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 Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

————

BRIEF OF UNITED STATES SENATORS

MIKE LEE AND RAND PAUL AS AMICI CURIAE

IN SUPPORT OF PETITIONER

————

JACOB C. BEACH

QUINN EMANUEL URQUHART

& SULLIVAN, LLP

300 West 6th Street

Suite 2010

Austin, TX 78701

(737) 667-6153

jacobbeach@quinn

emanuel.com

DEREK L. SHAFFER

Counsel of Record

CHRISTOPHER F. CASTALDIMOLLER

QUINN EMANUEL URQUHART

& SULLIVAN, LLP

555 13th Street NW

Suite 600

Washington, D.C. 20004

(202) 538-8000

derekshaffer@quinn

emanuel.com

Counsel for Amici Curiae

Senators Mike Lee and Rand Paul

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

ii

TABLE OF CONTENTS

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

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

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

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

I.

Congress’s Choice Of “Substantially

Prevails” Was Deliberate And Should Be

Dispositive ........................................................ 4

A.

B.

The Text Congress Enacted

Controls, And Purpose And

Structure Confirm It .............................. 5

1.

Congress

Chose

The

Broader Of Two Settled

Fee-Shifting Phrases ................... 5

2.

Purpose, Structure, And

Legislative

History

Confirm Congress’s Choice ......... 7

The

Reasoning

Below

Is

Problematic ............................................ 9

1.

The

Decision

Below

Misreads The Text And

Betrays Hardt And CRST

Van ............................................. 10

2.

Buckhannon And Lackey

Find No Purchase In

CAFRA ....................................... 11

3.

The

Decision

Below

Misconstrues The FOIA

Amendment ............................... 14

iii

II.

As A Policy Matter, The Decision Below

Erases A Vital Statutory Protection For

Ordinary Americans ....................................... 15

A.

Congress Built The Fee Provision

To Protect Ordinary Americans .......... 15

B.

“Prevailing Party” Is A Steep

Standard, And The Courts Below

Got Congress’s Policy Backwards ....... 17

C.

The Problem Has Not Gone Away,

And Ross Is The Ideal Vehicle To

Fix It ..................................................... 20

CONCLUSION .......................................................... 23

iv

TABLE OF AUTHORITIES

Cases

In re $446,651.11,

No. 2:14-mc-01288 (E.D.N.Y. 2014) .............. 21, 22

Alexander v. Sandoval,

532 U.S. 275 (2001) .............................................. 15

Beck v. Prupis,

529 U.S. 494 (2000) ................................................ 7

Buckhannon Bd. & Care Home, Inc. v.

W. Va. Dep’t of Health & Hum. Res.,

532 U.S. 598 (2001) .............. 6, 7, 11, 12, 13, 17, 18

Christiansburg Garment Co. v. EEOC,

434 U.S. 412 (1978) .............................................. 11

CRST Van Expedited, Inc. v. EEOC,

578 U.S. 419 (2016) ........................................ 11, 12

Culley v. Marshall,

601 U.S. 377 (2024) ....................... 13, 19, 20, 22-23

Enbridge Energy, LP v. Nessel,

608 U.S. ___, 146 S. Ct. 1074 (2026) ..................... 8

Friends of the Earth, Inc. v. Laidlaw

Env’t Servs. (TOC), Inc.,

528 U.S. 167 (2000) .............................................. 12

Gundy v. United States,

588 U.S. 128 (2019) ................................................ 7

v

Hamdan v. Rumsfeld,

548 U.S. 557 (2006) ................................................ 9

Hanrahan v. Hampton,

446 U.S. 754 (1980) .............................................. 17

Hardt v. Reliance Standard Life Ins.

Co.,

560 U.S. 242 (2010) ...................................... 2, 9, 10

Lackey v. Stinnie,

604 U.S. 192 (2025) ........................ 4, 12, 13, 14, 17

McNary v. Haitian Refugee Ctr., Inc.,

498 U.S. 479 (1991) ................................................ 5

Molzof v. United States,

502 U.S. 301 (1992) ............................................ 6, 7

Morissette v. United States,

342 U.S. 246 (1952) ................................................ 7

New Prime Inc. v. Oliveira,

586 U.S. 105 (2019) ................................................ 5

Richlin Sec. Serv. Co. v. Chertoff,

553 U.S. 571 (2008) ........................................ 10, 11

Russello v. United States,

464 U.S. 16 (1983) .................................................. 9

SAS Inst., Inc. v. Iancu,

584 U.S. 357 (2018) ................................................ 6

Sebelius v. Cloer,

569 U.S. 369 (2013) .............................................. 10

vi

Sole v. Wyner,

551 U.S. 74 (2007) ................................................ 17

United States v. $32,820.56 in U.S.

Currency,

838 F.3d 930 (8th Cir. 2016) .................... 10, 18, 21

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

Currency,

291 F. Supp. 2d 1126 (C.D. Cal.

2003) ....................................................................... 8

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

Currency,

929 F.3d 1293 (11th Cir. 2019) ................ 10, 20, 21

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

Currency,

No. 1:15-cv-23616 (S.D. Fla. 2015) ...................... 20

United States v. $8,040 in U.S.

