EFTA00074599

In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 Branch, Circuit Judge, filed dissenting opinion, in which Martin, Jill Pryor, and Hull, Circuit Judges, joined. 994 F.3d 1244 Editor's Note: Additions are indicated by Text and deletions Hull, Circuit Judge, filed dissenting opinion. by Text . United States Court of Appeals, Eleventh Circuit. Procedural Posture(s): On Appeal; Petition for Writ of Mandamus. IN RE: Petitioner. No. 19-13843 West Headnotes (21) (April 15, 2021) 111 Federal Courts I Questions of Law in Synopsis General Background: Alleged victim of child sexual abuse brought When the issues presented are questions of law, civil action against federal government, alleging that an appellate court reviews them de novo. government violated Crime Victims' Rights Act (CVRA) by failing to confer with alleged victim before entering into non-prosecution agreement with alleged perpetrator. Alleged 121 Mandamus 0. Scope of inquiry and powers perpetrator intervened. The United States District Court for of court the Southern District of Florida, No. 9:08-cv-80736-KAM, Government did not waive, for consideration by Kenneth A. Marra, Senior District Judge, 359 F.Supp.3d Court of Appeals on alleged victim's petition 1201, determined that government had violated CVRA, but for writ of mandamus, an argument that Crime after alleged perpetrator's death, alleged victim's requested Victims' Rights Act (CVRA) did not apply if remedies were denied and the action was dismissed, ' 41I criminal proceedings had not been initiated, F.Supp.3d 1321. Alleged victim petitioned for writ of though government did not file a cross-appeal mandamus. The United States Court of Appeals for the from district court's initial determination that CVRA was applicable, which determination had Eleventh Circuit, r 955 F.3d 1196, denied the petition. been made before district court dismissed alleged victim's civil action against government because alleged perpetrator of child sexual abuse died (Holding:( On rehearing en banc, the Court of Appeals, while the civil action was pending; proceeding Newsom, Circuit Judge, as a matter of apparent first initiated by alleged victim was not an "appeal," impression, held that the CVRA did not create a private right but mandamus petition, and while CVRA of action authorizing crime victim to file stand-alone civil directed Court of Appeals to apply ordinary lawsuit to enforce CVRA rights. standards of appellate review in a mandamus proceeding brought by a crime victim, CVRA did not direct Court of Appeals to employ rules Petition denied. of procedure for typical appeals. 18 U.S.C.A. § 3771(d)(3). William H. Pryor, Chief Judge, filed concurring opinion, in which Newsom, Lagoa, Tjoflat, Circuit Judges, joined. I Cases that cite this headnote Newsom, Circuit Judge, filed concurring opinion. 131 Action Statutory rights of action Tjoflat, Circuit Judge, filed concurring opinion, in which Criminal Law 0. Civil liabilities to persons William H. Pryor, Chief Judge, and Wilson, Newsom, and injured; reparation Lagoa, Circuit Judges, joined. The Crime Victims' Rights Act (CVRA) does not create a private right of action authorizing a crime victim to file stand-alone civil lawsuit WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. EFTA00074599 In re Wild, 994 F.3d 1244 (2021) 28 Pa. L. Weekly Fed. C 2701 to enforce CVRA rights, including the right to confer with federal government's attorneys and the right to be treated fairly by them, before 191 Statutes 0. Plain language; plain, ordinary, the commencement of, or in the absence of, any common, or literal meaning preexisting criminal proceeding. 18 U.S.C.A. §§ In all cases involving statutory construction, 3771(a), 3771(b), 3771(d)( 1). court assumes that the legislative purpose is 3 Cases that cite this headnote expressed by the ordinary meaning, not the idiosyncratic meaning, of the words used. 141 Action 0. Statutory rights of action Like substantive federal law itself, private rights (10) United States 0. Necessity of waiver or of action to enforce federal law must be created consent by Congress. The United States is generally immune from suit, unless sovereign immunity is expressly waived. 151 Action 4- Statutory rights of action A reviewing court must interpret the statute [11] District and Prosecuting Congress has passed to determine whether it Attorneys 4- Charging discretion displays an intent to create not just a private right The core of prosecutorial discretion is the but also a private remedy, in determining whether decision whether or not to charge an individual a statute creates a private right of action. with a criminal offense in the first place. 161 Constitutional Law Creation of rights of 1121 Constitutional Law 4- Nature and scope in action general Absent clear expression of congressional intent The executive branch has exclusive authority to authorize would-be plaintiff to sue, a private and absolute discretion to decide whether to cause of action does not exist and courts may not prosecute a criminal case. create one, no matter how desirable that might be as a policy matter, or how compatible with the I Cases that cite this headnote statute. [13[ Constitutional Law 4- Nature and scope in general Constitutional Law 0. Creation of rights of Prosecutorial discretion flows not from desire to action give carte blanche to law enforcement officials A reviewing court may not plumb a statute's but from recognition of constitutional principle supposed purposes and policies in search of the of separation of powers. U.S. Const. art. 3, § I requisite intent to create a private cause ofaction; et seq. rather, inquiry both begins and ends with careful examination of the statute's language. [14[ District and Prosecuting Attorneys 4- Charging discretion Statutes 4- Express mention and implied The discretionary power of the attorney for exclusion; expressio unius est exclusio alterius the United States in determining whether a A statute's express provision of one method prosecution shall be commenced or maintained of enforcing a substantive rule suggests that may depend upon matters of policy wholly apart Congress intended to preclude others. WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 2 EFTA00074600 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 from any question of probable cause. U.S. Const. Amend. 4. I Cases that cite this headnote 1191 Constitutional Law 4- Encroachment on 1151 District and Prosecuting Judiciary Attorneys 0. Charging discretion Once the charging decision is made, the Although as a member of the bar, the attorney prosecutor steps into the court's jurisdiction, for the United States is an officer of the its house, so to speak, and thus necessarily court, he is nevertheless an executive official cedes some of her control of the course and of the Government, and it is as an officer of management of the criminal case. U.S. Const. art. the executive department that he exercises a 3, § I et seq. discretion as to whether or not there shall be a prosecution in a particular case. 1201 Criminal Law 0•- Grand jury; indictment, information, or complaint 1161 Constitutional Law 4- Prosecutors For Sixth Amendment right-to-counsel purposes, As an incident of the constitutional separation prosecution does not begin with criminal of powers, courts are not to interfere with the complaint's filing. U.S. Const. Amend. 