Claim Against The United States Cannot Be Assigned - Fee Award Fails Too

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[co-author: Victoria Boyko]

In U.S. v. Kim, 2015 DJDAR 9233, the United States Court of Appeals for the Ninth Circuit decided a complex case under the Civil Asset Forfeiture Reform Act (CAFRA).

An attorney successfully represented a family in defeating the federal government’s attempts to forfeit property seized in the course of a criminal investigation.  The attorney retainer agreement provided for assignment of any attorney fee award to the lawyer.  The family received attorney fee awards under CAFRA, which mandated that the United States pay the prevailing plaintiff’s reasonable attorney fees incurred in the proceedings.  The court ordered the attorney fees be paid directly to the lawyer, noting that the family “was allowed” to assign the fee awards.

The Ninth Circuit vacated the award, noting that under the Act, a claim against the United States may not be assigned to a third party unless certain technical requirements are met.  The Ninth Circuit concluded that the retainer agreement did not satisfy the Act’s requirements.  Because the attorney fees were awarded under CAFRA, they were payable to the claimant and not the claimant’s attorney.

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