Whoops! What happens if the Supreme Court grants certiorari to review a question presented about a particular statute—but the case does not involve that statute?! That's the situation in Ellingburg v. United States, a case that will be argued next week (Tuesday, October 14). The Court granted review of the question presented "[w]hether criminal restitution under the Mandatory Victims Restitution Act (MVRA) is penal for purposes of the Ex Post Facto Clause." But closely analyzing the proceedings below reveals that the petitioner/defendant was actually ordered to pay restitution not under that mandatory statute but under the discretionary regime of the Victim Witness Protection Act (VWPA). Accordingly, the Court should resolve the case by dismissing it as improvidently granted—or, colloquially, the Court should "DIG."
The Ellingburg case has been largely overlooked in previews of the Court's upcoming Term. But Ellingburg raises an important issue for the crime victims' rights movement: Whether restitution is "penal" in character because it punishes criminal defendants. If restitution is characterized as punishment rather than compensation, then the restrictions of the Ex Post Facto Clause apply to Congress and state legislatures as they craft restitution regimes. And perhaps other constitutional restrictions (such as the right to jury trial) attach as well.
Because of the importance of the issue to the movement, I've joined Allyson Ho, Bradley Hubbard, and other lawyers at Gibson Dunn in filing an amicus brief urging the Court to affirm the judgment below in Ellingburg and hold that restitution compensates victims rather than punishes defendants. Our amicus brief is filed on behalf of a crime victim's mother, Ms. Debra Ricketts-Holder, whose son was senselessly murdered. She received restitution for her son's funeral expenses under an (arguably) ex post facto restitution regime in Michigan. The Michigan Supreme Court affirmed, explaining that restitution statutes "provide a civil remedy for victims' injuries rather than to provide a criminal punishment for defendants." The defendant in that case has sought review in the U.S. Supreme Court—and his petition is apparently being held for resolution of the Ellingburg case.
So how should the Supreme Court answer the question presented in Ellingburg about whether restitution under the federal MVRA is penal in character? An answer to that question might potentially shed some light on whether other restitution awards are penal, such as the award in Ms. Ricketts-Holder's case. But, remarkably, Ellingburg was not actually sentenced under the MVRA.
Here are the facts: In 1995, Ellingburg, along with an accomplice, robbed a bank with a sawed-off shotgun, escaping with $15,134.50 in cash. He was caught. In August 1996, a jury convicted Ellingburg of bank robbery and of using a firearm during a crime of violence. The district judge sentenced Ellingburg to 322 months in prison and ordered him to pay $7,567.25 in restitution to the bank—half of the money and his accomplice had stolen. In ordering restitution, the district court applied the VWPA, as the MVRA had only recently been adopted (between Ellingburg's crime and sentencing).
Several decades later, in 2022, Ellingburg finished his term of imprisonment, having paid only a quarter of his restitution obligation. Ellingburg's probation officer continued to seek restitution with interest, citing MVRA provisions allowing an extended period of time to collect restitution and adding interest to the obligation.
Ellingburg, proceeding pro se, challenged the continued enforcement of his restitution obligation under the Constitution's federal Ex Post Facto Clause, U.S. Const., art. I, § 9, cl. 3. He argued that the MVRA's liability extension of his restitution liability from 2016 to 2042 retroactively increased his punishment because the MVRA did not exist when he robbed the bank back in 1995.
The district court denied Ellingburg's motion. After examining the sentencing documents, the district court concluded that "rather than applying the MVRA in ordering restitution, the sentencing court instead applied the Victim and Witness Protection Act of 1982." The district court also held that extending the period of liability for a preexisting restitution obligation did not qualify as an increase in punishment for purposes of the Ex Post Facto Clause.
Ellingburg then obtained counsel and appealed to the Eighth Circuit. The Eighth Circuit affirmed on the ground that, under circuit precedent, MVRA restitution is not criminal punishment and therefore is not subject to the Ex Post Facto Clause.
Ellingburg filed a petition for a writ of certiorari in the Supreme Court. His petition did not disclose that the sentencing court had imposed his restitution obligation under the VWPA. Instead, the petition presented the question whether "criminal restitution under the [MVRA] is penal," extensively discussed the MVRA, and highlighted conflicting appellate decisions about whether MVRA restitution qualifies as criminal punishment.
