                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 15a0616n.06

                                           No. 14-6516                                   FILED
                                                                                   Sep 01, 2015
                                                                               DEBORAH S. HUNT, Clerk
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                                 )
                                                          )
       Plaintiff-Appellee,                                )
                                                          )
v.                                                        )
                                                          )
                                                                  ON APPEAL FROM THE
BRYAN COFFMAN,                                            )
                                                                  UNITED STATES DISTRICT
                                                          )
                                                                  COURT FOR THE EASTERN
       Defendant,                                         )
                                                                  DISTRICT OF KENTUCKY
                                                          )
CORRIE ANDERSON,                                          )
                                                          )
       Claimant-Appellant.                                )
                                                          )



BEFORE:        GUY, BATCHELDER, and MOORE, Circuit Judges

       ALICE M. BATCHELDER, Circuit Judge. In a consolidated case arising out of both

a criminal and a civil forfeiture action, Corrie Anderson successfully asserted a legal interest in a

condominium that had been forfeited against her brother-in-law, Bryan Coffman. Because she

“substantially prevail[ed]” in a “civil proceeding to forfeit property,” 28 U.S.C. § 2465(b)(1), we

hold that she is entitled to attorney’s fees under the Civil Asset Forfeiture Reform Act

(“CAFRA”). We therefore REVERSE the district court’s holding to the contrary and REMAND

for proceedings consistent with this opinion.
No. 14-6516, United States v. Anderson


                                                 I.

        During a five-year period beginning in 2004, Corrie Anderson’s brother-in-law, Bryan

Coffman (“Bryan”), and his business partner, Gary Milby, defrauded almost 600 investors out of

over thirty-six million dollars through a complex scheme involving shell companies and

securities in Kentucky oil wells. See United States v. Coffman, 574 F. App’x 541 (6th Cir.

2014). In December 2008, the federal government, while investigating Bryan, his wife Megan,

and Milby, filed a complaint for civil forfeiture in rem against multiple assets that the three

purportedly owned, including a condominium at 2032 Egret Crest Lane in Charleston, South

Carolina. [Civil Docket 5:08-cv-00410-2, R. 6] The government then petitioned for, and the

district court granted, a stay in the civil case pending any criminal action. [Civil Docket R. 5]

While the civil action was stayed, Anderson filed a notice of claim as to the condo. [Civil

Docket R. 34]

        In 2009, a federal grand jury indicted Bryan and Milby for mail fraud, wire fraud,

securities fraud, and money laundering, and also indicted Megan for money laundering.

[Criminal Docket 5:09-cr-00181-KKC R. 1] As part of the indictment, the government sought

through criminal forfeiture a total of approximately thirty-three million dollars, designating as

forfeitable various property, including the condo. [Id. at PAGE ID#: 22-25] In 2011, the federal

jury found Bryan and Milby guilty of almost all the counts against them. [Criminal Docket R.

349] The defendants then elected to have the district judge determine the forfeiture issue rather

than submit it to the jury. [Id.] The district court consolidated the civil forfeiture action and the

criminal forfeiture action because the actions “involve[d] the same property” and so

consolidation would be “an efficient means of resolving them both.” [Civil Docket R. 61 at 399]

The court mandated that all future filings be made in the criminal action. [Id. at 400]



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No. 14-6516, United States v. Anderson


        On April 19, 2012, the district court entered a joint-and-several judgment against Bryan

and Milby for thirty-three million dollars. [Criminal Docket R. 469] Pursuant to that judgment,

the district court adopted a preliminary order of forfeiture, designating as forfeitable against

Bryan various property, including the condo.          [Id.]   That same month, Corrie Anderson

petitioned the court “for an ancillary hearing pursuant to 21 U.S.C. § 853(n),” asserting an

interest in the condo. [Criminal Docket R. 463] In March 2013, the court held the ancillary

hearing, at which Anderson testified. [Criminal Docket R. 648] Then, in January 2014, the

district court amended the preliminary order of forfeiture to remove the condo, noting that

“Anderson has produced sufficient evidence that she was a bona fide purchaser of the condo.”

