Petition for Writ of Certiorari — William Stenger, Petitioner v. United States

Supreme Court briefFeb 24, 2025

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No. ____

IN THE

Supreme Court of the United States

WILLIAM STENGER

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

PETITION FOR A WRIT OF CERTIORARI

WEST VIRGINIA

LAWRENCE D. ROSENBERG

UNIVERSITY COLLEGE

Counsel of Record

OF LAW

CHARLES E.T. ROBERTS

U.S. SUPREME COURT

NICHOLAS A. CAMPBELL

LITIGATION CLINIC

JONES DAY

101 Law Center Dr.

51 Louisiana Ave., NW

Morgantown, WV 26056 Washington, DC 20001

(202) 879-3939

ldrosenberg@jonesday.com

DAVID J. WILLIAMS

GRAVEL & SHEA

P.O. BOX 369

Burlington, VT 05402

Counsel for Petitioner

QUESTIONS PRESENTED

Article III requires federal courts to conﬁrm their

jurisdiction over a case before adjudicating its merits,

whether that jurisdiction is “constitutional” or

“statutory” in nature. Steel Co. v. Cits. for a Better

Env’t, 523 U.S. 83, 94–95 (1998). Here, the Second

Circuit explicitly chose not to do so. Instead, it

invoked so-called “hypothetical statutory jurisdiction”

to skip the jurisdictional inquiry and reach the merits.

This practice has drawn every court of appeals into a

conﬂict, which “raises serious concerns” that only this

Court can resolve. Waleski v. Montgomery, McCracker,

Walker & Rhoads, LLP, 143 S.Ct. 2027, 2027 (2023)

(Thomas, J., dissenting from denial of certiorari,

joined by Gorsuch, J. and Barrett, J.).

This case also presents a second longstanding circuit

conflict over the availability of coram nobis relief to

correct a criminal restitution order. Here, the Second

Circuit merely assumed that the All Writs Act provides

such jurisdiction and rushed to rubber-stamp the

District Court’s rejection of such relief on the merits.

Those decisions (i) looked past newfound, undisputed

evidence that Petitioner’s restitution order is based on

a state official’s false testimony and (ii) are “ultra

vires.” Id. at 2028 (quoting Steel Co., 523 U.S. at 102).

The questions presented are:

Whether a court exercising so-called

“hypothetical statutory jurisdiction” exceeds its power

under Article III; and

2. Whether a district court may issue a writ of

coram nobis to correct a fundamental error in a

criminal restitution order.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .......................................i

TABLE OF AUTHORITIES...................................... iv

OPINIONS BELOW ................................................... 1

JURISDICTION ......................................................... 1

CONSTITUTIONAL PROVISIONS INVOLVED ..... 1

INTRODUCTION ....................................................... 2

STATEMENT ............................................................. 4

Factual Background.............................. 4

Procedural Background. ....................... 6

REASONS FOR GRANTING THE WRIT ................. 8

THE DECISION BELOW EXACERBATES A

DEEP CIRCUIT SPLIT OVER “HYPOTHETICAL

STATUTORY JURISDICTION.” .............................. 8

II.

THE COURT BELOW UNLAWFULLY

ASSUMED “HYPOTHETICAL STATUTORY

JURISDICTION” TO ADJUDICATE THE

MERITS OF PETITIONER’S CASE. ...................... 16

III.

THIS COURT CAN RESOLVE A SECOND

CIRCUIT SPLIT BY DETERMINING THE

AVAILABILITY OF A WRIT OF CORAM NOBIS

TO CORRECT A RESTITUTION ORDER................ 20

IV.

THE

QUESTIONS

PRESENTED

ARE

IMPORTANT AND LIKELY TO RECUR. ................ 24

THIS CASE PRESENTS AN IDEAL VEHICLE........ 27

CONCLUSION ......................................................... 28

iii

APPENDIX A: Opinion of the United States

Court of Appeals for the Second Circuit

(June 28, 2024) .................................................... 1a

APPENDIX B: Order of the United States

Court of Appeals for the Second Circuit

Denying Petition for Rehearing

(Sept. 27, 2024) .................................................. 12a

APPENDIX C: Order of the United States

District Court for the District of Vermont

Denying Petition for Writ of Coram Nobis

(May 15, 2023) ................................................... 14a

APPENDIX D: Regulation Memorandum

(Apr. 13, 2023) ................................................... 24a

APPENDIX E: Follow Up Regulation

Memorandum (Apr. 13, 2023) ........................... 27a

APPENDIX F: Sentencing Hearing Transcript

Excerpt (Apr. 24, 2022) ..................................... 29a

APPENDIX G: Restitution Order of the United

States District Court for the District of

Vermont (Apr. 15, 2022).................................... 32a

APPENDIX H: Article III of the United States

Constitution ....................................................... 34a

TABLE OF AUTHORITIES

Page(s)

CASES

Abernathy v. Wandes,

713 F.3d 538 (10th Cir. 2013) .............................. 11

Am. Hosp. Ass’n v. Azar,

964 F.3d 1230 (D.C. Cir. 2020) ............................ 14

Bakalian v. Cent. Bank of Repub. of

Turkey,

932 F.3d 1229 (9th Cir. 2019) .............................. 14

Boim v. Am. Muslims for Palestine,

9 F.4th 545 (7th Cir. 2021) .................................. 12

Bowers v. Nat’l Collegiate Athletic Ass’n,

346 F.3d 402 (3d Cir. 2003) ........................... 13, 19

Butcher v. Wendt,

975 F.3d 236 (2d Cir. 2020) ........................... 15, 25

Campbell v. United States,

330 F. App’x 482 (5th Cir. 2009)

(per curiam) .......................................................... 23

Caribe Chem Distribs., Corp. v. S. Agric.

