May 31, 2016 Articles

Is Proximate Cause Being Eroded in Determining Restitution?

The first legal challenge to U.S. Coast Guard's complex restitution calculation.

By Dennis S. Medica

In the Ninth Circuit decision of United States v. Kennedy, 643 F.3d 1251 (9th Cir. 2011), the court indicated that restitution under 18 U.S.C. § 3663 may be awarded only for losses for which the defendant’s conduct was an actual and proximate cause. In 2011, the D.C. Circuit Court in United States v. Monzel, 641 F.3d 528, 535, 538 (D.C. Cir. 2011), said, “It is a bedrock rule of both tort and criminal law that a defendant is only liable for harms he proximately caused.” Proximate cause is a critical linkage to any calculation or determination of restitution. Even when the government is the victim, it has to prove that its harm was proximately caused by the defendant. This critical linkage between proximate cause and restitution has been abandoned in the Sixth Circuit’s decision in United States v. Kumar, 750 F.3d 563 (6th Cir 2014).

In Kumar, the Sixth Circuit affirmed the decision of the U.S. District Court for the Northern District of Ohio related to the calculation of restitution in a hoax distress call, among other claims. The circuit court cautioned, though, that its decision does not entitle the U.S. Coast Guard (USCG) to recover all claimed indirect costs in every case. This cautionary statement suggests that complex calculations in restitution claims associated with false distress calls have not been fully settled. Kumar was the first case that legally challenged the USCG’s calculation of restitution under 14 U.S.C. § 88(c).

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