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 THE MANHATTAN INSTITUTE AND

KANSAS JUSTICE INSTITUTE AS

AMICI CURIAE SUPPORTING PETITIONER

___________

ILYA SHAPIRO

TREVOR BURRUS

MANHATTAN INSTITUTE

52 Vanderbilt Ave.

New York, NY 10017

(212) 599-7000

ishapiro@manhattan.

institute

ALAN M. HURST

Counsel of Record

EMILY HAWS WRIGHT

BROOKE PORTER COLES

KIRTON | MCCONKIE

36 South State Street

Suite 1900

Salt Lake City, UT 84111

(801) 328-3600

ahurst@kmclaw.com

Counsel for Amici Curiae

i

QUESTION PRESENTED

Whether a civil-forfeiture claimant “substantially prevails” under the Civil Asset Forfeiture Reform Act

when the Government dismisses the forfeiture action

without prejudice and returns the claimed property.

ii

TABLE OF CONTENTS

QUESTION PRESENTED………………………...…….i

TABLE OF AUTHORITIES……………………………iii

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

INTRODUCTION AND SUMMARY OF ARGUMENT

...................................................................................... 2

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

I.

IN ORDINARY LANGUAGE, “SUBSTANTIALLY”

IMPLIES “ALMOST, BUT NOT QUITE” WHEN

MODIFYING PREDICTABLE TYPES OF WORDS . 4

A. Corpus Linguistics Helps Here .............. 4

B. Corpus Linguistics Shows Two Uses of

“Substantially”: An Augmenting Sense

and a Diminishing Sense ....................... 5

II.

FEDERAL STATUTES USE “SUBSTANTIALLY” TO

IMPLY “ALMOST, BUT NOT QUITE” WHEN

MODIFYING THE SAME TYPES OF WORDS ...... 9

III.

IN CAFRA, “SUBSTANTIALLY PREVAILS”

IMPLIES “ALMOST PREVAILS, BUT NOT QUITE”