6. free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions. U.S. Const. art. 2, § [211 Criminal Law 0. Preliminary examination; 3; U.S. Const. art. 3, § I et seq. arraignment; appearance; bail The Sixth Amendment right to counsel does not attach, because a prosecution does not begin, 1171 Criminal Law 0. Civil liabilities to persons until, at the earliest, a suspect's initial appearance injured; reparation before a judicial officer. U.S. Const. Amend. 6. Any individual asserting rights under the Crime Victims' Rights Act (CVRA) must, at the very outset, demonstrate to the district court that she is a "crime victim" entitled to statutory protection. 18 U.S.C.A. §§ 3771(a), 3771(eX2)(A). *1246 On Petition for Writ of Mandamus to the United States District Court for the Southern District of Florida, D.C. 2 Cases that cite this headnote Docket No. 9:08-cv-80736-KAM Attorneys and Law Firms [18[ Constitutional Law 0. Nature and scope in general Paul Cassell, University of Utah College of Law, SALT District and Prosecuting LAKE CTY, UT, Bradley James Edwards, Edwards Pottinger, Attorneys 0. Charging discretion LLC, FORT LAUDERDALE, FL, for Petitioner. The commencement of criminal proceedings Richard Christian Komando, Bradley Garrison & Komando, marks a clear and sensible boundary on ORANGE PARK, FL, for Amicus Curiae NATIONAL the prosecutorial•discretion spectrum; before CRIME VICTIM LAW INSTITUTE. charges are filed, when the government is still in the process of investigating and deciding Jill E. Steinberg, Nathan Parker Kitchens, U.S. Attorney's whether to prosecute, the prosecutoes authority Office, ATLANTA, GA, for Mandamus Respondent. and discretion are understood to be exclusive and absolute. U.S. Const. art. 2, § 3; U.S. Const. art. Allyson Newton Ho, Bradley George Hubbard, Gibson Dunn 3, § I et seq. & Crutcher, LLP, DALLAS, TX, for Amici Curiae DIANE FEINSTEIN, ORRIN HATCH and JON KYL. WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 3 EFTA00074601 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 authorize a victim to seek judicial enforcement of her CVRA Before WILLIAM PRYOR, Chief Judge, and WILSON, rights in a freestanding civil action. Because the government MARTIN, JILL PRYOR, NEWSOM, BRANCH, LUCK, never filed charges against Epstein, there was no preexisting LAGOA, BRASHER, TJOFLAT, and HULL, Circuit proceeding in which Ms. Wild could have moved for relief Judges.* under the CVRA, and the Act does not sanction her stand- alone suit. Opinion NEWSOM, Circuit Judge, delivered the opinion of the Court, I in which WILLIAM PRYOR, Chief Judge, and WILSON, LAGOA, BRASHER, and TJOFLAT, Circuit Judges, joined, and in which in LUCK, Circuit Judge, joined as to Parts IB, A II, III, IVA, IVB I-3a, IVC, IVD I, and V. The facts underlying this case, as we understand them, are WILLIAM PRYOR, Chief Judge, filed a concurring opinion, beyond scandalous—they tell a tale of national disgrace. in which NEWSOM, LAGOA, and TJOFLAT, Circuit Judges, joined. Over the course of eight years, between 1999 and 2007, well-heeled and well-connected financier Jeffrey Epstein NEWSOM, Circuit Judge, filed a concurring opinion. and multiple coconspirators sexually abused more than 30 young girls, including Ms. Wild, in Palm Beach, Florida and TJOFLAT, Circuit Judge, filed a concurring opinion, in which elsewhere in the United States and abroad. Epstein paid his WILLIAM PRYOR, Chief Judge, and WILSON, NEWSOM, employees to find girls and deliver them to him—some not and LAGOA, Circuit Judges, joined. yet even 15 years old. Once Epstein had the girls, he either sexually abused them himself, gave them over to be abused BRANCH, Circuit Judge, filed a dissenting opinion, in which by others, or both. Epstein, in turn, paid bounties to some of MARTIN, JILL PRYOR, and HULL, Circuit Judges, joined. his victims to recruit others into his ring. HULL, Circuit Judge, filed a dissenting opinion. Following a tip in 2005, the Palm Beach Police Department NEWSOM, Circuit Judge: and the FBI conducted a two-year investigation of Epstein's conduct. After developing substantial incriminating evidence, *1247 This petition for writ of mandamus arises under the the FBI referred the matter to the United States Attorney's Crime Victims' Rights Act, 18 U.S.C. § 3771. Petitioner Office for the Southern District of Florida. Beginning is one of more than 30 women who, according in January 2007, and over the course of the ensuing to allegations that we have no reason to doubt and therefore eight months, Epstein's defense team engaged in extensive accept as true in deciding this case, were victimized by negotiations with government lawyers in an effort to avoid notorious sex trafficker and child abuser Jeffrey Epstein. indictment. At the same time, prosecutors were corresponding In her mandamus petition, Ms. Wild asserts that when with *1248 Epstein's known victims. As early as March federal prosecutors secretly negotiated and executed a non- 2007, they sent letters advising each one that "as a victim and/ prosecution agreement with Epstein in 2007, they violated her or witness of a federal offense, you have a number of rights." rights under the CVRA—in particular, her rights to confer The letters, which the government distributed over the course with and to be treated fairly by the government's lawyers. of about six months, went on to enumerate the eight CVRA rights then in force—including, as particularly relevant here, We have the profoundest sympathy for Ms. Wild and others "[t]he reasonable right to confer with the attorney for the like her, who suffered unspeakable horror at Epstein's hands, [Government] in the case" and "[t]he right to be treated with only to be left in the dark—and, so it seems, affirmatively fairness and with respect for the victim's dignity and privacy." misled—by government attorneys. Even so, we find ourselves constrained to deny Ms. Wild's petition. While the CVRA By May 2007, government lawyers had completed both an permits a crime victim like Ms. Wild to "mov[e]" for relief 82-page prosecution memo and a 53-page draft indictment within the context of a preexisting proceeding—and, more alleging that Epstein had committed numerous federal sex generally, to pursue administrative remedies—it does not crimes. In July, Epstein's lawyers sent a detailed letter to WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 4 EFTA00074602 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 prosecutors arguing that, in fact, Epstein hadn't broken any If secrecy was the goal, it seems to have been achieved—there federal laws. By mid-September, the sides had exchanged is no indication that any of Epstein's victims