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

No. 26-91

In the Supreme Court of the United States

________________________________________

RICHARD STUART ROSS,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

________________________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

________________________________________

BRIEF OF AMICI CURIAE GOLDWATER

INSTITUTE AND THE RUTHERFORD INSTITUTE

IN SUPPORT OF PETITIONER

________________________________________

Kamron Kompani

GOLDWATER INSTITUTE

500 E Coronado Road

Phoenix, AZ 85004

John W. Whitehead

William E. Winters

THE RUTHERFORD INSTITUTE

109 Deerwood Road

Charlottesville, VA 22911

Kevin F. King

Counsel of Record

Matthew J. Glover

MaKade C. Claypool

Sydney Engle

Noah C. Zimmermann

COVINGTON & BURLING LLP

One CityCenter

850 Tenth Street, NW

Washington, DC 20001

kking@cov.com

(202) 662-6000

Counsel for Amici Curiae

—i—

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................... ii

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

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

ARGUMENT ..............................................................5

I. Text and Precedent Confirm that a

Claimant “Substantially Prevails” When the

Government

Returns

the

Contested

Property. .................................................................5

A. By

Requiring

Claimants

Only

to

“Substantially Prevail,” Congress Made

Fees Available Under CAFRA When the

Government

Returns

the

Contested

Property. ...........................................................6

B. Under This Court’s Precedents, a Forfeiture

Claimant “Prevails” When the Government

Returns the Contested Property. ...................10

II. The Decision Below Invites Government

Overreach. ............................................................17

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

—ii—

TABLE OF AUTHORITIES

Cases

Buckhannon Board & Care Home, Inc. v. W.

Va. Dep’t of Health & Hum. Res.,

532 U.S. 598 (2001) .......................................... 3, 12

Christiansburg Garment Co. v. EEOC,

434 U.S. 412 (1978) ........................................ 14, 15

CRST Van Expedited, Inc. v. EEOC,

578 U.S. 419 (2016) ........................ 3, 11, 13, 14, 16

Culley v. Marshall,

601 U.S. 377 (2024) ........................................ 17, 20

Enbridge Energy LP v. Nessel,

146 S. Ct. 1074 (2026) ............................................ 9

Hardt v. Reliance Standard Life Ins. Co.,

560 U.S. 242 (2010) .............................................. 10

Holmes v. Securities Investor Protection

Corp.,

503 U.S. 258 (1992) ................................................ 8

Lackey v. Stinnie,

604 U.S. 192 (2025) .................................... 7, 11, 12

Leonard v. Texas,

580 U.S. 1178 (2017) ...................................... 17, 20

Reinbold v. Evers,

187 F.3d 348 (4th Cir. 1999) .................................. 7

—iii—

Ruckelshaus v. Sierra Club,

463 U.S. 680 (1983) .............................................. 10

Stokeling v. United States,

586 U.S. 73 (2019) .................................................. 8

Sweatt v. U.S. Navy,

683 F.2d 420 (D.C. Cir. 1982) ................................ 8

Tex. State Teachers Ass’n v. Garland Indep.

Sch. Dist.,

489 U.S. 782 (1989) .............................................. 12

Thompson v. Clark,

596 U.S. 36 (2022) ................................................ 15

United States v. $32,820.56,

838 F.3d 930 (8th Cir. 2016) ................................ 16

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

929 F.3d 1293 (11th Cir. 2019) ............................ 16

Statutes

28 U.S.C. § 2465 .................. 2, 3, 5, 6, 8, 10, 15, 16, 18

42 U.S.C.

§ 1988.................................................................... 11

§ 2000e-5..........................................................13-15

Other Authorities

Antonin Scalia & Bryan A. Garner, Reading

Law (2012) .......................................................... 3, 8

—iv—

Felix Frankfurter, Some Reflections on the

Reading of Statutes, 47 Colum. L. Rev. 527

(1947) ...................................................................... 3

H.R. Rep. No. 106-192 (1999).................................... 17

Henry J. Friendly, Mr. Justice Frankfurter

and the Reading of Statutes, in

Benchmarks (1967) ................................................ 9

Memorandum, United States v. Approximately

$16,500.00, No. 1:14-CV-00129 (M.D. Pa.

June 30, 2015), ECF No. 19 ................................. 20

Opposition Brief, United States v. One 2008

Toyota Rav 4 Sports Utility Vehicle, No.

