Amicus Curiae Brief — Michael Pung, Personal Representative of the Estate of Timothy Scott Pung, Petitioner v. Isabella County, Michigan

Supreme Court briefDec 8, 2025

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No. 25-95

In the Supreme Court of the United States

MICHAEL PUNG, PERSONAL REPRESENTATIVE OF THE

ESTATE OF TIMOTHY SCOTT PUNG, PETITIONER

ISABELLA COUNTY, MICHIGAN

On Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

BRIEF FOR THE INSTITUTE FOR JUSTICE AS

AMICUS CURIAE IN SUPPORT OF PETITIONER

SAMUEL B. GEDGE

Counsel of Record

PRASHANTA G. AUGUSTINE

INSTITUTE FOR JUSTICE

901 North Glebe Road,

Suite 900

Arlington, VA 22203

(703) 682-9320

sgedge@ij.org

(i)

TABLE OF CONTENTS

Page

Interest of amicus curiae................................................... 1

Summary of argument ...................................................... 1

Argument ............................................................................ 3

I. Because the court of appeals’ bright-line

valuation rule was flawed, the first question

presented can be resolved straightforwardly ..... 3

II. To the extent petitioner’s second question

presented need be addressed at all, the

county’s arguments are without merit ................ 5

A. Whatever its resolution of the first question

presented, the Court need not address

petitioner’s second question presented ........ 5

B. The excessive-fines question before the

Court is narrow, and the county’s

arguments on that question lack merit ......... 6

Conclusion ......................................................................... 14

TABLE OF AUTHORITIES

Page

Cases:

Austin v. United States,

509 U.S. 602 (1993) ................................................. 6-12

Colo. Dep’t of Lab. & Emp. v. Dami Hosp., LLC,

442 P.3d 94 (Colo. 2019) ........................................... 7-9

Cutter v. Wilkinson, 544 U.S. 709 (2005) ......................6

DeVillier v. Texas, 601 U.S. 285 (2024).........................1

First Eng. Evangelical Lutheran Church of

Glendale v. Los Angeles County,

482 U.S. 304 (1987) .......................................................4

Helvering v. Mitchell, 303 U.S. 391 (1938) ................. 12

Hudson v. United States, 522 U.S. 93 (1997) ....... 11-13

Kelo v. City of New London, 545 U.S. 469 (2005) ........1

Kennedy v. Mendoza-Martinez,

372 U.S. 144 (1963) ..................................................... 10

Knick v. Township of Scott, 588 U.S. 180 (2019) .........4

Landa v. United States, 153 Fed. Cl. 585 (2021) ....... 10

Monongahela Navigation Co. v. United States,

148 U.S. 312 (1893) ................................................... 2, 5

New York v. United Parcel Serv., Inc.,

942 F.3d 554 (2d Cir. 2019)..........................................8

One Lot Emerald Cut Stones v. United States,

409 U.S. 232 (1972) ..................................................... 12

People ex rel. Lockyer v. R.J. Reynolds

Tobacco Co., 124 P.3d 408 (Cal. 2005) .......................9

State v. Timbs, 134 N.E.3d 12 (Ind. 2019) .................... 7

iii

State v. Timbs, 62 N.E.3d 472 (Ind. Ct. App. 2016) ..... 7

Timbs v. Indiana, 586 U.S. 146 (2019) ..........................1

Toth v. United States, 143 S. Ct. 552 (2023) ........... 9, 11

Tyler v. Hennepin County,

598 U.S. 631 (2023) ......................................... 1-3, 5, 11

United States ex rel. Grant v. Zorn,

107 F.4th 782 (8th Cir. 2024), cert. denied,

145 S. Ct. 2812, 2816 (2025) ......................................... 8

United States v. $10,700.00,

258 F.3d 215 (3d Cir. 2001)..........................................7

United States v. Bajakajian,

524 U.S. 321 (1998) ........................................... 8, 11-12

United States v. Collins,

No. 18-cv-1069, 2021 WL 456962 (W.D. Pa.

