United States of America v. $28,000.00 in U.s. Currency

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
ROBERT JOSEPH MOSER,
Claimant-Appellant,
v.
$28,000.00 IN U.S. CURRENCY,
Defendant.
No. 13-55266
D.C. No.
3:10-cv-02378-
LAB-KSC
OPINION
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted
March 2, 2015—Pasadena, California
Filed October 6, 2015
Before: Stephen Reinhardt, N. Randy Smith,
and Andrew D. Hurwitz, Circuit Judges.
Opinion by Judge Hurwitz;
Concurrence by Judge Reinhardt

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2 UNITED STATES V. MOSER
SUMMARY*
Attorney’s Fees / Civil Forfeiture
The panel vacated the district court’s order awarding
attorney’s fees under the Civil Asset Forfeiture Reform Act
of 2000 (“CAFRA”) to a claimant who prevailed against
the federal government in a civil asset forfeiture action, and
remanded for recalculation of the award.
The lodestar method, which calculates an attorney’s fee
award by multiplying the market billing rate by the hours
reasonably expended, applies to CAFRA awards even when
there is a contingency agreement.
The panel rejected the claimant’s argument that, by
itself, the government’s failure to challenge the evidence
before the district court mandated an award of the total
amount requested in the attorney’s fee motion. The panel
further held that the government, through its inaction in the
district court, waived any right on appeal to present new
evidence to challenge the district court’s factual findings of
reasonableness, nor could the government challenge the
absence of an evidentiary hearing in the district court.
Applying these principles to claimant’s fee application,
the panel held that the district court erred in several
respects when it reduced the amount of claimant’s fee
request. First, the district court failed to afford claimant’s
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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UNITED STATES V. MOSER 3
attorney’s hourly rate a presumption of reasonableness.
Second, the district court erred in ignoring the hourly rates
discussed in three declarations from forfeiture experts.
Third, the district court’s analogy to indigent criminal
representation conflicted with CAFRA’s purposes of
facilitating adequate legal representation for forfeiture
claimants. Fourth, the district court erred in finding that
claimant’s claimed hourly fee should be lowered because
much of the work could have been delegated to associates
with lower billing rates at a large law firm. Finally, the
district court erred by relying on an award almost nine
years old in determining the prevailing market hourly rate.
The panel held that the district court erred in reducing
the hours claimed by claimant’s attorney because the
district court’s stated reasons for eliminating claimed hours
did not correspond to the amount of time deducted. The
panel also held that the district court erred by reducing the
lodestar because of the contingency fee.
Judge Reinhardt concurred in the opinion, but wrote
separately to emphasize that the district court’s role in
reviewing unopposed fee requests is a modest one.
COUNSEL
Devin J. Burstein (argued), Warren & Burstein, San Diego,
California; Richard M. Barnett; San Diego, California, for
Claimant-Appellant.
Laura E. Duffy, United States Attorney, Bruce R. Castetter
and Bruce C. Smith (argued), Assistant United States
Attorneys, San Diego, California, for Plaintiff-Appellee.
Benjamin D. Steinberg (argued) and Mahesha P.

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4 UNITED STATES V. MOSER
Subbaraman, Robins, Kaplan, Miller & Ciresi, L.L.P.,
Minneapolis, Minnesota, for Amicus Curiae Americans for
Forfeiture Reform.
OPINION
HURWITZ, Circuit Judge:
Robert Moser prevailed against the federal government
in a civil asset forfeiture action and became entitled to an
award of attorney’s fees under the Civil Asset Forfeiture
Reform Act of 2000 (“CAFRA”), 28 U.S.C.
§ 2465(b)(1)(A). The district court’s fee award was
significantly less than Moser requested, and he now
appeals. Because the district court committed several
errors in considering the unopposed fee request, we vacate
and remand for recalculation of the award.
I.
During a search of Moser’s house for marijuana
cultivation, federal agents seized $28,000 in currency. The
United States later instituted proceedings to forfeit the
money. Moser retained Richard Barnett, an experienced
forfeiture specialist, to oppose the government’s claim and
assert Moser’s ownership of the funds. The fee agreement
provided that Barnett would be paid the greater of one third
of recovery or any statutory fee award.
Asserting that government agents interrogated Moser
without a Miranda1 warning and conducted warrantless
1 Miranda v. Arizona, 384 U.S. 436 (1966).

