*1 CONCLUSION Hayden’s bat- judgment on
We vacate retaliation, conspiracy, and vicarious
tery, claims, direct their remand
liability and we upon recognize that state court. We court, may the state court
remand to state at least preemption of
consider Garmon claims, particularly cer- Hayden’s
some alleged retaliatory. For
tain conduct as however, need decide purposes,
our we im- to federal court was
only that removal judgment granted. The
providently vacated, is therefore
district court remand the court is instructed to to state court. to RE- with instructions
VACATED .
MAND. America, STATES of
UNITED
Plaintiff-Appellant, CURRENCY,
$12,248 U.S.
Defendant-Appellee, Johnson, Claimant-Appellee.
Jack
No. 90-15912. Appeals, Court of
United States
Ninth Circuit. April 1991.
Argued and Submitted Dec. 1991.
Decided Amended Feb.
As *2 Atty., Freccero, U.S. Asst. P.
Stephen Cal, plaintiff-appellant. Francisco, San Cal., Francisco, Panzer, San G. William claimant-appellee. California filed a criminal State TANG, and D.W. FARRIS Before. against complaint Gibbs Judges. NELSON, Circuit pleaded September possession of cocaine on Novem- guilty ORDER *3 remaining 1986. The counts ber the petition of granting the ordered It is against him dismissed. Johnson re- were opinion. of for modification States United January suspended a on ceived sentence and amend- opinion amended The attached placed probation. on and was ordered filed. are ed dissent charges against were also subse- Gibbs returned to quently dismissed. Gibbs her Attorney’s Fees England and Johnson has not seen native appellee that the ordered It is further July 1986. her since June or of request for at- unopposed Jack Johnson’s currency over to turned the was granted. See appeal is torney’s fees on Drug Agency Enforcement United States in 2412(d). are awarded Fees Sec. U.S.C. 12,' 1985, September day the after the on $7,290.26. of the amount In a dated search. declaration November 15, 1985, Johnson a valid owner- claimed OPINION ship currency. interest in the defendant TANG, Judge: Circuit Attorney’s office first January in matter in opened their file the decide whether appeal we In investigation no done oth- 1986. There was probable having established of conduct John- er than to one interview currency was “sub- seized to forfeit cause interview, At that informed son.- Johnson Access Equal the stantially justified” under seized were government that the funds (EAJA) Act in to Justice any drug transactions not related to but of forfeiture prosecution and institution of Home Main- partial proceeds were investigating in proceedings and Program Improvement Loan tenance and We source. currency had an innocent from (HMILP) loan he obtained had court did the district conclude in 1978to renovate City of 1977or Oakland finding discretion abuse its his home. “substan- position was not government’s did the district Neither tially justified.” why explanation for he offered Johnson awarding and its discretion abuse court funds at of the loan still had the bulk grant- the fees determining the amount of explained He government raid. time of the Beckstrom, ed. We affirm. contractor, he and Robert proposal March a bid had submitted require- building to code bring AND PROCEDURAL FACTUAL $18,- project was The bid for the BACKGROUND ments. the subcontractor Johnson was to be 10, 1986, to an pursuant September On do all work and and project would Police obtained tip, Oakland informant’s in the bid. described furnish all materials where home tó search Johnson’s warrant $12,500 HMILP loan received a Johnson resided. Terrie Gibbs April 1984. He no interest rate with September on conducted the search officers $7,500.00 grant from the also received arrived, officers police 1985. When Development for the Community office of The fe- living room. was in the project. rehabilitation Gibbs, running out male, found Terrie was at friends worked no Many of Johnson’s During course of door. back Beck- project. Contractor charge on the pounds search, over five the officers found finisher were cocaine, and the cement grams of seven strom marijuana, 1.2 paid for their only people who were scales, two L.S.D., marijuana and five tabs doc- remodeling. Johnson in the services paraphernalia, three packaging cocaine done the work photographs rifle, umented with shotguns, a and the handguns, four presented the premises. He also on the $12,248 currency. in U.S. defendant rights property. his pur- assertion evidence receipts to court however, denied, Summary judgment materials, equipment, rental of chase finisher, concern- issues of fact cement were by the there performed because work Beckstrom was paid. fees inspection ing the reasons $1,500 $1,300 be- paid approximately