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

Supreme Court briefAug 20, 2026

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No. 26-91

In the Supreme Court of the United States

______________

RICHARD STUART ROSS,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

______________

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

AMICUS BRIEF OF THE AMERICAN CENTER FOR

LAW & JUSTICE IN SUPPORT OF PETITIONER

JAY ALAN SEKULOW

Counsel of Record

JORDAN A. SEKULOW

STUART J. ROTH

ANDREW J. EKONOMOU

BENJAMIN P. SISNEY

WALTER M. WEBER

NATHAN J. MOELKER

AMERICAN CENTER

FOR LAW & JUSTICE

201 Maryland Ave., NE

Washington, DC 20002

(202) 546-8890

sekulow@aclj.org

Counsel for Amicus Curiae

TABLE OF CONTENTS

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

INTEREST OF AMICUS ........................................... 1

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

ARGUMENT .............................................................. 4

I. THE TERM “SUBSTANTIALLY PREVAILS” IS

DISTINCT FROM THE TERM “PREVAILING

PARTY” AND HAS NEVER REQUIRED A

JUDGMENT AS A CONDITION FOR

RECOVERING ATTORNEY FEES. ........................ 4

A. “Substantially Prevails” had a settled

catalyst-inclusive

meaning

when

Congress enacted CAFRA in April 2000,

and Congress is presumed to have

incorporated that meaning. .......................... 6

B. The Second Circuit’s inference from the

2007 FOIA amendment inverts the

correct statutory analysis. .......................... 11

C. Hardt v. Reliance Standard confirms the

panel’s analytical method was wrong. ....... 16

II. THE QUESTION PRESENTED IS IMPORTANT:

THE DECISION BELOW HANDS THE

GOVERNMENT A TOOL TO NULLIFY

CAFRA’S ATTORNEY FEE PROVISION AT

WILL. ............................................................. 17

A. Protection of property against arbitrary

government seizure is a fundamental

civil right. .................................................... 17

B. Fee recovery is what makes that

protection real; the decision below allows

the government to nullify it at will. ........... 20

CONCLUSION ......................................................... 24

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Alexander v. Sandoval,

532 U.S. 275 (2001) ............................................... 14

Am. Ctr. for Law & Justice v. Dep’t of State,

535 F. Supp. 3d 23 (D.D.C. 2021) ........................... 1

Americans for Prosperity Foundation v. Bonta,

594 U.S. 595 (2021) ................................................. 1

Aviation Data Service v. FAA,

687 F.2d 1319 (10th Cir. 1982) ............................... 8

Blue v. Bureau of Prisons,

570 F.2d 529 (5th Cir. 1978) ................................... 8

Boyd v. United States,

116 U.S. 616 (1886) ............................................... 18

Bragdon v. Abbott,

524 U.S. 624 (1998) ........................................... 6, 10

Brower v. County of Inyo,

489 U.S. 593 (1989) ............................................... 18

Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t

of Health & Human Res.,

532 U.S. 598 (2001) ................................... 2, 3, 8, 21

CBOCS West, Inc. v. Humphries,

553 U.S. 442 (2008) ............................................... 15

Chesapeake Bay Foundation v. Department of

Agriculture,

11 F.3d 211 (D.C. Cir. 1993) ............................... 7, 9

Church of Scientology v. United States Postal

Service,

700 F.2d 486 (9th Cir. 1983) ............................... 5, 8

City of Riverside v. Rivera,

477 U.S. 561 (1986) ............................................... 20

Culley v. Marshall,

601 U.S. 377 (2024) ............................................... 19

Cuneo v. Rumsfeld,

553 F.2d 1360 (D.C. Cir. 1977) ............................... 7

Detroit Free Press v. Department of Justice,

73 F.3d 93 (6th Cir. 1996) ....................................... 8

Entick v. Carrington,

95 Eng. Rep. 807, 817 (C.P. 1765) ....................... 18

Fischer v. United States,

603 U.S. 480 (2024) ................................................. 1

Foster v. Boorstin,

561 F.2d 340 (D.C. Cir. 1977) ................................. 7

FTC v. Kroger Co.,

No. 3:24-cv-00347, 2026 WL 560125 (D. Or. Feb.

27, 2026) ................................................................ 15

George v. McDonough,

596 U.S. 740 (2022) ............................................... 10

Gowan v. United States Department of the Air Force,

148 F.3d 1182 (10th Cir. 1998) ........................... 8, 9

Gross v. FBL Fin. Servs.,

557 U.S. 167 (2009) ..................................... 2, 16, 17

Hall v. Meisner,

51 F.4th 185 (6th Cir. 2022) ................................. 19

Hardt v. Reliance Standard Life Ins. Co.,

560 U.S. 242 (2010) ........................................... 2, 16

Helvering v. Hallock,

309 U.S. 106 (1940) ............................................... 15

Lamb’s Chapel v. Center Moriches Union Free School

District, 508 U.S. 384 (1993)................................... 1

Leonard v. Texas,

580 U.S. 1178 (2017) ............................................. 19

Lorillard v. Pons,

434 U.S. 575 (1978) ....................................... 2, 5, 10

Lovell v. Alderete,

630 F.2d 428 (5th Cir. 1980) ................................... 8

Lynch v. Household Fin. Corp.,

405 U.S. 538 (1972) ........................................... 4, 17

Maynard v. C.I.A.,

986 F.2d 547 (1st Cir. 1993) ............................... 8, 9

McDonnell v. United States,

579 U.S. 550 (2016) ................................................. 1

Miller v. United States Department of State,

779 F.2d 1378 (8th Cir. 1985) ................................. 8

Newman v. Piggie Park Enterprises, Inc.,

390 U.S. 400 (1968) ............................................... 20

Ohel Rachel Synagogue v. United States,

482 F.3d 1058 (9th Cir. 2007) ............................... 14

Ohio Valley Environmental Coalition, Inc. v.