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UNITED STATES V. MOSER 5
searches of his home, Barnett filed a motion to suppress all
evidence relating to the seized currency. As the district
court noted, although these constitutional violations were
uncontested, “[t]he government, for reasons that are not
clear, obstinately opposed the claim” and “aggressive[ly]”
litigated the case. The district court granted Moser’s
motion to suppress and his motion for summary judgment,
and ordered the money returned to him.
As the prevailing party, Moser then moved for
attorney’s fees under CAFRA. See United States v.
$186,416.00 in U.S. Currency, 642 F.3d 753, 754 (9th Cir.
2011). He requested fees of $50,775, based on Barnett’s
hourly rate of $500 and 101.55 hours of work. The motion
was supported by declarations from attorneys
knowledgeable about legal fees in the San Diego market,
including several specializing in forfeiture litigation.
Barnett provided a detailed accounting of his hours and
eliminated 25.95 hours from the fee request because he
considered the work “fruitless or unnecessary.” The
government’s opposition to the motion rested entirely on
the argument that any award should be capped by the
contingency fee in the retention agreement.
The district court rejected the government’s argument,
correctly noting that the lodestar method, which calculates
a fee award by multiplying the market billing rate by the
hours reasonably expended, see Blanchard v. Bergeron,
489 U.S. 87, 94 (1989), applies to CAFRA awards even
when there is a contingency agreement, see $186,416.00 in
U.S. Currency, 642 F.3d at 754–55. But the court awarded
Moser only $14,000 in fees. Disregarding three
declarations from forfeiture specialists, the district court
incorrectly stated that Moser’s declarations did not
accurately reflect the forfeiture market rate because they
discussed only litigation fees generally. The court then

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6 UNITED STATES V. MOSER
purported to apply its own knowledge of the market, and,
based on its characterization of Barnett’s work as
essentially criminal in nature and a nine-year-old fee award
mentioned in one of the declarations, determined that $300
was a reasonable hourly rate.
Turning to the hours expended, the court found that
Barnett gave the government’s aggressive and often
specious litigation arguments “more respect than [they]
deserved,” and that such an experienced attorney should
have expended fewer hours opposing the government’s
arguments. Although the court specifically identified as
questionable only 6.75 hours of work on a reply brief, it
reduced the hours for which fees would be awarded from
101.55 to 60. Finally, the court found that the resulting
lodestar calculation of $18,000 should be reduced by an
additional $4,000 because of the contingent fee agreement.
II.
We have jurisdiction over Moser’s appeal of the fee
award under 28 U.S.C. § 1291. In general, we review a
district court’s determination of whether a requested fee is
reasonable for abuse of discretion. See Childress v. Darby
Lumber, Inc., 357 F.3d 1000, 1011 (9th Cir. 2004).
“[F]actual findings are reviewed for clear error.” Native
Vill. of Quinhagak v. United States, 307 F.3d 1075, 1079
(9th Cir. 2002). “The legal analysis underlying a fee
decision is reviewed de novo.” Childress, 357 F.3d at
1011.
III.
Moser’s opening brief contends that the government’s
unsuccessful argument below that any CAFRA award was
capped by the contingency fee in the retention agreement
“waived any challenge to the amounts [he] proposed.” Put

