Umpire Watch and Equal Justice: "Close Calls" Go to the Government

United States v. Jewell, No. 08-2909 (8th Cir. Nov. 18, 2009) (here) involves an application for attorney's fees after a prosecutor frivolously seized a pension plan in a civil forfeiture proceeding.  Thus, U.S. v. Jewell has nothing to do with constitutional torts.  And yet it has everything to do with constitutional torts:

Barry J. Jewell sought attorneys’ fees pursuant to the Civil Asset Forfeiture Reform Act (“CAFRA”), codified in part at 28 U.S.C. § 2465(b), after he prevailed in an ancillary proceeding pursuant to 21 U.S.C. § 853(n). The § 853(n) proceeding was ancillary to a criminal case against Jewell’s former law partner, Bobby Keith Moser. In Moser’s criminal case, the government had seized Jewell’s pension and retirement account funds, and in the § 853(n) proceeding, the district court concluded that the funds were beyond the reach of the government’s forfeiture efforts. Ultimately, even though Jewell prevailed in the ancillary proceeding, the district court denied his fee request, finding that the ancillary proceeding did not qualify as “any civil proceeding to forfeit property under any provision of Federal law.” 28 U.S.C.§ 2465(b)(1).
We find many of Jewell’s arguments regarding the characterization of § 853(n) ancillary proceedings persuasive. Ultimately, however, we are called upon in this case to interpret the breadth of 28 U.S.C. § 2465(b), a federal statute waiving sovereign immunity and authorizing the payment of attorneys’ fees in limited situations. The arguments for and against permitting a prevailing § 853(n) petitioner to receive attorneys’ fees from the government are too closely balanced for us to conclude that Congress’s waiver of sovereign immunity clearly and unequivocally applies in this situation.
Even when the law is on your side, it's not.  The sovereign wins.  One might wonder if the American Revolution ever actually occurred; and if federal judges even read historical documents like the Declaration of Independence.

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