Attachment: Ellingburg v. United States (Supreme Court Decision, 2026) — United States v. Cassie Will-Darnall (Dkt. 123-1)
Summary
This is a Westlaw copy of the U.S. Supreme Court opinion in Ellingburg v. United States, argued October 14, 2025, and decided January 20, 2026. Justice Kavanaugh delivered a unanimous opinion holding that restitution under the Mandatory Victims Restitution Act of 1996 (MVRA) is plainly criminal punishment for purposes of the Ex Post Facto Clause. The petitioner committed bank robbery before the MVRA was enacted and was ordered to pay $7,567.25 in restitution, and the Eighth Circuit had concluded that MVRA restitution is not criminal punishment. The Court reversed and remanded because the MVRA labels restitution a penalty for a criminal offense and the Government, not the victim, is the party adverse to the defendant at sentencing. Justice Thomas filed a concurrence joined by Justice Gorsuch.
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Ellingburg v. United States, 607 U.S. ---- (2026)
--- S.Ct. ----
the MVRA is criminal punishment for
--- S.Ct. ---- purposes of the Ex Post Facto Clause.
Only the Westlaw citation is currently
available.
Decision of Court of Appeals reversed and
Supreme Court of the United States.
remanded.
Holsey ELLINGBURG, Jr., Petitioner
v. Justice Thomas filed concurring opinion, in
UNITED STATES which Justice Gorsuch joined.
No. 24–482 Procedural Posture(s): Appellate Review;
| Sentencing or Penalty Phase Motion or
Argued October 14, 2025 Objection.
|
Decided January 20, 2026
Syllabus*
Synopsis *1 The Mandatory Victims Restitution Act of
Background: Defendant, who committed 1996 requires defendants convicted of certain
bank robbery before enactment of Mandatory federal crimes to pay monetary restitution to
Victims Restitution Act of 1996 (MVRA) but victims. Although petitioner Ellingburg
was sentenced after its enactment, filed motion committed his crime before the MVRA's
to show cause challenging ongoing enactment, he was sentenced under the MRVA
enforcement of his restitution order following and ordered to pay $7,567.25 in restitution.
his release from prison, contending that Ellingburg raised an Ex Post Facto Clause
application of MVRA violated Ex Post Facto challenge to his continued restitution
Clause. The United States District Court for obligation. The Eighth Circuit concluded that
the Western District of Missouri, Roseann A. restitution under the MVRA is not criminal
Ketchmark, J., rejected such challenge, and punishment subject to the Ex Post Facto
defendant appealed. The United States Court Clause.
of Appeals for the Eighth Circuit, 113 F.4th
839, affirmed. Certiorari was granted. Held: Restitution under the MVRA is plainly
criminal punishment for purposes of the Ex
Post Facto Clause. Whether a law violates the
Ex Post Facto Clause requires evaluating
In a unanimous opinion, the Supreme Court, whether the law imposes a criminal or penal
Justice Kavanaugh, held that restitution under sanction as opposed to a civil remedy. That
question is one “of statutory construction” that
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requires the Court to “consider the statute's
text and its structure.” Smith v. Doe, 538 U.S. Finally, while Congress intended restitution
84, 92, 123 S.Ct. 1140, 155 L.Ed.2d 164 under the MVRA to both punish offenders and
(quotation marks omitted). When viewed as a compensate victims, victims cannot initiate or
whole, the MVRA makes abundantly clear that settle the restitution process as they would if it
restitution is criminal punishment. The MVRA were a civil proceeding. The text and structure
labels restitution as a “penalty” for a criminal of the Act demonstrate that Congress intended
“offense.” 18 U.S.C. § 3663A(a)(1). Only a restitution under the Act to impose criminal
criminal defendant convicted of a qualifying punishment. Pp. –––– – ––––.
crime may be ordered to pay restitution.
Restitution is imposed at sentencing for that 113 F.4th 839, reversed and remanded.
offense together with other criminal
punishments such as imprisonment and fines. KAVANAUGH, J., delivered the opinion for a
And at the sentencing proceeding where unanimous Court. THOMAS, J., filed a
restitution is imposed, the Government, not the concurring opinion, in which GORSUCH, J.,
victim, is the party adverse to the defendant. joined.
Further, the federal MVRA restitution regime
is codified in Title 18, “Crimes and Criminal
Procedure,” and the statutory provisions Attorneys and Law Firms
authorizing restitution orders are contained in
Amy M. Saharia, Washington, DC, for
Chapter 232 of that Title, entitled
Petitioner.
“Miscellaneous Sentencing Provisions.” A
district court imposing restitution must follow Ashley Robertson, Washington, DC, for
the procedures applicable to other criminal Respondent supporting vacatur.
penalties.
John F. Bash, for the Court-appointed amicus
The Court's precedents have understood curiae in support of judgment below.
restitution under the MVRA to be criminal
punishment. See Manrique v. United States, D. John Sauer, Solicitor General, Counsel of
581 U.S. 116, 118, 137 S.Ct. 1266, 197 Record, Department of Justice, Washington,
L.Ed.2d 599. And the Court's precedents on DC, for Respondent.
related issues further buttress the conclusion
that MVRA restitution is criminal punishment. Lisa S. Blatt, Counsel of Record, Amy Mason
See United States v. Bajakajian, 524 U.S. 321, Saharia, Atticus W. DeProspo, Rohit P.
328, 118 S.Ct. 2028, 141 L.Ed.2d 314; United Asirvatham, R. Shane Roberts, Jr., Brett V.
States v. One Assortment of 89 Firearms, 465 Ries, Williams & Connolly LLP, Washington,
U.S. 354, 363–366, 104 S.Ct. 1099, 79 DC, for Petitioner.
L.Ed.2d 361.
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D. John Sauer, Solicitor General, Counsel of amicus curiae to defend the judgment of the
Record, Eric J. Feigin, Deputy Solicitor Eighth Circuit. 605 U. S. 908, 145 S.Ct. 1899,
General, Ashley Robertson, Assistant to the 221 L.Ed.2d 645 (2025). He has ably
Solicitor General, Matthew R. Galeotti, discharged his responsibilities.