Currency,

2025 WL 2043417 (W.D.N.Y. July

21, 2025) ............................................................... 21

United States v. Funds Held in the

Name or for the Benefit of Wetterer,

210 F.3d 96 (2d Cir. 2000) ................................... 19

United States v. Khan,

497 F.3d 204 (2d Cir. 2007) ........................... 10, 19

United States v. Miller,

604 U.S. 518 (2025) ............................................ 7, 8

vii

United States v. Starling,

76 F.4th 92 (2d Cir. 2023) .................................... 21

W. Va. Univ. Hosps., Inc. v. Casey,

499 U.S. 83 (1991) .................................................. 5

Zagano v. Fordham Univ.,

900 F.2d 12 (2d Cir. 1990) ................................... 13

Zuber v. Allen,

396 U.S. 168 (1969) .............................................. 15

Constitution, Statutes, and Rules

U.S. Const. art. I, § 1 ................................................... 1

5 U.S.C. § 552(a)(4)(E) .............................. 3, 6, 7, 9, 14

18 U.S.C. § 983 .......... 1-9, 11, 12, 14-16, 18-20, 22, 23

18 U.S.C. § 983(a)(2)(E) ............................................ 16

18 U.S.C. § 983(c)(1) .................................................. 16

18 U.S.C. § 983(d)(1) ................................................. 16

21 U.S.C. § 853(e)(1)(B) ............................................. 19

21 U.S.C. § 853(f)....................................................... 19

28 U.S.C. § 2412(b) ............................................ 7, 8, 17

28 U.S.C. § 2465(a) ...................................................... 8

28 U.S.C. § 2465(b) .... 1, 4, 5, 6, 7, 9, 11, 12, 17, 18, 19

viii

28 U.S.C. § 2465(b)(1) ........................... 1, 4, 6, 7, 9, 12

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

42 U.S.C. § 3613(c)(2) .................................................. 7

42 U.S.C. § 12205 ........................................................ 7

Fed. R. Crim. P. 41(c) ................................................ 19

Fed. R. Crim. P. 41(d)................................................ 19

Sup. Ct. Rule 37.6........................................................ 1

Legislative Materials and Other Authorities

145 Cong. Rec. 14126 (1999) (statement

of Rep. Jackson-Lee) ............................................ 15

146 Cong. Rec. 3657 (2000) ......................................... 9

146 Cong. Rec. 5228 (statement of Rep.

Hyde) (2000) ......................................................... 16

146 Cong. Rec. 5235 (2000) ......................................... 9

17 Oxford English Dictionary (2d ed.

1989) ....................................................................... 6

Black’s Law Dictionary (7th ed. 1999)........................ 6

H.R. Rep. No. 106-192 (1999).......................... 8, 16, 18

ix

Oversight of Federal Asset Forfeiture:

Its Role in Fighting Crime: Hearing

Before the Subcomm. on Criminal

Justice Oversight of the S. Comm. on

the Judiciary, 106th Cong. 109

(1999) .............................................................. 15, 16

David Arkush, Note, Preserving

“Catalyst” Attorneys' Fees under the

Freedom of Information Act in the

Wake of Buckhannon Board and

Care Home v. West Virginia

Department of Health and Human

Resources, 37 Harv. C.R.-C.L. L.

Rev. 131, 140 n.53 (2002)....................................... 7

S. 1701, 106th Cong. § 7(o)(1) ..................................... 9

S. 1931, 106th Cong. § 4(b)(1)(A) ................................ 9

S. Rep. No. 110-59 (2007) .......................................... 14

U.S. Dep’t of Just., Asset Forfeiture

Policy Manual 2-13 (2023) ................................... 22

Webster’s Third New International

Dictionary of the English Language,

Unabridged (1993) ................................................. 6

1

INTEREST OF AMICI CURIAE1

Amici—United States Senators Mike Lee and

Rand Paul—are members of the co-equal branch of

government that drafts and enacts all statutes under

the “legislative Powers” vested by Article I of the Constitution of the United States. U.S. Const. art. I, § 1.

Today, they respectfully convey their support for the

petition, pursuant to their shared view of the unmistakable intent of the fee-shifting provision of the Civil

Asset Forfeiture Reform Act (CAFRA). See 28 U.S.C.

§ 2465(b).

As legislators, amici have unique insight regarding

the legislative process. They understand how Congress drafts against an established backdrop, and

they understand that subsequent statutes and silence

do not nullify prior, enacted laws. Amici have an institutional interest in ensuring that the courts faithfully apply CAFRA’s plain meaning.

This case poses the question whether a claimant

proceeding under CAFRA has “substantially prevail[ed]” after the government drops its own case and

returns every dollar it seized. Id. Three courts of appeals have now answered no, each by importing into

28 U.S.C. Section 2465(b)(1) a term of art that Congress deliberately omitted from this provision. The result is the nullification of CAFRA’s mandatory feeshifting provision and a troubling rule that would require Congress to pass two statutes for the plain

1 Pursuant to Rule 37.6, amici state that no counsel or party

authored this brief in whole or in part and that no person other

than amici or their counsel made a monetary contribution to its

preparation or submission. Counsel of record for all parties received notice of this brief at least ten days before its due date.

2

meaning of the original statute to have force when a

lower court misinterprets a statute. Amici respectfully urge the Court to grant review here to restore the

standard Congress enacted to safeguard the rights of

ordinary Americans like the petitioner, Mr. Ross.

SUMMARY OF ARGUMENT

Congress specifically and intentionally prescribed

that a claimant who “substantially prevails” under

CAFRA “shall” be entitled to fees. In so doing, Congress eschewed the term “prevailing party”—a term of

art that carries specific meaning. The textual choice

was deliberate and dispositive of cases like this. By

2000, the phrases signified distinct remedial schemes,

with Congress selecting the broader scheme for

CAFRA. And CAFRA’s purpose dovetails with the

drafting choice: Congress enacted CAFRA because

the prior regime left innocent owners paying the oppressive bills they incurred in vindicating their rights.

Further underlining this decision, Congress required

a judgment in a neighboring CAFRA provision while

omitting that requirement from the fee provision.

