Linda Martin v. Federal Bureau of Investigation

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 10, 2025 Decided July 22, 2025
No. 24-5144
LINDA MARTIN,
APPELLANT
v.
FEDERAL BUREAU OF INVESTIGATION AND KASH PATEL, IN HIS
OFFICIAL CAPACITY AS DIRECTOR OF THE FEDERAL BUREAU OF
INVESTIGATION,
APPELLEES
Appeal from the United States District Court for
the District of Columbia
(No. 1:23-cv-00618)

-- 1 of 14 --

2
Robert Frommer argued the cause for appellant. With him
on the briefs were Robert M. Belden and Keith Neely.
Thomas A. Berry was on the brief for amicus curiae the
Cato Institute in support of appellant.
Joshua M. Koppel, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Brian M. Boynton, Principal Deputy Assistant Attorney
General at the time the brief was filed, and Charles W.
Scarborough, Attorney, U.S. Department of Justice.
Before: MILLETT and RAO, Circuit Judges, and ROGERS,
Senior Circuit Judge.
Opinion for the Court by Senior Circuit Judge ROGERS.
ROGERS, Senior Circuit Judge: This is an appeal from a
judgment dismissing a class action complaint and denying a
motion for class certification as moot. Appellant, on behalf of
herself and a putative nationwide class, sued the Federal
Bureau of Investigation (“FBI”) alleging that its Notice of
Seizure given to property owners failed to comply with the
requirements of Due Process under the Fifth Amendment to the
Constitution. The district court granted the FBI’s motion to
dismiss and denied the motion for class certification as moot.
On appeal, Martin challenges the district court’s rejection of the
Due Process claim and requirement that this challenge must
first be presented to the agency. For the following reasons, the
appeal is dismissed for lack of jurisdiction.
I.
The federal government may forfeit property traceable to
certain criminal conduct pursuant to 18 U.S.C. § 981 (2016),
and Department of Justice regulations, 28 C.F.R. §§ 8–9 (2012).

-- 2 of 14 --

3
As relevant, the Civil Asset Forfeiture Reform Act of 2000, 18
U.S.C § 983, establishes the procedures for forfeitures by the
FBI. Within 60 days of a seizure, the FBI must publish a notice
of the seizure and send interested parties written notice
describing the property, date and place of seizure, statutory
authority, and where the interested party may file a claim or
submit a petition for remission or mitigation. 18 U.S.C
§ 983(a)(1); 28 C.F.R. §§ 8.9(a)–(b), 9.3(a).
On March 17, 2021, the FBI obtained search warrants for
anonymous safe deposit boxes owned and rented by U.S.
Private Vaults in Beverly Hills, California. Compl. ¶¶ 4, 10,
16, 22 (Mar. 7, 2023). The warrant directed the FBI to “identify
their owners in order to notify them so that they can claim their
property.” Compl. ¶ 26.
On June 10, 2021, the FBI sent Linda Martin a Notice of
Seizure of Property and Initiation of Administrative Forfeiture
Proceedings of $40,200 (“Notice of Seizure”). Compl. ¶¶ 4,
42. The Notice of Seizure identified the property seized from
Box 1810, seizure date and location, legal authority for the
seizure, and instructions on filing (1) a petition for remission
requesting a pardon, within 30 days, (2) a claim contesting the
forfeiture, by July 15, 2021, and (3) a request for release of
property based on hardship. The Notice of Seizure stated on
page 1 that “the government may consider granting petitions
for remission or mitigation, which pardons all or part of the
property from the forfeiture.” On page 2, the Notice of Seizure
further instructed:
To contest the forfeiture of this property in United
States District Court you must file a claim. If you do
not file a claim, you will waive your right to contest
the forfeiture of the asset. Additionally, if no other
claims are filed, you may not be able to contest the