Andrew W. Laing, Attorneys, Department of
Justice, Washington, DC, for Respondent. When determining whether a law violates the
Ex Post Facto Clause, the Court must evaluate
Opinion whether the law imposes a criminal or penal
sanction as opposed to a civil remedy.
Justice KAVANAUGH delivered the opinion
Assessing whether “a statutory scheme is civil
of the Court.
or criminal is first of all a question of statutory
Under the Mandatory Victims Restitution Act construction” that requires the Court to
of 1996, defendants convicted of certain “consider the statute's text and its structure.”
federal crimes must pay monetary restitution Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140,
to the victims. That Act, known as the MVRA, 155 L.Ed.2d 164 (2003) (quotation marks
became law on April 24, 1996. Petitioner omitted).1
Ellingburg was sentenced later in 1996 and
ordered to pay restitution in the amount of Here, the statutory analysis is straightforward:
$7,567.25. He has not yet satisfied that Restitution under the MVRA is plainly
obligation. criminal punishment for purposes of the Ex
Post Facto Clause.2
*2 Ellingburg has now raised an Ex Post Facto
Clause challenge to his continued restitution Numerous features of the MVRA lead to that
obligation because he committed his crime conclusion. The MVRA labels restitution as a
before the enactment of the MVRA. The Ex “penalty” for a criminal “offense.” 18 U.S.C. §
Post Facto Clause issue turns in part on the 3663A(a)(1). A court may order restitution
threshold question of whether restitution under only with respect to a criminal “defendant”
the MVRA is criminal punishment. Applying and only after that defendant's conviction of a
Circuit precedent, the U. S. Court of Appeals qualifying crime. Ibid. Restitution is imposed
for the Eighth Circuit concluded that during “sentencing” for the offense. Ibid. At
restitution under the MVRA is not criminal the sentencing proceeding where restitution is
punishment. 113 F.4th 839, 841–842 (2024). ordered, the Government, not the victim, is the
We now reverse. party adverse to the defendant.
In this Court, Ellingburg and the United States At sentencing, restitution is imposed together
agree that the Eighth Circuit erred and that with other criminal punishments such as
MVRA restitution is criminal punishment. The imprisonment and fines. Indeed, for
Court therefore appointed John F. Bash as misdemeanors, restitution may be “in lieu of ”
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those punishments, making restitution the sole of the statutory features present here are
punishment for a federal offense in certain necessary to constitute criminal punishment,
circumstances. Ibid. In addition, when a but they are sufficient.
defendant does not make the required
restitution payments, the court may modify the Given the statutory text and structure, it comes
terms of his supervised release or probation as no surprise that this Court's precedents have
and impose imprisonment if the court understood restitution under the MVRA to be
determines that “alternatives to imprisonment criminal punishment. In Manrique v. United
are not adequate to serve the purposes of States, the Court stated that the MVRA
punishment and deterrence.” §§ 3614(b)(2), requires courts “to impose restitution as part of
3613A(a)(1). the sentence.” 581 U.S. 116, 118, 137 S.Ct.
1266, 197 L.Ed.2d 599 (2017). In Pasquantino
As a further sign that MVRA restitution is v. United States, the Court explained that
criminal punishment, the federal MVRA restitution under the MVRA is designed “to
restitution regime is codified in Title 18, mete out appropriate criminal punishment.”
“Crimes and Criminal Procedure.” The main 544 U.S. 349, 365, 125 S.Ct. 1766, 161
statutory provisions authorizing restitution L.Ed.2d 619 (2005). And in Paroline v. United
orders, § 3663 and § 3663A, are contained in States, the Court repeated that description. 572
Chapter 232 of Title 18, entitled U.S. 434, 456, 134 S.Ct. 1710, 188 L.Ed.2d
“Miscellaneous Sentencing Provisions.” 714 (2014).
Another statutory provision, § 3556, states that
a court “shall order restitution” in “imposing aThis Court's precedents on related issues
sentence” for covered offenses. That provision further buttress the conclusion that MVRA
is housed in Chapter 227 of Title 18, entitled restitution is criminal punishment. For
“Sentences.” The statute also refers to a example, forfeiture under 18 U.S.C. §
“sentence that imposes an order of restitution.”982(a)(1)—like restitution under the MVRA—
§ 3664(o). When imposing restitution, a occurs at the culmination of a criminal
district court must follow the procedures proceeding and requires conviction of an
applicable to other criminal penalties, underlying crime. That forfeiture, the Court
including the Federal Rules of Criminal concluded, is criminal punishment. See United
Procedure. See § 3664(c). And § 3663(c) States v. Bajakajian, 524 U.S. 321, 328, 118
directs the U. S. Sentencing Commission to S.Ct. 2028, 141 L.Ed.2d 314 (1998). By
promulgate criminal sentencing guidelines for contrast, the Court determined that the
restitution. § 208, 110 Stat. 1240; § 3663(c)(7).
forfeiture of firearms under 18 U.S.C. § 924(d)
ordered during an in rem proceeding is a civil
*3 When viewed as a whole, then, the MVRA sanction. United States v. One Assortment of
makes abundantly clear that restitution is 89 Firearms, 465 U.S. 354, 363–366, 104
criminal punishment. We are not saying that all S.Ct. 1099, 79 L.Ed.2d 361 (1984).
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only that Congress intended restitution under
As the Government cautions, not everything the MVRA to both punish and compensate.
that occurs at criminal sentencing or even that And so long as the text and structure of the Act
appears in a criminal judgment may demonstrate that Congress intended at least “to
necessarily be part of the punishment. See Tr. impose punishment,” that “ends the inquiry.”
of Oral Arg. 22–23. But we need not explore Smith, 538 U.S., at 92, 123 S.Ct. 1140; see
that point further here because, for the reasons Paroline, 572 U.S., at 456, 134 S.Ct. 1710;
we have explained, MVRA restitution is Pasquantino, 544 U.S., at 365, 125 S.Ct. 1766.
criminal punishment.
