A continuation of our recent blog post on civil forfeiture:
United States v. Coffman, 2015 WL 5103084 (6th Cir. Sept. 1, 2015)
Though many complain that the forfeiture laws are tilted in the government’s favor, one advantage that claimants enjoy is their right to collect attorney’s fees when they prevail in a civil case. This past September, a panel of the United States Court of Appeals for the Sixth Circuit unanimously upheld the right of an innocent owner to collect his or her attorney’s fees in defending property from civil forfeiture.
United States v. Coffman is unique because the government had consolidated a civil forfeiture case with a criminal case. 2015 WL 5103084 at *1. The civil claimant, Corrie Anderson, acquired an interest in a condominium in South Carolina from her brother-in-law, who was convicted in the criminal case. Id. Ms. Anderson nevertheless prevailed against the government’s attempt to forfeit her interest in the condo. Id.
Ms. Anderson then sought her attorney’s fees and costs. 28 U.S.C. § 2465(b)(1)(A) applies in civil forfeiture cases and requires the United States to pay a prevailing claimant his or her “reasonable attorney fees and other litigation costs reasonably incurred.” There is no such provision in criminal forfeiture cases. The government argued that, because it had consolidated the civil case with the criminal one, the criminal framework applied and, therefore, no attorney’s fees or costs were allowed.
To hold otherwise, the government said, would require an improper finding that the government had waived its sovereign immunity and exposed itself to a payment of fees. As the Sixth Circuit put it, “[t]he government urges us to view this case through the lens of the ‘sovereign immunity canon,’ which states that Congress can waive the United States’ sovereign immunity ‘only by an unequivocal expression in statutory text.’” 2015 WL 5103084, at *2. That unequivocal intent was lacking for civil cases consolidated with criminal ones, the Government argued. Id.
The district court agreed with the government’s position, but the Sixth Circuit reversed and remanded. The Sixth Circuit decided that, even though the cases had been consolidated, the civil statute still applied and Ms. Anderson was entitled to her fees. The civil statute was clear in permitting attorney’s fees, and the sovereign immunity arguments were unavailing:
“The stated purpose of [the Civil Asset Forfeiture Reform Act of 2000 (“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. Anderson is exactly the type of person CAFRA is meant to protect: a third party found to be a bona fide purchaser of property that was forfeited in proceedings against someone else. Although it would be a very different question if Anderson had intervened in a forfeiture stemming solely from the criminal forfeiture provisions of the code—for instance, if the government had sought to dismiss the civil forfeiture action—that is not our case. In this case, Anderson successfully defended her interest in the condo, culminating in the removal of the condo from the final order of forfeiture that resolved both the criminal and the civil actions. Because she substantially prevailed in a civil proceeding to forfeit property, she is entitled to attorney’s fees . . . .” United States v. Coffman, No. 14-6516, 2015 WL 5103084, at *3 (6th Cir. Sept. 1, 2015) (internal citations and quotation marks omitted).
Coffman is noteworthy because it was authored by Judge Alice M. Batchelder, who is regarded as one of the more conservative members of the Sixth Circuit. Judge Karen Nelson Moore, one of the more liberal members, joined the opinion. Liberals and conservatives have fought fierce battles in the Sixth Circuit. (For a well-publicized example, compare Judge Moore’s concurring opinion in Grutter v. Bollinger, 288 F.3d 732 (6th Cir. 2002), with Judge Batchelder’s dissenting opinion.) The Coffman opinion suggests that civil forfeiture might be an area where liberals and conservatives can unite to prevent government overreach.
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