After the Supreme Court granted certiorari, the government joined Ellingburg on the same side of the question presented. To assure adversarial argument, the Court appointed a very capable amicus (John Bash of the Quinn Emanuel firm) to defend the Eighth Circuit's judgment.
Ellingburg and the Government then filed their opening briefs on the merits, spilling lots of ink supporting their position that restitution awarded under the Mandatory Victim Restitution Act was penal.
The Court-appointed amicus then filed his response, pointing out that this case does not involve restitution ordered under the MVRA. Thus, if the Court were to answer the question presented, it would be handing down an impermissible advisory opinion:
[Ellingburg] asks this Court to decide the nature of "criminal restitution under the
[MVRA]," but the sentencing court did not apply the MVRA in imposing restitution even though the statute was in effect at that time. In the proceedings below, the district court determined that "rather than applying the MVRA in ordering restitution, the sentencing court instead applied the Victim and Witness Protection Act of 1982." For support, the [district] court cited the (now-sealed) 1996 presentence investigation report and 1996 judgment stating that under "[the VWPA], restitution may be ordered in this case."
On appeal [to the Eighth Circuit], [Ellingburg's] opening brief agreed that "the district court judge appears to have sentenced petitioner under the VWPA, the statute in effect at the time of the offense conduct." [Ellingburg] enumerated "several indicators" supporting that conclusion and showing that he was in fact sentenced under the pre-MVRA version of the VWPA[] ….
[Ellingburg] was therefore never subject to "restitution under the [MVRA]," and the question presented is not implicated by this case.
Court-appointed Amicus Br. at 13-15 (some citations omitted).
The Court-appointed amicus is correct: Because petitioner Ellingburg was not ordered to pay restitution under the MVRA, his question presented about how to characterize restitution under the MVRA is not actually presented. The only appropriate result in the case, then, is a DIG. As the Supreme Court has explained in other cases, if it becomes apparent that the question presented is "without legal significance" to the "rights of the parties," Coffman v. Breeze Corp., 323 U.S. 316, 324 (1945), the case should be "dismissed as improvidently granted," Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 566 (1977).
A DIG does not rest on some sort of technicality. Instead, it relies on the commonsense observation that cases will be most accurately resolved when courts decide them against backdrop of a concrete factual dispute. Moreover, others who have an interest in the rule of law at stake in outcome can point to the underlying facts of a case as potential limits on any holding.
Here, for example, restitution awarded under the MVRA may significantly differ from restitution awarded under the VWPA. Under the VWPA, restitution is discretionary. In deciding whether to impose restitution, a sentencing court can consider "factors" beyond the victim's loss "as the court deems appropriate," such as the defendant's characteristics, the crime's circumstances, and other concerns. By contrast, under the MVRA's mandatory-restitution regime, a restitution award must cover all relevant victim losses without regard to any considerations other than (for non-violent offenses) impracticability or burden on the court.
In his reply, Ellingburg gamely maintains that the MVRA question somehow remains properly before the Court. Here's the most significant part of his claim:
The court of appeals here … took the view that no ex post facto analysis is necessary at all, on the theory that restitution under the MVRA is a civil penalty to which the Ex Post Facto Clause is categorically irrelevant. This Court has the ability, if it chooses, to review that rationale…. [W]hile restitution under [the VWPA] remains discretionary, it shares other features in common with mandatory restitution under [the MVRA]: each is imposed "when sentencing a defendant" as a "penalty" for the commission of a criminal "offense," compare 18 U.S.C. 3663A(a)(1), with 18 U.S.C. 3663(a)(1)(A); each is subject to the procedures set forth in 18 U.S.C. 3664, see 18 U.S.C. 3556; and each has the same enforcement mechanisms, 18 U.S.C. 3613(f).
Ellingburg Reply Br. at 5 (some citations omitted).
Ellingburg gives away the game in conceding that the MVRA only "shares … certain features" in common with the VWPA. That concession means that a Court ruling on restitution under the MVRA would be advisory as to the parties, because the other features of the VWPA might dictate a different result. A Court decision on the question presented would not decide further proceedings. Rather than render an advisory opinion, the Court should DIG the case.
Tomorrow, I'll discuss why, if the Court nonetheless chooses to consider whether MVRA restitution penal, it should answer the question "no." Restitution is compensation for victims, not punishment of defendants.
I am honored to open up the 17th Season of 
