Docket Report: Ellingburg v. United States

Update 11/1/25: The experience-3 model continues to predict reverse (56 percent) but there is considerable uncertainty: the ninety percent band of reversal probability runs from 46 percent to 70 percent. Gorsuch, Jackson, and Kagan are all likely to vote to reverse; Alito is likely to vote to affirm. And the remaining justices are closer.

Initial post: Can you be criminally punished for conduct that was lawful when undertaken? The answer is no, thanks to the ex post facto clause of the constitution. But the clause is understood only to sharply bind in the criminal space. For instance, Congress could pass a law that changed the tax treatment of some action you took in the past—you could be taxed for an action that was not taxable when taken. Or government benefits may turn on past actions—you could lose benefits for an action that was not relevant to benefits when taken. So a lot turns on this criminal categorization, and that is the focus in Ellingburg. The Mandatory Victims Restitution Act (MVRA) made restitution to victims a mandatory part of sentencing for certain crimes (as the name suggests). It also applied more stringent restitution terms, extending the time of restitution liability. That’s actually the rub in this case—how long can you be on the hook for restitution? Ellingburg wants to say a shorter period of liability should apply. Ellingburg robbed a bank in December 1995 and he was convicted in August of 1996. Congress passed the MVRA in April 1996. All parties agree the MVRA was applied retroactively to him. The question is, does that retroactivity violate the ex post facto clause? That turns on whether the MVRA restitution should be viewed as criminal punishment. Ellingburg has many good arguments that MVRA restitution is criminal punishment—for instance, it was imposed mandatorily by a judge as part of criminal sentencing. Nevertheless, the Eighth Circuit said there was no violation of the ex post facto clause in imposing the MVRA retroactively on Ellingburg. Following circuit precedent, the remedy was “essentially civil,” though “incorporated” into criminal proceedings. The government opposed cert but now sides with Ellingburg. He has a good case. The model reflects this with a 68 percent chance of reversal. Moreover, after argument, it would predict reversal votes from all justices save perhaps Thomas.