And whereas the bill as first sponsored conditioned

any fee entitlement on entry of judgment, Congress

struck that language before passage. The resulting

provision implements Congress’s intent to make innocent owners whole.

The decision below upends that scheme, swapping

Congress’s chosen phrase for a narrower term of art.

This Court has rightly instructed lower courts not to

add “prevailing party” to a fee statute “from which it

is conspicuously absent.” Hardt v. Reliance Standard

Life Ins. Co., 560 U.S. 242, 252 (2010). The lower

court here defied that instruction without citing

Hardt. Moreover, it elevated the sovereign-immunity

3

canon above the statutory text. The upshot leaves a

claimant’s recovery—mandatory whenever a claimant

“substantially prevails”—dependent on a multi-factor,

circuit-variable inquiry into prejudice, subject to review only for abuse of discretion. CAFRA’s claimantprotective guarantee thus has become, in practice, a

pro-government smokescreen. According to the statute Congress enacted, however, the dispositive question should simply be whether the claimant

substantially prevailed.

The court below also erred by stressing that Congress clarified the meaning of “substantially prevails”

by amending the Freedom of Information Act (FOIA)

in 2007, without revising CAFRA. App. 30a n.13. If

anything, that inference runs backwards, as Congress’s clarification of the identical term in FOIA

should dispel any doubt as to the plain meaning here.

In any event, inaction is an unfit beacon to follow, and

Congress’s later-enacted amendment of FOIA could

not possibly alter the settled meaning of CAFRA as

previously enacted and understood.

The “prevailing party” standard imported by the

Second Circuit is virtually impossible to satisfy, given

that the government can end a case opportunistically,

at its whim. Grafting that standard onto CAFRA not

only misreads the text but leaves innocent owners

paying dearly for their successful (and sometimes

Herculean) efforts to recover their property—precisely the harm that Congress enacted CAFRA to address.

Civil forfeiture permits the government to confiscate a citizen’s property without charging anyone with

a crime, and CAFRA’s protections serve to check that

fearsome power. Where there is a crime to charge,

Congress has supplied ample means to hold property,

4

provided the government first satisfies judicial review. In this context, Congress has determined that

the government, not the innocent owner, should bear

the cost when the government enlists civil forfeiture

without warrant. Amici urge the Court to enforce

Congress’s choice, as plainly expressed in CAFRA’s

text.

The question presented thus carries exceptional

importance warranting certiorari.

ARGUMENT

I.

CONGRESS’S

CHOICE

“SUBSTANTIALLY

PREVAILS”

DELIBERATE

AND

SHOULD

DISPOSITIVE

OF

WAS

BE

Statutory interpretation starts with the words

Congress enacts. Lackey v. Stinnie, 604 U.S. 192, 199

(2025). CAFRA’s words are clear: the government is

“liable for . . . reasonable attorney fees and other litigation costs” of any “claimant” who “substantially prevails” against it in a civil forfeiture proceeding. 28

U.S.C. § 2465(b)(1).

Congress chose this regime to make innocent owners whole. But the lower court’s decision nullifies that

choice by basing the fee award on the form of judgment, rather than the substance of voluntary dismissal and returned property. That misconstruction

blows past all signs of statutory meaning; it flouts this

Court’s express instructions in Hardt; and it fails on

its own terms. Amici urge this Court to reverse and

restore the meaning of the law that Congress enacted.

5

A.

The Text Congress Enacted Controls,

And Purpose And Structure Confirm It

As prevailing English usage confirms, Congress’s

chosen text contains a phrase different from that substituted by the lower courts. Congress’s stated purpose explains why it chose the broader phrase, and its

deliberate choice is confirmed by statutory structure

and CAFRA’s enactment history.

1. Congress Chose The Broader Of Two

Settled Fee-Shifting Phrases

The best evidence of Congress’s intent is the statute’s plain text. See W. Va. Univ. Hosps., Inc. v. Casey,

499 U.S. 83, 98 (1991). Congress understands the legal significance of the words it selects. See McNary v.

Haitian Refugee Ctr., Inc., 498 U.S. 479, 496 (1991)

(“It is presumable that Congress legislates with

knowledge of our basic rules of statutory construction.”). And Congress expects the courts to apply

these tools to support policy choices evident from text

in context. Cf., e.g., New Prime Inc. v. Oliveira, 586

U.S. 105, 113-16 (2019) (“word choice,” “original

meaning,” and historical “legal authorities” evidenced

“that Congress used [a] term . . . in a broad sense”).

The Second Circuit read these principles to obscure Section 2465(b). They do the opposite. Take the

“fundamental canon” to read the words of a statute

under their ordinary meaning “at the time Congress

enacted the statute.” Id. at 113 (cleaned up). That

directs the Court to face what should be obvious: “substantially prevails” does not equate to “prevailing

party.” As a matter of common English, the reference

to “substantially prevailing” signifies that a claimant

need only prevail in substance, or as a bottom-line

6

matter. See, e.g., substantially, 17 Oxford English

Dictionary (2d ed. 1989) (“[I]n regard to everything

material; in essentials; to all intents and purposes; in

the main.”); cf. substance, Webster’s Third New International Dictionary of the English Language, Unabridged (1993) (defining as “a fundamental part,

quality, or aspect” as against that which “is merely

procedural”); substance, Black’s Law Dictionary (7th

ed. 1999) (“[T]he essential quality of something, as opposed to its mere form . . . .”). That is far different

from requiring that “prevailing party” status be technically secured by formal decree.

