                                                                                      FILED
                               NOT FOR PUBLICATION                                     JUN 05 2013

                                                                                  MOLLY C. DWYER, CLERK
                       UNITED STATES COURT OF APPEALS                               U .S. C O U R T OF APPE ALS




                               FOR THE NINTH CIRCUIT



 UNITED STATES OF AMERICA,                              No. 11-56118

                Plaintiff - Appellee,                   D.C. No. 2:10-cv-04921-PA-AJW

   v.
                                                        MEMORANDUM *
 318 CARTONS OF LOVE ROSES AND
 MUSTIC VASES,

                Defendant,

 and

 KASSIR CO., INC.,

                Claimant - Appellant.

                       Appeal from the United States District Court
                          for the Central District of California
                        Percy Anderson, District Judge, Presiding

                          Argued and Submitted April 12, 2013
                                  Pasadena, California

Before: REINHARDT and MURGUIA, Circuit Judges, and LASNIK, District




         *
              This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
         **
               The Honorable Robert S. Lasnik, United States District Judge for the Western
District of Washington, sitting by designation.
Judge.**

      Kassir Co., Inc. appeals the district court’s denial of its motion for attorney’s

fees under the Civil Asset Forfeiture Reform Act (“CAFRA”). On appeal, Kassir

contends that the district court erred in finding that it did not substantially prevail.

We have jurisdiction pursuant to 28 U.S.C. § 1291 and review de novo, V.S. ex rel.

A.O. v. Los Gatos-saratoga Joint Union High Sch. Dist., 484 F.3d 1230, 1232-33

(9th Cir. 2007). We reverse.

      The Civil Asset Forfeiture Reform Act (“CAFRA”) does not define who

constitutes a prevailing party, but the Supreme Court has held that to be a

prevailing party under a fee awarding statute, a litigant must obtain some court

ordered relief on the merits that materially alters the legal relationship of the

parties. Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human

Res., 532 U.S. 598, 603-04 (2001). This court has developed a three-part test to

determine when a settlement agreement confers prevailing party status on a party.

Saint John’s Organic Farm v. Gem Cnty. Mosquito Abatement Dist., 574 F.3d

1054, 1059 (9th Cir. 2009). We consider “(1) judicial enforcement; (2) material

alteration of the legal relationship between the parties; and (3) actual relief on the

merits of [the party’s] claim.” Id.

      First, there is no doubt that the settlement agreement between Kassir and the
government is judicially enforceable because the district court approved of and

retained jurisdiction over the settlement. See id.

      Second, we find that the settlement agreement produced a material change in

the relationship between the parties. Kassir’s obligation to pay a portion of the

storage costs and export the merchandise does not diminish the fact that the

settlement agreement allowed Kassir to require the government to release the

property. See Jankey v. Poop Deck, 537 F.3d 1122, 1130 (9th Cir. 2008) (“[A]

settlement agreement meaningfully alters the legal relationship between parties if it

allows one party to require the other party to do something it otherwise would not

be required to do.”) (internal quotation marks omitted).

      Third, Kassir received actual relief that vindicated at least one of its primary

goals in pursuing this litigation. This court recently explained that “[t]he threshold

for sufficient relief to confer prevailing party status is not high.” Saint John’s

Organic Farm, 574 F.3d at 1059. A party need only succeed on a significant issue

in the litigation which resulted in a benefit the party sought in pursuing the

litigation. Tex. State Teachers Ass’n v. Garland Indep. School Dist., 489 U.S. 782,

791-92 (1989). Although Kassir did not achieve the precise relief it sought, Kassir

achieved some relief on the merits because it was able to recover the property. At

its core, this litigation was about the government keeping and destroying the

alleged drug paraphernalia and on that issue Kassir prevailed.
REVERSED.
                                                                             FILED
United States of America v. Kassir Co., No. 11-56118                          JUN 05 2013

                                                                          MOLLY C. DWYER, CLERK
MURGUIA, Circuit Judge, dissenting:                                        U .S. C O U R T OF APPE ALS




      I disagree with the standard of review applied by the majority. While the

Court reviews purely legal questions de novo, V.S. ex rel. A. O. v. Los

Gatos-Saratoga Joint Union High Sch. Dist., 484 F.3d 1230, 1232–33 (9th Cir.

2007), “whether the party has substantially prevailed [] is a factual determination

for the district court to resolve,” Church of Scientology of Cal. v. U.S. Postal Serv.,

700 F.2d 486, 489 (9th Cir. 1983); see also Idaho Conservation League, Inc., v.

Russell, 946 F.2d 717, 719 (9th Cir. 1991) (In Clean Water Act context, “[w]hether

a party has prevailed or substantially prevailed is a factual question reviewed for

clear error.”). The district court’s conclusion that Kassir was not a prevailing party

was not clearly erroneous.

      Even if de novo review was appropriate, I would still affirm because Kassir

is not a prevailing party. While the “threshold for sufficient relief to confer

prevailing party status is not high,” Kassir still must show that it “succeeded on

any significant issue in litigation which achieved some of the benefit the parties

sought in bringing suit.” Saint John's Organic Farm v. Gem Cnty. Mosquito

Abatement Dist., 574 F.3d 1054, 1059 (9th Cir. 2009). Prior to this litigation,

Kassir had clean title to the merchandise and sought to sell it in the United States.


                                     Page 1 of 2
The United States initiated this forfeiture action to destroy the merchandise, which

it alleges is drug paraphernalia. The parties settled and Kassir agreed to relinquish

a portion of its previously unencumbered property rights in the merchandise and

export the merchandise to a noncontiguous country.

      I would hold that the settlement is a victory for the United States, as it

obtained an agreement from Kassir to export the merchandise, thus achieving a

goal that it sought—keeping alleged drug paraphernalia out of the country. See

Jankey v. Poop Deck, 537 F.3d 1122, 1130 (9th Cir. 2008) (holding that a plaintiff

who sued a night club for violation of the Americans with Disabilities Act was a

prevailing party even though he dismissed the suit and settled after the night club

agreed to build an accessible restroom in an adjacent restaurant). That the United

States sought the more drastic remedy of forfeiture, but ultimately obtained a lesser

remedy does not mean the United States failed to prevail. Id.; Saint John's

Organic Farm, 574 F. 3d at 1059. Kassir cut its losses by settling, but it did not

transform those losses into victories.

      Accordingly, I respectfully dissent.




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