Feb. 8, 2021), aff’d on other grounds,

36 F.4th 487 (3d Cir. 2022) ........................................ 11

United States v. Toro., Hamilton & Buffalo

Navigation Co., 338 U.S. 396 (1949) ...................... 1, 3

United States v. Toth, 33 F.4th 1 (1st Cir. 2022)........ 12

United States v. Ursery, 518 U.S. 267 (1996) ......... 6, 13

United States v. Viloski,

814 F.3d 104 (2d Cir. 2016)........................................12

United States v. Ward, 448 U.S. 242 (1980) ................10

Yates v. Pinellas Hematology & Oncology, P.A.,

21 F.4th 1288 (11th Cir. 2021) ............................... 9, 12

Statutes:

Mich. Comp. Laws Ann. § 211.78k(6)

(West 2015) ............................................................... 1, 3

Mich. Comp. Laws Ann. § 211.78m(7)

(West 2015) ............................................................... 4-5

Other authorities:

Br. in Opp., Toth v. United States,

143 S. Ct. 552 (2023) (No. 22-177) ......................... 9, 13

Br. of United States as Amicus Curiae, Tyler v.

Hennepin County, 598 U.S. 631 (2023)

(No. 22-166) ............................................................. 8, 13

Br. of United States, United States v. Rund,

No. 24-1958 (4th Cir. Mar. 17, 2025) (Doc. 28) ........ 12

J.A., Tyler v. Hennepin County, 598 U.S. 631

(2023) (No. 22-166) ....................................................... 8

Judgment, Isabella Cnty. Treasurer v. Pung,

No. 14-11664-CF (Mich. Isabella Cnty. Trial Ct.

June 12, 2018) ...............................................................4

Kenneth Mann, Punitive Civil Sanctions: The

Middleground Between Criminal and Civil Law,

101 Yale L.J. 1795, 1829 (1992) .................................12

Opinion and Order on Respondent’s Objection to

Proposed Order, Isabella Cnty. Treasurer v.

Pung, No. 14-11664-CF (Mich. Isabella Cnty.

Trial Ct. June 12, 2018) ............................................... 4

Pet. Br., Austin v. United States,

1993 WL 347335 (U.S. Mar. 1, 1993)

(No. 92-6073) .................................................................7

(1)

INTEREST OF AMICUS CURIAE

The Institute for Justice is a public-interest law firm

committed to securing constitutional protections for individual liberty. Among our areas of expertise are the Fifth

Amendment’s Takings Clause and the Eighth Amendment’s Excessive Fines Clause. (Cases in which we have

represented the petitioners include DeVillier v. Texas,

601 U.S. 285 (2024); Timbs v. Indiana, 586 U.S. 146

(2019); and Kelo v. City of New London, 545 U.S. 469

(2005).) We have a keen interest in the proper resolution

of this case.*

SUMMARY OF ARGUMENT

In 2018, “[f]ee simple title” to petitioner’s property

“vest[ed] absolutely” in Isabella County. Mich. Comp.

Laws Ann. § 211.78k(6) (West 2015). The parties appear

to agree that the county effected a taking; the property’s

value far exceeded the tax debt owed. The parties likewise

appear to agree that, under this Court’s precedent, petitioner “is entitled to just compensation.” Tyler v. Hennepin County, 598 U.S. 631, 639 (2023). The dispute is over

how that just compensation should be calculated. And on

that question, the court of appeals erred. “Perhaps no

warning has been more repeated than that the determination of value cannot be reduced to inexorable rules.”

United States v. Toro., Hamilton & Buffalo Navigation

Co., 338 U.S. 396, 402 (1949). Yet the court of appeals implemented just such a rule. It treated as dispositive of just

compensation the price the county fetched at auction—

and, worse, an auction that postdated the county’s having

acquired title to the property by over a year. Pet. Br. 8.

In accordance with Rule 37.6, no counsel for a party authored this

brief in whole or in part, and no person other than amicus or its counsel have made any monetary contributions intended to fund the preparation or submission of this brief.

That is an unprecedented way to determine just compensation. The court of appeals’ error on this ground warrants vacatur and remand.

