Amicus Curiae Brief — Richard Stuart Ross, Petitioner v. United States

No. 26-91

IN 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 Appeals for the Second Circuit

_________

BRIEF OF AMICI CURIAE JUDICIAL

WATCH, INC. AND THE ALLIED

EDUCATIONAL FOUNDATION IN SUPPORT

OF PETITIONER

_________

Meredith L. Di Liberto

Counsel of Record

JUDICIAL WATCH, INC.

425 Third Street SW

Washington, DC 20024

(202) 646-5172

rpopper@judicialwatch.org

Counsel for Amici Curiae

Dated: August 17, 2026

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

i

QUESTION PRESENTED

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 forfeiture action and return all claimed

property it seized following litigation.

ii

TABLE OF CONTENTS

QUESTION PRESENTED ......................................... i

TABLE OF CONTENTS ............................................ ii

TABLE OF AUTHORITIES ..................................... iv

INTERESTS OF THE AMICI CURIAE .....................1

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

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

I.

The Second Circuit’s Decision Violates

the Separation of Powers and Creates an

Unconstitutional Power Grab for the

Courts ..........................................................3

A. “Prevailing Party” and “Substantially

Prevails” Are Distinct Standards

Serving Distinct Purposes ...................5

B. By Treating “Prevailing Party” and

“Substantially Prevails” as

Synonymous Standards, the Second

Circuit Defied Congress’ Intent ........10

C. The Freedom of Information Act

Exemplifies the Substantially

Prevailing Standard That the Second

Circuit Should Have Followed ..........14

iii

II.

The Significant Fallout of the Second

Circuit’s Decision Goes Far Beyond

Petitioner’s Harm and Threatens to

Produce Inconsistent Gameable Results ..16

CONCLUSION ..........................................................21

iv

TABLE OF AUTHORITIES

Cases

Page(s)

Alyeska Pipeline Serv. Co. v. Wilderness Soc’y,

421 U.S. 240 (1975) ......................................6, 16

Buckhannon Bd. & Care Home, Inc. v.

W. Va. Dep’t of Health & Human Res,

532 U.S. 598 (2001) ............................ 6, 7, 11, 17

Crabill v. Trans Union, LLC,

259 F.3d 662 (7th Cir. 2001) ............................18

Davis v. U.S. Dep’t of Justice,

610 F.3d 750 (D.C. Cir. 2010)...........................17

Hardt v. Reliance Standard Life Ins. Co.,

560 U.S. 242 (2010) .......................... 6, 10, 17, 18

Hardt v. Reliance Standard Life Ins. Co.,

336 Fed. Appx. 332 (4th Cir. 2009) ..................17

Hernandez v. Mesa,

589 U.S. 93 (2020) ..............................................4

Lackey v. Stinnie,

604 U.S. 192 (2025) ............................................6

Loggerhead Turtle v. City Council of Volusia City,

307 F.3d 1318 (11th Cir. 2002) ..........................4

v

Marbled Murrelet v. Babbitt,

182 F.3d 1091 (9th Cir. 1999) ..........................18

Oil, Chemical & Atomic Workers Int’l Union v.

