Petition for Writ of Certiorari — Miladis Salgado, Petitioner v. United States

Supreme Court briefNov 19, 2019

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No. _________

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In The

Supreme Court of the United States

-----------------------------------------------------------------MILADIS SALGADO,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

-----------------------------------------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

-----------------------------------------------------------------PETITION FOR A WRIT OF CERTIORARI

-----------------------------------------------------------------JUSTIN PEARSON*

INSTITUTE FOR JUSTICE

2 S. Biscayne Boulevard

Suite 3180

Miami, FL 33131

(305) 721-1600

jpearson@ij.org

*Counsel of Record

DAN ALBAN

INSTITUTE FOR JUSTICE

901 N. Glebe Road

Suite 900

Arlington, VA 22203

(703) 682-9320

dalban@ij.org

Counsel for Petitioner

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTIONS PRESENTED

1.

When does a civil forfeiture claimant “substantially

prevail” under 28 U.S.C. § 2465(b)(1)?

2.

In civil forfeiture lawsuits where a district court

has ordered the United States to return the seized

money and the lawsuit will never be refiled, is it

an abuse of discretion for the dismissal to be

without prejudice?

ii

PARTIES TO THE PROCEEDINGS AND

DIRECTLY RELATED PROCEEDINGS

Petitioner is Miladis Salgado. Respondent is the

United States of America.

In the district court, the defendants were: (i)

$70,670.00 in U.S. Currency; (ii) $101,629.59 in U.S.

Currency Seized from Wells Fargo Bank Cashier’s

Check No. 6648201039; and (iii) $30,000.00 in U.S.

Currency Seized from Chase Bank Cashier’s Check No.

1178710368. In addition to Petitioner Miladis Salgado,

the other claimants were Wilson Colorado and Kurvas

Secret by W. Although not listed as a party, AnnCherry

Fajas USA Inc. was also involved as a judgment-creditor possessing a state court judgment against Wilson

Colorado and Kurvas Secret by W.

The directly related proceedings are:

1.

United States of America v. $70,670.00 in U.S.

Currency, et al., No. 1:15-cv-23616-DPG (S.D.

Fla.)—Dismissal without prejudice entered

August 10, 2017; Order denying Claimants’

Motion for Attorneys’ Fees, Costs, and Interest entered January 3, 2018.

2.

United States of America v. $70,670.00 in U.S.

Currency, et al., No. 18-10312 (11th Cir.)—

Judgment entered July 8, 2019.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................................

i

PARTIES TO THE PROCEEDINGS AND DIRECTLY RELATED PROCEEDINGS .............

ii

TABLE OF AUTHORITIES ................................. vii

INTRODUCTION ................................................

1

OPINIONS BELOW.............................................

5

JURISDICTION ...................................................

5

STATUTES AND RULES INVOLVED ................

5

STATEMENT .......................................................

7

REASONS FOR GRANTING THE PETITION ....

13

I.

The Court has Never Addressed the Question of When a Civil Forfeiture Claimant

“Substantially Prevails” Under 28 U.S.C.

§ 2465(b)(1), Leading to Widespread Confusion in the Lower Courts and Increased

Civil Forfeiture Abuse ............................... 13

A. There is Widespread Confusion in the

Lower Courts ....................................... 14

B. The Court of Appeals’ Approach Cannot Be Correct ..................................... 15

i. The Court of Appeals’ Approach is

Irreconcilable with CAFRA’s Text ..... 16

ii. The Court of Appeals’ Approach is

Irreconcilable with CAFRA’s Legislative History .................................... 18

iv

TABLE OF CONTENTS—Continued

Page

iii. The Court of Appeals’ Approach Makes

It More Difficult for a Claimant to

“Substantially Prevail” Than to “Prevail” ................................................... 20

C. This Confusion Leads to Well-Chronicled

Abuses, Including Those Mentioned by

Justices Thomas and Sotomayor ......... 21

II. The Circuit Split Over Whether Dismissal

Without Prejudice is Allowed in this Situation Has Resulted in Different Levels of

Protection Against Forfeiture Abuse Based

Solely on the Circuit Where the Innocent

Owner Lives ................................................. 24

A. The Ruling Below Directly Conflicts

with the Ninth Circuit’s Rule .............. 25

B. The Ruling Below Deepens the Split Between the Ninth Circuit and the Fifth,

Eighth, and (Now) Eleventh Circuits ..... 27

C. The Circuit Split on This Issue Has

Created Chaos in the District Courts,

with Widely Divergent Outcomes ........ 28

D. The Side of the Circuit Split Joined by

the Court Below Creates a Catch-22...... 30

CONCLUSION..................................................... 31

v

TABLE OF CONTENTS—Continued

Page

APPENDIX

Opinion, United States Court of Appeals for the

Eleventh Circuit (July 8, 2019) ....................... App. 1

Final Judgment, United States Court of Appeals

for the Eleventh Circuit (July 8, 2019).......... App. 22

Entry by the United States District Court for

the Southern District of Florida on Order

Denying Motion to Alter Judgment and Order

Denying Motion for Attorney Fees (January 3,

2018) ............................................................... App. 24

Entry by the United States District Court for

the Southern District of Florida on Order Regarding Release of Defendants In Rem (December 19, 2017) ............................................ App. 34

Stipulation for Settlement in Forfeiture Action

(November 6, 2017) ........................................ App. 37

Entry by the United States District Court for

the Southern District of Florida on Order Dismissing Case (August 10, 2017) .................... App. 53

Excerpts from Deposition of DEA Agent Jose

Mantilla (March 27, 2017) ............................. App. 56

Craig Stevens and Robin Cross, Cashing In?

Small business owner out $200K after DEA

raid (June 1, 2016), https://wsvn.com/news/

special-reports/cashing-in-small-business-ownerout-200k-after-dea-raid/ ................................. App. 63

H.R.Rep. No. 106–192 (1999) ............................ App. 67

vi

TABLE OF CONTENTS—Continued

Page

Federal Rule of Civil Procedure 41(a)(2) ........ App. 144

Civil Asset Forfeiture Reform Act of 2000

(“CAFRA”), Pub.L. No. 106–185 (2000) ....... App. 146

28 U.S.C. § 2465(b) ........................................... App. 202

vii

TABLE OF AUTHORITIES

Page

CASES

Buckhannon Bd. and Care Home, Inc. v. West

Virginia Dep’t of Health and Human Res., 532

U.S. 598 (2001) ........................................................20

Carlson v. Green, 446 U.S. 14 (1980) ..........................27

CRST Van Expedited, Inc. v. EEOC, 136 S. Ct.

1642 (2016) .............................................. 3, 16, 20, 21

Digital Realty Trust, Inc. v. Somers, 138 S. Ct.

767 (2018) ................................................................16

Kazazi v. U.S. Customs and Border Protection,

376 F. Supp. 3d 781 (N.D. Ohio 2019).....................14

Kazazi v. U.S. Customs and Border Protection,

Case No. 19-3270 (6th Cir. 2019) ............................15

Leonard v. Texas, 137 S. Ct. 847 (2017)......................21

Loggerhead Turtle v. Cty. Council of Volusia Cty.,

307 F.3d 1318 (11th Cir. 2002) ................................17

On Lee v. United States, 343 U.S. 747 (1952) .............27

Texas State Teachers Ass’n v. Garland Indep.