2:09-cv-05672, ECF No. 28 (C.D. Cal. June

21, 2010) ............................................................... 20

Order, United States v. $13,275.21, No. 5:06CV-00171, ECF No. 84 (W.D. Tex. Jan. 31,

2007) ..................................................................... 20

Order, United States v. 2002 BMW, No. 4:05cv-01155, ECF No. 110 (S.D. Tex. Mar. 31,

2008) ..................................................................... 20

Prevailing Party, Black’s Law Dictionary

(rev. 4th ed. 1968) .......................................... 11, 12

Substantial, Merriam-Webster Collegiate

Dictionary (10th ed. 1993) ..................................... 6

Substantially, Oxford English Dictionary

(2d ed. 1989) ........................................................... 6

—v—

Substantially Justified, Black’s Law

Dictionary (7th ed. 1999) ....................................... 7

—1—

INTEREST OF AMICI CURIAE 1

The Goldwater Institute is a nonprofit,

nonpartisan public policy foundation headquartered

in Phoenix, Arizona. Established in 1988, Goldwater

is devoted to advancing the principles of limited

government, economic freedom, and individual

liberty.

Through its Scharf-Norton Center for

Constitutional Litigation, Goldwater litigates cases

and files amicus briefs to defend these constitutional

guarantees. Goldwater has represented parties and

appeared as amicus curiae in asset-forfeiture cases in

federal and state courts across the country.

The Rutherford Institute is a nonprofit civil

liberties

organization

headquartered

in

Charlottesville, Virginia. Founded in 1982 by its

President, John W. Whitehead, the Institute provides

legal assistance at no charge to individuals whose

constitutional rights have been threatened or violated

and educates the public about constitutional and

human rights issues affecting their freedoms. The

Rutherford Institute works tirelessly to resist tyranny

and threats to freedom by seeking to ensure that the

Government abides by the rule of law and is held

accountable when it infringes on the rights

guaranteed by the Constitution and laws of the

United States.

1 In accordance with Rule 37.2, all counsel of record received

timely notification of amici’s intent to file this brief. No party’s

counsel authored any part of this brief, and no one other than

amici, their members, and their counsel made any monetary

contribution intended to fund its preparation or submission.

—2—

SUMMARY OF ARGUMENT

Civil asset forfeiture poses a grave threat to

individual liberty: It permits the Government to seize

property from people who have not been convicted of

any crime, forcing them to incur substantial litigation

expenses simply to reclaim what is rightfully theirs.

Recognizing these dangers—and a growing trend of

overzealous forfeiture actions—Congress enacted the

Civil Asset Forfeiture Reform Act (CAFRA) to hold the

Government accountable and ensure that innocent

property owners who successfully recover their

property are made whole. CAFRA entitles property

owners (“claimants”) who “substantially prevai[l]” in

forfeiture actions to recover attorney fees. 28 U.S.C.

§ 2465(b)(1).

Congress’s choice of the modifier

“substantially”—along with contrasting language

elsewhere in CAFRA—makes plain that eligibility for

fees extends beyond claimants who obtain a merits

judgment in their favor.

Eligibility extends to

claimants—like Petitioner—who challenge the

Government’s forfeiture action and regain possession

of their property.

The Second Circuit’s decision undermines

CAFRA’s protections by permitting the Government

to evade them. The court held that CAFRA fees are

available only if the claimant satisfies the “prevailing

party” standard for plaintiffs, which requires a

favorable judicial order on the merits. Not only is that

standard drawn from a different statutory context, it

cannot be reconciled with CAFRA’s text, this Court’s

precedents, or Congress’s fee-shifting purpose.

First, the Second Circuit disregarded Congress’s

decision to award fees not only to claimants who

“prevai[l],” but to the broader set of claimants who

—3—

“substantially prevai[l].”

28 U.S.C. § 2465(b)(1)

(emphasis added). As a matter of grammar and

precedent, that qualifier confirms that fee eligibility

turns on the claimant’s meaningful success in

recovering property, not on whether the claimant

secured a favorable judgment. Consistent with that

ordinary understanding, lower courts have long

interpreted “substantially prevail” in similar statutes

to encompass parties who obtained their desired relief

without a court-ordered judgment. When Congress

adopts language with a settled judicial meaning, it

presumably “brings the old soil with it.” Felix

Frankfurter, Some Reflections on the Reading of

Statutes, 47 Colum. L. Rev. 527, 537 (1947); see also

Antonin Scalia & Bryan A. Garner, Reading Law 73

(2012) (same).

Second, the decision below erroneously imports

this Court’s prevailing-party standards for parties

who prosecute affirmative claims, rather than

applying the standards that govern parties who

defend against the Government’s claims. While a

plaintiff must obtain final relief on the merits to

prevail, see Buckhannon Board & Care Home, Inc. v.

W. Va. Dep’t of Health & Hum. Res., 532 U.S. 598, 605

(2001), the Court has rejected that standard with

respect to defendants, see CRST Van Expedited, Inc.

v. EEOC, 578 U.S. 419, 422 (2016). Instead, a

defendant need only “prevent” the plaintiff or

prosecutor from obtaining affirmative relief. Id. at

431. Applying that framework, claimants prevail

under CAFRA when they achieve their “primary

objective”: the return of their property. Id. at 431.