Dep’t of Ed., 288 F.3d 452 (D.C. Cir. 2002) .....17

Patchak v. Zinke,

583 U.S. 244 (2018) ............................................4

Pulsifer v. United States,

601 U.S. 124 (2024) ...........................................8

Rotkiske v. Klemm,

589 U.S. 8 (2019) ..............................................10

Ruckelshaus v. Sierra Club,

463 U.S. 680 (1983) ................................ 6, 19-20

Tejero v. Portfolio Recovery Assocs., LLC,

993 F.3d 393 (5th Cir. 2021) ............................18

United States v. Khan,

497 F.3d 204 (2d Cir. 2007) ................................5

United States v. Ross,

161 F.4th 100 (2d Cir. 2025) ...................... 18-19

United States v. Thirty-Two thousand Eight

Hundred Twenty Dollars & Fifty-Six Cents

($32,820.56) in U.S. Currency,

838 F.3d 930 (8th Cir. 2016) ..............................4

vi

Vermont Low Income Advocacy Council,

Inc. v. Usery, 546 F.2d 509

(2d Cir. 1976) .............................................. 14-15

Statutes and Rules

5 U.S.C. §552(a)(4)(E) .................................................8

5 U.S.C. §552(a)(4)(E)(ii)(II) .......................................8

5 U.S.C. §552a(g)(2)(B) ...............................................8

5 U.S.C. §552a(g)(3)(B) ...............................................8

5 U.S.C. §552b(i) .........................................................8

15 U.S.C. §4304 ...........................................................9

15 U.S.C. §4304(a).......................................................8

16 U.S.C. §1540(g)(4) ..................................................6

28 U.S.C. §2412(b).....................................................10

28 U.S.C. §2465(b).................................................5, 10

29 U.S.C. §1132(g)(1) ............................................6, 17

29 U.S.C. §§1303(f), 1370(e)........................................9

30 U.S.C. §1270(d).......................................................6

33 U.S.C. §§1365(d), 1369(b)(3) ..................................9

vii

33 U.S.C. §2706(g) .......................................................9

42 U.S.C. §300aa-31(c) ................................................8

42 U.S.C. §300j-8(d) ....................................................6

42 U.S.C. §1973/(e) ......................................................7

42 U.S.C. §1988(b).......................................................7

42 U.S.C. §2000e-5(k) .................................................7

42 U.S.C. §11113 .........................................................8

42 U.S.C. §6972(e) .......................................................9

42 U.S.C. §7604(d).......................................................6

42 U.S.C. §7607(f) .....................................................19

42 U.S.C. §9659(f) ......................................................9

42 U.S.C. §11046(f) ....................................................9

47 U.S.C. §159a(c)(4)(C)(iii) ........................................8

54 U.S.C. §307105 .......................................................8

Congressional Materials and Other Authorities

S. 1701, 106th Cong. § 7 (1999) ............................5, 11

S. 1931, 106th Cong. § 4 (1999) ......................... 12-13

viii

153 Cong. Rec. S15831 (daily ed. Dec. 18, 2007) .....14

Pub. L. No. 110-175, 121 Stat. 2525 (2007) .......14, 15

LEGISLATIVE HISTORY: CIVIL ASSET

FORFEITURE REFORM ACT (CAFRA) OF

2000 (May 2000) (published by the U. S.

Dep’t of Justice) ................................ 5, 11, 12-13

Antonin Scalia & Bryan Garner, “Reading

Law: The Interpretation of Legal Texts”

(2012) ................................................................10

Stefan D. Cassella, “The Civil Asset Forfeiture

Reform Act of 2000: Expanded Government

Forfeiture Authority and Strict Deadlines

Imposed on All Parties,” 27 J. Legis. 97

(2001) ..................................................................5

Valerie C. Brannon, Cong. Rsch. Serv., IF12992,

Canons of Construction: A Brief Overview

(2025) ..................................................................9

3 Court Awarded Attorney Fees § 39.142 ..................4

1

INTERESTS OF THE AMICI CURIAE 1

Judicial Watch, Inc. (“Judicial Watch”) is a nonpartisan, public interest organization headquartered

in Washington, D.C. Founded in 1994, Judicial

Watch seeks to promote accountability, transparency

and integrity in government, and fidelity to the rule

of law. Judicial Watch regularly files amicus curiae

briefs and lawsuits in pursuit of these goals.

The Allied Educational Foundation (“AEF”) is a

nonprofit charitable and educational foundation

based in Englewood, New Jersey. Founded in 1964,

AEF is dedicated to promoting education in diverse

areas of study. AEF regularly files amicus curiae

briefs to advance its purpose and has appeared as an

amicus curiae in this Court on many occasions.

Amici, as issue-oriented educational 501(c)(3) nonprofit organizations, have a deep and vested interest

in the courts performing their constitutional role as

interpreters of the law, not makers of the law. Amici

also have an interest in enforcing legislatively created

fee-shifting penalties against the federal government

when it fails to uphold the law. As a watchdog

organization, Judicial Watch in particular frequently

files suit against the federal government to uphold

1

Amici state that no counsel for a party to this case

authored this brief in whole or in part; and no person or entity,

other than amicus and its counsel, made a monetary

contribution intended to fund the preparation and submission of

this brief. In accordance with U.S. Supreme Court Rule 37,

Judicial Watch notified all parties of its intention to file this

amicus brief.

2

the law and has noted an increase in federal agencies’

lackadaisical approach to their legal obligations. At

the same time, the Second Circuit has drawn Amici’s

attention with its erroneous application of this

Court’s principles of statutory interpretation which

threatens to upend the separation of powers by

allowing the courts to absorb legislative functions and

create an unconstitutional concentration of power in

the judiciary.

