DEPARTMENT OF THE TREASURY 

EXEUCITVE OFFICE FOR ASSET FORFEITURE 

DIRECTIVE NO. 37 

DATE: November 23, 2015 

SUBJECT: Payment of Interest on Cash Deposits to the TFF or Suspense Account 

1. PURPOSE. This Department of the Treasury Executive Office for Asset Forfeiture (TE OAF) Directive 

No. 37 provides guidance on TEOAF's and the agency's responsibilities regarding for the payment of 

interest on cash deposits to the TFF or suspense account. 

2. SCOPE. This Directive applies to all seizure and forfeiture cases conducted by agencies participating 

in the Treasury Forfeiture Fund (TFF). 

3. POLICY. Generally, the TFF enabling legislation, 31 U.S.C. § 9705, does not specifically authorize 

the payment of interest. However, where there is a written settlement agreement or a court order 

requiring that interest be paid, TEOAF will pay interest pursuant to that settlement agreement or court 

order. Further, pursuant to case law in the Sixth and Ninth Circuits, interest shall be paid, even without a 

court order or written agreement, when returning seized currency to a claimant in administrative or judicial 

cases. 1 This includes all "declination cases." 2 All requests for payments of interest must be submitted by 

the seizing agency to TEOAF for processing. 

4. GUIDANCE. 

A. Situations Where Interest is Payable 

i. Court Order or Written Agreement, Any Circuit, Mandating the Interest Be Paid 

TE OAF will honor a written agreement relating to interest provided such agreement is 

memorialized appropriately, either by court order or other reliable documentation, such as a 

signed stipulation between the parties with an executed release and hold harmless agreement 

in favor of the government. Unless otherwise indicated by such court order or agreement, 

TE OAF will refund interest only on the portion of the currency that is being returned. The TFF 

does not have legal authority to pay interest at a rate that is greater than the rate earned on 

funds invested by the TFF during the relevant period. 

Should an agreement or order require the United States to pay interest at a rate that is greater 

than what the TFF earned, TEOAF will tender interest to the claimant at the earned rate and 

will submit the excess to the Judgment Fund for payment in accordance with 31 U.S.C. § 

1304. The Judgment Fund is managed independently of TE OAF, and TEOAF is not in any 

way responsible for any approval or denial of any request made to the Judgment Fund. 

1 The Sixth Circuit encompasses Kentucky, Michigan, Ohio, and Tennessee. The Ninth Circuit 

encompasses Alaska, Arizona, California, Idaho, Montana, Nevada, Oregon, Washington, Guam, and 

Hawaii. 

2 Declination cases are those instances whereby a seizure has occurred and a claim has been 

subsequently filed and referred by the seizing agency to the USAO, but the USAO declines to file any 

action or seek a pre-complaint settlement. The assets that were seized must then be returned without 

further action. See Carvajal v. United States, 521 F.3d 1242 (9th Cir. 2008). 
Ii. Case-Law Mandated Interest Payments in the Sixth and Ninth Circuits 

In cases arising out of the Sixth and Ninth Circuits, Including declinations, unless interest is 

expressly waived in writing, interest shall be paid for all refunds. Accordingly, TFF participating 

agencies must request that TEOAF pay interest when processing refunds of seized currency 

to claimants In the Sixth and Ninth Circuits. 3 This is especially important for declinations in 

those circuits where the seized funds are refunded directly from the Treasury Suspense 

Account by Fines, Penalties & Forfeiture (FP&F) Officers of Customs and Border Protection 

(CBP). See section C.2. Special Procedures for FP&F, are described more fully below In 

Section 4.C.li. 

a. Legal Basis for the Policy in the Sixth and Ninth Circuit 

In 1998, to reflect case law in the Sixth and Ninth Circuits, TEOAF advised that it would 

pay interest to claimants on refunds issued in those circuits without requiring a court 

order. The relevant cases are United Sfates v. $277,000 in U.S. Currency. 69 F.3d 1491 

(9th Cir. 1995) and United States v. $515,060 in U.S. Currency. 152 F.3d 491 (6th Cir. 

1998). In essence, those cases held that when returning seized funds to a claimant, the 

government must also disgorge the benefit the government earned from holding the 

funds. Practically speaking, that benefit is interest. However, in order to avoid invoking 

the well-settled legal doctrine that "interest cannot be recovered ... against the 

government in the absence of an express waiver of sovereign Immunity" espoused in 

Library of Congress v. Shaw, 478 U.S. 310,311 (1986), the Ninth and Sixth Circuits relied 

upon a disgorgement theory, which classified interest as part of the seized res itself. 

b. Declinations 

On April 11, 2008, the Ninth Circuit held in Carvajal that when a United States Attorney's 

Office (USAO) declines to file a forfeiture proceeding and returns seized currency to a 

claimant, the interest must also be returned. The court in Carvajal relied upon the 

disgorgement theory espoused in the $277,000 decision. Further, with respect to the 