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UNITED STATES V. MOSER 7
differently, Moser argues that the district court was
required to award the entire requested fee because the
government did not dispute either proffered component of
the lodestar analysis—the hourly rate or hours expended.
The evidentiary burdens governing fee motions are well
established. The applicant has an initial burden of
production, under which it must “produce satisfactory
evidence” establishing the reasonableness of the requested
fee. See Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984);
Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 980 (9th
Cir. 2008). This evidence must include proof of market
rates in the relevant community (often in the form of
affidavits from practitioners), see Camacho, 523 F.3d at
980, and detailed documentation of the hours worked, see
Gates v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1992).
If the applicant discharges its legal obligation as to the
burden of production, the court then proceeds to a factual
determination as to whether the requested fee is reasonable.
See Grove v. Wells Fargo Fin. Cal., Inc., 606 F.3d 577,
582–83 (9th Cir. 2010); Straw v. Bowen, 866 F.2d 1167,
1169 (9th Cir. 1989). In the usual case, that factual
determination will involve considering both the
proponent’s evidence and evidence submitted by the fee
opponent “challenging the accuracy and reasonableness of
the facts asserted by the prevailing party.” Camacho,
523 F.3d at 980 (alteration and internal quotation marks
omitted).
In this case, the government presented no evidence in
opposition to the fee application. It is clear, however, that
the applicant’s initial duty of production is not excused by
lack of opposition. See Foley v. City of Lowell, 948 F.2d
10, 19–21 (1st Cir. 1991); Bode v. United States, 919 F.2d
1044, 1048 (5th Cir. 1990) (per curiam) (explaining that an
uncontested fee application failed to meet its initial

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8 UNITED STATES V. MOSER
burden). A district court does not “improperly shoulder
defendant[’s] burden of challenging the fee petition” in
finding that the applicant has failed to meet its initial
burden of production. Zabkowicz v. W. Bend Co., 789 F.2d
540, 548 n.8 (7th Cir. 1986); see Bode, 919 F.2d at 1048
(“The United States was not required to put on any
evidence challenging the reasonableness of the hours
expended because the Taxpayers had failed to meet their
initial burden of establishing the actual number of attorney
hours.”). We thus reject Moser’s argument that, by itself,
the government’s failure to challenge the evidence below
mandated an award of the total amount requested in his fee
motion.
But, the government’s failure to submit evidence is not
without serious consequences. After a court determines
that a fee application is supported with the requisite
evidence of hours worked and the market legal rate, it must
then determine the reasonableness of the fee sought.
“When . . . a fee target has failed to offer either
countervailing evidence or persuasive argumentation in
support of its position, we do not think it is the court’s job
either to do the target’s homework or to take heroic
measures aimed at salvaging the target from the predictable
consequences of self-indulgent lassitude.” Foley, 948 F.2d
at 21. Thus, if the fee target does not dispute the market
rate or hours reasonably expended, and poses no other valid
legal reason for denying the fee request, the district court’s
inquiry should end after it determines whether the
applicant’s fee request is facially reasonable. See United
Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403,
407 (9th Cir. 1990) (holding that the district court must
“presume . . . reasonable” an uncontested market fee rate
supported by sufficient evidence); Toussaint v. McCarthy,
826 F.2d 901, 904 (9th Cir. 1987) (awarding the full
requested fee because the plaintiffs appropriately supported

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UNITED STATES V. MOSER 9
a fee application and the defendant did not contest the
claimed rates or hours); see also Powell v. CIR, 891 F.2d
1167, 1173–74 (5th Cir. 1990) (explaining that an
uncontested rate supported by evidence is prima facie
reasonable). The fee target has, through its inaction in the
district court, waived any right on appeal to present new
evidence to challenge the district court’s factual finding of
reasonableness; nor can the target challenge the absence of
an evidentiary hearing in the district court. See Blum,
465 U.S. at 892 n.5.
IV.
Applying these principles, we turn to the district court’s
analysis of Moser’s fee application. We start from the
premise that although a “district court has a great deal of
discretion in determining the reasonableness of the fee,”
Camacho, 523 F.3d at 978 (internal quotation marks
omitted); Gates, 987 F.2d at 1398, it must set forth a
“concise but clear explanation of its reasons” to allow for
appellate review, Chaudhry v. City of Los Angeles,
751 F.3d 1096, 1110 (9th Cir.) (internal quotation marks
omitted), cert. denied, 135 S. Ct. 295 (2014).

