Amicus Curiae Brief — Luis Sanchez, et al., Petitioners v. United States

No. 23-1050

IN THE

Supreme Court of the United States

LUIS SANCHEZ, ET AL.,

Petitioners,

v.

UNITED STATES,

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

BRIEF OF THE CATO INSTITUTE AND THE

GOLDWATER INSTITUTE AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

CLARK M. NEILY III

CATO INSTITUTE

1000 Massachusetts

Avenue NW

Washington, DC 20001

KAMRON KOMPANI

SCHARF-NORTON CENTER

FOR CONSTITUTIONAL

LITIGATION AT THE

GOLDWATER INSTITUTE

500 E. Coronado Road

Phoenix, AZ 85004

May 10, 2024

THOMAS M. JOHNSON, JR.

Counsel of Record

JOEL S. NOLETTE

DANIEL T. PARK

WILEY REIN LLP

2050 M Street NW

Washington, DC 20036

tmjohnson@wiley.law

(202) 719-7000

Counsel for Amici Curiae

i

QUESTION PRESENTED

Whether a timely filed 21 U.S.C. § 853(n) petition may be amended to cure a pleading deficiency

after the 30-day filing period has run, as the Second

and Seventh Circuits hold; or whether § 853(n)(2)’s

30-day deadline for filing a petition precludes any

amendment after the filing deadline has expired, as

the Eleventh and Fifth Circuits hold.

ii

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..................................... iii

INTEREST OF AMICI CURIAE ................................1

SUMMARY OF ARGUMENT.....................................2

ARGUMENT ...............................................................3

I.

II.

THE COURT SHOULD GRANT CERTIORARI

BECAUSE THE ELEVENTH CIRCUIT’S DECISION

CANNOT BE SQUARED WITH THE “DUE PROCESS

OF LAW” ..............................................................3

A.

The Rule Adopted Below Denies

Property Owners Their Procedural

Rights ......................................................4

B.

The Rule Adopted Below Threatens

Fundamental Fairness to Property

Owners ..................................................12

THE UNPUBLISHED STATUS OF THE DECISIONS

ON THE WRONG SIDE OF THE CIRCUIT SPLIT

FURTHER JUSTIFIES GRANTING CERTIORARI ....15

CONCLUSION ..........................................................19

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Abbott v. Abbott,

560 U.S. 1 (2010) ................................................. 8

Burdeau v. McDowell,

256 U.S. 465 (1921) ........................................... 12

Califano v. Yamasaki,

442 U.S. 682 (1979) ............................................. 6

Chambers v. NASCO, Inc.,

501 U.S. 32 (1991) ............................................... 6

County of Los Angeles v. Kling,

474 U.S. 936 (1985) ........................................... 17

Comm’r of Internal Revenue v. McCoy,

484 U.S. 3 (1987) ............................................... 16

CTS Corp. v. Waldburger,

573 U.S. 1 (2014) ................................................. 8

Culley v. Marshall,

No. 22-585 (U.S. May 9, 2024).......................... 14

Dir., Off. of Workers’ Comp. Programs, Dep’t

of Labor v. Newport News Shipbuilding

& Dry Dock Co.,

514 U.S. 122 (1995) ............................................. 8

Federated Dep’t Stores, Inc. v. Moitie,

452 U.S. 394 (1981) ........................................... 15

iv

Foman v. Davis,

371 U.S. 178 (1962) ............................................. 7

Gillespie v. U.S. Steel Corp.,

379 U.S. 148 (1964) ............................................. 7

Heffernan v. City of Paterson,

578 U.S. 266 (2016) ........................................... 12

Johnson v. United States,

576 U.S. 591 (2015) ............................................. 4

Joint Anti-Fascist Refugee Comm. v.

McGrath,

341 U.S. 123 (1951) ........................................... 15

Jones v. Bock,

549 U.S. 199 (2007) ........................................... 10

Lassiter v. Dep’t of Soc. Servs. of Durham

Cnty.,

452 U.S. 18 (1981) ............................................. 12

Leonard v. Texas,

580 U.S. 1178 (2017) ......................................... 14

Lynch v. Household Fin. Corp.,

405 U.S. 538 (1972) ............................................. 3

Marshall v. Jerrico, Inc.,

446 U.S. 238 (1980) ............................................. 4

Mayberry v. Pennsylvania,

400 U.S. 455 (1971) ..................................... 14–15

McCurdy v. United States,

264 U.S. 484 (1924) ............................................. 9

v

McIntosh v. United States,

601 U.S. ___, 144 S. Ct. 980 (2024) ............ 13–14

N.C. Dep’t of Revenue v. The Kimberley Rice

Kaestner 1992 Fam. Tr.,

588 U.S. 262 (2019) ........................................... 12

Offutt v. United States,

348 U.S. 11 (1954) ............................................. 15

Plumley v. Austin,

574 U.S. 1127 (2015) ......................................... 17

United States ex rel. Polansky v. Exec.

Health Res., Inc.,

599 U.S. 419 (2023) ............................................. 6

RJR Nabisco, Inc. v. European Cmty.,

579 U.S. 325 (2016) ........................................... 12

Scarborough v. Principi,

541 U.S. 401 (2004) ................................... 6, 9, 11

Se. Pa. Transp. Auth. v. Orrstown Fin.

