United States of America v. 116850 in US Currency

Filing 130

ORDER granting in part and denying in part 114 MOTION for Attorney Fees PURSUANT TO 28 U.S.C. § 2465(b)(1), awarding fees in the amount of $152,500.00, costs in the amount of 8,205.04, and interest in the amount of $101.49. Signed by Honorable Joseph F. Anderson, Jr. on 12/21/2015.(bshr, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
United States of America,

C/A No. 3:14-CV-01794-JFA

vs.
$116,850 in United States Currency,

ORDER

Defendant in Rem.

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

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The dismissal occurred midway through the hearing on the motion to suppress after this Court granted Claimant’s
request to obtain a copy of the personnel file of the Government’s principal witness.

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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 fortynine 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.).

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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

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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 administrative forfeiture proceedings.
b. Judicial Forfeiture
Claimant seeks to recover 449 hours of time billed during the judicial forfeiture proceeding.
The Government has made specific objections to a large numbers of those hours. The Court
declines to examine and discuss each billing entry throughout the litigation, but rather will examine
the unreasonable entries and address several of the Government’s objections.
i.

Motion for Attorneys’ Fees and Costs

By the Court’s count, Claimant seeks to be compensated for 62.8 hours of attorney work
for the drafting of the instant motion and the reply to the Government’s response. The Court finds
this amount to be excessive.
As an initial matter, it seems to this Court that awarding attorney’s fees for drafting a
motion requesting the attorney’s fees is inappropriate. In traditional litigation, most attorneys
would not charge a client for 62.8 hours to create a bill or explain a fee. “Hours that are not properly
billed to one's client also are not properly billed to one's adversary pursuant to statutory authority.”
Hensley at 434 (citing Copeland v. Marshall, 641 F.2d 880, 891 (1980)(en banc). Nevertheless,

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this Court is keenly aware that such awards are made on a regular basis. See, e.g., Luessenhop v.
Clinton Cty., N.Y., 324 F. App'x 125 (2d Cir. 2009); Vaughn v. Heckler, 860 F.2d 295, 296 (8th
Cir. 1988).
However, 50 hours for drafting a motion for attorney’s fees and 12.8 hours for drafting a
reply is excessive. Rather, the Court will only award 20 hours for the drafting of the motion. A
federal litigator with the experience of Claimant’s counsel should be able to complete such a
motion in that time. Further, the Court will award only 5 hours for drafting the reply, which
included much of the same argument and exhibits as the initial motion. Accordingly, the Court
finds Claimant is entitled to compensation for 25 hours billed for briefing and arguing the instant
motion.
ii.

Investigation of Government’s Expert

Claimant seeks compensation for 4.5 hours for researching the Government’s expert
witness. As the Government points out, Claimant was provided with a curriculum vitae. While
some further investigation was likely warranted, 4.5 hours of attorney time is excessive. Instead,
the Court will award attorney’s fees for only 2 hours of attorney time spent investigating the expert.
iii.

Motion to Compel

Claimant seeks attorney’s fees for 24.3 hours spent responding to the Government’s
Motion to Compel. The Government filed the motion after two attempts to have the Claimant
clarify his answers to the special interrogatories. Once briefed, the Court granted the Government’s
motion. Claimant’s request is excessive. Responding to a motion to compel is a practice all too
common in modern litigation, and an experienced federal litigator should not consume large
swaths of time accomplishing the task. Accordingly, the Court will award Claimant attorney’s fees
for 10 hours.

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iv.