Johnson suffered and whether $5,540.27. receipts totaled other delay. work. cause corroborating testi- presented Beckstrom seizure, the initial years after the Four arrange- done mony as to the work September to trial on proceeded work. doing the rehabilitation ments for that the defendant court found completed property The work independent inno- currency fact had an *4 Sep- months before approximately six illegally. used and had not been source cent raid. tember also found that The court expenses taking account the After into instituting delayed in unreasonably had $12,700to approximately had paid, Johnson had proceedings and prosecuting and funds; which loan $12,900 left from process rights. due violated Johnson’s funds of the amount approximated the charge of Attorney in U.S. The Assistant in his home cash kept this Johnson seized. why present any reason case failed this though he had a even not bank it and did file forfei- fifteen months it had taken credit card.1 and checking account only speculate He could proceedings. ture Johnson’s disbelieved might have been because the reason investigation no other story, but conducted until preferred wait generally the office 12, 1986, December claim. On into his charges were resolved criminal state gaining months after approximately fifteen ¡proceedings. instituting forfeiture before money, the of Johnson’s possession however, uncertain, that this He was proceed- forfeiture finally instituted ment government’s at- factor involved. ings. Attorney’s the U.S. noted that torney also later, on March years Approximately two divi- forfeiture not have an asset office did Attorney’s filed a 1, 1988, office the U.S. filed, that it and this case was when sion on summary judgment partial motion be- delayed to be for cases was common justify its probable cause to the issue prose- Again, load. of the work cause currency under of the initial seizure say definitely that this cutor could this mo- granted 881. The court U.S.C. § in case. factor parties, further of the consent tion. With fees, to recover re- then moved were for determination proceedings pre- interest as costs, prejudgment and magistrate. ferred to to 28 U.S.C. Section vailing party pursuant 21, 1989, year and a almost a July On Equal Access to Justice 2412(d)(1)(A),the moved for sum- that, after half fee submitted (EAJA). application Act mary judgment based Panzer, list- attorney, William Johnson’s was de- delay. This motion unreasonable hours and total performed ed the tasks magistrate August nied on first cumulatively. On the took the tasks determining test applied the four factor applica- fee of the support declaration to a due delay which amount unreasonable tasks tion, the various described Panzer cases, violation, as set forfeiture process approximately performed, which totalled $8,850, 461 U.S. forth United States supplemental seventy-five hours. On 143, (1983). 76 L.Ed.2d declaration, additional Panzer described had that Johnson magistrate found approximately took which performed timely tasks lengthy and demonstrated after paraphernalia in the furniture explanation of the found an also offered 1. Johnson months, he had drugs and that storing and ownership it for of much of several and source drug drugs He He house. out. paraphernalia found to throw Gibbs instructed right storing for a friend been police that he had had occurred raid claimed claimed that after he and had of the contraband discovery. in which much furniture been their Gibbs made Gibbs had he He found. stated underlying record of both the granted the look to the The court eighty hours. more at issue and the conduct totali- attorney fees awarded motion and ty present circumstances before and dur- the rate of $102.22.2 hours at estimated ing litigation.” Id. (1) appeals the decision (2) amount the actual fees award case, In Johnson’s awarded.3- argues grant it won a that because summary judgment on the
partial issue OF REVIEW STANDARD the initial probable justify seizure cause necessarily currency, of the it was substan deter court’s review We tially justified pursuing its forfeiture justification of substantial of lack mination probable claim as it did. Because cause fee for an award the amount forfeiture, trigger govern sufficient to Bowen, 825 Barry v. of discretion. abuse argues substantially justi that it was ment 1324, 1330-31 comp litigation pursuing fied in to its not take issue We do letion.4 DISCUSSION determination satis *5 1. Substantial statutory requirement probable Justification. fied the pursue under 21 cause to forfeiture U.S.C. provides: EAJA circumstances, agree 881. Under the we § provided specifically Except otherwise as reasonably government could have that the pre- statute, shall