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10 UNITED STATES V. MOSER
A.
The first component of the lodestar analysis is the
prevailing market rate for the work done. “[T]he
established standard when determining a reasonable hourly
rate is the rate prevailing in the community for similar work
performed by attorneys of comparable skill, experience,
and reputation.” Camacho, 523 F.3d at 979 (internal
quotation marks omitted); see Gonzalez v. City of
Maywood, 729 F.3d 1196, 1205–06 (9th Cir. 2013). Moser
submitted five declarations from practicing attorneys in
support of his $500 per hour fee request. Because the
government did not contest the market fee rate supported
by these declarations, the district court was required to
presume that rate reasonable. See United Steelworkers of
Am., 896 F.2d at 407.
The district court nonetheless reduced Moser’s fee
request, concluding that the declarations covered “all types
of litigation work,” and were “therefore not a particularly
accurate representation of what the going rate is in this
market for [civil forfeiture] work.” Characterizing the
forfeiture proceedings as more criminal than civil in nature,
the court noted that criminal defense fees are often lower
than complex civil litigation fees. The court also held that
the suggested hourly rate was too high because much of the
work would have been delegated to lower-billing associates
had Barnett not been a solo practitioner. The court then
applied “its knowledge of the legal market as well as the
evidence” to determine that $300 per hour was reasonable
rate, relying in part on a fee award that one of Moser’s
declarants received nine years earlier.
The district court erred in several respects. It failed to
afford Moser’s rate a presumption of reasonableness.
Moreover, contrary to the district court’s statement, the

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UNITED STATES V. MOSER 11
submitted declarations, three of which came from forfeiture
specialists with knowledge of the San Diego market,
specifically discussed the going rate in the relevant market.
See Camacho, 523 F.3d at 980 (noting that “affidavits of
the plaintiffs’ attorneys and other attorneys regarding
prevailing fees in the community, and rate determinations
in other cases are satisfactory evidence of the prevailing
market rate” (alterations omitted)).
This initial error permeated the remainder of the district
court’s analysis. In finding that forfeiture work resembled
criminal defense litigation, and relying on the Criminal
Justice Act (“CJA”) rate of $125 per hour, the court
entirely ignored the hourly rates discussed in the three
declarations from forfeiture experts. Moreover, we have
rejected the notion that civil forfeiture proceedings are
simply criminal prosecutions in a different guise. See
United States v. One 1985 Mercedes, 917 F.2d 415, 419
(9th Cir. 1990) (“Civil forfeiture actions constitute a hybrid
procedure of mixed civil and criminal law elements.”).
There is a critical distinction between CJA fees and
those received under CAFRA. No matter the result, CJA
counsel is always paid, but an attorney undertaking a
representation in a forfeiture action under a contingency
arrangement will receive no fee at all if his client does not
prevail. A forfeiture specialist’s customary rates must
recognize economic reality, and perforce will be higher
than if payment were guaranteed. The district court’s
analogy to indigent criminal representation thus conflicts
with CAFRA’s purpose of facilitating adequate legal
representation for forfeiture claimants. See H.R. Rep. No.
106-192, at 11 (1999) (“[CAFRA] is designed to make
federal civil forfeiture procedures fair to property owners
and to give owners innocent of any wrongdoing the means

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12 UNITED STATES V. MOSER
to recover their property and make themselves whole after
wrongful government seizures.”).
The district court also found that Barnett’s claimed
hourly fee should be lowered because much of the work
could have been delegated to associates with lower billing
rates at a large law firm. But again, this analysis fails to
take into account the forfeiture declarations. Two of the
declarants specifically stated that they charge $600–650 per
hour in solo practice. Nor does the record establish that
forfeiture actions are customarily defended by large firms
or what rates those firms charge.
The district court also erred by relying on an award
almost nine years old in determining the prevailing market
hourly rate. We have repeatedly held that the court must
base its determination on the current market rate. See
Camacho, 523 F.3d at 981 (“[A] district court abuses its
discretion to the extent it relies on cases decided years
before the attorneys actually rendered their services.”);
Bell, 341 F.3d at 861 (“We hold . . . that it was an abuse of
discretion in this case to apply market rates in effect more
than two years before the work was performed.”); cf.
Gonzalez, 729 F.3d at 1206 (“[N]o Ninth Circuit case law
supports the district court’s apparent position that it could
determine the hourly rates . . . without relying on evidence
of prevailing market rates.”).
B.
The district court also reduced the hours claimed by
over forty percent. Again, the law governing this analysis
is well established. “The fee applicant bears the burden of
documenting the appropriate hours expended in the
litigation and must submit evidence in support of those
hours worked.” Gates, 987 F.2d at 1397. “The district
court . . . should exclude from this initial fee calculation