-- 3 of 14 --

4
forfeiture of this asset in any other proceeding,
criminal or civil.
On June 18, 2021, Martin filed a petition for remission with
the FBI, stating that she was an “innocent owner,” “did not
know of the conduct giving rise to the forfeiture,” and was not
“aware of any activity” prompting it. Compl. ¶¶ 57–58.
Thereafter she inquired about the status of her petition on
multiple occasions. Compl. ¶ 66. By letter of July 6, 2022, the
FBI instructed Martin to “provide documentation in support of
the significant amount of cash you are requesting a pardon for,”
such as “evidence of legitimate employment, pay stubs, W-2
forms, tax returns, etc.” Compl. ¶ 68; Ltr. Kristi K. Johnson,
FBI Asst. Dir. (July 6, 2022). Martin did so, and on January 12,
2023, the FBI emailed Martin’s attorney that the funds were
“still pending forfeiture.” Compl. ¶¶ 69–71; E-mail Jessie T.
Murray, FBI Supvr. Spec. Agt., to Kenneth Brooks, Esq. (Jan.
12, 2023). On July 10, 2023, the seized funds, plus interest,
were electronically transferred to Martin. Defs. Not. of
Payment (July 26, 2023) (“Not. of Payment”). The FBI had
determined on May 18, 2023, that the key produced by Martin
corresponded to Box 1810, thereafter discontinued the
forfeiture proceedings, and received from Martin on June 5,
2023, a required form relating to release of the funds. Decl. of
FBI Supvr. Spec. Agt. Murray ¶¶ 11–12 (June 8, 2023)
(“Murray Decl.”).
Meanwhile, on March 7, 2023, two months prior to the
return of her seized property, Martin filed a class action
complaint against the FBI and its director for declaratory and
injunctive relief on behalf of herself and a nationwide class.
Count 1, the individual claim, alleged that the Notice of Seizure
violated the Due Process Clause of the Fifth Amendment by
failing to provide Martin with “specific legal or factual bases”
for the seizure or forfeiture, thereby denying her the
opportunity to offer “an effective and meaningful response to

-- 4 of 14 --

5
defend her rights.” Compl. ¶ 136. Martin sought an injunction
of the forfeiture proceedings against her property until she
received a corrected Notice of Seizure or, alternatively, the
return of her property. Compl. ¶ 143. Count 2, the class claim,
sought similar relief for a proposed class pursuant to Federal
Rule of Civil Procedure 23(a) and (b), namely all persons who
had received a Notice of Seizure within the past six years or
would receive a notice in the future and whose property had not
been returned or made subject to a judicial complaint for
forfeiture. Compl. ¶¶ 94–120. Relief sought included
certification of the case as a class action pursuant to Rule
23(b)(2), designation of Martin as class representative and her
attorney as class counsel, and recovery of fees and costs.
Compl. ¶¶ A–H. On April 26, 2023, Martin filed a motion for
certification of a class pursuant to Rule 23(a) and (b)(2) and
Local Rule 23.1(b) of the U.S. District Court for the District of
Columbia.
The FBI filed a motion on June 8, 2023, to dismiss the
entire case as moot. It argued Martin’s individual claim was
moot, FED. R. CIV. P. 12(b)(1); the putative class claims did not
meet any exceptions to the general rule that class claims are
dismissed when no named plaintiff retains a live claim; judicial
relief was independently barred by Martin’s failure to exhaust
administrative remedies, FED. R. CIV. P. 12(b)(1); and the
unexhausted Due Process challenge failed to state a viable
claim, FED. R. CIV. P. 12(b)(6). For the same reasons, the FBI
opposed the motion for class certification as moot. Martin filed
an opposition to the motion to dismiss and a reply regarding
class certification.
The district court dismissed the putative class action
asserting a Due Process claim under the Fifth Amendment for
failure to exhaust and failure to state a claim. Mem. Op. 1 (Apr.
5, 2024). The court ruled Martin’s individual claim was moot
because the FBI had discontinued the forfeiture proceedings