School Dist., 489 U.S. 782 (1989) ............................20

Timbs v. Indiana, 139 S. Ct. 682 (2019) .....................23

United States v. 115-98 Park Lane South, No. 10CIV-3748, 2012 WL 3861221 (E.D.N.Y. Sept. 5,

2012) .................................................................. 17, 29

United States v. 2007 BMW 335i Convertible,

648 F. Supp. 2d 944 (N.D. Ohio 2009).....................29

viii

TABLE OF AUTHORITIES—Continued

Page

United States v. $32,820.56 in U.S. Currency,

106 F. Supp. 3d 990 (N.D. Iowa 2015)................. 4, 27

United States v. $32,820.56 in U.S. Currency,

838 F.3d 930 (8th Cir. 2016) ........................ 26, 27, 29

United States v. $60,201.00 in U.S. Currency,

291 F. Supp. 2d 1126 (C.D. Cal. 2003) ....................14

United States v. $107,702.66 in U.S. Currency,

No. 7:14-CV-00295-F, 2016 WL 413093

(E.D.N.C. Feb. 2, 2016) ............................................28

United States v. Any & All Funds on Deposit at

JPMorgan Chase, No. 12-CIV-7530, 2013 WL

5511348 (S.D.N.Y. Oct. 2, 2013) ..............................29

United States v. Approximately $16,500.00 in

U.S. Currency, 113 F. Supp. 3d 776 (M.D. Pa.

2015) ........................................................................29

United States v. Bednar, Case No. 15-2232 (4th

Cir. 2016) .................................................................15

United States v. Capital Stack Fund, LLC, 543

F. App’x 17 (2d Cir. 2013) ........................................29

United States v. Certain Real Prop., 543

F. Supp. 2d 1291 (N.D. Ala. 2008) ...........................29

United States v. Certain Real Prop., Located at

317 Nick Fitchard Rd., N.W., Huntsville, AL,

579 F.3d 1315 (11th Cir. 2009) ................................19

United States v. Coffman, 625 F. Appx 285 (6th

Cir. 2015) .................................................................19

United States v. Ito, 472 F. App’x 841 (9th Cir.

2012) ........................................................ 4, 25, 26, 29

ix

TABLE OF AUTHORITIES—Continued

Page

United States v. Minh Huynh, 334 F. App’x 636

(5th Cir. 2009)................................................ 4, 28, 29

United States v. One 2008 Toyota RAV 4 Sports

Utility Vehicle, 2010 WL 11531203 (C.D. Cal.

July 16, 2010) ..........................................................25

United States v. Twenty-Seven Parcels of Real

Property Located in Sikeston, Scott Cty., Mo.,

236 F.3d 438 (8th Cir. 2001) ....................................11

Youakim v. Miller, 425 U.S. 231 (1976) ......................27

STATUTES, CODES, AND RULES

19 U.S.C. § 1621 ..........................................................11

28 U.S.C. § 1254(1) ........................................................5

28 U.S.C. § 2465(b)(1) ......................................... passim

Federal Rule of Civil Procedure 41(a)(2) .....................7

OTHER AUTHORITIES

Antonin Scalia and Bryan A. Garner, Reading

Law: The Interpretation of Legal Texts (West

2012) ........................................................................17

Bobby Allyn & Ryan Briggs, Cash Grab: As Asset

Forfeiture Quietly Expands Across Pa., Abuses

Follow, PA. POST (April 24, 2019) ............................22

Christopher Ingraham, How Police Took $53,000

from a Christian Band, an Orphanage, and a

Church, WASH. POST (April 25, 2016) .....................22

x

TABLE OF AUTHORITIES—Continued

Page

Christine A. Budasoff, Modern Civil Forfeiture is

Unconstitutional, 23 Tex. Rev. of Law & Politics 467.......................................................................2

David B. Smith, Prosecution and Defense of Forfeiture Cases (2018) ......................................... 2, 3, 23

David Pimentel, Civil Asset Forfeiture Abuses:

Can State Legislation Solve the Problem? 25

Geo. Mason L. Rev. 174 (2018) ..................................2

Deanna Paul, Police Seized $10,000 of a Couple’s

Cash. They Couldn’t Get it Back—Until They

Went Public, WASH. POST (Aug. 31, 2018) .................1

Dick M. Carpenter II, et al., Policing for Profit:

The Abuse of Civil Asset Forfeiture (2d ed. Nov.

2015) .................................................................... 2, 12

Edgar Walters & Jolie McCullough, Texas Police

Made More than $50 Million in 2017 from

Seizing People’s Property. Not Everyone Was

Guilty of a Crime, TEXAS TRIB. (Dec. 7, 2018) ...........1

Fed. Prac. & Proc. Civ. § 2364 (3d ed., updated

Aug. 2019) .......................................................... 25, 26

German Lopez, “It’s Been Complete Hell”: How

Police Used a Traffic Stop to Take $91,800

from an Innocent Man, VOX (March 20, 2018) ...........23

How Crime Pays: The Unconstitutionality of

Modern Civil Asset Forfeiture as a Tool of

Criminal Law Enforcement, Harvard L. Rev.

(June 8, 2018) ..........................................................22

xi

TABLE OF AUTHORITIES—Continued

Page

Last Week Tonight with John Oliver, Civil Forfeiture, YOUTUBE (Oct. 5, 2014) https://www.

youtube.com/watch?v=3kEpZWGgJks ...................23

Mark Joseph Stern, Neil Gorsuch and Sonia Sotomayor Just Came Out Swinging Against Policing for Profit, SLATE (Nov. 28, 2018) ....................22

Michael Sallah, et al., Stop and Seize, WASH.

POST (Sept. 6, 2014) ............................................. 4, 10

Nate Gartrell, Contra Costa Cops Seized $1.1

Million From People Not Charged With a

Crime in Past Four Years, Records Show, THE

MERCURY NEWS (June 14, 2019) ..............................22

Nathaniel Cary & Mike Ellis, TAKEN: Risk a

Trial To Get Your Money Back, or Settle For

Less? THE GREENVILLE NEWS (Jan. 29, 2019) ...........1

Nick Sibilla, Cops Use Traffic Stops to Seize Millions From Drivers Never Charged with a

Crime, FORBES (March 12, 2014) ............................23

Rishi Batra, Resolving Civil Forfeiture Disputes,

66 U. Kan. L. Rev. 399 (2017) ..................................10

Sarah Stillman, Taken, THE NEW YORKER (Aug.

5, 2013) ......................................................................1

Scott Rodd, Should Police Be Allowed to Keep

Property Without a Criminal Conviction? ASSOCIATED PRESS (Feb. 8, 2017) ...................................2

xii

TABLE OF AUTHORITIES—Continued

Page

Substantial, Merriam-Webster’s Dictionary (2019).......17

Substantial Performance, Cornell Law Sch.

Legal Info. Inst., https://www.law.cornell.edu/

wex/substantial_performance.................................18

1

INTRODUCTION

This civil forfeiture case presents two questions of

national importance. The first is an unsettled question

of federal law. The second is the subject of a circuit

split.