.................................................................... 11

CONCLUSION .......................................................... 16

iii

TABLE OF AUTHORITIES

Cases

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

Health & Hum. Res.,

532 U.S. 598 (2001) ............................................. 15

Farrar v. Hobby,

506 U.S. 103 (1992) .............................................. 13

Lefemine v. Wideman,

568 U.S. 1 (2012) .................................................. 13

Statutes and Rules

11 U.S.C. § 1101(2) .................................................... 11

15 U.S.C. § 1692o ....................................................... 11

16 U.S.C. § 2634......................................................... 11

17 U.S.C. § 512(c)(3)(B) ....................................... 10–11

21 U.S.C. § 333(f)(1)(B)(ii) ........................................ 11

21 U.S.C. § 355(j)(5)(B)(iv)(II)(bb) ............................. 10

21 U.S.C. § 360c(i)(1) ................................................. 11

28 U.S.C. § 2465(b)(1) ............................................ 2, 14

29 U.S.C. § 1303(f)(3) ................................................. 13

29 U.S.C. § 1370(e)(1) ................................................ 14

iv

33 U.S.C. § 1365(d) .................................................... 14

33 U.S.C. § 1369(b)(3) ................................................ 14

33 U.S.C. § 2706(g) .................................................... 14

34 U.S.C. § 20927 ....................................................... 11

42 U.S.C. § 405(g) ...................................................... 10

42 U.S.C. § 609(a)(8)(A)(i)(III) ............................. 10–11

42 U.S.C. § 1988......................................................... 13

42 U.S.C. § 2000bb-1(a) ............................................... 9

42 U.S.C. § 6972(e) .................................................... 14

42 U.S.C. § 7191(b) ...................................................... 9

Pub. L. No. 106-185, 114 Stat. 202 ............................. 2

Other Authorities

Antonin Scalia, Common-Law Courts in a Civil-Law

System: The Role of the United States Federal Courts

in Interpreting the Constitution and Laws, in A Matter

of Interpretation: Federal Courts and the Law 3 (Amy

Gutmann ed., 1997) ..................................................... 4

Corpus of Contemporary American English,

https://www.english-corpora.org/coca ......................... 6

v

Prevail, Am. Heritage Dictionary of the English

Language, https://tinyurl.com/mutvcpv3 ............ 11–12

Prevail,

Merriam-Webster.com

Dictionary,

https://tinyurl.com/y2swhxr6 ................................... 12

Stephen C. Mouritsen, The Dictionary Is Not a

Fortress: Definitional Fallacies and a Corpus-Based

Approach to Plain Meaning, 2010 BYU L. Rev. 1915

(2010) .................................................................... 4, 5, 7

Substantial,

Merriam-Webster.com

Dictionary,

https://tinyurl.com/3k8cmmjc ...................................... 6

Substantial,

Merriam-Webster.com

Dictionary,

https://tinyurl.com/43xsd2zp ..................................... 14

Substantially, Oxford Advanced Learner’s Dictionary,

https://tinyurl.com/ytmbwf5p ................................ 6, 14

INTERESTS OF AMICI CURIAE 1

The Manhattan Institute (MI) is a nonpartisan public policy research foundation whose mission is to

develop and disseminate new ideas that foster greater

economic choice and individual responsibility. To that

end, MI has sponsored scholarship and filed briefs supporting the security of Americans’ property rights and

access to judicial process to vindicate those rights.

The Kansas Justice Institute (KJI) is a nonprofit, pro

bono, public interest litigation firm committed to upholding constitutional freedoms, protecting individual

liberty, and defending against government overreach

and abuse. KJI directly litigates, including forfeiture

cases, files amicus briefs, and comments on matters of

public concern. KJI is a Kansas limited liability company whose sole member is Kansas Policy Institute—

a think tank—founded in 1996. In particular, KJI believes the government’s ability and propensity to seize

and forfeit a person’s property without a criminal conviction poses a serious risk to our constitutional rights.

This case interests amici because they seek to protect private property from confiscation and other

government abuses. If the Second Circuit’s decision is

allowed to stand, the government could seize private

property, force its owner to litigate for its return, and

then avoid paying attorney’s fees simply by returning

the property before a court orders it to do so.

1 Supreme Court Rule 37 statement: All parties were timely

notified of the filing of this brief. No part of this brief was authored by any party’s counsel; no person or entity other than

amici funded its preparation or submission.

2

INTRODUCTION AND

SUMMARY OF ARGUMENT

Reacting to the many abuses of the civil asset forfeiture system—innocent citizens losing their

property, others losing property far in excess of what

their crimes justified—Congress enacted the Civil Asset Forfeiture Reform Act of 2000, commonly known as

CAFRA. Pub. L. No. 106-185, 114 Stat. 202. Chief

among the injustices that CAFRA aimed to correct was

the difficulty of finding legal representation to challenge civil forfeitures, especially in cases where the

seized property’s value was less than the expected cost

of recovering it. Without counsel, the property’s owners may simply give up, letting the federal government

get away with effectively robbing its own citizens.

CAFRA’s corrective is the provision at issue here:

the promise of a fee award to any private claimant who

“substantially prevails” over the government in a civil

forfeiture case. 28 U.S.C. § 2465(b)(1). And the meaning of that two-word phrase is the primary textual

question raised by Ross’s petition—specifically, how

does the word “substantially” modify the generally

well-established meaning of the word “prevails”?

According to the Second Circuit, “substantially prevails” means essentially the same thing as “prevailing

party” because “both the phrases . . . require a litigant

to ‘prevail’ to some degree.” Pet. App. 29a. But this interpretation misunderstands the use of the word

“substantially,” both in common usage and elsewhere

in the United States Code.