-- 5 of 14 --

6
and returned her seized property. Mem. Op. 7. The court also
acknowledged that where the named plaintiff’s claim has
become moot, the class claim “[n]ormally” would be moot
because a class had not yet been certified. Mem. Op. 7 (citing
Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 74–75
(2013)). But, as Martin urged, the court applied the “inherently
transitory” exception to mootness allowing the district court to
certify a class even after the named plaintiffs’ claims have
become moot, see, e.g., Gerstein v. Pugh, 420 U.S. 103, 110
n.11 (1975), stating “a motion for certification may ‘relate
back’ to the filing of the complaint,” Mem. Op. 7 (quoting
Genesis Healthcare Corp., 569 U.S. at 71 n.2). It rejected the
FBI’s position that the mootness exception was inapplicable to
a procedural Due Process claim and found Martin had
demonstrated at the pleading stage the two essential elements
for application of the exception: the absence of evidence that
forfeiture proceedings resulting in the return of property
ordinarily last at least two years, and the likelihood class
member claims would remain live throughout the proceedings.
Mem. Op. 8–9 (citing J.D. v. Azar, 925 F.3d 1291, 1310 (D.C.
Cir. 2019)).
The district court then ruled, as the FBI argued in its
motion to dismiss, that an independent basis required dismissal
of the putative class action, namely, Martin’s conceded failure
to exhaust her administrative remedies by challenging the
constitutionality of the Notice of Seizure before the FBI. Mem.
Op. 10 (citing McKart v. United States, 395 U.S. 185, 193
(1969); Malladi Drugs & Pharms., Ltd. v. Tandy, 552 F.3d 885,
887–89 (D.C. Cir. 2009)). The court found Martin had an
adequate opportunity to present the Due Process challenge and
viewed the suggestion of inability belied by her retaining of
counsel by at least January 2023 while the administrative
proceedings were pending. Mem. Op. 12 (citing Sarit v. DEA,
987 F.2d 10, 15 (1st Cir. 1993)). The court also rejected
Martin’s arguments that the constitutional nature of her claim

-- 6 of 14 --

7
excused exhaustion and, alternatively, that equitable principles
excused exhaustion. Id. at 12–15 (citing McCarthy v. Madigan,
503 U.S. 140, 146 (1992)). The court further ruled Martin had
failed to state a plausible Due Process claim in view of her
opportunity to force the government to identify the basis for
and show the seizure was lawful. Mem. Op. 16–18 (citing City
of West Covina v. Perkins, 525 U.S. 234, 241 (1999)).
By separate order, the district court dismissed the class
action complaint “as to all claims against all Defendants,” and
denied the motion for class certification as moot. ORDER (Apr.
5, 2025); FED. R. CIV. P. 58(b)(1)(C). Martin appeals the April
5, 2024, judgment.
II.
On appeal, Martin contends that the district court made two
legal errors requiring reversal of the dismissal of the class
action complaint and remand of the case for further
proceedings. Martin maintains, first, that she plausibly alleged
the FBI violated Due Process by relying on administrative
forfeiture notices that did not state the crime supporting the
forfeiture. Appellant’s Br. 29. Second, Martin maintains that
there were no remedies to exhaust during the 30 days that the
Notice of Seizure allowed for response because filing a petition
would result in the forfeiture of her property. Id. at 55–58. The
FBI, in response, reprised its arguments in moving to dismiss
the entire case and maintained the appeal should be dismissed
for lack of jurisdiction because “no entity is before this Court
with a live claim for relief against the government that might
allow the Court to reach the merits of the due-process
challenge.” Appellees Br. 37–38. The court reviews the
dismissal of a complaint de novo. Ralls Corp. v. Comm. on
Foreign Inv. in the U.S., 758 F.3d 296, 314 (D.C. Cir. 2014).