[Criminal Docket R. 645 at 10563] The district court then issued a final order of forfeiture

which did not include the condo. [Criminal Docket R. 646] Because the consolidated cases had

been proceeding on the criminal docket, the court entered a copy of the final order of forfeiture

on the civil docket as well, terminating the government’s civil forfeiture action. [Civil Docket R.

62]

        Citing 28 U.S.C. § 2465, Anderson filed a motion for $29,396.50 in attorney’s fees,

claiming that she had substantially prevailed in a civil proceeding to forfeit property. [Criminal

Docket R. 650] The district court denied Anderson’s motion, holding that it could not “find that

Congress clearly and unequivocally waived sovereign immunity to permit an award of attorney’s

fees against the government.” [Criminal Docket R. 674 at 11357] Anderson timely appealed.

                                                II.

        28 U.S.C. § 2465(b)(1), CAFRA’s fee-shifting provision, provides that “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 reasonable attorney fees and other



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No. 14-6516, United States v. Anderson


litigation costs reasonably incurred by the claimant.” The issue before us is whether Anderson’s

situation is one for which this statute allows an award of attorney’s fees. To answer that

question, we must interpret the statute. “We review questions of statutory interpretation de

novo.” United States v. Parrett, 530 F.3d 422, 429 (6th Cir. 2008). “The statutory-interpretation

analysis begins by examining the language of the statute itself to determine if its meaning is

plain.” Id. (internal quotation marks omitted).

        The government urges us to view this case through the lens of the “sovereign immunity

canon,” which states that Congress can waive the United States’ sovereign immunity “only by an

unequivocal expression in statutory text,” United States v. Droganes, 728 F.3d 580, 589 (6th Cir.

2013); we resort to this canon only if there is ambiguity in the statute, Richlin Sec. Serv. Co. v.

Chertoff, 553 U.S. 571, 590 (2008). This is so because the requirement of “an unmistakable

statutory expression of congressional intent to waive the government’s immunity” is a “canon of

interpretation.” F.A.A. v. Cooper, 132 S. Ct. 1441, 1448 (2012). These canons “are resorted to

as guides only where there is an apparent conflict between laws or some other ambiguity.”

United States v. Kumar, 750 F.3d 563, 569 (6th Cir. 2014) (internal citation omitted). Thus,

“[o]ur first step in interpreting a statute is to determine whether the language at issue has a plain

and unambiguous meaning with regard to the particular dispute in the case.” Robinson v. Shell

Oil Co., 519 U.S. 337, 340 (1997). If the statute is unambiguous “and the statutory scheme is

coherent and consistent,” “ [o]ur inquiry must cease.” Id (internal quotation marks omitted).

Only if it is ambiguous would we would follow the sovereign immunity canon and “take the

interpretation most favorable to the Government.” Cooper, 132 S. Ct. at 1448.




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No. 14-6516, United States v. Anderson


                                                        III.

        Here, with regard to the dispute in this case, the statutory language is clear. At the very

least, the language of CAFRA’s fee-shifting provision clearly covers attorney fees incurred in the

civil forfeiture action.1      See United States v. Certain Real Property, Located at 317 Nick

Fitchard Road, 579 F.3d 1315, 1320 (11th Cir. 2009); see also United States v. Minh Huynh, 334

F. App’x 636, 638 (5th Cir. 2009) (noting that CAFRA’s fee-shifting provision applies “to civil

proceedings to forfeit property, that is, civil forfeiture actions initiated by the Government”),

(internal quotation marks omitted). Here, the government initiated a civil forfeiture action

against the condo. The final order of forfeiture did not include the condo. Thus, as an intuitive

matter, Anderson “substantially prevail[ed],” see United States v. Craig, 694 F.3d 509, 512 (3d

Cir. 2012) (suggesting that “a judgment on the merits” or “any relief specific to the forfeiture

action” qualified as “substantially prevail[ing]” (alteration in original)), in a “civil proceeding to

forfeit property.”

        Of course, given the complicated procedural posture of this case because the actions were

consolidated, the result is not that simple. Consolidation of cases “is permitted as a matter of

convenience and economy in administration, but does not merge the suits into a single cause.”