In common usage, ascertained through dictionaries

and a search of the Corpus of Contemporary American

English (COCA), “substantially” has two primary uses:

3

an augmenting use, in which it heightens or strengthens the meaning of the word it modifies, and a

diminishing use, in which it implies that the modified

word might not quite apply, or might apply only partially. The augmenting use is much more common,

appearing with words of indeterminate magnitude like

“higher” and “lower” and answering questions like

“how much higher (or lower)?” The diminishing use,

while rarer, appears predictably with words like “all”

or “rewritten,” and it walks back the sense of totality

or completion that the words might otherwise convey.

A search of the United States Code reveals the

same pattern in acts of Congress. “Substantially burden,” “substantial impact,” and “substantial evidence”

are all examples of the augmenting sense of “substantially” (or “substantial”). But the diminishing sense

appears clearly in numerous statutes, in phrases like

“substantially complete,” “substantial compliance,”

and “substantially equivalent.”

“Substantially prevail” is an example of the diminishing sense, not the augmenting sense. This is

clearest in the several statutes where Congress has

used the phrase “prevail or substantially prevail” or

some equivalent, since the only purpose of adding

“substantially prevail” to that phrase is to include

some parties who do not quite prevail. But even in

CAFRA, where “substantially prevails” appears alone,

it implies a standard lower than the “prevailing party”

standard that the Second Circuit chose to apply.

Under any reasonable reading of “substantially

prevails,” the standard is satisfied whenever a party

(like Ross) files a claim to recover seized assets and

succeeds in recovering the assets. For the sake of property owners who lack Ross’s resources, for whom the

4

risk of not securing a fee award may prevent them

from contesting forfeiture to begin with, the Court

should grant certiorari and correct the Second Circuit’s error.

ARGUMENT

I.

IN ORDINARY LANGUAGE, “SUBSTANTIALLY”

IMPLIES “ALMOST, BUT NOT QUITE” WHEN

MODIFYING PREDICTABLE TYPES OF WORDS

A. Corpus Linguistics Helps Here

Corpus linguistics is an approach to textualism

that seeks to discern ordinary usage from large bodies

of organic speech and writing compiled in an electronic

database known as a “corpus.” Stephen C. Mouritsen,

The Dictionary Is Not a Fortress: Definitional Fallacies

and a Corpus-Based Approach to Plain Meaning, 2010

BYU L. Rev. 1915, 1954–55 (2010). The basic idea behind corpus linguistics is that, to determine what a

word means, we should observe how people use it. This

idea is “so commonsensical that”—as Justice Scalia

once wrote of the canons of construction—“were [it] not

couched in Latin,” “you would find it hard to believe

anyone could criticize [it].” Antonin Scalia, CommonLaw Courts in a Civil-Law System: The Role of the

United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation:

Federal Courts and the Law 3, 26 (Amy Gutmann ed.,

1997).

Corpus linguistics does not replace dictionaries; it

picks up where they leave off. Dictionaries can only

take a legal reader so far—they can identify the possible meanings of a statutory term, but they often have

little to say about which of the possible meanings was

5

intended in any given statute. To answer that question, a reader must consult examples of how the word

is used in other contexts, and corpus linguistics allows

readers to find examples from the most relevant contexts as systematically and objectively as possible. See

Mouritsen, supra, at 1956–58.

Corpus linguistics thus reduces the risk that a

court will select an isolated example that happens to

support a preferred reading, instead permitting courts

to compare numerous examples across a large body of

actual usage. That comparison is especially useful for

polysemous modifiers such as “substantially,” whose

meaning depends heavily on the character of the word

it modifies.

B. Corpus Linguistics Shows Two Uses of

“Substantially”: An Augmenting Sense

and a Diminishing Sense

CAFRA’s word “substantially” can be used in a variety of ways, but we will focus on two: an augmenting

or magnitude sense (Substantially1) and a diminishing

or threshold sense (Substantially2). The augmenting

sense of Substantially1, when modifying a verb, usually conveys the meaning that the actor in question

has done more than would be implied by the unmodified verb: a child who has grown substantially is not

merely larger but substantially larger than she was before. The diminishing sense of Substantially2, on the

other hand, implies that an actor has done something

less than implied by the unmodified verb: a child who

has substantially cleaned the kitchen probably left

some mopping for Mom.