Servs. Inc.,

12 F.4th 337 (3d Cir. 2021)................................. 9

SEC v. Secs. Inv. Prot. Corp.,

842 F. Supp. 2d 321 (D.D.C. 2012) ..................... 6

Smith v. United States,

502 U.S. 1017 (1991) ................................... 16–18

Troconis-Escovar v. United States,

59 F.4th 273 (7th Cir. 2023) ............................. 10

vi

United States v. $125,938.62,

370 F.3d 1325 (11th Cir. 2004)......................... 10

United States v. $39,480.00 in U.S.

Currency,

190 F. Supp. 2d 929 (W.D. Tex. 2002).............. 13

United States v. Alcaraz-Garcia,

79 F.3d 769 (9th Cir. 1996)................................. 5

United States v. All Funds on Deposit with

R.J. O’Brien & Assocs.,

892 F. Supp. 2d 1038 (N.D. Ill. 2012)............... 10

United States v. Bradley,

882 F.3d 390 (2d Cir. 2018) ................................ 5

United States v. Butt,

930 F.3d 410 (5th Cir. 2019)............................... 5

United States v. Daugerdas,

892 F.3d 545 (2d Cir. 2018) ................................ 4

United States v. Davenport,

668 F.3d 1316 (11th Cir. 2012)................. 3–4, 10

United States v. Furando,

40 F.4th 567 (7th Cir. 2022) ....................... 5, 7–8

United States v. Hougham,

364 U.S. 310 (1960) ............................................. 7

United States v. James Daniel Good Real

Prop.,

510 U.S. 43 (1993) ......................................... 3, 12

vii

United States v. Lamid,

663 F. App’x 319 (5th Cir. 2016) ................ 16–17

United States v. Lavin,

942 F.2d 177 (3d Cir. 1991) ................................ 5

United States v. Mar. Life Caribbean Ltd.,

913 F.3d 1027 (11th Cir. 2019)........................... 5

United States v. McHan,

345 F.3d 262 (4th Cir. 2003)............................... 5

United States v. Moser,

586 F.3d 1089 (8th Cir. 2009)............................. 5

United States v. Negron-Torres,

876 F. Supp. 2d 1301 (M.D. Fla. 2012) .............. 5

United States v. Nordic Vill. Inc.,

503 U.S. 30 (1992) ............................................. 11

United States v. One Rural Lot Identified as

FINCA No. 5991 Located in Barrio

Pueblo, Puerto Rico,

726 F. Supp. 2d 61 (D.P.R. 2010) ....................... 5

United States v. Sanchez,

No. 22-11923, 2023 WL 5844958 (11th

Cir. Sept. 11, 2023) ..................................... 15–16

United States v. Sanders,

No. 22-2290, 2023 WL 8183302 (4th Cir.

Nov. 27, 2023) ..................................................... 2

United States v. Simon,

609 F. App’x 1002 (11th Cir. 2015) .................. 10

viii

United States v. Six Hundred Fourteen

Thousand Three Hundred Thirty-Eight

Dollars and No Cents ($614,338.00) in

U.S. Currency,

240 F. Supp. 3d 287 (D. Del. 2017) .................. 13

United States v. Stells,

Crim. No. 14-16-DLB-CJS-01, 2016 WL

489522 (E.D. Ky. Jan. 19, 2016) ......................... 5

United States v. Swartz Fam. Tr.,

67 F.4th 505 (2d Cir. 2023)............................... 11

United States v. Ursery,

518 U.S. 267 (1996) ............................................. 5

United States v. Wade,

93 F. Supp. 2d 19 (D.D.C. 2000) ......................... 5

United States v. Ward,

No. 07-cr-30013-01, 2007 WL 2993870

(W.D. La. Oct. 11, 2007) ................................... 17

United States v. Zelaya Rojas,

364 F. Supp. 3d 626 (E.D. La. 2019) ................ 17

VanHorne’s Lessee v. Dorrance,

28 F. Cas. 1012 (C.C.D. Pa. 1795)

(No. 16,857) ......................................................... 3

Voris v. Eikel,

346 U.S. 328 (1953) ............................................. 8

Wadsworth v. U.S. Postal Serv.,

511 F.2d 64 (7th Cir. 1975)................................. 9

ix

Watkins v. Lujan,

922 F.2d 261 (5th Cir. 1991)............................... 9

Wilkinson v. Leland,

27 U.S. (2 Pet.) 627 (1829) .............................. 3, 8

Williams v. Dall. Area Rapid Transit,

256 F.3d 260 (5th Cir. 2001)............................. 18

In re Winship,

397 U.S. 358 (1970) ............................................. 4

Constitutional Provisions

U.S. Const. amend. V ........................................... 2–3

Statutes

18 U.S.C. § 983 ............................................. 9–10, 13

21 U.S.C. § 853 ................................................... 2–15

28 U.S.C. § 2412 ..................................................... 11

Other Materials

5th Cir. R. 47.5.4 .................................................... 16

11th Cir. R. 36-2 ..................................................... 16

8 John Bourdeau et al., Fed. Proc., L. Ed. §

20:640, Westlaw (updated Mar. 2024) ............... 6

Fed. R. Civ. P. 1 ........................................................ 5

Fed. R. Civ. P. 15 ........................................ 6, 8–9, 11

x

Fed. R. Crim. P. 32.2 .......................................... 6, 13

Ruth Bader Ginsburg, Remarks on Writing

Separately, 65 Wash. L. Rev. 133 (1990) ......... 17

Brief for the United States in Opposition,

Hallinan v. United States, No. 19-1087

(U.S. May 26, 2020), 2020 WL 2747444 ........... 16

Brief for the United States in Opposition,

Kapoor v. United States, Nos. 21-994,

21-6952 (U.S. Apr. 29, 2022), 2022 WL

1307087 ............................................................. 16

Brief for the United States in Opposition,

Kinzy v. United States, No. 23-578 (U.S.