-- 7 of 14 --

8
Because the jurisdictional issues are dispositive, the court
begins and ends with the threshold issue of its jurisdiction to
consider Martin’s challenges to the district court dismissal of
the class claim. Martin has not challenged the denial of the
motion for class certification by presenting any argument of
error in her appellate briefs. Because no class has been
certified, this court lacks jurisdiction to review the district court
merits rulings on Due Process and exhaustion. Absent a
justiciable controversy before the court, the appeal must be
dismissed for lack of jurisdiction.
“[T]he Constitution limits the jurisdiction of federal courts
to ‘Cases’ and ‘Controversies,’ which restricts the authority of
federal courts to resolving ‘the legal rights of litigants in actual
controversies.’” Genesis Healthcare Corp., 569 U.S. at 71
(internal citations omitted); see U.S. CONST. art. III, § 2. “If an
intervening circumstance deprives the plaintiff of a ‘personal
stake in the outcome of the lawsuit,’ at any point during
litigation, the action can no longer proceed and must be
dismissed as moot.” Genesis Healthcare Corp., 569 U.S. at 72
(quoting Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477–78
(1990)). Exceptions exist to this doctrine, for example where
the claim is “capable of repetition, yet evading review” or “the
claim may arise again with respect to that plaintiff,” U.S. Parole
Commission v. Geraghty, 445 U.S. 388, 398 (1980), but Martin
does not rely on them here.
A.
Martin’s individual claim in Count 1 is moot. It is
undisputed that, as the district court found, the FBI
discontinued the forfeiture proceedings and that the seized
property was returned to Martin on July 10, 2023, shortly after
the class action complaint was filed. Mem. Op. 7; Murray
Decl. ¶¶ 11–12; Not. of Payment. Count 1 of the complaint
included this alternative remedy for Martin. Compl. ¶ 143.

-- 8 of 14 --

9
Martin thus no longer has a “personal stake” in the litigation
sufficient for Article III standing. Genesis Healthcare Corp.,
569 U.S. at 72; see Alvarez v. Smith, 558 U.S. 87, 92 (2009).
Accordingly, the court affirms the district court’s judgment
dismissing Martin’s individual claim for relief as moot.
B.
The class claim in Count 2 identifies only Martin as a class
member, with the claims of unnamed class members
presumably to be added once a class was certified pursuant to
Federal Rule of Civil Procedure 23. See Molock v. Whole
Foods Mkt. Grp., Inc., 952 F.3d 293, 298 (D.C. Cir. 2020)
(citing Gibson v. Chrysler Corp., 261 F.3d 927, 940 (9th Cir.
2001)). Class certification “here is logically antecedent to the
existence of any Article III issues” regarding the putative class.
Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 612 (1997)
(citing Arizonans for Official English v. Arizona, 520 U.S. 43,
66–67 (1997)); see Ortiz v. Fibreboard Corp., 527 U.S. 815,
831 (1999); Molock, 952 F.3d at 299; cf. Fox v. Saginaw
County, Michigan, 67 F.4th 284, 296 (6th Cir. 2023); FED. R.
CIV. P. 23 (advisory committee note on 2003 amendment to
Rule 23(c)(1)(A), commenting “many valid reasons . . . may
justify deferring the initial certification decision”). By the
same token, it would seem, the district court’s dismissal of the
class claims on the merits before any class had been certified
was entered without jurisdiction and hence advisory and
without legal effect.
C.
Where the named plaintiff’s claims have expired and class
certification has been denied, much as occurred here, “[t]he
proposed representative retains a ‘personal stake’ in obtaining
class certification sufficient to assure that Art. III values are not
undermined.” Geraghty, 445 U.S. at 404. That stake, however,