Failed Arguments and Claims

The Government objects to the recovery of attorney’s fees for time spent on “failed
arguments.” By the Government’s count, Claimant’s counsel spent about 72.5 hours on efforts that
were ultimately unfruitful, including: his motion for summary judgment (37.5 hours), his motions
to exclude witnesses and strike the Government’s summary judgment motion (2 hours), his motion
to dismiss (28.1 hours), and the time spent providing deficient responses to interrogatories (4.9
hours).
“[A] district court may adjust the hours claimed to eliminate time that was unreasonably,
unnecessarily, or inefficiently devoted to the case.” Hensley, 461 U.S. at 434. Indeed, the court
may even disallow time spent in litigating failed claims. Lipsett v. Blanco, 975 F.2d 934, 940–41
(1st Cir. 1992). “Unsuccessful claims that are ‘distinct in all respects’ from the claims upon which
the plaintiff has prevailed ‘should be excluded in considering the amount of a reasonable fee.’”
Hyatt v. Barnhart, 315 F.3d 239, 254 (4th Cir. 2002)(quoting Hensley, 461 U.S. at 440). However,
such discretion is limited by the principles of interconnectedness. Lipsett, 975 F.2d at 940–41
(refusing to grant reductions because “the work done on these unsuccessful claims was sufficiently
interconnected with the causes of action upon which appellee prevailed.”).
In this case, despite the Government’s objections, the failed arguments have sufficient
interconnectivity with the rest of the case to justify an award of attorney’s fees. The motion for
summary judgement, the motions to exclude witnesses and strike, and the motion to dismiss were
all interrelated. Likewise, the answers to the special interrogatories, while deficient, were also
firmly connected to the case. None of the failed arguments were “distinct in all respects” from the
other issues. Rather, they represent good faith attempts by a zealous advocate to represent her
client.

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Notwithstanding the interconnectivity, the Government argues that the request for
attorney’s fees is excessive. The Court respectfully disagrees. Specifically, 28.1 hours for the
motion to dismiss is reasonable considering the extensive briefings, preparation, and hearing held
on the matter. Similarly, 37.5 hours on the motion for summary judgment reflects the near endless
briefing and complicated issues including a hearing on standing. Lastly, the requests for time
devoted to the motions to exclude and strike and the time drafting deficient responses are
reasonable.
Accordingly, the Court finds that Claimant should be compensated for 394.4 hours of
attorney time and 46 hours of paralegal time.
2. The difficulty and novelty of the issues.
Claimant characterizes this case as “a complex area of federal civil law which is a practice
specialty that involves one of the most esoteric mixtures of law and procedure.” ECF No. 114-1 p.
10. Conversely, the Government asserts this case is “fairly routine” and “more comparable to [a]
criminal drug case than it is to complex commercial civil litigation or complicated criminal fraud
schemes.” ECF No. 116 p. 20. While not quite securities litigation or an intellectual property
dispute, the case is certainly more complicated than an insurance fight over a car wreck or a drug
trafficking prosecution. This case involved criminal law, Constitutional law, federal Admiralty
procedure, the asset forfeiture scheme, the partnership law of another state, and now the attorney’s
fees provision of CAFRA. Accordingly, the Court finds this case presented both difficult and novel
issues.
3. The necessary legal skill required.
As discussed above, this was a complicated case. It required extensive discovery, several
dispositive motions, and no small amount of perseverance for the Claimant to prevail. Further, the

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case was prosecuted by a very capable assistant United States attorney who deftly wielded the full
weight of the federal government. “The skill required of Claimant’s attorney may also be reflected
in the quality of opposing counsel.” See In re LandAmerica 1031 Exch. Servs., Inc. I.R.S. 1031
Tax Deferred Exch. Litig., No. 3:09-CV-00054, 2012 WL 5430841, at *3 (D.S.C. Nov. 7, 2012).
4. The attorney’s opportunity cost in pressing the instant litigation.
Before this case is finally concluded, Claimant’s counsel will have incurred nearly 400
hours of attorney time over a period of nearly two years. Further, Claimant’s counsel is a sole
practitioner. Thus, the attorney time committed by counsel to representing Claimant is significant,
given the total attorney time available for her to pursue cases that she had or could have had over
this time period. Clearly, counsel bore a significant opportunity cost in pressing this litigation.
5. The customary fee.
The hourly rate included in an attorney's fee must be reasonable. Hensley, 461 U.S. at 433.
Attorneys should be compensated at the “prevailing market rates in the relevant community.” Rum
Creek Coal Sales, Inc v. Caperton, 31 F.3d 169, 175 (4th Cir. 1994). This determination is factintensive and is best guided by what attorneys earn from paying clients for similar services in
similar circumstances. Id. “The ‘actual rate that counsel can command on the market is itself highly
relevant proof of the prevailing community rate.’” In re LandAmerica, 2012 WL 5430841, at *6
(quoting Bebchick v. Washington Metropolitan Area Transit Com., 805 F.2d 396, 404 (D.D.C.
1986)). The relevant community is the community in which the district court sits. See Luciano v.
Olsten Corp., 109 F.3d 111, 115 (2nd Cir. 1997). Importantly, unlike other attorney fee provisions
of federal law, CAFRA does not have a cap on hourly rates. See United States v. $60,201.00 U.S.
Currency, 291 F. Supp. 2d 1126, 1130 (C.D. Cal. 2003). Rather, “Congress intended to liberalize
the award of attorney fees, rather than restrict them.” Id.