Both arise from a particularly disturbing aspect of

modern civil forfeiture—law enforcement’s practice of

wrongfully seizing money and then using the time and

expense required to contest a forfeiture lawsuit as leverage to extract a settlement from the innocent owner.

See Edgar Walters & Jolie McCullough, Texas Police

Made More than $50 Million in 2017 from Seizing

People’s Property. Not Everyone Was Guilty of a Crime,

TEXAS TRIB. (Dec. 7, 2018); Deanna Paul, Police Seized

$10,000 of a Couple’s Cash. They Couldn’t Get It

Back—Until They Went Public, WASH. POST (Aug. 31,

2018); see also Sarah Stillman, Taken, THE NEW

YORKER (Aug. 5, 2013) (police threatened to send a

couple’s children to Child Protective Services unless

they surrendered their money to police on the spot). In

these settlements, the government frequently receives

roughly fifty percent of the money in exchange for returning the rest. See, e.g., Nathaniel Cary & Mike Ellis,

TAKEN: Risk a Trial To Get Your Money Back, or Settle For Less? THE GREENVILLE NEWS (Jan. 29, 2019)

(providing specific examples).

More often than not, these innocent Americans are

not arrested, let alone convicted of anything. But they

cannot afford to litigate for two years or more while

they wait for the return of their money. See, e.g., Scott

2

Rodd, Should Police Be Allowed to Keep Property Without a Criminal Conviction? ASSOCIATED PRESS (Feb. 8,

2017) (detailing how it took two innocent people two

years and thousands of dollars in attorneys’ fees to

obtain return of money). As a result, most owners bitterly take the deal. In fact, 88 percent of federal civil

forfeitures never make it to a judge. See Dick M. Carpenter II, et al., Policing for Profit: The Abuse of Civil

Asset Forfeiture, 12–13 (2d ed. Nov. 2015); see also

David Pimentel, Civil Asset Forfeiture Abuses: Can

State Legislation Solve the Problem? 25 Geo. Mason L.

Rev. 173–74, 182–83 (2018) (collecting sources estimating that between 80 percent and 88 percent of

federal forfeitures are uncontested); Christine A. Budasoff, Modern Civil Forfeiture Is Unconstitutional, 23

Tex. Rev. of Law & Politics 467, 482 (“five-sixths of the

cash seizures in the [federal equitable sharing] program were afforded no hearing at all”). When innocent

people are treated this way, many of them lose all trust

in our legal system.

In the rare cases where the owners can survive

without their money until the summary judgment

stage, another disturbing pattern emerges. The United

States will suddenly decide to return all the money

and move to voluntarily dismiss the forfeiture lawsuit

without prejudice, which district courts usually grant.

See David B. Smith, Prosecution and Defense of Forfeiture Cases § 10.08[2] (2018). The United States will

then argue, often successfully, that this means the

owner did not “substantially prevail” under 28 U.S.C.

§ 2465(b)(1) and therefore cannot obtain an award of

3

attorneys’ fees, costs, and interest. See Smith at

§ 10.08[2]. This also means that even in the rare cases

where the owners have the wherewithal to fight back,

they are almost never made whole. This tactic has become so widespread that a leading civil forfeiture treatise refers to it as the “issue that has arisen most

frequently in civil forfeiture cases.” Id.

The primary reason this tactic exists is the lower

courts’ widespread confusion over the first question

presented here—when does a civil forfeiture claimant

“substantially prevail” under 28 U.S.C. § 2465(b)(1)?

See Smith at § 10.08[2]. This question has never been

addressed by this Court.

Congress, for its part, spoke clearly. In an attempt

to combat abusive forfeiture tactics, Congress made it

easier for civil forfeiture claimants to obtain awards

of attorneys’ fees, costs, and interest than litigants

in other types of fee-eligible cases. See 28 U.S.C.

§ 2465(b)(1). The statute’s text mandates that any civil

forfeiture claimant who merely “substantially prevails” “shall” receive an award of attorneys’ fees, costs,

and interest. Id. Unfortunately, the unsettled question

of how to apply this provision has led many courts to

read the word “substantially” out of the statute. See

Smith at § 10.08[2].

Worse still, courts overseeing civil forfeiture cases

have ignored this Court’s holding that a ruling on the

merits is not always required to obtain an award of attorneys’ fees, costs, and interest as a prevailing party.

See CRST Van Expedited, Inc. v. EEOC, 136 S. Ct.

4

1642, 1651–53 (2016). Consequently, it is now more difficult for civil forfeiture victims to obtain awards of attorneys’ fees, costs, and interest than in other types of

fee-eligible cases. That outcome is the opposite of the

approach Congress stated in the statute’s plain text.

Faced with law enforcement’s effective use of this

tactic to frustrate Congress’s plainly stated intent, as

well as the injustice inherent in preventing civil forfeiture’s victims from being made whole, a circuit split

has arisen. This split focuses on the second question

presented here—in civil forfeiture lawsuits where a

district court has ordered the United States to return

the seized money and the lawsuit will never be refiled,

is it an abuse of discretion for the dismissal to be without prejudice? Compare United States v. Ito, 472

F. App’x 841, 841–42 (9th Cir. 2012) (holding that it

is an abuse of discretion), with United States v.

$32,820.56 in U.S. Currency, 838 F.3d 930, 937 (8th Cir.

2016) (holding that it is not); United States v. Minh

Huynh, 334 F. App’x 636, 639 (5th Cir. 2009) (same).

The decision below has only deepened the split. See

Pet. App. 1–21.

Although both questions presented merit the

Court’s attention, the core of the problem is the first. If

law enforcement were forced to follow Congress’s mandate that victims of baseless forfeiture cases must be

made whole, the result would be a substantial reduction in the abuse we see nationwide. Because this case

presents the Court with a rare opportunity to address

these nationally important issues affecting thousands

of innocent Americans, see Michael Sallah, et al., Stop

5

and Seize, WASH. POST (Sept. 6, 2014), as well as a good

vehicle to do so, the Court should grant certiorari.

------------------------------------------------------------------

OPINIONS BELOW

The opinion of the court of appeals is reported at

929 F.3d 1293. Pet. App. 1–21. The opinions of the district court were not reported but are included in the

Appendix. Pet. App. 24–33, 53–55.

------------------------------------------------------------------

JURISDICTION

The United States Court of Appeals for the Eleventh Circuit entered its judgment on July 8, 2019. Pet.

App. 22–23. On September 17, 2019, Petitioner Miladis

Salgado timely sought an extension of time through

November 21, 2019, which Justice Thomas granted on

September 25, 2019. Petitioner Miladis Salgado respectfully petitions for a writ of certiorari under 28

U.S.C. § 1254(1).