Wheeler,

387 F. Supp. 3d 654 (S.D. W. Va. 2019) ............... 16

Oil, Chemical & Atomic Workers International Union

v. Department of Energy,

288 F.3d 452 (D.C. Cir. 2002) ......................... 12, 13

Patterson v. McLean Credit Union,

491 U.S. 164 (1989) ............................................... 15

Perrin v. United States,

444 U.S. 37 (1979) ............................................. 2, 10

Phillips v. Washington Legal Foundation,

524 U.S. 156 (1998) ............................................... 19

Reinbold v. Evers,

187 F.3d 348 (4th Cir. 1999) ................................... 9

vii

S-1 & S-2 v. State Board of Education,

21 F.3d 49 (4th Cir. 1994) ................................... 8, 9

Taggart v. Lorenzen,

587 U.S. 554 (2019) ............................................... 10

Timbs v. Indiana,

586 U.S. 146 (2019) ............................................... 19

Trump v. Anderson,

601 U.S. 100 (2024) ................................................. 1

Tyler v. Hennepin County,

598 U.S. 631 (2023) ......................................... 18, 19

Union of Needletrades, Industrial & Textile

Employees v. INS,

336 F.3d 200 (2d Cir. 2003) ............................ 12, 13

United States v. $8,040.00 in United States

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

(W.D.N.Y. July 21, 2025) ...................................... 22

United States v. $13,275.21 in United States

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

(W.D. Tex. Jan. 31, 2007)...................................... 14

United States v. $32,820.56 in United States

Currency,

838 F.3d 930 (8th Cir. 2016) ........................... 21, 22

United States v. $70,670.00 in United States

Currency,

929 F.3d 1293 (11th Cir. 2019) ............................. 21

viii

United States v. Board of County Commissioners of

Hamilton County,

No. 1:02-cv-00107, 2005 WL 2033708 (S.D. Ohio

Aug. 23, 2005)........................................................ 16

United States v. Jones,

565 U.S. 400 (2012) ............................................... 18

United States v. Khan,

497 F.3d 204 (2d Cir. 2007) .................................. 14

United States v. Moore,

No. 23-10971 (11th Cir. Aug. 20, 2025) (per

curiam) (unpublished) ........................................... 14

Vermont Low Income Advocacy Council, Inc. v.

Usery, 546 F.2d 509 (2d Cir. 1976) ........... 5, 6, 7, 22

Wisconsin Central Ltd. v. United States,

585 U.S. 274 (2018) ............................................... 10

Statutes

5 U.S.C. § 552(a)(4)(E) ........................................... 2, 6

5 U.S.C. § 552a(g)(2)(B), (g)(3)(B) .............................. 6

15 U.S.C. § 26 ........................................................... 15

28 U.S.C. § 2412(d)(1)(A) ......................................... 21

28 U.S.C. § 2465(b)(1)(A) ..................................... 6, 21

Pub. L. No. 93-502, § 1(b)(2), 88 Stat. 1561, 1562 .... 6

Pub. L. No. 110-175, § 4, 121 Stat. 2524 ............. 3, 12

Other Authorities

153 Cong. Rec. H16788-92 ....................................... 13

153 Cong. Rec. S10986-90 ........................................ 13

153 Cong. Rec. S15701-04 .................................. 12, 13

1 William Blackstone, Commentaries on the Laws of

England (1765) ..................................................... 18

H.R. Rep. No. 106-192 .......................................... 4, 20

James Madison, Property, Nat’l Gazette (Mar. 29,

1792), reprinted in 14 The Papers of James

Madison 266, 267 (Robert A. Rutland et al. eds.,

1983) ...................................................................... 19

S. Rep. No. 110-59 .......................................... 3, 12, 13

TEOAF Directive No. 36 (Jan. 22, 2013)................. 22

INTEREST OF AMICUS 1

The American Center for Law and Justice

(“ACLJ”) is an organization dedicated to the defense

of constitutional liberties secured by law. ACLJ

attorneys have appeared often before this Court as

counsel for parties, e.g., Trump v. Anderson, 601 U.S.

100 (2024); Lamb’s Chapel v. Center Moriches Union

Free School District, 508 U.S. 384 (1993); or as amici,

e.g., Fischer v. United States, 603 U.S. 480 (2024);

Americans for Prosperity Foundation v. Bonta, 594

U.S. 595 (2021); McDonnell v. United States, 579 U.S.

550 (2016). The proper resolution of this case is a

matter of utmost concern to the ACLJ, its members,

and supporters of its sister organization, ACLJ Action,

Inc., because of their commitment to holding the

government accountable to protect the rule of law.

The ACLJ regularly engages the Freedom of

Information Act (“FOIA”) and litigates against

agencies overextending FOIA exemptions to evade

the statute’s text and spirit, including successfully

challenging an improperly asserted presidential

communications privilege. See Am. Ctr. for Law &

Justice v. Dep’t of State, 535 F. Supp. 3d 23, 28 (D.D.C.

2021). The ACLJ is likewise concerned here that fee

shifting statutes be interpreted appropriately and in

a way reflective of constitutional rights.

