United States v. Thomas Grossi, Sr.

FILED

NOT FOR PUBLICATION JUN 23 2015

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 13-15487

Plaintiff - Appellee, D.C. Nos. 4:04-cv-03055-DLJ 4:04-cr-40127-DLJ-4 v.

THOMAS GROSSI, Sr.; et al., MEMORANDUM*

Claimants - Appellants,

and

ALBERT B. DEL MASSO,

Claimant,

and

2638 MARKET STREET, OAKLAND, CALIFORNIA; et al.,

Defendants.

Appeal from the United States District Court for the Northern District of California D. Lowell Jensen, Senior District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Argued and Submitted May 15, 2015 San Francisco, California

Before: N.R. SMITH and OWENS, Circuit Judges, and COLLINS,** Chief District Judge.

Thomas Grossi and Lauretta Weimer appeal from the district court’s order

denying their motion for attorneys’ fees under the Civil Asset Forfeiture Reform

Act, 28 U.S.C. § 2465. We have jurisdiction under 28 U.S.C. § 1291, and we

review the district court’s…

*448 ORDER

The memorandum disposition filed on June 23, 2015 is amended and filed concurrently with this order. The petition for panel rehearing is DENIED, Judge Smith would grant the petition. No further petitions shall be entertained.

AMENDED MEMORANDUM *

Thomas Grossi and Lauretta Weimer appeal from the district court’s order denying their motion for attorneys’ fees under the Civil Asset Forfeiture Reform Act, 28 U.S.C. § 2465 . We have jurisdiction under 28 U.S.C. § 1291 , and we review the district court’s order for abuse of discretion. K.C. ex rel. Erica C. v. Torlakson, 762 F.3d 963, 966 (9th Cir.2014). We affirm in part, reverse in part, and remand. Because the parties are familiar with the facts, we do not recount them in detail here.

1. The government is correct that Weimer is not entitled to an award of attorneys’ fees because she did not “substantially prevail[]” under CAFRA. 28 U.S.C. § 2465 (b)(1). A claimant does not substantially prevail unless a court orders the government to afford that claimant some relief. See Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 605 , 121 S.Ct. 1835 , 149 L.Ed.2d 855 (2001); Synagogue v.…

concurring in part and dissenting in part:

I respectfully dissent to parts two and three of the majority’s Memorandum Dis *450 position. In this case, we examine the breadth of 28 U.S.C. § 2465 (b), a federal statute waiving the government’s sovereign immunity to require the government to pay attorney’s fees to opposing litigants in limited situations. I cannot agree with the broad construction of 28 U.S.C. § 2465 (b), erroneously concluding that it applies in this most unusual situation.

The Civil Asset Forfeiture Reform Act of 2000 (“CAFRA”) governs civil forfeitures to the United States. See 18 U.S.C. § 981 . CAFRA provides that any real property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a felony violation of the Controlled Substances Act is subject to forfeiture. 21 U.S.C. § 881 (a)(7). If a third party claims to be an “innocent owner” of the forfeited property, he may file a claim for return of his interest. 18 U.S.C, § 983(d); 21 U.S.C. § 853 (n)(2). The court then determines the third party’s alleged ownership interest in the forfeited property in a separate, ancillary proceeding. Fed.R.Crim.P. 32.2(c). CAFRA also…