To be sure, as amicus points out, victims
Amicus relies heavily on Smith v. Doe, 538 receive notice of sentencing proceedings and
U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164. are consulted by prosecutors. But outreach to
There, this Court considered a law requiring a victims and some participation by victims in
defendant convicted of certain crimes to criminal proceedings are not unusual. See, e.g.,
register as a sex offender. The Court held that § 3771(a). With respect to restitution, the key
the registration mandate was civil. The point is that victims do not have the power to
legislature adopted “distinctly civil initiate or settle the restitution process as they
procedures” for the imposition of registration would if it were a civil proceeding.
requirements. Id., at 96, 123 S.Ct. 1140
(quotation marks omitted). By contrast, to *4 Our ruling today does not mean that a
reiterate what we said above, MVRA restitution statute can never be civil. But the
restitution is labeled as a penalty, is codified in statutory text and structure of the MVRA
the criminal code, is predicated on a criminal demonstrate that restitution under that Act is
conviction, is imposed against a criminal criminal punishment.
defendant, is sometimes imposed in lieu of
other penalties, is ordered at sentencing where For those reasons, we reverse the judgment of
the United States is the adverse party, and can the U. S. Court of Appeals for the Eighth
result in resentencing when the defendant Circuit and remand the case for further
refuses to pay. So Smith v. Doe does not proceedings consistent with this opinion. On
control. remand, the Court of Appeals may consider the
Government's separate arguments for
It is true, as amicus thoroughly explains, that affirmance of the District Court's judgment.
the MVRA seeks to compensate crime victims,
a nonpunitive goal. Several provisions of the It is so ordered.
MVRA reflect that objective, such as a
provision requiring that restitution amounts be
based on a victim's loss. § 3664(f)(1)(A); see Justice THOMAS, with whom Justice
also, e.g., § 3664(j). But those provisions show GORSUCH joins, concurring.
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I join the Court's opinion in full because it Art. I, § 10, cl. 1. In its general sense, a law is
correctly applies our precedent. I write ex post facto—meaning “after the fact”—when
separately to clarify the foundation of that it applies retroactively to conduct that occurred
precedent. This Court's 1798 decision in before the law was enacted.
Calder v. Bull, 3 Dall. 386, 1 L.Ed. 648
(1783), established that the Ex Post Facto The two Ex Post Facto Clauses reflected the
Clauses forbid only those retroactive laws that importance of the protection to the Founding
impose “punishment” for a “crime.” Id., at Fathers. James Iredell believed that the
386, 389–391 (opinion of Chase, J.). Over the protection against ex post facto laws was “the
228 years since Calder, the Court has most essential right of all,” which was worth
struggled to articulate what it means for a law “ten thousand declarations of rights” without
to impose punishment for a crime, and thus to it. Answers to Mr. Mason's Objections to the
be subject to the Ex Post Facto Clauses. The New Constitution, in Pamphlets on the
Court's more recent precedents have Constitution of the United States 334, 368 (P.
implemented Calder through two multifactor Ford ed. 1888) (reprint 1968). “A man may
tests that turn largely on whether the feel some pride in his security,” Iredell wrote,
legislature labels the law as criminal or civil. “when he knows that what he does innocently
But in 1798, “punishment” for a “crime” and safely to-day in accordance with the laws
would have been understood to refer to any of his country, cannot be tortured into guilt and
coercive penalty for a public wrong. Many danger tomorrow.” Ibid. In the Federalist
laws that are nominally civil today would Papers, Alexander Hamilton placed “the
therefore have been subject to the Ex Post prohibition of ex post facto laws” among the
Facto Clauses under Calder. I would restore greatest “securities to liberty and
Calder’s approach to the Ex Post Facto republicanism.” The Federalist No. 84, p. 571
Clauses. (P. Ford ed. 1898). James Madison argued that
ex post facto laws are “contrary to the first
principles of the social compact.” Id., No. 44,
at 296.
I
Ex post facto laws lack legitimacy because
laws must precede the actions that they
The Constitution twice prohibits ex post facto govern. Laws regulating actions after the fact
laws. As to the Federal Government, it “deprive citizens of notice and fair warning
provides that “No Bill of Attainder or ex post and are, therefore, an affront to man's ‘reason
facto Law shall be passed.” Art. I, § 9, cl. 3. As and freewill.’ ” Peugh v. United States, 569
to the States, it provides that “No State shall ... U.S. 530, 561, 133 S.Ct. 2072, 186 L.Ed.2d 84
pass any Bill of Attainder, ex post facto Law, (2013) (THOMAS, J., dissenting) (quoting 1
or Law impairing the Obligation of Contracts.” W. Blackstone, Commentaries on the Laws of
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England 39 (1765) (Blackstone)). As Sherry, The Founders’ Unwritten Constitution,
Blackstone explained, “it is impossible that the 54 U. Chi. L. Rev. 1127, 1157 (1987). The
party could foresee” that his actions would Convention nonetheless adopted the Ex Post
become unlawful if they were lawful when he Facto Clauses after it was urged that “the
took them. Id., at 46. When a man had no Judges can take hold of ” them if a legislature
notice that his actions were unlawful, “all ever enacts such a law. 2 Farrand 376
punishment for not abstaining must of (Williamson).
consequence be cruel and unjust.” Ibid. An ex
post facto law is even “more unreasonable,”
Blackstone thought, than the reviled practice
of the Roman emperor “Caligula, who ... wrote II
his laws in a very small character, and hung
them up upon high pillars, the more effectually
to ensnare the people.” Ibid. The lodestar of this Court's ex post facto
jurisprudence is Calder v. Bull, which
*5 Many believed that no constitutional established that the Ex Post Facto Clauses
prohibition was necessary because an ex post apply only to laws that impose “punishment”
facto law would be invalid as contrary to for “crime[s].” 3 Dall. at 389–391. Calder—
natural law. At the Constitutional Convention, and especially Justice Chase's lead seriatim
Oliver Ellsworth argued that “[i]t cannot ... be opinion—has since provided the definitive
necessary to prohibit” ex post facto laws gloss on the Ex Post Facto Clauses. Justice
because “no lawyer, no civilian ... would not Chase's definition of “ex post facto laws”
say that ex post facto laws were void of continues to “provid[e] an authoritative
themselves.” 2 M. Farrand, Records of the account of the scope of the Ex Post Facto
Federal Convention of 1787, p. 376 (1966) Clause.” Stogner v. California, 539 U.S. 607,
(Farrand). James Wilson thought that a 611, 123 S.Ct. 2446, 156 L.Ed.2d 544 (2003);
constitutional prohibition on ex post facto laws accord, e.g., Peugh, 569 U.S., at 532–533, 133
would suggest that the Convention denied that S.Ct. 2072. This Court's modern precedents,
such laws were already forbidden by natural including today's opinion, decide whether a
law, to its embarrassment. “It will bring law is subject to the Ex Post Facto Clauses
reflexions on the Constitution—and proclaim based on whether it satisfies Calder’s
that we are ignorant of the first principles of requirement that it be “criminal or penal.”