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UNITED STATES V. MOSER 13
hours that were not reasonably expended.” Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983) (internal quotation
marks omitted). Hours not reasonably expended are those
that are “excessive, redundant, or otherwise unnecessary.”
Id.
The district court can reduce the hours in an attorney’s
fee application through one of two methods. “First, the
court may conduct an hour-by-hour analysis of the fee
request, and exclude those hours for which it would be
unreasonable to compensate the prevailing party.”
Gonzalez, 729 F.3d at 1203 (internal quotation marks
omitted). Second, “when faced with a massive fee
application the district court has the authority to make
across-the-board percentage cuts either in the number of
hours claimed or in the final lodestar figure as a practical
means of trimming the fat from a fee application.” Gates,
987 F.2d at 1399 (internal quotation marks omitted).
The district court purported to use the hour-by-hour
approach, eliminating 41.55 hours because it believed that
Barnett spent more time on the case than was needed. But
the court only identified 6.75 hours that it found
objectionable. A court errs when its “stated reasons for
deducting these figures do not correspond to the amount of
time deducted.” McGrath, 67 F.3d at 254; see D’Emanuele
v. Montgomery Ward & Co., 904 F.2d 1379, 1386 (9th Cir.
1990) (“Even if we subtract all of the hours mentioned by
the district court . . . we are left with an hourly figure
significantly higher than the number of hours calculated by
the court.”), overruled on other grounds by City of
Burlington v. Dague, 505 U.S. 557 (1992). “[D]istrict

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14 UNITED STATES V. MOSER
courts must show their work when calculating attorney’s
fees.” Padgett v. Loventhal, 706 F.3d 1205, 1208 (9th Cir.
2013).2
C.
The district court also erred by reducing the lodestar
because of the contingency fee. There is “a strong
presumption that the lodestar represents the reasonable
fee.” City of Burlington, 505 U.S. at 562 (internal
quotation marks omitted); see also Harris v. Marhoefer,
24 F.3d 16, 18 (9th Cir. 1994) (“Only in rare instances
should the lodestar figure be adjusted on the basis of other
considerations.”). It is error to reduce fees based on factors
that are subsumed in the lodestar calculation. See
Cunningham v. Cnty. of Los Angeles, 879 F.2d 481, 487
(9th Cir. 1988). We have specifically held that the
existence of a contingent fee is such a subsumed factor.
2 The district court also reduced the hours claimed because “Barnett
gave the government’s litigation work more respect than it deserved.”
Although we “accord considerable deference” to district court
determinations regarding redundant or excessive hours, see Van
Gerwen v. Guar. Mut. Life Co., 214 F.3d 1041, 1047 (9th Cir. 2000),
the explanation here not only fails to identify the government litigation
work that the district court felt was over-respected, but conflicts in
general with CAFRA’s purpose of leveling the playing field. When the
government takes unsupported positions, an applicant is not
unreasonable in responding forcefully. There is no indication that
anything but Barnett’s professional judgment guided his approach to
the litigation. A CAFRA claimant should not be concerned that his
attorney is advocating less than zealously out of fear that the district
court will take a different view of what the case required and reduce
any fee award accordingly.

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UNITED STATES V. MOSER 15
See Morales v. City of San Rafael, 96 F.3d 359, 364 n.9
(9th Cir. 1996), as amended, 108 F.3d 981 (1997).
Although a contingent fee agreement may be relevant in
determining the reasonable hourly rate or hours expended,
see $186,416.00 in U.S. Currency, 642 F.3d at 755, a court
“may not rely on a contingency agreement to increase or
decrease” the lodestar, Van Gerwen v. Guar. Mut. Life Co.,
214 F.3d 1041, 1048 (9th Cir. 2000).
V.
For the reasons stated above, we VACATE the fee
award and REMAND for a recalculation consistent with
this opinion. The parties will bear their respective costs on
appeal.
REINHARDT, Circuit Judge, concurring:
I concur in the opinion, but write separately to
emphasize that under our holding the district court’s role in
reviewing unopposed fee requests is a modest one. We
conclude that the district court cannot “do the target's
homework” and must presume that a fee request supported
by sufficient evidence is reasonable, but we do not discuss
in detail when this presumption would be rebutted. To
understand the appropriate bounds for the district court’s
review, we must examine the purpose of investing the court
with that authority in the first place. When the fee-target
implicitly agrees that the applicant’s evidence establishes
that his fees were reasonable by not contesting the issue,
the district court should act not to save the target from
itself, but only to protect the integrity of the courts. See
Hall v. City of Los Angeles, 697 F.3d 1059, 1073 (9th Cir.
2012) (In a case in which a party might otherwise have
forfeited an argument, a court may still intervene to