Context confirms the point. By the time it enacted

CAFRA, Congress had keyed dozens of fee-shifting

statutes to the term of art “prevailing party,” see, e.g.,

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

Health & Hum. Res., 532 U.S. 598, 602-03 (2001) (citation omitted), while separately using the broader

phrase “substantially prevails” or near-identical variants elsewhere, most prominently in the Freedom of

Information Act, 5 U.S.C. § 552(a)(4)(E). Given how

the legislative process works, Congress well appreciated the difference when choosing the broader phrase

for CAFRA. 28 U.S.C. § 2465(b)(1); see SAS Inst., Inc.

v. Iancu, 584 U.S. 357, 364 (2018) (noting that where

Congress departs from an existing statutory model, its

“choice to depart from the model of” the earlier statute

controls).

The phrase Congress borrowed carried settled import, and it is presumed that Congress selected that

import along with the words. See Molzof v. United

States, 502 U.S. 301, 307 (1992) (“A cardinal rule of

statutory construction holds that ‘[w]here Congress

borrows terms of art . . . it presumably . . . adopts . . .

the meaning its use will convey to the judicial mind

7

unless otherwise instructed.’”) (quoting Morissette v.

United States, 342 U.S. 246, 263 (1952)). When Congress passed CAFRA, every court of appeals to construe FOIA’s “substantially prevailed” language had

read it to authorize fee recovery so long as a claimant

obtained relief, even short of a final judgment. See

David Arkush, Note, Preserving “Catalyst” Attorneys’

Fees under the Freedom of Information Act in the

Wake of Buckhannon Board and Care Home v. West

Virginia Department of Health and Human Resources, 37 Harv. C.R.-C.L. L. Rev. 131, 140 n.53

(2002). Congress is presumed to adopt the settled judicial construction of the language it chooses. Beck v.

Prupis, 529 U.S. 494, 500-02 (2000). And an “absence

of contrary direction may be taken as satisfaction with

widely accepted definitions, not as a departure from

them.” Buckhannon, 532 U.S. at 615-16 (Scalia, J.,

concurring). CAFRA contains no such contrary direction.

Congress also paired its broader eligibility standard with a command. Where a court “may” award or

assess a fee under other fee-shifting rules, the United

States “shall be liable” under CAFRA. Compare 28

U.S.C. § 2465(b)(1) (emphasis added) with 28 U.S.C.

§ 2412(b); 42 U.S.C. § 1988(b); id. § 3613(c)(2); id.

§ 12205. A mandatory fee-shifting rule cannot be

evaded at the government’s procedural election to dismiss without prejudice.

2. Purpose, Structure, And Legislative

History Confirm Congress’s Choice

Purpose, structure, and legislative history evince

Congress’s intent as well. See Gundy v. United States,

588 U.S. 128, 140-41 (2019); United States v. Miller,

8

604 U.S. 518, 531-33 (2025). Each confirms the meaning the text already supplies.

Start with purpose. The prior regime, which measured a claimant’s entitlement to fees by the “prevailing party” standard of the Equal Access to Justice Act,

had failed the owners it was supposed to protect. See

United States v. $60,201.00 U.S. Currency, 291 F.

Supp. 2d 1126, 1130 (C.D. Cal. 2003); 28 U.S.C.

§ 2412(b). So recognizing, Congress set out to make

forfeiture “fair to property owners” and to give the innocent “the means to . . . make themselves whole after

wrongful government seizures.” H.R. Rep. No. 106192, at 11 (1999). A district court that construed

CAFRA against the earlier standard astutely read the

new phrase to “liberalize the award of attorney fees”

and to “broaden[] the class that can receive fees.”

$60,201.00 U.S. Currency, 291 F. Supp. 2d at 1130.

The statute’s structure confirms the point. Section

2465(a) conditions the return of seized property on

“the entry of a judgment for the claimant.” 28 U.S.C.

§ 2465(a). Congress omitted any judgment requirement from the adjacent fee provision, which turns

solely on whether the claimant “substantially prevail[s].” Id. § 2465 (b)(1). “When Congress includes

particular language in one section of a statute but

omits it from a neighbor, we normally understand

that difference in language to convey a difference in

meaning.” Enbridge Energy, LP v. Nessel, 608 U.S.

___, ___, 146 S. Ct. 1074, 1084 (2026) (cleaned up).

This Court applied that principle to a fee-shifting statute in Hardt. One ERISA provision allowed fees only

to a plaintiff who obtained “a judgment in favor of the

plan”; the neighboring provision imposed no such

limit. That contrast, the Court explained, “makes

clear that Congress knows how to impose express

9

limits on the availability of attorney’s fees in ERISA

cases.” Hardt, 560 U.S. at 252. Congress knows how

to require a judgment. In Section 2465(b)(1) it did not.

The drafting record illuminates the ultimate structure. As first sponsored in the Senate, CAFRA required a fee award when “the court enters judgment

for” a party “filing a claim in a civil forfeiture case.” S.

1701, 106th Cong. § 7(o)(1) (1999). But the HatchLeahy amendment struck that language in favor of

the distinctive text that was enacted instead. S. 1931,

106th Cong. § 4(b)(1)(A) (1999); accord 28 U.S.C. §

2465(b)(1); 146 Cong. Rec. 3657 (2000) (Senate passage); id. 5235 (2000) (House concurrence). “[W]here

Congress includes limiting language in an earlier version of a bill but deletes it prior to enactment, it may

be presumed that the limitation was not intended.”

Russello v. United States, 464 U.S. 16, 23-24 (1983);

see Hamdan v. Rumsfeld, 548 U.S. 557, 579-80 (2006)

(“Congress’s rejection of the very language that would

have achieved the result the Government urges . . .

weighs heavily against the Government’s interpretation.”). As Members of Congress, amici agree that

Congress means what it chooses to say, rather than

what it declines to say.

B.