award to a court drug that the was believed related. than the United party other vailing finds unless the court fees ... States Probable, seizure, for initial cause of the United States position that the however, automatically equate not does substantially justified_ was justification for the with substantial conducting poor government’s action in 2412(d)(1)(A). position “A 28 U.S.C. § claim and for its investigation in of Johnson’s 'justified if it is 'substantially justified’ pro main,’ is, delay pursuing in if has a unreasonable in that it or the substance ” forfeiture cessing litigation of the claim. in fact.’ law and basis both ‘reasonable case, Van, of this we 873 Under the circumstances Ford v. One United States 1984 Cir.1989) government’s was 1281, (9th (quoting agree that the F.2d 1282 purposes 552, 565, substantially justified for the Underwood, not 487 U.S. Pierce v. Specifically, hold that the we 490 of EAJA. 101 L.Ed.2d 108 S.Ct. position was not substan government government’s the (1988)). is on the The burden government vio the tially justified because justification. Barry v. prove substantial due Fifth Amendment evaluating lated the claimant’s 1330. “In 825 F.2d at Bowen him of his rights by depriving prop process position to government’s determine the n period of time.5 erty for an unreasonable substantially justified, we it was whether that determined hourly upward where district court adjusted EAJA the rate 2. The Court probable government cause. statutory cap pursuant Con- had established to the $75 from the Pricing court held that Urban 914 F.2d at Index for Consumers. sumer substantially justified because ment was cap was the increase from 3. The amount of posi- government that its initial demonstrated challenged appeal. precedent estab- Our not nothing substantially justified and oc- was tion adjustment proper. was Ramon- this lishes that Sepulveda during require trial to prior curred to or (9th I.N.S., F.2d 1464 v. 863 position. Id. Nei- government its abandon an unreasonable cases involved ther of these prosecuting the forfeiture bringing and in government United v. One relies on States 4. Therefore, government’s re- complaint. (6th Corvette, 914 F.2d 809 1985 Chevrolet misplaced. liance is Cars, Cir.1990) Used and United States v.B & M Cir.1988) (4th inap- B Mis & argues even if that posite ac 5.' The dissent dismissed because due Fifth Amendment defendant’s prior on the 860 F.2d at violated the to the trial merits. tion substantially Corvette, nevertheless process rights, was the Sixth it One Chevrolet 123. In attorneys’ un- purposes of fees justified district court abused its Circuit held that the however, We, simply see cannot attorney's awarding under the fees der the EAJA. discretion unreasonable. See per not se has enunciated Supreme Court $47,980 Currency, v. in Canadian to determine whether States test a four factor Cir.1986) process at 1088-89 due has violated instituting forfei reasonable delays (delay it of fourteen months length of time $8,850, factors). However, when proceedings. United of other light ture 2005, 2012, 76 555, 564, explanation, 103 S.Ct. lack of coupled 461 U.S. with the exam (1983). must The court tips favor. L.Ed.2d factor Johnson’s for delay, the reason length of the ine claim, timely assertion of delay, the Delay Reason ii. Here, court con the district prejudice. had it violated asserts cluded that (1) it rights because process explanation due a reasonable presented
Johnson’s proceedings only forfeiture argues it failed to institute delay. (2) reason; no for thirteen months month after Johnson until one waited rights;6 timely asserted grams had 1.4 possession of guilty pleaded due (3) suffered brought by Johnson had proceedings of cocaine Therefore, the delay. prosecutor to the testi of California. state govern court concluded preference to make it was his fied that litigation was position in ment’s com a forfeiture determination justified. substantially after the criminal be filed plaint should However, he could not resolved. Delay Length of i. factor influ testify that this has component Furthermore, of this case *6 delay prosecutor The the him. enced de- Overall, government the parts. why there was any two not state reason could of the the time years four between com layed filing long delay the such a ulti- the trial time when trial, only and the government forfeiture At the plaint. right to the mately established Johnson’s delay. for its possible presented reasons unacceptable. United This funds. is government establishes that The record bring duty Attorneys have a to peri time investigation no conducted expeditiously as a conclusion these cases to impermissible delayed. It is it od which story easily