Apr. 12, 2024), 2024 WL 1622770 .................... 16

Merritt E. McAlister, Rebuilding the

Federal Circuit Courts, 116 Nw. U. L.

Rev. 1137 (2022) ............................................... 16

Victor Nava, Federal Judge Accuses the

DOJ of Hypocrisy for ‘Flouting’ Biden

Impeachment Inquiry Subpoenas, N.Y.

Post (Apr. 5, 2024), available at

https://tinyurl.com/3a4npxc2 ............................ 14

Brief of the DKT Liberty Project, Cato Institute, Goldwater Institute, Due Process Institute, Federal Bar Association

Civil Rights Section, and Texas Public

Policy Foundation as Amici Curiae in

Support of Petitioners, Timbs v. Indiana, No. 17-1091 (U.S. Sept. 11, 2018),

2018 WL 4358107 ............................................... 1

xi

Patricia M. Wald, The Problem with the

Courts: Black-Robed Bureaucracy, or

Collegiality Under Challenge?, 42 Md. L.

Rev. 766 (1983) ................................................. 18

4 Charles A. Wright & Arthur R. Miller,

Fed. Prac. & Proc. Civ. § 1028, Westlaw

(4th ed. updated Apr. 2023) ................................ 6

6 Charles A. Wright & Arthur R. Miller,

Fed. Prac. & Proc. Civ. § 1484, Westlaw

(3d ed. updated Apr. 2023) ................................. 7

INTEREST OF AMICI CURIAE1

The Cato Institute (“Cato”) is a nonpartisan public policy research foundation founded in 1977 and

dedicated to advancing the principles of individual

liberty, free markets, and limited government. Cato’s Robert A. Levy Center for Constitutional Studies

was established in 1989 to help restore the principles

of limited constitutional government that are the

foundation of liberty. Toward those ends, Cato publishes books and studies, conducts conferences, produces the annual Cato Supreme Court Review, and

files amicus briefs in cases implicating its objectives,

including in lawsuits involving asset forfeiture. See,

e.g., Brief of the DKT Liberty Project, Cato Institute,

Goldwater Institute, Due Process Institute, Federal

Bar Association Civil Rights Section, and Texas Public Policy Foundation as Amici Curiae in Support of

Petitioners, Timbs v. Indiana, No. 17-1091 (U.S.

Sept. 11, 2018), 2018 WL 4358107.

The Goldwater Institute (“Goldwater”) was established in 1988 as a nonpartisan public policy

foundation devoted to principles of limited government, individual freedom, and constitutional protections. Through its Scharf-Norton Center for Constitutional Litigation, Goldwater litigates cases and

files amicus briefs when its or its clients’ objectives

are implicated, and it has represented parties in as1 No counsel for a party authored this brief in whole or in part,

and no person or entity other than amici curiae or their counsel

made a monetary contribution intended to fund the preparation

or submission of this brief. Counsel of record for all parties

were provided timely notice of amici curiae’s intent to file this

brief.

2

set-forfeiture cases in federal and state courts across

the country. See, e.g., United States v. Sanders, No.

22-2290, 2023 WL 8183302 (4th Cir. Nov. 27, 2023)

(per curiam).

This case interests Cato and Goldwater because

they recognize that the right to property is essential

for individual liberty. The decision below threatens

those values by misapplying a statute intended to

protect the rights of owners whose property gets

caught up in third-party criminal forfeiture.

SUMMARY OF ARGUMENT

Government exists to protect ordered liberty, including the right to property, which is expressly protected from deprivation “without due process of law”

by the Fifth Amendment. On one view, in perhaps

its most basic sense, this guarantee requires the

government to afford individuals all the procedures

to which they are legally entitled before depriving

them of their property. And more robustly understood, this guarantee imposes a broader duty of fundamental fairness on the government.

Section 853(n) of Title 21 provides the only mechanism by which innocent owners can compel the return of their property after it has been preliminarily

forfeited in third-party criminal proceedings. Thus,

due process is especially vital in § 853(n) proceedings. But in four sentences in an unpublished opinion, the Eleventh Circuit undercut due process and

facilitated the violation of property rights—

deepening a circuit split in doing so—by adopting a

rule prohibiting the purely formal amendment of

timely filed § 853(n) petitions. The Court should

grant certiorari because this rule fails to ensure the

3

process that is due when the government seeks to

forfeit property that belongs to someone who has not

even been charged with, let alone found guilty of,

any misconduct.

ARGUMENT

I. THE COURT SHOULD GRANT CERTIORARI

BECAUSE THE ELEVENTH CIRCUIT’S DECISION

CANNOT BE SQUARED WITH THE “DUE PROCESS

OF LAW”

The “fundamental maxims of a free government”

dictate that “the rights of personal liberty and private property” be “held sacred.” Wilkinson v. Leland, 27 U.S. (2 Pet.) 627, 657 (1829) (Story, J.). Indeed, the “preservation of property” was “a primary

object of the social compact,” VanHorne’s Lessee v.

Dorrance, 28 F. Cas. 1012, 1015 (C.C.D. Pa. 1795)

(No. 16,857) (Paterson, J.), which the Fifth Amendment shows by prohibiting deprivations of property

“without due process of law,” U.S. Const. amend. V.

