May 5, 2025 | Volume 32, Issue 10
This Report summarizes opinions issued on April 4, 7, and 17, 2025 (Part I); and cases granted review on April 7 and 17, 2025 (Part II).
Opinions
Trump v. J.G.G., 24A931.
In a per curiam opinion, the Court granted the Government’s emergency application and vacated two temporary restraining orders, ordered by the District Court of the District of Columbia, concerning the detention and removal of a group of Venezuelan immigrants. The Venezuelan immigrants, who were detained in various immigration detention centers across the United States, were transported to a single detention facility in Texas. Then, on March 14, 2025, the President invoked the Alien Enemies Act (AEA) and issued a proclamation, declaring: “[A]ll Venezuelan citizens 14 years of age or older who are members” of the Tren de Aragua criminal organization, who are not “naturalized” citizens or “lawful permanent residents,” would be subject to “immediate apprehension, detention, and removal.” The President further designated Tren de Aragua a foreign terrorist organization. Later that day, five of the detainees petitioned the District Court of the District of Columbia to enjoin the Government from implementing the proclamation and removing them from the United States. Their suit challenged the legality of the Government’s invocation of the AEA and asserted that their removal pursuant to the proclamation would violate the Due Process Clause. The Government then began loading detainees onto planes. On March 15, the district court granted the plaintiffs’ petition and issued a temporary restraining order (TRO), which prevented the plaintiffs’ removal under the AEA until the parties could litigate the merits. The district court issued a subsequent TRO extending the initial order by an additional 14 days. Meanwhile, the district court scheduled emergency hearings and denied the Government’s emergency motions to stay the orders. Following the denials of its motions to stay, the Government petitioned the Court for relief.
The Court construed the district court’s two TROs as appealable injunctions. It then concluded that aliens’ “[c]hallenges to removal under the AEA . . . must be brought in habeas” corpus proceedings, regardless of whether they “formally request release from confinement,” because such challenges “‘necessarily imply the invalidity’ of [the aliens’] confinement.” A habeas court’s review of AEA challenges is limited to “‘questions of interpretation and constitutionality’ of the [AEA]” and whether an alien “‘is in fact an alien enemy fourteen years of age or older.’” The Court also confirmed, without dispute from the Government, that aliens are entitled to due process under the Fifth Amendment. “More specifically, in this context, AEA detainees must receive notice after the date of this order that they are subject to removal under the Act. The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.” A claim for habeas relief must be filed in the “district of confinement.” Because the district of confinement in this case lies in Texas, not the District of Columbia, the Court concluded that the Government “is likely to succeed on the merits of this action.”
Justice Kavanaugh joined the Court’s opinion, but wrote a concurrence to clarify his belief that the only dispute at issue is the “proper place of venue.” He wrote that venue depends on whether the claim “belongs in habeas corpus proceedings or instead may be brought under the Administrative Procedures Act” (APA). He added “only that the use of habeas for transfer claims is not novel. In the extradition context and with respect to transfers of Guantanamo and other wartime detainees, habeas corpus proceedings have long been the appropriate vehicle.”
Justice Sotomayor issued a dissenting opinion that was joined by Justices Kagan and Jackson in full and by Justice Barrett in part. Justice Sotomayor questioned the propriety of invoking the AEA. Congress enacted the AEA in 1798 when it was “consumed with fear of war of France.” The AEA permits the President to detain and remove any noncitizen deemed “dangerous to the peace and safety of the United States.” Since its enactment, the AEA has been invoked “only three times, each in the context of an ongoing war.” Given that background, stated Justice Sotomayor, it is questionable whether the AEA authorizes the Venezuelan immigrants’ detainment and removal. And, she continued, even if the AEA could authorize their detainment and removal, it is questionable whether the President properly invoked the AEA’s authority: he did not publicly proclaim his intention to invoke the AEA’s authority—he instead signed the proclamation after the Venezuelan immigrants had been transferred to Texas for deportation—and he invoked the AEA during a time of peace rather than war and targeted members of a criminal organization rather than of a foreign nation.
