Will the Feds Appeal the Caswell Decision Just To Avoid Paying Legal Fees?


As Jacob Sullum reported the other day, Russell and Patricia Caswell of Tewksbury, Massachusetts, beat back an attempt by the federal government, represented by U.S. Attorney Carmen Ortiz, to snatch their motel (assessed by the town at $1,595,900) under asset forefeiture law. Assisted by the Institute for Justice, the couple defeated Ortiz's attempt to characterize the establishment as one that facilitated drug crimes, achieving what IJ's Scott Bullock called "a complete victory." That seems a fair claim, given that U.S. Magistrate Judge Judith Dein ruled that the government "failed to meet its burden" and that the Caswells "took all reasonable steps to prevent drug crime on the [motel] property." So given the pummeling Ortiz took in court, why is she considering an appeal? Could it be nothing more than an effort to extort an agreement from the Caswells' attorneys to not seek legal costs?

Under the Civil Asset Forfeiture Reform Act of 2000, "substantially prevailing parties" in judicial forfeiture proceedings have the right to collect attorneys fees. And the Caswells prevailed pretty damned substantially. According to John Chesto of the Boston Business Journal, "With Dein's decision, it's entirely possible that the feds won't just miss out on a property worth more than $1 million. Prosecutors may also have to pony up more than $500,000 to the two law firms that represented Caswell." Those two firms are the Institute for Justice and Schlossberg LLC of Braintree, the law firm that represented the Caswells before IJ entered the case. IJ represented the Caswells pro bono, but it intends to collect its costs from the government, as does Schlossberg.

Writes Chesto:

Schlossberg and the Institute for Justice filed a request this week with the federal court to temporarily shelve proceedings concerning the attorneys' fees and costs until Ortiz's office decides whether to appeal. …

So now they wait for Ortiz to make her move. She has until March 25 (60 days after Dein's decision) to decide whether to appeal. If no appeal is filed, Caswell's lawyers say they would bill the government for their costs by April 9.

Carmen Ortiz, outstanding human being that she is, wouldn't threaten to continue a losing case as a bargaining chip over those fees, would she?

You decide.