Petition for Writ of Certiorari — Richard Stuart Ross, Petitioner v. United States

No. 26IN THE

Supreme Court of the United States

RICHARD STUART ROSS,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF A PPEALS FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

JOEL S. NOLETTE

WILEY REIN LLP

2050 M Street NW

Washington, DC 20036

jnolette@wiley.law

ZIEN HALWANI

JESSE MENTZ

KIBLER FOWLER & CAVE LLP

11100 Santa Monica Boulevard,

Suite 600

Los Angeles, CA 90025

zhalwani@kfc.law

jmentz@kfc.law

July 17, 2026

STEPHEN F. RAIOLA

Counsel of Record

S. NATHAN PARK

KIBLER FOWLER & CAVE LLP

270 Madison Avenue,

Suite 1410

New York, NY 10016

(917) 909-6350

sraiola@kfc.law

npark@kfc.law

Counsel for Petitioner

121124

(800) 274-3321 • (800) 359-6859

i

QUESTIONS PRESENTED

The Civil Asset Forfeiture Reform Act (“CAFRA”)

provides that any claimant who “substantially prevails” in

a civil forfeiture action “shall” recover attorneys’ fees. 28

U.S.C. 2465(b)(1). But in the twenty-six years since Congress

passed CAFRA, this Court has never addressed the scope

of its fee-shifting provision. Although it has interpreted the

meaning of a distinct term of art—“prevailing party”—in

other statutory contexts (see Buckhannon Bd. & Care Home,

Inc. v. W. Va. Dep’t of Health & Hum. Res., 532 U.S. 598

(2001)), it has counseled courts against “adding that term of

art to a fee-shifting statute from which it is conspicuously

absent.” Hardt v. Reliance Standard Life Ins. Co., 560 U.S.

242, 252 (2010). And just last term, this Court further cabined

the application of its “prevailing party” caselaw when it

reiterated that “[a] different body of caselaw addresses when

a defendant is a ‘prevailing party.’” Lackey v. Stinnie, 604

U.S. 192, 204 n.* (2025).

Notwithstanding these admonitions, in the decision

below, the Second Circuit joined three other circuits in holding

that—even though the phrases are different—CAFRA’s

“substantially prevails” language means “prevailing party.”

Then, it resolved a question this Court expressly left open in

CRST Van Expedited, Inc. v. EEOC, 578 U.S. 419, 434 (2016)

and Lackey, by holding that a civil-forfeiture defendant needs

a preclusive judgment to be a prevailing party and widened a

circuit split on whether the loss of attorneys’ fees constitutes

plain legal prejudice requiring mitigation.

The questions presented are:

1. Whether a civil-forfeiture defendant “substantially

prevails” under 28 U.S.C. 2465(b)(1) when he or she rebuffs

the government by causing it to voluntarily dismiss a

ii

forfeiture action and return all claimed property it seized

following litigation.

2. Whether the loss of a statutory right to attorneys’

fees constitutes plain legal prejudice.

iii

PARTIES TO THE PROCEEDING AND

RULE 29.6 STATEMENT

The Petitioner in this case is Richard Stuart Ross. The

Respondent is the United States of America. Petitioner

Richard Stuart Ross was the claimant-defendant in

the district court as well as the appellant in the Second

Circuit. The United States was a plaintiff in the district

court proceedings and the appellee in the proceedings

below.

iv

RELATED PROCEEDINGS

United States District Court (N.D.N.Y.)

United States v. $4,183,402.74 in U.S. Currency et al.,

No. 5:22-cv-138 (Mar. 6, 2023)

United States Court of Appeals (2d Cir.):

United States v. Richard Stuart Ross, No. 24-1421

(Dec. 4, 2025)

v

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . i

PA RTIES TO THE PROCEEDING A ND

RULE 29.6 STATEMENT. . . . . . . . . . . . . . . . . . . . . iii

RELATED PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . .v

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . vii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . viii

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

STATUTORY PROVISIONS INVOLVED . . . . . . . . . . .4

STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

A. Historical and Statutory Background . . . . . . . . .4

B. Facts and Procedural History. . . . . . . . . . . . . . . .7

REASONS FOR GRANTING THE PETITION. . . . .12

vi

Table of Contents

Page

I.

T he d e c i s ion b e lo w i s w r on g a nd

conflicts with this Court’s fee-shifting

precedents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

A. Hardt forecloses adding the term of

art “prevailing party” to CAFRA . . . . . . .13

B. Even if the “prevailing party” standard

applied to CAFRA, Ross prevailed

u nder CRST Va n , La ck ey, a nd

Buckhannon . . . . . . . . . . . . . . . . . . . . . . . . .15

II. The questions presented are important and

this case is an ideal vehicle for resolving

them . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18

,,,7KHLPSURSHUUHVROXWLRQRIWKHÀUVWTXHVWLRQ

presented has caused inconsistency and

a split regarding the second question

presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30

vii

TABLE OF APPENDICES

Page

A P P E N DI X A — O P I N ION O F T H E

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT, FILED

DECEMBER 4, 2025 . . . . . . . . . . . . . . . . . . . . . . . . . .1a

A PPENDI X B — J U DGMEN T OF THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT, FILED

DECEMBER 5, 2025 . . . . . . . . . . . . . . . . . . . . . . . . .52a

A PPEN DI X C — M EMOR A N DU MDECISION AND ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF NEW YORK,

FILED MARCH 22, 2024 . . . . . . . . . . . . . . . . . . . . .54a

APPENDIX D — JUDGMENT OF THE UNITED

STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF NEW YORK,

FILED MARCH 6, 2023 . . . . . . . . . . . . . . . . . . . . . .66a

A PPEN DI X E — M EMOR A N DU MDECISION AND ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF NEW YORK,

FILED MARCH 2, 2023 . . . . . . . . . . . . . . . . . . . . . .68a

A PPEN DI X F — OR DER OF T H E

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT, FILED

FEBRUARY 17, 2026 . . . . . . . . . . . . . . . . . . . . . . . . .84a

viii

TABLE OF CITED AUTHORITIES

Page

Cases

Alexander v. Sandoval,

532 U.S. 275 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . .27

Buckhannon Bd. & Care Home, Inc. v.

W. Va. Dep’t of Health and Human, Res.,

532 U.S. 598 (2001). . . . . 6, 7, 9-11, 15-17, 19, 23, 26-29

CRST Van Expedited Inc. v. E.E.O.C.,

578 U.S. 419 (2016) . . . . . . . . . . . . . . . 3, 9-12, 15-18, 20

Culley v. Marshall,

601 U.S. 377 (2024). . . . . . . . . . . . . . . . . . .1, 2, 5, 20, 21

Deckers Outdoor Corp. v. Romeo & Juliette, Inc.,

No. 2:15-cv-2812, 2016 WL 5842187

(C.D. Cal. Oct. 5, 2016). . . . . . . . . . . . . . . . . . . . . . . . .25

Enbridge Energy LP v. Nessel,

146 S. Ct. 1074 (2026) . . . . . . . . . . . . . . . . . . . . . . . . . .15

FTC v. Kroger Co.,

No. 3:24-cv-00347, 2026 WL 560125

(D. Or. Feb. 27, 2026) . . . . . . . . . . . . . . . . . . . . . . . . . .28

Hardt v. Reliance Standard Life Ins. Co.,

560 U.S. 242 (2010) . . . . . . . . . . . . . . . . . . . . 1, 10-15, 28

Helvering v. Hallock,

309 U.S. 106 (1940) . . . . . . . . . . . . . . . . . . . . . . . . . . . .28

ix

Cited Authorities

Page

Holmes v. Sec. Inv. Prot. Corp.,

503 U.S. 258 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . .14

Leavitt v. Jane L.,

518 U.S. 137 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . .19

Leonard v. Texas,

580 U.S. 1178 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

Meridian Rapid Def. Grp., LLC v. Delta Sci. Corp.,

No. 23-cv-7222, 2025 WL 504487 (C.D. Cal. 2025) . . . .25

Ohio Valley Envtl. Coal., Inc. v. Wheeler,

387 F. Supp. 3d 654 (S.D. W. Va. 2019). . . . . . . . . . . .28

Oil, Chem. & Atomic Workers Int’l Union, AFL-CIO

v. Dep’t of Energy,

288 F.3d 452 (D.C. Cir. 2002) . . . . . . . . . . . . . . . . . . . .6

Pasquantino v. United States,

544 U.S. 349 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . .13

Patterson v. McLean Credit Union,

491 U.S. 164 (1989), superseded by statute on

other grounds as recognized by CBOCS W., Inc.