SUMMARY OF ARGUMENT

The Second Circuit’s decision to uphold the

District Court’s denial of an award of attorney fees to

Petitioner violates the bedrock constitutional

principle of separation of powers. Federal courts have

been transitioning from quietly circumventing the

principle of separation of powers to brashly admitting

that they know better than Congress what the words

carefully chosen by Congress mean. The rule of law

must be upheld, and the federal courts must be reined

in. Without this Court’s intervention, the federal

courts will continue to snatch legislative power out of

the hands of the branch to which it belongs, and,

emboldened by a lack of accountability, will destroy

the delicate balance of powers.

The Second Circuit’s decision also contradicts the

Civil Asset and Forfeiture Reform Act’s (“CAFRA”)

plain meaning, purpose, and legislative record, and

disregards this Court’s precedents. This case goes

beyond one innocent owner’s attorney fees and a

particular court’s misrule. This case highlights the

larger, blatant disregard of Congress and the will of

3

the People who elected them. Left unchecked, the

Second Circuit’s decision could affect any of the

current fee-shifting statutes.

This Court’s intervention is needed.

ARGUMENT

I.

The Second Circuit’s Decision Violates

the Separation of Powers and Creates

an Unconstitutional Power Grab for

the Courts.

Power has always been the source of envy, conflict,

and, when not properly checked, corruption and

tyranny. Our Founding Fathers fought to diminish,

in James Madison’s words, “the encroaching spirit of

power,” by very carefully balancing the power of our

fledgling country into three separate and co-equal

branches.

The Constitution creates three branches

of Government and vests each branch

with a different type of power. To the

legislative

department

has

been

committed the duty of making laws; to

the executive the duty of executing

them; and to the judiciary the duty of

interpreting and applying them in cases

properly brought before the courts. Each

branch exercises the powers appropriate

to its own department and no branch can

encroach upon the power confided in the

others.

This system prevents the

4

accumulation of all powers legislative,

executive, and judiciary, in the same

hands.

Patchak v. Zinke, 583 U.S. 244, 249-50 (2018)

(plurality opinion) (internal citations omitted)

(cleaned up); see also Hernandez v. Mesa, 589 U.S. 93,

113 (2020) (heeding the Court’s concern about

“respect for the separation of powers.”)

The Second Circuit’s role below was to interpret

CAFRA’s fee-shifting standard as written and

enacted by Congress. Instead, the Second Circuit

effectively rewrote CAFRA’s fee-shifting standard to

the benefit of the federal government and to the

detriment of those Congress sought to protect in

enacting CAFRA’s fee-shifting standard – individuals

like the Petitioner. 2

The Second Circuit is not alone in this legal error. Several

federal circuits have run amok and applied Buckhannon’s

holding to any and all federal fee-shifting provisions, regardless

of the actual wording or legislative history. See e.g. United

States v. Thirty-Two thousand Eight Hundred Twenty Dollars &

Fifty-Six Cents ($32,820.56) in U.S. Currency, 838 F.3d 930, 935

(8th Cir. 2016) (“Like other circuits that have examined the

unadorned terms, we see ‘nothing to suggest that Congress

sought to draw any fine distinction between ‘prevailing party’

and ‘substantially prevail.’”); Loggerhead Turtle v. City Council

of Volusia City, 307 F.3d 1318, 1322 n.4 (11th Cir. 2002)

(permitting attorney fees but noting that variations in

terminology “are generally deemed inconsequential.”). That

courts would flaunt their failure to “draw distinctions” or

consider “terminology variations” demonstrates the magnitude

of this petition. Indeed, official legal treatises go so far as to

instruct that Buckhannon requires some element of judicial

imprimatur to succeed under CAFRA’s fee-shifting provision.

See e.g., 3 Court Awarded Attorney Fees § 39.142.

2

5

A.

“Prevailing

Party”

and

“Substantially

Prevails”

Are

Distinct

Standards

Serving

Distinct Purposes.

The Civil Asset Forfeiture Reform Act was signed

by President Clinton on April 25, 2000. “In passing

CAFRA, Congress was reacting 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). The legislative history of the

Act reveals four long years of competing bills,

hearings, floor statements, and input from the U.S.

Department of Justice (“DOJ”). 3 The fee-sifting

provision was introduced in the Senate three years

into the debate. 4 As codified, the new fee-shifting

provision in CAFRA made the United States liable for

reasonable attorney fees and litigation costs when the

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

2465(b). 5

See Stefan D. Cassella, “The Civil Asset Forfeiture Reform

Act of 2000: Expanded Government Forfeiture Authority and

Strict Deadlines Imposed on All Parties,” 27 J. Legis. 97, 98-101

(2001).