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16 UNITED STATES V. MOSER
“safeguard the fairness, integrity and reputation of our
courts.”); Colson v. Hilton Hotels Corp., 59 F.R.D. 324,
328 (N.D. Ill. 1972) (“In ruling on attorney’s fees the Court
ought to consider . . . the effect of the allowance on the
public interest and the reputation of the courts.”). Below I
give a few examples of where a court might reject even an
unopposed fee request because approving it damages the
court itself. While this is not a comprehensive list, it
illustrates that these rejections will be relatively rare.
The district court’s review of an unopposed fee request
will be least necessary or desirable when the target is a
sophisticated private entity. In a suit between Google and
Apple, for example, it is highly unlikely that a court would
find it necessary to intervene where the target corporation
does not itself offer an objection. Still, a district court may
reject an unopposed fee request that is patently
unreasonable or unconscionable―regardless of the identity
of the parties―if participating in an unreasonably arbitrary
award would adversely affect the reputation of the court.
If, on the other hand, the fee target is pro se or otherwise
unsophisticated, the court’s intervention is clearly more
justified. In those cases, the court may sometimes be
required to serve as a “guarantor of fairness.” Foley v. City
of Lowell, Mass., 948 F.2d 10, 20 (1st Cir. 1991) (internal
quotation omitted). In such cases, the court still gives the
applicant significantly more leeway than in a contested fee
motion, because it intervenes in uncontested fee requests in
order to prevent evident unfairness or to preserve the
integrity of the judicial system.
The district court may also exercise its limited authority
to ensure fairness in cases like this one, in which the fee
will be paid out of the public fisc. This is not because
governmental entities are unsophisticated litigants―
generally quite the opposite is true―but because the court

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UNITED STATES V. MOSER 17
has a separate interest in preserving society’s confidence
that public funding of litigation is implemented wisely.
Indeed, Foley, which we lean on heavily in the opinion of
the court, explicitly recognized that the courts should be
somewhat more active in reviewing unopposed fee requests
drawing on government funds than in other cases. Id. at 19.
Although there is a substantial argument that our prior
cases require the award of unopposed fee requests that are
supported by sufficient evidence, I believe the narrow
authority we reserve to protect the integrity of the courts
and the public fisc is appropriate, if exercised reasonably.
In the case before us, while the district court clearly
exceeded that authority in a number of respects, two errors
are particularly egregious and require discussion beyond
that provided in the court’s opinion.
First, the district court reduced the rate the claimant
could recover because his attorney Richard Barnett, as a
solo practitioner, could not delegate simpler tasks to lower
billing employees, as would a large corporate firm.
Beyond ignoring that two of the declarants were solo
practitioners who swore that they charged more than
Barnett, the district court’s analysis is in error, because a
solo practitioner’s hourly rates will generally already
reflect the fact that he does both high and low level work.
As a rule then, his rates will be lower than those of a senior
partner at a large firm. Without evidence that a particular
case is an exception to this rule, reducing a solo
practitioner’s award because he could not delegate work to
lower billing employees makes little sense and unfairly
penalizes solo practitioners and, potentially, even members
of small firms.
Second, the district court refused to accept Barnett’s
hours as reasonable in part because he gave the

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18 UNITED STATES V. MOSER
government’s arguments “more respect than [they]
deserved.” Moser should not be held responsible for the
government’s “obstinate” refusal to settle the case, nor for
his attorney’s unwillingness to run the risk that the court
would give the government’s arguments the same kind of
“respect” to which the government evidently thought they
were entitled. One does not need to be an ardent legal
realist to understand that frequently an argument that one
judge thinks is a clear loser, another may believe to be
dispositive in the other direction. Properly advocating for
one’s client means being prepared to encounter either kind
of judge.

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