Justice Sotomayor also maintained that the Court’s emergency intervention is “inexplicable” and “dangerous.” In her view, the Court lacked jurisdiction to review the district court’s TROs because such orders are generally not appealable unless they risk causing imminent irreparable harm. There was no risk of such harm in this case, she wrote, when the TROs were to remain in effect for only five more days and, had the Government provided adequate due-process proceedings, no AEA detainee could have been imminently deported. Additionally, because this case does not involve a “concrete and irreparable harm,” it does not fall within the narrow kinds of cases the Court traditionally handles on the emergency docket for extraordinary intervention. Any preference the Government may have “for defending against one form of litigation over the other” (i.e., any preference it has to defend against 300 or more individual habeas petitions in its chosen venues, over this one APA class suit) does not qualify for emergency intervention. Conversely, Justice Sotomayor stated, under the majority’s decision there is risk of “severe and irreparable harm” to detainees if they are unable to obtain counsel’s assistance to file for relief or appeal an adverse judgment in habeas court. That risk to detainees is heightened considering that, to date, the Government has “sought to avoid judicial review,” “largely ignored its obligations to the rule of law,” and refused “to facilitate the return of individuals erroneously removed” to Venezuela—Government actions the majority has not considered in reaching its decision.
Joined by Justice Barrett, the dissent asserted that the majority’s decision is “troubling” and “dubious.” The plaintiffs neither requested release from custody nor challenged their confinement’s validity. Absent that, Justice Sotomayor stated, the majority’s decision that habeas is the exclusive remedy in the plaintiffs’ circumstances is a “novel” one. Further, she wrote, the Court “has never limited the availability of APA relief so narrowly” without statutory preclusion. “Indeed, in the mid-20th century, this Court repeatedly said that habeas and APA actions were both available to noncitizens challenging their deportation orders.”
Justice Jackson, in a separate dissent, emphasized that the Court’s “rushed” and cursory decision about a “complex and monumental issue[]”—absent any merits briefing, oral argument, or meaningful deliberation—is “inappropriate,” “misguided,” and “dangerous” and “substantially increases” the risk of error.
Department of Education v. California, 24A910.
On its emergency docket, the Court by a 5-4 vote stayed the district court’s temporary restraining order (TRO) and extension of that order, which enjoined the federal government from terminating various education-related grants. That order also required the federal government to pay out past-due grant obligations and to continue paying obligations as they accrue.
On March 6, 2025, eight states sued the Department of Education claiming that the mass summary termination of more than 100 grants the federal government had previously awarded to public schools and universities across the country was arbitrary and capricious, and not in accordance with law, in violation of the Administrative Procedure Act (APA). The states alleged that because of the grant terminations, their public universities, schools, and other institutions would face “abrupt shortfalls” “exceeding ten million dollars.” The district court first issued its March 10, 2025 TRO after a two-hour hearing. The district court later entered a second order extending the TRO until April 7, 2025. The federal government requested a stay pending appeal, which the district court denied, as did a panel of the First Circuit. The First Circuit assumed without deciding that it had jurisdiction to review the TRO and determined that the states were likely to succeed on the merits, that the federal government’s assertion of irreparable harm consisted of “speculation and hyperbole,” and that the equitable stay factors cut against the federal government. The federal government filed an application to vacate the district court’s orders and requested an immediate administrative stay. Through a per curiam opinion, the Court “construe[d] the application as seeking a stay pending appeal and grant[ed] the application.”
The Court acknowledged that ordinarily the courts of appeals lack appellate jurisdiction over appeals from TROs, but reasoned that several factors favored construing the district court’s order as a preliminary injunction. These included that the federal government is likely to succeed in showing that the district court lacked jurisdiction to order the payment of money under the APA because the APA’s waiver of sovereign immunity does not extend “to enforce a contractual obligation to pay money.” See Great-West Life & Annuity Ins. Co. v. Knudson, 534 U. S. 204, 212 (2002). Instead, said the Court, the Tucker Act grants the Court of Federal Claims jurisdiction over suits based on “any express or implied contract with the United States.” 28 U.S.C. §1491(a)(1).
The Court then addressed the remaining stay factors. The Court noted that the states “have not refuted the Government’s representation that it is unlikely to recover the grant funds once they are disbursed.” By contrast, if the states ultimately prevail, they can recover any wrongfully withheld funds for programs they chose to keep running. Plus, the states “have represented in this litigation that they have the financial wherewithal to keep their programs running.” The Court stayed the TRO and its extension until the disposition of the appellate process in the lower court and the certiorari process in the Court, if sought.
