate, a district court may rely on its own knowledge of
prevailing market rates. Warnock v. Archer, 397 F.3d 1024, 1027 (8th Cir. 2005). Here, the
MCA bases its requests on hourly rates of 5 per hour, 0 per hour, and 5 per hour for
attorney time and per hour for paralegal time. These rates are reasonable.
As to the hours worked, the MCA claims four hours for attorney time at 5 per hour.
These hours relate to research regarding the Fifth Amendment. The Court concludes that these
hours were reasonably expended.
The MCA claims 319.4 hours for attorney time at 0 per hour.2 These hours relate to
the assertion of the MCAs claim, discovery proceedings, the MCAs opposition to Plaintiffs
motion for summary judgment, the MCAs successful appeal to the Eighth Circuit,3 and
proceedings on remand that culminated in a jury verdict in favor of the MCA. Plaintiff objects to
a portion of these hours as insufficiently related to the litigation, but the Court concludes that the
hours were reasonably expended on the litigation.
The MCA claims fifteen hours of attorney time at 5 per hour. These hours relate to
the MCAs reply to Plaintiffs memorandum in response to the MCAs motion for fees and costs.
These hours were reasonably expended.
Finally, the MCA claims 95.7 hours of paralegal time. Plaintiff did not object to these
hours, but the record reveals that a substantial number of these hours are improperly claimed.
The MCA claims 69.7 hours of paralegal time from mid-March through April 2005. The record
2 Initially, the MCA claimed 323.9 hours for attorney time at 0 per hour. Plaintiff
objected to a portion of these hours as insufficiently documented. The MCA adequately
documented most of the hours and concedes that a reduction of 4.5 hours is warranted. Thus, the
MCA claims 319.4 hours at 0 per hour.
3 To recover fees incurred on appeal, the MCA should have filed a motion in the Eighth
Circuit. See 8th Cir. R. 47C(a); Little Rock Sch. Dist. v. Arkansas, 127 F.3d 693, 696 (8th Cir.
1997). The Court nevertheless exercises its discretion to include fees incurred on appeal in the
award. See Little Rock Sch. Dist., 127 F.3d at 696-97.
reveals no paralegal hours in that period. Instead, costs in the amount of .70 appear. The
Court eliminates the hours of paralegal time mistakenly claimed by the MCA. Thus, twenty-six
hours of paralegal time remain. The Court concludes that these hours were reasonably expended.
Application of the hourly rates to the hours reasonably devoted to this litigation yields
,405 for attorney and paralegal time. The Court concludes that this amount is reasonable.
The MCA also seeks to recover ,228.14 in litigation costs.4 Plaintiff does not object to
these expenses. The Court nevertheless reduces the amount claimed by 8 to eliminate double
recovery.5 Thus, the Court awards the MCA ,910.14 in litigation costs.
Based on the files, records, and proceedings herein, and for the reasons stated above, IT
1. The MCAs Motion for Attorney Fees and Litigation Costs [Docket No.
136] is GRANTED.
2. Fees and costs in the amount of ,315.14 are awarded to the MCA.
3. The MCA may file Attachment 2 to the Affidavit of Deborah Ellis
[Docket No. 137] under seal.
4. Plaintiffs Motion for Certificate of Reasonable Cause [Docket No. 140] is
5. Pursuant to 28 U.S.C. 2465(a)(2), it is certified that reasonable cause
existed for the seizure of the Property.
Dated: May 1, 2008
s/ Joan N. Ericksen
United States District Judge
4 Initially, the MCA sought ,971.10 in litigation costs. The MCA sought an additional
7.04 in its reply.
5 The MCA seeks to recover 8 for an expense dated May 20, 2005, and 9.55 for
expenses incurred from May 20 to June 29, 2005. The latter includes the former.


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