Legislation.” Ibid. In fact, “[a]ll the delegates Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct.
who spoke explicitly or implicitly regarded an 960, 67 L.Ed.2d 17 (1981); see also ante, at ––
ex post facto law as a violation of natural law, ––. But this Court's implementation of Calder
and most of them therefore thought it seems to have lost sight of how Calder would
unnecessary to include such a basic natural law have been understood when it was decided.
principle in the written constitution.” S.
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Calder concerned a state legislature's after his son was born. Ibid. And, since
intervention in a traditional private-law Connecticut had enacted new default intestacy
dispute. The case arose out of the probate rules in the meantime, the absence of a valid
proceedings for the estate of a Connecticut will meant that Morison's estate would pass on
man named Normand Morison. In 1779, to his blood relatives rather than to Abigail.
Morison wrote a will leaving his property to Ibid. Morison's blood relatives, the Calders,
his wife Abigail and her heirs. See 8 The were suddenly the lawful heirs of his property.
Documentary History of the Supreme Court of Id., at 90–91.
the United States, 1789–1800, p. 89 (M.
Marcus ed. 2007). Soon after Morison wrote *6 Abigail and Caleb Bull petitioned the
his will, he and Abigail had a son. Ibid. When Connecticut Legislature for relief. They
the son was young, Morison died. Ibid. Abigail convinced the legislature that Morison did not
started the probate process so that she could intend to revoke his will after his son died, so
inherit Morison's property as his will the legislature issued a decree in 1795 granting
promised. Ibid. But the probate judge held up them a rehearing on the validity of Morison's
the process because he wanted to check original will. Id., at 91. The legislature's 1795
whether the birth of their son affected the decree effectively vacated the original probate-
will's validity. Ibid. At the time, Abigail did not court decision deeming the will void and
mind the delay because the default intestacy granted a new hearing at which the probate
rules would have given the property to her and court could adjudicate the will's validity. Id., at
her son anyway. Id., at 89–90. 91, 107. The probate court held a new hearing
pursuant to the decree and concluded that
But later events jeopardized Abigail's right to Morison's original will was valid after all. Id.,
inherit Morison's property. First, Connecticut at 91. Having now lost in probate court, the
changed the default intestacy rules so that, Calders appealed this new decision and
absent a valid will, property like Morison's challenged the legislature's decree that had
would pass to his nearest blood relative, not to granted the Bulls a new hearing. Id., at 91–92.
a surviving spouse like Abigail. Id., at 90, and The Calders argued, eventually to this Court,
n. 9. Second, the probate court, without telling that the legislature's decree was an
Abigail, disapproved Morison's original will. unconstitutional ex post facto law because it
Id., at 90. And third, a few years later, Abigail retroactively voided the probate court's
and Morison's son died. Ibid. After her son original decision, which caused them to lose
died, Abigail and her new husband Caleb Bull an inheritance that would otherwise have been
returned to probate court. Ibid. The Bulls were theirs. Id., at 92.
surprised to learn that the probate court had
disapproved Morison's will years earlier In Calder v. Bull, this Court gave two reasons
without telling Abigail—apparently on the why the legislature's decree granting a new
theory that he would have wanted to change it trial did not violate the State Ex Post Facto
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Clause. See Art. I, § 10, cl. 1. The first reason influential opinion, gave a comprehensive
was that the legislature's decree operated on a account of the scope of the Ex Post Facto
legal decision by a court, not a past action by Clauses. He understood the Clauses to be
the Calders. There was nothing that the parties limited to retroactive laws imposing criminal
had done in the past that was “in any manner punishment. He explained that the Ex Post
affected by the law or resolution of Facto Clauses covered only those laws that
Connecticut.” 3 Dall. at 392 (opinion of Chase, “create” a “crime,” “aggravate” a crime,
J.). “It does not concern, or relate to, any act “encrease the punishment” for a crime, or
done by them.” Ibid. Instead, the decree “change the rules of evidence, for the purpose
effectively vacated a probate decision and gave of conviction.” Id., at 391.
the court an opportunity to correct its decision,
just like appellate courts do every day. Ibid. Justice Chase's account implied that the
The new hearing, after all, was conducted Clauses did not apply to other kinds of
under the same substantive laws as were in retroactive laws. First, on his view, the Clauses
force at the original hearing. In fact, the did not touch private law. Justice Chase did
Justices seemed to believe that the Connecticut “not think” that the Ex Post Facto Clause “was
Legislature's “resolution or law,” id., at 387, inserted to Secure the citizen in his private
was not a legislative but a judicial act, rights, of either property, or contracts.” Id., at
consistent with state legislatures’ traditional 390. Accordingly, the Clauses would not
judicial power to review state-court prohibit a law that retroactively paused a
decisions—and thus could not be an ex post debtor's obligations to a creditor or voided a
facto “law” at all. See id., at 395–396 (opinioncontract. Such laws, in Justice Chase's view,
of Paterson, J.) (“[W]e may, in the present were governed by separate constitutional
instance, consider the Legislature of the State,prohibitions on impairing the obligations of
as having acted in their customary judicial contracts and making anything but gold or
capacity”); id., at 398 (opinion of Iredell, J.)silver a tender in payments of debts. Ibid.; see
(“an exercise of judicial, not of legislative, Art. I, § 10, cl. 1. Second, because the Clauses
authority”); id., at 400 (opinion of Cushing, J.)
were meant as protections against the
(“If the act is a judicial act, it is not touched by
government, they did not apply to laws that
the Federal Constitution”). retroactively made a law more lenient. They
would not, for example, forbid a law that
The more lasting legacy of Calder, however, retroactively “mollifies the rigor of the
was its second reason. Three of the four criminal law.” Calder, 3 Dall. at 391 (opinion
seriatim opinions in Calder limited the Ex Post of Chase, J.).