The Chief Justice would have denied the application. Justices Kagan and Jackson wrote separate dissents. Justice Kagan noted that the federal government did not defend the legality of canceling the education grants at issue. And, contrary to the per curiam opinion, the states had represented that the loss of the grants would cause them to curtail teacher training programs. Justice Kagan believed that the case did not need the Court’s immediate attention, and it should have allowed the dispute to proceed in the ordinary way with full briefing and argument on the merits and jurisdictional issues. And she asserted that, “[t]o support a different result here, the Court relies exclusively on Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204 (2002).” “But,” she said, “Great-West was not brought under the APA, as the Court took care to note. . . . So the Court’s reasoning is at the least under-developed, and very possibly wrong.”
Justice Jackson was joined by Justice Sotomayer in her dissent, which mirrored many of Justice Kagan’s concerns. Justice Jackson stated that TROs are not appealable, so the Court should have denied the federal government’s application. She noted multiple times that the TRO was set to expire three days after the Court’s ruling and that the federal government had not defended the merits of its position. Justice Jackson said that the federal government failed to show its application required emergency relief and disbelieved that the federal government lacked remedies to recoup the funds if necessary. She would have permitted the lower courts to proceed as usual “as we would expect in any other case in which the Government was not the applicant.” She questioned the Court’s practices related to emergency applications and its “eagerness to insert itself into this early stage of ongoing litigation.”
Cunningham v. Cornell University, 23-1007.
The Court unanimously held that to state a claim under 29 U.S.C. §1106(a)(1)(C) of ERISA, a plaintiff need only allege the elements set forth in that provision; the plaintiff need not also assert that an exemption to §1106(a)(1)(C) contained in another provision does not apply. Section 1106(a)(1)(C) categorically bars a fiduciary of an employee benefit plan from entering into transactions that involve “a direct or indirect” “furnishing of goods, services, or facilities between the plan and a party in interest,” which include service providers. Meanwhile, §1108 enumerates 21 exemptions to those prohibited transactions. Among them is §1108(b)(2)(A), which exempts from §1106(a)(1)(C) any transaction that involves “[c]ontracting or making reasonable arrangements with a party in interest for office space, or legal, accounting, or other services necessary for the establishment or operation of the plan, if no more than reasonable compensation is paid therefor.” §1108(b)(2)(A). This case concerned the interaction of those two provisions and an ERISA plaintiff’s pleading obligations.
Cornell University contracted with “the Teachers Insurance and Annuity Association of America-College Retirement Equities Fund (TIAA) and Fidelity Investments Inc. (Fidelity). TIAA and Fidelity offered investment options to plan participants and served as recordkeepers for the retirement plans by tracking account balances and providing account statements. Cornell compensated TIAA and Fidelity with fees from a set portion of plan assets.” Petitioners represent a class of current and former employees who participated in the plans. They sued Cornell in district court, alleging that Cornell, as plan administrator, violated §1106(a)(1)(C) through that arrangement by paying TIAA and Fidelity more than a reasonable fee. The district court dismissed the suit. The Second Circuit affirmed the ruling but on different grounds. It dismissed the action because petitioners failed to allege that the transactions were not exempt under §1108(b)(2)(A). The court reasoned that the §1108(b)(2)(A) exemption constitutes an element of—not an affirmative defense to—a §1106(a)(1)(C) claim. In an opinion by Justice Sotomayor, the Court reversed and remanded.
The Court explained that the plain language of §1106(a)(1)(C) sets out only three elements: (1) causing a plan to engage in a transaction (2) that the fiduciary knows or should know constitutes a direct or indirect furnishing of goods, services, or facilities (3) between the plan and a party in interest. Thus, “plaintiffs need only plausibly allege each of those [three] elements” to assert “a prohibited-transaction claim” under that statute. Critically, held the Court, §1108(b)(2)(A) does not impose additional pleading requirements because its exemption is an affirmative defense to a prohibited-transaction claim, making it the defendant’s, not the plaintiff’s, responsibility to assert. The Court noted that §1108 has the typical, “orthodox format” of statutes that identify affirmative defenses, i.e., it is separate from the section to which its substance applies and expressly references the section to which its exemptions apply. Section 1108’s heading—“Exemptions from prohibited transactions”—and its use of the term “exemptions” also indicate a congressional intent to shift the burden to defendants to persuade a court that a §1108 exemption applies. By contrast, found the Court, §1106’s heading—“Prohibited Transactions”—read plainly, confirms that §1106 alone defines the elements of a prohibited-transaction claim. Thus, held the Court, §1108(b)(2)(A) is not an element of a prohibited-transaction claim.