This protection is essential to “individual freedom,”

which “finds tangible expression in property rights.”

See United States v. James Daniel Good Real Prop.,

510 U.S. 43, 61 (1993); see also Lynch v. Household

Fin. Corp., 405 U.S. 538, 552 (1972) (recognizing the

“fundamental interdependence” and false dichotomy

between personal liberty and property rights);

VanHorne’s Lessee, 28 F. Cas. at 1015 (“Property is

necessary to [people’s] subsistence, and correspondent to their natural wants and desires . . . .”).

Section 853(n) of Title 21 provides the “sole

means by which a . . . claimant can establish entitlement to return” of property preliminarily forfeited

in third-party criminal proceedings. United States v.

4

Davenport, 668 F.3d 1316, 1320 (11th Cir. 2012) (citing Libretti v. United States, 516 U.S. 29, 44 (1995)).

Thus, due process of law takes on heightened importance in § 853(n) proceedings. See, e.g., United

States v. Daugerdas, 892 F.3d 545, 553 n.7 (2d Cir.

2018) (permitting amendment of an § 853(n) petition

in part “because of the significant constitutional

rights potentially at stake”). But the Eleventh Circuit took a decidedly different tack in the decision

below by adopting a rule that leave to amend a timely filed petition cannot be granted after the filing

deadline in § 853(n)(2) has passed. See App. to Pet.

Cert. 12–13. Whether due process is understood in

its more-basic or more-robust senses, the rule adopted by the Eleventh Circuit cannot be squared with

that guarantee.

A. The Rule Adopted Below Denies Property Owners Their Procedural Rights

To some, “due process of law” means simply that

the government must act consistently with the requirements of positive law that apply in the circumstances. See Johnson v. United States, 576 U.S. 591,

622–23 (2015) (Thomas, J., concurring in the judgment); In re Winship, 397 U.S. 358, 382 (1970)

(Black, J., dissenting); cf. Marshall v. Jerrico, Inc.,

446 U.S. 238, 242 (1980) (noting that one “central

concern[]” of “procedural due process” is to prevent

deprivations “on the basis of an erroneous or distorted conception of . . . the law”). But even on that

basic understanding of the Fifth Amendment, the

Eleventh Circuit’s decision does not pass muster because it denies § 853(n) petitioners some of the process they are due—the right to seek and obtain leave

5

to amend a timely filed § 853(n) petition after the filing deadline has passed.

To begin, given the “procedural mechanisms” prescribed in § 853(n)—including the preponderance-ofevidence burden of proof and the placing of that burden on petitioners—there is “little doubt that Congress intended” § 853(n) proceedings “to be civil proceedings.” See United States v. Ursery, 518 U.S. 267,

288–89 (1996) (discussing forfeiture proceedings under 21 U.S.C. § 881 and 18 U.S.C. § 981). Thus,

§ 853(n) proceedings are considered “civil in nature.”

See, e.g., United States v. Mar. Life Caribbean Ltd.,

913 F.3d 1027, 1036 (11th Cir. 2019); United States

v. Butt, 930 F.3d 410, 413 (5th Cir. 2019).2

Accordingly, § 853(n) proceedings are generally

“governed by the Federal Rules of Civil Procedure.”

United States v. Negron-Torres, 876 F. Supp. 2d

1301, 1304 (M.D. Fla. 2012); see also Fed. R. Civ. P. 1

(“These rules govern the procedure in all civil . . . proceedings in the United States district

2 Accord United States v. Furando, 40 F.4th 567, 580 (7th Cir.

2022); United States v. Bradley, 882 F.3d 390, 392–93 (2d Cir.

2018); United States v. Moser, 586 F.3d 1089, 1092–94 (8th Cir.

2009); United States v. McHan, 345 F.3d 262, 275 (4th Cir.

2003); United States v. Lavin, 942 F.2d 177, 181–82 (3d Cir.

1991); United States v. Alcaraz-Garcia, 79 F.3d 769, 772 n.4

(9th Cir. 1996); United States v. Stells, Crim. No. 14-16-DLBCJS-01, 2016 WL 489522, at *3 n.3 (E.D. Ky. Jan. 19, 2016),

report and recommendation adopted, 2016 WL 502044 (E.D.

Ky. Feb. 8, 2016); United States v. One Rural Lot Identified as

FINCA No. 5991 Located in Barrio Pueblo, Puerto Rico, 726 F.

Supp. 2d 61, 68 (D.P.R. 2010); United States v. Wade, 93 F.

Supp. 2d 19, 21 (D.D.C. 2000).

6

courts . . . .”); 4 Charles A. Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. § 1028, Westlaw (4th ed.

updated Apr. 2023) (noting that, unless “expressly

excluded,” the Federal Rules of Civil Procedure govern “all adversary proceedings of a civil nature”).3

Under Rule 15, courts must “freely give leave” to

amend “when justice so requires.” Fed. R. Civ.

P. 15(a)(2).4 This standard requires “liberality in allowing amendment of pleadings to achieve the ends

3 Granted, given the ancillary nature of § 853(n) proceedings

and the specific procedures prescribed therein, “it would not be

appropriate to make the Civil Rules applicable in all respects.”

See Fed. R. Crim. P. 32.2, Committee Notes on Rules—2000

(emphasis added). Even so, like other statutes involving civil

proceedings, § 853(n) “ought to be construed to harmonize with

the Rules” wherever possible. See 8 John Bourdeau et al., Fed.