Facto Clauses to laws imposing criminal
punishment. On their view, the Clauses did not *7 The other two seriatim opinions in Calder
forbid other kinds of retroactive laws. Justice that addressed the question agreed. Justice
Chase, in what has proved to be the most Paterson explained that “the meaning, annexed
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to the terms ex post facto laws, unquestionably III
refers to crimes, and nothing else.” Id., at 396.
Justice Iredell—an adamant proponent of the
This Court's recent precedents have attempted
Ex Post Facto Clauses, see supra, at ––––—
to implement Calder’s limitation of the
likewise thought that they did not “extend to
Clauses to criminal punishment. But, in doing
civil cases, to cases that merely affect the
so, they have adopted a framework that turns
private property of citizens.” Calder, 3 Dall. at
largely on legislative labeling, has little basis
400. Instead, the Clauses applied only to laws
in history, and is unnecessarily convoluted.
that retroactively “inflict a punishment” for an
“offence.” Ibid.
Some, myself included, have questioned
whether Calder was right to limit the Ex Post A
Facto Clauses to laws imposing criminal
punishment. See, e.g., Satterlee v. Matthewson,
The modern precedents follow Calder’s
2 Pet. 380, 416, 7 L.Ed. 458 (1829), and n. (a)
limitation of the Ex Post Facto Clauses to laws
(1829) (opinion of Johnson, J.) (arguing that
that impose criminal punishment. Based on
the Ex Post Facto Clauses protect more); O.
“Justice Chase's now familiar opinion in
Field, Ex Post Facto in the Constitution, 20
Calder,” this Court has repeatedly held that the
Mich. L. Rev. 315, 331 (1922) (“[T]here have
Clauses apply exclusively to laws that
been reputable authorities, both past and
“retroactively alter the definition of crimes or
present, who incline to the view that the ex
increase the punishment for criminal acts,” but
post facto provisions of the Constitution
not to other kinds of retroactive laws. Collins
prohibited civil as well as criminal
v. Youngblood, 497 U.S. 37, 41–43, 110 S.Ct.
legislation”); Eastern Enterprises v. Apfel, 524
2715, 111 L.Ed.2d 30 (1990); see also, e.g.,
U.S. 498, 538–539, 118 S.Ct. 2131, 141
Kansas v. Hendricks, 521 U.S. 346, 370, 117
L.Ed.2d 451 (1998) (THOMAS, J.,
S.Ct. 2072, 138 L.Ed.2d 501 (1997); Smith v.
concurring). Others have defended Calder’s
Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 155
limitation. See, e.g., R. Natelson, Statutory
L.Ed.2d 164 (2003).
Retroactivity: The Founders’ View, 39 Idaho
L. Rev. 489, 493–494 (2003); C. Nelson,
But in defining criminal punishment—and thus
Originalism and Interpretive Conventions, 70
the scope of Calder’s limitation—the Court's
U. Chi. L. Rev. 519, 578–582 (2003). But
modern framework applies two multifactor
often lost in that debate has been the question
tests developed in the 20th century. The first
of what Calder meant when it limited the
multifactor test asks whether the legislature
Clauses to laws imposing criminal
“intended” the law to be viewed as criminal or
punishment.
penal. Smith, 538 U.S., at 92–93, 123 S.Ct.
1140; see also ante, at ––––, n. 1. Under this
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test, a law is subject to the Ex Post Facto function of up to seven factors: whether the
Clauses “[i]f the intention of the legislature law involves an affirmative disability or
was to impose punishment.” Smith, 538 U.S., restraint, imposes what has historically been
at 92, 123 S.Ct. 1140. But if “the intention was regarded as a punishment, requires a finding of
to enact a regulatory scheme that is civil and scienter, promotes the traditional aims of
nonpunitive,” then a law is presumptively not punishment, applies to behavior which is
subject to the Ex Post Facto Clauses. Ibid. already a crime, lacks a rational alternative
This test has included up to five factors, most purpose, or is excessive in relation to that
of which allow a legislature to avoid the purpose. Kennedy v. Mendoza-Martinez, 372
Clauses through labeling or semantics. Those U.S. 144, 168–169, 83 S.Ct. 554, 9 L.Ed.2d
five factors are whether the legislature had a “ 644 (1963); see Smith, 538 U.S., at 97, 123
‘preference’ ” for “ ‘one label or the other,’ ” S.Ct. 1140 (explaining that Mendoza-Martinez
id., at 93, 123 S.Ct. 1140 (quoting Hudson v. factors “migrated” to ex post facto
United States, 522 U.S. 93, 99, 118 S.Ct. 488, jurisprudence). So long as a law survives the
139 L.Ed.2d 450 (1997)); whether the first test, “ ‘only the clearest proof ’ ” under
“codification” was in the criminal or civil the second test can make it subject to the Ex
code, Smith, 538 U.S., at 94, 123 S.Ct. 1140; Post Facto Clauses. Smith, 538 U.S., at 92,
whether legislative history or similar indicators 123 S.Ct. 1140 (quoting Hudson, 522 U.S., at
suggested nonpunitive goals, United States v. 100, 118 S.Ct. 488).
One Assortment of 89 Firearms, 465 U.S. 354,
364, 104 S.Ct. 1099, 79 L.Ed.2d 361 (1984);
whether the legislature provided traditional
“safeguards associated with the criminal B
process,” Smith, 538 U.S., at 96, 123 S.Ct.