Accordingly, a claimant who recovers property after

mounting a defense is entitled to fees, especially when

—4—

that defense leads the Government to dismiss its

forfeiture claim.

Third, the decision below produces untenable

practical consequences.

By insulating the

Government from fee liability whenever it voluntarily

abandons a forfeiture action, the Second Circuit’s rule

hollows out CAFRA’s deterrent force. The Second

Circuit’s rule invites the Government to pursue

speculative or weak forfeiture actions because it can

avoid paying fees by dismissing the action just before

suffering defeat. That result shifts the cost of the

improper forfeiture onto the individuals Congress

sought to protect under CAFRA.

This case illustrates the problem: After incurring

more than $100,000 to defend against a concededly

unlawful forfeiture action, Richard Ross threatened to

move for summary judgment. See Pet.App.77a; Gov’t

C.A. Br. 4; D.Ct. Dkt. 61-2, at 62, 65. The Government

then dismissed its case and subsequently contended

that the eleventh-hour dismissal foreclosed any

entitlement to CAFRA fees. Mr. Ross is not alone. As

numerous examples illustrate, the Government

frequently pursues forfeiture until doing so is no

longer tenable, moving to voluntarily dismiss cases at

a late stage.

A faithful application of CAFRA’s text and this

Court’s precedents would have entitled Mr. Ross and

other claimants like him to fees for their successful

efforts to reclaim their property—they “substantially

prevail[ed]” against the Government’s attempt to

forfeit it. But the Second Circuit has turned CAFRA’s

protection into a paper promise. Its decision is not an

isolated error. Other circuits have embraced the same

mistaken approach, further undermining Congress’s

—5—

effort to protect property owners from unjustified

forfeiture. This Court should grant the petition.

ARGUMENT

I. Text and Precedent Confirm that a Claimant

“Substantially

Prevails”

When

the

Government

Returns

the

Contested

Property.

A claimant “substantially prevails” under CAFRA

when the Government voluntarily dismisses its

forfeiture action and returns the claimant’s property

after the claimant has presented a defense. The

Second Circuit reached the opposite conclusion by

misreading this Court’s precedent and CAFRA’s text.

First, the court failed to give weight to Congress’s

decision to award fees not only to claimants who

“prevai[l],” but also to those who “substantially

prevai[l].” 28 U.S.C. § 2465(b)(1) (emphasis added).

That modifier reflects Congress’s intentional choice to

condition CAFRA fees on the claimant’s practical

success in avoiding forfeiture, not the procedural

mechanism by which that success occurs. Second, the

Second Circuit disregarded this Court’s cases

establishing different standards for prevailing

plaintiffs and prevailing defendants.

Forfeiture

claimants are functionally defendants rather than

plaintiffs; the Government seizes property and files

suit against the seized property, at which point the

claimant mounts a defense. And the Government is

analogous to a plaintiff; it controls whether to proceed

with its claim to the forfeited property. Just as a

defendant in a Title VII suit prevails when a plaintiff

gives up his suit, so too can a claimant prevail when

the Government stops litigating a forfeiture action.

—6—

A. By

Requiring

Claimants

Only

to

“Substantially Prevail,” Congress Made

Fees Available Under CAFRA When the

Government Returns the Contested

Property.

Congress did not rely solely on the ordinary

meaning of “prevail” when establishing whether a

forfeiture claimant is entitled to a fee award. Rather,

it specified that claimants need only “substantially

prevai[l].” 28 U.S.C. § 2465(b)(1). This qualifier

confirms that fee-eligibility turns on the substance of

the claimant’s success—that is, whether the claimant

ultimately succeeded in recovering his property—and

not whether he achieved that goal in a particular

procedural form. When the Government voluntarily

dismisses a forfeiture action and returns the

claimant’s property, the claimant has “substantially

prevail[ed]” under CAFRA and is entitled to fees. Mr.

Ross is therefore entitled to fees.

1. The Second Circuit’s conclusion that a claimant

must obtain a judgment in his favor to be eligible for

CAFRA fees ignores the plain language and structure

of the statute. Pet.App.26a–38a.

To begin, as a matter of grammar, a litigant who

“substantially prevails” need not have satisfied every

requirement associated with “prevailing.” The word

“substantially” means “consisting of or relating to

substance” or “largely but not wholly that which is

specified.” Substantial, Merriam-Webster Collegiate

Dictionary 1174 (10th ed. 1993) (emphasis added); see

also Substantially, Oxford English Dictionary (2d ed.