possible. Johnson’s as property simply to hold government and Beckstrom. by Gibbs both verifiable for an States’ citizens to United belonging kept meticulous Additionally, Johnson without reason period of time extended complete expenditures of his records conducting investigation an neither while with this verifia- Confronted photographs. claimant’s sto to attempting verify nor for evidence, unreasonable it ble its to meet bur government ry. The failed delay prose- to this to continue government delay. lengthy a reason for den to show salient particularly is This cution. factor refused, we also the district court Just as unable government was given that the here speculation as to what “engage in to refuse lengthy for its initial to state the reason ”. ... for were reasons the actual delay. that the finding of fact court’s The district any reason provide failed to delay is component of the initial The supported by the record delay is for its insti seizure and the time between factor also clearly This erroneous.7 is not In proceedings. the forfeiture tution favor. heavily in Johnson’s tips case, thirteen months was delay of Johnson asserted is not contested. 6. factor position. More- This dissent’s any in the coherence currency right in November 1985. it, his to if, over, a due would have as dissent n enough trigger a find- to not process violation is position becomes more un- government's “substantially government was not ing that the the district court’s we examine when tenable EAJA, the would justified” EAJA under summary denying motion for Johnson’s order statutory shell nothing but a hollow amount offering delay of the unreasonable judgment based on parties. prevailing little substance order, the district In that government. it denied motion because stated that court money and withholds it for amount an Prejudice iii. length bring time unreasonable without summary judg- denying the motion for In ing charges offering and without evidence found that ment, also the district court withholding justify its continued preju- to the as questions existed factual if any indication as to when ever without trial, the district test. At prong of the dice filed, charges be will suffers [claimant] from the prejudice thé held that court irreparable Lucky Messenger harm.” Mr. First, ways. in two aróse States, Service, Inc. v. result, the As a Gibbs. to interview failed held the case dismissed might have money fifteen months fil without story. Johnson’s had corroborated if Gibbs ing charges. charges, After it filed that could Second, lost a witness government continued to hold the story and bolstered his corroborated have finally years for three more until this case credibility at trial.' court’s went to trial. conclu prejudiced was not argues that Johnson clearly prejudice existed was not sion ultimately his case. he won because tips in erroneous. This also John factor must, argument government’s . son’s favor. First, the mere ab reasons. fail for two make does not sence iv. Conclusion justi substantially “none of stated interest in the Supreme Court Johnson claimed an cash fied. necessary or suffi factors seized on November 1985. these [four] de not file forfeiture action until finding unreasonable ment did cient condition Rather, guides Additionally,, elements are months later. .this lay. fifteen claimant and for an addition- interests of the matter did not come to trial balancing the the ba could years. al three the Government assess delay. has of fairness for this process requirement present a reason substantial sic due any particular case.” Unit it establish that it conducted in a Nor could satisfied been $8,850, at source of the defen- investigation 461 U.S. as ed States Thus, preju- possible currency.8 absence suffered dant at *7 Second, government’s unrea- not conclusive. dice as a result of the prejudice of is showing of delay. that a assuming arguendo sonable even left the necessary, had is Gibbs reasonable means government had States by the the United States time United story indepen- to the as to test Johnson’s longer no avail complaint and was its filed of the but innocent source dent The loss of for as a witness Johnson. able nothing. did chose to do preju exactly type of is the a trial witness only investigation, but de- conduct an not spoke in Supreme Court dice which factors, we con- Reviewing these layed. 569, 103 $8,850. at v. Id. correctly found an clude that the court at 2014. S.Ct. delay to warrant sufficient unreasonable finding government’s that the its that
Finally, we believe
“[w]henever
justified.
substantially
not
significant was
Government
seizes
abused its
court
dis-
govern-
mine whether the district
was
questions
existed
to what
of fact
as
delay.