Dictionaries acknowledge both the augmenting

sense of Substantially1 and the diminishing sense of

6

Substantially2. The Oxford Advanced Learner’s Dictionary, for example, gives two definitions that map

exactly onto those two senses: Oxford’s definition 1 is

“very much; a lot,” and definition 2 is “mainly; in most

details, even if not completely.” Substantially, Oxford

Advanced

Learner’s

Dictionary,

https://tinyurl.com/ytmbwf5p (last visited Aug. 17, 2026).

Merriam-Webster lists “substantially” only as the adverbial form of “substantial,” but two of its definitions

of “substantial” likewise match Substantially1 and

Substantially2: Merriam-Webster’s definition 3b is

“considerable in quantity: significantly great,” and its

definition 5 is “being largely but not wholly that which

is specified,” as in “a substantial lie.” Substantial, Merriam-Webster.com Dictionary, https://tinyurl.com/3k

8cmmjc (last visited Aug. 17, 2026).

So which sense of “substantially” best fits CAFRA?

Answering that question requires examining the word

“substantially” not only by itself but in context, in conjunction with “prevailed” and other words like it.

To perform that examination, we searched the Corpus

of

Contemporary

American

English,

https://www.english-corpora.org/coca, for uses of the

word “substantially” between 1990 and 2005 (since

CAFRA was passed in 2000). The search yielded 4,598

results, of which we chose 100 at random for analysis.

We concluded that 80 of the 100 were examples of the

augmenting sense (Substantially1), 15 were examples

of the diminishing sense (Substantially2), and the remaining 5 were ambiguous.

Substantially1 predominates, but that is not dispositive; nothing requires Congress to use only the

single most common meaning of each word. Instead,

the corpus sample is helpful in two ways: first, it

proves that both senses are actually in common use

7

and neither is a mere relic or eccentricity preserved by

overzealous lexicographers; and, second, it lets us

identify usage patterns that can indicate when one

sense is intended and when the other. See Mouritsen,

supra, at 1915.

In this case, the usage pattern is straightforward.

Substantially1 is used with words that are indeterminate in scope or degree, and its purpose is to specify

the otherwise unstated scope or degree. To repeat the

example from above, merely saying a child has grown

does not say how much—even a tenth of an inch is

“growth.” On the other hand, Substantially2 is used

with words that already imply a certain scope or degree, and its purpose is to diminish the scope or degree

implied: saying a child has cleaned a kitchen implies

that the kitchen is clean, full stop; the reason to add

“substantially” is to acknowledge that the standard

usually implied by “clean” might not quite be met.

Further examples from the corpus confirm this distinction. In our sample, Substantially1 modifies words

like the following:

• “Reduce,” “decrease,” “diminish,” “fall,” “lessen,”

“lower,” or “cut,” as in “cutting taxes” (18 uses);

• “Increase,” “boost,” “drive up,” “go up,” “grow,”

“raise,” or “rise” (14 uses);

• “Benefit,” “contribute,” “enhance,” “enrich,” or

“further,” as in “to further a purpose” (6 uses);

and

• “Damage,” “deteriorate,” “erode,” “undermine,” or

“water down” (5 uses).

These verbs make up more than half the uses of

Substantially1 in the sample. Their common theme is

that they indicate the direction of a change—lower or

8

higher, better or worse—without indicating its magnitude. The same theme appears in some of the sample’s

adjectives: “better,” “cheaper,” “closer,” “faster,”

“greater,” “higher,” “larger,” “less,” “lower,” “shorter,”

and “more” (19 uses total). These all say that something has more of some quality than something else,

but none of them says how much more, and Substantially1 attempts to supply the missing information.