1989) (“In all essential characters or features; in

regard to everything material; in essentials; to all

intents and purposes; in the main”); Substantially

—7—

Justified, Black’s Law Dictionary (7th ed. 1999) (“Of

conduct, a position, etc.,” requiring only a “reasonable

basis in law and in fact” (emphasis added)). By

authorizing fees whenever a claimant “substantially

prevails,” CAFRA directs courts to focus on the

substance of the result achieved, and confirms that fee

eligibility turns on meaningful success, not complete

success—however that concept is defined. Thus, even

if a claimant needed a judgment on the merits to

prevail in the fullest sense, Congress nonetheless

authorized fees for claimants “who have enjoyed some

success but have not prevailed in a judgment on the

merits.” Lackey v. Stinnie, 604 U.S. 192, 205 (2025).

In the context of CAFRA, “substantially” means that

courts should therefore look to whether a claimant

obtained the “substance” of his objective in the

forfeiture action—to recover his property.

Widespread, historical use and interpretation of

the phrase “substantially prevails” confirms this is

the correct interpretation of CAFRA. When Congress

enacted CAFRA in 2000, courts consistently

interpreted “substantially prevailed” in the feeshifting provisions of the Freedom of Information Act

and the Privacy Act to focus on the substance of the

litigant’s success over its form. As these courts

explained, plaintiffs “substantially prevailed” under

these statutes whenever they obtained the relief they

sought—whether or not a court order compelled that

relief. See Reinbold v. Evers, 187 F.3d 348, 362–63

(4th Cir. 1999) (collecting cases). Thus, a plaintiff

could recover fees even “where the government, after

commencement of the litigation, has acted to moot the

action by supplying the material sought.” Sweatt v.

U.S. Navy, 683 F.2d 420, 423 (D.C. Cir. 1982) (per

—8—

curiam) (cleaned up).

Against that backdrop,

Congress was “presumably” aware of “the

interpretation federal courts had given the words

earlier Congresses had used,” and thus adopted the

same interpretation that courts had already given

that phrase. Holmes v. Securities Investor Protection

Corporation, 503 U.S. 258, 268 (1992); see also

Stokeling v. United States, 586 U.S. 73, 80 (2019) (a

statutory term “obviously transplanted from another

legal source … brings the old soil with it” (citation

omitted)). The Court may thus “fairly credit” the

unanimous judicial understanding of “substantially

prevails” in understanding CAFRA’s meaning. See

Holmes, 503 U.S. at 268; Scalia & Garner, supra, at

73.

CAFRA’s structure confirms this interpretation of

the fee-shifting provision. In subsection (a) of the

statute, Congress required the return of seized

property if a claimant received “entry of a judgment”

in his favor and thereby prevailed.

28 U.S.C.

§ 2465(a)(1). And in subsection (b)(1)(B), CAFRA

refers to “post-judgment” interest.

But when

Congress described eligibility for fees in subsection

(b)(1)(A), it used broader language: a claimant need

only “substantially prevai[l].” Id. § 2465(b).2 Had

Congress required a “judgment” to award fees, it

would have used that term, as it did in subsection (a)

and in (b)(1)(B), or it could have simply referred back

2 A different provision governs the availability of fees when a

claimant prevails only in part. In that scenario, Section

2465(b)(2)(D) provides that fees will be reduced for partial

success. The question presented in this case concerns only the

antecedent, threshold question whether Petitioner is eligible for

recovery of his fees.

—9—

to subsection (a). But it did not. That “difference in

language … convey[s] a difference in meaning.”

Enbridge Energy LP v. Nessel, 146 S. Ct. 1074, 1084

(2026) (citation omitted); see also Henry J. Friendly,

Mr. Justice Frankfurter and the Reading of Statutes,

in Benchmarks 224 (1967) (“[W]hen Congress employs

the same word, it normally means the same thing,

when it employs different words, it usually means

different things”). CAFRA’s structure thus confirms

that fee eligibility does not turn on the claimant

obtaining judicially sanctioned relief.

The Second Circuit’s reading also cannot be

squared with Section 2465(b)(2)(C). That provision

governs what happens when “there are multiple

claims to the same property.” In that case, if the

Government “promptly” returns the claimant’s

interest and “does not cause the claimant to incur

additional, reasonable costs or fees,” id., the

Government is not liable for fees. But if a judgment

is required for fees, there would be no need for this

provision because the claimant would not be entitled

to fees in any event.

2. Mr. Ross satisfies this commonsense standard.

After Mr. Ross was the victim of fraud, the

Government seized the entirety of Mr. Ross’s Interest

on Trust Account (IOTA), including more than $1.2

million it acknowledged appeared to be “unrelated” to

the fraud. C.A. App. 25–26. Nearly a year after the

seizure, and after incurring over $100,000 in legal fees

defending against the wrongful forfeiture, Mr. Ross

informed the Government that he would move for

summary judgment. D.Ct. Dkt. 61-2, at 62, 65. The

Government then moved to dismiss its case without

prejudice, in effect “conceding” that the innocent

—10—

funds were “not forfeitable,” and returned Mr. Ross’s

$1.2 million in full. Pet.App.77a; Gov’t C.A. Br. 4.