v. Humphries, 533 U.S. 442 (2008) . . . . . . . . . . . . . .28

SAS Inst., Inc. v. Iancu,

584 U.S. 357 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . .14

x

Cited Authorities

Page

Stevens v. Dep’t of Treasury,

500 U.S. 1 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19

Synagogue v. United States,

482 F.3d 1058 (9th Cir. 2007) . . . . . . . . . . . . . . . . . . . .7

Teter v. Lopez,

135 F.4th 1176 (9th Cir. 2025) . . . . . . . . . . . . . . . . . . .20

United States v. $8,040.00 in U.S. Currency,

No. 6:21-cv-6323-CJS, 2025 WL 2043417

(W.D.N.Y. July 21, 2025), appealed, No. 25-2169

(2d Cir. Sep. 8, 2025) . . . . . . . . . . . . . . . . . . . . . . .19, 24

United States v. $13,275.21, More or Less,

in United States Currency,

No. SA-06-CA-171-XR, 2007 WL 316455

(W.D. Tex. Jan. 31, 2007). . . . . . . . . . . . . . . . . . . . . . .24

United States v. $32,820.56,

838 F.3d 930 (8th Cir. 2016). . . . . . . . . . . . . . . . . .18, 24

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

291 F. Supp. 2d 1126 (C.D. Cal. 2003) . . . . . . . . . . . . .6

United States v. $70,670.00 in U.S. Currency,

929 F.3d 1293 (11th Cir. 2019). . . . . . . . . . . . . . . .18, 24

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) . . . . . . . . . . . . . . . . . . . . .19, 25

xi

Cited Authorities

Page

United States v. 2007 BMW 335i Convertible,

648 F. Supp. 2d 944 (N.D. Ohio 2009) . . . . . . . . .19, 24

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) . . . . . . . . . . . . . . . . . . . . . . . . .24

United States v. Approximately $16,500.00

in U.S. Currency,

113 F. Supp. 3d 776 (M.D. Pa. 2015) . . . . . . . . . . . . . .24

United States v. Bd. of Cnty. Comm’rs of

Hamilton Cnty.,

No. 1:02 CV 00107, 2005 WL 2033708

(S.D. Ohio Aug. 23, 2005). . . . . . . . . . . . . . . . . . . . . . .28

United States v. Certain Real Prop.,

543 F. Supp. 2d 1291 (N.D. Ala. 2008) . . . . . . . . . . . .19

United States v. Ito,

472 F. App’x 841 (9th Cir. 2012) . . . . . . . . . . . . . .10, 25

United States v. Khan,

497 F.3d 204 (2d Cir. 2007) . . . . . . . . . . . . . . . . . . . . . .1

United States v. Nichols,

841 F.2d 1485 (10th Cir. 1998). . . . . . . . . . . . . . . . . . . .5

xii

Cited Authorities

Page

United States v. One 1936 Model Ford V-8

De Luxe Coach, Motor No. 18-3306511,

307 U.S. 219 (1939) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

Vermont Low Income Advoc. Council, Inc. v. Usery,

546 F.2d 509 (2d Cir. 1976) . . . . . . . . . . . . . . . . . . . . .27

Statutes and Other Authorities

5 U.S.C. 552(a)(4)(E)(ii) . . . . . . . . . . . . . . . . . . . . 6, 7, 14, 27

18 U.S.C. 981(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22

18 U.S.C. 984 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8, 22

28 U.S.C. 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

28 U.S.C. 2412(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

28 U.S.C. 2465(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4, 14

28 U.S.C. 2465(b)(1). . . . . . . . . . . . . . . . . . . . . . . .1, 4, 5, 14

153 Cong. Rec. S15831 (daily ed. Dec. 18, 2007) . . . .7, 27

Fed. R. Civ. P. 41(a)(2) . . . . . . . . . . . . . .8, 10, 17, 23, 24, 26

H.R. Rep. No. 106-192 (1999) . . . . . . . . . . . . . . . . . . . . .1, 5

3XE/1R6WDW  FRGLÀHGDV

amended at 5 U.S.C. 552(a)(4)(E) . . . . . . . . . . . . . .6, 14

xiii

Cited Authorities

Page

Sup. Ct. R. 10(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

David A rkush, Note, Preserving “Catalyst”

Attorneys’ Fees under the Freedom of Information

Act in the Wake of Buckhannon Board and Care

Home v. West Virginia Department of Health and

Human Resources, 37 Harv. C.R.C.L. L. Rev. 131

(2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6, 14

Stephen B. Herpel, Toward a Constitutional

Kleptocracy: Civil Forfeiture in America, 96

Mich. L. Rev. 1910 (1998) . . . . . . . . . . . . . . . . . . . . . . . .5

Order, Salgado, No. 19-659 (U.S. Dec. 20, 2019) . . .18, 19, 22

Prejudice, Black’s Law Dictionary (12th ed. 2024). . . .26

Prevail, Black’s Law Dictionary (7th ed. 1999) . . . . . . .16

U.S. Dep’t of Just., Asset Forfeiture Policy Manual

2-13 (2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

1

INTRODUCTION

In 2000, Congress enacted the Civil Asset Forfeiture

Reform Act (“CAFRA”) in response to “public outcry over

the government’s too-zealous pursuit of civil and criminal

forfeiture.” United States v. Khan, 497 F.3d 204, 208 (2d

Cir. 2007). Among other reforms, Congress desired “to

give owners innocent of any wrongdoing the means to

* * * make themselves whole after wrongful government

seizures.” H.R. Rep. No. 106-192, at 11 (1999). CAFRA

accordingly adopted a provision that any claimant who

“substantially prevails” in a civil-forfeiture action “shall”

recover attorneys’ fees. 28 U.S.C. 2465(b)(1).

8QIRUWXQDWHO\ ´ÀQDQFLDO LQFHQWLYHV    LQÁXHQFH

how” the government conducts forfeiture, and that

means the government prefers not to pay attorneys’ fees.

Culley v. Marshall, 601 U.S. 377, 396 (2024) (Gorsuch,

J., concurring). So it has devised a litigation tactic it

routinely employs throughout the country to circumvent

fee-shifting: voluntarily dismissing a case it cannot win,

returning the claimant’s property, and then arguing that

the claimant has not “substantially prevail[ed]” because

the dismissal deprived the claimant of “prevailing party”

status.

In the decision below, the Second Circuit blessed

this maneuver. Disregarding this Court’s instruction

that the phrase “prevailing party” is a “term of art” that

courts should not “add[] * * * to a fee-shifting statute

from which it is conspicuously absent,” Hardt v. Reliance

Standard Life Ins. Co., 560 U.S. 242, 252 (2010), the

Second Circuit held that “substantially prevails” means

“prevailing party.” Then, the court held that a voluntary

2

dismissal without prejudice does not confer prevailingparty status and split with the Ninth Circuit on whether

courts must impose conditions on voluntary dismissals to

stop CAFRA’s circumvention.

Whether a claimant recovers fees with their property

now depends on which judge draws the case. And the

government can now avoid mandatory fee-shifting

even when it returns the claimant’s property simply by

dismissing an action it is about to lose and arguing that

the claimant did not substantially prevail.

