Standing in Federal Civil Asset Forfeiture Cases

“In rem forfeiture actions are governed by Rule G of the Forfeiture Rules and the Civil Asset Forfeiture Reform Act of 2000 (‘CAFRA’).” United States v. Vazquez-Alvarez, 760 F.3d 193, 197 (2d Cir. 2014).

“In order to contest a governmental forfeiture action, claimants must have both standing under the statute or statutes governing their claims and standing under Article III of the Constitution as required for any action brought in federal court. Cambio Exacto, 166 F.3d 522, 526 (2d Cir. 1999).

“To establish statutory standing, a claimant asserting rights in property that has been seized and that is the subject of a forfeiture action in rem must file a verified claim within ten days after process has been executed, unless the court grants an extension.” Id. (citing Supplemental Rules for Certain Admiralty and Maritime Claims, Rule C([6]).

A claimant is not required to prove up the merits of his case to establish Article III standing at the outset of a civil forfeiture action. As the courts have held, requirement to show “legitimate ownership” in the initial stages of a civil forfeiture proceeding “is tantamount to demonstrating” on the merits that the “property is not subject to forfeiture.” United States v. Funds in the Amount of $239,400, 795 F.3d 639, 646 (7th Cir. 2015) (citing United States v. $125,938.62, 537 F.3d 1287, 1293 (11th Cir. 2008). In United States v. $17,900.00 in U.S. Currency, 859 F.3d 1085, 1091 (D.C. Cir. 2017), the courts were cautioned to avoid “impermissibly shifting the merits burden to the claimant,” and therefore “making [the] claimant prove that her property is unconnected to unlawful activity”).

Requiring a claimant to give more fulsome and detailed discovery responses impermissibly shifts the government’s statutory burden of proof and blends standing with the merits of a civil forfeiture action. See United States v. Funds in the Amount of $239,400, 795 F.3d 639, 645-46 (7th Cir. 2015); United States v. $125,938.62, 537 F.3d 1287, 1293 (11th Cir. 2008); United States v. $17,900.00 in U.S. Currency, 859 F.3d 1085, 1091 (D.C. Cir. 2017).

Such a requirement would threaten to “nullify” the Civil Asset Forfeiture Reform Act of 2000 (CAFRA)’s mandate that the burden of proof lies with the government to demonstrate that the seized property is subject to forfeiture. 18 U.S.C. § 983(c)(1). In $239,400, 795 F.3d at 645-646, the court observed that CAFRA shifted the burden of proof to the government in civil forfeiture actions.

Article III Standing at Each Stage of the Proceeding

As explained in United States v. $133,420.00 in U.S. Currency, 672 F.3d 629, 637 (9th Cir. 2012) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)), even through the burden is on the government to establish forfeitability, a civil forfeiture claimant must have Article III standing to seek the property. For this reason, Claimants “carry the burden of establishing standing by a preponderance of the evidence.” Supp. R. G(8)(c)(ii)(B); see $133,420.00, 672 F.3d at 637-38. 

In the civil forfeiture context, claimants can establish standing by “showing that they have ‘a colorable interest in the property,’ which includes an ownership interest or a possessory interest.” $133,420.00, 672 F.3d at 637 (quoting United States v. 5208 Los Franciscos Way, 385 F.3d 1187, 1191 (9th Cir. 2004)). 

These interests satisfy the elements of Article III standing “because an owner or possessor of property that has been seized necessarily suffers an injury that can be redressed at least in part by the return of the seized property.” Id. at 638 (quoting United States v. $515,060.42 in U.S. Currency, 152 F.3d 491, 497 (6th Cir. 1998)).

The burden for the claimant to show standing in a civil forfeiture case depends on stage of the case. As the Supreme Court explained in Lujan, the elements of standing “must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” 504 U.S. at 561. This framework for showing standing “applies equally in civil forfeiture proceedings.” $133,420.00, 672 F.3d at 638.

The Claimant’s burden to show standing required at each phase also depends on the nature of the claimed property interest. At the initial stage, when the claimant files a judicial claim and answer to the complaint, the initial showing of standing is based just on the allegations in the judicial claim. For ownership claims, “[a]t the motion to dismiss stage, a claimant’s unequivocal assertion of an ownership interest in the property is sufficient by itself to establish standing.” Id. (citing United States v. 475 Martin Lane, 545 F.3d 1134, 1140 (9th Cir. 2008); United States v. $191,910.00 in U.S. Currency, 16 F.3d 1051, 1058 (9th Cir. 1994)). 

