Civil forfeiture is a notorious policy that enables the government to seize people’s cars, homes, cash, and other property simply by alleging—but not proving—that it was involved in some criminal activity. Despite rock-bottom standards for seizing property and heavily government-favoring legal procedures, not all forfeiture cases go smoothly for sticky-fingered police and prosecutors. As a result, the government sometimes chooses to voluntarily dismiss forfeiture cases and return the property at issue to its rightful owner. Among the few bright spots in federal forfeiture law is a provision that enables property owners who have “substantially prevailed” in the proceeding to recover attorneys fees and other litigation costs. But DOJ lawyers have become increasingly adept at frustrating the remedial intent of that provision by persuading judges to dismiss forfeiture cases without prejudice—meaning the case could, purely hypothetically, be filed again—thereby stripping the owner of prevailing-party status and depriving them of attorneys fees to which they would otherwise be statutorily entitled.

In this case, the government seized the entire amount of Richard Ross’s $4.1 million “Interest on Trust Account,” despite acknowledging that nearly a third of that money was unrelated to the fraud investigation that prompted the forfeiture. After more than a year of litigation, Ross notified the government of his intention to file a motion for summary judgment, to which the government responded by hurriedly moving to “voluntarily” dismiss its own case (without prejudice) in advance of the filing. That motion was granted over Ross’s objection to the “without prejudice” characterization, which would provide a basis for the government refusing to pay his attorneys fees of more than $100,000.

Cato’s brief demonstrates that this kind of responsibility-shirking litigation gamesmanship in federal forfeiture cases is not unusual, citing case after case in which DOJ lawyers did the same thing to other property owners. And the amount of money at stake is staggering, with U.S. Attorneys’ Offices in New York alone seizing nearly two-and-a-half billion dollars through civil forfeiture in 2023. As Cato’s brief explains, government litigants respond to incentives just like anyone else, and forcing them to at least partially internalize the costs of improvident seizures by paying attorneys fees when they dismiss their own case before judgment is a good way to discourage the government from pursuing marginal (or entirely baseless) forfeiture actions.