As an alternative, petitioner raises as his second question presented whether Isabella County’s failure to fully

compensate him for his property amounted to an Eighth

Amendment fine. No matter how petitioner’s first question presented is resolved, the Court need not address

this second question. Under Tyler v. Hennepin County,

petitioner undisputedly has a takings claim and is “entitled to just compensation.” 598 U.S. at 639. However that

just compensation is calculated, it necessarily will reflect

“a full and perfect equivalent for the property taken.” Monongahela Navigation Co. v. United States, 148 U.S. 312,

326 (1893). As in Tyler, therefore, the Court “need not decide whether [petitioner] has also alleged an excessive

fine under the Eighth Amendment.” 598 U.S. at 647-48;

see also id. at 648 (Gorsuch, J., concurring).

To the extent the Court addresses the second question

presented further, the decision below implicates only a

narrow excessive-fines issue: not whether an “excessive”

fine was imposed, but whether any “fine” was imposed in

the first place. On that question, the Court should not accept the arguments pressed by the county at the certiorari stage and by the federal government elsewhere.

Those arguments break with this Court’s precedent and

would, if accepted, badly distort the Excessive Fines

Clause.

ARGUMENT

I. Because the court of appeals’ bright-line valuation

rule was flawed, the first question presented can be

resolved straightforwardly.

Under this Court’s decision in Tyler v. Hennepin

County, Isabella County effected a taking of petitioner’s

property under the Fifth Amendment, in turn “entitl[ing]

[petitioner] to just compensation.” 598 U.S. 631, 639

(2023). In interpreting that guarantee of just compensation, “[p]erhaps no warning has been more repeated than

that the determination of value cannot be reduced to inexorable rules.” United States v. Toro., Hamilton & Buffalo Navigation Co., 338 U.S. 396, 402 (1949). Yet the

court of appeals’ rule of decision amounted to precisely

that: It held that petitioner’s just compensation was irrebuttably “determined” by the price fetched at a public

auction long postdating the taking of his property. Pet.

App. 11a; see also Pet. Br. 8.

In this, the court erred twice over. To start, treating

the auction price as dispositive of just compensation reflects just the sort of inexorable rule this Court has disapproved. A public-auction price certainly may be evidence

of the just compensation due. It may even be powerful evidence. But as petitioner’s case spotlights, using it as the

basis for an irrebuttable presumption breaks with this

Court’s precedent and with the promise of the Takings

Clause.

The court of appeals compounded its error by treating

as dispositive an auction that postdated Isabella County’s

taking by well over a year. See Pet. Br. 8. Under the Takings Clause, the moment at which “[f]ee simple title . . .

vest[ed] absolutely” in the county (Mich. Comp. Laws

Ann. § 211.78k(6) (West 2015)) was the point the taking

occurred. That is the date on which the original owner’s

“right to full compensation arises.” Knick v. Township of

Scott, 588 U.S. 180, 190 (2019). And that is the date as of

when the amount of just compensation must be calculated. See First Eng. Evangelical Lutheran Church of

Glendale v. Los Angeles County, 482 U.S. 304, 320

(1987). For petitioner, that date was, at the latest, June

12, 2018. See Judgment at 3, Isabella Cnty. Treasurer v.

Pung, No. 14-11664-CF (Mich. Isabella Cnty. Trial Ct.

June 12, 2018) (“[T]he Judgment of Foreclosure entered

in this proceeding on February 20, 2015 . . . is reinstated . . . .”); Opinion and Order on Respondent’s Objection to Proposed Order at 3, Isabella Cnty. Treasurer v.

Pung, No. 14-11664-CF (Mich. Isabella Cnty. Trial Ct.

June 12, 2018) (“[R]espondent’s request to reinstate the

redemption period is denied.”). Under the court of appeals’ standard, however, the date that mattered was long

after: mid-2019. A standard that treats such an after-thefact auction price as dispositive is an unprecedented way

to determine just compensation.

The court of appeals justified its standard by suggesting that “[t]he government commits a Fifth Amendment

taking when it retains the proceeds from a tax foreclosure

sale that exceed the delinquent property tax debt.” Pet.

App. 10a-11a. On that view, it is the surplus sale proceeds

that are the property “taken,” such that restoring those

proceeds equates to just compensation. But it is unclear

how that can be correct. At the latest, Isabella County acquired absolute title to petitioner’s property in June 2018.