------------------------------------------------------------------

STATUTES AND RULES INVOLVED

The fee-shifting provision of the Civil Asset Forfeiture Reform Act of 2000 (“CAFRA”), codified at 28

U.S.C. § 2465(b)(1), states:

Except as provided in paragraph (2), in any

civil proceeding to forfeit property under any

provision of Federal law in which the claimant

6

substantially prevails, the United States shall

be liable for—

(A) reasonable attorney fees and other litigation costs reasonably incurred by the

claimant;

(B) post-judgment interest, as set forth in

section 1961 of this title; and

(C) in cases involving currency, other negotiable instruments, or the proceeds of an

interlocutory sale–

(i)

interest actually paid to the United

States from the date of seizure or arrest of the property that resulted

from the investment of the property

in an interest-bearing account or instrument; and

(ii) an imputed amount of interest that

such currency, instruments, or proceeds would have earned at the rate

applicable to the 30-day Treasury

Bill, for any period during which no

interest was paid (not including any

period when the property reasonably

was in use as evidence in an official

proceeding or in conducting scientific

tests for the purpose of collecting evidence), commencing 15 days after

the property was seized by a Federal

law enforcement agency, or was

turned over to a Federal law enforcement agency by a State or local law

enforcement agency.

7

Federal Rule of Civil Procedure 41(a)(2) states:

Except as provided in Rule 41(a)(1), an action

may be dismissed at the plaintiff ’s request

only by court order, on terms that the court

considers proper. If a defendant has pleaded a

counterclaim before being served with the

plaintiff ’s motion to dismiss, the action may

be dismissed over the defendant’s objection

only if the counterclaim can remain pending

for independent adjudication. Unless the order states otherwise, a dismissal under this

paragraph (2) is without prejudice.

------------------------------------------------------------------

STATEMENT

1. Petitioner Miladis Salgado’s full-time, primary employment is at an airport duty-free store,

where she undergoes periodic background checks confirming her lack of a criminal record. See Dkt. 109-16

at 7. To make ends meet, she also works a second job

part time at a Subway sandwich shop. See id. at 7, 13.

Ms. Salgado is currently divorced. See id. at 15.

Her ex-husband Wilson Colorado was a claimant in the

lower courts but is not a petitioner here. Pet. App. 1–

22. At the time of the seizure, Ms. Salgado and Mr. Colorado were not yet divorced, but were separated and

living in different bedrooms in the same house, along

with their son and daughter. See Dkt. 109-16 at 15–16,

19.

8

In May 2015, federal Drug Enforcement Agency

agents raided their house based on a tip from a confidential informant that Mr. Colorado was a drug dealer.

See Dkt. 33-2 at 6. The tip was false; Mr. Colorado is

not a drug dealer. Dkt. 109-12 at 12:18–23. At the time,

he owned a garment sales company. Id. at 19:8–16.

The DEA agents did not find any drugs belonging

to Ms. Salgado or Mr. Colorado. Instead, they found a

small quantity of drugs that clearly belonged to their

son and was not substantial enough to pursue charges.

Dkt. 108-1 at 93; Dkt. 109-12 at 167.

However, the DEA agents found something else

that interested them—cash. Mr. Colorado had approximately $55,000 in cash, as well as cashier’s checks totaling approximately $132,000, which he intended to

use to purchase garments for resale. Dkt. 109-12 at

48:12–50:7, 168:14–169:19. Ms. Salgado had approximately $15,000 in cash, which mostly consisted of

gifts from family members and which she was saving

to spend on her children, including for her teenage

daughter’s then-upcoming fifteenth birthday “quinceañera” celebration. Dkt. 109-2 at 28; Dkt. 109-16 at

33:1–34:23.

The lead DEA agent for the case would later admit

in his deposition that the United States had zero evidence connecting Ms. Salgado, Mr. Colorado, Mr. Colorado’s business, or any of their money to any criminal

activity. Pet. App. 56–62. But the DEA agents seized all

the money anyway and refused to return it. This

9

included Ms. Salgado’s money, thereby forcing her to

cancel her daughter’s quinceañera. See Dkt. 8-2.

2. Ms. Salgado insisted on vindicating her rights.1

Her search for an attorney was complicated by the fact

that she could not access her seized money, but she was

able to find an attorney willing to represent her on a

contingency fee basis. See Pet. App. 40–45. This meant

that Ms. Salgado could only be made whole if she obtained an award of attorneys’ fees and costs. See id.

Otherwise, approximately one-third of the money recovered would be retained by her attorney. See id.

Two years after the seizure, the civil forfeiture

lawsuit reached the summary judgment stage. Considering the lead DEA agent’s admissions that the United

States had no evidence connecting Ms. Salgado, Mr.

1

Although not a petitioner here, Mr. Colorado also insisted

on vindicating his rights in the lower courts. Indeed, at the time

of the seizure, he asked the DEA agents to arrest him in the hope

that he could appear before a judge in time to save his business.

Dkt. 109-12 at 149:5–8. Later, his predicament was covered by

the local news. Pet. App. 63–66. However, the DEA agents declined his request and simply kept his money, thereby destroying

his business. His inability to access his seized money also prevented him from hiring his preferred attorney to represent him

and his now-defunct business in a legal dispute with one of his

garment suppliers in state court. Dkt. 112 at 3 n.3. Eventually,

he was able to find a temporary attorney willing to accept the

meager funds he could scrape together, but those funds soon ran

out, and the temporary attorney withdrew from the case, leaving

Mr. Colorado to defend the state court lawsuit pro se. See id.

Based solely on discovery violations, the state trial court entered

a default judgment against Mr. Colorado for $318,019.70, which

exceeded the amount of his claim in the present civil forfeiture

action. Pet. App. 5, 7.

10

Colorado, Mr. Colorado’s business, or any of their money

to any criminal activity, see Pet. App. 56–62, it appeared

likely that Ms. Salgado was finally going to win.

When the parties filed their cross-motions for

summary judgment, the United States included an alternative request asking that if the court denied the

government’s motion for summary judgment, then the

court should allow the United States to voluntarily dismiss the entire case without prejudice. Dkt. 110. The

rationale for doing so had nothing to do with Ms. Salgado or her money. Id.2 Other than her likelihood of

success on the merits, there was no reason why the

United States could not continue with the civil forfeiture lawsuit solely against Ms. Salgado’s money.3

Nonetheless, the United States sought dismissal of the

entire case without prejudice, including Ms. Salgado’s

claim. Dkt. 110.

2

The government’s asserted rationale for dismissing the entire case without prejudice was that the seized money should go

to pay the default judgment against Mr. Colorado and his nowdefunct business. Dkt. 110. Ms. Salgado was not a party to the

state court lawsuit or the resulting default judgment, and the

judgment-creditor expressly disclaimed any interest in her

money. Dkt. 155.

3

This includes the absence of any practical obstacle preventing the United States from continuing against Ms. Salgado’s

money. Indeed, Ms. Salgado’s $15,000.00 far exceeded the typical

amounts sought by the United States in civil forfeiture lawsuits.

See Michael Sallah, et al., Stop and Seize, WASH. POST (Sept. 6,

2014) (finding that half of cash seizures through federal “equitable sharing program” were for below $8,800); see also Rishi Batra,

Resolving Civil Forfeiture Disputes, 66 U. Kan. L. Rev. 399, 413

(2017) (noting that median property value forfeited in ten states

ranged from $451 to $2,048).