For a claim based on a possessory interest other than ownership (such as in a bailor/bailee relationship), at the motion to dismiss stage the Claimant must offer some factual allegations regarding:

1. how the claimant came to possess the property; 
2. the nature of the claimant’s relationship to the property; and
3. the story behind the claimant’s control of the property.

Id. (quoting $515,060.42, 152 F.3d at 498).

At the summary judgment stage, the burden shifts from a claimant’s allegations to the claimant’s evidence. At this point, a claimant can no longer rely on a “bare assertion of an ownership or possessory interest” and must have “some other evidence . . . to survive a motion for summary judgment.” Id. 

For ownership claims, the fact that property was seized from the claimant’s possession when the claimant has made a claim of ownership is generally sufficient to establish standing at the summary judgment stage.” Id. at 639; see also id. at 640 (“That assertion of ownership, combined with [the claimant’s] possession of the currency at the time it was seized, would be enough to establish [the claimant’s] standing for purposes of a motion for summary judgment.”).

For example, in United States v. Funds in the Amount of $239,400, 795 F.3d 639, 642-43 (7th Cir. 2015), the court held that “an assertion of ownership combined with some evidence of ownership,” such as “possession of currency when it was seized,” is “sufficient to establish standing at the summary judgment stage of a civil forfeiture action” (citing $133,420.00, 672 F.3d at 640)).

For possessory interest claims, establishing standing at summary judgment requires presenting some evidence of how the claimant came to possess the property. See $133,420.00, 672 F.3d at 638-39.

Through the civil discovery process, the government can investigate a claimant’s asserted standing. For example, in $133,420.00, 672 F.3d at 642, the court noted that the government is entitled to “test the veracity of [a claimant’s] claim of ownership.”

An unequivocal sworn claim of ownership plus possession of the property at the time of seizure is enough, But to survive a summary judgment motion on standing, the government is entitled to develop evidence to show that the claim of ownership is unfounded. See $133,420.00, 672 F.3d at 639-40.

The government can use a special discovery tool found in Supplemental Rule G(6), which allows the government to “serve special interrogatories limited to the claimant’s identity and relationship to the defendant property without the court’s leave at any time after the claim is filed and before discovery is closed.” Supp. R. G(6)(a). “The purpose of [Supplemental Rule G(6)] is ‘to permit the government to file limited interrogatories at any time after the claim is filed to gather information that bears on the claimant’s standing.'” $133,420.00, 672 F.3d at 635 (quoting Supp. R. G advisory committee’s note to 2006 adoption, subdiv. (6)). 

Unlike Federal Rule of Civil Procedure 33 interrogatories, Supplemental Rule G(6) interrogatories are not limited in number and can be served without leave of court as soon as a claim is filed. See Supp. R. G advisory committee’s note to 2006 adoption, subdiv. (6). The only permissible topics for Rule G(6) interrogatories are expressly limited to “the claimant’s identity and relationship to the defendant property.” Supp. R. G(6).

Rule G(8)(c) provides that “[a]t any time before trial, the government may move to strike a claim or answer: 

• (A) for failing to comply with Rule G(5) or (6), or
• (B) because the claimant lacks standing.” Supp. R. G(8)(c)(i).

When standing is an issue, the government can move to strike on procedural grounds by claiming the claimant failed to provide the information required by:

• Rule G(5), which sets forth the requirements for a claimant’s responsive pleadings; 
• that the claimant failed to answer interrogatories served under Rule G(6); or
• the government can move to strike on the substantive ground that the claimant lacks standing.

Rule G(8)(c)(ii)(B) provides that the government’s motion to strike can be adjudicated at each stage of the litigation: 

• on the initial pleadings;
• by summary judgment; or
• after a hearing.

When the government moves to strike on standing, Rule G provides that this motion “must be decided before any motion by the claimant to dismiss the action.” Supp. R. G(8)(c)(ii)(A). For these reasons, Rule G and the discovery process give the government several ways to investigate and contest a claimant’s standing.

Standing Problems for General Creditors in Asset Forfeitures Cases

To establish Article III standing, a claimant must demonstrate the following:

1. an injury-in-fact;
2. an injury that is fairly traceable to the challenged conduct of the defendant; and
3. an injury can likely be redressed by a favorable decision.

Mantena v. Johnson, 809 F.3d 721, 731 (2d Cir. 2015).

“The [claimant] . . . bears the burden ‘clearly to allege facts [in his complaint] demonstrating that he is a proper party to invoke judicial resolution of the dispute.'” Steinberger v. Lefkowitz, 634 F. App’x 10, 11 (2d Cir. 2015) (quoting Warth v. Seldin, 422 U.S. 490, 518, 95 S. Ct. 2197, 45 L. Ed. 2d 343 [1975]); Mercado v. U.S. Customs Serv., 873 F.2d 641, 644 (2d Cir. 1989).