Insecticides, Inc.,

96 F.4th 25 (1st Cir. 2024) ................................... 12

Chance v. Zincke,

898 F.3d 1025 (10th Cir. 2018) ............................ 11

Chun Mendez v. Garland,

96 F.4th 58 (1st Cir. 2024) ................................... 25

Clow v. U.S. Dept. of Housing & Urban

Dev.,

948 F.2d 614 (9th Cir. 1991) ................................ 17

Coan v. Kaufman,

457 F.3d 250 (2d Cir. 2006) ................................. 19

Dean v. United States,

418 F. Supp. 2d 149 (E.D.N.Y. 2006) .................. 27

Di Biase v. SPX Corp.,

872 F.3d 224 (4th Cir. 2017) ................................ 10

du Purton v. United States,

891 F.3d 437 (2d Cir. 2018) (per curiam) ............ 22

Ex Parte McCardle,

74 U.S. 506 (1868) ................................................ 17

Friends of the Everglades v. EPA,

699 F.3d 1280 (11th Cir. 2012) .............................. 9

Groves v. United States,

941 F.3d 315 (7th Cir. 2019) ................................ 11

Hirabayashi v. United States,

828 F.2d 591 (9th Cir. 1987) ................................ 22

In re Bayour Shores SNF, LLC,

828 F.3d 1297 (11th Cir. 2016) .............................. 9

In re Hyatt,

No. 22-1844, 2025 WL 100677

(2d Cir. Jan. 15, 2025).......................................... 12

Johansen v. Liberty Mut. Grp. Inc.,

118 F.4th 142 (1st Cir. 2024) ............................... 12

Jordon v. Att’y Gen. of U.S.,

424 F.3d 320 (3d Cir. 2004) ................................. 13

Kaplan v. Cent. Bank of the Islamic

Republic of Iran,

896 F.3d 501 (D.C. Cir. 2018) .............................. 15

Kauthar SDN BHD v. Sternberg,

149 F.3d 659 (7th Cir. 1998) .................... 11, 12, 18

Khodr v. Holder,

531 F. App’x 660 (6th Cir. 2013).......................... 13

Klein v. United States,

880 F.2d 250 (10th Cir. 1989) .............................. 22

Kovacs v. United States,

744 F.3d 44 (2d Cir. 2014) ................................... 22

Kramer v. Gates,

481 F.3d 788 (D.C. Cir. 2007) .............................. 14

Lexmark Int’l, Inc. v. Static

Components, Inc.,

572 U.S. 118 (2014) .............................................. 19

Lukowski v. INS,

279 F.3d 644 (8th Cir. 2002) ................................ 10

vii

Meyers v. Oneida Tribe of Indians of

Wis.,

936 F.3d 818 (7th Cir. 2016) ................................ 11

Miller v. Metro. Life Ins. Co.,

979 F.3d 118 (2d Cir. 2020) ................................. 12

Minesen Co. v. McHugh,

671 F.3d 1332 (Fed. Cir. 2012) ...................... 14, 15

Montague v. NLRB,

698 F.3d 307 (6th Cir. 2012) ................................ 13

Moody v. United States,

874 F.2d 1575 (11th Cir. 1989) ............................ 22

Nat’l R.R. Passenger Corp. v. Nat’l Ass’n of R.R.

Passengers,

414 U.S. 453 (1974) .............................................. 19

One Fair Wage, Inc. v. Darden Restaurants Inc.,

No. 21-16691, 2023 WL 2445690,

(9th Cir. Mar. 10, 2023) ....................................... 14

Owen Equip. & Erection Co. v. Kroger,

437 U.S. 365 (1978) .............................................. 16

Pacheco de Perez v. AT&T Co.,

139 F.3d 1368 (11th Cir. 1998) .............................. 9

Parella v. Ret. Bd. of R.I. Emps.’ Ret. Sys.,

173 F.3d 46 (1st Cir. 1999) .................................. 12

Patchak v. Zinke,

583 U.S. 244 (2018) .............................................. 24

viii

Philips v. Ameritech Info. Sys., Inc.,

178 F.3d 1295, 1999 WL 96650

(6th Cir. Feb. 5, 1999) .......................................... 13

Pub. Sch. Ret. System of Mo. v. State Street Bank

& Trust Co.,

640 F.3d 821 (8th Cir. 2011) ................................ 10

Rawlins v. Kansas,

No. 11-3034, 2012 WL 1327802

(D. Kan. Apr. 17, 2012) ........................................ 25

Ruhrgas AG v. Marathon Oil Co.,

526 U.S. 574 (1999) ........................................ 19, 20

Seale v. INS,

323 F.3d 150 (1st Cir. 2003) ................................ 18

Springfield Hosp., Inc. v. Guzman,

28 F.4th 403 (2d Cir. 2022) .................................. 25

State Farm Fire & Cas. Co. v. Tashire,

386 U.S. 523 (1967) .............................................. 20

Steel Co. v. Cits. for a Better Env’t,

523 U.S. 83 (1998) ................ 2, 9, 11–15, 17–20, 24

Steel Co. Waleski v. Montgomery, McCracker,

Walker & Rhoads, LLP,

143 S. Ct. 2027 (2023) .......................................... 15

United States v. Castano,

906 F.3d 458 (6th Cir. 2018) ................................ 22

United States v. Christensen,

No. CR-14-08164, 2021 WL 169069

(D. Az. Jan. 19, 2021) ........................................... 27

United States v. Denedo,

556 U.S. 904 (2009) ........................................ 20–22

United States v. Lesane,

40 F.4th 191 (4th Cir. 2022) ................................ 22

United States v. Lion,

No. 3:19-CR-00138, 2025 WL 451364

(D. Conn. Jan. 9, 2025) ........................................ 26

United States v. Lynch,

807 F. Supp. 2d 224 (E.D. Pa. 2011) ................... 27

United States v. Mischler,

787 F.2d 240 (7th Cir. 1986) .......................... 22, 27

United States v. Morgan,

346 U.S. 502 (1954) ........................................ 21, 26

United States v. Ortiz,

No. 06-10431, 2007 WL 1223991

(5th Cir. Apr. 25, 2007) ........................................ 10

United States v. Reguer,

901 F. Supp. 515 (E.D.N.Y. 1995) ....................... 27

United States v. Rivera-Cerda,

200 F. App’x 372 (5th Cir. Sept. 21, 2006)

(per curiam) .......................................................... 10

United States v. Scherer,

673 F.2d 176 (7th Cir. 1982) ................................ 22

United States v. Sloan,

505 F.3d 685 (7th Cir. 2007) ................................ 22

United States v. Stefanoff,

149 F.3d 1192, 1998 WL 327888

(10th Cir. June 22, 1998) ............................... 22, 27

United States v. Tinker-Smith,

No. 2:24-CV-09141, 2025 WL 372099

(W.D. Wa. Feb. 3, 2025) ....................................... 26

United States v. Venerri,

782 F. Supp. 1091 (D. Md. 1991) ......................... 27

Williams v. United States,

858 F.3d 708 (1st Cir. 2017) ................................ 22

Yancey v. Thomas,

441 F. App’x 552 (10th Cir. 2011)........................ 11

CONSTITUTIONAL AND STATUTORY AUTHORITIES

U.S. Const. art. III....................................................... 1

28 U.S.C. § 1254 .......................................................... 1

28 U.S.C. § 1332 ........................................................ 19

28 U.S.C. § 1651 ........................................................ 21

OTHER AUTHORITIES

EB-5 Immigrant Investor Program, U.S.

Citizenship and Immigration Services

(Mar. 1, 2023) ......................................................... 4

Cortney E. Lollar, Invoking Criminal

Equity’s Roots, 107 Va. L. Rev. 495

(2021) .................................................................... 26

Brenden W. Randell, Comment, United States v.

Cooper: The Writ of Error Coram Nobis and the

Morgan Footnote Paradox,

74 Minn. L. Rev. 1063 (1990). .............................. 21

Joshua S. Stillman, Hypothetical

Statutory Jurisdiction and the

Limits of Federal Judicial Power,

68 Ala. L. Rev. 493 (2016) .................................... 19

Vermont EB-5 Program, Department of

Financial Regulation (Nov. 2023).......................... 4

OPINIONS BELOW

The decision of the U.S. Court of Appeals for the

Second Circuit aﬃrming the denial of William

Stenger’s writ of coram nobis is not reported in the

Federal Reporter but is available at 2024 WL 3220260

and is reproduced at Pet.App.1a. The order of the

court of appeals denying rehearing en banc is not

reported in the Federal Reporter but is available at

2024 WL 5401506 and is reproduced at Pet.App.12a.

The decision of the U.S. District Court for the

District of Vermont is not reported in the Federal

Supplement but is available at 2023 WL 12019411

and is reproduced at Pet.App.14a.

