AFR Files Amicus in Ninth Circuit CAFRA Fee-Shifting Appeal

On November 1st, 2013, Americans for Forfeiture Reform filed a brief of amicus curiae in Support of Defendants-Appellants and Reversal of the Judgment Below, United States v. Moser, No. 13-55266 (9th Cir. Nov. 1, 2013), ECF No. 20. AFR first covered this appeal when it was docketed in February 2013.

AFR's effort to educate the court about the realities of civil forfeiture litigation was led by AFR Research Director Scott Meiner. The brief was drafted by Mahesha Subbaraman, who served as AFR's Counsel of Record pro bono to the Ninth Circuit. Subbaraman is an attorney at the firm of Robins, Kaplan, Miller & Ciresi L.L.P.

Our colleague Nick Sibilla from the Institute for Justice discussed AFR's brief in this Forbes op-ed, noting that: 

Without a search warrant, federal agents entered Robert Moser’s California home and seized $28,000 in currency.  Under civil forfeiture, someone does not have to be convicted or charged with a crime to lose their property.  But rather remarkably for a civil forfeiture case, Moser won his money back.

According to Judge Larry Alan Burns, who presided over the case, police committed “serial constitutional violations… [that] were purposeful and flagrant.”  Moser was not informed of his Miranda rights nor did police obtain a warrant or his consent when they first entered his house. Due to this unlawful search and seizure, that $28,000 was returned to Moser.

Thanks to the Civil Asset Forfeiture Reform Act(CAFRA), which Congress overwhelmingly passed in 2000, when a property owner “substantially prevails” in a federal civil forfeiture case, by law, “the United States shall be liable for reasonable attorney fees.”

So after he won, Moser asked for $50,775 in an attorney’s fees award.  Instead, Moser and his attorney were egregiously lowballed.  The same judge who heard Moser’s earlier case awarded only 60 percent of the billable hours sought and at a much lower rate too.  In the end, his lawyer was awarded a mere $14,000, a 70 percent cut.

Moser appealed and the case is pending before the U.S. Ninth Circuit Court of Appeals.  Sensing how this case could impact forfeiture victims beyond Robert Moser, Americans for Forfeiture Reform(AFR), a nonprofit, nonpartisan organization, filed an amicus brief.  In their brief, they urge the Appellate Court to reverse the fee cuts, arguing the lower court’s ruling is troubling for two reasons.

First, this decision “threatens to deprive property owners of the ability to make themselves whole after wrongful seizures.”  After the government unjustly seizes someone’s property, the least they can do is ensure the owner isn’t crushed by staggering legal fees.  As AFR correctly points out, Congress intended to rehabilitate innocent owners when they enacted CAFRA.

Second, by awarding fees, this helps compensate attorneys, thereby providing an incentive for property owners to attract quality counsel.  Civil forfeiture law is fiendishly complex and requires skilled lawyers to navigate.  That doesn’t come cheap.

Sadly, many victims of civil forfeiture simply don’t have the resources to defend themselves in court.  Since litigation can cost more than the property that was taken, many seizures aren’t even contested.

According to a memo by the U.S. Department of Justice, before CAFRA was enacted, “Eighty-five percent of the FBI and DEA cases, and nearly 99 percent of the INS [Immigration and Naturalization Service] cases are uncontested.”  Meanwhile, back then, U.S. attorneys filed between 2,000 and 5,000 civil forfeiture cases a year.  In these cases, the government won 96 percent of all cases that went to judgment and 98 percent of cases that were filed.

More recently, the Wall Street Journal reported that of 11,000 noncriminal forfeiture cases in 2010, there were only 1,800 challenges to civil forfeiture actions.

So like the Kobayashi Maru test, civil forfeiture can be a no-win scenario for property owners.


This aggressive litigation of civil forfeiture cases is not an isolated incident either.  One of the better known cases involved a Massachusetts motel that has been run by the Caswell family since 1955.

For more than three years, the Caswells had to battle the government from seizing their motel. To defend themselves in court, Russ Caswell and his family were forced to spend and borrow $100,000 on counsel.  According to Caswell, they were completely “tapped out.”

Fortunately, the Institute for Justice (IJ) took their case pro bono.  In January, a federal district court dismissed the case and lambasted the government for“stretching the evidence.”  As Caswell himself later said before a congressional briefing, “If it weren’t for IJ, I would have lost my motel.”

Access to quality counsel is crucial to defending property owners from government overreach.  The government’s attack on CAFRA fee awards is undermining one of the few protections for owners.  As Caswell and Moser’s cases clearly demonstrate, skilled lawyers can make all the difference for forfeiture victims.  A victory for Moser and his attorney would set an important precedent for civil liberties and property rights.

AFR's brief is below. We'll keep you updated on the progress of this litigation; we know that the government's response brief is due December 27, 2013. We are grateful our donors and all of the people who have made our work possible.

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