Strategic gamesmanship in fee-shifting transcends

statutes and levels of government. That makes certiorari

necessary to ensure that fee-shifting statutes like CAFRA

retain any practical force. In this case alone, the decision

deprived the Petitioner Richard Stuart Ross of over

$100,000. And in future cases, the ruling will discourage

counsel from taking meritorious cases on the promise of

fee recovery. That poses serious harm to “marginalized

groups, such as low-income communities of color, who

are less likely to have the resources to challenge the

forfeiture in court.” Culley, 601 U.S. at 406 (Sotomayor,

J., dissenting).

This Court has scrutinized civil forfeiture repeatedly

in recent years. Id. at 397 (Gorsuch, J., concurring) (“To

my mind, the due process questions surrounding these

relatively new civil forfeiture practices are many.”); id. at

403-415 (Sotomayor, J., dissenting) (raising due process

concerns about civil forfeiture). And this case presents

an ideal vehicle for this Court to restore some balance by

vindicating CAFRA’s plain meaning. The decision below

LJQRUHV WKLV &RXUW·V SUHFHGHQW DQG HIIHFWLYHO\ QXOOLÀHV

3

CAFRA’s mandatory fee-shifting provision. The improper

resolution of the first question presented turns on a

question this Court left open in CRST Van and Lackey and

has given rise to a circuit split on the second question and

inconsistent outcomes throughout the country. The vehicle

is also uniquely clean: because the statute of limitations

expires this October and the government “conced[ed]

that the [Innocent] Funds are not forfeitable,” this Court

can grant certiorari knowing that Ross has permanently

recovered his property. App. 37a.

For these reasons and the others set forth below, this

Court should grant certiorari to restore CAFRA’s plain

meaning and ensure that the government cannot nullify

mandatory fee-shifting simply by abandoning cases it is

about to lose.

OPINIONS BELOW

The opinion of the court of appeals (App. 1a-51a) is

reported at 161 F.4th 100. The district court’s orders (1)

denying Ross’s motion for attorneys’ fees (App. 54a-65a),

and (2) granting the government’s dismissal request (App.

68a-83a) are not reported but are available at 2024 WL

2763864 and 2023 WL 2329480 respectively.

JURISDICTION

The initial judgment of the court of appeals was

entered on December 5, 2025, and the court of appeals

denied a timely petition for rehearing on February 17,

2026. On April 7, 2026, Justice Sotomayor then extended

the time within which to file a petition for a writ of

certiorari to and including July 17, 2026 (No. 25A1080).

4

The jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATUTORY PROVISIONS INVOLVED

28 U.S.C. 2465(a) provides that:

“Upon the entry of a judgment for the claimant

in any proceeding to condemn or forfeit

property seized or arrested under any provision

of Federal law—

(1) such property shall be returned forthwith

to the claimant or his agent * * * .”

28 U.S.C. 2465(b)(1) then states:

“Except as provided in paragraph (2), in any

civil proceeding to forfeit property under any

provision of Federal law in which the claimant

substantially prevails, the United States shall

be liable for—

(A) reasonable attorney fees and other litigation

costs reasonably incurred by the claimant

* * * .”

STATEMENT

A.

Historical and Statutory Background

 )RUWKHÀUVW\HDUVRIRXU5HSXEOLFIRUIHLWXUHV

were “not favored” in America. United States v. One 1936

Model Ford V-8 De Luxe Coach, Motor No. 18-3306511,

307 U.S. 219, 226 (1939). “[B]etween 1790 and 1970,

Congress provided for criminal forfeiture only once: to

5

recover the life estates of Confederate soldiers.” United

States v. Nichols, 841 F.2d 1485, 1487 (10th Cir. 1998).

And FLYLOIRUIHLWXUHODZV´ZHUHOLPLWHGWRDIHZVSHFLÀF

subject matters” where proceeding “in rem * * * was

RIWHQMXVWLÀHGE\QHFHVVLW\µLeonard v. Texas, 580 U.S.

1178, 1181 (2017) (Thomas, J., statement regarding denial

of certiorari).

7KH ODVW ÀIW\ \HDUV KRZHYHU KDYH VHHQ GUDPDWLF

expansion of forfeiture laws and “profound changes in civil

forfeiture practices.” Culley, 601 U.S. at 403 (Gorsuch, J.,

concurring). The net result is more than 150 forfeiture

statutes today, nearly all of which were passed since

the 1980s. Stephen B. Herpel, Toward a Constitutional

Kleptocracy: Civil Forfeiture in America, 96 Mich. L.

Rev. 1910, 1923 (1998).

2. Pushing back against this expansion, Congress

enacted CAFRA in 2000 to make “civil forfeiture

procedures fair” and give innocent owners “the means

to * * * make themselves whole.” H.R. Rep. No. 106192, at 11. CAFRA thus provides that any claimant who

“substantially prevails” in a civil-forfeiture action “shall”

recover attorneys’ fees. 28 U.S.C. 2465(b)(1).1

1. As an example of the type of injustice CAFRA was intended

to remedy, CAFRA’s House Report included the testimony of Billy

Munnerlyn, the owner of a successful air-charter service. See

H.R. Rep. No. 106-192, at 8. In 1989, the government seized one

of his planes after he transported a client carrying drug money

without his knowledge. Ibid. Munnerlyn spent $85,000 on legal

fees, selling his three other planes to fund the litigation to retrieve

his plane. Ibid. The plane did return, but with severe damage.

Ibid. He eventually declared bankruptcy. Id. at 9.

6

Before “CAFRA was passed, claimants routinely

proceeded” under the Equal Access to Justice Act

(“EAJA”)—a “prevailing party” statute—“to request

* * * attorney fees.” United States v. $60,201.00 U.S.

Currency, 291 F. Supp. 2d 1126, 1130 (C.D. Cal. 2003). By

that time, Congress had enacted dozens of fee-shifting

statutes using the phrase “prevailing party,” but only

a handful of laws that used the phrase “substantially

prevail[s],” such as the Freedom of Information Act

(“FOIA”). Pub. L. No. 93-502, 88 Stat. 1561 (1974).

When Congress enacted CAFRA in 2000, eight

circuits had already considered and unanimously held

that FOIA’s “substantially prevailed” language permitted

fee-shifting when a FOIA plaintiff obtained relief without

a court order. David Arkush, Note, Preserving “Catalyst”

Attorneys’ Fees under the Freedom of Information Act in

the Wake of Buckhannon Board and Care Home v. West

Virginia Department of Health and Human Resources, 37

Harv. C.R.C.L. L. Rev. 131, 140 n.53 (2002). The next year,

this Court construed the meaning of the phrase “prevailing

party” as requiring a “judicially sanctioned change in the

legal relationship of the parties.” Buckhannon Bd. & Care

Home, Inc. v. W. Va. Dep’t of Health & Human Resources,

532 U.S. 598, 605 (2001). Courts subsequently began

treating “substantially prevails” and “prevailing party”

interchangeably by applying Buckhannon’s “prevailing

party” test to FOIA. See Oil, Chem. & Atomic Workers

Int’l Union, AFL-CIO v. Dep’t of Energy, 288 F.3d 452,

456-57 (D.C. Cir. 2002), superseded by statute, Pub. L. No.

110-175, 121 Stat. 2524, 2525 (2007), amending 5 U.S.C.

552(a)(4)(E)(ii).

7

Cong ress pushed back, passing a cla r i f y ing

amendment to make clear that “substantially prevails”

meant something different than “prevailing party” and

that “Buckhannon * * * does not apply to FOIA cases.” 153

Cong. Rec. S15831 (daily ed. Dec. 18, 2007) (statement of

Sen. Leahy, sponsor). In doing so, Congress did not change

)2,$·VIHHVKLIWLQJVWDQGDUGLWPHUHO\´FODULÀH>G@µLELG

what the text already meant: a claimant “substantially

prevail[s]” when he “obtain[s] relief through * * * a

voluntary or unilateral change in position by the agency,”

even without a judicially sanctioned change in the parties’

legal relationship. 5 U.S.C. 552(a)(4)(E)(ii).

