Amicus Brief: Ross v. United States

Richard Ross was victimized by a fraud scheme that exploited his bank account. Although Ross was a victim of the fraud, and the feds had significant evidence of that, the government sought to take $1.2 million from the account. After a year of fighting, the government moved to dismiss the case and returned the property. 

The Civil Asset Forfeiture Reform Act (CAFRA) was passed in 2000 to rectify some inequities in the system, including "to give owners innocent of any wrongdoing the means to make themselves whole after wrongful government seizures." The Act gives innocent owners fee-shifting if the owner "substantially prevails" in a case recovering property. Because of lower court disagreement about the meaning of "substantially prevails," whether a claimant recovers fees now depends on which judge draws the case. And the government has long avoided mandatory fee-shifting by dismissing an action it is about to lose and arguing that the claimant did not "substantially prevail," which is what happened to Ross. 

Ross lost his challenge at the lower court, exacerbating a longstanding circuit split on the meaning of "substantially prevails." Now on petition for Supreme Court review, the Manhattan Institute has been joined by the Kansas Justice Institute on an amicus brief in support. We ask the Court to clarify "substantially prevails" in light of how the term is actually used. We examine the meaning of the phrase in common usage and in other statutes. Most uses imply that "substantially prevails" means something more like "mostly but not totally" as in statutes that say "prevails or substantially prevails"— i.e. "win or mostly win." A phrase like "he substantially grew this year" means "a lot," but a phrase like "I substantially cleaned the kitchen" means "mostly." The Court should clarify the meaning of the statute and protect the property rights of innocent owners who become entangled in difficult legal fights.

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

Trevor Burrus is a legal policy fellow at the Manhattan Institute.