Johnson v. Manhattan Ry. Co., 289 U.S. 479, 496–97 (1933); see also Beil v. Lakewood Eng’g &

Mfg. Co., 15 F.3d 546, 551 (6th Cir. 1994) (“This court has held that consolidated cases remain

separate actions.”). As a technical matter, because of the district court’s order, all of Anderson’s

attorney’s work was performed on the docket for the criminal forfeiture action and under the


1
 Both of the federal appellate courts to have considered this fee-shifting provision in similar contexts have focused
on the ancillary proceeding as the relevant potential “civil proceeding to forfeit property.” See United States v.
Moser, 586 F.3d 1089 (8th Cir. 2009); United States v. Nolasco, 354 F. App’x 676 (3d Cir. 2009). Both cases,
however, dealt solely with criminal forfeiture actions and thus did not tackle the situation we now face in which a
criminal forfeiture action and a civil forfeiture action work in tandem. Because we do not find it necessary to the
disposition of this appeal, we decline to address whether attorney’s fees would be appropriate for work done during
an ancillary proceeding associated with a solely criminal forfeiture action.

                                                        -5-
No. 14-6516, United States v. Anderson


criminal forfeiture provisions of the code. But that is not dispositive because the Supreme Court

allows attorney’s fees to be awarded for work “‘useful and of a type ordinarily necessary’ to

secure the final result obtained from the litigation.” Pennsylvania v. Del. Valley Citizens’

Council for Clean Air, 478 U.S. 546, 561 (1986) (quoting Webb v. Bd. of Ed. of Dyer Cnty.,

471 U.S. 234, 243 (1985)). In both the civil action and the criminal action, Anderson’s desired

final result was the removal of the condo from the order of forfeiture. This similarity between

the civil and the criminal actions is important: in cases involving the appropriateness of

attorney’s fees in related proceedings we have found significant a similarity in the underlying

facts, the procedural history, and the plaintiffs. See Binta B. v. Gordon, 710 F.3d 608, 630 (6th

Cir. 2013). Here, the property was the same, the judge was the same, the relief sought was the

same, and the United States was the plaintiff in both proceedings. Because the district court

consolidated the actions and mandated that all future filings be made in the criminal action,

Anderson had no choice but to pursue her desired result in the criminal action. This work,

however, was useful and necessary to secure this result in both the civil action—which the

government never sought to terminate—and the criminal action. And Anderson did indeed

achieve the result in both cases, as the condo was omitted from the final order of forfeiture in

both actions.     Because both cases were part of the same litigation—Anderson’s attempted

vindication of her interest in the condo—and the work done to vindicate her interest achieved the

final result in this litigation, she is entitled to attorney’s fees.

        “[T]he stated purpose of CAFRA is to make federal civil forfeiture procedures fair to

property owners and to give owners innocent of any wrongdoing the means to recover their

property and make themselves whole after wrongful government seizures.” 317 Nick Fitchard

Road, 579 F.3d at 1322 (internal quotation marks omitted). Anderson is exactly the type of



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No. 14-6516, United States v. Anderson


person CAFRA is meant to protect: a third party found to be a bona fide purchaser of property

that was forfeited in proceedings against someone else. Although it would be a very different

question if Anderson had intervened in a forfeiture stemming solely from the criminal forfeiture

provisions of the code—for instance, if the government had sought to dismiss the civil forfeiture

action—that is not our case. In this case, Anderson successfully defended her interest in the

condo, culminating in the removal of the condo from the final order of forfeiture that resolved

both the criminal and the civil actions. Because she substantially prevailed in a civil proceeding

to forfeit property, she is entitled to attorney’s fees under CAFRA.

                                                IV.

        In her brief, Anderson argues that she should recover the amount of fees she sought in her

petition for attorney’s fees because “it is a reasonable amount and the government did not

challenge it.” [Anderson Br. 20]         Because the district court found she could not recover

attorney’s fees under the statute, however, it did not rule on whether the amount claimed by

Anderson was reasonable. “Absent exceptional circumstances, we normally decline to rule on an

issue not decided below.” Stoudemire v. Mich. Dep’t of Corr., 705 F.3d 560, 576 (6th Cir. 2013)

(internal quotation marks omitted). Finding no exceptional circumstances here, we remand the

question of the reasonableness of the attorney’s fees for further proceedings.

                                                 V.

        For the foregoing reasons, we REVERSE the district court’s order and REMAND for

further proceedings consistent with this opinion.




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