11

The district court allowed the United States to voluntarily dismiss the entire lawsuit without prejudice

over Ms. Salgado’s objection. See Pet. App. 55. However,

the order also stated that if the United States were

ever to refile the lawsuit, then the district court “will

award costs” to Ms. Salgado and Mr. Colorado. Id. This

provision was significant because approximately three

years remained under the statute of limitations for the

United States to refile the civil forfeiture action. See 19

U.S.C. § 1621; see also U.S. v. Twenty-Seven Parcels of

Real Property Located in Sikeston, Scott Cty., Mo., 236

F.3d 438, 440–41 (8th Cir. 2001) (discussing changes to

statute of limitations under CAFRA).

The district court ordered the United States to disburse Ms. Salgado’s $15,000.00 to her and her attorney.

Pet. App. 36 at ¶ 3. As a result, $10,387.92 plus interest

was immediately distributed to Ms. Salgado, while the

remainder of her seized money was placed in her attorney’s trust account, where it remains today. Pet. App.

42–45. If Ms. Salgado obtains an award of attorneys’

fees, the remainder will be returned to her, and she will

finally be made whole. See id. Otherwise, it will be paid

to her attorney as fees. See id.

Ms. Salgado moved to amend the dismissal without prejudice and argued that it should be with prejudice, but the district court denied the motion. Pet. App.

26, 32. The district court stated that the “curative conditions” the court had imposed preventing the United

States from refiling the case precluded the need to dismiss the case with prejudice. Pet. App. 30. The district

court also ruled that Ms. Salgado’s counsel had failed

12

to timely assert the argument that dismissal without

prejudice could prevent them from being able to obtain

an award of attorneys’ fees, costs, and interest. Pet.

App. 30–31. Nonetheless, the court considered the merits of the argument and found that dismissal without

prejudice was appropriate even if the argument had

been timely asserted. Pet. App. 31.

The district court denied Ms. Salgado’s motion for

an award of attorneys’ fees, costs, and interest solely

on the grounds that the dismissal was without prejudice and, therefore, Ms. Salgado had not substantially

prevailed under 28 U.S.C. § 2465(b)(1). Pet. App. 32.

3. Ms. Salgado (and Mr. Colorado) timely appealed to the court of appeals, which affirmed the district court in full. Pet. App. 1–21.

Regarding the first question presented, the court

of appeals held that the fact that the dismissal was entered without prejudice meant that Ms. Salgado did

not substantially prevail under 28 U.S.C. § 2465(b)(1)

and therefore could not be awarded attorneys’ fees,

costs, and interest. Pet. App. 17–20.

Regarding the second question presented, the

court of appeals agreed with the district court that Ms.

Salgado’s counsel had failed to timely argue that dismissal without prejudice would harm them by preventing them from seeking an award of attorneys’ fees,

costs, and interest. Pet. App. 14–15. Nonetheless, the

court of appeals considered the merits of the argument.

Pet. App. 15–16. The court of appeals held that the district court acted within its discretion when it allowed

13

the United States to voluntarily dismiss the case without prejudice, even though this prevented Ms. Salgado

from obtaining an award of attorneys’ fees, costs, and

interest. Id.

------------------------------------------------------------------

REASONS FOR GRANTING THE PETITION

The Court should grant certiorari as to both questions presented.4 The question of when a civil forfeiture claimant “substantially prevails” under 28 U.S.C.

§ 2465(b)(1) has never been addressed by the Court,

leading to widespread confusion and increased civil

forfeiture abuse. And the related question of whether

it is an abuse of discretion for a district court to dismiss

a civil forfeiture lawsuit without prejudice in the situation presented here is the subject of a circuit split.

I.

The Court Has Never Addressed the Question of When a Civil Forfeiture Claimant

“Substantially Prevails” Under 28 U.S.C.

§ 2465(b)(1), Leading to Widespread Confusion in the Lower Courts and Increased

Civil Forfeiture Abuse.

The question of when a civil forfeiture claimant

“substantially prevails” under 28 U.S.C. § 2465(b)(1) is

4

Although Ms. Salgado’s position is that the Court should

grant certiorari as to both questions presented, each question presented can stand on its own. Therefore, if the Court were to deny

certiorari as to either question presented, Ms. Salgado would

nonetheless ask the Court to grant certiorari as to the other question presented.

14

one of first impression for this Court. However, it frequently arises in the lower courts, and especially in

district courts (since even the cases that make it to a

district court tend to settle before reaching a court of

appeals), and the Court should not pass up this valuable opportunity to provide much-needed clarity. This is

true for three reasons. First, there is widespread confusion in the lower courts. Second, this confusion has

led many courts to adopt a fundamentally flawed approach. Third, this confusion directly exacerbates

many of the same forfeiture abuses that have already

been commented on by members of this Court.

A. There Is Widespread Confusion in the

Lower Courts.

Absent guidance from this Court, confusion

abounds in the lower courts over when a civil forfeiture

claimant “substantially prevails” under 28 U.S.C.

§ 2465(b)(1). On one hand, some lower courts take a

practical approach, see, e.g., Kazazi v. U.S. Customs and

Border Protection, 376 F. Supp. 3d 781, 784 (N.D. Ohio

2019) (holding that owners substantially prevailed

and therefore were entitled to an award of fees, costs,

and interest, even though resolution was not on the

merits) or even expressly hold that CAFRA “broadens

the class that can receive fees in forfeiture actions to

claimants who ‘substantially prevail.’ ” United States v.

$60,201.00 in U.S. Currency, 291 F. Supp. 2d 1126,

1130 (C.D. Cal. 2003). On the other hand, some lower

courts take the approach that a civil forfeiture

15

claimant never “substantially prevails” without a judicial ruling on the merits. Pet. App. 1–21.

This confusion is exacerbated by the tendency of

cases that initially make it to the courts of appeals to

disappear before the courts of appeals rule. See, e.g.,

Order Dismissing Appeal, Kazazi v. U.S. Customs and

Border Protection, Case No. 19-3270 (6th Cir. 2019)

(Kazazi Dkt. 8-1) (allowing the United States to voluntarily dismiss appeal after the United States originally

elected to appeal an adverse ruling on the present

issue); Unopposed Mot. to Remand, United States v.

Bednar, Case No. 15-2232 (4th Cir. 2016) (Bednar

Dkt. 39) (the United States agreeing to pay the owners’ attorneys’ fees shortly before the Fourth Circuit

was to hear oral argument on the present issue).

Now, against all odds, an innocent owner has

managed to reach this stage without succumbing to

the extreme pressure to enter into a settlement along

the way. The Court should capitalize on this rare opportunity to provide much-needed guidance for the

lower courts.

B. The Court of Appeals’ Approach Cannot

Be Correct.

This confusion is perfectly illustrated in the present case, making it a good vehicle for the Court to

address the issue. As a result of the confusion over

when a civil forfeiture claimant “substantially prevails,” the court of appeals applied an approach that

cannot be correct, regardless of whether the Court

16

applies a textualist approach or examines the legislative history. Compare Digital Realty Trust, Inc. v.

Somers, 138 S. Ct. 767, 783–84 (2018) (Thomas, J., concurring) (explaining textualist position that “we are a

government of laws, not of men, and are governed by

what Congress enacted rather than by what it intended”), with id. at 782–83 (Sotomayor, J., concurring)

(explaining opposing view that, even when statute is

unambiguous, “consulting reliable legislative history

can still be useful, as it enables us to corroborate and

fortify our understanding of the text”).

