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Standing

Standing for Federal Civil Asset Forfeiture

A claimant must have standing to proceed with his claim for property seized for forfeiture. Otherwise, the government may move to strike a claim or answer under Fed. R. Civ. P. Suppl. R. G(8)(c)(i) for:

  • failing to comply with Rule G(5) or (6); or
  • the claimant’s lack of standing.

Under Fed. R. Civ. P. Suppl. R. G(8)(c)(ii)(B), the government’s motion to strike the claimant for failing to carry its burden of establishing standing by a preponderance of the evidence may be presented as:

  • a motion for judgment on the pleadings; or
  • as a motion to determine after a hearing or by summary judgment,

The 2006 Advisory Committee Notes explain these procedures for addressing claim standing:

If a claim fails on its face to show facts that support claim standing, the claim can be dismissed by judgment on the pleadings. If the claim shows facts that would support claim standing, those facts can be tested by a motion for summary judgment. If material facts are disputed, precluding a grant of summary judgment, the court may hold an evidentiary hearing. The evidentiary hearing is held by the court without a jury. The claimant has the burden to establish claim standing at a hearing; procedure on a government summary judgment motion reflects this allocation of the burden.

Fed. R. Civ. P. Suppl. R. G(8)(c)(ii)(B), advisory committee’s note to 2006 amendment.

Standing must be determined as a threshold matter. A claimant in a civil forfeiture case must establish both constitutional standing and statutory standing. A claimant may satisfy the requirement of statutory standing by filing a claim under Fed. R. Civ. P. Suppl. R. G(5).

Fed. R. Civ. P. Suppl. R. G(5) requires the claim to:

  • identify the specific property claimed;
  • identify the claimant and state the claimant’s interest in the property by making clear whether he is asserting a possessory interest, an ownership interest, or another type of proprietary interest.

Under Fed. R. Civ. P. Suppl. R. G(5)(a)(iii), if the claimant intends to assert a possessory interest as a bailee, he must identify the bailor by name, and if filed on the bailor’s behalf, state the authority to do so.