Petition for Writ of Certiorari — Certain Real Property v. United States

Ss ‘

upreme Court US.

091247 FEB 8 - 2010

No

OFFICE OF THE CLERK

In The

Supreme Court of the Guited Siates

Alex Nooredin Latiti, Beth Latifi. and Axion

Corporation,

Petitioners

United States of America,

Respondent

On Petition for Writ of Certioranri

To The United States Court of Appeals

for the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

Henry I Frohsin

Counsel of Record

Frohsin & Barger, LLC

One Highland Place

2151 Highland Ave. So

Suite 310

Birmingham, AL 35205

205-933-4006

QUESTIONS PRESENTED FOR REVJEW

Did the Eleventh Circuit err in reversing the

decision of the district court and determining,

as a matter of first impression, ifai tne fee-

shifting provision of the Civil Asset Forfeiture

Reform Act is limited to fees incurred directly

in civil htigation?

Did the Eleventh Circuit err in reversing, 1n

conflict with decisions of this Court and in

conflict with its own prior decisions, the

district court’s discretionary determination of

the amount of Claimants’ recoverable

attorneys’ fees?

PARTIES

Axion Corporation, claimant/appellee/

petitioner.*

Alex Latif, individual, claimant/a ) ve llee/

Pp}

petitioner.

Beth Latifi, individual, claimant/appellee/

petitioner.

The United States of America

~~

Disclosure pursuant to Rule 29.6: Axion

Corporation has no parent corporation. No publicly

traded corporation holds any Axion Corporation

stock

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW

PARTIES SAR OD

TABLE OF AUTHORITIES...........

DECISIONS BELOW

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CONSTITUTIONAL PROVISIONS, STATUTES

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REASONS FOR GRANTING WRIT ae

I. THE ELEVENTH CIRCUIT ERRED IN

REVERSING THE DISTRICT COURT'S

AWARD OF FEES UNDER CAFRA AND

MISCONSTRUED THE STATUTORY

LANGUAGE

THE ELEVENTH CIRCUIT ERRED BY

APPLYING A DE NOVO STANDARD OF

REVIEW TO THE DISTRICT COURT'S

DISCRETIONARY DETERMINATION OF

RECOVERABLE ATTORNEYS’ FEES...

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APPENDIX A:

DECISION OF THE ELEVENTH CIRCUIT

COURT OF APPEALS ISSUED AUGUST 19,

2009.

APPENDIX B:

ORDER OF THE ELEVENTH CIRCUIT

COURT OF APPEALS ISSUED NOVEMBER

12. 2009.

APPENDIX C

28 U.S.C. & 2465.

TABLE OF AUTHORITIES

Cases

Webd v. County Bd. of Educ. of Dyer County, Tenin.,

“yp ih ee es ee, |S eee rEpRrrrr 2:

Statutes

8 U.S. & 126-401)....,...

28 U.S.C.

28 U.S.C.

18 U.S.C. §&

Rules

IF .R.A.P. 4(a)(1)(B)

Other

P.L. 106-185, H. Yep. No. 106-192, at 11 (1999)

No.

In The

SUPREME COURT OF THE UNITED STATES

Certain Real Property, et al.,

Petitioners,

United States of America,

Respondent.

PETITION FOR WRIT OF CERTIORARI

DECISION BELOW

The decision of the court of appeals was

rendered on August 19, 2009. The opinion was

issued on letter-sized paper has been reformatted to

comply with Rule 33.1 and is included verbatim and

in its entirety in the Appendix. 579 F.3d 1315 ay"

Cir.)

JURISDICTION

The United States Court of Appeals for the Eleventh

Circuit entered its judgment in this case on August

19. 2009. En bane review was denied on November

12, 2009. This Court has jurisdiction under 28

U.S.C. § 1254(1)

CONSTITUTIONAL PROVISIONS, STATUTES

AND REGULATIONS

The fee-shifting provision of the Civil Asset

Forfeiture Reform Act, 28 U.S.C. § 2465(b)(1),*

provides as follows:

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

(A) reasonable attorney fees and other litigation

costs reasonably incurred by claimant:

*The full text of Section 2465 is included in

Appendix C.,

STATEMENT OF THE CASE

On June 7, 2006, the Government filed a civil

complaint in rem for forfeiture of property, including

real estate owned by Alex Nooredin Latifi (Alex

Latifi) and Beth Latifi (collectively, the Latifis) and

the operating bank accounts of their defense

contracting company, Axion Corporation (Axion). The

United States District Court for the Northern

District of Alabama exercised jurisdiction pursuant

to 28 U.S.C. § 1331.

The Latifis and Axion filed claims tothe

defendant real estate; Axion Corporation filed a

claim to the defendant bank accounts; and Axion and

the Latifis later filed Answers the Government's

Complaint.

Thereafter. the Government sought and

obtained a stay of the civil forfeiture action pursuant

to 18 U.S.C. § 981(g)(1) and vigorously fought Axion

and the Latifi’s efforts to advance the case for more

than eight months. As a practical matter, the

protracted stay of the civil forteiture action ruined

Axion’s business.

More than nine months after filing its civil

forfeiture complaint, the Government obtained an

indictment against Alex Latifi and Axion, which was

dismissed in its entirety through a judgment of

acquittal by the trial court upon a finding that the

evidence was insufficient to sustain a conviction.

Following the dismissal of the criminal indictment

against Alex Latifi and Axion, the Government filed

a motion to dismiss the civil forfeiture action (which

remained stayed) with prejudice and requested a

certificate of reasonable cause for instigating the

action. Alex Latifi, Beth Latifi, and Axion objected to

the issuance of a certificate of reasonable cause and

petitioned for their attorneys’ fees, on grounds that a

dismissal with prejudice entitled them to an award of

attorneys’ fees under CAFRA.

Shortly thereafter, the Government filed a

motion to withdraw its motion to dismiss with

prejudice and through multiple motions ultimately

sought a dismissal without prejudice. The Latifis

and Axion objected and continued to seek a dismissal

with prejudice, oppose the issuance of a certificate of

reasonable cause, and request that the stay of the

civil case be lifted.

Finally, the Government withdrew its request

for a certificate of reasonable cause and the district

court on Apml 2, 2008 entered an order dismissing

the case with prejudice, holding that the Latifis and

Axion were entitled to attorneys’ fees under CAFRA

and ordering the Latifis and Axion to present

evidence regarding the amount of fees that they had

reasonably incurred in defending the civil forfeiture

action. The Government did not file a timely notice

of appeal of the court’s order granting Axion and the

Latifis their attorneys’ fees under CAFRA.

The Latifis and Axion presented

uncontroverted evidence that they incurred

attorneys’ fees in the cumulative amount of

$414,198.50 in defending the civil forfeiture action.