It was that acquisition of absolute title that effected the

Fifth Amendment taking. And that the county happened

later to sell the property does not have any obvious bearing on that taking—much less give rise to a dispositive

metric for calculating the just compensation long-since

owed. (Under Michigan’s statute, in fact, properties like

petitioner’s might end up never being sold at all. Mich.

Comp. Laws Ann. § 211.78m(7) (West 2015).) Whatever

questions may be presented by other tax-foreclosure systems, correcting the court of appeals’ error on this ground

presents the most straightforward basis for resolving this

case.

II. To the extent petitioner’s second question presented need be addressed at all, the county’s arguments are without merit.

A. Whatever its resolution of the first question

presented, the Court need not address petitioner’s second question presented.

As an alternative to his Fifth Amendment takings

claim, petitioner presents a question relating to whether

Isabella County imposed an excessive fine. Pet. i. No matter how petitioner’s first question presented is resolved,

the Court need not address this second question. Under

Tyler, petitioner undisputedly has a takings claim and is

“entitled to just compensation.” 598 U.S. at 639. And however his just compensation ends up being calculated, it

must needs reflect “a full and perfect equivalent for the

property taken.” Monongahela Navigation Co. v. United

States, 148 U.S. 312, 326 (1893). What was true in Tyler is

thus equally true here. As in Tyler, the “relief under ‘the

Takings Clause w[ill] fully remedy [petitioner’s] harm.’”

598 U.S. at 647-48. In turn, as in Tyler, the Court “need

not decide whether [the petitioner] has also alleged an excessive fine under the Eighth Amendment.” Id.; see also

id. at 648 (Gorsuch, J., concurring) (“Given its Takings

Clause holding, the Court understandably declines to

pass on the question whether the Eighth Circuit committed a further error when it dismissed Ms. Tyler’s claim

under the Eighth Amendment’s Excessive Fines

Clause.”). On the second question presented, the Court

need say no more than that.

B. The excessive-fines question before the Court is

narrow, and the county’s arguments on that

question lack merit.

To the extent the Court addresses the second question

presented, the decision below implicates a narrow excessive-fines issue: not whether an “excessive” fine was imposed on petitioner, but whether any “fine” was imposed

at all. Broadly speaking, excessive-fines challenges present two distinct questions: (a) whether any “fine” has

been imposed, and (b) if one has, “whether the particular

sanction in question is so large as to be ‘excessive.’”

United States v. Ursery, 518 U.S. 267, 287 (1996); see also

Austin v. United States, 509 U.S. 602, 622-23 (1993)

(holding that civil forfeiture was a “fine” and remanding

for lower courts to evaluate excessiveness in the first instance). Below, the court of appeals addressed only the

first of those questions, holding that Isabella County imposed no fine at all. Pet. App. 15a. If the court of appeals

erred on that point, the proper course would thus be for

this Court to correct that threshold error, remand, and

leave any dispute about the excessiveness of petitioner’s

fine for the lower courts to address in the first instance—

a result petitioner appears to agree would be the appropriate course. Pet. Br. 44 (“This Court should remand for

the lower courts to determine the extent to which the confiscation of Pung’s property was an excessive fine . . . .”);

see generally Cutter v. Wilkinson, 544 U.S. 709, 718 n.7

(2005).

On that first-order question—whether a fine was imposed—the Court should not accept the arguments

pressed by the county at the certiorari stage (and by the

federal government in Tyler and elsewhere). Those arguments depart from this Court’s precedent and would, if

accepted, dramatically undermine the Excessive Fines

Clause’s protections across a range of punitive economic

sanctions.

1. The county argued at the certiorari stage that the

Excessive Fines Clause applies only to economic sanctions “imposed as punishment following conviction for a

criminal offense.” Br. in Opp. 12. This Court, however, has

rejected that proposition emphatically: The “notion of

punishment” contemplated in the Excessive Fines Clause

“cuts across the division between the civil and the criminal law.” Austin, 509 U.S. at 610 (citation omitted). In

Austin itself, in fact, the civil-forfeiture statute lacked the

criminal-civil link the county ascribes to it. It is true, as

the county has pointed out (Br. in Opp. 11), that Richard

Austin happens to have been convicted (in state court) of

the crimes giving rise to the federal government’s civilforfeiture action against his property. Austin, 509 U.S. at

604-05. But that conviction had no bearing on the applicability of the federal forfeiture statute; on its face, “forfeiture under § 881(a) is not conditioned upon an arrest or

conviction for a drug offense.” United States v.