3

Id. at 101, n. 29; see also S. 1701, 106th Cong. § 7 (1999);

LEGISLATIVE HISTORY: CIVIL ASSET FORFEITURE

REFORM ACT (CAFRA) OF 2000 (May 2000) (“CAFRA

HISTORY”) (published by the U. S. Dep’t of Justice) at

https://www.justice.gov/criminal/criminal-mlars/file/1042296/dl

4

28 U.S.C. § 2465(b) includes additional monetary

penalties against the United States, including post-judgment

interest. However, these are not at issue in this brief.

5

6

Federal fee-shifting provisions vary widely:

Congress makes some awards mandatory and others

discretionary, allows different parties to recover in

different circumstances, and requires different

showings of success from claimants. See Alyeska

Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240,

260 n.33 (1975) (superseded by statute) (cataloging

Congress’ varied attorneys’ fees provisions across

federal statutes). Chief among these variables is what

showing of success qualifies to receive fees. Two

standards relevant here are the “prevailing party”

standard, and the “substantially prevails” standard—

each deliberately assigned by Congress to accomplish

the purpose it best serves. 6

“Prevailing party” is the default standard used in

federal fee-shifting provisions because it is a

“straightforward, bright-line rule.” Lackey v. Stinnie,

604 U.S. 192, 204 (2025) (noting the “prevailing

party” standard is in the interest of judicial economy).

Following this Court’s holding in Buckhannon Bd. &

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

Res., courts have largely determined that the

Congress adopted a still more permissive standard in

other statutes, making fees available to “any party” or “either

party” if a court finds such award appropriate. See, e.g., 42

U.S.C. §7604(d); 42 U.S.C. §300j-8(d); 16 U.S.C. §1540(g)(4); 30

U.S.C. §1270(d); 29 U.S.C. §1132(g)(1) (“either party”). This

Court has construed “appropriate” to demand “some degree of

success on the merits before a party becomes eligible for a fee

award.” Ruckelshaus v. Sierra Club, 463 U.S. 680, 682 (1983);

see also Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242,

252 (2010) (applying Ruckelshaus’ “some degree of success on the

merits” standard to 29 U.S.C. §1132(g)(1)).

6

7

“prevailing party” standard demands a “judicially

sanctioned change in the legal relationship of the

parties”—foreclosing fee awards for claimants who

achieve their goals without a court’s “imprimatur.”

532 U.S. 598, 605 (2001). 7 As noted in Buckhannon,

examples of “prevailing party” statutes include 42

U.S.C. §2000e-5(k) (Civil Rights Act of 1964), 42

U.S.C. §1973/(e) (Voting Rights Act Amendments of

1975), 42 U.S.C. §1988(b) (Civil Rights Attorney’s

Fees Awards Act of 1976)—to name a few. Id. at

602−03. Most notably, the Buckhannon Court held

that the prevailing party standard – at least as

applied in the Fair Housing Act and Americans with

Disabilities Act – excludes “catalyst” recoveries where

a defendant voluntarily changes its conduct without

an “enforceable judgment[] on the merits [or a] courtordered consent decree.” Id. at 604.

Congress adopted the broader “substantially

prevails” standard to reward claimants who advance

a statute’s goals, even without an outright win.

Neither an enforceable judgment nor a court-ordered

consent decree is required. Thus, this standard

absorbs catalyst recoveries that the “prevailing party”

standard forecloses. For example, under the Freedom

of Information Act (“FOIA”), a claimant “substantially

prevails” upon obtaining relief through “a voluntary

Amici contend that the holding of Buckhannon is far

narrower than has been applied by the courts. While dicta may

support applying the Court’s holding to any use of “prevailing

party” in a fee shifting statute, the actual holding appears to

apply only to the Fair Housing Act and the Americans with

Disabilities Act. Buckhannon, 532 U.S. at 610. Indeed, this is

an additional reason for this the Court to grant this petition: to

clarify the bounds of Buckhannon’s reach. See also, n.2.

7

8

or unilateral change in position by the agency,” even

without any court order compelling that change. 5

U.S.C. §552(a)(4)(E)(ii)(II). This language closed a

loophole that allowed agencies to delay disclosure

until the eve of an adverse ruling, then release records

to avoid fees.