Additionally, the lLatifis and Axion presented

uncontroverted expert testimony through the

affidavits of experienced counsel (a former United

States Attorney and the then President-elect of the

Alabama State Bar) that part of the fees reasonably

incurred in defending the civil forfeiture included

time spent in the criminal courtroom defending the

criminal allegations because “....1t would be

impossible to defend this civil forfeiture action

without defending and obtaining an acquittal in the

underlying criminal action.” The expert testimony as

to the reasonableness of such fees was not disputed

by the Government.

After considering the evidence submitted by

the Latifis and Axion and the briefing of the parties,

the district court calculated the attorneys’ fee to be

$363,956.92. Of the total $363,956.92, the district

court attributed $292,929.50 to 1327.7 hours of work

on the criminal case as being also reasonably

incurred in defending the Latifi’s and Axion’s nmghts

in the civil forfeiture action.

On July 25, 2008 — 57 days after the May 29,

2008 Order and 115 days after the April 2, 2008

Order the Government filed a notice of appeal.

Although the July 25, 2008 notice purported to

include the April 2, 2009 order awarding Petitioners

their fees under CAFRA, any such notice was

untimely and without effect. See F.R.A.P. 4(a)(1)(B)

(allowing the United States 60 days to file a notice of

apneal). Accordingly, the Government appealed only

the District Court’s May 29, 2008 calculation of the

amount of Petitioners’ reasonable fee.

In an opinion published on August 19, 2009.

the majority of a panel of the United States Court of

Appeals for the Eleventh Circuit applying a de novo

standard of review reversed the district court's

judgment and remanded this case for recalculation of

the fees and interest. Chief Judge Dubina and

Circuit Judge Edmonson joined in the majority

opinion while Circuit Judge Hill dissented.

REASONS FOR GRANTING THE WRIT

L. The Eleventh Circuit erred in reversing

the district court’s attorneys’ fee award under

CAFRA and ignored the language of the statute

in holding, as no federal court has held before,

that CAFRA’s fee-shifting provision allows

recovery only of fees directly incurred in civil

litigation.

Considering as a matter of first impression the

scope of CAFRA’s fee provision, the circuit court

panel erroneously determined that the provision

encompasses only those fees directly incurred in civil

litigation. In so holding, the circuit court ignored

and rendered meaningless the inherent “reasonably

incurred” standard provided by Congress. The

circuit court’s holding eviscerates CAFRA’s hberal

fee-shifting provision and frustrates the stated intent

of Congress.

CAFRA was enacted in 2000 with the express

intent of “givling] owners innocent of any wrongdoing

the means to recover their property and make

themselve whole after wrongful government

seizures.” P.L. 106-185, H.R. Rep. No. 106-192, at 1]

(1999). Congress delineated the contours of this

waiver of sovereign immunity: the statute provides

that a prevailing claimant is entitled to “reasonable

attorney fees . reasonably incurred by claimant

28 U.S.C. § 2465(b)(1)

The district court held that Petitioner:

prevailed ind were entitled to fees The district

court then applied the statutory standard and

determined that the fees “reasonably incurred” by

Petitioners in prevailing in their civil forfeiture case

included fees associated with their criminal defense

The district court further found that to _ hold

otherwise would allow the Government to simply

avoid the application of CAFRA.

The circuit court erred in reversing and

holding that CAFRA’s fee provision allows for

recovery only of fees directly incurred in civil

litigation The circuit court’s ruling ignores the

standard provided by Congress: claimants are

entitled to fees “reasonably incurred.” Had Congress

wished to expressly limit recovery to a certain type ol

fee. it could have done so. It did not. Instead, it

supplied a discretionary standard that the district

court faithfully apphed

In evaluating what fees were “reasonably

incurred” by Petitioners, the district court looked to

the jurisprudence of this Court in Webb v. County

Bd. of Educ. of Dyer County, Tenn., 471 U.S. 234, 244

(1985) and determined that work associated with the

criminal defense was “useful” and “ot a_ type

necessary ordinarily necessary LU competently

represent Petitioner in the civil forteiture case. A:

Circult Judge Hill percelve d ind stated in his

dissent

Counsel representing [Petitioners] 1n

this civil action would have been

inadequate to the point of malpractice

to ignore the new criminal case.

Were counsel to monitor another case

on trial In court 1n another jurisdiction

noting the quality of evidence and the

Impact of witnesses, that would be

“useful.” It would be work “of a type

ordinarily necessary to competent

representation

The circuit court’s ruling ignores the guidance

of this Court in Webb and invades the discretionary

function of the district courts It effects an

impermissible amendment of the statute

As the first holding of a federal court on this

issue. the circuit court’s decision must be reviewed

Otherwise, the Government may thwart Congress

purpose by evading the fee-shifting provisions ol

CAFRA under cover of judicial authority. Unless and

until this Court speaks to this issue, the legitimacy

of Jaw enforcement methods in parallel civil

forfeiture and criminal actions and the right of the

people to be made whole after wrongful forfeiture ol

their property will be 1n doubt.

[| The Eleventh Circuit erred in

applying, in conflict with decisions of this

Court and in conflict of its own prior decisions,

a de novo standard of review to the district

court’s discretionary determination of

Petitioner's reasonable fee.

The cireuit court created’ conflicting,

dangerous precedent when it apphed the wrong

standard of review to the district court's

determination of the amount fees to which

Petitioners were entitled

The district court adjudged Petitioners

entitled to a fee award under CAFRA on Apnil 2,

2008. The Government failed to file a timely notice

of appeal Accordingly, the question of whether

Petitioners were entitled to fees was not under

review. The only decision properly on appeal to the

circuit court was the district court's calculation of the

amount of Petitioners reasonable fee, “reasonably

incurred” under the statute.

The precedent of this Court e ttablishes that a

district court has wide discretion to determine the

amount of a fee award and that such a determination

must be accorded great deference. See Webb

County Bd of Kduc of Dyer County, Tenn., 47] US

934, 244 (1985) (“We reemphasize that the district

court has discretion in determining the amount of a

fee award. When such an award is appealed, the

reviewing court must evaluate it with appropriate

deference. )

The circuit court flaunted this precedent when

it apphed a de novo review to the district courts

calculation of Petitioner's fee The circuit court's

decision usurps the discretion of the district court

CONCLUSION

‘or the torevoiny reason: tn Court \;uld

vrant the petition for writ of certioran

In view of the Eleventh Cuircuit’s

cleax

aeparture from the decisions of this Court and in

order ts correct erroneous precedent, this court

Should consider disposing of this petition

summary reversal of the judgment below

Respectfully submitted this 5” day

I bruary, 20] :

. OP oe oan —

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Vi

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Henyy I Frohsin

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{ OUNSECI of Record

Frohsin & Barger, LLC

One Highland Place

2151 Highland Ave. S$

Suite 310

Birmingham, AL 3520!