assessing
faced with
When
cretion in
reason for
ment’s
Bowen,
order,
do no more
substantially
could
Kali v.
justified.
this
was not
delay.
noted,
posit possible
329,
for its
(9th
reasons
than
As
331
854 F.2d
government waited an additional
that
fact
strongly supports the district court’s deci-
record
present no reason
trial and then to
for
month
delay
months was substan-
of
sion. The
fifteen
delay
its
further establishes
for
tial;
years
was more
of three
further
justified.
substantially
position was not
ment’s
substantial;
not establish
could
delay;
timely asserted
reason for the
argues
"the
dissent
prejudice due
rights;
suffered
and Johnson
the fifteen-
in its
unreasonable
belief
not
delay.
to the
due
not
Johnson’s
did
violate
month
process
However,
rights."
is to deter-
our task
1520
n
(quoting
City
court
its discretion in
abused
“
1987). We need ‘some indication or ex
of the fee
John-
amount
awarded
planation of
court
how
district
arrived
attorney.
requires:
The EAJA
son’s
at
fees
the amount of
awarded’ ...
[how
fees
seeking
A
an award of
and
party
require
ever],
elaborately
do
an
we
not
shall,
thirty days
expenses
other
within
calculated,
reasoned,
order;
or worded
action,
judgment
in the
submit
final
explanation of how the court arrived
brief
an
fees and oth-
application
court
figures
at
do.”
its
will
Id.
party
that the
expenses
er
which shows
eligible
party and is
prevailing
is a
A
of the record indicates
review
subsection,
an award under this
receive
carefully
court
considered
that the district
sought,
including an
and the amount
explained
and
the basis
lodestar
any attorney
from
or
itemized statement
figure. The district court considered the
expert
appearing
representing
witness
or
required
time and labor
case.
It
stating
party
on
the actual
behalf
intimately
familiar with
expended and the rate at which fees
time
separate summary judgment
two
which
expenses
computed.
are
and other
prepared
motions were
with attendant
2412(d)(1)(B).
28 U.S.C. §
hearings
two-day
briefs and
and a
trial was
by
court
limited
district
briefs,
then held
its attendant
trial
awarding .
“reasonable” attor
statute
conferences,
pretrial
discovery. Only
U.S.C..2412(d)(2)(A).
ney’s
28
In de
fees.
examined the entire factual
after
court
attorney’s
termining
reasonable
fee
what a
history
procedural
of this case did the
apply
entails,
court must
the district
state,
awarding
magistrate
in the order
hybrid
adopted Hensley
v.
approach
Eck
accepts the
fees:
court
reasonable
“[t]he
424, 433,
erhart, 461
103 S.Ct.
U.S.
spent
estimate of 160 hours which Panzer
(1983). Cunningham
76 L.Ed.2d
the merits of
case.”
County
Angeles,
Los
in credit
court did
abuse
discretion
denied,
Cir.1988),
cert.
U.S.
ing Panzer's
hours.9
submitted
(1990).
1521 substantially justified was not coun- be- notes that Johnson’s The court also Panzer, repre- agreed government unreasonably sel, ... cause William de- basis.... pro prosecution on a bono of this layed sent Johnson case.. voluntary assist- his counsel's Without court also did not abuse its discre- ance, that Johnson court has doubt determining tion the amount of the fee private to afford unable would have been attorney. to be awarded Johnson’s assist- And without able counsel. AFFIRMED. Panzer, have lost would ance of Ah government. FARRIS, Judge, dissenting: Circuit attorney’s fees in this case tru- award of
ly
public policy
rationale
serves the
majority’s opinion
focuses on what it
EAJA.
government’s “poor investigation”
calls the
delay.”
and “unreasonable
Because I be-
string of cases
government cites a
government adequately
lieve the
demon-
applications must be
that fee
hold
which
justification
strated a reasonable
for its
and which
by detailed records
supported
actions, "respectfully
I
dissent.
solely
rejected
applications
fee
based
have
However, this circuit has
on estimates.