JURISDICTION

The Second Circuit issued its opinion and entered

judgment on June 28, 2024. Pet.App.1a. It denied

rehearing en banc on September 27, 2024.

Pet.App.12a.

On December 18, 2024, Justice

Sotomayor extended the time to ﬁle this petition until

February 24, 2025. No. 24A596 (U.S.). This Court has

jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

Under Article III, the “judicial Power of the United

States shall be vested in one Supreme Court, and in

such inferior Courts as the Congress may from time to

time ordain and establish.” U.S. Const. art. III. That

power shall extend only to “cases, in law and equity,

arising under this Constitution, the laws of the United

States,” and treaties, along with other “cases” and

“controversies.”

Article III is reproduced in full at Pet.App.34a.

INTRODUCTION

The Second Circuit ruled on the merits of

Petitioner’s appeal without ﬁrst determining whether

it had the power to do so. In putting the merits

question before the jurisdictional question, the court

gave short shrift to both and failed to adequately

address the fundamental issues presented by this

petition.

It improperly assumed “hypothetical

statutory jurisdiction” and skipped the underlying

jurisdictional issue: whether a writ of coram nobis can

provide relief from a criminal restitution order. Both

questions, however, implicate entrenched circuit

conﬂicts.

First, the Second Circuit stated that it “is well

settled that where the jurisdictional issue is statutory

in nature—as it is here, under the All Writs Act—we

may assume hypothetical jurisdiction and address the

substance of claims that are plainly without merit.”

Pet.App.7a. n.2.

But “[h]ypothetical jurisdiction

produces nothing more than a hypothetical

judgment—which comes to the same thing as an

advisory opinion, disapproved by this Court from the

beginning.” Steel Co. v. Cits. for a Better Env’t, 523

U.S. 83, 101 (1998). This Court ﬂatly rejected the

practice in Steel Co., holding that the Constitution has

never allowed “a court to resolve contested questions

of law when its jurisdiction is in doubt.”

Id.

Nevertheless, some courts—like the court below—

have engineered a workaround to Steel Co.’s holding.

These courts exercise hypothetical jurisdiction where

the contested jurisdictional question is “statutory,”

rather than purely constitutional, in nature.

A federal court’s power to resolve statutory claims

without ﬁrst assuring itself of its power to do so is

“well settled” in only certain circuits, however. Seven

circuits endorse “hypothetical statutory jurisdiction,”

while ﬁve have rejected it. And one—the Seventh

Circuit—seems ambivalent.

This deep and entrenched circuit split has evaded

the Supreme Court’s resolution for too long.

Admittedly, that evasion is perhaps unsurprising:

every hypothetical statutory jurisdiction petition will

have been resolved against the petitioner on merits

that at least two circuit judges ﬁnd clear. That

arguable vehicle problem will exist in every such

petition. But if courts were conducting the threshold

analysis required under the Constitution, many cases,

including Petitioner’s, would result in diﬀerent

outcomes on the merits.

More fundamentally, the reality that a majority of

circuits regularly evade this Court’s clear rejection of

hypothetical jurisdiction is nothing short of

astonishing. That serious, purely legal question

informs the day-to-day adjudicatory functions of the

federal courts. If Petitioner is correct, a majority of

circuits are regularly acting ultra vires; if Petitioner is

incorrect, the other ﬁve circuits are wasting

immeasurable judicial resources on jurisdictional

analyses that, according to the court below, are simply

needless. Either way, the question calls out for

resolution.

Second, this petition also presents the opportunity

to eﬃciently resolve another circuit split, over the

jurisdictional issue that the Second Circuit skipped.

Whether a writ of coram nobis can oﬀer relief from an

erroneous criminal restitution order divides at least

two circuits, with others like the Second simply

avoiding providing an answer through hypothesis.

That second purely legal question also is ripe for

review.

STATEMENT

A. Factual Background.

The Petitioner, William Stenger, pleaded guilty to

providing false information to Vermont state

regulators in January 2015. Pet.App.15a. Speciﬁcally,

he fraudulently represented that his AnC Bio VT EB5 1 project’s business projections were reasonable.

Pet.App.15a–16a. The regulators had placed a hold

on investment into Petitioner’s project in June 2014

after learning that the U.S. Securities and Exchange

Commission was investigating potential securities

violations related to the project. See Pet.App.4a. n.1,

JA636. 2 But they lifted their hold in April 2015.

Pet.App.4a. n.1.

Based on this conviction, in April 2022, the District

Court ordered Petitioner to pay $250,000 in

The EB-5 Immigrant Investor program is a government

program through which immigrant investors can obtain lawful

permanent residency by showing that their investment in a

commercial enterprise would create at least ten jobs. See EB-5

Immigrant Investor Program, U.S. Citizenship and Immigration

Services (Mar. 1, 2023), https://tinyurl.com/5t525eeu. Vermont’s

EB-5 program was uniquely administered by the state

government, and continues to operate despite attempts to wind

it down. See Vermont EB-5 Program, Department of Financial

Regulation (Nov. 2023), https://tinyurl.com/3ybbz846.

References to the JA are to the Joint Appendix filed by the

parties in the Court of Appeals. Dkt. Nos. 20, 21, 22, 23, 24.

restitution to 36 people. Those people, however, had

invested in the project after the state regulators lifted

their hold. Pet.App.16a–17a.

The District Court relied on testimony at

sentencing by one of the Vermont regulators,

Commissioner Susan Donegan. Donegan speciﬁcally

testiﬁed that she would not have lifted the hold had

she known “before March of 2015” that the

information Petitioner provided in January 2015 was

unreliable. See Pet.App.31a. That turned out to be

false.

In April 2023, a year after sentencing, Petitioner’s

counsel discovered two internal state memoranda

documenting two early February 2015 teleconferences

involving Donegan’s colleagues and SEC attorney

investigators. 3 See Pet.App.24a–28a. One memo

documented that SEC attorneys warned the Vermont

regulators that information similar to that provided

by Petitioner to potential investors in January 2015

was not reliable.

Pet.App.24a–26a.

Thus,

Commissioner Donnegan knew in February 2015 that

Petitioner’s projections from January 2015 were

unreliable, and her testimony that, had she known of

that unreliability she would not have lifted the hold in

March 2015, was plainly false.

Mr. Stenger’s counsel had access to the materials prior to

sentencing. But they were not text searchable, and among the

approximately six million pages of discovery materials provided

to the defense and thus evaded earlier notice. Once discovered,

they were promptly brought to the District Court’s attention in

support of the coram nobis petition at issue. JA439.

B. Procedural Background.

1. After learning that Commissioner Donegan had

known Petitioner’s projections were unreliable before

March of 2015, Petitioner promptly ﬁled a petition for

a writ of coram nobis. JA439. The petition asked the

District Court to strike the restitution order because

the regulator’s decision to lift the hold was an

intervening cause of the subsequent investors’

participation in the project. Pet.App.21a–22a; JA440.

The District Court denied the petition.

Pet.App.23a. It did not explicitly grapple with

whether coram nobis relief is available to correct a

fundamental error in a criminal restitution order.

Instead, it oﬀered a paragraph about the history of the

writ that did not acknowledge the uncertainty over

the writ’s availability and hastened on to the merits.