205-933-4006

APPENDIX

Rule 14.1(1) judgment sought to be reviewed

A. Decision of the Eleventh Circuit Court,

U.S. vy. Certain Real Property, Cause No. 08-14334, 1ssucd

August 19, 2009.

B. Order of the Eleventh Court, U.S. v.

Certain Real Property, Cause No. 08-14334, issued

November 12, 2009.

Rule 14.1(vi) Material Petitioner believes essential to

under this petition:

[PUBLISH]

IN THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

No. 08-14334

FILEL

LU) Ss. 4 OUR) GH

APPILALS

D.C. Decket No. 06-01102-CV-IPJ

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

VEISsSusS

CERTAIN REAL PROPERTY,

Located at 317 Nick Fitchard Road, N.W.,

Huntsville, AL, together with all

improvements, fixtures, and appurtenances

thereon, ALL FUNDS ON DEPOSIT IN

ACCOUNT NUMBER 8011402644 Held

in the name of Axion Corporation, located at

Colonial Bank, P.O. Box 1887,Birmingham.,

AL 35201, ALL FUNDS ON DEPOSIT IN

ACCOUNT NUMBER 8036513417 Held

in the name of Axion Corporation, located

at Colonial Bank, P.O. Box 1887,Birmingham,

AL 35201,

Defendants-Appellees.

Appendix A-]

Appeal from the United States District Court

for the Northern District of Alabama

(August 19, 2009)

,efore DUBINA, Chicf Judge, EDMONDSON

and HILL, Cireuit Judges

DUBINA, Chief Judge:

The government appeals from a final order of

the district court awarding attorney fees in a civil

forfeiture action. This case requires that we

determine, as a matter of first impression, whether

attorney fees incurred in the defense of a criminal

action may be awarded in a related civil forfeiture

action under the Civil Asset Forfeiture Reform Act of

2000 (“CAFRA”) § 4(a), 28 U.S.C. § 2465(b)(1) (20086),

without regard for the stringent limitations on

attorney-fee awards in criminal cases under the

Hyde Amendment, Act of Nov. 26, 1997, Pub. L. No.

105-119, tit. Vl, § 617, 111 Stat. 2440, 2519 (1897),

reprinted in 18 U.S.C. § 3006A (2006), historical and

statutory notes [hereinafter Hyde Amendment].

BACKGROUND

In August 2003, Axion Corporation (“Axion”)

secured a $3.7 million contract with the United

States Army to supply parts for Black Hawk

helicopter In June 2006, the government filed a

civil in rem forfeiture complaint in the United States

Appendix A

District Court for the Northern District of Alabama

pursuant to 18 U.S.C. § 981(a)(i1)(A) (2006) against

two of Axion’s bank accounts and the parcel of rea!

property where the company is located on the basis

that. Axion had violated the terms of the contract, as

well as several federal laws. ‘There are three

claimants to the defendant properties: Axion; its

president, Alex Nooredin Latifi (“Latifi”); and Latifi’s

wite. Beth Latifi (collectively, “the claimants’). ‘The

government filed a motion before Judge Virginia

Emerson Hopkins to stay the civil forfeiture

proceeding pursuant to CAFRA § 8(a), 18 U.S.C. §

981(g){1), which directs the district court to “stay the

civil forfeiture proceeding if the court determines

that civil discovery will adversely affect the ability of

the Government to conduct a_ related criminal

investigation or the prosecution of a related criminal

case.’ Judge Hopkins granted the motion to stay

the civil forfeiture action.

In March 2007, the government filed an

indictment against Axion and Latifi in the United

States District Court for the Northern District of

Alabama. The criminal case was assigned to Judge

Inge Prytz Johnson. A superseding indictment

(Tjhe terms ‘related criminal] case’ and ‘related criminal

investigation mean an actual prosecution or investigation in

progress at the time at which the request for the stay, or any

subsequent motion to lift the stay is made In determining

whether a criminal case or investigation 1s ‘related’ to a civil

forfeiture proceeding, the court... consider(s} the degree of

similarity between the parties, witnesses, facts, and

circumstances involved in the two proceedings, without

requiring an identity with respect to any one or more tact

18 U.S.C. § 981(g)(4)

\ppendix A-3

charged Latifi and Axion with two counts of

exporting without the required license defense

articles or defense services designated by the

President for inclusion in the United States

Munitions List, in violation of the Arms Export

Control Act, 22 U.S.C. § 2778(b)(2), (c) (Counts 1 and

6); making a false representation concerning an

aircraft part, in violation of 18 U.S.C. § 38(a)(1)(C)

(Count 2); and making false statements, in violation

of 18 U.S.C. § 1001 (Count 3). The indictment also

included two criminal forfeiture counts (Counts 4

and 5)” Judge Johnson held a seven-day bench tral

that resulted in an acquittal on all counts.

After the criminal charges against Latifi and

Axion were dismissed, the civil case was transferred

to Judge Johnson. The government filed a motion to

dismiss the civil forfeiture case with prejudice, which

also contained a request for a_ certificate of

reasonable cause under 28 U.S.C. § 2465(a) (2006).

In their response, the claimants agreed that the case

should be dismissed with prejudice and asserted that

such a dismissal entitled them to attorney fees under

CAFRA. The claimants also objected to the

The indictment specifically alleged that Latifi and Axion, who

had been awarded a contract by the U.S. Army to produce bifilar

weight assembhes for Black Hawk helicopters, knowingly and

willfully exported to China technical drawings of the bifilar

weight assembly for the UH 60 Black Hawk without first

obtaining a license and authorization from the State

Department's Directorate of Trade Controls. In addition, Latif

and Axion allegedly fraudulently misrepresented to the U.S

Army the source ofa part used in the production of the bifilar

weight assembly and made false statements in test reports

submitted to the U.S. Army regarding a separate product that

was the subject of a separate contract

Appendix A-4

government's request for a certificate of reasonable

cause. The government then filed a motion for leave

to withdraw its motion to dismiss with prejudice.

Judge Johnson granted the motion to withdraw and

set a hearing om the motion for a certificate of

reasonable cause. The government filed a motion to

dismiss without prejudice, stating that it no longer

intended to pursue the civil forfeiture case. ‘The

claimants again asserted that the case should be

dismissed with prejudice. The government then filed

a notice with the court stating that the government

was withdrawing its request for a certificate of

-easonable cause. On April 2, 2008, the district court

dismissed the case with prejudice and concluded that

the claimants were “entitled to recover reasonable

attorneys’ fees and costs along with interest

pursuant to the provisions of CAFRA.” (Or., R. 72 at

)

8.)