Proc., L. Ed. § 20:640, text accompanying note 8, Westlaw (updated Mar. 2024); see also Califano v. Yamasaki, 442 U.S. 682,

700 (1979) (noting that the rules govern absent a “clear expression” from Congress to the contrary); United States ex rel. Polansky v. Exec. Health Res., Inc., 599 U.S. 419, 436 (2023)

(same).

4 Rule 15 addresses “pleadings.” Even assuming the rule does

not squarely cover § 853(n) petitions, a court has inherent power to grant leave to amend, see Fed. R. Civ. P. 15, Notes of Advisory Committee on Rules—1937; Chambers v. NASCO, Inc.,

501 U.S. 32, 47–49 (1991), and Rule 15 still applies to “properly

guide[]” that analysis, see Scarborough v. Principi, 541 U.S.

401, 417–19 (2004) (applying the relation-back doctrine under

Rule 15(c) to a fee application under 28 U.S.C. § 2412(d) despite

acknowledging that such application is not a “pleading”); cf.

SEC v. Secs. Inv. Prot. Corp., 842 F. Supp. 2d 321, 327–28

(D.D.C. 2012) (noting that, even in proceedings where the rules

do not squarely govern, courts still may apply them “as circumstances and justice require”).

7

of justice.” Gillespie v. U.S. Steel Corp., 379 U.S.

148, 158 (1964). Thus, whenever justice so requires,

a litigant effectively has “a right to amend” under

Rule 15(a)(2). See United States v. Hougham, 364

U.S. 310, 311, 316–17 (1960) (holding that the district court “erred” in denying the government leave

to amend to seek additional damages for fraud on

the government); see also Foman v. Davis, 371 U.S.

178, 182 (1962) (stating that Rule 15(a)(2)’s “mandate is to be heeded”). And “amendments under

Rule 15(a)(2) may be made at any stage of the litigation.” 6 Charles A. Wright & Arthur R. Miller, Fed.

Prac. & Proc. Civ. § 1484, text accompanying note

11, Westlaw (3d ed. updated Apr. 2023). Accordingly, § 853(n) petitioners may seek and obtain (when

justice so requires) leave to amend, even after

§ 853(n)(2)’s filing deadline has passed.

The rule adopted by the Eleventh Circuit denies

§ 853(n) petitioners this right to seek and obtain

leave to amend. Thus, that rule denies those petitioners some of the process they are due, even on

this basic understanding of the Fifth Amendment.

The Eleventh Circuit’s brief analysis suggests

that, in its view, such process is not owed to § 853(n)

petitioners because the filing deadline is “mandatory” and “absolute” and must be “strictly construed.”

See App. 12–13 (internal quotation marks omitted).

For three reasons, this logic does not hold.

First, the notion that § 853(n) must be “strictly

construed” flies in the face of the plain text of the

statute. See Furando, 40 F.4th at 579 (noting that

“statutory language casts . . . some doubt on this

[strict-construction] sentiment”). In § 853(o), Con-

8

gress directed courts to “liberally construe[]” the

provisions of § 853 “to effectuate its remedial purposes.” Whatever the viability of the remedialpurposes canon in the abstract, see Dir., Off. of

Workers’ Comp. Programs, Dep’t of Labor v. Newport

News Shipbuilding & Dry Dock Co., 514 U.S. 122,

135 (1995), applying the canon here is explicitly

“grounded in the statute’s text,” see CTS Corp. v.

Waldburger, 573 U.S. 1, 12 (2014), and thus “applies

with special force” to § 853(n), see Abbott v. Abbott,

560 U.S. 1, 16 (2010).

Section 853(o) requires reading § 853(n) “in a way

which avoids harsh and incongruous results” and “in

conformance with its purpose” of ensuring that owners can reclaim their property. See Voris v. Eikel,

346 U.S. 328, 333 (1953). Here, that requires reading § 853(n) to permit post-deadline amendment, “to

effectuate this lone remedial route” for owners to recover their property. See Furando, 40 F.4th at 579–

80; cf. Wilkinson, 27 U.S. at 657 (“[N]o court of justice in this country would be warranted in assuming,

that the power to violate and disregard [property

rights] . . . lurked under . . . any general expressions

of the will of the people. . . . without very strong and

direct expressions of such an intention.”). Thus,

strict construction does not apply here, let alone dictate reading § 853(n) to prohibit post-deadline

amendment.

Second, the Eleventh Circuit’s rationale is beside

the point under the relation-back doctrine. Under

Rule 15(c), an amendment “relates back” to the date

of the original filing when the amendment “asserts a

claim or defense that arose out of the conduct, trans-

9

action, or occurrence . . . attempted to be set out” in

the original filing. See Fed R. Civ. P. 15(c)(1)(B).

Where, as here, a proposed amendment meets this

test, see, e.g., App. 12 (noting that the proposed

amendment was simply to add a signature directly

to the § 853(n) petition), the amended petition is

treated “as if it had been” filed before the deadline,

even if it is submitted post-deadline, see McCurdy v.

United States, 264 U.S. 484, 487 (1924); see also

Scarborough, 541 U.S. at 417–19 (allowing the postdeadline amendment of a 28 U.S.C. § 2412(d) fee application under the relation-back doctrine). This has

long been true even in the face of jurisdictional deadlines, to say nothing of merely “mandatory” ones.