Just before Congress passed the FOIA amendment,

courts began applying Buckhannon to CAFRA. See

Synagogue v. United States, 482 F.3d 1058, 1062-63 (9th

Cir. 2007) (applying Buckhannon to CAFRA).

B. Facts and Procedural History

1. Petitioner Richard Stuart Ross is a licensed

attorney of forty-one years who was victimized by a

fraud scheme that exploited his bank account. As soon as

Ross’s bank informed him of possible fraud, Ross acted

promptly to report and avert it. He directed his bank to

recall any pending wire transfers, successfully preventing

the fraudster from obtaining $1.5 million. Even so, the

government seized every single dollar in his Interest on

Trust Account (“IOTA”), including more than $1.2 million

that the government admitted appeared “unrelated”

to the fraud. What’s more, the seizure warrant all but

acknowledged that Ross was likely a victim of the scheme.

For example, it reported that an impostor with a different

voice than Ross had tried to access Ross’s IOTA without

8

his knowledge. And it acknowledged that fraudsters often

“trick third parties into serving as unwitting money

mules.”

After learning of the government’s seizure, Ross

furnished proof to the government that approximately $1.2

million was entirely unrelated to the fraud. Nevertheless,

WKHJRYHUQPHQWÀOHGSURFHHGLQJVWRFLYLOO\IRUIHLWWKRVH

funds. In doing so, the government relied on a statute

that allows it to treat all property in a bank account

as interchangeable—18 U.S.C. 984—notwithstanding

Department of Justice policies prohibiting the statute’s

use for IOTA seizures. U.S. Dep’t of Just., Asset Forfeiture

Policy Manual 2-13 (2023) (“To avoid the seizure of

untainted third-party funds, prosecutors should not rely

on the fungible property statute, 18 U.S.C. § 984, when

seizing funds from CTA or IOLTA accounts.”).

5RVVUHWDLQHGDQDWWRUQH\DQGÀOHGDFODLPGHIHQGLQJ

the res. For the next nine months, Ross then tried to serve

discovery and obtain the release of his property. But the

government requested and the district court entered a

stay of all proceedings.

Over a year after the government’s seizure, Ross

moved to lift the stay so he could “move for summary

judgment, and/or a hearing.” The government then moved

to dismiss the case without prejudice under Rule 41(a)(2) of

the Federal Rules of Civil Procedure, based on its “review

of information and documentation.” App. 74a.

Concerned that the government wanted a withoutprejudice dismissal to set “itself up to argue that

[the claimant] is not entitled to fees under CAFRA,”

9

Ross opposed the government’s motion, arguing that

the dismissal should be with prejudice or contingent

on payment of attorneys’ fees. But the district court

ultimately granted the government’s motion without

prejudice or condition. The government subsequently

returned Ross’s funds. Ross then moved for attorneys’

fees and costs, at which point the government opposed his

motion due to his failure to obtain a preclusive judgment.

In support of fees, Ross argued that Buckhannon’s

“prevailing party” standard did not apply because

CAFRA uses the phrase “substantially prevails,” and

Ross completely prevailed by obtaining the return of

his property. In the alternative, Ross argued that only

plaintiffs need a judgment to “prevail” under Buckhannon

based on this Court’s decision in CRST Van, and he was

not a plaintiff. Finally, Ross argued that if the lack of a

preclusive judgment disentitled him from fees, then the

district court should enter the dismissal with prejudice

to safeguard the recovery of fees.

On March 22, 2024, the district court denied Ross’s

motion for attorneys’ fees. App. 56a- 61a. Without

acknowledging CRST Van, it simply held that Ross did

not “substantially prevail” under CAFRA because the

without-prejudice dismissal leading to the return of his

funds did not provide him with the court-sanctioned relief

necessary for him to attain “prevailing party” status

under Buckhannon.

2. Ross timely appealed to the Second Circuit and

argued that the district court erred in concluding that he

did not qualify for fee-shifting even though he rebuffed

the government’s action.

10

In support, Ross argued that the district court’s

decision disregarded the plain text of CAFRA and

Congress’s choice to omit the “prevailing party” standard

found in other fee-shifting statutes. See Hardt, 560 U.S.

at 252-253 (holding that “prevailing party” is a term of

art distinct from “substantially prevailing” that courts

are not to import into other statutes). In addition, Ross

argued that even if the district court was right to treat

the terms “prevailing party” and “substantially prevails”

interchangeably, the district court was wrong to rely on

Buckhannon to conclude that Ross was not a prevailing

party. Instead, Ross argued that CRST Van adopts a

different standard for determining whether a defendant

is a prevailing party and that Ross met that standard by

UHEXIÀQJWKHJRYHUQPHQW·VSURVHFXWLRQDQGVHFXULQJWKH

return of his funds.

In the alternative, Ross arg ued that even if

Buckhannon applied, he still was the prevailing party

because the government’s decision to voluntarily return

property under Rule 41(a)(2) requires a court order—and

therefore does give rise to a judicially sanctioned “material

alteration of the legal relationship of the parties.” Finally,

Ross argued that if the district court was right that Ross

was not entitled to fees due to the government’s voluntary

dismissal, then the district court should have followed

other courts in requiring that the dismissal be entered

with prejudice or conditioned on the payment of fees.

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

2012) (holding that district court abused its discretion

in allowing the government to use a without-prejudice

dismissal to avoid CAFRA fee-shifting).

11

 2Q'HFHPEHUWKH6HFRQG&LUFXLWDIÀUPHG

the denial of Ross’s request for fees. In doing so, it did not

try and ascertain the original public meaning of CAFRA’s

“substantially prevails” language. Nor did it discuss Hardt.

Instead, it turned to post-2000 caselaw interpreting the

phrase “prevailing party” to hold that Ross’s recovery of

funds had to be “judicially sanctioned and enduring” to

VXSSRUWIHHVKLIWLQJ$SSDD$QGWKHFRXUWMXVWLÀHG

WKLVUDWLRQDOHE\GHHPLQJVLJQLÀFDQWWKDW&RQJUHVVKDG

amended FOIA (but not CAFRA) in 2007 to clarify the

meaning of FOIA’s “substantially prevail[s]” language.

App. 30a n.13 (stating that the amendment “show[ed] that

[Congress] knows how to authorize attorney fee awards

in the absence of a favorable judicial ruling”).

As to Ross’s arguments that he should win even if

Buckhannon applies, the Second Circuit interpreted

CRST Van as requiring enduring, judicially sanctioned

relief, which it concluded Ross had not obtained even

though he had successfully recovered his property. The

relief he secured was not “judicially sanctioned” because

he lacked a “court decision conclusively rebuff[ing] the

government’s forfeiture request.” App. 33a (citation

PRGLÀHG $QGWKHUHOLHIZDVQRW´HQGXULQJµEHFDXVHWKH

JRYHUQPHQWFRXOGUHÀOHLWVDFWLRQ´XQWLO2FWREHUµ

App. 36a.

Finally, the Second Circuit rejected Ross’s argument

that the district court abused its discretion by failing to

enter dismissal with prejudice. App. 39a-48a. As to that

issue, it found that the fact that the dismissal deprived

Ross of fees did not constitute legal prejudice.