Pet.App.19a. For the court, it did not matter that, in

sentencing Petitioner, it had relied on a government

witness’s false testimony that the regulators would

not have lifted the investment hold had they known

that Petitioner’s information was unreliable. It

instead declined to correct its judgment, reasoning

that Petitioner’s false representation to Vermont

regulators—several links earlier in the chain of

causation—rose to the level of proximate cause.

Pet.App.21a–22a.

2. On appeal, the government observed that

whether coram nobis relief is available to challenge a

restitution order is an unsettled question in the

Second Circuit. Brief of Appellee 26–27, United

States v. Stenger, No. 23-6528 (2d Cir. Nov. 22, 2023),

Dkt. No. 30. But it did not challenge the court’s

jurisdiction. Id. at 27. Petitioner, by contrast, argued

that the court was required to resolve the

jurisdictional issue before addressing the merits.

Reply Brief of Appellant 1, United States v. Stenger,

No. 23-6528 (2d Cir. Dec. 11, 2023), Dkt. No. 34.

The Second Circuit aﬃrmed. But it did not resolve

the jurisdictional issue.

It instead invoked

“hypothetical statutory jurisdiction” in a footnote to

skip the jurisdictional inquiry, explaining that

“[a]lthough Stenger suggests that we must decide this

threshold jurisdictional issue before reaching the

substance of his petition, we disagree. It is well

settled that where the jurisdiction issue is statutory

in nature—as it is here, under the All Writs Act—we

may assume hypothetical jurisdiction.” Pet.App.7a.

n.2. It thus declined to consider whether “a writ of

coram nobis is available to challenge a noncustodial

component of a sentence, including a restitution

order.” Pet.App.7a. n.2.

The Second Circuit then proceeded to adjudicate

the merits. Pet.App.7a. n.2. It held that the District

Court did not abuse its discretion by concluding that

no extraordinary circumstances required vacating the

restitution order. Pet.App.7a–8a. And in doing so, it

breezily adopted the District Court’s analysis.

The Second Circuit then denied Petitioner’s petition

for rehearing without explanation. Pet.App.12a.

This petition follows.

REASONS FOR GRANTING THE WRIT

This case presents important and recurring

questions regarding the scope of a federal court’s

power and the availability of petitions for coram nobis

relief. The decision below expressly invoked the

controversial “hypothetical statutory jurisdiction”

doctrine—the subject of a longstanding conﬂict that

divides every court of appeals—to avoid resolving the

subject of another circuit split: the availability of a

writ of coram nobis to correct a restitution order.

Both splits are ripe for resolution. This Court

should reverse the Second Circuit’s exercise of

extraconstitutional authority, hold that coram nobis

relief is available in this context, and remand for a

closer look at the merits.

THE DECISION BELOW EXACERBATES A DEEP

CIRCUIT

SPLIT

OVER

“HYPOTHETICAL

STATUTORY JURISDICTION.”

The Second Circuit’s order invoked hypothetical

statutory jurisdiction to reach and reject the merits of

Petitioner’s argument without ﬁrst establishing

jurisdiction to enter that judgment. In doing so, it

repeated its practice of resolving disputes without

ﬁrst assuring itself of its power to do so, and cemented

its position alongside six other circuits.

The courts of appeals are deeply divided over the

propriety of hypothetical statutory jurisdiction. Five

circuits—the Eleventh, Fourth, Fifth, Eighth, and

Tenth—have rejected the doctrine. The Seventh

Circuit’s approach is in ﬂux. And the remaining

circuits—seven of them—have blessed the doctrine.

A closer look at the practices across these circuits

reveals a fundamental disagreement about the scope

of Steel Co. The circuits that invoke hypothetical

statutory jurisdiction do not recognize that the Steel

Co. court meant what it said when it held that

“[h]ypothetical jurisdiction produces nothing more

than a hypothetical judgment.” 523 U.S. at 101. This

Court’s intervention is needed to rein in the circuits

that regularly exceed their constitutional and

statutory authority by entering judgments without

assured jurisdiction.

1. Five circuits recognize that federal courts cannot

assume hypothetical statutory jurisdiction to resolve

the merits of a case.

The Eleventh Circuit has read Steel Co. to establish

that “an inferior court must have both statutory and

constitutional jurisdiction before it may decide a case

on the merits.” Friends of the Everglades v. EPA, 699

F.3d 1280, 1288 (11th Cir. 2012) (Pryor, J.) (emphasis

added). As Judge William Pryor put it, “We cannot

exercise hypothetical jurisdiction any more than we

can issue a hypothetical judgment.” Id. at 1289; 4 see

Pacheco de Perez v. AT&T Co., 139 F.3d 1368, 1372 n.4

(11th Cir. 1998) (“Important jurisdictional questions

cannot be ignored merely because they are diﬃcult.

To do otherwise would allow defendants to evade []

statutory requirements.”); In re Bayour Shores SNF,

Although Friends of the Everglades recognized an “exception”

to this rule where “there is substantial overlap between

interpreting a statute to resolve the merits of a case and

determining an issue of statutory standing,” it has maintained

that a court must first determine the merits when (as here) a

“statutory issue involves subject matter jurisdiction … and that

issue is distinct from the merits.” 699 F.3d at 1289.

LLC, 828 F.3d 1297, 1328–29 (11th Cir. 2016)

(similar).

The Fourth Circuit also requires resolving

jurisdictional issues before addressing the merits. In

Di Biase v. SPX Corporation, it chastised the district

court for skipping to the merits instead of resolving

“issues related to jurisdiction and standing pursuant

to the LMRA and ERISA.” 872 F.3d 224, 232 (4th Cir.

2017). The court explained that it could not, “as the

district court has done, assume subject matter

jurisdiction merely to reach a less thorny issue.” Id.

at 231.

The Fifth Circuit initially sanctioned assuming

statutory jurisdiction, but ultimately reversed course.

In United States v. Ortiz, it determined that it “must

decide the [statutory] jurisdictional question” because

“the Supreme Court rejected the theory of

hypothetical jurisdiction.” No. 06-10431, 2007 WL

1223991, at *1 (5th Cir. Apr. 25, 2007) (per curiam).

Ortiz thus rejected earlier precedent “pretermit[ting]”

the practice. United States v. Rivera-Cerda, 200 F.

App’x 372, 373 (5th Cir. Sept. 21, 2006) (per curiam)).

The Eighth Circuit similarly reversed course after

nearly a decade. In Public School Retirement System

of Missouri v. State Street Bank & Trust Co., it held

that a court must assure itself of statutory jurisdiction

at the “threshold.” 640 F.3d 821, 825 (8th Cir. 2011).

This marked a shift in practice from Lukowski v. INS,

where the court assumed hypothetical statutory

jurisdiction despite being “less certain” that the

practice was “sound.” 279 F.3d 644, 647 & n.1 (8th Cir.

2002).

The Tenth Circuit also has changed approaches

over time. Most recently, it held that a federal court

cannot merely “assume it ha[s] jurisdiction to

dismiss … claims under Rule 12(b)(6).” Chance v.

Zincke, 898 F.3d 1025, 1028–29 (10th Cir. 2018). This

followed a decision expressing uncertainty about

hypothetical statutory jurisdiction, see Abernathy v.