The plaintiff must also show that she has “prudential standing,” which includes a “general prohibition on a litigant’s raising another person’s legal rights.” Keepers, Inc. v. City of Milford, 807 F.3d 24, 39 (2d Cir. 2015). Rather, the plaintiff must have been injured “in a personal and individual way” in order to have standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 n.1, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992). “‘The party invoking federal jurisdiction bears the burden of establishing’ prudential and constitutional standing.” Keepers, Inc., 807 F.3d at 39.

In addition to statutory and Article III standing, a “claimant also bears the burden of proving by a preponderance of the evidence that the Claimant is an ‘innocent owner’ of the property, 18 U.S.C. § 983(d)(1), as defined by the statute in sections 983(d)(2)-(3).” United States v. Real Prop. Located at 229 Potter Rd., N. Kingstown, R.I., 91 F. Supp. 3d 303, 306 (D. Conn. 2015) (“Potter Road”).

Although the Second Circuit has not yet expressly called for a claimant to demonstrate an ownership or possessory interest in the seized or forfeited property, Cambio Exacto, 166 F.3d at 527, district courts within the Circuit have routinely required claimants to establish a possessory or ownership interest in the specific forfeited property to show Article III standing. See, e.g., Potter Road, 91 F. Supp. 3d at 306; United States v. Agnello, 344 F. Supp. 2d 360, 372 (E.D.N.Y. 2004); United States v. One Red 2003 Hummer H2 VIN: 5GRGN23U93H118675, 234 F. Supp. 3d 415, 419 (W.D.N.Y. 2017); United States v. PokerStars, 11-CV-2564, 2012 U.S. Dist. LEXIS 66021, 2012 WL 1659177, at *2 (S.D.N.Y. May 9, 2012).

Forfeiture statutes define the term “owner” as “a person with an ownership interest in the specific property sought to be forfeited, including a leasehold, lien, mortgage, recorded security interest, or valid assignment of an ownership interest.” 18 U.S.C. § 983(d)(6)(A). “Ownership and possessory interests are in turn defined by state law.” PokerStars, 2012 U.S. Dist. LEXIS 66021, 2012 WL 1659177, at *2. However, persons with only general unsecured interests (such as general creditors) are explicitly excluded from the definition of “owner” under 18 U.S.C. § 983(d)(6)(B)(i) although they may have a “constructive trust” claim for purposes of contesting the asset forfeiture.

In some cases, a general creditor would not possess a “legal right, title, or interest in the property” in forfeiture proceedings, DSI Assocs. LLC v. United States, 496 F.3d 175, 184 (2d Cir. 2007), because an “interest ‘in’ property must be an interest in a particular, specific asset, as opposed to a general interest in an entire forfeited estate or account.” United States v. Ribadeneira, 105 F.3d 833, 836 (2d Cir. 1997).

Attorney on Standing in Federal Civil Asset Forfeitures

If your currency or property was seized for forfeiture, contact an attorney at Sammis Law Firm. We can explain the requirements to establish statutory standing in a civil asset forfeiture case.

Find out why standing is a prerequisite to challenge a forfeiture. We can help you file a verified claim within thirty days of service or thirty days after the publication of the notice.

If you are unable to establish standing, the court will order that the property is forfeited to the United States.

Standards for Dismissal Based on Claimant’s Standing

Pursuant to the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions, “the government may move to strike a claim or answer” at “any time before trial” because “the claimant lacks standing.” Supp. R. G(8)(c)(i)(B). The motion to strike a claim or answer “may be presented as a motion for judgment on the pleadings . . . .” Supp. R. G(8)(c)(ii)(B).

“The standard for granting a Rule 12(c) motion for judgment on the pleadings is identical to [*6] that of a Rule 12(b)(6) motion for failure to state a claim.” Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001).

A dismissal for failure to state a claim upon which relief can be granted, pursuant to Fed. R. Civ. P. 12(b)(6), can be based on one or both of two grounds:

1. a challenge to the “sufficiency of the pleading” under Fed. R. Civ. P. 8(a)(2); or
2. a challenge to the legal cognizability of the claim.

Jackson v. Onondaga Cty., 549 F. Supp. 2d 204, 211, nn. 15-16 (N.D.N.Y. 2008) (McAvoy, J., adopting Report-Recommendation on de novo review).

Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) [emphasis added].

This article was last updated on Friday, June 5, 2026.