1 Pursuant to Supreme Court Rule 37.6, amicus states that no

counsel for any party authored this brief in whole or in part and

that no entity or person, aside from amicus, its members, and its

counsel, made any monetary contribution toward the

preparation or submission of this brief. In accordance with Rule

37.2, counsel of record for all parties received notice of amicus’s

intention to file this brief at least 10 days prior to the due date.

SUMMARY OF ARGUMENT

The Second Circuit’s decision rests on a critical

analytical error: applying case law interpreting the

term “prevailing party” to a statute with the distinct

language “substantially prevails”. The court below

applied Buckhannon Bd. & Care Home, Inc. v. W. Va.

Dep’t of Health & Human Res., 532 U.S. 598 (2001),

which construed the phrase “prevailing party” as a

term of art requiring a judgment, to the Civil Asset

Forfeiture Reform Act’s (“CAFRA”) distinct

“substantially prevails” language. The court below

thereby neglected to conduct the “careful and critical

examination” this Court has required before applying

one statute and language’s interpretive rules to

another. Gross v. FBL Fin. Servs., 557 U.S. 167, 174

(2009); Hardt v. Reliance Standard Life Ins. Co., 560

U.S. 242, 252, 253-54 (2010).

Had the panel conducted that examination, it

would have discovered that “substantially prevails” is

not a synonym for “prevailing party.” To the contrary,

it is a phrase Congress borrowed from the Freedom of

Information Act, 5 U.S.C. § 552(a)(4)(E), where it has

carried a uniform, settled meaning for twenty-six

years: a claimant “substantially prevails” when its

litigation is a substantial cause of the government’s

voluntary capitulation. From 1974 through April

2000, when CAFRA was enacted, every federal court

of appeals to address the question applied this

“catalyst” theory to FOIA’s “substantially prevailed”

language. Under Lorillard v. Pons, 434 U.S. 575

(1978), and Perrin v. United States, 444 U.S. 37 (1979),

Congress is presumed to have incorporated that

settled meaning when it borrowed the same phrase

for CAFRA. Buckhannon, decided a year after

CAFRA’s enactment, cannot retroactively rewrite

what Congress meant.

The Buckhannon decision, from its opening lines,

explicitly focused on the meaning of a particular

“term,” namely, “prevailing party.” 532 U.S. at 600.

This case involves the different term, “substantially

prevails,” used in CAFRA, FOIA, and other statutes.

When courts misread Buckhannon’s construction of

“prevailing party” to eliminate the catalyst standard

from “substantially prevails” in FOIA, Congress acted

to correct those court rulings by clarifying the

statutory term. The OPEN Government Act of 2007,

Pub. L. No. 110-175, § 4, 121 Stat. 2524, amended

FOIA to make explicit that a complainant “has

substantially prevailed” when the agency voluntarily

changes its position in response to litigation.

Congress described that amendment as a clarification,

not a change, of existing law. S. Rep. No. 110-59, at 6

(2007) (“This section clarifies that Buckhannon’s

holding does not and should not apply to FOIA

litigation.”). A clarification confirms what the law

always was.

The panel below turned this history on its head.

In footnote 13, the panel held that the 2007 FOIA

amendment hurt petitioner Ross here, reasoning that

Congress “knows how to authorize attorney fee

awards in the absence of a favorable judicial ruling,”

and chose not to do so for CAFRA. Pet. App. 30a. n.13.

But this inference gets the interpretive question

backwards. The 2007 amendment does not show that

catalyst fees require express authorization; it shows

that “substantially prevails” already carried that

meaning before some courts (mistakenly) read

Buckhannon as disrupting it. In 2007, there was no

judicial mischief for Congress to amend in CAFRA

because Buckhannon had not yet been widely applied

to CAFRA; the amendment was a targeted fix for a

misapplication of Buckhannon to FOIA. Congress’s

silence on CAFRA reflects the absence of a CAFRA

problem to correct in 2007, not acquiescence in

extending Buckhannon’s judgment requirement to a

statute with different terminology enacted before

Buckhannon was decided.

This question is exceptionally important.

“[R]ights in property are basic civil rights[.]” See

Lynch v. Household Fin. Corp., 405 U.S. 538, 552

(1972). Fee recovery under CAFRA is a key

mechanism that makes that right enforceable,

because the seizure itself strips owners of the means

to hire counsel. But the decision below lets the

government defeat CAFRA’s mandatory fee

guarantee, through a procedural choice it alone

controls, rendering illusory CAFRA’s promise to make

innocent property owners “whole after wrongful

government seizures.” H.R. Rep. No. 106-192, at 11

(1999).

ARGUMENT

THE TERM “SUBSTANTIALLY PREVAILS” IS

DISTINCT FROM THE TERM “PREVAILING

PARTY” AND HAS NEVER REQUIRED A

JUDGMENT AS A CONDITION FOR

RECOVERING ATTORNEY FEES.

The Second Circuit held that a claimant does not

“substantially prevail” under CAFRA unless he

obtains relief that is “judicially sanctioned” and

“enduring.” Pet. App. 32a n. 14, 36a. It reached that

conclusion by reasoning that because both “prevailing

party” and “substantially prevails” contain the verb

“prevail,” this Court’s construction of the former

phrase

Buckhannon

“usefully

informs”

construction of the latter phrase. Pet. App. 28a-29a

n.12. That reasoning skipped the antecedent question

of what the phrase that Congress chose meant when

Congress chose it.