1140; and whether the legislature gave
enforcement power to an agency with power to This modern framework is incongruous with
enforce civil laws, ibid. the historical purpose of Ex Post Facto
Clauses. The modern framework, because of
*8 The second multifactor test, which applies how much it turns on legislative labeling and
only if the law survives the first test, asks semantics, allows a legislature to manipulate
whether the law's other features render it when the protection will apply. Under the first
criminal or penal. See id., at 92, 123 S.Ct. test, for example, a legislature might be able to
1140. Under this second test, a law is subject impose a retroactive $10,000 fine on some
to the Ex Post Facto Clauses if it is “so previously innocent conduct—such as drinking
punitive either in purpose or effect as to negate coffee or going to the gym—if it labeled the
[the legislature's] intention to deem it civil.” law “civil,” placed it in the civil code,
Ibid. (internal quotation marks omitted). The expressed a nonpunitive purpose, omitted
Court has at times said that this second test is a protections for the accused, and let non-
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traditional prosecutors (such as a health
agency) enforce it. See supra, at –––– – ––––.
Under the second test, the legislature might be
able to prevail by aggravating the fair-notice IV
problems that motivate the Clauses, such as by
having its retroactive law impose strict liability
and then applying it only to previously When Calder said that the Ex Post Facto
innocent conduct. See Mendoza-Martinez, 372 Clauses apply only to laws imposing
U.S., at 168–169, 83 S.Ct. 554. It is unlikely punishment for crimes, it was referring to an
that a constitutional prohibition designed to established category of laws. A crime meant a
curb a “cruel and unjust” legislature, 1 “public wrong,” which is an injury to the
Blackstone 46, can be so easily manipulated sovereign in its sovereign capacity. Calder
by the same legislature. See United States v. therefore encompassed offenses against the
Rahimi, 602 U.S. 680, 776, 144 S.Ct. 1889, sovereign regardless of whether they were
219 L.Ed.2d 351 (2024) (THOMAS, J., nominally criminal or civil. And punishment
dissenting) (explaining that the Constitution simply referred to the law's coercive
does not “allow ... majoritarian interests to sanction—meaning a traditional deprivation of
determine” the scope of “constitutional life, liberty, or property—redressing that
rights”). public wrong. Applying this understanding
would restore the Clauses to their proper role
The modern framework is also convoluted. It without the problems attendant to the more
is difficult for courts, let alone ordinary recent precedents.
citizens, to predict how this Court will weigh
the modern framework's combined twelve
factors spread over two tests. This Court's own
precedents admit that the twelve factors are A
“neither exhaustive nor dispositive,” United
States v. Ward, 448 U.S. 242, 249, 100 S.Ct.
2636, 65 L.Ed.2d 742 (1980), and need not be The English common law divided all unlawful
given equal weights, Smith, 538 U.S., at 105, acts into “private wrongs” and “public
123 S.Ct. 1140. Such “multifactor balancing wrongs.” See 3 Blackstone 2. Blackstone titled
test[s]” invite “policy-driven, ‘arbitrary the third and fourth volumes of his
discretion.’ ” Gamble v. United States, 587 Commentaries, respectively, “Of Private
U.S. 678, 724, 139 S.Ct. 1960, 204 L.Ed.2d Wrongs” and “Of Public Wrongs.” This
322 (2019) (THOMAS, J., concurring). We dichotomy was fundamental to English and
should strive to avoid such unclear rules in any American law.
context, but especially when interpreting a
constitutional guarantee of clear notice.
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*9 Public wrongs were injuries to the fellow citizen over a land claim or a failure to
sovereign. A public wrong was “a breach and pay a debt concerned a private wrong. “[I]f I
violation of public rights and duties, which detain a field from another man, to which the
affect the whole community, considered as a law has given him a right, this is a civil injury,
community.” Ibid. Because a public wrong and not a crime,” Blackstone explained,
injured the community, it was deemed an because “only the right of an individual is
injury to the sovereign in his sovereign concerned, and it is immaterial to the public,
capacity. 4 Blackstone 2–7. It followed that an which of us is in possession of the land.” 4
action to redress a public wrong was brought Blackstone 5. Private wrongs were redressable
on behalf of the sovereign, not the victim. J. by the individuals whose rights were violated,
Locke, Second Treatise of Civil Government 7 not the sovereign.
(J. Gough ed. 1948) (Locke). In concrete
terms, actions for public wrongs were brought A single act could be both a private wrong and
in England on behalf of the King, and here on a public wrong. Id., at 5–6. “The same acts
behalf of the State or the United States— will generally constitute a private injury, as
typically by public prosecutors, rather than well as a public crime. A public punishment is
privately by the victims. The sovereign “is inflicted on the part of the state, to restrain
supposed by the law to be the person injured such conduct, and the party injured is entitled
by every infraction of the public rights to a compensation for the injury he has
belonging to that community, and is therefore sustained.” 2 Z. Swift, System of the Laws of
in all cases the proper prosecutor for every the State of Connecticut 292 (1796); accord
public offense.” 4 Blackstone 2; see also ibid. (“If one man assaults and beats another,
Robertson v. United States ex rel. Watson, 560 he is punished by a fine for disturbing the
U.S. 272, 279, 130 S.Ct. 2184, 176 L.Ed.2d peace, and compelled to compensate in money
1024 (2010) (ROBERTS, C. J., dissenting) (a the person he has abused and wounded.”). The
criminal prosecution is an action “on behalf of private suit brought by the individual
the sovereign, seeking to vindicate a public vindicated the private wrong, and the public
wrong”). Public wrongs included all wrongs prosecution brought by the sovereign
deemed injuries to the sovereign and vindicated the public wrong. This overlap
redressable by the sovereign, from murder to carries forward to modern law: Theft can be
mayhem to public nuisance. 4 Blackstone 5–6. redressed through a tort suit brought by the
victim and a criminal prosecution brought by
Private wrongs, in contrast, were injuries to the state.
individuals in their private capacity. An action
inflicted a private wrong insofar as it infringed When the opinions in Calder spoke of
“the private or civil rights belonging to “crimes,” they meant public wrongs. The
individuals, considered as individuals.” 3 prevailing definition of a “crime” around the
Blackstone 2. For example, a dispute with a time of Calder was “a violation of law to the
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injury of the public, a public offense.” N. distinction was a probate dispute, where only
Webster, A Compendious Dictionary of the private rights are implicated.2
English Language 72 (1806) (Webster).
