Amicus Brief: Ross v. United States

Attorney Richard Ross had a client who sent his company’s money into Ross’s IOLTA (lawyer trust) account. The client’s company apparently committed some wrongdoing, so the government came in and seized Ross’s entire IOLTA account, treating all funds as interchangeable, in violation of DOJ’s asset forfeiture policy manual. Post-forfeiture, Ross told the feds that they had erroneously seized his own personal funds from the sale of his home as well as the funds of several clients, not just money that had a connection to the alleged criminal scheme, but the government refused to return any money. Ross retained lawyers who spent a year racking up $100k in fees to get the case to a place where they intended to move for summary judgment. Seeing its losing hand, the government moved to dismiss its case. Ross opposed that, citing evidence that what the government was doing was intentionally dropping the case to prevent him from recovering his attorneys’ fees under the Civil Asset Forfeiture Act (CAFRA). The district court allowed the voluntarily dismissal and then denied Ross attorneys’ fees because there was no final judgment in his favor.

Now on appeal to the Second Circuit, the Manhattan Institute joined the Cato and Goldwater Institutes on an amicus brief arguing that the government has a recurring practice of seeking last-minute and unconditional dismissals in CAFRA cases, thereby preventing wronged claimants from recovering fees. More specifically here, (1) the government frustrated CAFRA’s plain meaning and Congress’s clear intent to provide attorney fees; (2) cases from around the country show that the government’s approach in this case is not anomalous; and (3) the government is the most frequent and sophisticated forfeiture litigant in the federal courts, and it responds to incentives.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

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