Mr. Ross thus accomplished his goal of obtaining

possession of his property after mounting a defense.

Accordingly, he substantially prevailed and was

entitled to fees under CAFRA.

See 28 U.S.C.

§ 2465(b)(1).

B. Under This Court’s Precedents, a

Forfeiture Claimant “Prevails” When the

Government Returns the Contested

Property.

As explained, the Second Circuit’s approach

cannot be squared with CAFRA’s text and structure.

Rather than give appropriate meaning to the term

“substantially prevails,” the court of appeals applied

the “prevailing party” standard for plaintiffs.

Pet.App.28a–34a. The court did so despite this

Court’s clear admonishment that “prevailing party” is

a term of art that should not be imported into a feeshifting statute “from which it is conspicuously

absent,” because doing so “more closely resembles

inventing a statute rather than interpreting one.”

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

242, 251–52 (2010) (cleaned up). Had Congress

desired to impose the requirements associated with

that plaintiff-side “prevailing party” doctrine, it could

have done so. See Ruckelshaus v. Sierra Club, 463

U.S. 680, 684 n.3 (1983) (collecting examples). The

Second Circuit’s failure to adhere to this Court’s

instruction was error.

In any event, insofar as the “prevailing party” and

related cases have bearing here, they underscore the

Second Circuit’s error.

As the Court recently

reaffirmed, “different bod[ies] of caselaw” govern

—11—

whether plaintiffs and defendants qualify as

prevailing parties “for the purposes of … fee-shifting

statutes.” Lackey, 604 U.S. at 204 n.*. That

distinction reflects a basic feature of litigation: It is

“[c]ommon sense” that “[p]laintiffs and defendants

come to court with different objectives,” and thus

different definitions of what it means to prevail.

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

a material alteration in the legal relationship between

the parties,” a defendant seeks only “to prevent” such

a change and maintain the prelitigation status quo.

Id. Measured against the standard that the Court has

developed for defendants, CAFRA claimants prevail

when the Government dismisses its action and

returns the claimant’s property.

CAFRA claimants are aligned with traditional

defendants.

A plaintiff prevails by obtaining

“enduring judicial relief on the merits that materially

alters the legal relationship between the parties.”

Lackey, 604 U.S. at 203–04 (discussing 42 U.S.C.

§ 1988(b)). That requirement follows naturally from

the plaintiff’s objective: A plaintiff comes to court to

“ma[ke] a claim,” and thus prevails only when it has

“successfully maintained it.” Id. at 200 (quoting

Prevailing Party, Black’s Law Dictionary 1352 (rev.

4th ed. 1968)). A defendant, on the other hand, comes

to court to defend against a claim. In the forfeiture

context, it is the claimant who defends against the

Government’s assertion of a right to the forfeited

property. And much like a plaintiff, it is the

Government who can control the litigation by simply

dismissing when the going gets tough.

For more than four decades, this Court’s decisions

on plaintiff prevailing-party status have reflected that

—12—

commonsense understanding of the difference

between litigating in an offensive and defensive

posture.

In Texas State Teachers Association v. Garland

Independent School District, the Court explained that

“[r]espect for ordinary language requires that a

plaintiff receive at least some relief on the merits of

his claim before he can be said to prevail.” 489 U.S.

782, 792 (1989) (quotation marks omitted). And

building on that principle, Buckhannon held that a

plaintiff “prevail[s]” only by obtaining a “judicially

sanctioned change in the legal relationship of the

parties.”

532 U.S. at 605.

Accordingly, in

Buckhannon, the plaintiff had not prevailed in its

lawsuit against the Government simply because the

Government voluntarily eliminated the challenged

statute and regulation; the plaintiff needed a

“judicially sanctioned change in the legal relationship

of the parties” to secure fees. Id. at 602, 605.

Most recently in Lackey, the Court clarified that

not every “judicially sanctioned change” is enough. A

plaintiff

prevails

only

after

securing

“enduring … relief on the merits.” 604 U.S. at 203–04

(quoting Buckhannon, 532 U.S. at 605). Only then

has a plaintiff “successfully prosecute[d] the action.”

Id. at 200 (quoting Prevailing Party, Black’s Law

Dictionary, supra, at 1352).