The answer is not obscure. “Substantially

prevailed” was not a phrase Congress invented for

CAFRA. It was a term Congress had used in federal

fee-shifting statutes since 1974, and by April 2000 it

had received twenty-six years of uniform construction

in the federal courts of appeals. Under that settled

construction, a claimant substantially prevailed when

his litigation was reasonably necessary and had a

substantial causative effect on obtaining the relief he

sought, whether or not a court ever entered judgment

in his favor. Vermont Low Income Advoc. Council, Inc.

v. Usery, 546 F.2d 509, 513 (2d Cir. 1976); see also

Church of Scientology v. United States Postal Serv.,

700 F.2d 486, 491-92 (9th Cir. 1983). Congress is

presumed to have known that construction and to

have adopted it, because “Congress is presumed to be

aware of an administrative or judicial interpretation

of a statute and to adopt that interpretation.”

Lorillard, 434 U.S. at 580-81.

“Substantially Prevails” had a

settled catalyst-inclusive meaning

when Congress enacted CAFRA in

April 2000, and Congress is

presumed to have incorporated that

meaning.

The Freedom of Information Act as enacted in

1966 contained no fee-shifting provision. Congress

added one in the 1974 Amendments, Pub. L. No. 93502, § 1(b)(2), 88 Stat. 1561, 1562, providing that a

court “may assess against the United States

reasonable attorney fees and other litigation costs

reasonably incurred in any case under this section in

which the complainant has substantially prevailed.”

5 U.S.C. § 552(a)(4)(E).

The phrase was a deliberate legislative choice

among competing formulations. As Judge Friendly

recounted two years later, the House Committee on

Government Operations had originally proposed in

1972 to award fees only “if the court issues an

injunction or order”; the House-passed bill would have

awarded fees where the United States “as litigant,

has not prevailed[]”; and the Senate bill introduced

the “substantially prevailed” language that the

Conference Committee ultimately adopted. Vermont

Low Income Advoc. Council, Inc., 546 F.2d at 512-13.

Congress thus considered and rejected a formulation

expressly conditioning fees on a court order, and

settled instead on “substantially prevailed.”

Congress used the identical phrase in the Privacy

Act of 1974, 5 U.S.C. § 552a(g)(2)(B), (g)(3)(B), enacted

weeks later, and courts have consistently construed

the two provisions together. Twenty-six years after

that, Congress used the identical phrase again in

CAFRA. 28 U.S.C. § 2465(b)(1). The presumption is

that Congress adopted the phrase’s settled meaning.

See Bragdon v. Abbott, 524 U.S. 624, 632 (1998)

(“Congress’ repetition of a well-established term

carries the implication that Congress intended the

term to be construed in accordance with preexisting . . . interpretations.”). That presumption

applies with particular force here, because Congress

did not merely borrow a similar phrase. It borrowed

the identical phrase, for the identical purpose

(shifting fees against the United States), in the

identical posture, where the government holds what

the claimant seeks and can turn it over at any time.

From the first decisions construing the 1974

amendments through CAFRA’s enactment in April

2000, the courts of appeals were unanimous. A

claimant substantially prevailed if his lawsuit caused

the government to give him what he sought. No court

order, consent decree, or judgment was necessary.

The Second Circuit was the first to so hold. In

Vermont Low Income Advocacy Council, Judge

Friendly held that “under the bill as enacted a

judgment is not an absolute prerequisite to such an

award,” and explained why: “Congress clearly did not

mean that where an FOIA suit had gone to trial and

developments made it apparent that the judge was

about to rule for the plaintiff, the Government could

abort any award of attorney fees by an eleventh hour

tender of the information requested.” 546 F.2d at 513.

The governing test was whether “the prosecution of

the action could reasonably have been regarded as

necessary and that the action had substantial

causative effect on the delivery of the information.” Id.

The D.C. Circuit reached the same conclusion the

following year in Cuneo v. Rumsfeld, 553 F.2d 1360,

1364-66 (D.C. Cir. 1977), and again in Foster v.

Boorstin, 561 F.2d 340, 342 (D.C. Cir. 1977), holding

that “a court order compelling disclosure . . . is not . . .

a prerequisite to an award of attorneys’ fees under

FOIA.” It reaffirmed the rule in Chesapeake Bay

Foundation v. Department of Agriculture, 11 F.3d 211

(D.C. Cir. 1993); see Oil, Chem. & Atomic Workers Int’l

Union v. DOE, 288 F.3d 452, 454 (D.C. Cir. 2002)

[hereinafter “OCAW”] (quoting Chesapeake Bay

Found., 11 F.3d at 216) (“So long as the ‘litigation

substantially caused the requested records to be

released,’ the FOIA plaintiff could recover attorney’s

fees even though the district court had not rendered a

judgment in the plaintiff’s favor.”).

Every other circuit to address the question agreed.

See Maynard v. C.I.A., 986 F.2d 547, 568 (1st Cir.

1993); Blue v. Bureau of Prisons, 570 F.2d 529, 533

(5th Cir. 1978); Lovell v. Alderete, 630 F.2d 428, 432

(5th Cir. 1980); Detroit Free Press v. Department of

Justice, 73 F.3d 93, 98 (6th Cir. 1996); Miller v. United

States Department of State, 779 F.2d 1378, 1389 (8th

Cir. 1985); Church of Scientology, 700 F.2d at 492;

Aviation Data Serv. v. FAA, 687 F.2d 1319, 1321 (10th

Cir. 1982); Gowan v. United States Dep’t of the Air

Force, 148 F.3d 1182, 1195 (10th Cir. 1998). Not one

court of appeals held otherwise. Not one suggested

that “substantially prevailed” required a judgment.