Congress reaches for “prevailing party” more often

than “substantially prevails,” and it reserves the

latter for a small class of federal statutes. A general

search of the United States Code identifies more than

140 uses of “prevailing party”, whereas “substantially

prevails” appears in only about 20 sections. Some

sections include the government-transparency

statutes 8 and public interest enforcement statutes. 9

Further, some statutes use both terms

“substantially prevails” and “prevailing party” in the

same fee-shifting provision—presumptively finding

each term to mean something different. See Pulsifer

v. United States, 601 U.S. 124, 148 (2024) (explaining

the “presumption of consistent usage and the

meaningful variation canon”) (“In a given statute, the

same term usually has the same meaning and

different terms usually have different meanings.”);

See e.g., 5 U.S.C. §552(a)(4)(E) (FOIA); 5 U.S.C.

§552a(g)(2)(B) (Privacy Act), (g)(3)(B) (Government in the

Sunshine Act), 5 U.S.C. §552b(i) (Open Meetings).

8

See e.g., 54 U.S.C. §307105 (National Historic Preservation

Act); 42 U.S.C. §300aa-31(c) (National Childhood Vaccine Injury

Act); 47 U.S.C. §159a(c)(4)(C)(iii) (FCC); 42 U.S.C. §11113

(Health Care Quality Improvement Act of 1986); 15 U.S.C.

§4304(a) (Antitrust).

9

9

see also Valerie C. Brannon, Cong. Rsch. Serv.,

IF12992, Canons of Construction: A Brief Overview

(2025) (“Courts may assume that Congress is aware

of the canons and legislates in line with these

understandings.”) For example, 15 U.S.C. §4304 uses

“substantially prevailing party” in section (a), but

“prevailing party” in section (b).

Some statutes list both standards in the same

clause: they authorize fees to “any prevailing or

substantially prevailing party.” 10 That “or” must

mean something. If “substantially prevailing” were

completely synonymous with “prevailing party,”

Congress’ second phrase would be redundant. Its

repeated use instead shows that Congress meant to

reach claimants who achieved meaningful statutory

success even when they could not satisfy the

“prevailing party” standard.

“Prevailing party” and “substantially prevails”

demand different showings, reward different kinds of

success, and serve different statutory purposes—one

rewarding court-ordered victories, the other

rewarding claimants who advance a statute’s goals

even without a court-ordered victory. Congress chose

each standard, and each statute that carries it, for a

reason. Treating the two as interchangeable defies

that reason, breeding the confusion, gamesmanship,

See, e.g., 33 U.S.C. §§1365(d), 1369(b)(3) (Clean Water

Act); 42 U.S.C. §§6972(e), 9659(f), 11046(f) (Resource

Conservation and Recovery Act) (“RCRA”); 33 U.S.C. §2706(g)

(Oil Pollution Act of 1990); 29 U.S.C. §§1303(f), 1370(e)

(Employee Retirement Income Security Act of 1974) (“ERISA”).

10

10

and inconsistent results Congress’ careful drafting

sought to avoid.

B. By Treating “Prevailing Party and

“Substantially Prevails” as

Synonymous Standards, the Second

Circuit Defied Congress’ Intent.

Because “prevailing party” is a distinct term of art

from “substantially prevailing” or any other feeshifting terms Congress has used, courts must

interpret each term on its own footing rather than

blur the distinctions between them. See Hardt, 560

U.S. at 252. This instruction follows “a fundamental

principle of statutory interpretation that ‘absent

provision[s] cannot be supplied by the courts.’”

Rotkiske v. Klemm, 589 U.S. 8, 14 (2019) (citing A.

Scalia & B. Garner, Reading Law: The Interpretation

of Legal Texts 94 (2012)). This Court goes on to write

that “[s]uch supplementation is particularly

inappropriate when, as here, Congress has shown

that it knows how to adopt the omitted language or

provision.” Id.

Relevant here is that, at the time CAFRA was

enacted in 2000, Congress already had before it the

narrower “prevailing party” framework that governed

fee awards against the government under the Equal

Access to Justice Act (“EAJA”). See 28 U.S.C.

§2412(b). But Congress did not use that framework

for CAFRA. Instead, it broadened the class of

claimants eligible for fees to those who “substantially

prevail,” 28 U.S.C. §2465(b), extending recovery

beyond what EAJA’s “prevailing party” standard

would have allowed. Further, Congress made this

11

choice a year before Buckhannon was decided, so

CAFRA’s “substantially prevails” standard cannot be

read as an attempt to codify Buckhannon’s later,

narrower rule. If anything, the opposite is true:

Congress deliberately chose a broader standard than

the one courts have since imported into CAFRA.