See, e.g., Watkins v. Lujan, 922 F.2d 261, 263 (5th

Cir. 1991) (observing that a “cause of action can relate back under Rule 15(c) without usurping the jurisdictional nature” of a filing deadline); Wadsworth

v. U.S. Postal Serv., 511 F.2d 64, 66 (7th Cir. 1975)

(“The time bar is jurisdictional, but . . . jurisdiction is

not disturbed by an amendment . . . .”); cf. Se. Pa.

Transp. Auth. v. Orrstown Fin. Servs. Inc., 12 F.4th

337, 345–52 (3d Cir. 2021) (holding that the relationback doctrine under Rule 15(c) allowed amendment

after a statute of repose expired). Thus, even if

§ 853(n)(2)’s deadline were “strict[],” “mandatory,” or

“absolute,” see App. 12–13 (internal quotation marks

omitted), that is irrelevant.

Third, the Eleventh Circuit’s rationale is inconsistent with settled law governing similar filing

deadlines. Perhaps most analogously, consider the

deadlines under the Civil Asset Forfeiture Reform

Act (“CAFRA”) that an owner must comply with to

recover their seized property. See 18 U.S.C. § 983(a).

10

CAFRA provides that claims are to be filed

“not later than” specified deadlines. See 18 U.S.C.

§ 983(a)(2)(B), (a)(4)(A). By their terms, these deadlines are no less “mandatory” than the deadline in

§ 853(n)(2). Compare, e.g., Davenport, 668 F.3d at

1322–23 (calling § 853(n)(2) “mandatory” because it

“requires” claimants to file a petition within the

specified deadline), with, e.g., United States v. Simon, 609 F. App’x 1002, 1006 (11th Cir. 2015) (per

curiam) (noting that, under § 983(a)(2)(B), a claim

“must be made” within the specified deadline), and

Troconis-Escovar v. United States, 59 F.4th 273, 276

(7th Cir. 2023) (same). Yet despite this equivalence,

courts have “liberally permitted” post-deadline

amendments under § 983(a), particularly to allow for

the correction of “technical and procedural errors.”

See, e.g., United States v. $125,938.62, 370 F.3d

1325, 1328–30 (11th Cir. 2004) (per curiam) (internal quotation marks omitted) (holding that the district court abused its discretion in “disallowing” as

untimely an amendment under § 983(a)(4)(A)); United States v. All Funds on Deposit with R.J. O’Brien

& Assocs., 892 F. Supp. 2d 1038, 1041, 1046–47,

1053 (N.D. Ill. 2012) (granting leave to amend

§ 983(a)(4)(A) claims under Rule 15(a)(2)).5

5 Some courts have qualified this approach, permitting

amendment so long as doing so does not “undermine” the “policy interests” of the forfeiture scheme. See $125,938.62, 370

F.3d at 1329–30 (internal quotation marks omitted). But “perceived policy concerns” generally do not warrant departing

“from the usual practice under the Federal Rules.” See Jones v.

Bock, 549 U.S. 199, 212 (2007).

11

Consider also the filing deadline for a fee application under the Equal Access to Justice Act (“EAJA”)

in an action against the United States. See 28

U.S.C. § 2412(d)(1)(B). Under the EAJA, a prevailing party “shall” file a fee application within thirty

days of final judgment in the underlying action. Id.

And this statute effects a partial waiver of the federal government’s sovereign immunity, see Scarborough, 541 U.S. at 419–20, implicating the “traditional principle that the Government’s consent to be

sued must be construed strictly in favor of the sovereign and not enlarged . . . beyond what the language

requires,” United States v. Nordic Vill. Inc., 503 U.S.

30, 34 (1992) (cleaned up); see also Scarborough, 541

U.S. at 423–27 (Thomas, J., dissenting) (making this

point). Even so, this Court held that a “timely filed

EAJA fee application may be amended, out of time,”

to correct a technical defect. See Scarborough, 541

U.S. at 423 (majority opinion).

Faced with a similar deadline, however, the Eleventh Circuit adopted a contrary rule for § 853(n) petitioners. Its rationale departs from this settled law.

In sum, § 853(n) petitioners have the right to

seek and obtain leave to amend “when justice so requires.” See Fed. R. Civ. P. 15(a)(2). But under the

rule adopted below—dictating wrongly “that the

statutory framework categorically preclude[s]

amendment after the 30-day deadline,” see United

States v. Swartz Fam. Tr., 67 F.4th 505, 520 (2d Cir.

2023)—§ 853(n) petitioners will be denied this right.

That rule has denied and will continue to deny

§ 853(n) petitioners their procedural rights unless

this Court intervenes now.

12

B. The Rule Adopted Below Threatens Fundamental Fairness to Property Owners

At another level, as this Court has long recognized, “due process of law” imposes a “requirement of

‘fundamental fairness.’” Lassiter v. Dep’t of Soc.

Servs. of Durham Cnty., 452 U.S. 18, 24–25 (1981);

accord N.C. Dep’t of Revenue v. The Kimberley Rice

Kaestner 1992 Fam. Tr., 588 U.S. 262, 268 (2019).

But by adopting a rule that puts § 853(n) petitioners

on worse footing than the government when it

stands in similar circumstances, the decision below

threatens fundamental fairness in perhaps the worst

way of all—violating the basic requirement of evenhandedness, that “in the law, what is sauce for the

goose is normally sauce for the gander.” Heffernan

v. City of Paterson, 578 U.S. 266, 272 (2016); accord

RJR Nabisco, Inc. v. European Cmty., 579 U.S. 325,

349 (2016); cf. Burdeau v. McDowell, 256 U.S. 465,

477 (1921) (Brandeis, J., dissenting) (“At the foundation of our civil liberty lies the principle which denies

to government officials an exceptional position before

the law . . . .”).