$10,700.00, 258 F.3d 215, 223 n.6 (3d Cir. 2001). For that

matter, the federal government filed its action to civilly

forfeit Austin’s property before he had been convicted

criminally. Pet. Br., Austin v. United States, 1993 WL

347335, at *6 (U.S. Mar. 1, 1993) (No. 92-6073). The same

was true of the civil-forfeiture action in Timbs v. Indiana.

State v. Timbs, 62 N.E.3d 472, 474 (Ind. Ct. App. 2016);

see generally State v. Timbs, 134 N.E.3d 12, 35 (Ind.

2019) (noting more broadly that Indiana’s statute can apply to property owners “who may not have committed the

underlying crime”). In turn, courts across the Nation

have accepted that the Excessive Fines Clause applies to

fines, forfeitures, and penalties “whether those fines are

part of a criminal scheme or a civil one.” Colo. Dep’t of

Lab. & Emp. v. Dami Hosp., LLC, 442 P.3d 94, 100 (Colo.

2019); see also, e.g., United States ex rel. Grant v. Zorn,

107 F.4th 782, 797 (8th Cir. 2024), cert. denied, 145 S. Ct.

2812, 2816 (2025); New York v. United Parcel Serv., Inc.,

942 F.3d 554, 599 n.36 (2d Cir. 2019).

As the Court recognized in Austin, the Clause’s text

fully supports this reading. Unlike other parts of the Constitution, some of which “are expressly limited to criminal

cases,” the text of the Excessive Fines Clause “includes

no similar limitation.” Austin, 509 U.S. at 607, 608; see

also id. at 614 n.7 (reviewing founding-era definitions of

“fine”). Whether an economic sanction is subject to the

Excessive Fines Clause thus turns not on whether it is

“civil or criminal,” but on whether it serves at least partly

“to deter and to punish.” Id. at 610, 622; see also United

States v. Bajakajian, 524 U.S. 321, 329 & n.4 (1998).

Simply, the county’s view (Br. in Opp. 11) that the Clause

applies only to economic sanctions “directly tied to criminal conviction of the person whose property is subject to

forfeiture” breaks with text and precedent alike.

In Tyler, the federal government, as amicus, offered a

similarly flawed perspective: Even if a civil penalty need

not be linked directly to a criminal conviction, the Excessive Fines Clause is implicated only if the penalty can be

said to punish “a criminal offense.” Br. of United States

as Amicus Curiae at 28, Tyler v. Hennepin County, 598

U.S. 631 (2023) (No. 22-166). But the government’s perceived distinction between “[c]ivil deterrence” and “deterrence . . . to prevent crime” (id. at 29 (quoting J.A. at

42, Tyler, 598 U.S. 631 (No. 22-166))) is wrong for much

the same reasons Isabella County’s more blunt-force formulation is wrong. Most obviously, the government was

mistaken to divine from Austin’s “context” that the

Clause applies only “to sanctions with the purpose of deterring criminality.” Id. In truth, Austin said just the

opposite. 509 U.S. at 610 (“The notion of punishment, as

we commonly understand it, cuts across the division between the civil and the criminal law.” (citation omitted)).

Taking Austin at its word, courts across the Nation have

thus applied the Clause to civil penalties associated with

no criminal wrongdoing. See, e.g., Colo. Dep’t of Lab. &

Emp., 442 P.3d at 97; People ex rel. Lockyer v. R.J.

Reynolds Tobacco Co., 124 P.3d 408, 410, 420-23 (Cal.

2005).

Practically speaking, the federal government’s litigating positions betray the unworkability of its rule. In cases

involving federal FBAR penalties, for example, the government has argued that the Excessive Fines Clause does

not apply because “there is no necessary tie to a criminal

offense or criminal culpability.” Br. in Opp. at 15, Toth v.

