Metropolitan News-Enterprise


Friday, January 18, 2002


Page 3


Ninth Circuit Takes Broad View of Federal Attorney’s Fee Statute


By a MetNews Staff Writer


A federal statute granting attorney fees to a party prevailing in litigation against the U.S. government if the government’s position is not “substantially justified” if the government has acted unreasonably, even if it takes a reasonable litigation posture, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

“[C]onsistent with our precedents and the purpose of the [Equal Access to Justice Act], we hold that fees generally should be awarded where the government’s underlying action was unreasonable even if the government advanced a reasonable litigation position,” Judge Raymond Fisher wrote for a divided panel.

The court sent the case back to U.S. District Judge Alicemarie Stotler to set a reasonable fee for Dana Point lawyer Shawn Perez, who represented Gary H. Marolf in a successful defense of a forfeiture action. Assistant U.S. Attorneys Elana Artson and Steven Welk represented the government.

The case stemmed form the 1991 seizure of Marolf’s 55-foot sailing vessel, the Asmara, which had been used to smuggle marijuana into the United States from Thailand.

Marolf recovered more than $250,000 after the Ninth Circuit ruled that the government’s failure to provide notice of forfeiture to Marolf, within the statutory limitations period and despite notice of his ownership interest, violated Marolf’s constitutional rights and that further litigation was barred by the statute of limitations then in effect—which was subsequently amended by Congress.

Opposing Marolf’s motion for EAJA fees, the government argued that its position was substantially justified because it had probable cause to seize the boat and would have prevailed on the merits of the forfeiture action but for the procedural defect on which the case was decided.

But Fisher said those issues were irrelevant to the EAJA motion because they weren’t litigated., explaining:

“We hold that the district court abused its discretion because it denied Marolf’s fee motion on the basis of legal error...The district court denied fees based solely on the government’s litigation position, disregarding the unjustified underlying action.”

Senior Judge James Browning concurred.

Judge Ferdinand F. Fernandez dissented, arguing that failure to file the action in a timely manner didn’t harm Marolf, since he would have lost on the merits.

“It is quite enough that pursuant to the law as explicated by this circuit, a drug smuggler gets $253,763.60 of his drug-related assets free and clear, “ the judge wrote. “It is more than enough to award him attorney’s fees also, despite the fact that the government perpetrated no actual wrong upon him when it seized the Asmara and then failed to commence proper proceedings within five years.”

The case is United States v. Marolf, 00-55730.


Copyright 2002, Metropolitan News Company