This rule, under which a plaintiff can recover a fee

award if it “achieves the desired result because the

lawsuit brought about a voluntary change in the

defendant’s conduct[,]” was known as the “catalyst

theory.” Buckhannon, 532 U.S. at 601. The rule was

so well settled that before this Court decided

Buckhannon in 2001, it had been the uniform law of

every circuit to consider it for a quarter century.

Such uniformity did not exist with regard to the

phrase “prevailing party.” The Fourth Circuit, sitting

en banc in S-1 & S-2 v. State Board of Education, 21

F.3d 49, 51 (4th Cir. 1994), held that “[a] person may

not be a ‘prevailing party’ . . . except by virtue of

having obtained an enforceable judgment, consent

decree, or settlement giving some of the legal relief

sought . . . .”

But the Fourth Circuit did embrace the uniform

rule as to the phrase “substantially prevailing.” Five

years after S-1 & S-2, the same court applied the

catalyst framework without hesitation to the phrase

“substantially prevailed.” In Reinbold v. Evers, 187

F.3d 348 (4th Cir. 1999), a Privacy Act fee case, the

court held:

To prove that he has substantially

prevailed, Reinbold must establish that

his Privacy Act claim was reasonably

necessary and substantially caused the

requested records to be released . . . . In

other words, to determine whether

Reinbold substantially prevailed, in

the absence of a final judgment in his

favor, is a question of causation[.]

Id. at 363 (citing Gowan, 148 F.3d at 1195;

Chesapeake Bay Found., 11 F.3d at 216; Maynard,

986 F.2d at 568). Reinbold did not distinguish S-1 &

S-2, or even cite it, because no distinction was needed.

The two phrases were understood to occupy different

ground, and a court that had refused to award fees

absent a judgment under “prevailing party” applied a

causation test (expressly contemplating recovery “in

the absence of a final judgment”) under “substantially

prevailed.” Id.

When Congress uses a term that has already

received a settled judicial construction, it is presumed

to adopt that construction, whether the term appears

in a reenactment of the same statute or is carried over

into a new one. See Bragdon, 524 U.S. at 632

(“Congress’ repetition of a well-established term

carries the implication that Congress intended the

term to be construed in accordance with preexisting . . . interpretations.”) “Congress is presumed

to be aware of an administrative or judicial

interpretation of a statute and to adopt that

interpretation when it re-enacts a statute without

change,” and “where, as here, Congress adopts a new

law incorporating sections of a prior law, Congress

normally can be presumed to have had knowledge of

the interpretation given to the incorporated law, at

least insofar as it affects the new statute.” Lorillard,

434 U.S. at 580-81. This Court has applied the same

principle as recently as 2022: “Where Congress

employs a term of art ‘“‘obviously transplanted from

another legal source,’” it ‘“brings the old soil with it.”’”

George v. McDonough, 596 U.S. 740, 746 (2022)

(quoting Taggart v. Lorenzen, 587 U.S. 554, 560

(2019)).

The timing shows that Congress could not have

understood the phrase to require a judgment.

Congress enacted CAFRA on April 25, 2000. This

Court decided Buckhannon on May 29, 2001, thirteen

months later. Under the “fundamental canon of

statutory construction . . . that, unless otherwise

defined, words will be interpreted as taking their

ordinary, contemporary, common meaning[]” at the

time of enactment, the meaning that governs is the

meaning “substantially prevails” carried in April

2000. Perrin v. United States, 444 U.S. at 42; accord

Wisconsin Central Ltd. v. United States, 585 U.S. 274,

277 (2018). In April 2000, that meaning was uniform,

settled, and catalyst-inclusive.

The courts that have extended Buckhannon to

CAFRA, including the panel below, have thus made a

chronological error. They have read a 2001 decision

construing a different phrase backward into a statute

Congress wrote in 2000, displacing the meaning the

phrase actually had when Congress selected it.

Whatever import Buckhannon has for the term

“prevailing party,” it could not alter what Congress

meant a year earlier.

The Second Circuit’s inference from

the 2007 FOIA amendment inverts

the correct statutory analysis.

The panel below did confront the FOIA connection,

in a single footnote, and rejected it. Pet. App. 30a n.13.

Its reasoning was that Congress’s 2007 amendment to

FOIA, which made explicit that a complainant

“substantially prevail[s]” through “a voluntary or

unilateral change in position by the agency[,]” applies

expressly “[f]or purposes of” FOIA alone. From that,

the panel concluded that

[w]here Congress has thus shown that

it knows how to authorize attorney fee

awards in the absence of a favorable

judicial ruling, based simply on a

catalyst theory, and where it has

expressly cabined that authority to

FOIA proceedings, a court cannot itself

extend that catalyst theory to other

statutes with a “substantially prevails”

requirement.

Pet. App. 30a n.13. That inference depends entirely

on a premise the panel never examined: that the 2007

amendment created something new. The legislative

history refutes that premise.

The OPEN Government Act of 2007, Pub. L. No.

110-175, § 4, 121 Stat. 2524, 2525, was enacted to

correct a judicial misreading. The Senate Report is

explicit: the provision “responds to the Supreme

Court’s ruling in Buckhannon[,]” and “clarifies that

Buckhannon’s holding does not and should not apply

to FOIA litigation.” S. Rep. No. 110-59, at 6 (2007).

The sponsor said the same on the floor: “The bill

clarifies that Buckhannon does not apply to FOIA

cases.” 153 Cong. Rec. S15701-04 (daily ed. Dec. 14,

2007) (statement of Sen. Leahy).