The words we associate with Substantially2, on the

other hand, already imply a magnitude, scope, or degree. Examples follow:

• “Last week, negotiators in the House and Senate

agreed on a measure that would substantially

overturn the 1984 act[.]”

• “The psychological dialectic leads Fukuyama to a

reflection on bourgeois culture—shared substantially by authors from Tocqueville to

Nietzsche, Riesman, and many others.”

• “The employer-required insurance will probably

be substantially rewritten.”

• “[T]he Telegraph made up ‘substantially all’ of

Hollinger International’s assets[.]”

• “We have a substantially non-immune population and that’s a very risky situation if we face a

malicious bioterrorist[.]”

In each of these cases, the word modified by “substantially” already conveys a clear degree or

magnitude, as can be seen by removing “substantially”

from the sentence. Without “substantially,” a bill that

overturns the 1984 act would be expected to repeal it

entirely; an idea “shared by authors from Tocqueville

9

to Nietzsche” would be shared completely; a “non-immune” population would be assumed to have no

immunity at all.

And in each case, “substantially” is clearly being

used to diminish the degree or magnitude conveyed by

the phrase. A bill that “substantially overturn[s]” the

1984 act still leaves part of the act in place, and an

insurance policy that is “substantially rewritten” is not

rewritten all the way. A newspaper that makes up

“substantially all” of a company’s assets isn’t the company’s only asset; there must be some minor property

somewhere else on the balance sheet. Thus, these five

results are all examples of Substantially2.

II. FEDERAL STATUTES USE “SUBSTANTIALLY” TO

IMPLY “ALMOST, BUT NOT QUITE” WHEN

MODIFYING THE SAME TYPES OF WORDS

Our analysis based on the COCA is reinforced by a

second corpus: the United States Code. Congress’s use

of the words “substantially” and “substantial” reflects

the same two recurring functions of “substantially”

discussed above: the augmenting sense of Substantially1 and the diminishing sense of Substantially2.

Further, the pattern of contexts in which Congress

uses each sense matches the pattern observed above in

COCA. Examples of the augmenting sense of “substantially” or “substantial” include

•

“substantially burden,” 42 U.S.C. § 2000bb-1(a)

(Religious Freedom Restoration Act or RFRA);

•

“substantial impact,” e.g., 42 U.S.C. § 7191(b)

(administrative procedure provisions for the Department of Energy); and

10

•

“substantial evidence,” e.g., 42 U.S.C. § 405(g) (if

supported by “substantial evidence,” factual findings by the Social Security Commissioner are

“conclusive”).

In each case, the modified word can exist in varying

amounts or degrees, and “substantial” is needed to answer

the

question

“how

much.”

Without

“substantially,” RFRA would apply whenever religion

is burdened even in the slightest and most insignificant way. Likewise, if “substantial” were removed

from 42 U.S.C. § 405(g), then factual findings by the

Social Security Commissioner would be conclusive if

supported by any evidence at all.

In acts of Congress as in normal usage, Substantially2 is less common than Substantially1, but some

statutes still employ it to soften the effect of words that

would otherwise be too absolute.

The Federal Food, Drug, and Cosmetic Act, for example, identifies a “first applicant” for a new drug

based on which parties first file “a substantially complete application.” 21 U.S.C. § 355(j)(5)(B)(iv)(II)(bb).

We know Substantially2 is intended because Congress

says so: the statute defines “substantially complete application” to mean “an application under this

subsection that on its face is sufficiently complete to

permit a substantive review and contains all the information required by paragraph (2)(A).” Ibid. (emphasis

added). In other words, “substantially” was added to

indicate that perfect completion is not required.

Similarly, a number of statutes use “substantially”

or “substantial” to modify “comply” or “compliance,” indicating that, in a particular context, perfect

compliance with the statute is not required. See, e.g.,

11

17

U.S.C.

§ 512(c)(3)(B);

42

U.S.C.

§ 609(a)(8)(A)(i)(III). The point of the phrase “substantial compliance” is to acknowledge and excuse “minor

violations.” 21 U.S.C. § 333(f)(1)(B)(ii).

