Forcing the Government to Pay the Attorney Fees

The attorneys at Sammis Law Firm take forfeiture cases up on appeal and win. For instance, in United States v. $8,500.00 in United States Currency, 2025 U.S. App. LEXIS 21249, *1, 2025 LX 392989, 2025 WL 2406318 (11th Cir. 2025), Jason Sammis and Leslie Sammis, along with Dan Alban, an attorney at the Institute for Justice, took a case up on appeal to the 11th Circuit after the judge failed to enter an order for attorney fees. We prevailed in the appeal and the government paid the attorney fees shortly thereafter.

In that case, the Court found there was no “no per se Circuit rule” that a “voluntary dismissal with prejudice” by a plaintiff alone either lacks or creates the necessary judicial imprimatur to establish a claimant “substantially prevailed.” Instead, they found our client substantially prevailed in the proceeding because:

“[T]here was a material alteration in the legal relationship between the parties and a sufficient judicial imprimatur on that change.

First, the government sought to materially alter the parties’ legal relationship through a forfeiture action by permanently confiscating the Currency from Moore. However, the government, after a year of litigation, decided to abandon the forfeiture action and returned the Currency to Moore after the district court dismissed the action. See CRST, 578 U.S. at 431 HN9 (“[W]henever the plaintiff’s challenge is rebuffed, irrespective of the precise reason for the court’s decision,” then “[t]he defendant has . . . fulfilled its primary objective . . . .”).

Second, the facts here present the necessary judicial imprimatur of that change. The district court explicitly approved the dismissal by granting the government’s motion under Federal Rule of Civil Procedure 41(a)(2) as opposed to permitting a voluntary dismissal without a court order under Rule 41(a)(1)(A). Compare Mathews, 480 F.3d at 1276 (finding defendant was the prevailing party when plaintiff’s claim was voluntarily dismissed with a court order under Rule 41(a)(2)), with Affordable Aerial Photography, 108 F.4th at 1364 (finding defendant was not the prevailing party when the plaintiff’s claim was voluntarily dismissed without a court order under Rule 41(a)(1)).

Additionally, the dismissal with prejudice prevents the government from re-litigating this same claim in the future. Affordable Aerial Photography, 108 F.4th at 1364 n.6 (in determining whether a party prevailed, distinguishing cases where the government was prevented from re-litigating the same action in the future from those where it could refile the action); see also $70,670.00 in U.S. Currency, 929 F.3d at 1303 (finding a lack of judicial imprimatur where the order of dismissal at issue posed “no legal bar precluding the government from refiling the same forfeiture action in the future”). Thus, the district court’s actions here place the requisite judicial imprimatur on the change in the parties’ legal relationship. Buckhannon, 532 U.S. at 605.

Accordingly, Moore substantially prevailed here and is entitled to attorney’s fees under 28 U.S.C. § 2465(b)(1)(A).

United States v. $8,500.00 in United States Currency, 2025 U.S. App. LEXIS 21249, *11-12, 2025 LX 392989, 2025 WL 2406318 (11th Cir. 2025).

CAFRA states that, “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 . . . reasonable attorney fees and other litigation costs reasonably incurred by the claimant.” 28 U.S.C. § 2465(b)(1)(A) (emphasis added).

When the Claimant litigates the federal civil asset forfeiture case, they often keep track of their billing with the expectation that when they prevail, they can file the appropriate motions to force the Government to pay the Claimant’s reasonable attorney fees and other litigation costs reasonably incurred.

The courts make a distinction between CAFRA’s “substantially prevails” requirement when it comes to a dismissal with prejudice verses a dismissal without prejudice. The Claimant becomes eligible for mandatory attorney fees when:

• he obtains an enforceable judgment on the merits; and
• the resolution effected a “material alteration to the relationships of the parties.”

In Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Hum. Res. (“Buckhannon v. W. Va.”), 532 U.S. 598, 602-05, 121 S. Ct. 1835, 149 L. Ed. 2d 855 (2001), the Supreme Court did not construe the phrase “substantially prevails” as used in CAFRA but, rather, the phrase “prevailing party” as used in different fee-shifting statutes.

The claimant substantially prevails in this forfeiture proceeding when they get the property back which is achieved because the district court dismissed the action as against that property, and the government subsequently returned the monies to him. In CRST Van Expedited, Inc. v. EEOC, 578 U.S. 419, 431, 136 S. Ct. 1642, 194 L. Ed. 2d 707 (2016), the court looked to whether defendant has “fulfilled its primary objective” regardless of “precise reason for the court’s decision” in determining if it prevailed.

The appellate courts generally review a denial of attorney fees and costs for abuse of discretion. If the abuse is attributed to an error in statutory construction, the appellate courts review that question of law de novo.

The statutory language in CAFRA provides an explicit statutory exception to the American rule generally requiring litigants in a judicial proceeding to bear their own attorney fees and costs. See Buckhannon v. W. Va., 532 U.S. at 602 (recognizing operation of American rule “absent explicit statutory authority.”

The CAFRA exception mandates an award of attorney fees and costs because it uses the phrase: “the United States shall be liable.” But that mandatory attorney fee provision applies to claimant who “substantially prevails” in a civil forfeiture proceeding under federal law. 28 U.S.C § 2465(b)(1).

What does it mean for a clamant to “substantially prevail” in a forfeiture proceeding under CAFRA?

In United States v. Khan, 497 F.3d 204 (2d Cir. 2007). In dictum, we there suggested that “our understanding” of “substantially prevails” should be informed by the Supreme Court’s construction of the phrase “prevailing party” in Buckhannon v. W. Va., 532 U.S. at 604.

In United States v. Davis, 648 F.3d 84, 97-98 (2d Cir. 2011), the court concluded that a CAFRA claimant who secured summary judgment on forfeiture claims brought under one statute had not substantially prevailed because government ultimately secured forfeiture of seized assets under different statute at trial. When the courts use the phrases “prevailing party” and “substantially prevails,” it require a litigant to “prevail” to some degree.

For forfeiture claimants, their objective is to have the court deny the government’s request for a forfeiture judgment and order restoration of seized property to the claimant. Thus, the claimant prevails when a “court[] decision” conclusively rebuffs the government’s forfeiture request and orders restoration of the res to the claimant. Id.

This article was last updated on Wednesday, December 31, 2025.