12

)ROORZLQJ WKH SDQHO·V GHFLVLRQ 5RVV ÀOHG D SHWLWLRQ

for rehearing, which was denied. App. 84a-85a. Justice

6RWRPD\RUWKHQH[WHQGHGWKHWLPHZLWKLQZKLFKWRÀOHD

petition for a writ of certiorari to and including July 17,

2026. This petition timely followed.

REASONS FOR GRANTING THE PETITION

This Court should grant certiorari in this case for

three reasons. First, the questions presented involve

important federal questions that four courts of appeals

KDYHQRZUHVROYHGLQDZD\WKDWFRQÁLFWVZLWKWKLV&RXUW·V

decisions in Hardt, Lackey, and CRST Van. See Supreme

Court Rule 10(c). Second, the questions presented are

recurring and this case presents an unusually clean

vehicle to resolve them as Ross was a victim of a crime

DQGWKHVWDWXWHRIOLPLWDWLRQVIRUUHÀOLQJIXUWKHUDFWLRQV

will soon expire. Third, the improper resolution of the

ÀUVWTXHVWLRQKDVJLYHQULVHWRDFLUFXLWVSOLWRQWKHVHFRQG

and inconsistent results that this Court would eliminate

by restoring CAFRA’s plain meaning. Supreme Court

Rule 10(a).

, 7KHGHFLVLRQEHORZLVZURQJDQGFRQÁLFWVZLWKWKLV

Court’s fee-shifting precedents.

7KH6HFRQG&LUFXLW·VGHFLVLRQDIÀUPLQJWKHGHQLDORI

fees required it to resolve two important federal questions

HPEHGGHG LQ WKH ÀUVW TXHVWLRQ SUHVHQWHG   ZKHWKHU

“substantially prevails” means “prevailing party”; and

(2) whether a defendant needs a preclusive judgment

to be a prevailing party. In answering both questions,

WKH 6HFRQG &LUFXLW QRW RQO\ HUUHG EXW FRQÁLFWHG ZLWK

13

this Court’s fee-shifting precedents. That supplies a

compelling reason for certiorari.

A.

Hardt forecloses adding the term of art

“prevailing party” to CAFRA.

7KH GHFLVLRQ EHORZ FRQÁLFWV ZLWK -XVWLFH 7KRPDV·V

unanimous opinion for the Court in Hardt v. Reliance

Standard Life Insurance Co., 560 U.S. 242 (2010). There,

as here, lower courts had concluded that a fee-shifting

statute awarded fees only to a “prevailing party” (i.e.,

a party who obtains a preclusive, favorable judgment).

But this Court reversed because “prevailing party” is a

“term of art” that did “not appear in” Hardt’s “fee-shifting

provision.” Id. at 251-252 (“[A]dding that term of art to a

fee-shifting statute from which it is conspicuously absent

more closely resembles ‘inventing a statute rather than

interpreting one.’”) (quoting Pasquantino v. United States,

544 U.S. 349, 359 (2005)). In addition, this Court noted that

Congress had expressly referred to “a judgment” in a

separate section of the statute but had not done so in the

fee-shifting section at issue. To this Court, that made it

“clear that Congress knows how to impose express limits

on the availability of attorney’s fees”—such as the limits

applicable under “prevailing party” statutes—when it so

desires. Hardt, 560 U.S. at 252.

Hardt’s reasoning should have controlled the decision

below in this case. CAFRA’s fee-shifting provision does

not use the term of art “prevailing party,” even though

Congress regularly employs that phrase in other statutes,

including the EAJA that gave civil-forfeiture claimants

a means to recover fees as a “prevailing party” before

CAFRA’s enactment. 28 U.S.C. 2412(b). “Congress’s

14

choice to depart” in CAFRA “from the model” of these

related fee-shifting statutes “is a choice” that courts “may

[not] disregard.” SAS Inst., Inc. v. Iancu, 584 U.S. 357,

364 (2018).

Not only did Congress omit “prevailing party,” it

intentionally chose the broader “substantially prevail[s]”

ODQJXDJHWKDWLWXVHGLQ)2,$ZKLFKLVH[SUHVVO\GHÀQHG

not to require a judgment, 5 U.S.C. 552(a)(4)(E)(ii), and

which courts had unanimously interpreted not to require a

judgment at the time CAFRA was passed. Pub. L. No. 936WDW  FRGLÀHGDVDPHQGHGDW U.S.C.

552(a)(4)(E); see also Arkush, Preserving “Catalyst”

Attorneys’ Fees, 37 Harv. C.R.C.L. L. Rev. at 140 n.53.

As a result, this Court “may fairly credit” the Congress

that enacted CAFRA “with knowing the interpretation

federal courts had given the words earlier Congresses

had used.” Holmes v. Sec. Inv. Prot. Corp., 503 U.S.

258, 268 (1992). There is accordingly no reason to port

the “prevailing party” term of art into a “substantially

prevails” statute, especially when the sole time Congress

GHÀQHG´VXEVWDQWLDOO\SUHYDLOVµLWGHÀQHGLWWRQRWUHTXLUH

a judgment. And the presumptions that Congress (1) is

aware of the existing law, (2) uses terms consistently,

and (3) employs different language to convey differences

in meaning, prohibits courts from “adding [‘prevailing

party’] to [CAFRA] from which it is conspicuously absent.”

Hardt, 560 U.S. at 252.

Similarly, like the statute at issue in Hardt, CAFRA

has another section (2465(a)) that expressly requires

“the entry of a judgment for the claimant,” while the

fee-shifting statute at issue (2465(b)) merely requires

the claimant to “substantially prevail[]” and does not

15

reference a judgment. As in Hardt, this contrast reinforces

that CAFRA fee-shifting does not require a judgment

under the “meaningful-variation” canon. See Enbridge

Energy LP v. Nessel, 146 S. Ct. 1074, 1084 (2026) (“When

Congress includes particular language in one section

of a statute but omits it from a neighbor, we normally

understand that difference in language to convey a

GLIIHUHQFHLQPHDQLQJµ FLWDWLRQPRGLÀHG 

Ross featured Hardt prominently below. But in its

forty-nine-page opinion, the Second Circuit did not cite or

acknowledge Hardt once. Its erroneous decision to graft

an absent term of art onto CAFRA’s fee-shifting provision

therefore disregards binding precedent.

B. Even if the “prevailing party” standard applied

to CAFRA, Ross prevailed under CRST Van,

Lackey, and Buckhannon.

,Q DGGLWLRQ WR FRQÁLFWLQJ ZLWK Hardt, the decision

below also conf licts with this Court’s decisions in

Buckhannon, CRST Van, and Lackey.

As this Court held in CRST Van and Lackey, the test

for whether a defendant is a prevailing party is different

from the test for whether a plaintiff is a prevailing party

set forth in Buckhannon. Lackey, 604 U.S. at 204 n.* (“A

different body of caselaw addresses when a defendant

is a ‘prevailing party’ for the purposes of other feeshifting statutes.”). Among other things, a “prevailing

party” defendant “need not obtain” the same success

as a prevailing-party plaintiff because “[p]laintiffs and

defendants come to court with different objectives.” CRST

Van, 578 U.S. at 431. While a plaintiff “seeks a material

16

alteration in the legal relationship between the parties,”

a defendant merely “seeks to prevent this alteration” and

WKXVIXOÀOOVLWV´SULPDU\REMHFWLYHZKHQHYHUWKHSODLQWLII·V

challenge is rebuffed.” Ibid.

Despite paying lip service to this distinction and

acknowledging that Ross was in the shoes of a defendant,

the Second Circuit nevertheless applied Buckhannon’s

rule beyond CRST Van’s boundaries by holding that Ross

was not a prevailing party because, in its view, “[a] court’s

dismissal of an action without prejudice does not award

judicial relief to any party.” App. 34a. But this holding

applied the wrong rule: under CRST Van, the government

sought the “material alteration”; Ross merely sought “to

prevent it.” In doing so, the Second Circuit ignored the

fact with the most salience under this Court’s “different

objectives” language in CRST Van and Lackey: at the

beginning of Ross’s case, the government had possession

of his funds and sought to transfer to itself legal title,

and at the end, it was forced to return them. As a direct

result of Ross litigating and announcing his intention to

move for summary judgment, the government dropped its

prosecution and transferred the funds back to Ross. Ross

thus successfully “rebuffed” the government’s forfeiture

DFWLRQ DQG JLYHQ WKDW WKH ZKROH SXUSRVH RI KLV ÀOLQJ D

claim was to obtain this result, he prevailed. Prevail,

Black’s Law Dictionary (7th ed. 1999) (“To obtain the

relief sought in an action.”).

