                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 19 2010

                                                                       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. 08-16935

             Plaintiff - Appellant,              D.C. No. CV 05-00946-CRB

  v.
                                                 MEMORANDUM *
1. $1,379,879.09 SEIZED FROM BANK
OF AMERICA, Account #W71- 223433 in
the name of European Federal Credit
Bank;

2. $327 544.09 SEIZED FROM BANK
OF AMERICA, Account #W71-224464 in
the name of European Federal Credit
Bank; and

3. 923,000 IN UKRANIAN BONDS
PLUS INTEREST,

          Defendants.
_________________________________

LIQUIDATORS OF EUROPEAN
FEDERAL CREDIT BANK ("EUROFED
BANK LTD."), appointed by the High
Court of Antigua,

             Claimant - Appellee.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                    Appeal from the United States District Court
                      for the Northern District of California
                    Charles R. Breyer, District Judge, Presiding

                        Argued and Submitted March 9, 2010
                             San Francisco, California

Before: WALLACE, GRABER, and McKEOWN, Circuit Judges.

      The United States government appeals the district court’s award of attorney

fees to Liquidators, who are persons appointed by the High Court of Antigua as

liquidators of a bank named European Federal Credit Bank (Eurofed Bank Limited

(In Liquidation)). "We review the factual determinations underlying an award of

attorney[] fees for clear error and the legal premises a district court uses to

determine an award de novo." Ferland v. Conrad Credit Corp., 244 F.3d 1145,

1147-48 (9th Cir. 2001) (per curiam) (citation omitted). For the following reasons,

we vacate the award and remand with instructions.

      1. The district court did not err in holding that Liquidators’ success in the

civil forfeiture action was not a hollow or de minimis victory. The action was

dismissed with prejudice, after the government conceded that the action was

untimely from its inception and should never have been filed at all. The fact that

the government could achieve the same result through the separate means of

criminal forfeiture did not lessen Liquidators’ burden in successfully defending



                                            2
against this civil forfeiture procedure. See 28 U.S.C. § 2465(b)(1) ("Except as

provided in paragraph (2), in any civil proceeding to forfeit property under any

provision of Federal law in which the claimant substantially prevails, the United

States shall be liable for (A) reasonable attorney fees and other litigation costs

reasonably incurred by the claimant[.]" (emphasis added)).

      2. The district court abused its discretion when it reviewed the billing

records in camera and denied the government the opportunity to raise specific

objections to the billing records.1 Liquidators assert that some portions of the

billing records are privileged, but there is no reason why Liquidators cannot submit

redacted versions of the billing records for review by the government. See MGIC

Indem. Corp. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986) ("No reason appears

why the timesheets should not have been made available to MGIC and MGIC

given the opportunity to challenge them. We remand for the sole purpose of a

hearing in which MGIC may challenge the reasonableness of the fees awarded.

The court may withhold from MGIC any information it finds protected by the

lawyer-client privilege."). Our own in camera review suggests that the bulk of

these records are garden-variety, unprivileged billing records.



      1
      We reject, as unsupported by the record, Liquidators’ assertion that the
government waived this argument.

                                           3
      3. Because we vacate the award for further proceedings, we do not reach the

government’s argument that the district court’s explanation was insufficient.

      In conclusion, we vacate the fee award and remand for further proceedings.

On remand, the government must have access to the billing records underlying the

fee request, including the specific descriptions of services rendered; the records

should be redacted only to the extent absolutely necessary to protect information

covered by the attorney-client privilege or the work-product doctrine. The

government then must have an opportunity to object to the fee request. The district

court must justify its fee award, if any, with a sufficient explanation. See generally

Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) (holding that a district court must

"provide a concise but clear explanation of its reasons for the fee award").

      VACATED and REMANDED with instructions. The parties shall bear

their own costs on appeal.




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