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This Court is aware of only one other award of attorney’s fees under CAFRA in this district.
See United States v. $10,795 in U.S. Currency, No. CA8:08-3358-GRA, 2009 WL 2513440
(D.S.C. Aug. 12, 2009)(hereinafter “Sayce”). In Sayce, the claimant prevailed in a forfeiture action
culminating with the Government moving to dismiss with prejudice and returning of all of the
defendant currency. Id. The parties negotiated an agreement as to the amount of attorney’s fees,
and the Honorable G. Ross Anderson approved an award of $7,297.50. ECF No. 124-2. The figure
was based on 41.70 hours of attorney time billed at a rate of $175 per hour.
The Government submitted Sayce in its Supplement Reply to Claimant’s Motion for
Attorney’s Fees and Costs presumably as evidence of a reasonable hourly rate in this district. ECF
No. 124. However, Sayce is readily distinguishable from the case at bar. First, in Sayce, the
claimant’s counsel became involved in the case “at the request of the court.” ECF No. 124-2 p. 4.
Further, counsel submitted that he “typically, handles matters at higher hourly rates” and “retained
the $175 per hour rate so as not to raise questions from the government, though a higher rate more
in line with counsel’s typical billing rates would certainly not be unreasonable.” Id.
The case at bar is a stark contrast to Sayce. There, the government filed the complaint in
October of 2008 and moved to dismiss in July of 2009 – totaling a mere eight months of litigation.
In Sayce, counsel agreed to the representation at the request of the court and was only involved
from February of 2009 to August of 2009 – totaling only seven months. By the admission of
claimant’s counsel, Sayce did not raise questions that were “significantly novel or difficult.”
Further, the parties in Sayce agreed, admirably, to a settlement on the matter of attorney’s fees.
By contrast, in the instant action, the Government filed the complaint in May in 2014 and
moved to dismiss in August of 2015 – over sixteen months of litigation. Indeed, Claimant’s counsel
became involved in the case in December of 2013 – five months prior to the litigation and nearly

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two years ago. Throughout that time, this case presented difficult and novel questions.
Additionally, if not predictably, the issue of attorney’s fees has been as hotly contested as every
other issue. Accordingly, this Court does not find Sayce particularly helpful to its determination.
In his motion, Claimant requests $425 per hour and cites a number of complex commercial
cases from this district, which provide a range of partner level rates from $500 to $700 per hour.
ECF No. 114-1 p. 14-15. Conversely, the Government characterizes this case as “fairly routine”
and comparable to a “criminal drug case” and offers the CJA rate of $127 per hour as “an
appropriate hourly rate.” ECF Nos. 116, 119.
This case is certainly more complex than an average “criminal drug case.” However, it is
not quite complex commercial litigation either. Rather, this is a complicated financial dispute
based on a bizarre set of facts and litigated in the shadow of a possible criminal indictment. Given
the nature and power of the Government, the stakes are very high. After carefully reviewing the
cases from this district, weighing their relative complexity with the case at bar, and taking into
consideration the evidence concerning the rates of other practitioners in this field, the Court finds
the appropriate attorney rate for this litigation to be $375 per hour.
Additionally, Claimant seeks an award of attorney’s fees for work done by a paralegal. The
Court notes a discrepancy between Claimant’s motion and the invoice from his attorney. In his
motion, Claimant seeks fees for work done by a paralegal at a rate of $125 per hour. ECF No. 1141 p. 14. Conversely, in the exhibit attached to the motion, the paralegal rate is listed at $100 per
hour. ECF No. 114-3. The Court finds that $100 per hour rate is reasonable and appropriate.
6. The contingent nature of the fee.
Claimant’s counsel took a significant risk in taking this case. First, there was no guarantee
Claimant would “substantially prevail” as required to trigger attorney’s fees under CAFRA. That

