Civil forfeiture, the legal process the government uses to seize property from people who haven’t been convicted of a crime, is such a grave threat to liberty that Congress passed a law to strengthen protections for property owners. Yet, despite those protections, innocent people targeted by police still face enormous costs. That’s why the Goldwater Institute joined a brief to the U.S. Supreme Court urging the Justices to close a loophole that prevents people from collecting attorneys’ fees when the government dismisses its forfeiture case against them.
Property owners who face civil forfeiture—in many cases people who haven’t even been accused of committing a crime—are often forced to spend huge sums of money on litigation simply to get their property back. Recognizing the great potential for abuse, Congress enacted the Civil Asset Forfeiture Reform Act, or CAFRA, to strengthen protections for property owners. Among other things, CAFRA allows property owners who “substantially prevail” in civil forfeiture proceedings to recover their reasonable attorney fees from the government.
But government agencies have discovered a way around that protection: simply dismiss the forfeiture case before the property owner can obtain a judgment.
That is what happened to Richard Ross, an attorney who is now asking the Supreme Court to review his case. Ross maintained a trust account at a bank to hold money belonging to his clients. In 2021, one of his clients transferred company funds into that account. Unbeknownst to Ross, the client’s company had apparently engaged in wrongdoing and the government responded by seizing Ross’s entire account. But the seizure included much more than the money transferred by that client. It also contained money belonging to Ross’s other clients as well as personal funds from the sale of his home. In fact, the government acknowledged that more than $1.2 million appeared to be unrelated to the alleged fraud.
Nevertheless, Ross was forced to fight to recover the money the government seized. He spent more than a year challenging the forfeiture, racking up more than $100,000 in legal fees. When Ross informed the government that he intended to seek summary judgment—a court ruling to end the case without trial—the government, facing the prospect of defeat in court, moved to dismiss the case without prejudice and returned the $1.2 million in full.
But the dismissal created a significant problem: Because the government had dismissed the case before Ross could obtain a judgment in his favor, the government argued that he was not entitled to recover his attorneys’ fees under CAFRA.
The district court allowed the dismissal and denied Ross’s request for attorney fees. The Second Circuit affirmed. Ross has now asked the Supreme Court to review the case.
The Goldwater Institute joined the Rutherford Institute and attorneys at Covington & Burling LLP in filing an amicus brief supporting Ross’s petition. The brief argues that the Second Circuit’s interpretation of CAFRA undermines the protections Congress intended to provide to property owners.
CAFRA says that a property owner who “substantially prevails” in a civil forfeiture proceeding may recover reasonable attorney fees. The statute does not say that a property owner must obtain a final judgment on the merits before becoming eligible for fees. Congress could have limited fee awards to property owners who obtained a judgment on the merits. Instead, it adopted this broader language.
The statute’s structure reinforces this point. In another provision, Congress expressly referred to the “entry of a judgment” when describing when seized property must be returned. But when Congress addressed eligibility for attorneys’ fees, it chose the broader phrase “substantially prevail.” That difference in language matters. It shows that fee eligibility turns on the substance of the result achieved rather than the particular procedural form that result takes.
Ross’s case fits that description. The government seized his property, forced him to spend more than $100,000 defending his rights, and ultimately returned the property after he challenged the forfeiture. He achieved the fundamental objective of his defense—he got his property back.
Yet under the Second Circuit’s interpretation, the government can avoid paying his attorneys’ fees simply by abandoning the case before the court enters a final judgment.
If the government can avoid paying attorneys’ fees by dismissing a forfeiture action before the property owner obtains a final judgment, then the government has an easy way to evade the accountability Congress intended.
Property owners should not have to choose between surrendering their property and spending enormous sums to recover it. And the government should not be able to escape the consequences of an improper forfeiture simply by walking away from the case after forcing the property owner to spend months or years defending his rights.
The Supreme Court should grant Ross’s petition and ensure that CAFRA provides the meaningful protection Congress intended.
Click here to read the Goldwater Institute/Rutherford Institute brief to the Supreme Court.
Kamron Kompani is the Legal Programs Manager at the Goldwater Institute.