were informed multiple drafts of what would become an infamous non- about the NPA or his state charges until after he pleaded guilty. prosecution agreement (NPA). Pursuant to their eventual On the day that Epstein entered his guilty plea in June 2008, agreement, Epstein would plead guilty in Florida court some (but by no means all) victims were notified that the to two state prostitution offenses, and, in exchange, he federal investigation of Epstein had concluded. But it wasn't and any coconspirators (at least four of whom have since until July 2008—during the course of this litigation—that Ms. been identified) would receive immunity from federal Wild learned of the NPA's existence, and until August 2008 prosecution. I In June 2008, Epstein pleaded guilty to the that she finally obtained a copy of the agreement. state crimes as agreed and was sentenced to 18 months' imprisonment, 12 months' home confinement, and lifetime We are doubtlessly omitting many of the sad details of this sex-offender status. shameful story. For our purposes, we needn't discuss the particulars of Epstein's crimes, or the fact that the national The district court found that "[f]rom the time the FBI began media essentially ignored for nearly a decade the jailing of investigating Epstein until September 24, 2007"—when the a prominent financier for sex crimes against young girls. 3 government formally executed the NPA with Epstein— Today, the public facts of the case are well known—Epstein federal prosecutors "never conferred with the victims about was eventually indicted on federal sex-trafficking charges in a[n] NPA or told the victims that such an agreement was under the Southern District ofNew York, and in August 2019, while consideration." Doe I v. United States, 359 F. Supp. 3d 1201, awaiting trial, he was found dead in his jail cell ofan apparent 1208 (S.D. Fla. 2019). Worse, it appears that prosecutors suicide. worked hand-in-hand with Epstein's lawyers—er at the very least acceded to their requests—to keep the NPA's existence and terms hidden from victims. The NPA itself provided B that "[t]he parties anticipate that this agreement will not be made part of any public record" and, further, that "[i]f the In July 2008, Ms. Wild brought suit in the United States United States receives a Freedom of Information Act request District Court for the Southern District of Florida, styling or any compulsory process commanding the disclosure of the her initial pleading—which she filed er pane, without agreement, it will provide notice to Epstein before making naming a defendant—an "Emergency Victim's Petition for that disclosure." Moreover, at approximately the same time Enforcement of Crime Victim's Rights Act." As the district that the sides concluded the NPA, they began negotiating court explained, "because no criminal case was pending" about what prosecutors could (and couldn't) tell victims about at the time—no federal charges having been filed against the agreement. Seemingly in deference to Epstein's lawyers' Epstein or anyone else—Ms. Wild "filed [her] petition as a repeated requests, the government held off—for nearly an new matter ... which the Clerk of Court docketed as a civil entire year—on notifying Epstein's victims of the NPA's action" against the United States. Does v. United States, existence. 817 F. Supp. 2d 1337, 1341 n.4 (S.D. Fla. 2011). Ms. Wild alleged that she was a "crime victim" within the meaning of And to be clear, the government's efforts appear to have the CVRA and that by keeping her in the dark about their graduated from passive nondisclosure to (or at least close dealings with Epstein, federal prosecutors had violated her to) active misrepresentation. In January 2008, for example, rights under the Act—in particular, her rights "to confer with approximately four months after finalizing and executing the the attorney for the Government in the case," 18 U.S.C. § NPA, the government sent a letter to Ms. Wild stating that 3771(a)(5), and "to be treated with fairness and with respect Epstein's case was "currently under investigation," explaining that "[t]his can be a lengthy process," and "request[ing her] for [her] dignity and privacy," id. § 3771(a)(8).4 She asked continued patience while [it] *1249 conduct[ed] a thorough the court to "order the United States Attorney to comply with investigation." The government sent a similar letter to another the provisions of the CVRA ...." victim in May 2008, some eight months after inking the Over the course of the ensuing decade, the district court issued NPA. 2 a number of significant rulings. For our purposes, three of the court's orders are particularly important. WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 5 EFTA00074603 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 In September 2019, having considered the parties' briefing Initially, in 2011 the district court "addresse[d] the threshold and the impact of Epstein's death, the district court dismissed issue whether the CVRA attaches before the government Ms. Wild's suit, denying each of her requested remedies. brings formal charges against the defendant." P i Does, See It 1 Doe I v. United States, 411 R Supp. 3d 1321 (S.D. 817 F. Supp. 2d at 1341. The court held that "it does Fla. 2019). In its order, the district court made a number of because the statutory language clearly contemplates pre- rulings. First, it held that Epstein's death mooted any claim regarding the NPA's continuing validity, as he was no longer charge proceedings."1 hi Having made that determination, the district court "defer[red]" ruling on the question whether subject to prosecution. See ? l id. at 1326. Relatedly, the federal prosecutors had violated the Act *1250 until the court concluded that it lacked jurisdiction to consider Ms. Wild's claim regarding the validity of the NPA as it applied parties could conduct additional discovery. ? l id at 1343. to Epstein's coconspirators; any opinion regarding that issue, the court determined, would be merely advisory because Following another eight years of litigation, the district court the coconspirators—as non-parties to the suit—couldn't be issued a pair of rulings that prompted the mandamus petition estopped from asserting the NPA's validity at any future now before us. In February 2019, the court found that the government had infringed Ms. Wild's CVRA rights. See prosecution. See? 1id. at 1326-27. Second, the court denied Doe I, 359 F. Supp. 3d at 1222. In particular, the court Ms. Wild's request for an injunction on the ground that she held that federal prosecutors violated the Act by "enter[ing] had failed to show "continuing, present adverse effects" or into a[n] NPA with Epstein without conferring with [Ms. any "real and immediate" threat of future CVRA violations. Wild] during its negotiation and signing." Id. at 1218. "Had Id. at 1328. Third, the court rejected Ms. Wild's requests [Ms. Wild] been informed about the Government's intention for a victim-impact hearing and a meeting with Acosta on to forego [sic] federal