Wandes, 713 F.3d 538, 557 n.17 (10th Cir. 2013), and

another invoking hypothetical statutory jurisdiction,

see Yancey v. Thomas, 441 F. App’x 552, 555 n.1 (10th

Cir. 2011) (skipping Rooker-Feldman inquiry to

address family law issue).

2. The Seventh Circuit’s position on hypothetical

statutory jurisdiction is unclear, reﬂecting the

growing confusion among the circuits.

Like the Fifth, Eighth, and Tenth Circuits, the

Seventh Circuit has expressed concern about its

longstanding practice of assuming hypothetical

statutory jurisdiction. But it is not clear whether it

presently views the practice as lawful. While the

Seventh Circuit adopted the hypothetical statutory

jurisdiction workaround soon after Steel Co., see

Kauthar SDN BHD v. Sternberg, 149 F.3d 659, 672

(7th Cir. 1998), it has since observed that “the

[Supreme] Court has been unwavering in its

insistence that our adjudicatory authority is limited

by the Constitution and Congress, and no result

justiﬁes our intervening where we have not been

granted the power to do so.” Groves v. United States,

941 F.3d 315, 323 (7th Cir. 2019) (Barrett, J.) (citing

Steel Co., 523 U.S. at 101–02); see also Meyers v.

Oneida Tribe of Indians of Wis., 936 F.3d 818, 823 (7th

Cir. 2016) (similar). And it has rejected an invitation

to assume without deciding that a district court erred

in granting a Rule 12(b)(1) motion and nevertheless

aﬃrm dismissal under Rule 12(b)(6). Boim v. Am.

Muslims for Palestine, 9 F.4th 545, 557 (7th Cir. 2021).

Neither of the more recent decision confronted the

court’s use of hypothetical statutory jurisdiction in

Sternberg or took a clear position on the broader

circuit conﬂict.

3. Like the Second below, the First Third, Sixth,

Ninth, Federal, and D.C. Circuits all sanction using

hypothetical statutory jurisdiction.

The First Circuit frequently invokes hypothetical

statutory jurisdiction. See, e.g., Johansen v. Liberty

Mut. Grp. Inc., 118 F.4th 142, 148 (1st Cir. 2024)

(declining to “tarry” and instead “bypass[ing] the

jurisdictional conundrum” presented); Caribe Chem

Distribs., Corp. v. S. Agric. Insecticides, Inc., 96 F.4th

25, 28 (1st Cir. 2024) (skipping question on remand

order’s appealability). It has long read Steel Co. to

“distinguish[] between Article III jurisdiction

questions and statutory jurisdiction questions,

holding that the former should ordinarily be decided

before the merits, but the latter need not be.” Parella

v. Ret. Bd. of R.I. Emps.’ Ret. Sys., 173 F.3d 46, 54 (1st

Cir. 1999).

As demonstrated by the underlying order, the

Second Circuit similarly takes advantage of the

hypothetical statutory jurisdiction workaround. For

the Second Circuit, brushing aside the jurisdictional

question to resolve a dispute on the merits represents

“the cardinal principle of judicial restraint—if it is not

necessary to decide more, it is necessary not to decide

more.” Miller v. Metro. Life Ins. Co., 979 F.3d 118, 124

(2d Cir. 2020) (cleaned up); see In re Hyatt, No. 22-

1844, 2025 WL 100677, at *2 n.1 (2d Cir. Jan. 15,

2025) (“While the bankruptcy court proceeded on

hypothetical jurisdiction to consider the merits of

these claims, we have held that jurisdictional issues

related to statutory standing and sovereign immunity

need not be decided as a threshold matter.”).

The Third Circuit cemented the hypothetical

statutory jurisdiction workaround shortly after this

Court decided Steel Co. In Bowers v. National

Collegiate Athletic Association, it reasoned that Steel

Co. “should not be understood as requiring courts to

answer all questions of ‘jurisdiction,’ broadly

understood …. Instead, that case requires courts to

answer questions concerning Article III jurisdiction

before reaching other questions.” 346 F.3d 402, 415–

16 (3d Cir. 2003); see Jordon v. Att’y Gen. of U.S., 424

F.3d 320, 325 n.8 (3d Cir. 2004) (assuming jurisdiction

to decide derivative citizenship claim).

The Sixth Circuit also quickly adopted the

workaround. In a footnote, it reasoned that “it is

appropriate for a federal court to reserve diﬃcult

questions of jurisdiction when the case alternatively

could be resolved on the merits in favor of the same

party.” Philips v. Ameritech Info. Sys., Inc., 178 F.3d

1295, 1999 WL 96650, at *2 n.1 (6th Cir. Feb. 5, 1999)

(table) (cleaned up). It has since followed that rule.

See, e.g., Khodr v. Holder, 531 F. App’x 660, 665 n.4

(6th Cir. 2013) (assuming jurisdiction to weigh

evidence supporting alien’s petition for review);

Montague v. NLRB, 698 F.3d 307, 313 (6th Cir. 2012)

(assuming jurisdiction to defer to NLRB’s treatment

of Letter of Agreement).

The Ninth Circuit also assumes hypothetical

statutory jurisdiction. For that circuit, implementing

“[t]he goals behind the Supreme Court’s general

admonitions against hypothetical jurisdiction—to

avoid advisory opinions on the merits and drive-by

jurisdictional rulings”—sometimes requires courts to

skip a “novel and important” jurisdictional question in

favor of a simpler merits question. Bakalian v. Cent.

Bank of Repub. of Turkey, 932 F.3d 1229, 1236 (9th

Cir. 2019).

And even granting the doctrine’s

legitimacy, the Ninth Circuit has expressed confusion

over how to properly apply it. In One Fair Wage, Inc.

v. Darden Restaurants Inc., it noted that “Steel Co.’s

progeny left us with some uncertainty about the

relationship between subject-matter jurisdiction and

subject-matter adjacent questions.” No. 21-16691,

2023 WL 2445690, at *2 (9th Cir. Mar. 10, 2023).

The D.C. Circuit also assumes hypothetical

statutory jurisdiction to resolve substantive issues of

law. It has explained that Steel Co. is “related to

Article III jurisdiction, not … to a statutory limit.”

Kramer v. Gates, 481 F.3d 788, 791 (D.C. Cir. 2007)

(assuming jurisdiction to interpret Back Pay Act); see

Am. Hosp. Ass’n v. Azar, 964 F.3d 1230, 1246 (D.C. Cir.

2020) (assuming jurisdiction to interpret a federal

budget act).

And ﬁnally, the Federal Circuit similarly recognizes

an Article III exception for hypothetical statutory

jurisdiction. In Minesen Co. v. McHugh, it explained

that “[w]hile we are generally obligated to resolve

jurisdictional challenges ﬁrst, Supreme Court

precedent only requires federal courts to answer

questions concerning their Article III jurisdiction—

not necessarily their statutory jurisdiction—before

reaching other dispositive issues.” 671 F.3d 1332,

1337 (Fed. Cir. 2012) (assuming jurisdiction to resolve

contract claim).

4. Justices of this Court and judges across the

circuits that sanction the assumption of hypothetical

jurisdiction have openly questioned its legality.