“Complete” and “compliant” are like “all,” “non-immune,” “rewritten,” etc.—the words modified by

Substantially2 in our COCA sample. They are all

words that, when left unmodified, ordinarily imply

something complete or total: ordinarily a party either

complies or doesn’t, just as an insurance policy usually

either has been rewritten or hasn’t. And they are far

from the only examples in the U.S. Code. See 21 U.S.C.

§ 360c(i)(1) (“substantially equivalent”); 11 U.S.C.

§ 1101(2) (“substantial consummation”); 34 U.S.C.

§ 20927 (“substantially implement”); 15 U.S.C.

§ 1692o (“requirements substantially similar”); 16

U.S.C. § 2634 (proceedings and actions that “substantially conform” to federal requirements).

III. IN CAFRA, “SUBSTANTIALLY PREVAILS”

IMPLIES “ALMOST PREVAILS, BUT NOT QUITE”

As argued above, both common usage and other

statutes give “substantially” its augmenting sense

when it modifies a word that is indeterminate in scope

or degree, and they give “substantially” its diminishing sense when it modifies a word that ordinarily

implies completeness or totality. The only remaining

question, then, is which side of the line “substantially

prevails” falls on: is “prevail” the sort of word that triggers the augmenting sense of Substantially1, or does it

trigger the diminishing sense of Substantially2?

Again we will give a common-usage answer and a

statutory-usage answer. The American Heritage Dictionary lists four meanings of “prevail”:

12

1. To be greater in strength or influence;

triumph: The home team prevailed

against the visitors.

2. To be most common or frequent; be

predominant: a region where snow

and ice prevail.

3. To be in force, use, or effect; be current: an ancient tradition that still

prevails.

4. To use persuasion or inducement successfully. Often used with on, upon,

or with.

Prevail, Am. Heritage Dictionary of the English Language, https://tinyurl.com/mutvcpv3 (last visited Aug.

17, 2026). Other dictionaries’ entries are, well, “substantially” similar. See, e.g., Prevail, MerriamWebster.com Dictionary, https://tinyurl.com/y2swhxr6

(last visited Aug. 17, 2026) (“[T]o gain ascendancy

through strength or superiority.”).

“Prevails” in CAFRA is obviously an instance of

Prevail1, specifically the “triumph” part of the definition. It is also precisely the kind of word that triggers

the diminishing sense of Substantially2. Unlike the

verbs modified by Substantially1—verbs like “reduce,”

“increase,” “benefit,” and so on—the verb “prevail” already implies a degree or magnitude.

Specifically, “prevails” implies completeness: one

either prevails or not. When the home team “prevails”

against the visitors (as in the dictionary example

above), the home team adds exactly one game to its

wins column and the visiting team adds exactly one

loss. When a chess player writes 0.5–0.5 at the end of

13

her game score, the word for what she has done is not

“prevail” but “draw.”

Examples from politics lead to the same conclusion.

A candidate who “prevails” in the election takes office;

partially prevailing is not possible. Likewise, a bill’s

sponsors “prevail” when the bill passes; if their bill

doesn’t pass, they haven’t prevailed. If the sponsors

“substantially prevail,” on the other hand, everyone

understands that they have not passed the bill they

really wanted—they have passed a bill that contains

most of what they wanted, or a bill that contains everything they wanted but also some things they wanted

to leave out.

As with “substantially,” this common usage of “prevails” is confirmed by statutory usage—specifically, by

the word’s use in other statutes allowing fee awards.

For example, to be a “prevailing party” and obtain a

fee award under 42 U.S.C. § 1988, a party must obtain

legally binding “relief on the merits of his claim,” relief

that “materially alters the legal relationship between

the parties.” Lefemine v. Wideman, 568 U.S. 1, 4 (2012)

(quoting Farrar v. Hobby, 506 U.S. 103, 111–12

(1992)). Such relief has either been awarded or not,

with no middle option, and Ross lost below because the

Second Circuit ruled that it hadn’t been. Pet. App.