prosecution of Epstein in deference the grounds that it lacked jurisdiction over Acosta, that she to him pleading guilty to state charges," the district court had already had the opportunity to participate in an Epstein- emphasized, she "could have conferred with the attorney for related hearing in New York, that the Epstein prosecution the Government and provided input." Id. The court concluded had concluded, and that the government had already agreed that it was precisely "this type of communication between to confer with victims concerning any ongoing investigation prosecutors and victims that was intended by the passage of the CVRA."Id. at 1219. of Epstein's coconspirators. See id. at 1328-29. Fourth, the court denied Ms. Wild's discovery requests for grand- Having found CVRA violations, the court directed the jury materials and investigative files. See id. at 1329- parties—which by then included Epstein as an intervenor 30. Fifth, the court declined to order "educational remedies," —to address "the issue of what remedy, if any, should as the government had already agreed to implement CVRA be applied." Id. at 1222. In response, Ms. Wild proposed training for employees of the Southern District's *1251 multiple remedies, including: (I) rescission of the NPA; (2) an injunction against further CVRA violations; (3) an United States Attorney's office. I Id. at 1330. And finally, order scheduling a victim-impact hearing and a meeting the court rejected Ms. Wild's request for sanctions, fees, and between victims and Alexander Acosta, the former United restitution. SeeP I id. at 1330-31. States Attorney for the Southern District of Florida; (4) discovery of certain grandjury materials, records regarding Seeking review of the district court's order refusing every prosecutors' decision to enter into the NPA, and files remedy that she had sought, Ms. Wild filed—as the CVRA concerning law-enforcement authorities' investigation of directs—a petition for writ of mandamus with this Court. Epstein; (5) mandatory CVRA training for employees of the See IS U.S.C. § 3771(d)(3) (stating that "[i]f the district Southern District's United States Attorney's office; and (6) court denies the relief sought," a victim "may petition the sanctions, attorneys' fees, and restitution. In August 2019, court of appeals for a writ of mandamus"). The government while the court was considering the parties' briefing regarding filed a "brief in response" in which it not only opposed remedies, Epstein died of an apparent suicide; his death Ms. Wild's arguments on the merits, but also raised several prompted another round of briefing on the issue ofmootness. threshold arguments concerning the scope of the CVRA and the circumstances in which rights under the Act are judicially enforceable. 5 WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 6 EFTA00074604 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 A divided panel of this Court denied Ms. Wild's mandamus 11 petition, holding "that the CVRA does not apply before the commencement of criminal proceedings—and thus, on the The CVRA is a compact statute, occupying but one section facts of this case, does not provide [Ms. Wild] any judicially (and only three pages) of the United States Code. See IS enforceable rights." Plik; re Wild, 955 F.3d 1196, 1220 (11th U.S.C. § 3771. The entire Act comprises just six subsections, Cir. 2020), reh'g en bane granted, opinion vacated, 967 F.3d the pertinent portions of which we will outline briefly. 1285 (11th Cir. 2020). The CVRA opens, in subsection (a), with a catalogue of A majority of the active judges of this Circuit voted to rehear "rights" that federal law guarantees to "crime victims." (The the case en banc, and we directed the parties to address Act separately defines the term "crime victim" to mean "a two questions: (1) Whether the CVRA creates rights that person directly and proximately harmed as a result of the attach and apply before the formal commencement ofcriminal commission of a Federal offense." Id. § 3771(e)(2)(A).) The proceedings; and (2) Whether, even assuming that it does so, version of the CVRA in effect during the events in question the CVRA further creates a private right of action, such that here—between 2006 and 2008—stated as follows: any pre-charge right is judicially enforceable in a freestanding (a) Rights of crime victims.—A crime victim has the lawsuit. following rights: In response to those questions, Ms. Wild contends that (1) The right to be reasonably protected from the her rights "to confer with the attorney for the Government accused. in the case," 18 U.S.C. § 3771(a)(5), and "to be treated with fairness," id. § 3771(a)(8), attached even before the (2) The right to reasonable, accurate, and timely notice of commencement of—and as it turns out, in the absence of— any public court proceeding, or any parole proceeding, any criminal proceedings against Epstein and, further, that the involving the crime or of any release or escape of the CVRA authorized her to seek judicial enforcement of those accused. rights in a stand-alone civil action. The government disputes *1253 (3) The right not to be excluded from any both propositions. 6 such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that III We conclude that we needn't decide whether, in the testimony by the victim would be materially altered if abstract, the rights to confer *1252 and to be treated with the victim heard other testimony at that proceeding. fairness might attach prior to the formal commencement of criminal proceedings or whether, if they do, they might be (4) The right to be reasonably heard at any public enforceable through, say, political or administrative channels. proceeding in the district court involving release, plea, Nor, for that matter, need we even decide whether, if the sentencing, or any parole proceeding. rights to confer and to be treated fairly apply pre-charge, a victim could later seek to vindicate them during the course of (5) The reasonable right to confer with the attorney for the Government in the case. an ongoing criminal prosecution. 