Equal
Access to
Act
Justice
seeks
attorneys’
fee
“[bjasing the
held
punjsh
unreasonable
behavior
records de
part
on reconstructed
award
government’s.ability
impairing the
without
litigation files and
by
veloped
reference
effectively
efficiently
to
nation’s,
enforce the
discre
not an
records is
abuse
other
v. B M
laws. United States
&
Health and
v.
tion.” Bonnette
California
121, 124(4th Cir.1988).
Cars, 860 F.2d
Used
(9th
1465, 1473
704 F.2d
Agency,
Welfare
pass
part
must
four
Cir.1983).
Sweeny
Harkless v.
See also
1)
by
Supreme
test established
Court:
(5th
Dist.,
School
Ind.
2)
3)
delay;
delay;
reason for
length of
(“while
Cir.1979)
it is
far the better
defendant’s,
4)
right;
prej
assertion of
sheets,
keep
attorneys to
time
practice for
v.
udice to the defendant. United States
always
is not
essen
documentation
such
555, 564-65,
$8,850,
461 U.S.
S.Ct.
representation
especially where the
tial”
(1983).
2005, 2012,
standard delayed until resolution may have been long standard fact” in and law able basis against John underlying criminal at Id. Circuit. Ninth adopted by the make preferred he that He stated son. had a government The at 2550. 108 S.Ct. a forfeiture determination that the curren- to believe basis reasonable underly filed after be complaint should that forfei- narcotics cy related was resolved. had been proceedings criminal ing 21 U.S.C. under appropriate ture was signifi justifies action pending criminal A. government Punishing the 881(a)(6). § proceed the civil forfeiture delays in cant mistake, is worst, a making, reasonable at 2013; also 567, 103 at see at S.Ct. Id. ings. the EAJA. purpose not the $47,980 Canadian States United that majority The observed Cir.1986), (9th 1085, 1088-89 Currency, 804 instituting delay before 15-month ment’s Dev., denied, Invest. & BSP rt. ce significant proceedings forfeiture was States, 107 481 U.S. Ltd. v. United The fees. attorney’s awarding factor (observing (1987) 2469, L.Ed.2d 878 S.Ct. under justifiable was position may result conviction a criminal that quite reason- government, The EAJA. un proceedings forfeiture, rendering civil proceed- forfeiture not ably, did institute necessary). complet- it until defendant against the ings correctly notes majority Although the plead- The case. defendant criminal ed its poten- is potential witness loss of a that the on Novem- possession guilty to cocaine ed prove able Johnson was tially prejudicial, initiated government The ber source. innocent money had an that one month less than proceedings formal favor. in his court The ruled following occurred later. length of emphasis on majority’s Thé proceedings the criminal completion of misplaced. We is held was time month minimal, the two less than States, 581 F.2d in Ivers v. United noted $8,850. Id. delay held reasonable posses- Cir.1978), mere (9th , 2012-14. 565-69, at 108 S.Ct. U.S. at is not government currency by the sion . could reason- Further, can be any lost value because prejudicial delay did the 15-month ably. believe during interest addition restored rights. process due not violate Johnson’s cur- withheld time the for- upheld a $8,850, Supreme Court In argument that majority’s rency. delay, between 18-month with an feiture incon- finding lead to must proceed- and forfeiture of seizure the time can prior which our decisions with sistent at 2014-15. 569-70, 103 at ings. Id. proceed- en banc by an only be overturned attorney fee support delay fails to ing. award. delay was unreason- 15-month significant that it majority finds I would circumstances. able under precise- prob- failed detail established hold that the delay. The the forfeiture initiating exact reason ness the cause for able Attorney was substantially justified. See States United Assistant initiation of Cor- years after the Chevrolet three v. One asked waited vette, why proceedings the forfeiture institute months-to fifteen be fees should attorney’s award he gave what prosecutor proceedings. reversed. sug- I am not reason. was the assumed be allowed that the gesting ignorance when asked plead
all cases *10 However, particular delays. about practices circumstances, references the reason if was sufficient
the office It was.
sound.