Members of this Court read Steel Co. to bar the

popular practice of assuming hypothetical statutory

jurisdiction. In a dissent from the denial of certiorari,

Justice Thomas, joined by Justices Gorsuch and

Barrett, observed that this “Court categorically

repudiated ‘the doctrine of hypothetical jurisdiction”

in Steel Co. Waleski v. Montgomery, McCracker,

Walker & Rhoads, LLP, 143 S. Ct. 2027, 2027 (2023)

(Thomas, J., dissenting from denial of certiorari,

joined by Gorsuch, J. and Barrett, J.) (cleaned up).

That dissent explained that it “appears exceedingly

diﬃcult

reconcile

hypothetical

statutory

jurisdiction with the text and structure of Article III

and this Court’s decision in Steel Co.” Id. at 2028.

Judges in circuits that accept the practice have

similarly questioned whether the doctrine is

legitimate. See, e.g., Kaplan v. Cent. Bank of the

Islamic Republic of Iran, 896 F.3d 501, 518 (D.C. Cir.

2018) (Edwards, J., concurring) (questioning the

validity of hypothetical statutory jurisdiction);

Butcher v. Wendt, 975 F.3d 236, 245–55 (2d Cir. 2020)

(Menashi, J., concurring in part) (same).

Nevertheless, a majority of circuits employ the

practice, which means that either (a) that majority is

regularly acting ultra vires by entering judgments

without jurisdiction, or (b) the ﬁve other circuits that

reject the practice are wasting judicial resources on an

unnecessary task.

This Court should resolve this longstanding and

recognized division among the lower courts.

II. THE COURT BELOW UNLAWFULLY ASSUMED

“HYPOTHETICAL STATUTORY JURISDICTION” TO

ADJUDICATE THE MERITS OF PETITIONER’S CASE.

The Second Circuit’s decision is seriously mistaken.

By skipping the key jurisdictional question, it

cemented its position on the wrong side of a longentrenched circuit split. Worse yet, its refusal to

engage with that question likely infected the merits

analysis by giving the entire exercise short shrift.

This Court should grant the petition and reverse.

1. The jurisdiction of federal courts to adjudicate

cases and controversies is conferred and constrained

by Article III of the U.S. Constitution and—pursuant

to Article III—by Congress. As a result, this Court has

admonished lower courts to refrain from adjudicating

the merits of a case without constitutional and—

where relevant—Congressional authority. See Owen

Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374

(1978). (“It is a fundamental precept that federal

courts are courts of limited jurisdiction. The limits

upon federal jurisdiction, whether imposed by the

Constitution or by Congress, must be neither

disregarded nor evaded.”).

The

practice

assuming

“hypothetical”

jurisdiction to resolve the merits of a case is an

unconstitutional end-run around these principles.

The Court recognized this inevitable conclusion in

Steel Co. v. Citizens for a Better Environment, where

the Court analyzed how “the particulars of

respondent’s complaint … measures up to Article III’s

requirements,” 523 U.S. at 104—and it also answered

the threshold question whether subject-matter

jurisdiction (there, standing) needs to be determined

before a merits analysis, see id. at 93–101. The Court

explained that the “requirement that jurisdiction be

established as a threshold matter ‘spring[s] from the

nature and limits of the judicial power of the United

States’ and is ‘inﬂexible and without exception.’” 523

U.S. at 94–95 (quoting Mansﬁeld, C. & L.M.R. Co. v.

Swan, 111 U.S. 379, 382 (1884)). Thus, “[h]ypothetical

jurisdiction produces nothing more than a

hypothetical judgment—which comes to the same

thing as an advisory opinion, disapproved by this

Court from the beginning.” Id. at 101.

That conclusion should be no surprise. This Court

long ago established that “[w]ithout jurisdiction [a

federal court] cannot proceed at all in any case.

Jurisdiction is power to declare the law, and when it

ceases to exist, the only function remaining to the

court is that of announcing the fact and dismissing the

cause.” Ex Parte McCardle, 74 U.S. 506, 514 (1868).

Indeed, some jurists clearly identiﬁed the

constitutional problem with hypothetical jurisdiction

well before Steel Co.’s attempt to end the practice. See,

e.g., Clow v. U.S. Dept. of Housing & Urban Dev., 948

F.2d 614, 628 (9th Cir. 1991) (O’Scannlain, J.,

dissenting) (“[H]ypothetical jurisdiction cannot lie

where actual jurisdiction is clearly absent. Indeed,

the very concept of hypothetical jurisdiction is

indefensible.”).

Bedrock constitutional principles and this Court’s

precedents make clear that courts cannot skip

jurisdictional questions—however thorny—to resolve

the merits.

2. Notwithstanding Steel Co.’s clear holding, courts

began engineering an unconstitutional workaround

almost immediately after the decision. See, e.g.,

Kauthar, 149 F.3d at 672. Speciﬁcally, several circuit

courts have read Steel Co. to permit assuming

“hypothetical statutory jurisdiction.” These courts

have typically done so by characterizing as

“complicated and not entirely clear” Steel Co.’s

language addressing statutory jurisdiction. Seale v.

INS, 323 F.3d 150, 156 (1st Cir. 2003).

Steel Co.’s bottom-line holding, however, does not

distinguish between statutory and Article III standing.

It instead treats the two as susceptible to the same

analysis. Indeed, it held that both “statutory and

(especially) constitutional elements of jurisdiction are

an essential ingredient of separation and

equilibration of powers, restraining the courts from

acting at certain times, and even restraining them

from acting permanently regarding certain subjects.”

Steel Co., 523 U.S. at 101. Statutory “restraints” are

not worth much if courts can “assume” them away.

This Court’s linking of statutory and constitutional

jurisdiction makes sense. Statutory jurisdiction ﬂows

from the same font as constitutional jurisdiction:

Article III. After all, Article III does not simply set the

outer bounds of the judicial power. It also empowers

Congress to set—by statute—the jurisdiction of the

federal courts within those bounds. Assuming away

those bounds exceeds the judicial power.

Notwithstanding this commonsense conclusion,

some courts have read Steel Co.’s characterization of

an earlier case—National Railroad Passenger

Corporation v. National Association of Railroad

Passengers, 414 U.S. 453 (1974)—as evidence of the

propriety of hypothetical statutory jurisdiction. See,

e.g., Coan v. Kaufman, 457 F.3d 250, 256 (2d Cir. 2006);

Bowers, 346 F.3d at 415. These courts focus on dicta

in Steel Co. that seems to distinguish National

Railroad on the ground that it concerned “an issue of

statutory standing,” thus suggesting the two are not

subject to the same restrictions.

But National

Railroad “did not actually bypass any statutory

jurisdictional issues, so Steel Co.’s seeming

endorsement of National Railroad does not support

hypothetical statutory jurisdiction.”

Joshua S.

Stillman, Hypothetical Statutory Jurisdiction and the

Limits of Federal Judicial Power, 68 Ala. L. Rev. 493,

522 (2016). Instead, “no issue of statutory standing

was skipped” because the merits question had been

improperly framed as a standing issue—an analytical

wrinkle later ironed out in Lexmark International, Inc.

v. Static Components, Inc., 572 U.S. 118 (2014). Id. at

525.

This Court’s post-Steel Co. practice also implicitly

rejects the hypothetical statutory jurisdiction doctrine.