The court of appeals’ approach is also flawed for

another reason, in that it makes it even more difficult

for a civil forfeiture claimant to “substantially prevail”

under 28 U.S.C. § 2465(b)(1) than for other types of feeshifting claimants to “prevail” under this Court’s precedent. See CRST Van Expedited, Inc. v. EEOC, 136

S. Ct. 1642, 1651–53 (2016). In other words, the result

of the court of appeals’ approach is precisely backwards.

i.

The Court of Appeals’ Approach is

Irreconcilable with CAFRA’s Text.

From a textualist standpoint, the court of appeals’

approach, in which it read the word “substantially” out

of the statute, is impermissible. Therefore, this section

will begin by addressing the lower court’s deletion of

the word “substantially” from the statute before turning to the canons of construction this approach violates.

17

The court of appeals unambiguously stated that it

was applying 28 U.S.C. § 2465(b)(1) as if the term “substantially” were not included. In the court’s words, “we

interpret ‘substantially prevailed’ fee-shifting statutes

consistently with ‘prevailing party’ fee-shifting statutes.” Pet. App. 18 (citing Loggerhead Turtle v. Cty.

Council of Volusia Cty., 307 F.3d 1318, 1322 n.4 (11th

Cir. 2002)). In fairness to the court of appeals, it is not

alone. See United States v. 115-98 Park Lane South, No.

10-CIV-3748, 2012 WL 3861221, at *8 (E.D.N.Y. Sept.

5, 2012) (noting that several circuits view the terms

“prevailing party” and “substantially prevails” as the

same when determining possible recovery under a feeshifting statute).

By doing so, the court of appeals violated the canons of construction, with the surplusage canon likely

at the top of the list. The surplusage canon holds that

every word in a statute is to be given effect whenever

possible. See Antonin Scalia and Bryan A. Garner,

Reading Law: The Interpretation of Legal Texts 174–79

(West 2012). Therefore, the court of appeals’ approach

would only have been permissible if it were impossible

to give effect to the word “substantially.” But the word

“substantially” is common and well-understood, making it quite possible to give it effect. See, e.g., Substantial, Merriam-Webster’s Dictionary (2019) (defining

“substantial” as “being largely but not wholly that

which is specified”).

Moreover, the terms “substantial” and “substantially” are often used in the legal world, with the Doctrine of Substantial Performance providing a notable

18

example. See Substantial Performance, Cornell Law

Sch. Legal Info. Inst., https://www.law.cornell.edu/wex/

substantial_performance. There, it allows recovery for

less-than-complete performance. See id. Likewise, in

CAFRA’s fee-shifting provision, its use is clearly designed to allow civil forfeiture victims who less-thancompletely prevail to obtain awards of attorneys’ fees,

costs, and interest.

In the case at hand, Ms. Salgado substantially prevailed. She obtained the full return of her money, and

she even obtained a court order inhibiting the United

States from refiling the civil forfeiture lawsuit. The

only way she could be deprived of an award of fees,

costs, and interest was for the lower courts to read the

word “substantially” out of the statute and require a

full victory on the merits. But that is what the lower

courts in this case did, thereby violating the surplusage canon (and possibly other canons, including the

presumption against ineffectiveness, see Scalia and

Garner at 63–65), while presenting a good vehicle for

the Court to address this issue.

ii. The Court of Appeals’ Approach is

Irreconcilable with CAFRA’s Legislative History.

The court of appeals’ approach fares no better if

one examines the legislative history. The House Report

on CAFRA expressly stated that this provision was designed to, among other goals, “give owners innocent of

any wrongdoing the means to recover their property

19

and make themselves whole after wrongful government

seizures.” Pet. App. 90 (emphasis added); see also, e.g.,

United States v. Coffman, 625 F. App’x 285, 289 (6th

Cir. 2015) (“[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.” (emphasis

added)); United States v. Certain Real Prop., Located at

317 Nick Fitchard Rd., N.W., Huntsville, AL, 579 F.3d

1315, 1322 (11th Cir. 2009) (using same quote (emphasis added)).

The House Report also explained that this approach was being taken in response to the problem

that “many civil seizures are not challenged” due to the

costs incurred along “the arduous path one must journey” to challenge them, “often without the benefit of

counsel, and perhaps without any money left after the

seizure with which to fight the battle.” Pet. App. 96–97;

see also 317 Nick Fitchard Rd., 570 F.3d at 1322–23

(discussing this specific aspect of House Report). In

other words, Congress intended the provision to have

the exact opposite effect as the approach taken by the

lower courts in this case. The Court should accept this

opportunity to finally settle this important federal

question.

20

iii. The Court of Appeals’ Approach

Makes It More Difficult for a Claimant to “Substantially Prevail” Than

to “Prevail.”

Even setting aside the difference, arguendo, between substantially prevailing and prevailing, the approach taken by the court of appeals worsens another

problem. Under the court of appeals’ approach, it was

more difficult for Ms. Salgado to “substantially prevail”

than it would be for Ms. Salgado to “prevail” under this

Court’s precedent. See CRST Van Expedited, Inc. v.

EEOC, 136 S. Ct. 1642, 1651–53 (2016). The lower

courts have turned Congress’s plainly stated goal of

making it easier for civil forfeiture claimants to prevail

on its head.

In CRST Van Expedited, the Court held that a ruling on the merits is not required for a party to be

awarded attorneys’ fees and costs as a prevailing party.

Id. at 1646. Instead, the party is merely required to obtain a “material alteration of the legal relationship of

the parties” that is “marked by ‘judicial imprimatur.’ ”

Id. (quoting Texas State Teachers Ass’n v. Garland Indep. School Dist., 489 U.S. 782, 792–93 (1989); and

Buckhannon Bd. and Care Home, Inc. v. West Virginia

Dep’t of Health and Human Res., 532 U.S. 598, 605

(2001); respectively) (emphasis in original).

Ms. Salgado meets the criteria this Court stated in

CRST Van Expedited. Indeed, the district court believed that it had materially changed the parties’ legal

relationship, which the district court thought made

dismissal with prejudice unnecessary. Pet. App. 30.

21

Ms. Salgado’s argument is also consistent with the

Court’s underlying logic. In CRST Van Expedited, the

Court explained that common sense must be used in

reading statutes. See 136 S. Ct. at 1651. There, “[c]ommon sense undermine[d] the notion that a defendant

cannot ‘prevail’ unless the relevant disposition is on

the merits.” Id.

Here, common sense similarly undermines the approach taken by the courts below. Other than the feeshifting question at issue here, Ms. Salgado wanted

two types of practical relief: She wanted her money

back, and she wanted the government to be prevented

from seeking forfeiture against her money in the future. She successfully obtained both.

Even if many courts insist on conflating “substantially prevailing” and “prevailing,” the former should

not be more stringent on claimants than the latter. Yet,

that is the result in civil forfeiture cases, as shown by

the case at hand. The Court should resolve this tension.