On May 29, 2008, the district court opined

that, pursuant to CAFRA, the claimants are entitled

to recover both fees incurred in defending the civil

forfeiture action and fees incurred in defending the

criminal case and ordered the payment of such fees

and interest. United States v. Certain Real Prop..,

566 F. Supp. 2d 1252, 1261-62 (N.D. Ala. 2008).

Citing Webb v. Board of Education of Dyer County,

Tennessee, 471 U.S. 234, 105 S. Ct. 1923 (1985), the

district court found that the attorney fees incurred in

the criminal case, a “related proceeding,” are

recoverable in the civil forfeiture action hecause the

work was “useful ane of a type ordinarily necessary

to secure the final result obtained from. the

litigation.” Jd. at 1261 (quoting Webb, 471 U.S. at

243.105 S. Ct. at 1928). The court first found that

the criminal case work was useful, saying:

Appendix A-S

[T]he work done by the claimants’

attorneys in the criminal case was

clearly useful as it directly resulted in

the dismissal of the civil forfeiture case.

In fact, the claimants were required to

litigate the civil forfeiture case through

the criminal] case because of the stay

imposed on the civil forfeiture case. If

Latifi and Axion had been convicted in

the criminal case, then the property

would have been immediately subject to

forfeiture If the defendants were

acquitted, as they were, then that result

would not have had res judicata effect

on this civil forfeiture case. ... [T]he

sovernment had no _ intention of

pursuing the civil forfeiture case after

Latifi and Axion were acquitted. Thus,

the acquittal in the criminal case

directly led to the dismissal of the civil

forfeiture case. Indeed, the only way for

the claimants to obtain a dismissal of

the civil forfeiture case was by obtaining

an acquittal in the criminal case.

Id. (citations omitted). The court then

concluded that “[t]he work was | of a type

ordinarily necessary to sccure the final result

obtained from the litigation since the civil proceeding

was stayed pursuant to CAFRA and... the only way

for the claimants to succeed was to gain an acquittal

in the criminal trial.” /d. The court acknowledged

that “[a]warding the claimants fees for work done in

the criminal case clearly allows the claimants to

avoid the. stricter requirements for recovering

\ppendix A-6

attorneys’ fees under the Hyde Amendment,’ td.,

which requires claimants recovering such fees in a

criminal case to prove “that the position of the

United States was vexatious, frivolous, or in bad

faith.” Hyde Amendment. ‘I'he district court added

that “if [it] were to find that fees incurred defending

the criminal case were not recoverable under

CAFRA, then the government would be allowed to

avoid CAFRA, as it has tried to do in this case, by

moving for a stay in the civil case and prosecuting

the criminal case.” 566 F. Supp. 2d at 1261. The

district court’s total attorney-fee award before

deductions® was $414,198.50; the district court

attributed $292,929.50 of this award to ]

of work on the criminal case.* Id. at 12

ultimate award minus deductions was $363,956.92

The district court concluded that certain deductions were

warranted for things such as secretarial work and unbilled

hours These deductions are not a subject of this appeal

The government suggests in its briefing that the district court

should have attributed certain fees to the defense of the

criminal] action, and not to the defense of the civil action, but

does not appeal the district court’s findings of fact See Br of

Appellant 12 n.3; Reply Br. of Appellant 2 (“We do not here

challenge the district court’s calculation of the number of hour

reasonably expended by the defense in the civ) forfeiture

proceeding or in the criminal prosecution "). Because we

are not called upon to review the district court’s findings of fact,

we do not opine on them here Recalculation of the fees due to

claimants upon remand 1s left to the discretion of the district

court

> The district court’s initial award was for $363,259.92 566 F

Supp. 2d at 1834. This amount was increased by the district

court on June 5, 2008, to $363,956.92, based on additiona

evidence filed by the claimants (Or., R. 78 at 1-2.)

Appendix \

The government then perfected this appeal

On appeal, the government urges, inter alla,

that CAFRA’s plain language limits the award of

attorney fees under §4(a), 28 U.S.C. § 2465(b)(1) to

those fees incurred for work done explicitly for the

civil forfeiture proceeding.® The claimants counter,

in accord with the district court, that the Supreme

Court has decided in other contexts’ that

similarly-worded fee-shifting statutes encompass the

award of fees incurred outside of the

statutorily-named litigation and that this precedent

allows them to recover under CAFRA fees incurred

in the defense of a related criminal case

ll. STANDARD OF REVIEW

“The proper standard for an award of

attorney's fees is a question of law that we review de

novo.” Morillo-Cedron v. Dist. Dir. for the U.S.

Citizenship & Immigration Serus., 452 F.3d 1254,

1256 (11th Cir. 2006) (quoting Smalbein v. City of

Daytona Beach, 353 F.3d 901, 904 (1 1th Cir. 2003)).

IIl. DISCUSSION

After thorough review of the record, we

conclude that the contours of Congress’s waiver of

fhe government also argues that even if such fees can be

awarded under CAFRA, the requirements for an attorney fee

award under the Hyde Amendment must be satisfied so as not

to provide a means around the strictures of the Hyde

Amendment. Because we conclude that the fees incurred in

defense of the criminal action cannot be recovered under

CAFR Awe do not a idress this contention

Appendix A-&

the United States yovernments sovereign i1mmunit)

in the CAFRA §fee-shifting provision can _ be

determined by looking to the plain language and

structure of CAFRA. We hold that attorney fee

+

incurred in the defense of a criminal action, even

related to a civil forfeiture action as in the present

case, cannot be awarded under CAFRA. This holding

is supported by CAFRA’s legislative history, and we

find the Supreme Court cases cited by the district

court inapplicable in this context

\

To determine whether attorney tees for work

done in a crimina! prosecution may be awarded 1n a

related civil forfeiture action under CAFRA § 4(a), 2%

U.S.C. § 2465(b)(1), we turn first to the text of the

statute to discern congressional intent CAFRA

fee-shifting provision provides in pertinent part

[IIn any civil proceeding to forfeit

property under any provision of Federa

law in which the claimant substantially

prevalls, the United State hall be

liable for

(A) reasonable attorney fees and othe)

litigation costs reasonably incurred b

the claimant; land}

(Bb) post judyment interest, a et tort

in Section 1961 of this title

CAFRA § 4(a), 28 U.S.C. § 2465(b)(1)

Our interpretation of the CAFRA fee-shiftin

provision is guided by p. inciples ol overelyn

immunity, which bar the award of at

AgALNSt the Ll nited state i ent exphieit

Appendix \-¥Y

congressional authorization See Ruckelshaus °

Sierra Club, 463 U.S. 680, 685 & n.7, 103 8. Ct

3274. 3277-78 & n.7 (1983); see also Ardestant |

United States Dep’t of Justice, 904 F.2d 1505, 1509

(llth Cir. 1990) (‘A court may not grant attorneys

fees and costs agalnst the United States u the

absence of a congressional or constitutiona! waiver of

sovereign immunity which grants it the authority to

do so.” (internal quotation marks omitted)). A waiver

of the United States government's sovereign

immunity must be “unequivocal,” Dept of Energy '