7 Here, the only issue we have to confront is whether the CVRA authorizes Ms. Wild to (6) The right to full and timely restitution as provided in file a freestanding civil suit seeking judicial enforcement of law. her rights under the CVRA in the absence of any underlying proceeding.8 For reasons we'll explain, we hold that it does (7) The right to proceedings free from unreasonable delay. not. 9 (8) The right to be treated with fairness and with respect Before jumping into the merits, we begin with an introductory for the victim's dignity and privacy. summary of the CVRA's key provisions. Id. § 3771(a). WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 7 EFTA00074605 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 Subsection (b), titled "Rights afforded," focuses specifically court in which a defendant is being prosecuted for the crime on courts' responsibilities under the Act. Subsection (b)(I) or, if no prosecution is underway, in the district court in the states that "[i]n any court proceeding involving an offense district in which the crime occurred." Id. § 3771(d)(3). against a crime victim, the court shall ensure that the crime victim is afforded the rights described in subsection (a)." Id. Subsection (dX6), titled "No cause of action," also contains § 3771(b)(I). Subsection (b)(2) pertains to "Federal habeas two pertinent provisions. First, it states that InJothing in corpus proceeding[s]" and provides that the "court shall this chapter shall be construed to authorize a cause of action ensure" that the victim is afforded a more limited set ofrights. for damages." Id. § 377I(dX6). Second, and separately, it Id. § 3771(b)(2). emphasizes that "[njothing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General Subsection (c), titled "Best efforts to accord rights," imposes or any officer under his direction." Id. obligations on nonjudicial actors. One of its constituent clauses—which Ms. Wild calls the "coverage" provision— *1254 Finally, subsection (f) instructs the Attorney General states as follows: to "promulgate regulations to enforce the rights of crime victims and to ensure compliance by responsible officials with the obligations" concerning those victims. Id. § 3771(f) Officers and employees of the (I). (We've already introduced subsection (e), which defines Department of Justice and other the term "crime victim.") Subsection (f) specifies that the departments and agencies of the regulations "shall"—among other things—(1) "designate an United States engaged in the detection, administrative authority within the Department of Justice to investigation, or prosecution of crime receive and investigate complaints relating to the provision shall make their best efforts to see or violation of the rights of a crime victim," (2) "contain that crime victims are notified of, disciplinary sanctions, including suspension or termination and accorded, the rights described in from employment, for employees ofthe Department oflustice subsection (a). who willfully or wantonly fail to comply with provisions of Federal law pertaining to the treatment of crime victims," and (3) "provide that the Attorney General" or his designee "shall be the final arbiter of the complaint" and that "there shall be Id. § 3771(cX1). no judicial review" ofhis decision. Id. § 3771(0(2). Subsection (d) addresses "Enforcement and limitations." It Pursuant to subsection (f)'s directive, the Attorney General opens by stating that either the crime victim, her authorized representative, or the government "may assert the rights adopted administrative•enforcement regulations, which are codified at 28 C.F.R. § 45.10. The regulations establish described in subsection (a)." 18 U.S.C. § 3771(dX1). The "Victims' Rights Ombudsman" and "point of contact" balance of subsection (d) prescribes exactly how, when, and where those rights may be asserted, as well as the limitations offices within the Department of Justice and create a detailed administrative "[c]omplaint process." 28 C.F.R. § on judicial enforcement. In that connection, several of 45.10(b)—(c). They require an alleged victim's complaint to subsection (d)(3)'s provisions are particularly relevant here. First, and most obviously given its title—"Motion for relief include, among other information, "Mlle district court case number" and "[t]he name of the defendant in the case." and writ of mandamus"—subsection (d)(3) gives victims Id. § 45.10(c)(2Xiii)-(iv). Upon receipt of a complaint, a "motion" remedy in the district court and a mandamus remedy in the court of appeals. With respect to the former, the designated point of contact "shall investigate the allegation(s) ... within a reasonable period of time" and then subsection (dX3) states that "[t]he district court shall take up "report the results of the investigation to" the Ombudsman, and decide any motion asserting a victim's right forthwith." Id. § 3771(d)(3). And with respect to the latter, it provides who, in turn, may conduct any "further investigation" that he deems warranted. Id. § 45.10(c)(4)—(6). If the Ombudsman that li]f the district court denies the relief sought, the movant determines that a victim's rights have been violated, he may petition the court of appeals for a writ of mandamus." Id. Another of subsection (d)(3)'s provisions—which Ms. "shall require" the offending employee 'to undergo training on victims' rights," and if the Ombudsman finds a willful Wild calls the "venue" provision—states that "[t]he rights violation, he "shall recommend" to the offending employee's described in subsection (a) shall be asserted in the district WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 8 EFTA00074606 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 superior an additional "range of disciplinary sanctions." matter, or how compatible with the statute." C 3 1d. at 286- Id. § 45.10(d)—(e). As required by statute, the regulations 87, 121 S.Ct. 1511. Moreover, a reviewing court may not provide that the Ombudsman's decision is final and that plumb a statute's supposed purposes and policies in search "[a] complainant may not seek judicial review of the of the requisite intent to create a cause of action; rather, the [Ombudsman's] determination regarding the complaint." Id. inquiry both begins and ends with a careful examination ofthe § 45.10(c)(8). statute's language. Id. at 288, 121 S.Ct. 1511. Finally—and 121 With that primer, we proceed to address Ms. Wild's as it turns out importantly here—the Supreme Court observed case. 10 that "[t]he express provision of one method of enforcing a CH substantive rule suggests that Congress intended to preclude others." II a Id. at 290, 121 S.Ct. 1511. 11 *1255 III In the two decades since ”Sandoval was decided, we [31 As already noted, Ms. Wild initiated this litigation by have faithfully heeded the Supreme Court's directives and filing, a parte, a document styled an "Emergency Victim's have demanded clear evidence of congressional intent as a Petition for Enforcement of Crime Victim's Rights Act." As the district court explained, "because no criminal case prerequisite to a private right of action. See, e.g.,11.Love it was pending" at the time, Ms. Wild "filed [her] petition as Delta Air Lines, 310 F.3d 1347, 1358-59 (11th Cir. 2002) a new matter," which the court clerk "docketed as a civil (conducting C R Sandoval analysis of Air Carrier Access Act); action" against the United States. f [Does, 817 F. Supp. 2d at see also, e.g., Bellitto it Snipes, 935 F.3d 1192, 1202-03 (11th 1341 n.4. A threshold—and we find diapositive—question is Cir. 2019) (Help America Vote Act); *1256 Alabama whether the CVRA authorized Ms. Wild to file what was, in PCI Gaming Auth., 801 F.3d 1278, 1296-97 (11th Cir. essence, a freestanding lawsuit, before the commencement of (and in the absence of) any preexisting criminal proceeding. 