The Court elaborated that to conclude differently would lead to illogical, impractical results and cause fairness concerns for plaintiffs. There are 21 different exemptions in §1108 and “hundreds of regulatory exemptions” promulgated pursuant to the provision. A plaintiff would therefore have to plead and dispute the inapplicability of each of those statutory and regulatory exemptions if §1108’s exemptions were to be construed as elements rather than affirmative defenses. On top of that burden, noted the Court, the plaintiff often lacks the facts to know the potential applicability of an exemption. The Court disagreed that its opinion would result in an “avalanche of meritless litigation” for fiduciaries and associated litigation costs harmful to plans. “[D]istrict courts can use existing tools . . . to screen out meritless claims before discovery”; and for those claims that survive motions to dismiss, courts “retain discretionary authority to expedite or limit discovery as necessary to mitigate unnecessary costs.”
Justice Alito, joined by Justices Thomas and Kavanaugh, separately concurred. Justice Alito expressed the concern that, when sued for a §1106(a)(1)(C) violation, plans will probably settle and the costs of settlement and related litigation will be passed onto plan participants. To minimize such harm, he urged district courts to employ safeguards to promptly dispose of insubstantial claims—including ordering a plaintiff to file a reply when an answer asserts a §1108 exemption as an affirmative defense.
Cases Granted Review
Trump v. CASA, Inc., 24A884; Trump v. Washington, 24A885; Trump v. New Jersey, 24A886.
The Court consolidated and set the federal government’s three applications for stays of injunctions for oral argument on May 15, 2025, and deferred ruling on the requested stays pending that argument. The federal government had filed applications for partial stays of the lower courts’ orders enjoining nationwide President Trump’s executive order limiting birthright citizenship to children who have at least one parent who is a citizen or lawful permanent resident.
On January 20, 2025, President Trump issued an executive order entitled “Protecting the Meaning and Value of American Citizenship” (the Citizenship Order) that effectively revoked birthright citizenship for two groups of people. Section 1 of the Citizenship Order states that “the privilege of United States citizenship does not automatically extend to” (1) a person whose mother was unlawfully present in the U.S. and whose father was not a citizen or lawful permanent resident, and (2) a person whose mother’s presence in the U.S. at the time of that person’s birth was lawful but temporary and whose father was not a citizen or lawful permanent resident. Section 2 directs federal government departments and agencies to stop issuing documents recognizing citizenship to those people; Section 3 directs the appropriate government enforcement agencies to ensure that regulations and policies are consistent with the Citizenship Order.
The day after the Citizenship Order was issued, the States of Washington, Arizona, Illinois, and Oregon sued the federal government in the U.S. District Court for the Western District of Washington. Three individual plaintiffs, who are expectant mothers, also filed suit in the district court and the cases were consolidated (the Washington respondents). The state plaintiffs contend that the Citizenship Order “seeks to impose a modern version of Dred Scott in direct conflict with the plain text of the Fourteenth Amendment, century-old Supreme Court precedent, and the Immigration and Nationality Act (INA), which faithfully tracks the Citizenship Clause’s language, 8 U.S.C. § 1401(a).” The individual plaintiffs moved for class certification and a preliminary injunction for that class, but that portion of the proceeding has been stayed. Meanwhile, the district court granted the state respondents’ request for a nationwide injunction enjoining the federal government from enforcing or implementing the Citizenship Order. The federal government asked the court to limit the injunction to the parties, but the district court granted the states’ request to enforce it on a nationwide basis. The court stated that a “geographically limited injunction” would be “ineffective” and “unworkable.” The federal government appealed and an emergency motions panel of the Ninth Circuit denied the government a stay pending appeal because it had not shown a likelihood of success on the merits. That appeal is pending in the Ninth Circuit; it will be fully briefed on April 25, 2025, and is scheduled for argument on June 4, 2025.