Ohio, 503 U.S. 607, 615, 112 S. Ct. 1627, 1633 (1992),

superseded by statute, Federal Facility Comphance

Act of 1992. Pub. L. No. 102-386, § 102, 106 Btat

1505. and the provision must be construed strictly

in favor of the sovereign and not enlarged beyond

what the language requires,” Ruckelshaus, 463 U.S

at 685-86, 103 S. Ct. at 3278 (internal quotation

marks and citations omitted); see also Ardestani, 904

KY Od at 1509 (stating that a statute that “waive

overeign immunity in allowing attorney fees against

the United State: must be construed strictly’)

On its Lace the language of CAFRA

fee-shifting provision appears to contemplate only

the award of attorney te incurred in the civil

forteiture action See CAFRA § 4(a), 28 U.»s.( S

-465(b)(1) (fI]n any civil proceeding to _ forteit

property ). Without an express waiver of the

yovernments sovereligzgn Immunity we cannot find

that such a waiver exists. To justify its award of the

fees incurred in defending Axion and Latifi’s enminal

CASI the district cour ecoaracterized the civil

forfeiture action as having been litigated “through

the criminal case because of the stay }mposed on the

eivil forfeiture case 66 Hupp %d at 126] he

district court’s characterization states precisely why

we cannot find that the attorney fees incurred in

defending the criminal case are recoverable in the

civil forfeiture action under the auspices of CAFRA

1 ‘ :

the fees were incurred in the defense olf a criminal

action, not a civil forfeiture action or proceeding in

support of a civil forfeiture action

Our reading of the fee-shifting provision 1s

supported by CAFRA’s structure. When Congress

fashioned CAFRA’s fee-shifting provision in 2000, 11

simultaneously expanded the government’s ability to

seek a stay of the civil forfeiture proceeding in hght

ot an ongoing criminal! investigation or

prosecution—precisely the mechanism used by the

government in this case See CAFRA § 8&(a)

Congress effectively gave the government the ability

to choose which to pursue first—-a civil forfeiture

action, a related criminal investigation, or the

prosecution of a related crimina! case---as long a

the [district] court determines that civil discovery

will adversely affect the ability of the Government to

conduct a related criminal investigation or th

prosecution of a related criminal case. See CAFRA &

S(a), 18 U.S.C. § 981(g)(1)

Congress provided property claimants the

protections it thought appropriate while retaining

the usefulness of civil forfeitures in law entorcement

activities. Cf. Ramirez v. United States, 57 Fed. Cl

240. 250-51 (Fed. Cl. 2003) (noting Congresss intent

that CAFRA “leave the underlying — forfeitur

authority ! federal agencies substantially

unaffected’). First, the Act provides that in heu of

etaying the civil forfeiture action, the district court

}

mm wmwsue aA nrotective orde} limiting aiscovery

CAFRA § &(a), 18 U.S.C. § 981(g)(3). Second, if the

district court determines that a stay 1s mecessary to

protect the government's” related = criminal

investigation or case, § 981(g)(6) directs the court to

“enter any order necessary to preserve the value of

the property or to protect the rights of lenholders or

other persons with an interest in the property while

the stay is in effect.”’ The express terms of CAFRA’s

fee-shifting provision do not go further and expressly

allow the award of fees incurred in defense of a

related criminal case in the civil forfeiture action 1f

the claimants are acquitted of the criminal charges

We cannot waive the government's” sovereign

immunity and attempt to fashion such an additional!

protection where Congress has not chosen to do so

See Wright v. Sec \ jo? Dept oO} Corr., 278 F.3d 1]

1255 (llth Cir. 2002) (“|C]jourts ought not add to

what the legislature has said is the law Ou

function is to apply statutes, to carry oul the

expression of the | mislative will that is embodied in

them, not to ‘improve’ statutes by altering them.”)

Harris v. Garner. 216 F.3d 970, 976 (l1th Cir. 2000)

We also note that the av of a civil forfeiture action where

there is a related criminal action often can serve to bene!

criminal defendants who are claimants to the property that!

the subject of the civil forfeiture action; the stay 1n the civil ca

prevents the government from using civil discovery as a means

to obtain information to flesh out the criminal case against the

claimants. See Afro-Lecon Tre United States, 820 F.2d 1198

1203 (Fed. Cir 987) (“The broad scope of civil discovery may

present t » both the prose ut on, and at times the criminal

defendant, an irresistible temptation to use that discovery ti

one rdvantaeve mw the criminal case.”); see also United State

4 Certain Parcel of Land, 781 F. Supp. 830, 834-35 (D. N.H

992) (ygranting a stay of discovery 1n a civil forfeiture actior

otect a criminal defendant Fifth Amendment right

- A

\ppendix A

(en banc) (‘We will not do to the statutory language

what Congress did not do with it, because the role of

the judicial branch is to apply statutory language,

not to rewrite it.”); see also Ewing & Thomas. P.A. v

Heye, 503 F.2d 613, 616 (11th Cir. 1986), superseded

by statute, Act of July 30, 1996, Pub. L. No. 104-168,

Title VII. secs. 701(a)—(c), 702(a), 7O3(a), 704(a), 110

Stat. 1463. 1464 (“An amendment to a statute is

clearly a legislative, not a judicial function. We

cannot now do what Congress may have wanted to

accomplish but has left undone.”).

The language of the seizure and_= stay

provisions in § 981 also demonstrates that Congress

was fully cognizant that work done in defense of a

criminal case may be used to defend against a civil

forfeiture. For example, in order to determine

“whether a criminal case or investigation is ‘related’

to a civil forfeiture proceeding” so as to warrant a

stay, Congress instructed the district court to

“consider the degree of similarity between the

parties, witnesses, facts, and circumstances involved

in the two proceedings.” See 18 U.S.C. § 981(g)(4).

In addition, one justification for granting a

claimant’s request for a stay of the civil forfeiture

action is that discovery in the civil case may uncover

information useful in the criminal prosecution. See

18 U.S.C. § 981(g)(1)-(3). Despite Congress's

acknowledgment of the interconnectedness of civil

forfeiture and criminal proceedings, Congress's

waiver of sovereign immunity in the CAFRA

fee-shifting provision does not expressly state that

claimants in civil forfeiture proceedings can obtain in

the civil proceeding those fees they incur as criminal

defendants in a related criminal case

Appendix A

The claimants urge that “CAFRA would be

rendered meaningless if the government coulda

always evade hability by litigating in the criminal

forum.” (Br. of Appellee 30.) Likewise, the district

court said that if it “were to find that fees incurred

defending the criminal case were not recoverable

under CAFRA, then the government would be

allowed to avoid CAFRA.” 566 F. Supp. 2d at 1261.