Congress used the word “clarifies” because the

courts of appeals had, after Buckhannon, begun

reading FOIA’s “substantially prevailed” standard to

require a judgment, a reading that departed from a

quarter century of settled construction. See OCAW,

288 F.3d at 456-57 (D.C. Cir. 2002); Union of

Needletrades, Indus. & Textile Emps. v. INS, 336 F.3d

200, 206-08 (2d Cir. 2003). Congress corrected the

judicial error and thereby preserved the original

statutory rule. The panel read that clarification as

though it were an alteration. But an amendment that

preserves meaning cannot simultaneously be

evidence that the meaning never existed. If anything,

the 2007 amendment is confirmation of what

“substantially prevailed” meant before Buckhannon,

and therefore of what it meant in April 2000, when

Congress wrote it into CAFRA.

The panel’s negative inference also assumes that

Congress in 2007 surveyed the field of “substantially

prevails” statutes, chose to fix FOIA, and deliberately

left CAFRA alone. The legislative record shows

nothing of the kind. The 2007 amendment was a

targeted response to a specific, documented problem

in FOIA litigation. The Senate Report and floor

statements address only FOIA. S. Rep. No. 110-59, at

1, 6 (2007); 153 Cong. Rec. S15701-04 (daily ed. Dec.

14, 2007) (statement of Sen. Leahy); 153 Cong. Rec.

S10986-90 (daily ed. Aug. 3, 2007) (statements of Sens.

Leahy, Kyl, and Cornyn); 153 Cong. Rec. H16788-92

(daily ed. Dec. 18, 2007) (House debate). The

Department of Justice submission reprinted in the

record identifies the problem by name, citing OCAW

and Union of Needletrades, the two FOIA decisions

that had extended Buckhannon. S. Rep. No. 110-59,

at 20 (2007) (Department of Justice Views Letter

(Mar. 26, 2007), reprinted as an attachment to the

Additional Views of Sen. Kyl) (“[A] number of recent

court of appeals decisions . . . have applied

Buckhannon to reject the catalyst theory as a basis for

FOIA attorneys’ fee awards. See OCAW, 288 F.3d 452

(D.C. Cir. 2002); Union of Needletrades v. INS, 336

F.3d 200 (2d Cir. 2003).”). CAFRA, its provisions, or

civil forfeiture are not mentioned anywhere in the

Senate Report or the floor debates in either chamber.

That is unsurprising, because in 2007 no relevant

body of CAFRA attorney fees case law existed for

Congress to correct. By the time the OPEN

Government Act took effect on December 31, 2007, no

court of appeals had squarely 2 held that Buckhannon

governs CAFRA’s attorney-fee “substantially prevails”

standard, and only a single, unpublished district

court order had applied Buckhannon’s framework to

that provision at all. United States v. $13,275.21 in

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

WL 316455 (W.D. Tex. Jan. 31, 2007). By contrast,

two courts of appeals had extended Buckhannon to

FOIA in published opinions five and four years earlier,

generating precisely the controversy Congress

addressed.

Congress’s silence about CAFRA in 2007 therefore

reflects the absence of a CAFRA controversy, not a

judgment about CAFRA’s meaning. This Court has

cautioned against inferring approval of a judicial

interpretation from Congress’s failure to disturb it,

because silence is equally consistent with simple

inattention or inaction. “It is impossible to assert with

any degree of assurance that congressional failure to

act represents affirmative congressional approval of

the Court’s statutory interpretation.” Alexander v.

2 Two courts of appeals had touched on the question by 2007, but neither

squarely held that Buckhannon governs CAFRA’s fee provision. The

Ninth Circuit applied Buckhannon's framework to § 2465(b)(1)’s

“substantially prevails” standard, but as to the interest subsection, not the

fee subsection at issue here. See Ohel Rachel Synagogue v. United States,

482 F.3d 1058, 1063-64 (9th Cir. 2007). And the Second Circuit's

discussion of the fee provision was dictum: it stated it was merely

“inclined to agree” with the Ninth Circuit’s approach, without deciding the

question. See United States v. Khan, 497 F.3d 204, 208-09 & n.7 (2d Cir.

2007).

Sandoval, 532 U.S. 275, 292 (2001) (citation omitted).

That is doubly true where, as here, Congress was not

presented with the interpretation at all.

Carried to its conclusion, the panel’s reasoning

would mean that “substantially prevails” now

requires a judgment in every federal statute except

FOIA, not because Congress ever said so, but because

Congress once corrected a court that said so about

FOIA. Under that rule, each act of legislative

clarification implicitly muddies every statute with

identical or similar language which Congress does not

simultaneously clarify. This would place the burden

on Congress comprehensively to re-legislate the

meaning of settled terms every time a court departs

from them with regard to a particular statute. This

Court has rejected that approach. “Congressional

inaction lacks persuasive significance because several

equally tenable inferences may be drawn from such

inaction.” Patterson v. McLean Credit Union, 491 U.S.

164, 175 n.1 (1989) (citation and internal quotation

marks omitted), superseded by statute on other

grounds as recognized in CBOCS West, Inc. v.

Humphries, 553 U.S. 442 (2008); see Helvering v.

Hallock, 309 U.S. 106, 119-21 (1940).

The panel’s premise, that a catalyst-inclusive

reading of “substantially prevails” requires express

congressional authorization, is also refuted by the

decisions of courts that have reached that reading on

their own, in statutes Congress has never amended.