But the story is quite different for defendants: The

Court has not required them to obtain enduring,

judicially sanctioned relief to be a prevailing party. In

CRST Van, the Court confirmed that the rules for

those prosecuting claims differ from those hauled into

court to defend against claims. There, the Court

considered whether a defendant qualified as a

—13—

“prevailing party” under Title VII’s fee-shifting

provision even though the district court had dismissed

the plaintiff’s claims on non-merits grounds. See 578

U.S. at 431; 42 U.S.C. § 2000e-5(k). The Court

acknowledged that Buckhannon and Texas State

Teachers Association established the standard for

determining when “a plaintiff” prevails, but noted

that it “ha[d] not” previously “set forth in detail how

courts should determine whether a defendant has

prevailed.” 578 U.S. at 422. The Court declined to

extend the standard applied in Buckhannon or Texas

State Teachers Association to defendants.

Instead, the Court looked to “common sense” and

held that a defendant had prevailed if it “fulfilled its

primary objective” by “rebuff[ing]” the plaintiff’s

challenge, regardless of “the precise reason for the

court’s decision.” Id. at 423–31. “Neither the text of

the

fee-shifting

statute

nor

the

policy … underpin[ning] it” required the defendant to

obtain a final judgment on the merits. Id. at 434; 42

U.S.C. § 2000e-5(k) (“[T]he court, in its discretion,

may allow the prevailing party … a reasonable

attorney’s fee (including expert fees) as part of the

costs, and the Commission and the United States

shall be liable for costs the same as a private person.”).

That “congressional policy”—which permits courts to

exercise their “discretion” under Title VII to award

fees to “prevailing defendants” only when “the

plaintiff’s ‘claim was frivolous, unreasonable, or

groundless,’” Christiansburg Garment Co. v. EEOC,

434 U.S. 412, 422 (1978)—did not “depen[d] on the

distinction between merits based and non-meritsbased frivolity.” 578 U.S. at 432. Indeed, “Congress

could not have intended to bar defendants from

—14—

obtaining attorney’s fees” when, as in CRST Van, “the

litigation was resolved in their favor.” Id. at 434.

The reasoning of CRST Van suggests that a

defendant can “rebuf[f]” a plaintiff’s challenge in

many ways, including but not limited to a judicial

decision. Id. at 431. Because a defendant’s objective

is to defeat the plaintiff’s claim, success must turn on

whether the defendant accomplishes that goal, not on

the mechanism by which relief to the plaintiff was

denied. See id. at 431. Accordingly, when “the

litigation [is] resolved” without judicial relief for the

plaintiff, the result is “in [the defendant’s] favor” and

sufficient to prevail. See id. at 434.

CRST Van’s standard for prevailing defendants

guides this case. If a Title VII defendant could prevail

without judicial relief under the logic of CRST Van,

then surely a forfeiture claimant can as well.3 If

anything, CAFRA’s fee-shifting provision is more

protective of claimants than Title VII’s is protective of

defendants. Title VII permits courts to award fees to

a “prevailing party” on a discretionary basis (only

when the plaintiff’s claim is “frivolous, unreasonable,

or groundless”). Christiansburg, 434 U.S. at 422; 42

True, CRST Van involved judicially sanctioned relief (a

dismissal on procedural grounds). Id. at 426–27. But the Court

held only that such relief was sufficient to render the defendant

a prevailing party. See id. at 432. Nothing in the Court’s opinion

suggests that judicially sanctioned relief is necessary for a

defendant to prevail. See generally id. at 422–34. To the

contrary, extending Buckhannon to require defendants, not just

plaintiffs, to obtain judicially sanctioned relief would contravene

CRST Van’s central clarification: that plaintiffs and defendants

prevail in different ways and thus that Buckhannon did not “set

forth” the standard appropriate for defendants. Id. at 422, 431.

3

—15—

U.S.C. § 2000e-5(k). But CAFRA mandates fees

whenever a claimant “substantially prevails.” 28

U.S.C. § 2465(b)(1). Nothing in CAFRA’s text justifies

imposing an additional requirement that CRST Van

rejected either expressly (judicial relief on the merits)

or impliedly (judicial relief at all) for Title VII.

This Court’s decision in Thompson v. Clark, 596

U.S. 36 (2022), reinforces the principle that a

defendant (like a forfeiture claimant) prevails when

the Government-plaintiff fails to secure the relief it

seeks, even without a judicial decision affirmatively

vindicating the defendant’s position. In Thompson,

the Court again considered what it means for a

defendant to obtain a favorable result, this time in the

context of the “favorable termination” requirement for

a malicious prosecution claim. See id. at 39. Shortly

after the defendant was charged and detained in state

criminal proceedings, the prosecutor dismissed the

charges—and the trial judge dismissed the case—

without explanation. Id. at 40. The defendant then

sued the arresting police officers for malicious

prosecution. Id. The Court held that the defendant

satisfied the claim’s “favorable termination”

requirement because the prosecution “ended without

conviction.” Id. at 49. The defendant did not need to

show that the “prosecution ended with some

affirmative indication of innocence” from the

prosecutor or the court—the criminal analogue of a

judgment on the merits for the defendant. Id.