These arguments ignore two important points. First,

claimants in civil forfeiture actions do not always

face criminal charges; Beth Latifi 1s a prime

example. Second, by designing the civil forfeiture

action stay provision as it did, Congress expressly

authorized the “strategy,” see Br. of Appellee 31, used

by the government in this case.

Viewing the statutory scheme in its entirety,

we cannot conclude that in addition to _ the

protections expressly laid out in statute, Congress

implicitly provided that the fees incurred in defense

of a related criminal case can be recouped in the civil

case. As we have repeatedly said, it is not the courts’

place to fashion additional protections, and, 1n this

instance, the sovereign immunity of the United

States precludes us from doing so.

Our holding also is consistent with the

concerns expressed by Congress in CAFRA’s

legislative history. As explained by the district

court, “the stated purpose of CAFRA is ‘to make

federal civil forfeiture procedures fair to property

owners and to give owners innocent of any

wrongdoing the means to recover their property and

make themselves whole after wrongful government

seizures.” 566 F. Supp. 2d at 1260 (quoting H.R.

Rep. No. 106-192, at 11 (1999)). The U.S. House of

Appendix A-14

Representatives Committee on the Judiciary

expressed concern that “many civil seizures are not

challenged” due to the costs involved in challenging

them. H.R. Rep. No. 106-192. at 14 (1999).

Similarly, the Committee expressed concern “with

the arduous path one must journey [in a civil

forfeiture action] against a presumption of guilt,

often without the benefit of counsel, and perhaps

without any money left after the seizure with which

to fight the battle.” Jd. (internal quotation marks

and citations omitted). We have not found anything

in the legislative history, however, that indicates

Congress was troubled by the fact that civil forfeiture

action claimants who are criminal defendants in

related cases bear the costs of their crimina! defenses

under the traditional American Rule.* As we note

below, where Congress had such concerns, it

addressed them with the Hyde Amendment. In

describing the ills of the former civil forfeiture action

system, the House of Representatives Committee on

the Judiciary’s report on CAFRA, then H.R. 1658,

described two instances where property owners

incurred great expense in trying to regain their

properties after civil forfeitures. See H.R. Rep. No.

* “Under the American Rule, United States courts follow a

general practice of not awarding fees to a prevailing party ina

suit.” Smalbein v. City of Daytona Beach, 353 F.3d 901, 904

(11th Cir. 2003) (anternal quotation marks omitted); accord

United States v. Aetna Ins. Co , 831 F.2d 978, 983 (11th Cir

1987) (stating that under the American Rule “{plarties must pay

their own ways as far as lega] costs”). “[T]the default

assumption is that each party 1s responsible for its own legal

fees. and thus fees ordinarily will not be awarded to the

prevailing party without express statutory authority.” Johnson

v. Floreda, 348 F 3d 1334. 1350 (11th Cir. 2003)

Appendix A-1!5

106-192, at 8, 10. In both of the examples provided,

the claimants were not prosecuted for crimes

associated with the civil forfeiture. See id. at 8-9

(describing a case where criminal charges “were

quickly dropped for lack of evidence, [but] the

” and

the claimant ultimately was forced to declare

bankruptcy as a result of the seizure); id. at 10-11

(describing a case in which no criminal charges were

filed, but a motel was seized for “tacit approval of

illegality” and the owners “were forced to spend

substantial amounts of time and money on hiring an

attorney and defending against the government's

forfeiture action” (internal quotation marks

omitted)). The descriptions of these cases imply that

had these claimants been the subject of legitimate

government refused to release [the property]

ongoing criminal investigations and prosecutions,

Congress would not have had similar concerns.

The CAFRA fee-shifting provision was

designed to make claimants whole for their efforts to

recover their property in a civil forfeiture action.

The purpose of defending a criminal prosecution is

not to recover property, but to defend the accused's

freedom. Where the criminal prosecution is “brought

vexatiously, in bad faith, or so utterly without

foundation in law or fact as to be frivolous,” the Hyde

Amendment provides the means of recovery. United

States v. Gilbert, 198 F.3d 1293, 1299 (11th Cir.

1999). Otherwise, unless the defendant is indigent,

he bears the cost of his own defense. We find

nothing in the legislative history of CAFRA to

counter this interpretation

B.

he district court based its award ol attorney

Appendix A-1!6

fees for Axion and Latifi’s criminal case work” on two

Supreme Court cases where the Court determined

that similarly-worded fee-shifting statutes allowed

for the award of attorney fees incurred outside of the

actual litigation: Webb v. County Board of Education

of Dyer County, Tennessee, 471 U.S. 234, 105 S. Ct.

1923 (1985), and Pennsylvania v. Delaware Valley

Citizens’ Council for Clean Air (Delaware Valley 1),

478 U.S. 546, 106 S. Ct. 3088 (1986). 566 F. Supp. 2d

at 1260--62. We find these cases distinguishable.

The district court drew primarily upon

Webb, where the Supreme Court concluded that

attorney fees for work done in optional state

administrative proceedings may be awarded to a

prevailing civil rights lhtigant under 42 U.5.C. §1988

to the extent that a “discrete portion” of the work

was “useful and of a type ordinarily necessary” to the

successful outcome of the subsequent litigation.

Webb, 471 U.S. at 241, 243, 105 S. Ct. at 1928-29.

At the time of the Webb decision. the § 1988

fee-shifting provision read in pertinent part:

In any action or proceeding to enforce a

provision of §§ 1981, 1982, 1983, 1985 and

1986 of this title, title TX of Public Law 92-3818,

or title VI of the Civil Rights Act of 1964, the

"In ats categorization of attorney fees as either having been

incurred in relation to Axion and Latofi's criminal defense or the

civil forfeiture action, the district court assigned to the criminal

case fees incurred in defending U.S. Army administrative

proceedings concerning suspension or debarment of Axion as a

defense contractor ($1,522) and in preparation for potentia

False-Claims-Act proceedings ($51), concluding that the

government may have introduced those issues as other-a

evidence We do not disturb that finding

17

Appendix A

court. in its discretion, may allow the

prevailing party, other than the United States,

a reasonable attorney's fee as part of the costs.

See id. at 236 n.1, 105 S. Ct. at 1925 n.1. After

successful settlement of a civil rights action under 42

U.S.C. § 1983 against a school board, a tenured black

elementary school teacher filed in the district court a

motion for an award of attorney fees under 42 U.S.C.

§ 1988. Jd. at 237-38, 105 S. Ct. at 1925-26. The

school board had dismissed him and upheld the

dismissal in a series of administrative proceedings.