Most recently, a federal district court held that this

Court’s decisions in Hardt and Lackey foreclosed

applying Buckhannon’s “prevailing party” standard

to the “substantially prevails” language of § 16 of the

Clayton Act, 15 U.S.C. § 26, and that no final

judgment on the merits was required. FTC v. Kroger

Co., No. 3:24-cv-00347, 2026 WL 560125, at *8-9, *11

(D. Or. Feb. 27, 2026). Years earlier, and without the

benefit of Hardt, a district court reached the same

conclusion under the Clean Water Act, reasoning

from the statute’s text that “to ‘substantially prevail’

a party would need to obtain a somewhat lesser

degree of relief than if they were to ‘prevail[,]’” and

that “while the Buckhannon reasoning may apply to

the latter term, it does not apply to the former;

leaving the catalyst theory intact for substantially

prevailing parties.” United States v. Board of County

Commissioners of Hamilton County, No. 1:02-cv00107, 2005 WL 2033708, at *12, *14-15 (S.D. Ohio

Aug. 23, 2005); accord Ohio Valley Environmental

Coalition, Inc. v. Wheeler, 387 F. Supp. 3d 654, 656-58

(S.D.W. Va. 2019). Congress has never amended the

Clayton Act or the Clean Water Act to authorize

catalyst recovery. Those courts nonetheless read

“substantially prevails” to mean what it says. The

panel below reached the opposite result on the theory

that such a reading is unavailable absent an express

amendment, a theory these decisions disprove.

Hardt

Reliance

confirms the panel’s

method was wrong.

Standard

analytical

The petition explains at length why Hardt v.

Reliance Standard Life Insurance Co., 560 U.S. 242

(2010), forecloses grafting the “prevailing party” term

of art onto a statute from which it is “conspicuously

absent[,]” id. at 252. Amicus does not repeat that

argument. One observation bears emphasis.

Hardt and Gross v. FBL Financial Services, Inc.,

557 U.S. 167, 174 (2009), read together, establish a

method: before applying one statute’s interpretive

gloss to another, a court must undertake a “careful

and critical examination[]” of the statute before it.

Gross, 557 U.S. at 174. The panel below did not

undertake that examination. It observed that both

phrases contain the word “prevail” and proceeded

from there. Pet. App. 29a n.12. It did not ask what

“substantially prevails” meant when Congress

adopted it, did not consult the decisions construing it,

and did not cite Hardt at all in an opinion deciding a

question Hardt directly addresses. Had the panel

undertaken that examination, it would have found

what Parts A and B show: a phrase with a settled,

catalyst-inclusive meaning at the time of CAFRA’s

enactment, and a 2007 amendment that confirms

rather than displaces that meaning.

II.

THE QUESTION PRESENTED IS IMPORTANT:

DECISION BELOW HANDS THE

THE

GOVERNMENT A TOOL TO NULLIFY

CAFRA’S ATTORNEY FEE PROVISION AT

WILL.

Protection of property against

arbitrary government seizure is a

fundamental civil right.

Property rights are civil rights. This Court has

rejected as “a false one” any “dichotomy between

personal liberties and property rights.” Lynch v.

Household Finance Corp., 405 U.S. 538, 552 (1972).

“The right to enjoy property without unlawful

deprivation, no less than the right to speak or the

right to travel, is in truth a ‘personal’ right,” and “a

fundamental interdependence exists between the

personal right to liberty and the personal right in

property. Neither could have meaning without the

other.” Id. “That rights in property are basic civil

rights has long been recognized.” Id.

That recognition is older than the Republic.

Blackstone wrote that “[s]o great moreover is the

regard of the law for private property, that it will not

authorize the least violation of it; no, not even for the

general good of the whole community.” 1 William

Blackstone, Commentaries on the Laws of England

*135 (1765). Lord Camden held in 1765 that “[b]y the

laws of England, every invasion of private property,

be it ever so minute, is a trespass,” Entick v.

Carrington, 95 Eng. Rep. 807, 817 (C.P. 1765), a

decision this Court has “described as a ‘monument of

English freedom’ undoubtedly familiar to every

American statesman at the time the Constitution was

adopted, and considered to be the true and ultimate

expression of constitutional law with regard to search

and seizure.” United States v. Jones, 565 U.S. 400, 405

(2012) (quoting Brower v. County of Inyo, 489 U.S. 593,

596 (1989)); see also Boyd v. United States, 116 U.S.

616, 626-27 (1886).

And Madison warned that “where an excess of

power prevails, property of no sort is duly respected,”

with the consequence that “no man is safe in his

opinions, his person, his faculties, or his possessions.”

James Madison, Property, Nat’l Gazette (Mar. 29,

1792), reprinted in 14 The Papers of James Madison

266, 267 (Robert A. Rutland et al. eds., 1983).

In Tyler v. Hennepin County, 598 U.S. 631 (2023),

a unanimous Court held that a county could not “use

the toehold of the tax debt to confiscate more property

than was due,” id. at 639, and traced that limitation

to Magna Carta, to Blackstone, and to founding-era

practice. Id. at 639-42. Critically for present purposes,

Tyler held that a government may not evade a

constitutional protection by manipulating the legal

categories through which property is defined: a State

cannot “sidestep the Takings Clause by disavowing

traditional property interests,” id. at 638 (quoting

Phillips v. Washington Legal Foundation, 524 U.S.

156, 167 (1998)), because the Clause “would be a dead

letter if a state could simply exclude from its

definition of property any interest that the state

wished to take.” Hall v. Meisner, 51 F.4th 185, 190

(6th Cir. 2022), quoted in Tyler, 598 U.S. at 638.