Id. at 528–33. For example, in Ruhrgas AG v.

Marathon Oil Co., a case decided the year after Steel

Co., the Supreme Court considered whether a court

may dismiss a case for lack of personal jurisdiction

before establishing subject-matter jurisdiction. 526

U.S. 574 (1999). And in that case, the subject-matter

jurisdiction question was whether the parties satisﬁed

the complete diversity requirement under 28 U.S.C.

§ 1332. But the Constitution requires only minimal

diversity to satisfy Article III jurisdiction, State Farm

Fire & Cas. Co. v. Tashire, 386 U.S. 523, 531 (1967),

and the parties did not contest minimal diversity.

Ruhrgas, 526 U.S. at 584. So the subject-matter

jurisdiction issue was purely one of statutory

dimensions. And the Court still reasoned that “Steel

Co. is the backdrop” for the case. Id. at 577; see

Stillman, supra at 529. That would not be true if Steel

Co. did not also bar hypothetical statutory jurisdiction.

The Second Circuit did not even attempt to justify

its reliance on hypothetical statutory jurisdiction,

despite its suspect status. This Court should reverse.

III. THIS COURT CAN RESOLVE A SECOND CIRCUIT

SPLIT BY DETERMINING THE AVAILABILITY OF A

WRIT OF CORAM NOBIS TO CORRECT A

RESTITUTION ORDER.

This Court need not go any further than resolving

the circuit split over hypothetical statutory

jurisdiction. But the underlying jurisdictional issue

that the Second Circuit skipped is a pure question of

law that also has divided circuit courts: whether a

writ of coram nobis is available to correct a criminal

restitution order. This petition therefore presents an

opportunity to eﬃciently resolve two entrenched

splits with one grant.

1. The writ of coram nobis is an “ancient commonlaw remedy.” United States v. Denedo, 556 U.S. 904,

910 (2009).

It “emerged in sixteenth century

England … to correct errors of fact not appearing on

the record that would have precluded the court’s

judgment had the court known of the error when it

rendered judgment.” Brenden W. Randell, Comment,

United States v. Cooper: The Writ of Error Coram

Nobis and the Morgan Footnote Paradox, 74 Minn. L.

Rev. 1063, 1069 (1990).

At common law, the writ “was allowed without

limitation of time for facts that aﬀect the ‘validity and

regularity’ of the judgment,” and has since “had a

continuous although limited use also in our states.”

United States v. Morgan, 346 U.S. 502, 507 (1954).

Courts have granted the writ to resolve a variety of

injustices: “to inquire as to the imprisonment of a

slave not subject to imprisonment, insanity of a

defendant, a conviction on a guilty plea through the

coercion of fear of mob violence, failure to advise of

right to counsel.” Id. at 508. And “in its modern

iteration coram nobis is broader than its common-law

successor.” Denedo, 556 U.S. at 911. It is thus broadly

used as a “tool to correct a legal or factual error.” Id.

at 913

This Court has held that the writ of coram nobis

may be used to correct errors (1) “of the most

fundamental character” that render the proceeding

invalid, (2) where there are sound reasons for the

failure to seek earlier relief, and (3) when the

defendant “may” continue to suﬀer from his conviction

even though he is out of custody. Morgan, 346 U.S. at

509 n.15, 511–12.

The All Writs Act, which permits the “Supreme

Court and all courts established by Act of Congress

[to] issue all writs necessary or appropriate in aid of

their respective jurisdictions and agreeable to the

usages and principles of law,” 28 U.S.C. § 1651(a),

vests federal courts with “the authority to grant a writ

of coram nobis,” Denedo, 556 U.S. at 910–11.

2. The circuits are nevertheless divided over

whether, as a legal matter, coram nobis may be used

to correct a fundamental error in a criminal

restitution order like the one here. 5

The Seventh Circuit has explicitly upheld

jurisdiction for restitution-based petitions like

Petitioner’s. United States v. Mischler, 787 F.2d 240,

241 n.1 (7th Cir. 1986) (reading Morgan to broadly

“retain[] [coram nobis’s] vitality in criminal

proceedings”). And analogously, the Tenth Circuit has

found jurisdiction under the writ to challenge the

imposition of measures to collect a criminal ﬁne after

the custodial portion of a sentence has ended. United

States v. Stefanoﬀ, 149 F.3d 1192, 1998 WL 327888, at

The courts of appeals have generated at least two other splits

concerning the writ of coram nobis that are not directly

implicated here:

First, some circuits require a petitioner to prove an ongoing

civil disability stemming from the fundamental error. See, e.g.,

United States v. Castano, 906 F.3d 458, 463 (6th Cir. 2018);

Williams v. United States, 858 F.3d 708, 715 (1st Cir. 2017);

Kovacs v. United States, 744 F.3d 44, 49 (2d Cir. 2014); United

States v. Sloan, 505 F.3d 685, 697 (7th Cir. 2007). Others do not.

See, e.g., United States v. Lesane, 40 F.4th 191, 203–04 (4th Cir.

2022); Hirabayashi v. United States, 828 F.2d 591, 605–07 (9th

Cir. 1987).

And second, the Eleventh Circuit bars coram nobis relief

where the petition is based on the discovery of new evidence. See

Moody v. United States, 874 F.2d 1575, 1577 (11th Cir. 1989).

Others allow such petitions. See, e.g., United States v. Scherer,

673 F.2d 176, 178 (7th Cir. 1982); Klein v. United States, 880 F.2d

250, 253–54 (10th Cir. 1989); du Purton v. United States, 891

F.3d 437, 440 (2d Cir. 2018) (per curiam).

*1 (10th Cir. June 22, 1998) (“Nonetheless, a criminal

defendant who seeks to collaterally attack his

conviction and sentence, but who is no longer in

custody, is not without remedy: he may ﬁle a petition

for writ of error coram nobis under the All Writs Act.”).

But the Fifth Circuit has rejected the use of coram

nobis to challenge a restitution order. Campbell v.

United States, 330 F. App’x 482, 483 (5th Cir. 2009)

(per curiam) (citing circuit precedent that challenges

to ﬁnes should be made on direct appeal). For that

court, a federal district court categorically “lacks

jurisdiction to modify a restitution order under

§ 2255, a writ of coram nobis, or any other federal

law.” Id. (cleaned up).

The Second Circuit’s failure to grapple with this

split was ultra vires for the reasons discussed above.

It also perpetuates uncertainty over the writ’s

availability. And that failure also infected the ﬁnal

analysis. Had the court grappled with and resolved

the availability of the writ to challenge a restitution

order, it would have better understood both (i) how the

government oﬃcial’s false testimony undermined the

integrity of the proceedings and (ii) the soundness of

Petitioner’s reasons for not knowing the testimony

was false at the time of sentencing. That more careful

treatment should have yielded a diﬀerent result. 6

The Court need not reach these fact-bound questions if it

grants this petition, however, and may instead leave

reconsideration of their treatment to the lower courts on remand

if Petitioner prevails.

IV. THE QUESTIONS PRESENTED ARE IMPORTANT

AND LIKELY TO RECUR.

Courts frequently invoke hypothetical statutory

jurisdiction to resolve the merits of cases in excess of

their lawful authority. And the writ of coram nobis is

an important remedy frequently considered by the

federal courts. The questions here therefore are

important and likely to recur, so this Court should

resolve them.

