The Biden DOJ Tried to Seize $1.2 Million From an Innocent Attorney — Then Tried to Skip Out on the Legal Bill

At the ACLJ, we've spent decades using the Freedom of Information Act (FOIA) to force the federal government to come clean when it stonewalls the American people.

We’ve filed an important amicus brief urging the Supreme Court to protect the systems that hold government accountable.

This case is about whether the Biden DOJ can force an innocent American to spend several years, and substantial sums of money, defending his property, then avoid the fee-shifting consequences Congress imposed when the government backs down – allowing the government to apply legal pressure to Americans and then avoid any consequence when they decide enough pain has been applied. The Second Circuit's decision in Ross v. United States threatens to gut the very legal doctrine that makes it possible to hold stonewalling federal agencies accountable in the first place – which is exactly why the ACLJ has asked the Supreme Court to step in and fix it.

Richard Ross is a Florida attorney. He was never charged with a crime. He was never even accused of one. Yet the Biden Department of Justice filed a civil forfeiture action attempting to seize $1.21 million sitting in his client trust account.

Ross fought back – and he won. Facing the real prospect of losing outright, the government abandoned its forfeiture claim rather than risk an adverse ruling. You'd think that would be the end of it. Instead, having lost the fight over the money, the Biden DOJ pivoted to a new argument: Ross wasn't entitled to recover the attorney's fees he'd spent defending his own property, because no court had ever entered a formal judgment declaring him the winner. Astonishingly, the Second Circuit – breaking with decades of settled precedent – agreed.

Here's the connection most observers miss. The statute at issue in Ross's case, the Civil Asset Forfeiture Reform Act (CAFRA), requires the government to pay a claimant's attorney's fees when he "substantially prevails." That phrase isn't something Congress dreamed up for forfeiture cases. Congress borrowed it, word for word, from FOIA's own fee-shifting provision – the same provision the ACLJ relies on every time we sue a federal agency that unlawfully stonewalls a records request.

For twenty-six years before CAFRA became law, every federal court of appeals that addressed FOIA's identical "substantially prevailed" language agreed on what it meant: a requester substantially prevails when his lawsuit is what causes the agency to hand over the records – full stop, whether or not a judge ever signs a formal order. That is precisely what allows FOIA plaintiffs – including the ACLJ – to hold agencies to account even when they fold quietly rather than litigate to a final ruling.

The Second Circuit imported an entirely different legal standard into Ross's case – one built for a different phrase, "prevailing party," which the Supreme Court construed in Buckhannon Board & Care Home v. West Virginia Department of Health & Human Resources (2001) to require a court-ordered, judicially sanctioned outcome.

"Substantially prevails" and "prevailing party" are not interchangeable, and Congress never treated them as such. When a few courts later tried to apply Buckhannon to FOIA anyway, Congress stepped in and made clear that those courts had gotten it wrong: FOIA's fee provision still protects plaintiffs whose lawsuits force the government to act, even if the case ends before a formal court order. But the Second Circuit treated Congress' 2007 FOIA clarification as if it showed Congress’ intent was to apply Buckhannon's judgment requirement across the board. That is exactly backward.

If the Second Circuit's reasoning stands, it hands Administrations like the Biden’s a simple playbook: pursue a seizure, and if the case starts going badly, quietly abandon it before a judge can rule – then walk away without ever paying the legal fees that made the fight possible in the first place. And because CAFRA's language mirrors FOIA's, nothing stops that same reasoning from being turned against citizens and organizations, including the ACLJ, who sue federal agencies to pry loose records the public has every right to see.

Civil asset forfeiture reform has drawn genuine bipartisan opposition in Congress, including from Senators Rand Paul and Mike Lee, precisely because it lets the government take property from Americans who were never charged with anything and leaves them in a fight for the property without the resources necessary. Fee-shifting statutes like CAFRA exist precisely to make sure innocent property owners aren't priced out of asserting their rights against the government that recklessly targeted them.

Our amicus brief urges the Supreme Court to grant certiorari and restore the settled, decades-old meaning of "substantially prevails" – the same meaning that has long governed FOIA cases. The Biden DOJ, or any Administration, should not get to seize a citizen's property only to retreat only once it's on the verge of losing without penalty.