The Reasoning Below Is Problematic

The Second Circuit read Congress’s choice out of

the statute. It began with its own dictum rather than

the text’s plain meaning, invoked the sovereign-immunity canon without finding ambiguity and before

addressing § 2465(b)(1), and read Congress’s 2007

clarification of FOIA as confining the broader standard to that one statute. App. 27a-33a. The result was

to equate “substantially prevails” with “prevailing

party,” as the latter has been construed by this Court.

10

Id. 28a-30a, 30a n.13, 33a. That left the petitioner,

Mr. Ross, recovering nothing. Such reasoning is misconceived at every turn.

1. The Decision Below Misreads The Text

And Betrays Hardt And CRST Van

The threshold error is textual, and it traces to dictum in United States v. Khan, 497 F.3d 204, 208-09

(2d Cir. 2007), which suggested that “substantially

prevails” should be “informed by” the Court’s construction of “prevailing party” in Buckhannon. App.

28a. The Eighth and Eleventh Circuits repeated this

error. See United States v. $32,820.56 in United

States Currency, 838 F.3d 930, 934 (8th Cir. 2016);

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

1293, 1303 (11th Cir. 2019).

But this Court foreclosed such unexamined equation. In Hardt, it held unanimously that a “prevailing

party” requirement may not be read into “a fee-shifting statute from which it is conspicuously absent,” and

that “‘prevailing party’ precedents . . . do not govern”

a statute that omits the term. Hardt, 560 U.S. at 25253 (citations omitted). Despite these instructions, the

Second Circuit never cited Hardt once, basing its construction of “substantially prevails” on Buckhannon—

a “prevailing party precedent[].” Id. (cleaned up).

And the sovereign immunity canon offers no excuse. This Court “ha[s] never held” that the “sovereign immunity canon . . . displaces the other

traditional tools of statutory construction,” Richlin

Sec. Serv. Co. v. Chertoff, 553 U.S. 571, 589-90 (2008),

and it “come[s] into play only to the extent that [a statute] is ambiguous,” Sebelius v. Cloer, 569 U.S. 369,

381 (2013) (internal quotations omitted) (citation

omitted). Where “traditional tools of construction”

11

resolve the question, the canon gives way to the text.

Richlin, 553 U.S. at 590. So, while Buckhannon is inapplicable on its face, and while Section 2465(b) is indeed unambiguous (making the canon inapposite), the

Second Circuit trebled its error by failing to apply the

traditional tools in the first place.

The lower court then compounded error with error

by misreading CRST Van Expedited, Inc. v. EEOC,

578 U.S. 419 (2016). There, the Court held that a defendant stands as the prevailing party “whenever the

plaintiff’s challenge is rebuffed.” Id. at 431. And that

is because “[t]here is no indication that Congress intended that defendants should be eligible to recover

attorney’s fees only when courts dispose of claims on

the merits.” Id. at 431-32. Like the defendant in

CRST Van, Mr. Ross has rebuffed the government’s

attempt to seize his property. But the court below

read CRST Van to require the very preclusive judgment that decision held unnecessary. App. 32a-33a.

2. Buckhannon And Lackey

Purchase In CAFRA

Find

No

Even setting aside telltale textual differences, the

two decisions the lower court relied on still would be

inapposite, considering the peculiar nature of a civil

forfeiture.

Begin with inapposite structure. Buckhannon and

Lackey construed party-neutral civil-rights statutes,

which run in both directions and reach any defendant,

public or private. Cf. Christiansburg Garment Co. v.

EEOC, 434 U.S. 412, 418-19 (1978). CAFRA, by contrast, names one possible payor, the United States,

and one possible recipient, the claimant. A vocabulary

built for interchangeable litigants does not transfer to

12

a statute protecting the unfortunate citizen taking on

the sovereign.

Then consider doctrinal safeguards that made the

“prevailing party” standard workable in Buckhannon

and Lackey but that fail to apply to CAFRA forfeiture.

First, a plaintiff with “a cause of action for damages”

prevents gamesmanship because “a defendant’s

change in conduct,” such as a voluntary dismissal,

“will not moot” the damages claim. Buckhannon, 532

U.S. at 609; see Lackey, 604 U.S. at 204. The logic does

not extend here, because as confirmed by CAFRA itself, claimants in forfeiture proceedings press for possession of their property, and not a cause of action for

damages. 28 U.S.C. § 2465(b)(1). Second, voluntary

cessation in “prevailing party” suits will only moot an

action when the defendant (i.e., the government or one

of its officers) carries the “formidable” burden of showing that the challenged conduct will not recur.

Lackey, 604 U.S. at 204 (quoting Friends of the Earth,

Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167,

190 (2000)); see Buckhannon, 532 U.S. at 608-09. This

safeguard fails because the claimant sits in the defendant’s chair: the government’s dismissal and return of the res is not defendant-cessation. And no

recurrence inquiry could follow it because by simply

returning the property the government conclusively

ends that particular controversy. Dismissing with

prejudice might still cost the government something

because it would preclude any subsequent return to

litigate related issues. See CRST Van, 578 U.S. at

427, 431-34; App. 20a. Yet nothing obliges the government to dismiss that way; to the contrary, the law

favors granting a dismissal without prejudice whenever the government seeks it. App. 39a-44a. That in

fact inverts the voluntary-cessation burden in the civil

13

rights context: it forces the claimant to prove that the

government will not file another flimsy case against

his property. The record below evinces this well. See

App. 35a-36a.

Nor does the transplanted rule deliver the administrability benefits that Buckhannon and Lackey contemplate. Buckhannon rejected the catalyst theory in

part because the inquiry it required was “clearly not a

formula for ‘ready administrability.’” 532 U.S. at 610.