United States, 143 S. Ct. 552 (2023) (No. 22-177). In litigation involving federal False Claims Act penalties,

meanwhile, it has conceded the opposite: that the Excessive Fines Clause does indeed apply. Yates v. Pinellas

Hematology & Oncology, P.A., 21 F.4th 1288, 1314 n.8

(11th Cir. 2021) (“The United States, as amicus curiae,

agreed at oral argument that the Excessive Fines Clause

applies in this case.”). How those two positions can coexist

is anyone’s guess. The simpler approach is the correct

one: Regardless of whether the misconduct to be punished is labeled civil or criminal (or criminal-ish), the Excessive Fines Clause applies to economic sanctions that

are “payment to a sovereign as punishment for some offense.” Austin, 509 U.S. at 622 (citation omitted); see also

Toth v. United States, 143 S. Ct. 552, 553 (2023) (Gorsuch,

J., dissenting from denial of certiorari) (noting that the

protections of the Excessive Fines Clause “would mean

little if the government could evade constitutional scrutiny under the Clause’s terms by the simple expedient of

fixing a ‘civil’ label on the fines it imposes and declining to

pursue any related ‘criminal’ case”).

2. At times, the federal government has also suggested that if a civil penalty or forfeiture does not qualify

as “criminal” for purposes of Fifth and Sixth Amendment

protections, it cannot qualify as a “fine” for purposes of

the Eighth Amendment. See, e.g., Landa v. United

States, 153 Fed. Cl. 585, 600-01 (2021) (accepting government’s arguments and applying “the factors established

in Kennedy [v. Mendoza-Martinez]”). That, too, is

wrong. As relevant here, the Fifth and Sixth Amendments secure protections “that attend a criminal prosecution” specifically. Austin, 509 U.S. at 610 n.6. But as discussed, that inquiry is materially different from whether

a penalty is a “fine” within the meaning of the Eighth

Amendment.

In fact, the Court has been down this road before. In

Austin, the government devoted itself to arguing that

“the Eighth Amendment cannot apply to a civil proceeding unless that proceeding is so punitive that it must be

considered criminal under Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), and United States v. Ward, 448

U.S. 242 (1980).” Id. at 607. Yet the Court rejected that

contention root and branch. Id. at 610 n.6 (“[T]he United

States’ reliance on Kennedy v. Mendoza-Martinez and

United States v. Ward is misplaced.”). The Kennedy

standard, the Court reasoned, is designed to identify

those civil penalties that are rightly viewed as “criminal”

and thus implicate constitutional protections reserved for

criminal-court proceedings alone. Id. But whether a penalty is an Eighth Amendment “fine” presents a different

question altogether—asking not whether the penalty “is

civil or criminal,” but whether it serves at least in part to

punish. Id. at 610. In years to come, the Court would hold

that same line: It reaffirmed that Austin remains the

yardstick for the Excessive Fines Clause even as it held

that the Kennedy standard applies to the Fifth Amendment. Hudson v. United States, 522 U.S. 93, 102-03

(1997).

3. In other contexts, the federal government has argued that civil penalties and forfeitures serve “remedial”

purposes and are thus categorically not Eighth Amendment fines. That contention is equally unfounded.

First, the government often misdescribes the relevant

legal framework. Under this Court’s precedent, a monetary payment might not be subject to the Excessive Fines

Clause if it is one-hundred percent compensatory and

zero percent punitive. If it serves a mix of remedial and

punitive ends in combination, however, the Clause applies. “Because ‘sanctions frequently serve more than one

purpose,’” the Court “has said that the Excessive Fines

Clause applies to any statutory scheme that ‘serv[es] in

part to punish.’” Tyler, 598 U.S. at 648 (Gorsuch, J., concurring) (quoting Austin, 509 U.S. at 610). Thus, “[i]t

matters not whether the scheme has a remedial purpose,

even a predominantly remedial purpose. So long as the

law ‘cannot fairly be said solely to serve a remedial purpose,’ the Excessive Fines Clause applies.” Id. (quoting

Austin, 509 U.S. at 610); see also Bajakajian, 524 U.S. at

329 n.4; Toth, 143 S. Ct. at 553 (Gorsuch, J., dissenting

from denial of certiorari). Routinely, however, the federal

government seeks to exempt civil penalties from the Excessive Fines Clause on the theory that, even if crushingly

punitive, they are “at least partially” remedial as well.