Separately, on January 21, two non-profit immigrant-rights organizations, CASA, Inc. and Asylum Seeker Advocacy Project, Inc., and five pregnant individuals (the Casa respondents) challenged the Citizenship Order in the U.S. District Court for the District of Maryland. That district court concluded that a “nationwide injunction is appropriate,” because CASA has members “in every state,” the Citizenship Order is a “categorical policy,” and citizenship is a national concern that “demands a uniform policy.” The district court also held the there is “a very strong likelihood of success on the merits,” that the Citizenship Order “contradicts the plain language of the Fourteenth Amendment and conflicts with 125-years-old binding Supreme Court precedent,” and the balance of equities and public interest weigh strongly in favor of plaintiffs. The federal government appealed and moved for a partial stay to limit the scope of the injunction to the five individual plaintiffs and eleven other members named in the complaint. The district court denied the motion. A divided motions panel of the Fourth Circuit also denied relief. Judge Niemeyer dissented and said that he would “grant the government’s modest motion, which seems only to cabin the [injunction’s] inappropriate reach.”
Finally, New Jersey and 17 other states, the District of Columbia, and San Fransico (the New Jersey respondents) challenged the Citizenship Order in the U.S. District Court for the District of Massachusetts. That court also granted a nationwide preliminary injunction against the Citizenship Order’s enforcement and implementation. The states argued that they would suffer immediate financial injuries, operational disruptions, and sovereign harms from the order. The district court “easily” found that the states had standing to challenge this policy because of the potential monetary harms. It also found that they had Article III standing based on independent sovereign injuries. The district court, like the others, found that the equities tipped in favor of the plaintiffs and that the plaintiffs were “nearly certain to prevail.” The federal government again appealed and moved for a partial stay. The district court denied the stay, and the court of appeals later also denied the stay. The First Circuit ruled that the federal government was unlikely to succeed in demonstrating that the Citizenship Order was lawful; it also ruled that the states had standing based on the loss of federal funds traceable to the Citizenship Order.
The federal government’s current applications in the Supreme Court request a partial stay of the nationwide injunctions of the Citizenship Order while the parties litigate “weighty merits questions.” The federal government asks the Court to “restrict the scope” of the preliminary injunctions to the parties within each court’s power. The federal government believes the universal preliminary injunctions are overbroad in three ways: (1) they grant relief to non-parties, (2) grant relief to states, and (3) enjoin the internal operations of the Executive Branch. The federal government primarily takes issue with injunctions that govern the whole nation, calling these universal injunctions “legally and historical dubious” that “transgress constitutional limits on courts’ powers.” It asserts that district courts granting universal injunctions “upend” the court system, give orders that only courts of last resort are empowered to issue, and can cause “overlapping” universal injunctions concerning the same policies. The federal government also submits that universal injunctions “render meaningless rules about joinder and class actions” and can “sweep up nonparties who may not wish to receive the benefit of the court’s decision.” It maintains that granting relief here would not mean that affected individuals would need to file thousands of separate suits for they could seek class certification and if appropriate seek class-wide preliminary relief. The federal government further asserts that universal injunctions harm it and courts by stopping the Executive Branch from performing its constitutional functions before a court fully examines the merits.
The federal government also argues that the state respondents do not have Article III standing to challenge the Citizenship Order. The district courts in the Washington and New Jersey cases deemed the universal injunction necessary to redress state respondents’ asserted injuries if the Citizenship Order was enforced and implemented in some sister states. The federal government argues that the state respondents must assert their own legal rights and not assert individual-rights claims.
Respondents’ arguments have significant overlap. At the outset, they argue that the nationwide injunctions maintain the status quo of birthright citizenship as it has been recognized for 125 years. They thus assert that the federal government cannot show either a need for emergency relief or irreparable harm. They note that the federal government has failed to contest the lower courts’ rulings that respondents are likely to succeed on the merits and instead has focused on challenging the scope of the nationwide injunctions.
The Casa respondents assert that “[i]t is well-settled that an injunction may properly benefit nonparties when ‘necessary to provide complete relief to the plaintiffs.’” And that is the case here, they say, because “[o]nly a universal injunction would adequately ensure that relief reaches all members of the organizational plaintiffs. Plaintiff CASA has more than 175,000 members. Plaintiff ASAP has more than 680,000 members. They reside in all 50 states.” The Casa respondents next assert that “[t]he scope of the district court’s injunction is also appropriate because the Executive Order is facially unlawful. As this Court has repeatedly reaffirmed, in a facial challenge, a law ‘may be struck down in its entirety.’” Further, argue the Casa respondents, “[a] nationwide injunction is also appropriate to preserve the equal treatment of newborn babies under the Citizenship Clause. Citizenship is a matter of special nationwide concern and requires nationwide consistency.” Responding to the federal government’s arguments, the Casa respondents insist that the Court has long recognized nationwide injunctions and that “nothing in Article III supports a flat prohibition on injunctions benefiting nonparties.” And they say that “[n]onparty relief is also well-supported by the history of equitable remedies.”
