United States v. Gary H. Marolf, in Re Application for Return of Seized Property 1981 Mango Motor Sailboat Named "Asmara,"

Dissenting:

I dissent because, it seems to me that taking a proper view of the case as a whole, the government’s position was substantially justified. See Comm’r v. Jean, 496 U.S. 154, 161-62 , 110 S.Ct. 2316, 2320 , *1165 110 L.Ed.2d 134 (1990); United States v. Rubin, 97 F.3d 878 , 375 (9th Cir.1996). That clearly appears if we start from the beginning.

It can hardly be contested that the seizure of the Asmara was justified. Once that was done, the government had five years to commence a forfeiture action. See 19 U.S.C. § 1621 . It did not do so. For his part, Marolf did nothing until he filed a motion for return of the Asmara after the five years had passed. See Fed. R.Crim.P. 41(e). The government then attempted to defend that motion by asserting the right to forfeiture, which it could do if the statute of limitations did not stop it from doing so. It did have a decent (substantially justified) argument that it was not barred from making that assertion. At least some jurists would say so. See Kadonsky v. United States, 216 F.3d 499, 503-06 (5th Cir.2000), cert. denied, 531 U.S. 1176 , 121 S.Ct. 1151 , 148 L.Ed.2d 1013 (2001); United States v. Dusenbery, 201 F.3d 763, 767-68…

Opinion by Judge FISHER; Dissent by Judge FERNANDEZ

OPINION

The Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412 (d)(1), provides for an award of fees to a prevailing party in a suit against the United States unless the government’s position was substantially justified. We hold that the scope of the underlying action that the court is to review in assessing substantial justification extends only as far as the prevailing party’s challenge itself. Thus, where, as here, the prevailing party challenges only the government’s procedural defects, we determine only whether the government’s procedural errors, and not its position on the merits, were substantially justified. As applied here, we conclude that the government was not justified in forfeiting Ma-rolfs property without providing notice. Second, consistent with our precedents and the purpose of the EAJA, 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. Accordingly, we reverse the district court’s decision denying an award of attorney fees to Marolf.

*1160 BACKGROUND AND PROCEDURAL HISTORY

On, July 12,…

277 F.3d 1156 (9th Cir. 2002) UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE v. GARY H. MAROLF, IN RE APPLICATION FOR RETURN OF SEIZED PROPERTY 1981 MANGO MOTOR SAILBOAT NAMED "ASMARA," DEFENDANT-APPELLANT No. 00-55730 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted October 17, 2001 Filed January 17, 2002 [Copyrighted Material Omitted][Copyrighted Material Omitted] Shawn R. Perez, Dana Point, California, for the defendant-appellant. Elana Artson and Steven R. Welk, Assistant United States Attorneys, Los Angeles, California, for the plaintiff-appellee. Appeal from the United States District Court Central District of California Alicemarie H. Stotler, District Judge, Presiding D.C. No. CV-96-01185-AHS-02 Before: James R. Browning, Ferdinand F. Fernandez and Raymond C. Fisher, Circuit Judges. Opinion by Judge Fisher; Dissent by Judge FERNANDEZ OPINION FISHER, Circuit Judge: 1 The Equal Access to Justice Act (EAJA), 28 U.S.C. §§ 2412 (d)(1), provides for an award of fees to a prevailing party in a suit against the United States unless the government's position was substantially justified. We hold that the scope of the underlying action that the court…