32a–38a (“Ross obtained none of the judicially sanctioned relief that he sought from the district court.”

(emphasis added)).

In some statutes, however, Congress makes fees

easier to award by including exactly the same “substantially prevails” language at issue here:

• 29 U.S.C. § 1303(f)(3) authorizes costs to a party

who “prevails or substantially prevails.”

14

• 33 U.S.C. § 1365(d) authorizes fees to “any prevailing or substantially prevailing party.”

And at least four other statutes use similar constructions. 29 U.S.C. § 1370(e)(1) (“prevails or substantially

prevails”); 33 U.S.C. § 1369(b)(3) (“prevailing or substantially prevailing party”); id. § 2706(g) (same); 42

U.S.C. § 6972(e) (same).

In all of these instances of “substantially prevails,”

the augmenting sense of Substantially1 would make

surplusage of the entire phrase—any party that prevailed “very much, a lot” 2 would already be covered by

the words “prevailing party,” so the separate language

covering a “substantially prevailing party” would be

unnecessary. The only plausible reading of these provisions interprets “substantially” in the diminishing

sense of Substantially2—i.e., “largely but not wholly.” 3

The two phrases together must mean something like

“any party who prevails, plus any party who doesn’t

quite prevail but still achieves something substantial.”

The phrase “substantially prevails” should carry

the same meaning in CAFRA, even though the statute

says only “substantially prevails” rather than “prevails or substantially prevails.” 28 U.S.C. § 2465(b)(1).

In CAFRA as in the other statutes, “prevails” is an allor-nothing verb like “overturn,” not a verb of indeterminate magnitude like “reduce” or “increase.”

Consequently, in CAFRA as in the other statutes,

“substantially” must carry its Substantially2 sense—

2 Substantially, Oxford Advanced Learner’s Dictionary,

https://tinyurl.com/ytmbwf5p (last visited Aug. 17, 2026).

3 Substantial, Merriam-Webster.com Dictionary, https://tinyurl.com/43xsd2zp (last visited Aug. 17, 2026).

15

the same sense as in “substantially complete” and

“substantially comply.”

The Second Circuit got this exactly wrong. It reasoned that because “substantially prevails” includes

the word “prevails,” it must therefore “require a litigant to ‘prevail’ to some degree.” Pet. App. 29a. Then

the Circuit proceeded to apply—without alteration—

the standard definition of “prevail” from the “prevailing party” cases. See Pet. App. 28a–38a (discussing,

inter alia, “prevailing party” case Buckhannon Bd. &

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

532 U.S. 598 (2001)).

With that chain of reasoning, the Second Circuit

read “substantially” out of the statute. The only plausible reason for Congress to write “substantially

prevails” rather than “prevails” is to grant attorney

fees to some parties who have not “prevailed” in the

strict sense. And the single most obvious scenario in

which a party might “substantially prevail” under

CAFRA without fully, technically “prevailing” is Ross’s

situation exactly: failing to obtain legally binding relief from the court, but nevertheless securing the

return of his funds.

* * *

16

CONCLUSION

Ross filed a claim to get his money back, and he got

his money back. That counts as “substantially prevailing” under any reasonable sense of the words.

The Court should grant certiorari and reverse.

Respectfully submitted,

ILYA SHAPIRO

TREVOR BURRUS

MANHATTAN INSTITUTE

52 Vanderbilt Ave.

New York, NY 10017

(212) 599-7000

ishapiro@manhattan.

institute

ALAN M. HURST

Counsel of Record

EMILY HAWS WRIGHT

BROOKE PORTER COLES

KIRTON | MCCONKIE

36 South State Street

Suite 1900

Salt Lake City, UT 84111

(801) 328-3600

ahurst@kmclaw.com

Counsel for Amici Curiae

AUGUST 20, 2026