Additionally, as Ross argued before the Second

Circuit, the very nature of the government’s dismissal

VKRXOG KDYH TXDOLÀHG KLP IRU ´SUHYDLOLQJ SDUW\µ VWDWXV

under Buckhannon. 532 U.S. at 605 (requiring a

“judicially sanctioned change in the legal relationship

17

of the parties”). Because the dismissal was under Fed.

R. Civ. P. 41(a)(2), it could occur “only by court order”

and was therefore judicially sanctioned by an order

and opinion approving the return of the funds to Ross

on the grounds that “the government is conceding that

the [Innocent] Funds are not forfeitable.” App. 77a. And

even if he did not qualify for “prevailing party” status

under Buckhannon, Buckhannon merely holds that “a

defendant’s voluntary change in conduct * * * lacks the

necessary judicial imprimatur” to render a plaintiff a

“prevailing party.” 532 U.S. at 605 (emphasis added). As

a result, Buckhannon does not control where, as here,

it is a governmental plaintiff ’s change in conduct that

causes the return of the claimant’s property. CRST Van,

578 U.S. at 431 (“Plaintiffs and defendants come to court

with different objectives.”).

CRST Van held that judicial imprimatur can be found

in consent decrees approving settlements, id. at 422, and

a defendant does not need “a judgment vindicating its

position,” id. at 431. The Second Circuit’s holding that

defendants need a “conclusive” court-ordered rebuff

to prevail thus contravenes CRST Van. Compare App.

33a-34a (faulting Ross for not getting the relief that he

preferred), with CRST Van86DW ÀQGLQJWKDW

the defendant prevailed even though they did not get

what they preferred). Nor can one square the Second

Circuit’s “enduring” relief requirement with CRST Van

either, because the dismissal in CRST Van was based on

an agency’s failure to meet pre-suit obligations. 578 U.S.

at 426-427. As a result, there, as here, the case could have

EHHQUHÀOHG

18

Under CRST Van’s logic, Ross achieved his objective:

he rebuffed the government’s forfeiture action and

obtained the return of his funds 18 months after they

were seized as a result of a year of litigation. If judicial

imprimatur is even required for a prevailing defendant,

the court gave that imprimatur by ordering the dismissal.

And as this Court has suggested in CRST Van and Lackey,

it is no defect that the order of dismissal is not preclusive

because Ross is in the shoes of a defendant, not a plaintiff.

2QFHDJDLQWKHQWKH6HFRQG&LUFXLW·VGHFLVLRQFRQÁLFWV

with this Court’s precedent. CRST Van, 578 U.S. at 431

KROGLQJ WKDW WKH GHIHQGDQW KDV ´IXOÀOOHG LWV SULPDU\

objective whenever the plaintiff’s challenge is rebuffed,

irrespective of the precise reason”).

II. The questions presented are important and this

case is an ideal vehicle for resolving them.

2QLWVRZQWKHFRQÁLFWEHWZHHQWKH6HFRQG&LUFXLW·V

decision and this Court’s fee-shifting precedent is highly

problematic. But in this case, certiorari is even more

necessary because the questions presented are important

and recurring and the Second Circuit is now the fourth

FRXUWRIDSSHDOVWRDQVZHUWKHÀUVWTXHVWLRQLQFRUUHFWO\

No further percolation is therefore needed. This case also

presents an unusually clean vehicle.

1. As to importance, the questions presented are

VLJQLÀFDQW 7KH\ KDYH JHQHUDWHG VHYHUDO SUHFHGHQWLDO

circuit-court opinions as well as a prior petition for

certiorari that drew this Court’s interest. See, e.g., United

States v. $70,670.00 in U.S. Currency, 929 F.3d 1293,

1302-1303 (11th Cir. 2019); United States v. $32,820.56,

838 F.3d 930, 935-937 (8th Cir. 2016); Salgado v. United

19

States, No. 19-659 (U.S. 2020). In addition, the questions

presented recur frequently because the government

routinely employs voluntary dismissals all over the

country to evade fee-shifting. See, e.g., United States v.

$8,040.00 in U.S. Currency, No. 6:21-cv-6323-CJS, 2025

WL 2043417 (W.D.N.Y. July 21, 2025), appealed, No. 252169 (2d Cir. Sept. 8, 2025); United States v. $107,702.66

in U.S. Currency, No. 7:14-CV-00295-F, 2016 WL 413093,

at *4 (E.D.N.C. Feb. 2, 2016); United States v. 2007 BMW

335i Convertible, 648 F. Supp. 2d 944, 946-947 (N.D. Ohio

2009); United States v. Certain Real Prop., 543 F. Supp. 2d

1291, 1292 (N.D. Ala. 2008).

Separate and apart from their recurring nature,

the questions presented are particularly cert-worthy

because the Second Circuit’s interpretation of CAFRA

KDVHIIHFWLYHO\QXOOLÀHG&$)5$·VPDQGDWRU\IHHVKLIWLQJ

regime. See Stevens v. Dep’t of Treasury, 500 U.S. 1, 5

(1991) (granting certiorari to resolve a “clear misreading

by the lower courts of the applicable and important

federal statute”); Leavitt v. Jane L., 518 U.S. 137, 145

(1996) (granting certiorari to correct a “blatant federalFRXUWQXOOLÀFDWLRQµRIDODZ  2 And resolving the questions

presented may have implications well beyond CAFRA,

as litigation gamesmanship in fee-shifting transcends

statutes, subject matters, and levels of government. Just

2. This discretionary override of the textual mandate yields

especially perverse results here in that it renders fee-shifting least

available in the most egregious cases. Only those forfeiture cases

that the government believes are strong enough to pursue through

trial will result in Buckhannon-style preclusive judgments, while

the government can sidestep the fee-shifting statute in every case

that it thinks the claimant will win.

20

last year, for instance, the state of Hawaii lost a Second

Amendment challenge before a Ninth Circuit panel

and then used the en banc call period to change the law

and moot the case. Because the panel opinion had been

vacated, the challenger was denied fees, notwithstanding

the fact that he had won on the merits and that Hawaii

had changed its law. See Teter v. Lopez, 135 F.4th 1176,

1181 (9th Cir. 2025) (VanDyke, J., concurring) (stating that

Hawaii has “gam[ed] our en banc process [to] eliminate the

risk of attorney’s fee awards, even when the government

lost the only decision on the merits”); see also id. at 1179

(Collins, J., concurring) (“Plaintiffs should have been the

prevailing parties.”). CAFRA was designed to counter

the government’s litigation gamesmanship. The opinion

below encourages it.

Because three other circuits have converged on the

Second Circuit’s interpretation of CAFRA, CRST Van,

and Lackey, the questions presented have adequately

percolated: the circuits have arrived at a rule that cannot

be reconciled with this Court’s fee-shifting precedent. And

because only the Ninth Circuit has held that courts must

condition dismissals to avoid CAFRA’s circumvention, the

government now has the tools and motive to circumvent

CAFRA fee-shifting in half the Country. Culley, 601 U.S.

at 396 (Gorsuch, J., concurring) (noting that the “strong

financial incentives” the government has to pursue

IRUIHLWXUH´DSSHDUWRLQÁXHQFHKRZ>LW@FRQGXFW>V@WKHPµ 

2Q LWV RZQ WKH ÀQDQFLDO LPSDFWV RI WKHVH ORVW IHH

awards are devastating—the small business owner who

WHVWLÀHGLQVXSSRUWRI&$)5$IRULQVWDQFHKDGWRGHFODUH

bankruptcy. See supra note 1. But as Justices Gorsuch and

Thomas have noted, the government often “place[s] special

21

emphasis on seizing low-value items and relatively small

amounts of cash, hopeful their actions won’t be contested

because the cost of litigating to retrieve the property

may cost more than the value of the property itself.”