Treating “substantially prevails” as equivalent to

“prevailing party” does not just blur statutory

language; it retroactively imports a rule Congress

considered and rejected when it broadened CAFRA’s

fee provision beyond EAJA’s (and subsequently,

Buckhannon’s) narrower framework.

CAFRA’s four-year journey to implementation

included several House and Senate versions of the

law. Changes made to the fee-shifting provision

language in the Senate versions are telling. When

introduced by Senator Sessions on October 6, 1999,

S.1701 made attorney fees dependent on a courtordered judgment. See S. 1701, 106th Cong. § 7

(1999); see also CAFRA HISTORY at 395.

Specifically, the bill read:

[I]f the party filing a claim in a civil

forfeiture case is not charged with any

criminal offense in a related case, and

the court enters judgment for that party

on any ground … the court shall order

the Government to pay costs and

reasonable attorneys’ fees to the

claimant.

Id. But this was not the final say.

12

Introducing S.1931 on November 16, 2000,

roughly six weeks after Senator Sessions’ bill,

Senators Hatch and Leahy presented a very different

fee-shifting provision.

Gone was the language

requiring a court-ordered judgment for the claimant

to obtain attorney fees. In its stead was the current

language providing attorney fees and litigation costs

for any claimant who “substantially prevails.” Id. at

417. And the driving force for this change is not

mysterious but is recorded in the CAFRA legislative

history. Senator Hatch stated:

The Hatch-Leahy bill awards attorney

fees and costs to property owners who

prevail against the government in civil

forfeiture cases. The costs of contesting

a civil forfeiture of property can be

substantial. The award of attorney fees

and costs to property owners who prevail

against the government in civil

forfeiture cases is justified because

unlike criminal forfeiture actions, the

property owner is not charged with a

crime. Instead, the government proceeds

"in rem" against the property. Given

that the government does not sue or

indict the property owner, it is unfair

for the property owner to have to

incur attorney fees and costs when

the government does not prevail in

civil forfeiture actions.

13

S. 1931, 106th Cong. § 4 (1999); see also CAFRA

HISTORY at 410-11 (statement of Senator Hatch,

sponsor) (emphasis added).

Equally concerning to Senator Hatch was the

relatively light burden of proof required by the

government in civil forfeitures. Instead of having to

prove the fraud beyond a reasonable doubt, “the

government only has to prove its case against the

property by a preponderance of the evidence.” Id. The

ability to more easily seize assets in a civil context

puts civil claimants in a vulnerable position without

the protections of constitutional criminal procedure

(e.g., the right to an attorney). “If the government

decides to pursue a civil forfeiture action instead of

the more difficult to prove criminal forfeiture action,

it should be obligated to pay the attorney fees and

costs of the property owner when the property owner

prevails.” Id.

In the present case, the Respondent chose to

proceed with a civil forfeiture action and not a

criminal action against Mr. Ross. Despite the lower

burden of proof, the Respondent did not prevail in its

civil forfeiture action against Mr. Ross.

The

Respondent simply returned the seized funds and

walked away.

The legislative history clearly

demonstrates that Mr. Ross deserved attorney fees

and litigation costs as: (1) he was not charged

criminally; (2) he was forced to defend the civil seizure

of his assets; and (3) he prevailed in the return of the

seized assets.

14

C. The Freedom of Information Act

Exemplifies

the

Substantially

Prevailing Standard That the

Second

Circuit

Should

Have

Followed.

The Freedom of Information Act’s (“FOIA”) use of

the “substantially prevails” standard rather than the

“prevailing party” standard within its fee-shifting

provision is not an isolated or arbitrary choice.

Congress made this choice intentionally, providing

that FOIA awards a complainant attorney fees and

litigation costs if he “substantially prevails,” either by

obtaining a “judicial order or…consent decree” or by

“a voluntary or unilateral change in position by the

agency.” OPEN Government Act of 2007, Pub. L. No.

110-175, 121 Stat. 2525 (2007); see also 153 Cong. Rec.

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

Leahy, sponsor) (“The bill also clarifies that

Buckhannon does not apply to FOIA cases.”) (cleaned

up).

Even prior to the legislative response to

Buckhannon, the legislative history of FOIA’s feeshifting provision was “unusually complete.”