2015) (Indian Gaming Regulatory Act); fiiDireag Inc. it Treworgy, 373 F.3d 1124, 1129 (11th Cir. 2004) (Wiretap 141 151 161 171 181 In determining whether any fedenfict); !HIMcDonald v. S. Farm Bureau Lift Ins. Co., 291 F.3d statute empowers a would-be plaintiff to file suit to vindicate 718, 723 (11th Cir. 2002) (Federal Insurance Contributions Act). her rights, our lodestar is Alexander v. Sandoval, in which the Supreme Court (reversing an erroneous decision of So the question here, all must agree, is whether in enacting ours) unequivocally "swor[e] off' its old "habit of venturing the CVRA Congress clearly and affirmatively manifested its beyond Congress's intent" to liberally "imply" private rights intent—as reflected in the Act's text and structure—to create of action in favor of a rigorous attention to statutory text and a private right of action by which a crime victim can (as structure. 532 U.S. 275, 287, 121 S.Ct. 1511, 149 L.Ed.2d Ms. Wild did here) initiate a freestanding lawsuit to enforce 517 (2001). "Like substantive federal law itself," the Court her rights before the formal commencement of any criminal explained there, "private rights of action to enforce federal proceeding. law must be created by Congress." Id. at 286, 121 S.Ct. 1511. Accordingly, the Court emphasized, "[t]he judicial task" is straightfonvard: A reviewing court must "interpret IV the statute Congress has passed to determine whether it displays an intent to create not just a private right but also To answer that question, we naturally train our focus on the provisions of the CVRA that prescribe—and circumscribe a private remedv" Id. (emphasis added). In making the —judicial involvement and enforcement. Doing so, we find latter determination, the Supreme Court said, "[s]tatutory no clear evidence that Congress intended to authorize crime intent ... is determinative." t Id. Absent a clear expression victims to seek judicial enforcement of CVRA rights prior to of congressional intent to authorize a would-be plaintiff to the commencement of criminal proceedings. sue, "a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 9 EFTA00074607 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 Only two provisions of the Act speak directly to the issue of and limitations," and it prescribes the logistics and limits of judicial enforcement-I 3771(b) and § 3771(d). Neither, we judicial enforcement of victims' CVRA rights. conclude, indicates that CVRA-protected rights are judicially enforceable outside the confines of an existing proceeding, let alone that the Act creates a private right of action to 1 enforce those rights before the commencement of criminal proceedings. And the evidence from the remainder of the As evidence that the CVRA creates a private right of action, CVRA—in particular from § 3771(f), which prescribes Ms. Wild points to § 3771(d)( ), which provides, in relevant and details a mechanism for administrative enforcement— part, that "Nile crime victim ... may assert the rights described confirms our conclusion that Congress didn't clearly manifest in subsection (a)."See Oral Arg. at 58:05. But Ms. Wild needs its intent to authorize crime victims to file stand-alone civil more than just a mechanism for "assert[ing]" her rights in actions. court. Given the •1257 manner in which she sought to assert those rights here—again, in what she styled an "Emergency Victim's Petition," which she filed "as a new matter" in the A district court, outside the context of any preexisting criminal prosecution, see? Does, 817 F. Supp. 2d at 1341 n.4—she First up is § 3771(b), which is titled "Rights afforded." To must demonstrate that the CVRA creates a mechanism for the extent that § 3771(b) bears on the question before us, it vindicating her rights in a stand-alone civil action. strongly indicates that the CVRA does not authorize judicial enforcement outside the context of a preexisting proceeding. We hold that subsection (d) does not create a private right of action by which a victim can initiate a freestanding lawsuit, Subsection (b)(1) states that "[i]n any court proceeding wholly unconnected to any preexisting criminal prosecution involving an offense against a crime victim, the court shall and untethered to any proceeding that came before it. That is ensure that the crime victim is afforded the rights described so for several reasons, which we will examine in detail before in subsection (a)." Separately, subsection (bX2) states that turning to Ms. Wild's counterarguments. "[l]n a Federal habeas corpus proceeding arising out of a State conviction"—i.e., a proceeding under ? 9 28 U.S.C. § 2254—"the court shall ensure that a crime victim is afforded 2 the rights described in paragraphs (3), (4), (7), and (8) of subsection (a)." Perhaps most compellingly, subsection (dX3) specifies that a crime victim's vehicle for "assert[ing]" her CVRA rights Section 377I (b) is the only provision of the CVRA that is a "[m]otion for relief" in the district court and, further, expressly directs the judiciary, in particular, to "ensure" that "[t]he district court shall take up and decide any motion that victims' rights are protected, and it contains no asserting a victim's right forthwith." suggestion that the Act provides for judicial enforcement of crime victims' rights outside the confines of a preexisting 191 "As in all cases involving statutory construction ... we "proceeding." Quite the contrary, subsection (b) indicates that assume that the legislative purpose is expressed by the courts' responsibilities to enforce victims' rights (as distinct ordinary meaning"—not the idiosyncratic meaning—"of the from the responsibilities of other government actors) arise words used." Am. Tobacco Co. v. Patterson, 456 U.S. 63, only in the context of the "proceeding[s]" pending before 68, 102 S.Ct. 1534, 71 L.Ed.2d 748 (1982) (quotation marks them. and citation omitted). The term "motion" is—and long has been—commonly understood to denote a request filed within the context of a preexisting judicial proceeding. See, e.g., B Motion, Black's Law Dictionary (10th ed. 2014) ("Frequently, in theprogress oflitigation, it is desired to have the court take Far more important to our inquiry is § 3771(d), on which Ms. some action which is incidental to the main proceeding .... Wild principally relies. Subsection (d) is titled "Enforcement Such action is invoked by an application usually less formal than the pleadings, and called a motion." (quoting John C. WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 10 EFTA00074608 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 Townes, Studies in American Elementary Law 621 (1911) case and not a separate civil action." Id., Rule I advisory (emphasis added)); see also 56 Am. Jur. 2d Motions, Rules, committee's note (emphasis added). So even a § 2255 and Orders § I (2020) ("The term 'motion' generally means "motion" presupposes a preexisting criminal proceeding. 