And in Timbs v. Indiana, 586 U.S. 146 (2019), the

Court held the Excessive Fines Clause applicable to

the States and enforceable against civil in rem

forfeitures, observing that “[e]xorbitant tolls

undermine other constitutional liberties,” that fines

have historically been “employed in a measure out of

accord with the penal goals of retribution and

deterrence,” and that this risk is acute because “fines

are a source of revenue” while other punishments

“cost a State money.” Id. at 151-52 (citation and

internal quotation marks omitted).

Members of this Court have applied these

concerns to modern forfeiture specifically. See Culley

v. Marshall, 601 U.S. 377, 416 (2024) (Gorsuch, J.,

joined by Thomas, J., concurring) (asking “[w]hy does

a Nation so jealous of its liberties tolerate expansive

new civil forfeiture practices that have ‘led to

egregious and well-chronicled abuses’”) (quoting

Leonard v. Texas, 580 U.S. 1178, 1180 (2017));

Leonard, 580 U.S. at 1178 (Thomas, J., statement

respecting the denial of certiorari) (questioning

“whether modern civil-forfeiture statutes can be

squared with the Due Process Clause and our

Nation’s history”).

Congress legislated against this background.

CAFRA was enacted to “make federal civil forfeiture

procedures fair to property owners and to give owners

innocent of any wrongdoing the means to recover

their property and make themselves whole after

wrongful government seizures.” H.R. Rep. No. 106192, at 11 (1999).

Fee recovery is what makes that

protection real; the decision below

allows the government to nullify it

at will.

A right to recover wrongfully seized property is

worth only as much as the owner’s practical ability to

assert it. This Court has long recognized that without

fee-shifting, “few aggrieved parties would be in a

position to advance the public interest by invoking the

injunctive powers of the federal courts.” Newman v.

Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968)

(per curiam); see City of Riverside v. Rivera, 477 U.S.

561, 576-78 (1986) (plurality opinion).

Forfeiture presents that problem in its most acute

form, because the seizure itself takes the assets the

owner would use to hire counsel. Congress understood

this. The House Report records that forfeitures are

rarely challenged for reasons that have “nothing to do

with the owner’s guilt, and everything to do with the

arduous path one must journey against a

presumption of guilt, often without the benefit of

counsel, and perhaps without any money left after the

seizure with which to fight the battle.” H.R. Rep. No.

106-192, at 14 (1999).

The remedy Congress chose reflects how essential

it considered this problem. CAFRA does not provide

that a court “may” award fees to a claimant who

substantially prevails. It provides that “the United

States shall be liable.” 28 U.S.C. § 2465(b)(1)(A)

(emphasis added). Nor did Congress give the

government the escape hatch it provided under the

Equal Access to Justice Act, where fees may be denied

if “the position of the United States was substantially

justified.” 28 U.S.C. § 2412(d)(1)(A). Under CAFRA, a

claimant who substantially prevails recovers without

conditions.

The decision below subjugates that guarantee to

the government’s control. Under the rule the panel

adopted, whether a claimant recovers fees turns not

on what he achieved but on how the government chose

to end the case. A claimant who obtains the return of

his property following a dismissal with prejudice may

recover. See United States v. Moore, No. 23-10971

(11th Cir. Aug. 20, 2025) (per curiam) (unpublished).

A claimant who obtains the return of his property

following a dismissal without prejudice may not. See

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

838 F.3d 930, 936-37 (8th Cir. 2016); Pet. App. 34a36a. The claimant’s outcome is identical. The

difference is a procedural election the government

makes unilaterally, and which it may make at the

moment it perceives it is about to lose.

That is not a theoretical concern. In Buckhannon,

this Court described the risk that defendants would

strategically moot litigation to avoid fees as “entirely

speculative and unsupported by any empirical

evidence.” 532 U.S. at 608. Whatever the force of that

observation in 2001 as to the statutes referenced in

Buckhannon, the cases have supplied a contrary

collection of evidence regarding CAFRA. See, e.g.,

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

929 F.3d 1293 (11th Cir. 2019); $32,820.56, 838 F.3d

930; United States v. $8,040.00 in United States

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

(W.D.N.Y. July 21, 2025), appeal docketed, No. 252169 (2d Cir. Sept. 8, 2025); Pet. App. 1a-51a. The

government itself has reduced the practice to

guidance: the Treasury Executive Office for Asset

Forfeiture instructs that a claimant substantially

prevails through “a dismissal with prejudice,

summary judgment, or judgment on the merits,”

while “declination, settlement, or dismissal without

prejudice” are “generally not considered to be

substantially prevailing.” TEOAF Directive No. 36

(Jan. 22, 2013). Judge Friendly identified this precise

maneuver in 1976 and said Congress “clearly did not

mean” to permit it. Vermont Low Income Advocacy

Council, 546 F.2d at 513. A mandatory fee provision

that the opposing party may nullify at its election

does not make anyone whole.

***

When Congress wrote “substantially prevails”

into CAFRA in April 2000, the phrase had carried a

settled meaning in the federal courts for twenty-six

years: a claimant substantially prevails when his

litigation causes the government to give back what it

took, whether or not a judgment is ever entered.

Congress is presumed to have adopted that meaning,

and Buckhannon, decided thirteen months later,

construing a different phrase, did not change it.

Congress’s 2007 clarification of FOIA confirms that

understanding rather than displacing it, and

Congress’s silence as to CAFRA reflects only that the

misreading had not yet reached CAFRA when

Congress acted.

CONCLUSION

This Court should interpret “substantially

prevails” in CAFRA in light of the meaning the

identical phrase has always carried under FOIA and

grant the petition for a writ of certiorari.

Respectfully submitted,