Civil Asset Forfeiture Reform Act of 2000 (CAFRA), specifically 28 U.S.C. § 2465, which 

is deemed a waiver of sovereign immunity and sets forth a uniform rule for paying interest 

to substantially prevailing parties In civil forfeiture cases, the Carvajal court ruled that 

CAFRA's interest provision did not apply because there was no judicial proceeding In 

which there could have been a prevailing party; indeed, the USAO in Carvajal's case had 

declined to file a judicial proceeding. Thus, the Carvajal court held that in the absence of 

a forfeiture proceeding (administrative or judicial), CAFRA's Interest provision does not 

apply, and the disgorgement theory espoused in $277,000 does. The Carvajal court 

reaffirmed that $277,000 remains good law. 521 F.3d at 1249. 

3 AUSAs often include in their declination letters a request that interest be returned, but even If such 

request is absent, interest must be returned in a declination In the Sixth or Ninth Circuit. 
B. Situations Where Interest Is Not Payable 

i. Generally 

Interest is not payable in any circuit, other than the Sixth or Ninth, where interest is net 

expressly included in the written agreement or court order. 

ii. Petitions for Remission 

Interest Is not payable to a party whose petition for remission in a judicial forfeiture case was 

granted by the Department of Justice's Asset Forfeiture and Money Laundering Section. See 

31 U.S.C. §§ 9705(a)(l)(E) and (b)(I} (amounts paid for remission must not exceed the value 

of the property at the time of the seizure}. Because petitioners for remission of judicially 

forfeited property are generally not considered claimants or prevailing parties, the TFF is not 

authorized to pay interest to such parties under case law or statute. 

iii. Jurisdictional Bar 

Further, generally, the United States is not liable for interest if the claimant is convlcted 

of a crime for which the interest of the claimant in the property was subject to forfeiture 

under a Federal criminal forfeiture law. See 28 U.S.C. § 2465(b}(2}(B}. Thus, for example, 

in a declination case in which the claimant was convicted of a crime for which federal 

forfeiture was available, even where no forfeiture was actually attained, interest is not 

payable to that claimanUconvicted defendant. See United States v. Khan, 497 F.3d 204, 

209 n.6 (2d Cir. 2007). 

C. PROCEDURES TO REQUEST THAT TEOAF PAY INTEREST 

i. Generally 

To request payment of Interest on a refund, the seizing agency must complete Form 7a 

(Request for Payment of Interest} and Form 7 (Request for Refund From Forfeiture Fund) 

or Form 2 (Disposition Instructions fo"r Currency Held in Suspense Account}. The forms 

must be submitted to TEOAF together with the necessary supporting documentation (i.e., 

settlement agreements, court orders, declination letters, or, if applicable, simply indicate that 

interest is due pursuant to case law}. The payee must also complete a W9 form. TEOAF 

will calculate the amount of interest to be paid, and transmit the requests to the National 

Finance Center (NFC) for payment. Depending upon the specific circumstance, principal 

and interest may be paid in a single check or separately. 

ii. Special Procedures for FP&F Officers of CBP 

FP&F officers, on behalf of CBP and Immigration and Customs Enforcement (ICE}, may 

directly instruct the NFC to issue refunds of seized currency from the Treasury Suspense 

Account. However, FP&F officers do not have the capability to issue interest payments. For 

refunds from the suspense account for which interest Is payable under this policy (particularly 

for declinations in the Ninth or Sixth Circuit), request to pay Interest must be forwarded to 

TEOAF using TEOAF Form 7a, Request for Payment of Interest, as directed in Section C.1 

above. 
5, AUTHORITY. 31 U.S.C. § 9705; 28 U.S.C. § 2465; various case law. 

6. INFORMATION CONTACT. Any inquiries pertaining to this Directive should be directed to TEOAF's 

Refund Team at (202) 622-9600. 

7. CANCELLATION. None. This directive incorporates the guidance provided in TEOAF Memorandum, 

"U.S. v. $515,060.42 (Hurst), No. 95-6579, etc., (6th Cir. May 26, 1998)," July 17, 1998, TEOAF 

Memorandum, 'The Payment of Interest," May 12, 2000, and TEOAF Memorandum, "Payment of Interest 

required in the Sixth and Ninth Circuits on all Returns of Seized Currency; Interest Policy Generally," 

December 2, 2009. 

8. EFFECTIVE DATE. November 23 1 201 5 

ISi 

John Farley 

Acting Director 

TEOAF 

Attachment A- TEOAF Form 7a, Request for Payment of l_nterest - CBP 

Attachment B - TEOAF Form 7a, Request for Payment of Interest - IRS-Cl 

Attachment C - TEOAF Form 7a, Request for Payment of Interest - U.S. Secret Service 

Attachment D - TEOAF Form 7a, Request for Payment of interest - ICE