                                  PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT
           ______________

                 No. 11-1697
               ______________

      UNITED STATES OF AMERICA

                      v.

           RYAN JAMES CRAIG,

                              Appellant
           _____________________

On Appeal from the United States District Court
     for the Middle District of Pennsylvania
              (D.C. No. 06-cr-00219)
District Judge: Honorable Christopher C. Conner
            ______________________

  Submitted Under Third Circuit LAR 34.1(a)
               July 10, 2012

 Before: FUENTES, HARDIMAN, and ROTH,
              Circuit Judges.

     (Opinion Filed: September 17, 2012)
Stephen R. Cerutti, II
Joseph J. Terz
Office of United States Attorney
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108-0000
       Attorneys for Appellee

Tina Schneider
Suite 201
44 Exchange Street
Portland, ME 04101-0000
       Attorney for Appellant

                _________________________

                 OPINION OF THE COURT
                _________________________

HARDIMAN, Circuit Judge.

        This appeal presents a discrete question arising under the
Civil Asset Forfeiture Reform Act (CAFRA), 28 U.S.C. § 2465:
 does CAFRA entitle a convicted criminal to interest on an
award of excess funds returned to him after he satisfies a
restitution order? We hold that it does not.

                                 I

       Following his federal criminal convictions for wire fraud
and failure to appear at trial, the United States District Court for
the Middle District of Pennsylvania ordered Ryan James Craig




                                 2
to pay $12,411 in restitution and a $300 special assessment. 1
The Government sought to satisfy the restitution order from
$16,342 it had seized previously from Craig. Conceding that the
seized funds could be used for that purpose, Craig filed a motion
pursuant to Federal Rule of Criminal Procedure 41(g) for the
return of the remaining $3,631. The Government opposed
Craig’s motion, arguing that the balance should be applied to an
unsatisfied restitution order entered by the United States District
Court for the District of Rhode Island. After the District Court
for the Middle District of Pennsylvania granted the
Government’s request and denied Craig’s Rule 41(g) motion,
the Government moved to dismiss the civil forfeiture action it
had simultaneously been pursuing against Craig.

        Craig appealed the order that the $3,631 be transferred to
the Rhode Island District Court. Persuaded by Craig’s appeal,
we ordered the return of the $3,631 to Craig, holding that “the
District Court lacked the statutory authority to order the transfer
of seized funds to the Rhode Island Court for the purpose of
facilitating the payment of restitution in an unrelated case.”
United States v. Craig, 359 F. App’x 289, 292 (3d Cir. 2009).
In accordance with our opinion, the District Court for the
Middle District of Pennsylvania directed that the $3,631 be
returned to Craig. Craig then filed a motion seeking interest on
that amount pursuant to CAFRA. The District Court denied the
motion, and this timely appeal followed.



                                II
       1
        We affirmed Craig’s conviction and sentence in
United States v. Craig, 343 F. App’x 766 (3d Cir. 2009).




                                3
        The District Court had subject matter jurisdiction over
Craig’s criminal case pursuant to § 3231. We have appellate
jurisdiction over his appeal under 28 U.S.C. § 1291.

       “It is a fundamental principle of sovereign immunity that
federal courts do not have jurisdiction over suits against the
United States unless Congress, via a statute, expressly and
unequivocally waives the United States’ immunity to suit.”
United States v. Bein, 214 F.3d 408, 412 (3d Cir. 2000).
“‘[W]aivers of the Government’s sovereign immunity, to be
effective, must be unequivocally expressed,’ and any such
waiver must be construed strictly in favor of the sovereign.” Id.
(quoting United States v. Nordic Village, Inc., 503 U.S. 30, 33
(1992)). Furthermore, the Supreme Court’s “no-interest rule”
dictates that, “[i]n the absence of express congressional consent
to the award of interest separate from a general waiver of
immunity to suit, the United States is immune from an interest
award.” Library of Congress v. Shaw, 478 U.S. 310, 314
(1986), superseded on other grounds by Civil Rights Act of
1991, Pub. L. No. 102-166, § 114, 105 Stat. 1079.

                               A

        Reprising the arguments he made in the District Court,
Craig first asserts that the United States is liable for interest
under CAFRA because he prevailed in his challenge to the
Government’s attempt to divert funds to satisfy the Rhode Island
restitution order. 2 We disagree. CAFRA provides: “[I]n any


       2
        As Craig in his opening brief does not suggest that he
substantially prevailed in the civil forfeiture action itself, we
deem the argument waived. See Laborers’ Int’l Union of N.
Am., AFL-CIO v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d



                               4
civil proceeding to forfeit property under any provision of
Federal law in which the claimant substantially prevails, the
United States shall be liable for . . . interest actually paid to the
United States . . . and . . . an imputed amount of interest.” 28
U.S.C. § 2465(b)(1). A party cannot “prevail” without securing
an “alteration in the legal relationship of the parties.” NAACP v.
N. Hudson Reg’l Fire & Rescue, 665 F.3d 464, 486 n.12 (3d Cir.
2011).

        Here, when the District Court directed that the seized
funds be applied toward the payment of restitution, the
Government moved to dismiss the forfeiture proceeding it had
initiated against Craig. He agreed to the dismissal of the civil
action, and the District Court granted the Government’s motion.
 Craig obtained neither a judgment on the merits nor any relief
specific to the forfeiture action. Thus, he does not qualify as a
“substantially prevail[ing]” party under CAFRA. 28 U.S.C.
§ 2465(b)(1).