1. Hypothetical statutory jurisdiction implicates

important questions about the separation of powers.

Indeed, Justice Scalia, writing for the Steel Co. Court,

recognized that “[m]uch more than legal niceties are

at stake here.”

523 U.S. at 101.

Assuming

hypothetical jurisdiction “carries the courts beyond

the bounds of authorized judicial action and thus

oﬀends fundamental principles of separation of

powers.” Id. at 94.

Similarly, this Court has recognized that because “a

congressional grant of jurisdiction is a prerequisite to

the exercise of judicial power,” acting beyond a

statutory grant “would undermine the separation of

powers by ‘elevat[ing] the judicial over the legislative

branch.’” Patchak v. Zinke, 583 U.S. 244, 254 (2018)

(quoting Cary v. Curtis, 3 How. 236, 245 (1845)). That

is what a federal court does when it assumes

hypothetical statutory jurisdiction and resolves a case

on the merits. It is creating precedent, often binding

precedent, on those merits without assured power to

do so. In other words, those separation-of-powers

concerns are not mitigated just because courts reserve

that indulgence for when a party’s claims will lose on

the merits. After all, “even a dismissal on the merits

can create binding precedent on important legal

questions,” like “the scope and application of

aﬃrmative defenses” and the “elements a plaintiﬀ

must plead to state a claim.” Butcher, 975 F.3d at 248

(Menashi, J., concurring in part).

And that is not to mention the judicial legitimacy

and economy problems presented by the practice.

When courts exercise hypothetical statutory

jurisdiction, it harms the judiciary’s legitimacy by

advancing ultra vires action. And it hurts judicial

economy

continually

kicking

important

jurisdictional questions of ﬁrst impression down the

road for future courts and litigants to resolve (or kick

even further down the road). Courts should not force

those seeking to comply with the law to engage in

endless guessing games about questions of statutory

jurisdiction.

This issue is already frequently recurring. As

discussed above, courts in the majority of federal

jurisdictions routinely exercise hypothetical statutory

jurisdiction. See, e.g., Chun Mendez v. Garland, 96

F.4th 58, 65 (1st Cir. 2024) (bypassing jurisdictional

question to address asylum and withholding of

removal claims); Springﬁeld Hospital, Inc. v. Guzman,

28 F.4th 403, 416 (2d Cir. 2022) (bypassing

jurisdictional question to resolve bankruptcy claim

because “[w]hen a jurisdictional issue is statutory in

nature, we are not required to follow a strict order of

operations but instead may proceed to dismiss the

case on the merits”); see also Rawlins v. Kansas, No.

11-3034, 2012 WL 1327802, at *2–3 (D. Kan. Apr. 17,

2012) (presuming that the writ of audita querela still

exists despite “some question as to whether” it does).

And as a result, federal courts across the country

routinely issue judgments ultra vires.

This Court should intervene.

2. The writ of coram nobis is an important remedy

frequently considered by federal courts. This petition

presents a circuit split concerning its application to

criminal restitution orders that also is ripe for

resolution.

The writ of coram nobis is an important tool for

ensuring fairness in proceedings infected with some

underlying injustice.

Indeed, this “remedy is

essentially an assurance that the guaranties of due

process under the Federal Constitution will not be

denied as a result of the technical limitations of other

remedies, such as the writ of habeas corpus.” Cortney

E. Lollar, Invoking Criminal Equity’s Roots, 107 Va. L.

Rev. 495, 520 (2021). The writ is “an important

equitable source of relief for those who are no longer

serving a sentence but can point to ‘fundamental’

errors in their trial or plea proceedings.” Id. at 526.

And it is ﬂexible enough to remedy fundamental

errors from the “failure to advise of right to counsel,”

Morgan, 346 U.S. at 508, to mistaken reliance on false

testimony by a government oﬃcial, as here.

Federal district courts regularly adjudicate

petitions for a writ of coram nobis. See Lollar, supra,

at 522 (“Since Morgan, federal courts have considered

writs of coram nobis at a slow but steady rate in

criminal cases.”); see, e.g., United States v. TinkerSmith, No. 2:24-CV-09141, 2025 WL 372099 (W.D. Wa.

Feb. 3, 2025). They often arise in the criminal

restitution context. See, e.g., United States v. Lion,

No. 3:19-CR-00138, 2025 WL 451364 (D. Conn. Jan. 9,

2025); United States v. Christensen, No. CR-14-08164,

2021 WL 169069 (D. Az. Jan. 19, 2021); United States

v. Venerri, 782 F. Supp. 1091 (D. Md. 1991). And they

also arise in the analogous criminal ﬁnes context. See,

e.g., United States v. Lynch, 807 F. Supp. 2d 224 (E.D.

Pa. 2011); Dean v. United States, 418 F. Supp. 2d 149

(E.D.N.Y. 2006); United States v. Reguer, 901 F. Supp.

515 (E.D.N.Y. 1995). Yet in the Second Circuit,

litigants like Petitioner are left to guess whether

jurisdiction over such petitions exists, because that

court refuses to decide. And Fifth Circuit litigants are

out of luck entirely.

This Court can eﬃciently resolve the split by also

granting review of the second question presented.

V. THIS CASE PRESENTS AN IDEAL VEHICLE.

This case cleanly presents two important purely

legal questions ripe for resolution.

First, this petition is an ideal vehicle through which

this Court can resolve the hypothetical statutory

jurisdiction circuit split. Petitioner acknowledges

that every hypothetical statutory jurisdiction petition

will come to this Court with an arguable vehicle

problem. That is, every such petition will have been

resolved against the petitioner on the merits, so the

respondent always can argue that the result will not

change whatever this Court does.

But if that

argument carries the day, then the majority of circuits

will continue to unlawfully exercise hypothetical

jurisdiction with impunity.

And that creates

additional perverse consequences. Had the court

slowed down to evaluate whether coram nobis

jurisdiction actually exists—and concluded that it

does, Mischler, 787 F.2d at 241 n.1; Stefanoﬀ, 1998 WL

327888, at *1—it should have come to a diﬀerent

outcome on the merits. Only this Court’s intervention

will resolve the conﬂict dividing every court of

appeals, and the sooner the better.

Second, this petition is a convenient vehicle

through which this Court also can reconcile the

disparate approaches to coram nobis relief from

fundamentally erroneous restitution orders. Lower

courts need guidance on this jurisdictional issue,

which the Second Circuit skipped. This Court should

clarify that coram nobis relief is available for criminal

restitution orders and can do so eﬃciently, without

wading into the particular facts of this case.

Resolving these issues and remanding to the

Second Circuit will require that court to reconsider

the extraordinary circumstances of this case. The

Second Circuit’s rush past the jurisdictional question

downplayed the remarkable fact that a government

witness lied about the issue central to the restitution

order. Had the court confronted the jurisdictional

analysis, it would have taken a more careful approach

to the merits as well. Furthermore, resolving these

issues will provide much-needed guidance for lower

courts on not one, but two fundamental and

frequently recurring legal issues—the ﬁrst of which

will continue to evade this Court’s review if not taken

up in a petition with a posture just like this.

CONCLUSION

The Court should grant the petition.

February 24, 2024

Respectfully submitted,