Under the principles recognized in these cases, a

forfeiture

claimant

prevails—and

no

doubt

“substantially prevails”—when the Government

voluntarily dismisses the action and returns the

property it sought to seize. In that circumstance, the

—16—

Government fails to obtain the judicial relief it sought,

the claimant has achieved his “primary objective” of

recovering his property, and the parties are restored

to the status quo ante. CRST Van, 578 U.S. at 422,

431, 434. That “resolve[s]” the litigation in the

claimant’s “favor” and entitles him to fees under

CAFRA. Id. at 434; see also 28 U.S.C. § 2465(b)(1).

The Second Circuit nevertheless collapsed CRST

Van’s distinction between the standards governing

prevailing plaintiffs and prevailing defendants. It

treated Buckhannon’s requirement of judicially

sanctioned relief for plaintiffs as a universal

prerequisite.

Pet.App.29a–34a.

That approach

conflicts with CRST Van’s express recognition that

defendants require a different inquiry, one focused on

the defendant’s practical success in maintaining the

pre-litigation status quo.

The Court should grant the petition for a writ of

certiorari to reject the Second Circuit’s conflation of

these distinct standards. Because other circuit courts

have committed the same error, this Court’s

intervention is critical to preserving the scope and

purpose of CAFRA. See, e.g., United States v.

$70,670.00 in U.S. Currency, 929 F.3d 1293, 1303–04

(11th Cir. 2019); United States v. $32,820.56, 838 F.3d

930, 935–37 (8th Cir. 2016).

*

*

*

Applying the logic of this Court’s decisions, a

forfeiture claimant “substantially prevails” when,

following his defense, the Government voluntarily

dismisses the forfeiture action and returns the

claimant’s property.

—17—

II. The Decision Below Invites Government

Overreach.

The question presented in this case warrants the

Court’s immediate attention: Like decisions from

other courts, the decision below misinterprets

CAFRA’s fee recovery provision, forcing property

owners who defeat baseless forfeiture suits to bear

litigation costs that Congress intended the

Government to pay.

Congress enacted CAFRA “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.

106-192, at 11 (1999).

“[S]trong financial

incentives … appear

to

influence

how”

the

Government pursues forfeiture. Culley v. Marshall,

601 U.S. 377, 396 (2024) (Gorsuch, J., concurring).

Overzealous pursuit of civil asset forfeiture had forced

(and continues to force) innocent people “to suffer in

their daily lives while they litigate for the return of a

critical item of property, such as a car or a home.”

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

(Thomas, J., statement respecting the denial of

certiorari). Indeed, the Government often voluntarily

dismisses forfeiture cases soon after a claimant

simply retains counsel.4

4 See, e.g., Martin v. FBI, No. 1:23-cv-00618 (D.D.C. filed Mar. 7,

2023) (notices of appearance by claimant’s attorneys on March 7,

2023 and May 1, 2023; motion to dismiss filed June 8, 2023);

Kazazi v. CBP, No. 1:18-mc-00051 (N.D. Ohio filed May 31, 2018)

(order granting appearance pro hac vice by claimant’s attorneys

(cont.)

—18—

Given the significant financial burden of litigating,

CAFRA’s fee-shifting provision created a critical

incentive for wronged individuals to defend their

innocent property. The threat of fees also helps deter

the Government’s overzealous practices and reduce

wrongful forfeitures.

The Second Circuit’s rule gives the Government a

way around that structure and insulates the

Government from having to pay fees when its

forfeiture case is weakest. By design, CAFRA awards

fees when the Government’s case fails, such that the

claimant “substantially prevail[ed].”

28 U.S.C.

§ 2465(b)(1).

But under the rule below, if the

Government dismisses even a meritless case, the

claimant is ineligible for attorney fees. Perversely,

the further the forfeiture case proceeds (on the

strength of the Government’s case), the more likely

attorney fees become. That scheme inverts CAFRA’s

incentive structure. As a result, the rule below

on June 1, 2018; motion to dismiss filed on Nov. 16, 2018);

Serrano v. CBP, No. 2:17-cv-00048 (W.D. Tex. filed Sept. 6, 2017)

(order granting appearance pro hac vice by claimant’s attorneys

on Oct. 4, 2017; motion to dismiss filed on Dec. 13, 2017); United

States of America v. $107,702.66, No. 7:14-cv-00295 (E.D.N.C.