And Lackey favored a “straightforward, bright-line

rule” to avoid “a second major litigation” over fees, 604

U.S. at 204 (citation omitted). But under the Second

Circuit’s approach, protection against abuse hinges on

a multi-factor prejudice inquiry reviewed only for

abuse of discretion. App. 39a-40a, 45a-48a (discussion

of Zagano v. Fordham Univ., 900 F.2d 12 (2d Cir.

1990)). In place of the single question posed by the

statute, the mandatory fee award winds up turning on

a circuit-by-circuit inquiry into the prejudice worked

by the government’s own dismissal.

The record below shows just how difficult it is for

a claimant to emerge on top. The government’s invocation of the “information and documentation obtained” over a twelve-month investigation carried two

of the Zagano factors, App. 45a, and open questions

about the underlying facts carried another, App. 47a,

as they would in the roughly 80% of forfeitures that

are not accompanied by a criminal conviction. Culley

v. Marshall, 601 U.S. 377, 395 (2024) (Gorsuch, J.,

concurring). An entitlement that Congress framed in

absolute terms thus varies from forum to forum and

judge to judge, whilst systematically bending to favor

the government.

14

3. The Decision Below Misconstrues The

FOIA Amendment

As a fallback, the court below relied on congressional silence. The lower court reasoned that, because

Congress amended FOIA in 2007 to make the “substantially prevailed” standard explicit, the broader

approach is “cabined” to FOIA because Congress did

not amend CAFRA with the same breath. App. 30a

n.13. But from the perspective of these amici—bipartisan members of the Branch whose silence the court

misconstrued—the inference is upside down. Congress amended FOIA in 2007 to make the “substantially prevailed” standard explicit, when bad

application of Buckhannon threatened to blue-pencil

the enacted standard out of the statute. The 2007

amendment instructed the courts on what the phrase

has meant all along. See S. Rep. No. 110-59, at 4, 6

(2007) (“[The 2007 amendment] clarifies that Buckhannon’s holding does not and should not apply to

FOIA litigation.”).

This Court recognized this meaning two terms ago,

when it identified FOIA as a model for shifting “attorney’s fees to plaintiffs who have enjoyed some success

but have not prevailed in a judgment on the merits”

due to “a voluntary or unilateral change in position by

the agency.” Lackey, 604 U.S. at 205 (quoting 5 U.S.C.

§ 552(a)(4)(E)). Under this Court’s own understanding, then, the “substantially prevailed” standard exists precisely to defeat government efforts to dodge fee

shifting. To wield a clarifying amendment of this term

in FOIA as a tool for narrowing its scope in CAFRA

twists the intent of Congress twice over. It simply

makes no sense for “substantially prevails” to mean

“prevailing party” in CAFRA, but not in FOIA, when

15

Congress could have but chose not to use “prevailing

party” in CAFRA.

But set all this aside: congressional inaction cannot amend CAFRA. See, e.g., Alexander v. Sandoval,

532 U.S. 275, 292 (2001). Amici emphatically confirm

that Congress’s “silence is a poor beacon to follow in

discerning the proper statutory route.” Zuber v. Allen,

396 U.S. 168, 185 (1969). Reading affirmation into silence transfers the drafting pen to the courts and frustrates the intent of those elected to legislate.

II.

AS A POLICY MATTER, THE DECISION

BELOW ERASES A VITAL STATUTORY

PROTECTION

FOR

ORDINARY

AMERICANS

The decision below imposes a standard that is exceedingly difficult for innocent owners to satisfy in

practice. The floodgates remain open to the wrongful

forfeitures that Congress set out to arrest, and the

cost falls on those whom CAFRA sought to rescue.

A.

Congress Built The Fee Provision To

Protect Ordinary Americans

The regime that CAFRA replaced left innocent

owners to finance their own vindication. A claimant

contesting a forfeiture was obliged to post a cost bond

worth 10% of the property’s value, to bear the burden

of proof, and to go without any right to appointed

counsel, even if indigent. 145 Cong. Rec. 14126 (statement of Rep. Jackson-Lee). The result, as Representative Jackson-Lee put it, was that “an innocent person,

or a person not charged with a crime, has fewer rights

than the accused criminal.” Id.

Congress faced a record replete with ordinary

Americans ruined by the costs of fighting to recover

16

their property. Billy Munnerlyn, an air-charter operator, spent more than $85,000 and had to sell his three

other planes to recover one aircraft seized after an unwitting charter. The plane came back damaged, and

he declared bankruptcy. H.R. Rep. No. 106-192, at 89. Owners of a Houston motel, never accused of a

crime, lost their property and good name for months

and paid hefty legal fees to fight a forfeiture that

“should never have been undertaken in the first

place.” Id. at 10-11.

Congress responded with a package of protections:

it shifted the burden of proof to the government

throughout the proceeding, eliminated the cost bond,

and created a uniform innocent-owner defense. See 18

U.S.C. § 983(c)(1); id. § 983(a)(2)(E); id. § 983(d)(1).

But those alone would not suffice. The fee provision

made the package complete and usable.

Facing prohibitive costs, owners with meritorious

claims often gave up. Prior to CAFRA, claimants typically were relegated to the Equal Access to Justice

Act, a “prevailing party” statute. See supra Part I.A.2.

Under this regime, victories were often pyrrhic. As

CAFRA’s House sponsor described: “property owners

who successfully challenge the seizure of their property almost never are awarded attorney’s fees.” 146

Cong. Rec. 5228 (statement of Rep. Hyde). As the

Committee put it, an owner may prevail and still find

that “irreparable damage may have been done to the

owner’s interests.” H.R. Rep. No. 106-192, at 17

(1999). The Department of Justice confirmed the dynamic: then-Deputy Attorney General Eric Holder

agreed that an owner “may decide not to litigate”

when “the cost of litigation, including attorney’s fees,

would . . . be greater than the value of the property.”