13 an application made to a court or judge to obtain a rule or order directing some act to be done in the applicant's favor [101 Moreover, it's not just that Ms. Wild's position would in a pending case." (footnotes omitted and emphasis added)); require us to give the word "motion" a peculiar meaning, but 60 C.J.S. Motions and Orders § I (2020) ("The term 'motion' also (and worse) that it would require us to give that word generally means an application made to a court or judge for —not the same word repeated twice in the same sentence the purpose of obtaining a rule or order directing some act or paragraph, 14 but the very same word—two different to be done in favor of the applicant in a pending case. A meanings, depending on the circumstances. If (as the statute motion is a request for relief, usually interlocutory relief, plainly envisions) a crime victim asserts her rights in the within a case." (footnotes omitted and emphasis added)); course of a preexisting proceeding, then the term "motion" in Motion (Movant or Move), The Wolters Kluwer Bouvier § 3771(d)(3) carries its ordinary meaning—Le., a request for Law Dictionary: Desk Edition (Stephen Michael Sheppard, relief made in a pending action. If, by contrast, a victim were ed., 2012) ("A motion is presented to a court in a pending to seek to assert her rights before any criminal prosecution action...." (emphasis added)). has commenced, then the term would take on the specialized, decidedly un-ordinary meaning that the legal dictionaries and Just as importantly here—if not more so—the term "motion" encyclopedias expressly condemn. We are loathe to ascribe has never been commonly understood to denote a vehicle an idiosyncratic meaning to the word - motion," and we are for initiating a new and freestanding lawsuit. As one legal doubly loathe to ascribe such different meanings to the very encyclopedia summarizes matters: "The function of a motion is not to initiate new litigation, but to bring before the court same word. 15 for ruling some material but incidental matter arising in the progress of the case in which the motion is filed. A motion is *1259 Additional context from subsection (d)(3) confirms not an independent right or remedy ...." 56 Am. Jur. 2d, supra, our ordinary-meaning conclusion that the CVRA's "motion" § I (footnotes omitted and emphasis added). A new suit is remedy specifies a means of judicial enforcement within the generally commenced through a "complaint," which (per the confines of a preexisting proceeding. The subsection's third Federal Rules of Civil Procedure) is a form of "pleading" and sentence begins, "If the district court denies the relief sought, thus distinct from a "motion." See Fed. R. Civ. P. 3, 7. "[A] the movant"—note, not "the plaintiff"—"may petition the motion," put simply, "is not a pleading." Garner's Dictionary court of appeals for a writ of mandamus." I8 U.S.C. § 377I (d) (3). The subsection then directs the court of appeals (at least ofLegal Usage 591 (3d ed. 2011). 12 in the absence of the sort of agreement the parties reached here) to "take up and decide" the mandamus petition "within *1258 The closest that the law seems to have come to using 72 hours." Id. Importantly here, the provision continues by the word "motion" to signify an instrument for initiating stating that "[i]n no event shall proceedings be stayed or a new action is 28 U.S.C. § 2255, which authorizes a subject to a continuance of more than five days for purposes federal prisoner to file a "motion" to "vacate, set aside of enforcing this chapter." Id. (emphasis added). That last or correct" his criminal sentence. But § 2255 doesn't truly sentence further demonstrates that Congress envisioned that reflect an understanding of the term "motion" as a means judicial involvement and enforcement in CVRA matters of commencing a stand-alone lawsuit, because—and to be would occur only in the context of preexisting "proceedings." clear, our dissenting colleagues don't dispute any of this— Id. a convicted defendant files his so-called "motion" in "the court which imposed [his] sentence" and, indeed, in his In sum, Congress has given crime victims a specific means of closed criminal case. 28 U.S.C. §2255(a)—(f); see also Rules judicial enforcement, a "motion"—which both plain-meaning Governing Section 2255 Proceedings for the United States and contextual considerations confirm denotes a vehicle for District Courts, Rule 3(b) (stating that once the inmate has seeking relief within the context of a preexisting case, not filed his motion with the clerk, "[t]he clerk must file the for initiating a freestanding civil action. And as the Supreme motion and enter it on the criminal docket of the case in which the challenged judgment was entered"). Accordingly, "a Court emphasized in Swzdoval-and as we will further motion under § 2255 is a further step in the movant's criminal unpack shortly in examining the CVRA's administrative- WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 11 EFTA00074609 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 enforcement apparatus—"[t]he express provision of one CVRA, it presumably would have enacted some provision method ofenforcing a substantive rule suggests that Congress that resembles § 2255. It didn't even come close, and its "silence" in that respect "is controlling." Freemanville Water intended to preclude others." 532 U.S. at 290, 121 S.Ct. Sp., Inc. v. Poarch Band of Creek Indians, 563 F.3d 1205, 1511; see also, e.g., P PCI Gaming Auth., 801 F.3d at 1209 (1I th Cir. 2009). 1295 (observing that when Congress has expressly created an alternative remedy for enforcing federal rights, "we ought not imply a private right of action" (quotation marks omitted)). b Subsection (d)(6)'s second sentence weighs even more 3 heavily in ow calculus: "Nothing in this chapter shall be construed to impair the prosecutorial discretion of the Subsection (dX6), which is conspicuously titled "No cause of Attorney General or any officer under his direction." 18 action," bolsters our view that the CVRA doesn't authorize a U.S.C. § 3771(d)(6). To imply a private right of action crime victim to file a freestanding civil action to assert her authorizing a crime victim to file a freestanding lawsuit, even rights even before the commencement of—and in the absence before the commencement ofcriminal proceedings, we would of—criminal proceedings. have to sanction a regime in which a federal court can order a federal prosecutor, presumably on pain of contempt, to conduct her criminal investigation in a particular manner. For a reasons we will explain, Ms. Wild's "constru[ction]" of the CVRA would seriously "impair ... prosecutorial discretion," Perhaps most starkly, subsection (d)(6)'s first sentence in direct contravention of the Act's plain terms. states that "[n]othing in this chapter shall be construed to authorize a cause of action for damages ...." Far from 1111 1121 1131 1141 1151 1161 Broadly defined, the term "prosecutorial discretion" refers to the soup-to- a t Sandoval-qualifying clear statement of congressional nuts entirety of "[a] prosecutor's power to choose from intent to create a private right of action, that provision the options available in a criminal case, such as filing very nearly forecloses