For one, compare the decision below with this

Court’s decision in James Daniel Good Real Property. There, the issue was whether the government’s

failure to comply with several timing prerequisites to

forfeit property under 21 U.S.C. § 881 required the

dismissal of an otherwise timely forfeiture action

brought by the government. See 510 U.S. at 62–63.

This Court held that “courts may not dismiss” a

timely filed forfeiture action for noncompliance with

these other timing requirements. Id. at 65 (emphasis added). Under the rule adopted below, however,

13

basically the opposite is true for § 853(n) petitioners—courts must dismiss timely filed petitions if

other technical defects are present, even if those defects could be cured by amendment post-deadline.

Or consider the comparative solicitude afforded

the government with respect to deadline-compliance

under CAFRA. CAFRA specifies that the government must file a complaint for forfeiture “[n]ot later

than 90 days” after an owner files a claim for the

property in question. See 18 U.S.C. § 983(a)(3)(A).

Even so, courts generally have held that the deadline

can be equitably tolled after-the-fact, doing so when

the government has committed technical errors like

the one here. See, e.g., United States v. Six Hundred

Fourteen Thousand Three Hundred Thirty-Eight

Dollars and No Cents ($614,338.00) in U.S. Currency, 240 F. Supp. 3d 287, 292 (D. Del. 2017) (collecting

authorities and equitably tolling the deadline where

the government mistakenly concluded “in good faith”

that the filing of a claim did not trigger the ninetyday clock); United States v. $39,480.00 in U.S. Currency, 190 F. Supp. 2d 929, 932–33 (W.D. Tex. 2002)

(tolling the deadline where the government’s untimely filing followed from a clerical error). Under the

rule adopted below, however, one technical misstep

in a timely filed petition requires dismissing an

§ 853(n) claim if the misstep would have to be fixed

after the filing deadline.

Further, compare the decision below with this

Court’s decision just a few weeks ago in McIntosh v.

United States, 601 U.S. ___, 144 S. Ct. 980 (2024). In

McIntosh, this Court addressed whether Federal

Rule of Criminal Procedure 32.2(b)(2)(B)’s require-

14

ment that a preliminary order of forfeiture be entered by a particular point in time renders a court

“powerless to order forfeiture against the defendant”

after that time. See 144 S. Ct. at 985. Concluding

that the requirement was merely a “time-related directive,” the Court held that violation of the deadline

“does not deprive a district court of its power to order

forfeiture.” See id. at 992. Yet under the rule adopted by the Eleventh Circuit, a district court is basically powerless to grant relief from forfeiture under

§ 853(n) if the petitioner in essence does not fulfill

every jot and tittle of § 853(n) before the deadline.

Headlines casting doubt on the fundamental fairness of government investigations and proceedings

seem to appear with startling frequency.6 And even

though we are “a Nation so jealous of its liberties,”

too often federal asset-forfeiture practices have been

the subject of these headlines. See Culley v. Marshall, No. 22-585, slip op. at 9 (U.S. May 9, 2024)

(Gorsuch, J., concurring); see also Leonard v. Texas,

580 U.S. 1178, 1179–80 (2017) (Thomas, J., statement respecting denial of certiorari) (recounting just

a few of these headlines). Here, then, the “appearance of evenhanded justice which is at the core of

due process” takes on special import. See Mayberry

6 See, e.g., Victor Nava, Federal Judge Accuses the DOJ of Hy-

pocrisy for ‘Flouting’ Biden Impeachment Inquiry Subpoenas,

N.Y.

Post

(Apr.

5,

2024),

available

at

https://tinyurl.com/3a4npxc2 (“District Judge Ana Reyes, an

appointee of President Biden, argued that the Justice Department was being hypocritical for instructing [DOJ lawyers] not

to comply with [a House] committee’s subpoenas while throwing [Peter Navarro] in prison for similar actions.”).

15

v. Pennsylvania, 400 U.S. 455, 469 (1971) (Harlan,

J., concurring); see also Offutt v. United States, 348

U.S. 11, 14 (1954) (“[J]ustice must satisfy the appearance of justice.”); Joint Anti-Fascist Refugee

Comm. v. McGrath, 341 U.S. 123, 172 n.19 (1951)

(Frankfurter, J., concurring) (“In a government like

ours, entirely popular, care should be taken in every

part of the system, not only to do right, but to satisfy

the community that right is done.” (quoting 5 Daniel

Webster, The Writings and Speeches of Daniel Webster 163)). But at the very least, appearances aside,

the fundamental-fairness requirement inherent in

the “due process of law” requires evenhandedness in

fact. Cf. Federated Dep’t Stores, Inc. v. Moitie, 452

U.S. 394, 401 (1981) (“‘Simple justice’ is achieved

when a complex body of law developed over a period

of years is evenhandedly applied.”).

The onerous rule adopted below for § 853(n) petitioners, especially when contrasted with the liberal

rules adopted by this Court and others for the government in similar contexts, threatens the fundamental fairness of § 853(n) proceedings—to say nothing of appearances. For this reason as well, this

Court’s intervention is warranted now.

II. THE UNPUBLISHED STATUS OF THE DECISIONS

ON THE WRONG SIDE OF THE CIRCUIT SPLIT

FURTHER JUSTIFIES GRANTING CERTIORARI

Petitioners identify a 2-2 circuit split on the question presented. See Pet. Cert. 15–20. Both decisions

on the wrong side of this circuit split are unpublished and thus not technically precedential under those circuits’ rules.