Id. at 237, 105 S. Ct. at 1925. The district court

denied those fees incurred by the teacher in defense

of the school administrative proceedings, but

awarded fees for work done on the federal court

litigation. Jd. at 239, 105 S. Ct. at 1926. The Sixth

Circuit affirmed the district court’s ruling. /d. The

Supreme Court also affirmed, stating that the

plaintiff had not established that “any discrete

portion of the work product from the administrative

proceedings was work that was both useful and of a

type ordinarily necessary to advance the civil rmghts

litigation to the stage it reached before settlement.”

Id. at 248, 105 S. Ct. 1928-29. Although the Court

affirmed the denial of the fees incurred in defense of

the administrative proceedings in toto, it indicated

that attorney fees for time spent pursuing optional!

administrative proceedings may be included in the

caleulation of a reasonable attorney fee awarded

under § 1988 if the work is specifically identified and

is “useful and of a type ordinanly necessary” to

, © : a yas . 10

secure the final result obtained from the htigation

The Court indicated that it could address only the question

presented to the district court: “whether the time spent on the

Appendix A-18

Id.

The district court also cited Delaware Valley I,

where the Court applied Webb and held that work

done to monitor and enforce implementation of a

consent decree entered into by the Commonwealth of

Pennsylvania (including participation in regulatory

proceedings and review of proposed regulations)

constituted compensable attorney fees under the

Clean Air Act, 42 U.S.C. § 7401. Delaware Valley I,

478 U.S. at 561, 106 S. Ct. at 3096. The Clean Air

Act feeshifting provision read as follows:

The court, in issuing any final order in

any action brought pursuant to subsection (a)

of this section, may award costs of htigation

(including reasonable attorney and expert

witness fees) to any party, whenever the court

determines such award is appropriate.

See id. at 557, 106 S. Ct. at 3094. In Delaware Valley

I, private citizens filed suit against’ the

Commonwealth to compel implementation of a

vehicle emission inspection and maintenance

program required by the Clean Air Act. Jd. at 549,

106 S. Ct. at 3090. To aid in enforcement of the

resultant consent decree, attorneys for the citizens’

council commented on the state’ transportation

department's regulations and _ participated’ in

Environmental Protection Agency hearings. Id. at

550, 552-53, 106 S. Ct. at 3090, 3092. The district

court awarded fees for these activities under the

administrative work. should be included [in the attorney fees

award] in its entirety or excluded tn its entirely fd.at 243, 105

S.Ct. At 1929

Appendix A-19

Clean Air Act, 42 U.S.C. § 7401. Id. at 553, 106 5.

Ct. at 3092. The Third Circuit affirmed. /d. at 556,

106 S. Ct. at 3093. The Supreme Court also

affirmed, concluding that although the work did not

“occur in the context of traditional judicial litigation,”

it was compensable because it was “useful” and

“necessary” in that it helped to protect the relief

awarded under the consent decree and thus was

crucial to the vindication of the party’s rights. dd. at

560-61, 106 S. Ct. at 3096.

As we stated earher, Wehb and Delaware

Valley I are distinguishable from the present case

First, in both Webb and Delaware Valley I, the issue

was the award of attorney fees for work done with

regard to non-judicial activities under the authority

of statutory fee-shifting provisions relevant to

particular judicial actions or proceedings. For

example, in Webb, the Court considered the

applicability of the § 1988 fee-shifting statute

lesi7ned§ for § 1983 civil wvights cases _ to

voluntarily-pursued school board administrative

proceedings. Webb, 471 U.S. at 239, 105 S. Ct. at

1926. In Delaware Valley I, the Court affirmed the

applicability of the Clean Water Act's fee-shifting

statute to post-litigation activities before a

regulatory body and in administrative hearings.

Delaware Valley 1, 478 U.S. at 561, 106 S. Ct. at

3096. In both instances the Supreme Court indicated

that attorney fees may be awarded for these

extra-judicial activities where they are sufficiently

connected to a single court action that is subject to

the relevant statutory fee-shifting provision. In

contrast, the district court in this case awarded

attorney fees incurred in defending a separate

Appendix A-20

judicial proceeding. Fees incurred for Axion and

Latifi’s criminal defense are not like the feces

incurred in Webb and Delaware Valley i tor

extra-judicial activities in support of litigation that

itself was subject to the relevant fee-shifting

provision. Cf. Greer v. Holt, 718 F.2d 206, 208 (6th

Cir. 1983) (explaining that the award of attorney fees

for work in an administrative proceeding in support

of a civil action subject to a fee-shifting statute is

different from the award of fees incurred in defense

of a criminal proceeding that—even though it is

based on the same operative tacts—is separate from

a civil proceeding subject to a fee-shifting statute).

Second, awarding the attorney fees _ for

optional administrative proceedings and

post-litigation activities in Webb and Delaware

Valley I was in furtherance of the purposes of the

fee-shifting statutes at issue in those cases. ‘The

Court explained in Delaware Valley I that the

fee-shifting provisions at issue in Delaware Valley 1

and Webb were enacted to ensure effective

enforcement of certain important federal interests

through citizen suits. Delaware Valley J, 478 U.S. at

559-60, 106 S. Ct. at 3095. “|T]he common purpose

of both § 304(d) and § 1988 to promote citizen

enforcement of important federal policies,” id. at 560,

106 S. Ct. at 3096, required the award of attorney

fees for these extra-litigation activities. For

example, with regard to civil rights claims, the Court

noted that “Congress found that many legitimate

claims would not be redressed” “unless reasonable

attorney's fees could be awarded.” Jd. at 560, 106 5.

Ct. at 3095. There is no comparable concern here,

where the criminal defendants Axion and Latifi were

sufficiently motivated by the criminal charges t

> 1

i |

Appendix A

avidly pursue their criminal defense. Cf. Kahane v.

UNUM Life Ins. Comp. of Am., 562 F.3d 1210, 1215

(1ith Cir. 2009) (affirming denial of attorney fees for

work done in ERISA pre-litigation administrative

proceedings where injecting attorneys into those

proceedings “could severely undermine’ the

congressional purpose” (internal quotation marks

omitted)). The present case is akin to Greer v. Holt,

718 F.2d 206 (6th Cir. 1983). In an action brought

under 42 U.S.C. § 1983, Greer asserted that police

officers assaulted and beat him while he was in their

custody. Greer, 718 F.2d at 207. Prior to filing that

federal claim, Greer was prosecuted in state court for

assault and battery of the police officers arising from

the same circumstances. Jd. Greer was acquitted of

the criminal charges, which was necessary for his

success in his § 1983 action, and he thereafter

prevailed in his civil rights suit. /d. The Sixth

Circuit upheld the denial of attorney fees in the

federal civil case under § 1988 for work done in the

criminal prosecution because, “|s]trategically, the

attorneys for Greer had little choice but to pursue a

full defense to the criminal charges.” /d. at 208.

C.

While our reading of CAFRA § 4(a), 28 U.S.C.