C. This Confusion Leads to Well-Chronicled

Abuses, Including Those Mentioned by

Justices Thomas and Sotomayor.

As Justice Thomas has already pointed out, the

civil forfeiture “system—where police can seize property with limited judicial oversight and retain it for

its own use—has led to egregious and well-chronicled

abuses.” See Leonard v. Texas, 137 S. Ct. 847, 848

(2017) (Thomas, J., statement respecting the denial

22

of certiorari). And Justice Sotomayor recently compared aspects of the civil forfeiture process to the

Star Chamber. See Mark Joseph Stern, Neil Gorsuch

and Sonia Sotomayor Just Came Out Swinging

Against Policing for Profit, SLATE (Nov. 28, 2018)

https://slate.com/news-and-politics/2018/11/neil-gorsuchsonia-sotomayor-tyson-timbs-civil-forfeiture.html. These

problems are only getting worse, in large part due to

many lower courts’ failure to apply the disincentives

for abuse Congress crafted in 28 U.S.C. § 2465(b)(1).

Government at all levels has become addicted to

civil forfeiture money. One recent national study found

that over 60 percent of the 1,400 municipal and county

agencies surveyed admitted that they “relied on forfeiture profits as a necessary part of their budget.” Note,

How Crime Pays: The Unconstitutionality of Modern

Civil Asset Forfeiture as a Tool of Criminal Law Enforcement, Harvard L. Rev. (June 8, 2018). Another

found that 87 percent of all U.S. Department of Justice

forfeitures are now civil rather than criminal. See D.

Carpenter, et al., at 12.

As civil forfeiture has grown, so too have its

abuses. We have reached the point where news stories

about forfeiture abuse that once horrified us now seem

routine. See, e.g., Christopher Ingraham, How Police

Took $53,000 from a Christian Band, an Orphanage,

and a Church, WASH. POST (Apr. 25, 2016); Bobby Allyn

& Ryan Briggs, Cash Grab: As Asset Forfeiture Quietly

Expands Across Pa., Abuses Follow, PA. POST (Apr. 24,

2019); Nate Gartrell, Contra Costa Cops Seized $1.1

Million From People Not Charged With a Crime in Past

23

Four Years, Records Show, THE MERCURY NEWS (June

14, 2019); German Lopez, “It’s Been Complete Hell”:

How Police Used a Traffic Stop to Take $91,800 from an

Innocent Man, VOX (Mar. 20, 2018); Nick Sibilla, Cops

Use Traffic Stops to Seize Millions From Drivers Never

Charged with a Crime, FORBES (Mar. 12, 2014). Even

comedian John Oliver has taken notice. See Last Week

Tonight with John Oliver, Civil Forfeiture, YOUTUBE

(Oct. 5, 2014) https://www.youtube.com/watch?v=3kE

pZWGgJks.

Although the Court addressed one aspect of civil

forfeiture abuse last term in Timbs, when it held that

the Eighth Amendment’s Excessive Fines Clause is incorporated against the states, see Timbs v. Indiana,

139 S. Ct. 682, 686–87 (2019), the profit incentive driving most civil forfeiture abuse was not before the Court

in Timbs. Nor could the Court have remedied the related issue presented here, which is the judicially-created “get out of jail free” card that allows the United

States to evade financial responsibility for the harm it

causes as long as the government moves to voluntarily

dismiss the lawsuit without prejudice prior to the district court’s summary judgment ruling. See Smith at

§ 10.08[2].

When courts remove the disincentives created by

Congress, the United States responds precisely as one

would expect. The United States does everything possible to maximize forfeiture revenue, knowing that

most courts will later allow it to avoid the disincentives

found in the statute. See id.

24

Without oversight from this Court, this national

problem will only continue to worsen. And the very nature of the problem will often prevent these cases from

reaching the Court. That is why the Court should take

full advantage of the rare opportunity to address the

questions presented here. The Court should grant

certiorari.

II.

The Circuit Split Over Whether Dismissal

Without Prejudice is Allowed in this Situation Has Resulted in Different Levels of

Protection Against Forfeiture Abuse Based

Solely on the Circuit Where the Innocent

Owner Lives.

The Court should also grant certiorari as to the

second question presented because the opinion below

exacerbates a split between four federal circuits. The

subject of the split concerns whether it is an abuse of

discretion for a district court to dismiss a civil forfeiture case without prejudice when the seized money has

been returned to the owner and the case will not be

refiled. This split has also led to widely divergent decisions by district courts across the country. In the jurisdictions where district courts are permitted to dismiss

such cases without prejudice, claimants are placed in

an unwinnable catch-22.

25

A. The Ruling Below Directly Conflicts

with the Ninth Circuit’s Rule.

The case below conflicts directly with the Ninth

Circuit’s ruling in United States v. Ito, 472 F. App’x 841

(9th Cir. 2012), which presented facts remarkably similar to those presented here. In that case, just as in

this case, the government requested dismissal of a

CAFRA lawsuit without prejudice even though it

acknowledged that it did not intend to refile the action.

See United States v. One 2008 Toyota RAV 4 Sports

Utility Vehicle, 2010 WL 11531203, at *1 (C.D. Cal. July

16, 2010), vacated and remanded sub nom. Ito, 472

F. App’x at 841. As in the present case, the district

court in Ito allowed the government to dismiss the case

without prejudice over the claimant’s objections. 472

F. App’x at 841. The district court in Ito even went out

of its way to “emphasize[ ] that there is no evidence

that the Government is acting in bad faith by requesting the dismissal without prejudice.” Id. at 3.

But unlike the Eleventh Circuit, the Ninth Circuit

in Ito reversed the district court and found the dismissal without prejudice to be an abuse of discretion. 472

F. App’x at 842. Applying the same legal standard applied here by the Eleventh Circuit—whether the claimant would “suffer some plain legal prejudice as a result

of the dismissal”5—the Ninth Circuit concluded that

5

The Circuits differ slightly in whether they refer to this as

“clear legal prejudice” or “plain legal prejudice” and apply somewhat different factors for evaluating whether this standard has

been met. See 9 Fed. Prac. & Proc. Civ. § 2364 (“Wright & Miller”)

(3d ed., updated Aug. 2019) (listing and comparing the factors in

each federal circuit). However, those differences are largely

26

“[t]he Itos suffered plain legal prejudice in losing their

ability to move for attorney’s fees.” Id. The court explained that “dismissal without prejudice precludes

prevailing party status” and thus “[w]ithout prevailing

party status, the Itos were unable to bring their attorney’s fees motion under [CAFRA].” Id. As a result, the

Ninth Circuit vacated the dismissal without prejudice

and remanded with instructions to dismiss the case

with prejudice.