See United States v.

Sanchez, No. 22-11923, 2023 WL 5844958 (11th Cir.

16

Sept. 11, 2023) (per curiam); 11th Cir. R. 36-2; United States v. Lamid, 663 F. App’x 319 (5th Cir. 2016)

(per curiam); 5th Cir. R. 47.5.4. But if anything,

that fact further justifies granting certiorari here.

For one, this Court has made clear that the unpublished status of the decision being challenged is

not a valid reason to deny certiorari. See Comm’r of

Internal Revenue v. McCoy, 484 U.S. 3, 7 (1987) (per

curiam) (granting certiorari and reversing, despite

“nonpublication” of the decision under review and

“any assumed lack of precedential effect of a ruling

that is unpublished”).7 Empirically, this is especially

true of unpublished decisions from the Eleventh Circuit. See Merritt E. McAlister, Rebuilding the Federal Circuit Courts, 116 Nw. U. L. Rev. 1137, 1166

(2022) (reporting that, since October Term 2013,

48.8% of the Court’s certiorari grants of Eleventh

Circuit decisions were in unpublished cases). And

the Court’s approach is right. After all, even an unpublished opinion will “have a lingering effect in the

Circuit,” Smith v. United States, 502 U.S. 1017, 1020

But see Brief for the United States in Opposition, Kinzy v.

United States, No. 23-578 (U.S. Apr. 12, 2024), 2024 WL

1622770, at *9 (arguing against certiorari in part because “the

decision below is unpublished and nonprecedential”); Brief for

the United States in Opposition, Kapoor v. United States, Nos.

21-994, 21-6952 (U.S. Apr. 29, 2022), 2022 WL 1307087, at *23

(arguing that, because a decision was “unpublished and nonbinding,” it did not “show a circuit conflict warranting this

Court’s review”); Brief for the United States in Opposition, Hallinan v. United States, No. 19-1087 (U.S. May 26, 2020), 2020

WL 2747444, at *12 (opposing certiorari on the basis that “the

decision below is unpublished and nonprecedential and thus

cannot create or deepen a circuit conflict” (citation omitted)).

7

17

n.* (1991) (Blackmun, J., dissenting from denial of

certiorari), as it signals to the district courts in that

circuit what at least one panel of the judges on that

circuit think about the issue. Lamid’s effect in the

Fifth Circuit illustrates well this point. Compare,

e.g., United States v. Ward, No. 07-cr-30013-01, 2007

WL 2993870, at *2 (W.D. La. Oct. 11, 2007) (finding,

pre-Lamid, that post-deadline amendment under

§ 853(n) was permissible), with, e.g., United States v.

Zelaya Rojas, 364 F. Supp. 3d 626, 631–32 (E.D. La.

2019) (applying Lamid to prohibit post-deadline

amendment). And an unpublished opinion just as

readily may have out-of-circuit impact as well, as the

district court’s decision here demonstrates. See App.

50–52 (following Lamid).

If anything, that “the decision below is unpublished” is “in itself . . . yet another reason to

grant review.” Plumley v. Austin, 574 U.S. 1127,

1131–32 (2015) (Thomas, J., dissenting from denial

of certiorari). It is no secret that—owing in no small

part to the technically nonprecedential status of

such decisions, see id.—“[j]udges generally do not labor over unpublished judgments and memoranda

. . . with the same intensity they devote to signed

opinions,” Ruth Bader Ginsburg, Remarks on Writing Separately, 65 Wash. L. Rev. 133, 139 (1990).

That is, an unpublished decision inevitably comes

“without the discipline and accountability” inherent

in publication, no matter the ethos and intention of

those responsible for it. See County of Los Angeles v.

Kling, 474 U.S. 936, 940 (1985) (Stevens, J., dissenting). And even though “they should not be used” for

this purpose, unpublished decisions not infrequently

“develop[] or modif[y] a rule of law,” as the decision

18

below illustrates. See Patricia M. Wald, The Problem with the Courts: Black-Robed Bureaucracy, or

Collegiality Under Challenge?, 42 Md. L. Rev. 766,

782 (1983); Williams v. Dall. Area Rapid Transit,

256 F.3d 260, 261–62 (5th Cir. 2001) (Smith, J., dissenting from denial of rehearing en banc) (observing

that unpublished decisions “establish[ing] a new rule

of law or apply[ing] existing law to distinct facts” are

“more common than one might think”). Thus, particularly where (as here) an unpublished decision

deepens a circuit split, the decision’s unpublished

status further justifies granting certiorari.

Cf.

Smith, 502 U.S. at 1020 n.* (“Nonpublication must

not be a convenient means to prevent review.”).

19

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

CLARK M. NEILY III

CATO INSTITUTE

1000 Massachusetts

Avenue NW

Washington, DC 20001

KAMRON KOMPANI

SCHARF-NORTON CENTER

FOR CONSTITUTIONAL

LITIGATION AT THE

GOLDWATER INSTITUTE

500 E. Coronado Road

Phoenix, AZ 85004

May 10, 2024

THOMAS M. JOHNSON, JR.

Counsel of Record

JOEL S. NOLETTE

DANIEL T. PARK

WILEY REIN LLP

2050 M Street NW

Washington, DC 20036

tmjohnson@wiley.law

(202) 719-7000

Counsel for Amici Curiae