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risk is not merely hypothetical, but rather typical in asset forfeiture litigation. See, e.g., United
States v. 2007 BMW 335i Convertible, VIN:WBAWL73547PX47374, 648 F. Supp. 2d 944, 945
(N.D. Ohio 2009); United States v. 115-98 Park Lane S., No. 10 CIV. 3748 BMC, 2012 WL
3861221, at *1 (E.D.N.Y. Sept. 5, 2012) aff'd sub nom. United States v. Capital Stack Fund, LLC,
543 F. App'x 17 (2d Cir. 2013).
7. The time limitations imposed by the circumstances or the client.
This case involved extensive efforts in research, near endless briefing, review of evidence,
and a healthy motions practice. Indeed, Claimant’s counsel was called upon to address issues on
short notice. The time demands of this case came at the expense of work on other cases. “Priority
work that delays the lawyer's other legal work is entitled to some premium.” Johnson v. Georgia
Highway Exp., Inc., 488 F.2d 714, 718 (5th Cir. 1974).
8. The amount in controversy and the result obtained.
The attorney's fee award should reflect the relief granted. Id. Here, the relief granted to
Claimant was uniformly successful. On the Government’s motion, the case was dismissed with
prejudice, and the funds were returned to Claimant in full.
9. The experience, reputation, and the ability of the attorneys.
Claimant’s counsel has extensive experience in forfeiture cases. Both as an Assistant
United States Attorney and in private practice, Claimant’s counsel has a long history of success as
a federal litigator and an excellent reputation in the legal community. She is one of the youngest
women inducted into the American College of Trial Lawyers from South Carolina. Also relevant
is the ability and experience of opposing counsel. Assistant United States Attorney Leesa
Washington has years of experience in asset forfeiture litigation. She is a zealous advocate, and
her tenacity as a litigator is a credit to the United States Attorney’s Office and this district.

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10. The “undesirability” of the case.
The undesirability of this case lies mostly in its risky nature. This was a very difficult case
that consumed a tremendous amount of time. Unlike a traditional plaintiff’s case, there was no
chance of a large jury verdict at the end, and unlike a traditional defense case, there was no wellheeled corporate client willing to pay a high hourly rate. Further, the more time Claimant’s counsel
invested in the litigation, the more risky it became.
11. The nature and length of the professional relationship.
Claimant retained counsel shortly after the seizure occurred at the very outset of the instant
litigation. During the ensuing two years, Claimant and his attorney have worked closely together
in every way this Court can see.
12. Awards in similar cases.
This fee award is reasonable in light of the awards in other cases. Significant awards of
attorney’s fees in asset forfeiture litigation are not uncommon. Further, the amount of the fee in
light of the amount in controversy is not without comparison. See., e.g., U.S. v. 4,432 Mastercases
of Cigarettes, 322 F. Supp. 2d 1075 (C.D. Cal. 2004)(approved nearly $500,000 in fees pursuant
to §2465(b)(1)(A)); U.S. v. $60,201.00 U.S. Currency, 291 F. Supp. 2d 1126 (C.D. Cal.
2003)(approximately $60,000 in fees awarded); U.S. v. $193,680.00 U.S. Currency, CV 01-9676CBM (Mcx)(over $125,000 in fees awarded); U.S. v. $215,271.00 et al, No. CV 01-9812-DDP
(nearly $80,000 in fees awarded); and United States v. One Rolex 18K Gold Watch With Light
Brown Crocodile Style Wrist Band, 696 F. Supp. 2d 143 (D. Puerto Rico 2010) (awarding
$6,842.25 in attorney's fees).

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B. Costs
Claimant requests costs in the amount of $9,501.69. The Government objects to $1,296.65
of costs incurred during the administrative forfeiture proceedings of the Defendant Currency.
Further, the Government argues that much of other costs are excessive and unreasonable.
“[A]ttorney's fees awards include those reasonable out-of-pocket expenses incurred by attorneys
and ordinarily charged to their clients.” LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 763 (2d
Cir.1998). For reasons discussed above, the Court finds the costs incurred during the
administrative forfeiture proceedings are improper. By contrast, without analyzing each entry, the
Court finds that the other costs requested by Claimant are reasonable under the circumstances.
Accordingly, the Court awards Claimant $8,205.04 in costs.
V.

CONCLUSION
Therefore, for the foregoing reasons, Claimant’s Motion for Attorney’s Fees, Costs, and

Interest pursuant to 28 U.S.C. § 2465(b)(1) (ECF No. 114) is granted in part and denied in part,
and the Court orders the Government to pay Attorney’s Fees in the amount of one hundred fiftytwo 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).

IT IS SO ORDERED.
December 21, 2015
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

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