United States v. Real Property Located At 2323 Charms Road

946 F.2d 437, 1991 WL 183139
CourtCourt of Appeals for the Sixth Circuit
DecidedSeptember 13, 1991
DocketNos. 90-1655, 90-2001
StatusPublished
Cited by10 cases

This text of 946 F.2d 437 (United States v. Real Property Located At 2323 Charms Road) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Real Property Located At 2323 Charms Road, 946 F.2d 437, 1991 WL 183139 (6th Cir. 1991).

Opinions

SUHRHEINRICH, Circuit Judge.

This is a consolidated appeal by the government from two orders of the district court in an unsuccessful civil forfeiture proceeding brought against a twin engine Beech aircraft owned by claimant David Gershon (“Gershon”).1 The first order awarded Gershon expenses and attorneys’ fees pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412.2 The second order awarded Gershon storage expenses incurred while the aircraft was in the possession of the government.3 For the reasons that follow, we reverse the [439]*439order of the district court awarding EAJA fees and vacate and remand the order awarding storage fees.

I.

On March 8, 1989, officers of the Michigan State Police Narcotic Enforcement Team (“MSP-NET”) seized, pursuant to a search warrant, over 500 grams of cocaine and a variety of drug paraphernalia, guns and currency from the residence of Duane Shuley Head (“Head”). Head was subsequently convicted on state felony drug charges. Two days later, the United States filed a verified complaint and affidavit against, inter alia, a twin engine Beech aircraft owned by Gershon, an alleged supplier of cocaine to Head. The proceeding against the aircraft was initiated pursuant to 21 U.S.C. § 881(a)(4), which allows for forfeiture of all conveyances, including aircraft, which are used, or are intended for use in any manner in the transportation, sale, receipt, possession or concealment of controlled substances.4 The complaint, filed under the Supplemental Rules for Certain Admiralty and Maritime Claims (“Supplemental Rules”),5 incorporated by reference an affidavit in support of the seizure warrant sworn by an officer of MSP— NET. On that same day, a magistrate approved a warrant upon an ex parte showing of probable cause under 21 U.S.C. § 881(b) and Fed.R.Crim.P. 41, authorizing the government to seize the aircraft.6 Ger-shon claimed ownership of the plane on March 22, 1989, and answered the government’s complaint on March 27, 1989.

Gershon moved for summary judgment on the grounds that the government’s complaint was deficient. The district court treated the motion as a motion to dismiss for failure to state a claim under Fed. R.Civ.P. 12(b)(6). Finding the original complaint to be inadequate in that it failed to set forth probable cause for forfeiture, the court allowed the government ten days in which to file an amended complaint. The government thereafter filed a first amended complaint for forfeiture, which is set forth in relevant part in the attached Appendix. Gershon moved for dismissal of the amended complaint; and on December 5, 1989, the district court dismissed the complaint with respect to the plane with prejudice and ordered its return to Ger-shon. See United States v. Certain Real Property at 2323 Charms Road, Milford Twp., 726 F.Supp. 164 (E.D.Mich.1989) (“Charms I”). The district court ruled that “there simply is not enough information set forth in the amended complaint to show that the government can demonstrate probable cause in a forfeiture trial.” Id. at 168.

Thereafter, Gershon filed a motion for attorneys’ fees pursuant to section 2412 of the EAJA, 28 U.S.C. § 2412, alleging that the dismissal of the complaint for insufficiency supported a finding that the government’s claim against the plane had not been substantially justified. See 28 U.S.C. [440]*440§ 2412(d)(1)(A) & (B). The district court agreed and granted claimant’s motion. See United States v. Certain Real Property at 2323 Charms Road, Milford, Twp., 728 F.Supp. 1326 (E.D.Mich. January 18, 1990) (“Charms II”). The district court also concluded that an upward departure from the $75.00 per hour cap of § 2412(d)(2)(A) was justified, and found an hourly rate of $125.00 to be reasonable compensation for Gershon’s attorney. Id. at 1329-30. Following submission of an itemized time record, the court ordered $12,500.00 in attorneys’ fees and $678.12 in expenses. In addition, the court granted Gershon’s motion to require the government to pay for expenses incurred for storage of the. aircraft while in the government’s possession during the pendency of the forfeiture litigation. See United States v. One 1977 Twin Engine Beech Aircraft, Registration Number N58EM, No. 89-70751 (E.D.Mich. June 28, 1990). This appeal followed.

II.

A.

The government raises two arguments in support of its contention that the district court erred in awarding claimant EAJA fees. The government asserts that its position was substantially justified because the complaint set forth a sufficient factual basis for forfeiture; and secondly, that on the basis of the complaint and affidavit, a magistrate found probable cause for the seizure of the airplane.

The EAJA provides in pertinent part that a court “shall award to a prevailing party other than the United States fees and other expenses” in any civil action brought by or against the United States, “unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). The government’s position under section 2412(d)(1)(A) is “substantially justified” if it is “ ‘justified in substance or in the main’ — that is, justified to a degree that could satisfy a reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 2550, 101 L.Ed.2d 490 (1988)). See also Willis v. Sullivan, 931 F.2d 390 (6th Cir.1991); United States v. One 1985 Chevrolet Corvette, 914 F.2d 804, 808 (6th Cir.1990). In Pierce, the Supreme Court further explained that “a position can be justified even though it is not correct, and we believe it can be substantially (i.e., for the most part) justified if a reasonable person could think it correct, that is, if it has a reasonable basis in law and fact.” Id., 487 U.S. at 566 n. 2,108 S.Ct. at 2550 n. 2; One 1985 Chevrolet Corvette, 914 F.2d at 808. The Court in Pierce also indicated that objective indicia, such as the stage in which the proceedings were, resolved and the legal merits of the government’s position may be relevant in assessing a district court’s determination of reasonableness. 487 U.S. at 568-70, 108 S.Ct. at 2551-53. A district court’s award under EAJA is reviewed for an abuse of discretion. One 1985 Chevrolet Corvette, 914 F.2d at 807 (citing Pierce, 487 U.S. at 563, 108 S.Ct. at 2549).

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