The New Jersey respondents argue on standing that the Citizenship Order will inflict “immediate and significant financial injuries” upon them. They submit that states “receive substantial federal funding to provide health, education, and foster care services to children, but only if those children are U.S. citizens or have a qualifying immigration status.” As to nationwide injunctions, the New Jersey respondents argue that “it is hard to imagine a case better suited to a nationwide preliminary order than this one. . . . [T]he injunction merely preserves a centuries-old status quo that has bound this entire country since its earliest days, and is dictated by precedents of this Court that already govern this question nationwide. An injunction narrower in scope would lead to extraordinary results, where a child’s Americancitizenship would vary depending on what State the child was born in—and possibly even what State the child’s family moves into. And most fundamentally, as the court below explained in selecting this particular remedy, any narrower injunction would simply fail to remedy the States’ substantiated irreparable harms.” (Citations omitted.)
The Washington respondents also argue that they have standing to “protect their pecuniary and sovereign interests.” They submit that the Citizenship Order “will directly cause the Plaintiff States to lose funding and require 22 substantial changes to existing public programs such as Medicaid, the Children’s Health Insurance Program (CHIP), Title IV-E foster care, and the Social Security Administration’s (SSA) Enumeration at Birth program.” They also argue that states have a sovereign interest in defending a constitutional provision that regulates state citizenship, not only U.S. citizenship, because the Citizenship Clause directly governs states by granting both national citizenship to those born in the United States, as well as citizenship in “the State wherein they reside.” They disagree with the federal government’s characterization that they are attempting to assert individual rights or a parens patriae claim. They insist that they do not assert claims for individual rights but for their own pecuniary and sovereign interests as states. As to the nationwide scope of the injunctive relief, the Washington respondents make arguments similar to those made by the other respondents.
Villarreal v. Texas, 24-557.
At issue is whether a trial court abridges a defendant’s Sixth Amendment right to counsel by prohibiting the defendant and his counsel from discussing the defendant’s testimony during an overnight recess but allows them to confer about other matters. In Geders v. United States, 425 U.S. 80 (1976), the Court held that a trial court’s order preventing the criminal defendant from consulting his counsel “about anything” during a 17-hour overnight recess in the trial between his direct and cross-examination testimony deprived him of his Sixth Amendment right to counsel. The Court noted that the problem of possible improper influence on testimony or “coaching” can be dealt with in other ways, such as by a prosecutor’s skillful cross-examination to uncover whether “coaching” occurred during a recess, by the trial judge’s direction that the examination of witnesses continue without interruption until completed, or by otherwise arranging the sequence of testimony so that the examination of a witness be completed without interruption. Later, in Perry v. Leeke, 488 U.S. 272 (1989), the Court analyzed a 15-minute recess where counsel and the defendant were not allowed to confer. In that habeas corpus proceeding, the Court concluded that petitioner’s conviction should stand because the trial court’s error was not prejudicial under Strickland v. Washington,466 U.S. 668. The Court held that the evidence against petitioner was overwhelming, and there was no basis for believing that his testimony on cross-examination would have been different had he been given an opportunity to confer with his counsel during the recess. The Court also reasoned that the long overnight interruption in Geders was of a different character than the brief recess because the consultation between attorney and client that occurs during an overnight recess would encompass matters that the defendant does have a constitutional right to discuss with his lawyer.
Here, petitioner David Villarreal testified that he stabbed and killed his boyfriend. He claimed self-defense. The evidence showed that Villarreal had been in a drug-fueled paranoia for days leading up to the killing. During Villarreal’s direct examination, the trial court had to pause the proceedings for an administrative matter and recess for the day. The trial court admonished Villarreal’s attorneys not to talk to him about his testimony over the break, but emphasized that they were allowed to speak to him about other trial matters. Counsel for Villarreal noted an objection, but did not assert that they planned to talk to Villarreal about his testimony or question the scope of the order. Villarreal resumed his testimony about a day later. He was convicted of murder and sentenced to a 60-year prison term. The Texas Court of Appeals affirmed his conviction, rejecting Villarreal’s Sixth Amendment claim. The Texas Court of Criminal Appeals (TCCA) also affirmed. 2024 WL 4446740.