-- 9 of 14 --

10
“is limited to the appeal of the denial of the class certification
motion.” Id. (emphasis added). Applying Geraghty, the
Supreme Court held in Alvarez, 558 U.S. at 92–93, that the case
was moot because the plaintiffs’ claims had become moot on
appeal and no appeal was taken from the denial of the motion
for class certification.
Martin individually no longer has a live interest in
challenging the Notice of Seizure as violative of Due Process.
See supra Part II.A. Even though Martin has Article III
standing to appeal the district court denial of the motion for
class certification, that standing is limited and distinct from
Article III standing to appeal the district court dismissal of the
putative class action pursuant to Rule 12(b)(1) and Rule
12(b)(6). “A named plaintiff whose claim expires may not
continue to press the appeal on the merits until a class has been
properly certified.” Geraghty, 445 U.S. at 404. Contrary to
Martin’s position, her standing to appeal the denial of the
motion for class certification does not bring before this court
the dismissal of the class claim. Reply Br. 9 (citing FED. R.
APP. P. 3(c)(4); Martinez v. Bureau of Prisons, 444 F.3d 620,
623 (D.C. Cir. 2006)). Adopting that approach would be
contrary to Geraghty and Article III of the Constitution.
Yet Martin’s briefs on appeal challenge only the district
court merits rulings in dismissing the class claim regarding Due
Process and failure to exhaust administrative remedies.
Appellant’s Br. 29, 55; Reply Br. 10, 16. Martin no longer has
a live interest in the class claim beyond challenging the denial
of class certification motion as Geraghty, 445 U.S. at 404,
allows. This court lacks jurisdiction to address the merits of
those district court rulings because Martin’s individual claim is
moot and no class has been certified. See Deposit Guar. Nat’l
Bank v. Roper, 445 U.S. 326, 336 (1980).

-- 10 of 14 --

11
By deciding to challenge on appeal only the district court’s
merits rulings in dismissing the class action, Martin has waived
all arguments related to class certification. See United States v.
Olano, 507 U.S.725, 733 (1993).
First, Martin did not argue in her opening brief or reply
brief that the district court made a sequencing error by ruling
on the merits of the class claim prior to certifying a class
pursuant to Rule 23. Neither did Martin argue in her briefs that
the district court denial of the motion for class certification be
vacated as erroneous. Although Martin noted an appeal of the
district court judgment, which addressed both the dismissal of
the complaint and the denial of the motion for certification,
Martin sought reversal and remand only on the basis of error in
the district court merits rulings in dismissing the putative class
action in Count 2. Appellant’s Br. 58; Reply Br. 30. Arguments
not raised in the opening brief to support a claim of error are
generally forfeited absent explanation. Fox v. Gov’t of D.C.,
794 F.3d 25, 29 (D.C. Cir. 2015); see Herron v. Fannie Mae,
861 F.3d 160, 165 (D.C. Cir. 2017). Martin offers none.
Indeed, the denial of class certification was not identified
as an issue or discussed on appeal until six days before oral
argument when Martin advised, pursuant to Federal Rule of
Appellate Procedure 28(j), in a “decision that recently came to
our attention,” the Court of Appeals for the Tenth Circuit, in “a
similar order-of-operations issue,” vacated the district court
merits rulings for lack of jurisdiction and remanded the case for
the district court to consider a pending motion for class
certification. Ltr. Robert Frommer, Esq., to Clifton Cislak,
Clerk of the Court (Mar. 4, 2025) (citing Medina v. Allen, No.
23-4057, 2024 WL 1006791 (10th Cir. Mar. 8, 2024). That
unpublished opinion was decided before Martin filed her
opening brief in this court on October 17, 2024. Unlike in
Medina, 2024 WL 1006791, at *3, Martin did not “urge in [her]
reply brief” that the district court merits rulings must be vacated

