United States of America v. 1. $1,379,879.09 SEIZED FROM BANK OF AMERICA, Account W71- 223433 in the name of…

This disposition is not appropriate for publication and is not precedent*
except as provided by Ninth Circuit Rule 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v.
1. $1,379,879.09 SEIZED FROM BANK
OF AMERICA, Account #W71- 223433 in
the name of European Federal Credit
Bank;
2. $327 544.09 SEIZED FROM BANK
OF AMERICA, Account #W71-224464 in
the name of European Federal Credit
Bank; and
3. 923,000 IN UKRANIAN BONDS
PLUS INTEREST,
Defendants.
_________________________________
LIQUIDATORS OF EUROPEAN
FEDERAL CREDIT BANK ("EUROFED
BANK LTD."), appointed by the High
Court of Antigua,
Claimant - Appellee.
No. 08-16935
D.C. No. CV 05-00946-CRB
MEMORANDUM *
FILED
MAR 19 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted March 9, 2010
San Francisco, California
Before: WALLACE, GRABER, and McKEOWN, Circuit Judges.
The United States government appeals the district court’s award of attorney
fees to Liquidators, who are persons appointed by the High Court of Antigua as
liquidators of a bank named European Federal Credit Bank (Eurofed Bank Limited
(In Liquidation)). "We review the factual determinations underlying an award of
attorney[] fees for clear error and the legal premises a district court uses to
determine an award de novo." Ferland v. Conrad Credit Corp., 244 F.3d 1145,
1147-48 (9th Cir. 2001) (per curiam) (citation omitted). For the following reasons,
we vacate the award and remand with instructions.
1. The district court did not err in holding that Liquidators’ success in the
civil forfeiture action was not a hollow or de minimis victory. The action was
dismissed with prejudice, after the government conceded that the action was
untimely from its inception and should never have been filed at all. The fact that
the government could achieve the same result through the separate means of
criminal forfeiture did not lessen Liquidators’ burden in successfully defending

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We reject, as unsupported by the record, Liquidators’ assertion that the1
government waived this argument.
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against this civil forfeiture procedure. See 28 U.S.C. § 2465(b)(1) ("Except as
provided in paragraph (2), 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 the claimant[.]" (emphasis added)).
2. The district court abused its discretion when it reviewed the billing
records in camera and denied the government the opportunity to raise specific
objections to the billing records. Liquidators assert that some portions of the1
billing records are privileged, but there is no reason why Liquidators cannot submit
redacted versions of the billing records for review by the government. See MGIC
Indem. Corp. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986) ("No reason appears
why the timesheets should not have been made available to MGIC and MGIC
given the opportunity to challenge them. We remand for the sole purpose of a
hearing in which MGIC may challenge the reasonableness of the fees awarded.
The court may withhold from MGIC any information it finds protected by the
lawyer-client privilege."). Our own in camera review suggests that the bulk of
these records are garden-variety, unprivileged billing records.

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3. Because we vacate the award for further proceedings, we do not reach the
government’s argument that the district court’s explanation was insufficient.
In conclusion, we vacate the fee award and remand for further proceedings.
On remand, the government must have access to the billing records underlying the
fee request, including the specific descriptions of services rendered; the records
should be redacted only to the extent absolutely necessary to protect information
covered by the attorney-client privilege or the work-product doctrine. The
government then must have an opportunity to object to the fee request. The district
court must justify its fee award, if any, with a sufficient explanation. See generally
Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) (holding that a district court must
"provide a concise but clear explanation of its reasons for the fee award").
VACATED and REMANDED with instructions. The parties shall bear
their own costs on appeal.

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