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

546 F.2d 509, 512 (2d Cir. 1976). In Vermont Low

Income, the distinguished Judge Friendly laid out the

changes to FOIA’s fee-shifting language and found

that the lower court erred in conditioning an award of

attorneys’ fees on a judgment in favor of the plaintiff.

Id. at 513. Judge Friendly explained:

15

While that would have been true under

the original proposal made by the House

Committee on Government Operations

in 1972, we agree that under the bill as

enacted a judgment is not an absolute

prerequisite to such an award, as indeed

the Government seemingly conceded at

argument.

Id.

To further the explanation, Judge Friendly offered

an “extreme example” to make the point: when the

Government takes a FOIA case to trial and

developments make it unlikely that the Government

will prevail, “the Government could abort any award

of attorney fees by the eleventh hour tender of the

information requested.” Id. This “extreme example”

is the FOIA equivalent of the CAFRA case before this

Court. In both cases, the Government moots its own

case by unilateral action which produces the exact

results the requestor and claimant were seeking in

the first place. In keeping with the legislative history

and the purposeful removal of a court order

requirement to obtain an attorney fee award, the

“substantially prevailed” standard was born.

Congress confirmed this development when it enacted

the OPEN Government Act of 2007. See OPEN

Government Act of 2007, Pub. L. No. 110-175, 121

Stat. 2525 (2007). There is simply no rational way to

hold that “substantially prevailing” is the same as

“prevailing party.”

16

This clarification and refinement reflect a broader

point: Congress crafts each fee-shifting standard to

encourage the enforcement of that federal statute’s

purpose. See Alyeska Pipeline Co., 421 U.S. at 260.

(“Congress make[s] specific and explicit provisions for

the allowance of attorneys’ fees under selected

statutes granting or protecting various federal

rights.”) (cleaned up). By treating these fee-shifting

standards as interchangeable—particularly by

equating “substantially prevails” with “prevailing

party”—courts defy Congress’ directions, disrupting

the statute’s intended mechanics and breeding

confusion, gamesmanship, and inconsistent results.

II.

The Significant Fallout of the Second

Circuit’s Decision Goes Far Beyond

Petitioner’s Harm and Threatens to

Produce Inconsistent and Gameable

Results.

Congress

chooses

fee-shifting

standards

deliberately. When courts blur “substantially

prevails” into “prevailing party”—whether by

relabeling the standard, importing its mechanics, or,

as here, disregarding CAFRA’s plain text

altogether—they do not merely misread a statute—

they rewrite it. Here, the Second Circuit’s approach

would not be confined to CAFRA. It would effectively

rewrite the roughly twenty other federal statutes that

use the broader “substantially prevails” standard to

give defendants throughout the U.S. Code the same

escape hatch the government exploited here.

17

History has already proven this fear of the courts

exceeding their authority is very real. As explained

above, FOIA was the first prime example of the courts

overreaching and redefining a fee-shifting provision.

See infra at § I.C. After the District of Columbia

Circuit applied Buckhannon’s “prevailing party” bar

to FOIA’s distinct “substantially prevails” standard,

Congress passed the 2007 OPEN Government Act to

confirm that Buckhannon does not, in fact, control

FOIA fee awards, as discussed above. 11

Case law interpreting the fee-shifting provision

under ERISA also shows how a court can deviate from

Congress’ chosen standard without explicitly

replacing the standard within the statute. ERISA’s

fee-shifting provision never uses the term “prevailing

party”—it authorizes fees to “either party” at the

court’s discretion. 29 U.S.C. §1132(g)(1). Yet the

Fourth Circuit required ERISA claimants to establish

“prevailing party” status before a court could even

consider a fee award, importing that standard’s

mechanics onto text that never contained it. Hardt v.

Reliance Std. Life Ins. Co., 336 Fed. Appx. 332, 336

(4th Cir. 2009) (per curium) (reversed and remanded).

This Court had to intervene. Hardt, 560 U.S. at

244−45 (“We reject this interpretation as contrary to

§1132(g)(1)’s plain text.”)

Both examples teach the same lesson: courts may

not import one fee-shifting standard’s requirements

See Oil, Chemical & Atomic Workers Int’l Union v. Dep’t of

Ed., 288 F.3d 452 (D.C. Cir. 2002); superseded by statute; see

also Davis v. U.S. Dep’t of Justice, 610 F.3d 750, 752 (D.C. Cir.

2010).