-- 11 of 14 --

12
for lack of jurisdiction. Viewing counsel’s letter as a request to
vacate the district court judgment, it “comes too late.” Shatsky
v. Palestine Liberation Org., 955 F.3d 1016, 1030 (D.C. Cir.
2020) (quoting Worldwide Moving & Storage, Inc. v. District of
Columbia, 445 F.3d 422, 427 n.7 (D.C. Cir. 2006)). In Shatsky,
the court held that an attempt to raise a new issue was forfeited,
citing precedent that “[t]he 28(j) process should not be
employed as a second opportunity to brief an issue not raised
in the initial briefs.” Id. (quoting Williams v. Romarm, SA, 756
F.3d 777, 787 (D.C. Cir. 2014)). Martin was on notice of the
jurisdictional challenges since at least June 8, 2023, when the
FBI filed a motion to dismiss the complaint.
Second, Martin’s reference to class certification in footnote
14 of her opening brief does not cure the defect. The court
“reviews judgments, not statements in opinions.” California v.
Rooney, 483 U.S. 307, 311 (1987) (internal citation and
quotation marks omitted). Martin requested this court to “leave
the trial court’s ruling on mootness undisturbed.” Appellant’s
Br. 26 n.14 (citing Mem. Op. 6–9). Read most favorably to her,
Martin requests the district court’s ruling on the inherently
transitory exception to mootness remain in place upon reversal
and remand so that the district court will “be free to revisit class
certification.” Reply Br. 9.
That request does not present this court with an argument
of legal error, or even identify the district court denial of the
motion for class certification as an issue on appeal, and all
arguments relating to class certification are waived. See FED.
R. APP. P. 28(a)(7)–(9); Olano, 507 U.S. at 733. Counsel
regularly choose what issues to pursue on appeal, cf. Jones v.
Barnes, 463 U.S. 745, 751–54 (1983), as Martin’s counsel did
here. No argument appears in Martin’s briefs challenging the
denial of the motion for class certification. Making a cursory
argument in a footnote does not suffice to present an argument
on appeal. See Schneider v. Kissinger, 412 F.3d 190, 200 n.1

-- 12 of 14 --

13
(D.C. Cir. 2005); Hutchins v. District of Columbia, 188 F.3d
531, 539 n.3 (D.C. Cir. 1999). Nor does merely recounting the
district court proceedings. Am. Wildlands v. Kempthorne, 530
F.3d 991, 1001 (D.C. Cir. 2008). Characterizing the omission
in the briefs as a forfeiture instead of a waiver, see Olano, 507
U.S. at 733, would not cure the defect.
Third, contrary to Martin’s position regarding the class
claim made during oral argument, Oral Arg. 10:50–13:05 (Mar.
10, 2025), the court has not been presented with a justiciable
issue whereby it can address whether the class claim plausibly
states a Due Process objection upon which relief can be
granted. The district court has not certified a class and Martin’s
individual claim is moot. See Alvarez, 558 U.S. at 92–93;
Geraghty, 445 U.S. at 404. Martin does not suggest she has
suffered the requisite Article III injury from the denial of class
certification to allow her to challenge the merits of the
dismissal of the class claim on behalf of the putative class. See
Lewis v. Becerra, 111 F.4th 65, 70–72 (D.C. Cir. 2024) (quoting
FDA v. All. for Hippocratic Med., 602 U.S. 367, 381, 392–93
(2024)).
So, having waived all arguments relating to class
certification, to the extent Martin seeks review of her individual
Due Process claim, Appellant’s Br. 46–48, or on behalf of a
non-certified class, id. at 45, no Article III jurisdiction exists for
the court to review her moot individual claim or to resolve the
merits of the class claim. And because of this waiver, relief by
way of vacatur of the district court judgment pursuant to 28
U.S.C. § 21061 is unavailable as that statute is not designed to
1 28 U.S.C. § 2106 provides:
The Supreme Court or any other court of appellate
jurisdiction may affirm, modify, vacate, set aside or reverse
any judgment, decree, or order of a court lawfully brought

-- 13 of 14 --

14
afford a party in Martin’s position a second chance to appeal
after forgoing a first chance. See, e.g., Alvarez, 558 U.S. at 94
(discussing the leading cases of United States v. Munsingwear,
Inc., 340 U.S. 36, 40 (1950), and U.S. Bancorp Mortgage Co.
v. Bonner Mall Partnership, 513 U.S. 18, 21, 25 (1994)).
Accordingly, the court dismisses Martin’s appeal of the
class certification judgment for lack of jurisdiction. The district
court’s dismissal of Martin’s individual claim as moot is
affirmed.
before it for review, and may remand the cause and direct
the entry of such appropriate judgment, decree, or order, or
require such further proceedings to be had as may be just
under the circumstances.

-- 14 of 14 --