filed Dec. 23, 2014) (notice of appearance by claimant’s attorneys

filed Apr. 30, 2015; Government’s motion to dismiss filed May 13,

2015); United States v. $32,820.56, No. 5:13-cv-04102 (N.D. Iowa

filed Oct. 24, 2013) (notice of appearance by claimant’s attorneys

filed Oct. 13, 2014; Government’s motion to dismiss filed Dec. 13,

2014); United States v. $33,244.86, No. 2:13-cv-13990 (E.D. Mich.

filed Sept. 18, 2013) (notice of appearance by claimant’s

attorneys filed Nov. 4, 2013; Government’s motion to dismiss

filed Nov. 15, 2013); United States v. $35,651.11, No. 4:13-cv13118 (E.D. Mich. filed July 19, 2013) (notice of appearance by

claimant’s attorneys filed Sept. 20, 2013; Government’s motion

to dismiss filed Nov. 15, 2013).

—19—

encourages the Government to pursue civil forfeiture

even in marginal cases, as the Government can simply

abandon its pursuit before formally losing—without

consequence.

To illustrate, consider two forfeiture cases, both

equally meritless. In one, an individual sues to

reclaim his property and litigates to a final judgment

and obtains the return of his property. In the second,

a property owner sues, litigates until just before a

final judgment, and the Government dismisses its

case without prejudice and returns the property. Both

property owners faced unfounded forfeiture actions,

both incurred significant litigation costs, and both

secured the return of their property. Under the

Second Circuit’s rule, only one is eligible to recover his

fees, while the other claimant must bear costs

Congress specifically assigned to the Government—

costs that accrued only because the Government was

empowered to seize property before having to evaluate

the strength of its case.

Mr. Ross’s case illustrates this dynamic in

practice. The Government’s forfeiture case against

Mr. Ross’s funds was weak from the outset, as the

Government’s notice of claim itself admitted that

more than $1.2 million in Mr. Ross’s IOTA were

“unrelated” to the alleged fraud. C.A. App. 25–26.

Nevertheless, the Government seized those funds.

Mr. Ross immediately explained (with proof) that the

funds were innocent. But it was not until Mr. Ross

stated his intention to move for summary judgment—

more than a year after the seizure and after incurring

over $100,000 in attorney fees, D.Ct. Dkt. 61-2, at 62,

65—that the Government moved to dismiss the case

without prejudice. Following its “conce[ssion]” that

—20—

the innocent funds were “not forfeitable,” the

Government returned the $1.2 million in full.

Pet.App.77a; Gov’t C.A. Br. 4. Under CAFRA, the

next step would have been to award Ross the fees he

had incurred defending his property until he

“substantially prevailed.” But, more than three years

later, he remains out of pocket for those fees, which

have continued to accumulate in litigating their

recovery.

Mr. Ross is one of many forfeiture claimants left

worse off after successfully defending against the

Government’s attempt to seize their property. “[C]ivil

forfeiture has in recent decades become widespread

and highly profitable.” Leonard, 580 U.S. at 1180

(Thomas, J., statement respecting the denial of

certiorari); see Culley, 601 U.S. at 396 (Gorsuch, J.,

concurring). Though Congress designed CAFRA as a

backstop to prevent bankrupting successful forfeiture

claimants, the Government frequently moves for

belated voluntary dismissals, thereby avoiding fee

awards under CAFRA.5 Without the Court’s review,

that perverse practice will only continue to

proliferate.

5 See, e.g., Order 6–7, United States v. 2002 BMW, No. 4:05-cv-

01155, ECF No. 110 (S.D. Tex. Mar. 31, 2008); Order 5–7, United

States v. $13,275.21, No. 5:06-CV-00171, ECF No. 84 (W.D. Tex.

Jan. 31, 2007); Opposition Brief 12, United States v. One 2008

Toyota Rav 4 Sports Utility Vehicle, No. 2:09-cv-05672 (C.D. Cal.

June 21, 2010), ECF No. 28; Memorandum 14, United States v.

Approximately $16,500.00, No. 1:14-CV-00129, ECF No. 19 (M.D.

Pa. June 30, 2015); see also supra n.4.

—21—

CONCLUSION

The Court should grant the petition.

Respectfully submitted,

Kamron Kompani

GOLDWATER INSTITUTE

500 E Coronado Road

Phoenix, AZ 85004

John W. Whitehead

William E. Winters

THE RUTHERFORD INSTITUTE

109 Deerwood Road

Charlottesville, VA 22911

August 20, 2026

Kevin F. King

Counsel of Record

Matthew J. Glover

MaKade C. Claypool

Sydney Engle

Noah C. Zimmermann

COVINGTON & BURLING LLP

One CityCenter

850 Tenth Street, NW

Washington, DC 20001

kking@cov.com

(202) 662-6000

Counsel for Amici Curiae