Oversight of Federal Asset Forfeiture: Its Role in

17

Fighting Crime: Hearing Before the Subcomm. on

Criminal Justice Oversight of the S. Comm. on the Judiciary, 106th Cong. 109 (1999).

A right to recover property is illusory if exercising

it costs more than the property is worth. Congress

wrote Section 2465(b)—a broad fee-shifting statute

set out in mandatory terms—so that an owner confident of their innocence would be no less confident

about recovering fees.

B.

“Prevailing Party” Is A Steep Standard,

And The Courts Below Got Congress’s

Policy Backwards

The phrase “prevailing party,” as imported below,

differs starkly. Buckhannon set the rule, and it is unforgiving: a “prevailing party” must obtain a “judicially sanctioned change in the legal relationship of

the parties,” meaning a judgment on the merits or a

court-ordered consent decree; by contrast, a defendant’s “voluntary change in conduct,” however complete, “lacks the necessary judicial imprimatur.” 532

U.S. at 604-05.

Lackey underlined just how demanding the rule is.

Because prevailing-party status requires “enduring

relief” once the matter reaches final resolution, a preliminary injunction later mooted cannot qualify.

Lackey, 604 U.S. at 201, 203-04, 207. The merits judgment must come “either in the trial court or on appeal,” Hanrahan v. Hampton, 446 U.S. 754, 757 (1980)

(emphasis added); even defeating an adverse judgment does not suffice if a remand leaves the merits

open, id. at 758-59. Requisite status cannot be attained short of an order that cannot be “reversed, dissolved, or otherwise undone by the final decision in

the same case.” Sole v. Wyner, 551 U.S. 74, 83 (2007).

18

Seldom will a wrongful forfeiture go all the way to

a final judgment. Once it has been caught with its

hand in the cookie jar, the government can voluntarily

dismiss and return the property before any court-ordered judgment can anoint the owner as the “prevailing party.” A claimant who has won at every turn can

nonetheless be doomed when it comes to establishing

“prevailing party” status.

The same today holds for Mr. Ross, for whom the

dismissal and the conceded, permanent return of his

property are enduring. On any understanding of “substance” as to a civil forfeiture dispute, Mr. Ross has

prevailed. But under the Second Circuit’s perverse

reading, a technicality leaves him shy of a fee award.

The lower courts of appeal either deride or accept

the risk. The Second Circuit waves away the danger

of government gamesmanship as “entirely speculative.” App. 47a. And the Eighth Circuit reads down

Section 2465(b) precisely to avoid “deter[ring] the government from forbearing litigation that would result

in forfeiture of a claimant’s property.” $32,820.56 in

United States Currency, 838 F.3d at 937. Such freewheeling policy analysis assumes the same “roving

authority” this Court forswore in Buckhannon. 532

U.S. at 610.

Suffice it to say: amici and Congress see things

differently. Congress passed CAFRA after reviewing

a robust record that told a sobering tale of demonstrated abuses by the government. See H.R. Rep. No.

106-192, at 8-11. The danger was, and remains, as far

from “speculative” as can be. See infra Part II.C. And

what the Eighth Circuit saw as a threat, the Second

Circuit once correctly discerned as the purpose of Section 2465(b): an “effort to deter government overreaching” by providing “reasonable attorney fees and

19

other litigation costs to claimants who substantially

prevail in a ‘civil proceeding to forfeit property.’”

Khan, 497 F.3d at 208 (emphasis added) (cleaned up).

And as the Second Circuit has further previously observed, civil forfeiture “creates incentives” that require “more-than-human judgment and restraint” to

resist. United States v. Funds Held in the Name or for

the Benefit of Wetterer, 210 F.3d 96, 110 (2d Cir. 2000).

Yet both courts twist the statute’s design by reading down Section 2465(b). The whole point of CAFRA

and its fee-shifting provision is to make the government think twice before it takes property. It is selfdefeating to narrow a statute enacted to prevent overreach on the theory that it may deter overreach. And

Ross’s reading does nothing to enfeeble the government. Civil forfeiture permits the United States to

take and keep a citizen’s property without charging

anyone with a crime, on a showing lighter than criminal law requires. See Culley, 601 U.S. at 395 (Gorsuch, J., concurring). Where there is a crime to

charge, Congress has supplied ample means to hold

property, each requiring that the government first

satisfy a court. See Fed. R. Crim. P. 41(c)-(d); 21

U.S.C. § 853(e)(1)(B), (f). A defendant charged with a

crime enjoys the protection of a judicial finding before

his property is restrained; the civil-forfeiture claimant, who may never be charged at all, does not. In

such conditions, the burden of an innocent owner’s

fees cannot be understood as one the government cannot, and should not, bear.

That three courts of appeals have converged on the

contrary reading is no reason to leave it undisturbed.

It properly falls to this Court to prevent the nullification of an act of Congress and to correct a misreading

of statutory prescription that has remained clear since

20

Congress enacted it 26 years ago. Pet. i, 12, 18-19, 2829.

C.

The Problem Has Not Gone Away, And

Ross Is The Ideal Vehicle To Fix It

Absent this Court’s intervention, the United

States can wrongfully seize property, hold it unless

and until a serious challenge emerges, and avoid fees

by dismissing without prejudice and returning the

property when a loss looms. The incentive is systemic,

and Justices of this Court have observed that “[s]trong

financial incentives” in forfeiture “appear to influence

how [governments] conduct them.” Culley, 601 U.S.

at 396 (Gorsuch, J., concurring).