Blackstone used the terms “crimes” and *10 In turn, when Calder referred to criminal
“public wrongs” interchangeably. See 4 “punishment,” it simply meant whatever
Blackstone 1–5. His fourth volume covered coercive sanction—or deprivation of life,
“public wrongs, or crimes and misdemeanors.” liberty, or property—the law imposed as
Id., at 1.1 The “common-law conception of redress for committing those crimes.
crime,” this Court has long recognized, was an Blackstone understood punishment to include
“offense against the sovereignty of the the traditional “coercive penalties” that the law
government.” Heath v. Alabama, 474 U.S. 82, imposed as redress for a public wrong. See 4
88, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985). So Blackstone 7–8. Dictionaries defined
Calder’s limitation of the Ex Post Facto “punishment” broadly as “[a]ny infliction or
Clauses to crimes would have originally been pain imposed in vengeance of a crime,” S.
understood to include all public wrongs. Johnson, A Dictionary of the English
Language (6th ed. 1785), or “any thing
Calder itself confirms this understanding. inflicted for a crime,” Webster 241. The power
Justice Chase distinguished crimes not with of punishing an offender was the power to
nominally civil laws enforced by the harm the offender in a way that was otherwise
sovereign, but with laws that merely forbidden: “[N]o one ought to harm another in
“secure[d] private rights,” like contract laws. 3 his life, health, liberty, or possessions”—
Dall. at 390. Justices Chase and Iredell used “unless it be to do justice on an offender.”
“crime” interchangeably with “offence.” Ibid.; Locke 5 (emphasis added); see also id., at 6
id., at 400 (opinion of Iredell, J.). Justices (describing when “one man may lawfully do
Chase and Paterson said that their definitions harm to another, which is that we call
tracked Blackstone's. See id., at 391 (opinion punishment”).
of Chase, J.) (“Sir William Blackstone, in his
commentaries, considers an ex post facto law The Ex Post Facto Clauses therefore prohibit
precisely in the same light I have done.”); id., retroactive laws that impose coercive penalties
at 396 (opinion of Paterson, J.) (similar). for public wrongs. Contrary to the modern
Justice Iredell explained in a contemporaneous framework, it does not matter what the
opinion that the Ex Post Facto Clauses could legislature labels the law, where it places the
be limited to crimes because “there ... is little law, which agency it vests enforcement with,
reason to apprehend a legislative interference what its stated goals were, whether it provides
for the sake of unjustly transferring property safeguards for the accused, whether it requires
from one man to another.” Minge v. Gilmour, a showing of scienter, or whether the conduct
17 F.Cas. 440, 443, No. 9,631 (CC NC 1798). to which it applies is already a crime. Contra,
And, of course, the occasion for Calder’s Smith, 538 U.S., at 96, 123 S.Ct. 1140;
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Martinez-Mendoza, 372 U.S., at 168–169, 83 Act”). They include enforcement proceedings
S.Ct. 554. What matters is what the law does. brought by administrative agencies. See Axon
If it punishes a public wrong—or an injury to Enterprise, Inc. v. FTC, 598 U.S. 175, 196,
the sovereign in its sovereign capacity—then it 143 S.Ct. 890, 215 L.Ed.2d 151 (2023)
is subject to the Ex Post Facto Clauses. If it (THOMAS, J., concurring) (describing the
changes merely private relations, such as the 20th-century rise of such proceedings). And
rules of contract or property or probate, then it they include municipal sanctions like speeding
is not. tickets. “If one were to commit a minor traffic
offense at a time the offense was to be
Whether a law is subject to the Ex Post Facto punished by a $25 fine, and the government
Clauses will therefore typically depend on how were to then amend the statute and impose a
it is enforced. If it is enforced on behalf of the fine of $1,000,000 dollars, it would be
sovereign to redress a sovereign injury, then it nonsensical to treat that fine as non-punitive
is subject to the Clauses. See 4 Blackstone 2. If simply because the offense was processed
instead it is enforced by a private person to civilly.” Brief for Professor Beth Colgan as
vindicate his own private rights, then it is not. Amicus Curiae 8, n. 3. Because all of these
In this case, for example, the law was subject offenses impose punishments for public
to the Ex Post Facto Clauses because it was wrongs, Calder would treat them all as subject
enforced against Ellingburg by the United to the Ex Post Facto Clauses.
States, not by the First Union National Bank,
whose private rights Ellingburg violated when
he robbed it. And the United States's action
was redressing a sovereign injury to the B
community as a whole, not a private wrong.
Cf. 3 Blackstone 257 (explaining that the King
can bring “common law actions” to redress *11 This understanding of Calder long
private wrongs to himself, such as an “action prevailed. Courts took the position that “the
for trespass for taking away his goods”).3 relevant line for the Clause's scope” lay
between “punishments imposed in response to
Calder’s understanding secures Ex Post Facto public offenses whether prosecuted criminally
Clause protection in a wide range of contexts or civilly on the one hand, and purely private
involving nominally civil laws. Those contexts disputes on the other.” Brief for Professor Beth
include civil proceedings seeking fines for Colgan as Amicus Curiae 5. This Court
public offenses. See, e.g., Army Corps of confirmed, contrary to the modern precedents,
Engineers v. Hawkes Co., 578 U.S. 590, 600, that “the ex post facto effect of a law cannot be
136 S.Ct. 1807, 195 L.Ed.2d 77 (2016) evaded by giving a civil form to that which is
(describing “civil penalties of up to $37,500 essentially criminal.” Burgess v. Salmon, 97
for each day [the challenger] violated the U.S. 381, 385, 24 L.Ed. 1104 (1878). The
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influential commentator Thomas Cooley public offense, the defendants were entitled to
likewise explained that a “law will be ex post other criminal-procedure protections because
facto in the constitutional sense” if it the action “was in its nature and essence,
“subject[s] an individual to a pecuniary though not its form, a penal or criminal
penalty” or “deprives a party of any valuable action.” United States v. Poyllon, 27 F.Cas.