§ 2465(b)(1) alone is sufficient to warrant a reversal

of the district court’s award of attorney fees for work

done in defense of a criminal prosecution, we add

that the Hyde Amendment also supports our

conclusion. The claimants urge that the Hyde

Amendment has no place in our analysis of this case

because the district court awarded the fees in

question in a civil forfeiture action to which the Hyde

Amendment does not apply. We disagree. The

Appendix A-22

district court awarded under CAFRA fees incurred in

defense of a criminal action, which are subject to the

Hyde Amendment. The Hyde Amendment provides

in pertinent part:

[T]he court, in any criminal case (other than a

case in which the defendant is represented by

assigned counsel] paid for by the public)

may award to a prevailing party, other than

the United States, a reasonable attorney's fee

and other litigation expenses, where the court

finds that the position of the United States

was vexatious, frivolous, or in bad faith, unless

the court finds that special circumstances

make such an award unjust. Such awards

shall be granted pursuant to the procedures

and limitations (but not the burden of proof)

provided for an award under [the Equal Access

to Justice Act (EAJA), 28 U.S.C. §] 2412

As the district court acknowledged, “any award in

this case which includes fees incurred in the criminal

case would allow the claimants to recover those fees

without proving that the pesition of the United

States was vexatious, frivolous, or in bad faith.” 566

F. Supp. 2d at 1261 (internal quotation marks

omitted). The district court's acknowledged

circumvention of the Hyde Amendment was

Inappropriate.

IV. CONCLUSION

The district court ruled that, in a civil

forfeiture action, CAFRA permits recovery of fee

incurred in the defense of a_ related criminal

proceeding where that work was “useful” and of the

type “ordinarily necessary’ to the successful outcoms

Appendix A

of the subsequent civil forfeiture action. Because we

reject the district court’s conclusion for the reasons

stated above, we vacate the May 29, 2008 order of

the district court awarding the claimants attorney

fees under CAFRA § 4(a), 28 U.S.C. § 2465(b)(1) and

remand this case for recalculation of the fees and

interest due consistent with this opinion

VACATED and REMANDED

at Axion and Latifi's motion for attorney fees and

costs pursuant to the Hyde Amendment filed in the related

criminal case on December 12, 2007, remains pending The

district court stayed all further proceedings in the criminal case

until this court issued the instant decision Upon remand of

this case. the district court may want to consider Axion and

Latifi's motion for attorney fees d costs 1n the related criminal

proc eeding

\ppendix \

HILL, Circuit Judge, dissenting

We are reviewing one case — the civil case [o1

forfeiture Nine months after it was filed, the

sovernment brought criminal charge:

Asserting that civil discovery would adversely

affect the government’s position in the criminal case

the government moved for and was granted a stay of

the civil case. Discovery was frozen

The lawyers retained to represent clients 1n

the civil forfeiture case found themselves faced wiih

a criminal case that could be disastrous to then

clients’ interests. Would it be work “useful” to their

clients and work “of a type ordinarily necessary to

competently represent them? Of course, 1t was not

only useful. It was necessary. See Webb v. Board of

Educ. of Dyer County, Tenn., 471 U.S. 234, 243, 106

S.Ct. 1923, 1928 (1985)

Affidavits of experienced counsel stated under

oath that “. .. it would be impossible to defend thi

civil forfeiture action without defending and

obtaining an acquittal in the underlying criminal

action.” There is no dispute

Counsel representing the appellees in this civil

action would have been inadequate to the point of

malpractice to have ignored the new criminal cast

her case on tnal

Were counsel to monitor anot

in court in another jurisdiction, noting the quality of

evidence and impact of witnesses, that would be

“useful.” It would be work “of a type ordinarily

necessary to competent representation

,

Appendix A

Kees incurred in that useful and necessary

work were properly awarded. It was there that the

forfeiture action was defeated

{f would affirm

APPENDIX B

[IN THE UNITED STATES COURT OF APPEALS

rOR THE ELEVENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant

versus

CERTAIN REAL PROPERTY, Located at 317 Nick

Fitchard Road, N.W., Huntsville, AL, together with

all improvements , fixtures, and appurtenances

theron. ALL FUNDS ON DEPOSIT IN ACCOUNT

NUMBER 8011402644 Held in the Name of Axion

Corporation, located at Colonial Bank, P.O. Box

1887, Birmingham, AL 35201, ALL FUNDS ON

DEPOSIT IN ACCOUNT NUMBER 80365813417

Held in the name of Axion Corporation, located at

Colonial Bank, P.O. Box 1887, Birmingham, AL

390201,

Defendants Appellees

On Appeal from the United States District Court for

the Northern District of Alabama

Jefore: DUBINA, Chief Judge, EDMONDSON and

HILL, Circuit Judges

PER CURIAM:

The Petition (s) for Rehearing are DENIED and no

Judge in regular active Service on the Court having

requested that the Court be polled on Rehearing en

banc (Rule 35, Federal Rules of Appellate

Procedure), the Petition (s) for Rehearing En Banc

are DENIED

ENTERED FOR THE COURT:

_/s/ Joel F. Dubina

CHIEF JUDGE

APPENDIX C

Title 28 U.S.C. § 2465

§ 2465. Return of property to claimant; liability

: ; ‘ul seizure; attorney tees, costs, and

interest

(a) Upon the entry of a judgment for the

claimant in any proceeding to condemn or forfeit

property seized or arrested under any provision of

Federal law--

(1) such property shall be returned forthwith

to the claimant or his agent; and

(2) if it appears that there was reasonable

cause for the seizure or arrest, the court shall cause

a proper certificate thereof to be entered and, 1n such

case, neither the person who made the seizure or

arrest 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 subsecticn (b).

(b)(1) Except as provided in paragraph (2), 1n

any civil proceeding cto forfeit property under any

provision of Federal law in which the claimant

substantially prevails, the United States shall be

liable for--

(A) reasonable attorney fees and _ other

litigation costs reasonably incurred by the claimant;

(B) post-judgment interest, as set forth in

section 1961 of this title; and

(C) in cases involving currency, other

negotiable instruments, or the proceeds of an

interlocutory sale

(1) interest actually paid to the United States

from the date of seizure or arrest of the property that

\ppendix ©

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.

(2)(A) The United States shall not be required

to disgerge the value of any intangible benefits nor

make any other payments to the claimant not

specifically authorized by this subsection.

(B) The provisions of paragraph (1) shall not

apply if the claimant is convicted of a crime for which

the interest of the claimant in the property was

subject to forfeiture under a Federal criminal

forfeiture law.

(C) If there are multiple claims to the same

property, the United States shall not he 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 tees; and

5 |

Appendix oy

(iv) prevails in obtaining forfeiture with

respect to one or more of the other claims.

(D) If the court enters judgment in part for the

claimant and in part for the Government, the court

shall reduce the award of costs and attorney fees

accordingly.

\ppendix ¢