See, e.g., United States v. Collins, No. 18-cv-1069, 2021

WL 456962, at *8 (W.D. Pa. Feb. 8, 2021), aff’d on other

grounds, 36 F.4th 487 (3d Cir. 2022). That contention inverts the teaching of this Court’s precedent.

Second, the government also distorts the concept of

“remedial.” For excessive-fines cases, a purely “‘[r]emedial action’ is one ‘brought to obtain compensation or indemnity.’” Bajakajian, 524 U.S. at 329; see also, e.g.,

Yates, 21 F.4th at 1308; United States v. Viloski, 814 F.3d

104, 109 (2d Cir. 2016). Yet even for economic sanctions

that are non-compensatory, the government often seeks

to label them “remedial” even so. How? By looking, not to

excessive-fines precedent, but to mid-century precedent

involving the Double Jeopardy Clause, which at times

used “remedial” loosely to describe a variety of non-criminal sanctions. See, e.g., United States v. Toth, 33 F.4th 1,

16-19 (1st Cir. 2022) (invoking, e.g., Helvering v. Mitchell,

303 U.S. 391 (1938), and One Lot Emerald Cut Stones v.

United States, 409 U.S. 232 (1972) (per curiam)); see also

Br. of United States at 59-62, United States v. Rund, No.

24-1958 (4th Cir. Mar. 17, 2025) (Doc. 28).

That is a stark category error. While double-jeopardy

decisions certainly have made use of the term “remedial,”

they have done so in a way that differs from how the term

is used in excessive-fines precedent. In the double-jeopardy context, “remedial” developed into a shorthand for

all non-criminal penalties—“a catchall label for sanctions

that courts did not want to define as punitive in the criminal sense, but that were clearly not simple compensatory

damages.” Kenneth Mann, Punitive Civil Sanctions:

The Middleground Between Criminal and Civil Law,

101 Yale L.J. 1795, 1829 (1992) (citing, among other decisions, Mitchell, supra). That shorthand may be useful in

double-jeopardy cases, which distinguish between punishments that are and are not “criminal.” Hudson, 522

U.S. at 99. But, at risk of belaboring the point, the Excessive Fines Clause is different: It “cuts across the division

between the civil and the criminal law.” Austin, 509 U.S.

at 610 (citation omitted). Many penalties thus are

“remedial” (i.e., civil) enough to fall outside the Fifth

Amendment while still being “punitive” enough to implicate the Eighth. Indeed, the Court has said so explicitly:

While a civil economic sanction may be “subject to review

for excessiveness under the Eighth Amendment,” the

Court has admonished that “this does not mean” it is “so

punitive as to constitute punishment for the purposes of

double jeopardy.” Ursery, 518 U.S. at 287; see also id. at

286 (remarking that the Double Jeopardy Clause and the

Excessive Fines Clause are not “parallel to, or even related to” one another).

4. Lastly, the federal government has cautioned that

treating “deterrence” as the touchstone for the Excessive

Fines Clause “would threaten to transform every civil

penalty into a form of punishment for Eighth Amendment

purposes, since every civil penalty presumably deters to

some extent the conduct for which the penalty is assessed.” Br. in Opp. at 18, Toth, 143 S. Ct. 552 (No. 22177); see also Br. of United States as Amicus Curiae at 30,

Tyler, 598 U.S. 631 (No. 22-166). Yet as this Court has

made clear, that is precisely how the doctrine is meant to

work. In Hudson, for example, the Court construed the

Double Jeopardy Clause narrowly as “protect[ing] only

against the imposition of multiple criminal punishments

for the same offense.” 522 U.S. at 99. But the Excessive

Fines Clause, the Court noted, is different: It “protects

against excessive civil fines” as well. Id. at 103. Contrary

to the government’s suggestion, moreover, applying the

Excessive Fines Clause in this way does not imperil civil

penalties writ large; it simply ensures that they are subject to a measure of judicial review for excessiveness.

Ursery, 518 U.S. at 287 (noting that if a penalty is a fine,

“the second stage of inquiry under the Excessive Fines

Clause asks whether the particular sanction in question is

so large as to be ‘excessive’”).

CONCLUSION

The judgment of the court of appeals should be vacated and the case remanded for further proceedings.

Respectfully submitted.