right” retroactively, even if “it does not in 608, 611, No. 16,081 (NY 1812). And when a
terms declare the acts to which the penalty is statute forbade “any fine or forfeiture under
attached criminal.” Constitutional Limitations any penal statute,” the statute applied to a
321 (6th ed. 1890). nominally civil action for debt on behalf of the
sovereign against someone who committed a
In a similar context, when a State sought public offense. Adams v. Woods, 2 Cranch 336,
nominally civil fines against a company for 337, 340–341, 2 L.Ed. 297 (1805) (emphases
doing business without proper forms, this deleted). Chief Justice Marshall explained that
Court explained that the statute “was in the the category of penal laws referred “not to any
strictest sense a penal statute.” Wisconsin v. particular mode of proceeding, but generally to
Pelican Ins. Co., 127 U.S. 265, 299, 8 S.Ct. any prosecution, trial, or punishment for the
1370, 32 L.Ed. 239 (1888). The Court held offence.” Ibid.
that the nominally civil statute was penal
because “[t]he cause of action was not any This understanding of Calder harmonizes the
private injury, but solely the offence Ex Post Facto Clauses with their historical
committed against the State by violating her purpose. It means that the Clauses ensure fair
law.” Ibid. Likewise, “[t]he prosecution was in
notice against government enforcement
the name of the State.” Ibid. The Court actions, regardless of whether the legislature
explained that “[t]he real nature of the case is
labels them civil. As Justice GORSUCH has
not affected by the forms provided by the law explained, today's “civil” laws “regularly
of the State”; these forms were “immaterial” to
impose penalties far more severe than those
whether the law was criminal or penal in a found in many criminal statutes.” Sessions v.
constitutional sense. Ibid. Thus, the Court Dimaya, 584 U.S. 148, 184, 138 S.Ct. 1204,
concluded, “[i]n whatever form the State 200 L.Ed.2d 549 (2018) (opinion concurring in
pursues her right to punish the offence against
part and concurring in the judgment). “Today's
her sovereignty,” an action is criminal or penal
‘civil’ penalties include confiscatory rather
in substance whenever it seeks to “compe[l] than compensatory fines, forfeiture provisions
the offender to pay a pecuniary fine by way ofthat allow homes to be taken, remedies that
punishment for the offence.” Ibid. strip persons of their professional licenses and
livelihoods, and the power to commit persons
Other decisions followed the same reasoning. against their will indefinitely.’ ” Ibid. This
For example, when the United States brought a understanding also helps reconcile Calder with
nominally civil action for damages based on a its critics, many of whom have focused on the
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injustice of allowing the government to
retroactively impose sanctions for public
offenses that it deems civil. See, e.g., Brief for All Citations
Professor Wayne A. Logan as Amicus Curiae
607 U.S. ----, --- S.Ct. ----, 2026 WL 135982
31–32; cf. D. Troy, Retroactive Legislation
49–55 (1998).
*12 This understanding of Calder also
simplifies the law. Rather than making the Ex
Post Facto Clauses’ application depend on
twelve factors with indeterminate weights, this
understanding makes it depend on a simple
legal inquiry with a long pedigree in our legal
tradition—whether the law imposes a coercive
penalty to redress a public wrong. See, e.g.,
Pelican Ins. Co., 127 U.S., at 299, 8 S.Ct.
1370; Robertson, 560 U.S., at 278–279, 130
S.Ct. 2184 (ROBERTS, C. J., dissenting). In
most cases, that inquiry will just come down to
who enforces the law, the sovereign or the
injured private party.
***
In Collins v. Youngblood, this Court explained
that any “departure from Calder’s explanation
of the original understanding of the Ex Post
Facto Clause[s] was ... unjustified.” 497 U.S.,
at 49, 110 S.Ct. 2715. The Court understood
itself to be bound by what Calder meant rather
than by its intervening precedents that
misunderstood Calder. 497 U.S., at 49–50, 110
S.Ct. 2715. Today, this Court's precedents
concerning the scope of laws imposing
criminal punishment have departed from
Calder’s understanding of that category. In a
future case, the Court should consider
returning to Calder’s understanding.
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Footnotes
* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the
convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. 499.
1 If the text and structure of a statute do not demonstrate that Congress intended criminal punishment, the statute may still be
deemed criminal or penal if the “party challenging the statute provides ‘the clearest proof’ that ‘the statutory scheme [is] so
punitive either in purpose or effect as to negate [the Government's] intention’ to deem it ‘civil.’ ” Kansas v. Hendricks, 521 U.S.
346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) (quoting United States v. Ward, 448 U.S. 242, 248–249, 100 S.Ct. 2636, 65
L.Ed.2d 742 (1980)).
2 Amicus contends that Ellingburg's restitution was not imposed under the MVRA even though Ellingburg was sentenced after the
MVRA took effect in 1996. But the Eighth Circuit decided this case on the understanding that the MVRA was applied to
Ellingburg.
1 Crimes and misdemeanors were for these purposes “synonymous.” 4 Blackstone 5.
2 Professor Caleb Nelson has read Calder along the same lines: “By ‘criminal’ laws,” he has explained, “Justice Iredell and his
colleagues may simply have meant laws that defined offenses and imposed punishments for them,” even if “the penalties that they
prescribed could be collected through civil suits.” C. Nelson, Originalism and Interpretive Conventions, 70 U. Chi. L. Rev. 519,
582, n. 255 (2003).
3 Sovereigns sometimes delegated enforcement of public wrongs to private persons. But, unlike in actions redressing private
wrongs, the private persons in those circumstances acted “on behalf of the sovereign” and were subject to the sovereign's control.
Robertson v. United States ex rel. Watson, 560 U.S. 272, 279, 130 S.Ct. 2184, 176 L.Ed.2d 1024 (2010) (ROBERTS, C. J.,
dissenting); see ibid. (collecting authorities).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government
Works.
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