11

18

into a statute where Congress chose different

language. See Hardt, 560 U.S. at 252−53. The Second

Circuit’s decision below cannot be squared with this

Court’s own instructions in Hardt. 560 U.S. 244−45

(rejecting a lower court’s attempt to graft a

“prevailing party” requirement into a federal feeshifting provision that does not contain it). Yet still,

the Second Circuit imported the “prevailing party”

standard into CAFRA, despite explicit language

within the statute demanding a “substantially

prevails” standard.

FOIA and ERISA are not the only statutes that

have been affected by a judicially imported feeshifting provision. Other statutes that have been

pulled into the judicial vortex of labeling fee-shifting

provisions as “prevailing party” standards include:

the Fair Credit Reporting Act, 12 the Fair Debt

Collections Practices Act, 13 and the Endangered

Species Act. 14

The present case illustrates why this distinction—

“prevailing party” versus “substantially prevails”—

cannot be dismissed. Richard Ross spent years

litigating after the government seized approximately

$4.9 million from him, United States v. Ross, 161

F.4th 100, 106-07 (2d Cir. 2025), including roughly

See e.g., Crabill v. Trans Union, LLC, 259 F.3d 662, 66667 (7th Cir. 2001).

12

See e.g., Tejero v. Portfolio Recovery Assocs., LLC, 993

F.3d 393, 397 (5th Cir. 2021).

13

See e.g., Marbled Murrelet v. Babbitt, 182 F.3d 1091, 1094

(9th Cir. 1999).

14

19

$1.2 million the government itself acknowledged was

“apparently unrelated” to the alleged fraud. Id. at

123. The government later moved to voluntarily

dismiss its own forfeiture action without prejudice—

a dismissal the district court granted over Ross’

objection. Id. at 108, 123. The Second Circuit then

denied Ross the $108,633 in attorney fees, holding

that a dismissal without prejudice “renders the

proceedings a nullity” and leaves the matter as if the

action “never had been filed,” so that Ross “cannot be

said to have ‘substantially prevail[ed]’” under

CAFRA. Id. at 120, 122. That result rewards the very

gamesmanship CAFRA’s fee provision was designed

to deter: a claimant who forces the government to

abandon a losing forfeiture case recovers nothing, so

long as the government characterizes its retreat as

without prejudice. If the government can always

evade a fee award by dismissing before judgment,

CAFRA’s fee-shifting provision offers property owners

no meaningful check on improvident seizures—

precisely the outcome Congress’ chosen language was

meant to prevent.

Dissenting judges have long cautioned against

interpreting

Congress’

different

fee-shifting

provisions in ways that erase the textual distinctions

Congress deliberately included. In Ruckelshaus v.

Sierra Club, for example, the Clean Air Act’s fee

provision authorized an award “whenever the court

determines that such award is appropriate,” yet the

majority grafted in the “prevailing party” standard.

463 U.S. 680, 682−83, 686 (1983); see also 42 U.S.C.

§7607(f). In reply, the dissent wrote:

20

Today the Court holds that, no matter

how exceptional the circumstances may

be, Congress intended such awards to be

made only to prevailing parties. But in

§307(f) Congress deliberately used

language that differs from the

“prevailing party” standard, and it

carefully explained in the legislative

history that it intended to give the court

of appeals discretionary authority to

award fees and costs to a broader

category of parties. If one reads that

statute and its legislative history

without any strong predisposition in

favor of or against the “American Rule”

endorsed by the Court in Alyeska

Pipeline Service Co. v. Wilderness

Society, 421 U.S. 240, 247 (1975), and

repeatedly

rejected

by

Congress

thereafter, the answer is really quite

plain—and it is not the one the Court

engrafts on the statute.

463 U.S. at 694 (Stevens, J. dissenting). As this

dissent points out, Congress knows how to write

“prevailing party” or any other fee-shifting standards

in federal statutes. Id. at 710 (Stevens, J. dissenting)

(“It would have been much simpler for Congress to use

the language “prevailing party” if that is precisely

what it meant.) Thus, when Congress omits

“prevailing party,” but includes a broader standard—

which it has repeatedly done in government

transparency statutes, as well as citizen-suit and

21

public interest statutes – courts should believe that

Congress means what it writes.

CONCLUSION

For the foregoing reasons, Amici respectfully

request that the Court grant the petition for writ of

certiorari.

Respectfully submitted,

Meredith L. Di Liberto

Counsel of Record

JUDICIAL WATCH, INC.

425 Third Street SW

Washington, DC 20024

(202) 646-5172

mdiliberto@judicialwatch.org

Counsel for Amici Curiae

August 17, 2026