In the present case, the Eleventh Circuit diverged

sharply from the Ninth Circuit’s reasoning, finding

that Ms. Salgado was not entitled to dismissal with

prejudice because “a meritorious claimant’s loss of a

right to statutory attorney’s fees . . . cannot constitute

clear legal prejudice unless it is in turn clear that the

claimants would indeed ‘substantially prevail[ ],’ 28

U.S.C. § 2465(b)(1), were the action litigated to judgment.” Pet. App. 15.6 Accordingly, the court of appeals

immaterial to the outcome in CAFRA fee-shifting cases: None of

the circuits expressly consider the effect of dismissal on the availability of attorneys’ fees, and the Eighth and Ninth Circuits apply

identical factors, id., but have reached directly contradictory conclusions. Compare United States v. $32,820.56 in U.S. Currency,

838 F.3d 930, 937 (8th Cir. 2016), with United States v. Ito, 472

F. App’x 841 (9th Cir. 2012).

6

The Eleventh Circuit also ruled that the district court did

not abuse its discretion by initially rejecting as untimely Ms. Salgado’s argument that dismissal should be with prejudice. Id.

However, this question is properly before this Court because both

the court of appeals and the district court below addressed and

ruled on the substantive merits of Ms. Salgado’s argument as

though it were timely made, in part because she raised it in a

motion for reconsideration before the district court. Id. Because

this issue was both raised and decided by the courts below, it is

proper for this Court to review this ruling on the merits. See, e.g.,

27

found that, “it is not clearly apparent from the record

. . . that [Ms. Salgado and Mr. Colorado] ultimately

would have prevailed, so the district court did not

abuse its discretion in dismissing the complaint without prejudice.” Id.

B. The Ruling Below Deepens the Split Between the Ninth Circuit and the Fifth,

Eighth, and (Now) Eleventh Circuits.

By adopting the reasoning described above, the

Eleventh Circuit widens the split between the Fifth

and Eighth Circuits versus the Ninth Circuit on

whether dismissal without prejudice in these circumstances is an abuse of discretion. The ruling below

cited the Eighth Circuit’s ruling in United States v.

$32,820.56 in U.S. Currency, 838 F.3d 930, 937 (8th Cir.

2016) and quoted from the district court’s opinion in

the same case to support its reasoning that: “Finding

plain legal prejudice on th[is] basis would necessarily

presume that the party resisting voluntary dismissal

would have prevailed on the merits if the case continued to a conclusion.” United States v. $32,820.56 in U.S.

Currency, 106 F. Supp. 3d 990, 997 (N.D. Iowa 2015).

On Lee v. United States, 343 U.S. 747, 750 n.3 (1952) (“Though we

think the Court of Appeals would have been within its discretion

in refusing to consider the point, their having passed on it leads

us to treat the merits also.”). Indeed, this Court may even review

issues that were never raised in the courts below and are presented for the first time in a petition. See, e.g., Carlson v. Green,

446 U.S. 14, 17 n.2 (1980); Youakim v. Miller, 425 U.S. 231, 234

(1976).

28

Similarly, in a per curiam opinion, the Fifth Circuit has also held that it is not an abuse of discretion

to deny fees under CAFRA when the government voluntarily dismisses a civil forfeiture case without prejudice. See United States v. Minh Huynh, 334 F. App’x

636, 639 (5th Cir. 2009).

By joining with the Fifth and Eighth Circuits in

holdings that directly conflict with the Ninth Circuit

(and a district court in the Fourth Circuit),7 the Eleventh Circuit has deepened the circuit split on this issue. This Court should resolve that split.

C. The Circuit Split on This Issue Has Created Chaos in the District Courts, with

Widely Divergent Outcomes.

The circuit split noted above has also resulted in

widely divergent outcomes in district courts across the

country. District courts in the Fourth and Eleventh

Circuits have held that dismissing a case without

prejudice would likely deprive claimants of their

rights to seek fees under CAFRA and have instead dismissed the cases with prejudice. See United States v.

$107,702.66 in U.S. Currency, No. 7:14-CV-00295-F,

2016 WL 413093, at *3-4 (E.D.N.C. Feb. 2, 2016);

7

United States v. $107,702.66 in U.S. Currency, No. 7:14CV-00295-F, 2016 WL 413093, at *4 (E.D.N.C. Feb. 2, 2016) (ruling that dismissing a civil forfeiture case without prejudice would

create a “substantial legal prejudice” to the claimant because “a

voluntary dismissal without prejudice would likely preclude prevailing party status under CAFRA, depriving Claimants of their

right to bring a claim under that statute.”).

29

United States v. Certain Real Prop., 543 F. Supp. 2d

1291, 1292, 1294 (N.D. Ala. 2008) (dismissing case with

prejudice after it was clear that “the government has

no intention of pursuing this civil forfeiture action,”

and awarding attorneys’ fees under CAFRA, noting

that, “[i]f the court were to side with the government

and dismiss this case without prejudice and deny the

claimants request for attorneys’ fees under CAFRA it

would render the fee-shifting provisions of CAFRA essentially meaningless.”)

In addition to the district court rulings overturned

in Ito, and upheld in Huynh and $32,820.56 in U.S.

Currency, district courts in the Second, Third, and

Sixth Circuits have granted dismissals without prejudice in civil forfeiture cases without regard to the

impact that may have on the claimant’s ability to

seek attorneys’ fees under CAFRA. See United States

v. Approximately $16,500.00 in U.S. Currency, 113

F. Supp. 3d 776, 779–80 (M.D. Pa. 2015); United States

v. Any & All Funds on Deposit at JPMorgan Chase, No.

12-CIV-7530, 2013 WL 5511348, at *1 (S.D.N.Y. Oct. 2,

2013); United States v. 115-98 Park Lane South, No.

10-CIV-3748, 2012 WL 3861221, at *5 (E.D.N.Y. Sept.

5, 2012), aff ’d sub nom. United States v. Capital Stack

Fund, LLC, 543 F. App’x 17 (2d Cir. 2013); United

States v. 2007 BMW 335i Convertible, 648 F. Supp. 2d

944, 952 (N.D. Ohio 2009).

To bring uniformity to the federal courts on this

issue, the Court should grant certiorari.

30

D. The Side of the Circuit Split Joined by

the Court Below Creates a Catch-22.

In practice, the position staked out by the Fifth,

Eighth, and Eleventh Circuits holds that claimants

cannot substantially prevail before a dismissal without prejudice (because the right to recover fees, costs,

and interest has not yet vested) and that there is no

clear legal prejudice once a dismissal without prejudice has been granted (because no right to recover fees,

costs, and interest ever vests).

This presents a catch-22 for claimants. In order for

an innocent owner to be awarded attorneys’ fees under

CAFRA, the government’s case against the money or

property cannot be dismissed without prejudice. But the

innocent owner cannot prevent the case from being dismissed without prejudice because, in these circuits, their

right to be awarded attorneys’ fees has not yet vested.

The Court should resolve this quandary. By

granting certiorari, not only can the Court resolve

the deepening circuit split, but the Court can do so

in a way as to rescue innocent civil forfeiture claimants in the Fifth, Eighth, and Eleventh Circuits from

the unwinnable situation created by those circuits’

holdings.

------------------------------------------------------------------

31

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

JUSTIN PEARSON*

INSTITUTE FOR JUSTICE

2 S. Biscayne Boulevard

Suite 3180

Miami, FL 33131

(305) 721-1600

jpearson@ij.org

*Counsel of Record

DAN ALBAN

INSTITUTE FOR JUSTICE

901 N. Glebe Road

Suite 900

Arlington, VA 22203

(703) 682-9320

dalban@ij.org

Counsel for Petitioner

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