The TCCA reasoned that while “[a]t first glance, the length of the recess appears to be the determining variable between” the Geders and Perry, “the type of communication being restricted is the true controlling factor.” The TCCA concluded that counsel telling the defendant during an overnight recess what to testify to and how to answer questions would be prohibited communication. In contrast, counsel advising the defendant to take a plea deal due to the defendant’s poor testimony would be a constitutionally protected communication.
Villarreal argues in his petition that the TCCA’s ruling is contrary to Geders. He maintains that the importance of consultation with counsel is “at its peak” during an overnight recess. Villarreal says that Geders and Perry make a bright-line rule that during a brief daytime recess the trial court may instruct the defendant not to discuss his testimony with counsel, but during an overnight recess the defendant must be allowed to discuss his testimony with counsel. He also noted that six federal circuits (the Second, Fourth, Seventh, Ninth, Eleventh, and D.C.) and three state high courts have held that the Sixth Amendment guarantees a defendant a right to confer with counsel about his testimony during an overnight recess. By contrast, four state courts have found that does not what the trial court did here would not violate the Sixth Amendment right to counsel.
Ellingburg v. United States, 24-482.
The Court will resolve whether restitution ordered pursuant to the Mandatory Victims Restitution Act of 1996 (MVRA) constitutes a criminal punishment for purposes of the Ex Post Facto Clause. The MVRA amended parts of the Victim and Witness Protection Act of 1982. In relevant part, the MVRA extended the time during which the federal government could collect restitution from a convicted person. Under prior law, the federal government could enforce a restitution order for 20 years from the entry of judgment. Under the amended version, the government could collect for “the later of 20 years from entry of judgment or 20 years after the release from imprisonment.” The MVRA also added a new provision that generally permits interest to accrue on restitution orders exceeding $2,500. These amendments became “effective for sentencing proceedings in cases in which the defendant is convicted on or after the date of [the MVRA’s] enactment.” 110 Stat. 1241, §211 (18 U.S.C. §2248 note). Congress enacted the MVRA on April 24, 1996.
Holsey Ellingburg, Jr., committed bank robbery and used a firearm in December 1995, was convicted in August 1996, and sentenced in November 1996. At sentencing, the court ordered restitution in the amount of $7,567.25, which represented half the amount stolen from the bank. Twenty years later, in November 2016, Ellingburg had not yet satisfied the restitution order, and the government continued to collect payments from his prison account. In June 2022, Ellingburg was released from prison, at which time he still had an outstanding balance of restitution. The government continued its collection efforts and charged interest on the outstanding balance. In March 2023, Ellingburg filed suit in federal court challenging the government’s continued enforcement of the restitution order. By February 2024, the government estimated that, with interest, Ellingburg owed $13,915.84 in restitution. The district court denied Ellingburg’s motion, concluding that the MVRA effected only procedural changes that did not disadvantage criminal defendants and therefore did not implicate the Ex Post Facto Clause. The Eighth Circuit affirmed on another ground. 113 F.4th 839. It concluded that restitution imposed under the MVRA was a civil, not criminal, remedy and thus the Ex Post Facto Clause did not apply as a threshold matter. The Eighth Circuit had previously held that “because restitution under the MVRA ‘is designed to make victims whole, not to punish perpetrators, . . . it is essentially a civil remedy created by Congress and incorporated into criminal proceedings for reasons of economy and practicality.’” (Quoting United States v. Carruth, 418 F.3d 900, 904 (8th Cir. 2005)).
In his petition, Ellingburg presents three arguments as to why he believes the Eighth Circuit’s decision is wrong. First, he argues that the MVRA’s text and structure show that Congress intended restitution to be a criminal punishment. And Congress’s intent is dispositive on this issue according to Hudson v. United States, 522 U.S. 93 (1997). Second, the Court has historically considered restitution as being criminal in nature because it is distinct from tort liability and traditional fines. And treating restitution as a criminal punishment will better achieve the goal of deterring criminal conduct, as compared to a traditional fine. Third, Congress impliedly intended that restitution be a form of criminal punishment.
NAAG Center for Supreme Court Advocacy Staff
- Dan Schweitzer, Director and Chief Counsel
- Lauren Campbell, Supreme Court Fellow
- Gracynthia Claw, Supreme Court Fellow
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