        While Craig concedes that “a Rule 41(g) motion for
return of seized funds may not be a civil proceeding to forfeit
property,” he suggests that the criminal restitution order issued
by the District Court at the Government’s request qualifies as a
civil proceeding to forfeit property. This argument cannot be
reconciled with the fact that an order of restitution is a
component of a criminal sentence, United States v. Perez, 514
F.3d 296, 299 (3d Cir. 2007). As such, it is a remedy distinct
from forfeiture and Craig’s attempt to conflate the two for
purposes of CAFRA fails.

                                 B

Cir. 1994) (“An issue is waived unless a party raises it in its
opening brief.”).



                                 5
       Craig next argues that equity requires the Government to
disgorge the interest. Craig cites no authority—nor are we
aware of any—for the proposition that equity can abrogate the
sovereign immunity of the United States. As the Court of
Appeals for the First Circuit has noted, “neither fairness
considerations nor rules applicable to private disputes can alone
provide grounds for abrogating sovereign immunity.” Larson v.
United States, 274 F.3d 643, 647 (1st Cir. 2001). Accordingly,
we hold that Rule 41(g), which provides only for the “return [of]
property” and makes no explicit mention of interest, does not
waive the sovereign’s immunity with respect to Craig’s claim.

        “Although courts treat a motion pursuant to [Rule 41(g)]
as a civil equitable action, such a characterization cannot serve
as the basis for subjecting the United States to all forms of
equitable relief.” Bein, 214 F.3d at 415. In Bein, we held that
the District Court lacked jurisdiction over a Rule 41(g) motion
seeking to recover damages for property that the Government
allegedly destroyed. Id. at 416. Noting that the Rule “only
provides for one express remedy—the return of property,” we
concluded that “a Federal Rule of Criminal Procedure that does
not expressly provide for an award of monetary damages does
not waive sovereign immunity.” Id. at 413. The same logic
applies to an award of interest. Accordingly, we reject Craig’s
attempt to circumvent Bein by characterizing the interest as part
of the seized property because “the force of the no-interest rule
cannot be avoided simply by devising a new name for an old
institution.” Shaw, 478 U.S. at 321.

        Our holding accords with the majority of our sister
circuits to have addressed the issue. See Larson, 274 F.3d at
647–48 (“[W]e feel constrained to hold that sovereign immunity
prevents recovery of interest here . . . [because while] Congress




                               6
has revised the statute to indicate its wish to waive sovereign
immunity and allow interest; [it] did not make the revision
retroactive.”); United States v. 30,006.25 in U.S. Currency, 236
F.3d 610, 613, 614 (10th Cir. 2000) (“[To the extent that]
recharacterizing an interest award as a disgorgement of profits
circumvents the effect of sovereign immunity . . . we [are not]
aware[] of any general waiver of sovereign immunity for unjust
enrichment claims. Moreover, fairness or policy reasons cannot
by themselves waive sovereign immunity.”); United States v.
$7,990.00 in U.S. Currency, 170 F.3d 843, 845 (8th Cir. 1999)
(“Sovereign immunity does not depend upon whether the
government benefitted from its conduct in question. Nor can the
no-interest rule be dismissed by labeling the award [the
petitioner] seeks constructive interest, or compensation for his
loss of use of the property—‘the force of the no-interest rule
cannot be avoided simply by devising a new name for an old
institution.’”); Ikelionwu v. United States, 150 F.3d 233, 239 (2d
Cir. 1998) (“Absent ‘express [C]ongressional consent to the
award of interest separate from a general waiver of immunity to
suit, the United States is immune from an interest award.’ There
is no statutory basis for awarding prejudgment interest in this
case. Accordingly . . . [petitioner] will not receive prejudgment
interest.” (quoting Shaw, 478 U.S. at 314)).

        We recognize that our approach differs from that
articulated by the Sixth, Ninth, and Eleventh Circuits, which
permit claims of interest to proceed against the United States.
See Carvajal v. United States, 521 F.3d 1242, 1248–49 (9th Cir.
2008) (“Considering the text of CAFRA, the overall statutory
scheme, and the legislative history, we hold that [United States
v.] $277,000 remains good law.”); United States v. 1461 W.
42nd St., 251 F.3d 1329, 1338 (11th Cir. 2001) (“[T]he
government may be liable for pre-judgment interest to the extent




                                7
that it has earned interest on the seized res. In such cases, the
government must disgorge its earnings along with the property
at the time when the property is returned.”); United States v.
$515, 060.42 in U.S. Currency, 152 F.3d 491, 504 (6th Cir.
1998) (“[T]o the extent that the Government has actually or
constructively earned interest on seized funds, it must disgorge
those earnings along with the property itself when the time
arrives for a return of the seized res to its owner.”); United
States v. $277,000 U.S. Currency, 69 F.3d 1491, 1493 (9th Cir.
1995) (“[S]hifting from one pocket to another cannot obscure
the fact that . . . the government obtained tangible and calculable
financial benefit from the retention of [Claimant]’s money. This
is the money that is constructively part of the res, and that must
be returned to [Claimant].”).

       As we reasoned in United States v. Nolasco, 354 F.
App’x 676, 682 (3d Cir. 2009) (non-precedential), the minority
view articulated by the Sixth, Ninth, and Eleventh Circuits is at
odds with Shaw’s exhortation that “[c]ourts lack the power to
award interest against the United States on the basis of what
they think is or is not sound policy.” Shaw, 478 U.S. at 321.
“[The] view expressed in $277,000 in U.S. Currency (finding
private transactions instructive) and Carvajal (relying on
CAFRA’s legislative history) is in conflict with Shaw.”
Nolasco, 354 F. App’x at 682. “[W]hether labeled as damages,
loss, earned increment, just compensation, discount, offset,
penalty or any other term, the no-interest rule remains
applicable.” Id. Because “interest by any other name is still
interest,” id., Craig’s equity-based claim must fail.

                                III

       For the foregoing reasons, we will affirm the order of the
District Court.



                                8