Culley, 601 U.S. at 396 (Gorsuch, J., concurring). That

matters because such modest amounts make it impossible

for a claimant to retain an attorney under a normal fee

agreement. It also means that forfeiture actions often

target “marginalized groups” who are “low-income”

and “less likely to have the resources to challenge the

forfeiture in court,” making counsel even more needed.

Id. at 406 (Sotomayor, J., dissenting)

In that regard, Ross was comparatively fortunate:

he had the funds to retain counsel to help persuade the

JRYHUQPHQW WR GURS LWV SURVHFXWLRQ %XW LW LV GLIÀFXOW

to imagine attorneys regularly assisting unprivileged

claimants knowing that the government can strip

them of fees simply by dismissing the case on the eve

of defeat. And that elevates the stakes of certiorari in

this case. A clear rule preserving fees for any claimant

who rebuffs the government’s prosecution will reinstate

the Congressionally-designed incentives for lawyers

to step up and take these cases, restoring some of the

balance that a majority of this Court has recognized as

desperately needed. See id. at 393 (Gorsuch, J., concurring)

(recognizing that “the poor and other groups least able

to defend their interests often suffer most” (citation

PRGLÀHG DFFRUG id. at 403-15 (Sotomayor, J., dissenting).

2. Similarly, this case is also an unusually clean

vehicle. The questions presented are pure questions

of law briefed and preserved below. In addition, Ross

recovered every dollar he claimed, thereby eliminating

22

any factual dispute over whether he obtained enough relief

to “substantially” prevail in these proceedings.

What’s more, it may be a while before another

FDVH HPHUJHV LQ ZKLFK WKLV &RXUW FDQ EH DV FRQÀGHQW

that gamesmanship deprived a claimant of fees. The

government did not dismiss this case on its own initiative

VKRUWO\ DIWHU LWV LQFHSWLRQ EXW LQVWHDG ÀOHG LWV PRWLRQ

almost a year into litigation—after Ross announced his

intention of moving for summary judgment. It therefore

sought dismissal to avoid an adverse judgment. In addition,

the district court itself acknowledged that “by voluntarily

withdrawing the action * * * the government is conceding

that the [Innocent] Funds are not forfeitable.” App. 77a.

This case also presents an atypically clean situation

ZKHUHUHÀOLQJZLOOVRRQEHIRUHFORVHGE\WKHOLPLWDWLRQV

period, rendering the dismissal permanent. To the extent

the government relied on 18 U.S.C. 984 in seizing Ross’s

funds, the statute of limitations had expired as of the time

of the voluntary dismissal. And to the extent it relied on

18 U.S.C. 981(a)(1), as the Second Circuit believed, that

statute will expire this October. App. 36a. That means

that by the time this Court considers this petition at

conference, all limitations’ periods will have run, and

Ross’s recovery of his property will be permanent. This

case thus avoids the vehicle issues presented in prior cases.

See, e.g., Order, Salgado, No. 19-659 (U.S. Dec. 20, 2019)

(calling for response even though the government moved

for summary judgment in the proceedings below and

the claimant only recouped some of her funds through a

private settlement with the victim).

23

III. The improper resolution of the first question

presented has caused inconsistency and a split

regarding the second question presented.

Finally, the lower courts’ mistaken interpretation of

CAFRA has resulted in confusion, inconsistent outcomes,

and a circuit split about Rule 41(a)(2) that would disappear

by ruling in Ross’s favor. That provides a further reason

for certiorari.

1. Hav ing converged on w rongly impor ting

Buckhannon into CAFRA, courts have had to grapple

with which dismissals confer “prevailing party” status

(they all agree that without-prejudice dismissals do not),

and whether courts must protect a claimant’s ability to

recover CAFRA fees when the government seeks a Rule

41(a)(2) dismissal. On the second question, courts have

split in three directions. The Second and Eighth Circuits

hold that loss of fees does not constitute legal prejudice

warranting mitigation; the Eleventh Circuit holds that

it does only when the claimant can demonstrate likely

entitlement to fees; and the Ninth Circuit holds that loss

of fee eligibility is legal prejudice requiring mitigation.

Granting either or both questions presented would end

this disagreement.

a. After ruling that a claimant who obtains a Rule

41(a)(2) dismissal does not substantially prevail under

CAFRA, the Second and Eighth Circuits have concluded

that district courts do not need to exercise discretion

under Rule 41(a)(2) to safeguard the recovery of fees

under CAFRA. In the decision below, the Second Circuit

held that Ross was wrong to argue that he suffered

“plain legal prejudice” from losing his ability to recover

24

attorneys’ fees and that the district court therefore did

not need to impose conditions on the dismissal. App.

40a-44a. Like the Second Circuit, the Eighth Circuit has

also held that the dismissal of a forfeiture action without

prejudice does not result in “prejudice” that would require

mitigation by conditioning dismissal on payment of fees.

$32,820.56, 838 F.3d at 937. And several district courts

have also adopted this approach, declining to condition

Rule 41(a)(2) dismissal on an award of fees to a CAFRA

claimant. See, e.g., $8,040, 2025 WL 2043417, at *5; United

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

F. Supp. 3d 776, 783-784 (M.D. Pa. 2015); United States v.

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

12-CIV-7530, 2013 WL 5511348, at *4-5 (S.D.N.Y. Oct.

2, 2013); 2007 BMW 335i Convertible, 648 F. Supp. 2d at

954-955; United States v. $13,275.21, More or Less, in

United States Currency, No. SA-06-CA-171-XR, 2007

WL 316455, *4-6 (W.D. Tex. Jan. 31, 2007).

b. In contrast to the approach of the Second and

Eighth Circuits, the Eleventh Circuit has “assume[d]

that a meritorious claimant’s loss of a right to statutory

attorney’s fees constitutes legal prejudice.” $70,670.00,

929 F.3d at 1302. But this necessitates a secondary

determination of what makes a claimant “meritorious,”

which the Eleventh Circuit has explained turns on

whether “it is * * * clear that the claimants would indeed

‘substantially prevail[]’ were the action litigated to

judgment.” Ibid. (citation omitted). As a result, a claimant

like Ross could recover his fees as a matter of right in the

Eleventh Circuit.

c. Finally, the Ninth Circuit has held that claimants

“suffer[] plain legal prejudice in losing their ability to move

25

for attorney’s fees.” Ito, 472 F. App’x at 842. As a result,

the Ninth Circuit has instructed that district courts must

dismiss forfeiture actions with prejudice to safeguard the

availability of fees, and any other legal ruling constitutes

an “abuse[] [of] discretion.” Ibid. In addition, the Ninth

Circuit has not suggested that it matters whether the

claimants would have substantially prevailed if the case

was litigated to a judgment.

Consistent with the approach in the Ninth Circuit, at

least one district court in the Fourth Circuit has held that

the loss of attorneys’ fees constitutes legal prejudice and

requires CAFRA dismissals to be made with prejudice

to safeguard the recovery of fees. See, e.g., $107,702, 2016

WL 413093, at *3 (“Loss of the ability to pursue recovery

under CAFRA would be a substantial legal prejudice to

Claimants.”). But because the Ninth Circuit’s decision

is unpublished, some courts follow it, and others do not,

even within the same district. Compare Deckers Outdoor

Corp. v. Romeo & Juliette, Inc., No. 2:15-cv-2812, 2016

WL 5842187, at *3 (C.D. Cal. Oct. 5, 2016) (“Defendants’

argument under Ito ultimately rules the day.”), with

Meridian Rapid Def. Grp., LLC v. Delta Sci. Corp.,

No. 23-cv-7222, 2025 WL 504487, at *1 n.1 (C.D. Cal.

