           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                                       June 16, 2009

                                             No. 08-20541                        Charles R. Fulbruge III
                                                                                         Clerk

UNITED STATES OF AMERICA

                                                          Plaintiff-Appellee
v.

MINH HUYNH, also known as Jeff Huynh;
NU HUYNH, also known as Cindy Huynh

                                                          Claimants-Appellants
-----------------------------------------------------------------------------------------

NU “Cindy” HUYNH; MINH “Jeff” HUYNH

                                                          Plaintiffs-Appellants
v.

FERDINAND “Andy” LARGE, ET AL.

                                                          Defendants




                      Appeal from the United States District Court
                           for the Southern District of Texas
                                 USDC No. 4:06-CV-399
                                USDC No. 4:05-CV-1155


Before REAVLEY, WIENER, and SOUTHWICK, Circuit Judges.
                                       No. 08-20541

PER CURIAM:*
       Plaintiffs-Appellants Nu and Minh Huynh appeal the magistrate judge’s
judgment on attorneys’ fees and costs entered in two consolidated actions: one
brought by Plaintiffs to set aside the Government’s administrative forfeiture of
their jewelry, and the other initiated by the Government seeking judicial
forfeiture of Plaintiffs’ vehicle. Reviewing the fee award for abuse of discretion
and the conclusions of law underlying it de novo, see Navigant Consulting, Inc.
v. Wilkinson, 508 F.3d 277, 297 (5th Cir. 2007), we AFFIRM for the following
reasons:
1. We agree with the magistrate judge that Plaintiffs’ success on their claim
under 18 U.S.C. § 983(e) to set aside the administrative forfeiture of certain
jewelry for lack of sufficient notice does not permit the recovery of reasonable
attorneys’ fees available to a substantially prevailing party under the Civil Asset
Forfeiture Reform Act of 2000 (“CAFRA”), 28 U.S.C. § 2465(b)(1). Because the
requested fee award implicates the Government’s sovereign immunity, any
waiver of immunity must be “unequivocally expressed, with all uncertainties
being resolved in favor of the [G]overnment.” Boehms v. Crowell, 139 F.3d 452,
463 (5th Cir. 1998) (emphasis in original). Moreover, the “American Rule”
generally precludes fee-shifting absent “express statutory authorization to the
contrary.” Id. By its plain terms, CAFRA’s fee-shifting provision applies only
to civil proceedings “to forfeit property,” that is, civil forfeiture actions initiated
by the Government. 28 U.S.C. § 2465(b)(1) (emphasis added). Cf. Carvajal v.
United States, 521 F.3d 1242, 1247 (9th Cir. 2008) (explaining that the parallel
provision of CAFRA providing for payment of interest, § 2465(b)(1)(C), “is
triggered only when the government institutes civil forfeiture proceedings” and


       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.

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                                   No. 08-20541

the party seeking fees “substantially prevails” (emphasis in original)). Plaintiffs’
claim, in contrast, seeks to set aside a forfeiture that has already occurred.
18 U.S.C. § 983(e). Far from unequivocally and expressly authorizing Plaintiffs’
fee request, the statutory language of § 2465(b)(1) clearly does not apply to their
action pursuant to 18 U.S.C. § 983(e).
2. Contrary to Plaintiffs’ assertion, adherence to the plain text of § 2465(b)(1)
does not create absurd results.         Unlike a successful defense against a
Government-initiated judicial forfeiture action, a claim to set aside an
administrative forfeiture neither resolves the substantive merits of the forfeiture
nor prevents the Government from seizing the property again. See 18 U.S.C.
§ 983(e)(1)(A) & (B) (limiting the grounds for setting aside administrative
forfeiture to instances where the government failed reasonably to provide notice
and the moving party neither knew nor had reason to know of the seizure within
sufficient time to file a claim); § 983(e)(2)(A) (noting the exclusive remedy is to
set aside the forfeiture without prejudice to the government’s commencement of
a forfeiture proceeding); Mesa Valderrama v. United States, 417 F.3d 1189, 1196
(11th Cir. 2005) (agreeing with the government that the complainant’s merits-
based challenge to the forfeiture can only be resolved in a civil judicial forfeiture
proceeding, since challenges under § 983(e) are limited to “the process of
forfeiture”).   This distinction between the permanence and degree of relief
obtained logically supports a corresponding difference in the availability of
attorney’s fees under CAFRA.
3. The magistrate judge also correctly rejected Plaintiffs’ request pursuant to
§ 2465 for attorneys’ fees in connection with the civil action to forfeit their BMW
sports-utility vehicle, a claim that the Government voluntarily dismissed
without prejudice.    The judge’s finding of deficient notice with respect to
Plaintiffs’ jewelry did not constitute a finding that the notice as to the vehicle
was also insufficient, because the latter issue was not actually or necessarily

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decided due to the Government’s dismissal of the action and return of the vehicle
to Plaintiffs. See, e.g., Alpha/Omega Ins. Servs., Inc. v. Prudential Ins. Co. of
Am., 272 F.3d 276, 279 (5th Cir. 2001) (explaining that law of the case applies
only to issues “that were actually decided” or were “decided by necessary
implication” (internal quotation marks omitted)); In re Gober, 100 F.3d 1195,
1200 n.2 (5th Cir. 1996) (defining collateral estoppel as barring “relitigation of
issues that were actually litigated and decided in a previous action”). Nor does
the Government’s dismissal without prejudice bestow prevailing party status on
Plaintiffs because it effected no “change in the legal relationship of the parties.”
Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532
U.S. 598, 605, 121 S. Ct. 1835, 1840 (2001); see also, e.g., RFR Indus., Inc. v.
Century Steps, Inc., 477 F.3d 1348, 1353 (Fed. Cir. 2007) (reasoning that
voluntary dismissal that leaves the plaintiff free to refile his claim effects no
change in the parties’ legal relationship).     The return of Plaintiffs’ car did
nothing to prevent the Government from seizing it again. Additionally, the court
entered no order with respect to the car addressing the merits of the forfeiture
claim prior to its voluntary dismissal.        Without the “necessary judicial
imprimatur,” Plaintiffs cannot establish prevailing party status as to this action.
Buckhannon, 532 U.S. at 605, 121 S. Ct. at 1840 (emphasis removed).
4. We also find no abuse of discretion in the amount of attorneys’ fees and costs
awarded to Plaintiffs for prevailing on their claim related to the jewelry under
the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A) and 28 U.S.C. § 1920.
Under well-established law, the district court had no jurisdiction to resolve
challenges to seizure of the jewelry except for its compliance with procedural and
due process requirements. See Bailey v. United States, 508 F.3d 736, 738–39
(5th Cir. 2007) (explaining that the district court’s jurisdiction at this juncture
is limited to “whether the forfeiture comported with constitutional due process
guarantees,” which, in turn, require notice reasonably calculated to apprise the

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complainant of the forfeiture action and an opportunity to object (internal
quotation marks and citation omitted) (emphasis added)); United States v.
Schinnell, 80 F.3d 1064, 1069 (5th Cir. 1996) (limiting jurisdiction to review of
compliance with “procedural requirements or to comport with due process”).
Thus, fees incurred by Plaintiffs for attacking the constitutionality of the
forfeiture statutes as a whole under the Appropriations Clause and the
separation-of-powers doctrine, over which the district court clearly lacked
jurisdiction, were appropriately excluded. As for Plaintiffs’ entitlement to costs
associated with the deposition of a witness, their failure affirmatively to request
those expenses in their initial motion below waives any right to recovery.
      AFFIRMED.




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