Without impugning the motives of any particular

lawyers involved, it should suffice simply to catalogue

the facts recounted in the federal reports, which follow

the same worrisome pattern that CAFRA sought to

rectify.

1. In 2015, DEA agents seized over $15,000 from

Miladis Salgado, after a raid on her Miami home

founded an informant’s tip about her then-husband.

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

1293, 1297 (11th Cir. 2019); United States v.

$70,670.00 in U.S. Currency, No. 1:15-cv-23616-DPG

(S.D. Fla. 2015) (Dkt. 109-16, at 15, 38). Salgado

worked a second job and had passed background

checks to be employed at Miami International Airport.

Id. (Dkt. 109-16, at 7). The money was savings for her

daughter’s quinceañera. Id. (Dkt. 109-16 at 33-34,

67). The government held her cash for two years, before moving to dismiss without prejudice and returning the money, whereafter the district court ruled that

Salgado had not substantially prevailed absent a merits ruling. See id. Dkt. 111 at 9; 929 F.3d at 1296-99.

21

The Eleventh Circuit agreed, denying her any recovery. Id. at 1303-04.

2. The IRS seized $32,820 from Carole Hinders’s

cash-and-check-only Iowa restaurant on a structuring

theory, then moved to dismiss without prejudice after

narrowing its policy to funds tracing to an illegal

source. $32,820.56 in United States Currency, 838

F.3d at 932-33. There, too, the district court denied

fees. Id. at 934. The Eighth Circuit, whose rule tracks

the Second Circuit’s, affirmed, id. at 934-38, even as

the concurrence called the government’s handling

“improvident to such a degree that failure to note it is

unconscionable.” Id. at 938 (Erickson, D.J., concurring).

3. Police seized $8,040 from Cristal Starling’s

home when searching for her boyfriend’s drugs, which

turned up elsewhere. See United States v. Starling,

76 F.4th 92, 96 (2d Cir. 2023). Proceeding pro se, she

was told by a government official that she could not

challenge the forfeiture until her then-boyfriend’s

criminal case ended, leading the court to find default

even post-acquittal. Id. at 97, 102. After the Second

Circuit vacated that default, id. at 103, the government dismissed its case on the exact day the Second

Circuit’s mandate issued. United States v. $8,040 in

U.S. Currency, 2025 WL 2043417, at *2 (W.D.N.Y.

July 21, 2025). On remand, the district court refused

to award her fees. Id. at *8-10.

4. The IRS seized $446,651 from the Hirsch brothers’ Long Island distribution company on a structuring theory, after the business had operated spotlessly

for 25 years. In re $446,651.11, No. 2:14-mc-01288

(E.D.N.Y. 2014) (Dkt. 1, at 1-2). They negotiated for

two years and hired a forensic accountant to prove

their innocence. Id. (Dkt. 14-1 at 2). The government

22

never alleged wrongdoing, returned the money after a

year of litigation, and left them to absorb three years

of fees. Id. (Dkt. 14-1, at 2, 4 ¶10).

5. In Mr. Ross’s case, the government seized every

dollar in his attorney trust account, including more

than $1.2 million ostensibly unrelated to the alleged

fraud, based on a fungible-property theory that its

own policy manual directs against using for such accounts. App. 42a; Pet. 8; U.S. Dep’t of Just., Asset Forfeiture Policy Manual 2-13 (2023). After Mr. Ross

furnished proof and moved to lift the stay so he could

seek summary judgment, the government dismissed

without prejudice, returned the funds, and opposed

fees for want of a preclusive judgment. Pet. 8a-9a.

Mr. Ross warned of this exact sequence when he asked

the district court either to enter judgment in his favor

or to dismiss the action with prejudice. Id.; see App.

74a-75a.

This record presents an ideal vehicle. The government’s liability is conceded to the dollar, the return of

the property is complete and undisputed, no bad-faith

finding clouds the record, and the only question is the

meaning of the statutory phrase. A cleaner presentation of the first question seems unlikely to recur.

Mr. Ross differs from similarly-situated claimants

in the one way that proves amici’s point. He is a licensed attorney of 41 years who could retain counsel

and press his case. The single mother, the restaurateur, and the pro se claimant predictably cannot.

CAFRA’s fee provision, properly construed, could help

cure this disparity, exactly as Congress intended. Officers “have a financial incentive to target marginalized groups, such as low-income communities of color,

who are less likely to have the resources to challenge

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

23

(Sotomayor, J., dissenting); see id. at 406-08. The rule

adopted by the courts, unlike the rule enacted by Congress, tells the poorest claimants and their counsel

that they dare not fight, unless money is no object.

See supra II.A. Congress intended no such thing.

*

*

*

Congress knew of these dynamics and it enacted

CAFRA to address them. That statutory prescription

should not be set aside, and this Court would show

due regard for its coordinate Branch by now taking up

the important question of how CAFRA is properly

read. To wait any longer would both disregard Congress’s plain intent of and imperil countless Americans whose property and rights are otherwise at risk.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

JACOB C. BEACH

QUINN EMANUEL URQUHART

& SULLIVAN, LLP

300 West 6th St, Suite 2010

Austin, TX 78701

(737) 667-6153

jacobbeach@quinnemanuel.com

August 20, 2026

DEREK L. SHAFFER

Counsel of Record

CHRISTOPHER F. CASTALDI-MOLLER

QUINN EMANUEL URQUHART

& SULLIVAN, LLP

555 13th St NW, Suite 600

Washington, D.C. 20004

(202) 538-8000

derekshaffer@quinnemanuel.com

Counsel for Amici Curiae Senators

Mike Lee and Rand Paul