2025) (“As the Court has previously explained, [Ito] is

neither precedential nor binding, no matter how many

times district courts cite to it.”). The net result is widely

inconsistent outcomes across the country: whether a

claimant who successfully recovers their property will

also recover their attorneys’ fees under CAFRA depends

on which district the government brings the forfeiture

case in, on which judge within that district is assigned,

and (if the judge does not take the Ito approach) whether

the judge decides to grant the government’s voluntary

26

dismissal with prejudice in order to safeguard a CAFRA

claimant’s fee recovery.

Of these approaches, the Ninth Circuit has the better

argument that the loss of statutorily entitled attorneys’

IHHVPHHWVWKHGHÀQLWLRQRISUHMXGLFHPrejudice, Black’s

Law Dictionary (12th ed. 2024) (“Damage or detriment

to one’s legal rights or claims.”). But because Rule

41(a)(2) does not contain the words “legal prejudice,” the

Ninth Circuit’s approach gets to the right outcome—i.e.,

recoverability of fees—through an atextual workaround.

For that reason, the best way for this Court to resolve the

split over Rule 41(a)(2) is to grant certiorari on at least

WKHÀUVWTXHVWLRQDQGKROGWKDWDFODLPDQW´VXEVWDQWLDOO\

prevails” by recovering his property and obtaining a Rule

41(a)(2) dismissal (that would moot the need for courts to

ever reach the second). But if the Court desires to resolve

the split directly, it can and should grant certiorari on the

second question as well.

2. In addition to the split over how courts should

dismiss CAFRA cases under Rule 41(a)(2), CAFRA is not

the only statute containing the language “substantially

prevails.” FOIA, the Clayton Act, and the Clean Water

Act (“CWA”) use it, too. As a result, a number of courts

are presently interpreting “substantially prevails” very

differently across statutes.

D ,QFRQÁLFWZLWKWKH6HFRQG&LUFXLW·VGHWHUPLQDWLRQ

that the “substantially prevails” language in CAFRA

means “prevailing party,” Congress has repudiated

attempts to apply the “prevailing party” test to FOIA’s

´VXEVWDQWLDOO\ SUHYDLOVµ VWDQGDUG E\ UHDIÀUPLQJ ZKDW

courts had held for decades before Buckhannon—i.e., that

27

a judgment is not needed for a litigant to “substantially

prevail.” 5 U.S.C. 552(a)(4)(E)(ii) (“a complainant has

substantially prevailed if the complainant has obtained

relief through * * * a voluntary or unilateral change in

position by the agency, if the complainant’s claim is not

insubstantial.”); 153 Cong. Rec. S15831 (daily ed. Dec.

18, 2007) (statement of Sen. Leahy, sponsor) (stating

WKDWWKHDPHQGPHQW´FODULÀHVWKDWWKH6XSUHPH&RXUW·V

decision in [Buckhannon] * * * does not apply to FOIA

cases”); see also Vermont Low Income Advoc. Council,

Inc. v. Usery, 546 F.2d 509, 513 (2d Cir. 1976) (Friendly,

J.) (holding that FOIA “clearly” did not require judicially

sanctioned relief such that the government could “abort

any award of attorney fees by an eleventh hour tender of

the information requested.”).

And while the Second Circuit suggested that the fact

that Congress amended FOIA but not CAFRA precludes

interpreting both statutes consistently, App. 30a n.13

(reasoning that Congress “knows how to authorize

attorney fee awards in the absence of a favorable judicial

ruling”), that reasoning gets the law backwards. By the

time courts started erroneously applying Buckhannon to

CAFRA in 2007, Congress was already in the process of

enacting its FOIA Amendment. And even if the two statutes

were similarly situated at the time of the amendment

(they were not), this Court has held that congressional

LQDFWLRQFDQQRWEHLQWHUSUHWHGDVUDWLÀFDWLRQRIDMXGLFLDO

interpretation of a statute. See Alexander v. Sandoval,

532 U.S. 275, 292 (2001) (“It is impossible to assert with

any degree of assurance that congressional failure to

DFWUHSUHVHQWVDIÀUPDWLYHFRQJUHVVLRQDODSSURYDORIWKH

&RXUW·V VWDWXWRU\ LQWHUSUHWDWLRQµ FLWDWLRQ PRGLÀHG 

“Congressional inaction” following the misinterpretation

28

of one statute thus “cannot amend a[nother] duly enacted

statute.” Patterson v. McLean Credit Union, 491 U.S. 164,

175 n.1 (1989), superseded by statute on other grounds as

recognized by CBOCS W., Inc. v. Humphries, 533 U.S.

442, 450 (2008); accord Helvering v. Hallock, 309 U.S.

106, 120-121 & n.7 (1940).

b. Separate from FOIA, district courts in the

Fourth, Si xth, and Ninth Circuits have rejected

arguments that Buckhannon applies to the “substantially

prevailing par ty” standard in the CWA and the

“substantially prevails” standard in the Clayton Act.

See FTC v. Kroger Co., No. 3:24-cv-00347, 2026 WL

560125, at *7-9 (D. Or. Feb. 27, 2026) (holding that this

Court’s decisions in Hardt and Lackey precluded it from

applying Buckhannon’s “prevailing party” standard to

15 U.S.C. 26’s “substantially prevails” standard); Ohio

Valley Envtl. Coal., Inc. v. Wheeler, 387 F. Supp. 3d 654,

656-658 (S.D. W. Va. 2019) (holding that “‘prevailing

party’” precedents do not govern “substantially prevails”

statutes because Hardt “distinguish[ed] ‘prevailing’

from ‘substantially prevailing’ statutes and limit[ed]

the application of Buckhannon to those statutes where

fees are only available to the former category”); United

States v. Bd. of Cnty. Comm’rs of Hamilton Cnty., No.

1:02 CV 00107, 2005 WL 2033708, at *4-5 (S.D. Ohio Aug.

23, 2005) (holding that “to ‘substantially prevail’ a party

would need to obtain a somewhat lesser degree of relief

than if they were to ‘prevail’”; and that “the Buckhannon

reasoning * * * does not apply to the former” term). And

they have done so even though Congress never passed

an amendment clarifying the meaning of those statutes

post-Buckhannon.

29

As a result, there are now courts all over the

country that interpret the same congressional words

(“substantially prevails”) to mean different things across

different statutes, based solely on the erroneous belief that

the same precedent (Buckhannon) extends to CAFRA,

even though it does not extend to FOIA, the Clayton Act,

and the CWA; and even though the CWA and the Clayton

Act, like CAFRA, were never amended.

Compared to these fee-shifting statutes that courts

have correctly interpreted in accordance with their

original public meaning, CAFRA provides even more of a

reason to hold that claimants who recover their property

substantially prevail, because in the CWA, the Clayton

Act, and FOIA contexts, the parties seeking fees are in

the same procedural posture as in Buckhannon: they are

plaintiffs—the government (or other relevant defendant)

does what plaintiffs want, but the plaintiffs do not have a

court order to show for it and thus technically lose their

case. By contrast, a CAFRA claimant is not a plaintiff,

because in the CAFRA context, the government decides

to bring a case to take title to a claimant’s property, and

it is the government plaintiff that abandons—and thus

technically loses—its case when it does not take title

to the property. A decision in this case would end that

inconsistency.

30

CONCLUSION

The Court should grant the petition.

Respectfully submitted,

JOEL S. NOLETTE

WILEY REIN LLP

2050 M Street NW

Washington, DC 20036

jnolette@wiley.law

STEPHEN F. RAIOLA

Counsel of Record

S. NATHAN PARK

KIBLER FOWLER & CAVE LLP

270 Madison Avenue,

Suite 1410

ZIEN HALWANI

New York, NY 10016

JESSE MENTZ

(917) 909-6350

KIBLER FOWLER & CAVE LLP sraiola@kfc.law

11100 Santa Monica Boulevard, npark@kfc.law

Suite 600

Los Angeles, CA 90025

zhalwani@kfc.law

jmentz@kfc.law

July 17, 2026

Counsel for Petitioner