one. Of course, one might object—as charges, prosecuting, not prosecuting, plea-bargaining, and ow dissenting colleagues do—that subsection (dX6) doesn't recommending a sentence to the court" Prosecutorial expressly rule out a private suit for declaratory or injunctive Discretion, Black's Law Dictionary (10th ed. 2014). The relief. But under Sandoval and its progeny, the question core of prosecutorial discretion, though—its essence—is the isn't whether Congress "intended to preclude" a private right decision whether or not to charge an individual with a criminal of action, see Branch Dissenting Op. at 1307-08, but rather, offense in the first place. The Supreme Court has repeatedly whether it intended to provide one. There is certainly nothing reaffirmed the principle—which dates back centuries—that in subsection (d)(6)'s first sentence to suggest that it did. "the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case." f u United *1260 Contrast, by way of example, 18 U.S.C. § 2255, States v. Nixon, 418 U.S. 683, 693, 94 S.Ct. 3090, 41 L.Ed.2d which expressly creates a "[c]ivil remedy for personal injuries" arising out of particular child-sex crimes. That 1039 (1974) (citing P i Confiscation Cases, 74 U.S. (7 Wall.) statute specifies that a minor victim "who suffers personal 454, 19 L.Ed. 196 (1869)). 16 injury" as a result of a violation of any of various federal criminal statutes can "sue in any appropriate United States *1261 Ms. Wild's interpretation of the CVRA risks District Court" and recover compensatory and punitive "impair[ing] ... prosecutorial discretion" in at least two damages and, if appropriate, "preliminary and equitable fundamental ways, which we will examine in turn. relief," as well as fees and costs. Id. § 2255(a). The statute goes on to prescribe a statute of limitations and rules governing service of process. Id. § 2255(b), (c). Clearly, Congress knows how to give crime victims a private cause of action when it wants to. Had it intended to do so in the WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 12 EFTA00074610 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 [171 As an initial matter, consider that the very first legal determinations regarding an "offense" yet to be named? determination that a court must make when asked to enforce Finally, and in any event, it seems obvious to us that simply the CVRA is whether the party seeking the Act's benefit by conducting such a proceeding and by concluding (up is a "crime victim." That's because the CVRA's opening front) that an "offense" has—or hasn't—occurred, the court provision makes clear that the Act's protections—the rights would not only exert enormous pressure on the government's enumerated therein—are available only to "crime victim[s]." charging decisions, but also likely frustrate the government's IS U.S.C. § 3771(a) ("A crime victim has the following ongoing investigation. The "impair[ment]" of prosecutorial rights ...."). Notably for our purposes, the CVRA defines discretion would be palpable. I7 the term "crime victim" to mean "a person directly and proximately harmed as a result of the commission of a Federal offense." Id. § 3771(e)(2XA). Accordingly, any individual asserting rights under the CVRA must, at the *1262 ii very outset, demonstrate to the district court that she is a Separately, even if the threshold "crime victim" barrier "crime victim" entitled to statutory protection. And, given could be overcome, the judicial enforcement of CVRA the statutory definition's terms, in order to determine whether rights in the pre-charge phase would risk unduly impairing the individual has made the requisite showing, the court prosecutorial discretion. Consider first, as a baseline, how must decide whether a "Federal offense" has occurred. When CVRA enforcement ordinarily occurs—post-charge, during a prosecutor has already commenced criminal proceedings the course of an ongoing prosecution. There, a crime victim against an identifiable individual for a specific crime, that who believes that government lawyers have violated her prosecutor has made at least a presumptive determination that rights is quite unlikely to request the sort of extraordinary the individual has in fact committed a "Federal offense." So, affirmative injunction that Ms. Wild sought here—a directive as applied in the context of a preexisting criminal proceeding, "order[ing]" prosecutors to confer with her and treat her the "crime victim" determination is straightforward: An fairly. Instead, she will simply ask the court to decline individual who has been "directly and proximately harmed" to take some action that prosecutors (or the defendant, as a result of the conduct charged by the government is or perhaps both) have advocated, on the ground that her entitled to CVRA protection and may assert her rights in court statutory rights haven't been respected. So, for instance, a accordingly. victim complaining that government lawyers set a hearing without properly notifying her, see IS U.S.C. § 3771(a)(2)- Not so outside the context of a preexisting criminal (4), will ask the court to delay the hearing. A victim who proceeding. In that circumstance, if an individual were to asserts that prosecutors struck a plea deal without consulting assert CVRA rights as a "crime victim," the court would her, see id. § 3771(a)(5), will ask the court to reject the first have to determine—but this time without any initial agreement. Importantly here, while such requests provide determination by the government in the form of a charging the victim complete relief, they don't meaningfully impinge decision and, indeed, presumably while the government's on post-charge prosecutorial prerogatives because a district investigation remains ongoing—whether or not a "Federal court already has near-plenary control over its own docket offense" has been committed. That scenario—which is and substantial discretion over whether to accept or reject a necessary consequence of Ms. Wild's interpretation— a plea deal. Any marginal "impair[ment of] prosecutorial presents at least three intractable problems. discretion" is therefore negligible. First, and most obviously, that reading puts the cart before Outside the context of a preexisting criminal proceeding, by the horse: When else, if ever, is a court called on to contrast, the situation is starkly different, and the intrusion is decide whether an "offense" (i.e., a crime) has occurred significantly greater. It is in that circumstance, as the facts —as opposed to a moral wrong more generally—befom and procedural history of this case demonstrate, that a victim the government has even decided to press charges? The —there being no hearing to delay or agreement to challenge answer, so far as we are aware, is never. Second, how, in —will be left to ask the court (as Ms. Wild did here) to the absence of a charging decision, would the court even "order" prosecutors to confer with her or to treat her "fair[ly]." go about ascertaining whether an "offense" had occurred? It is hard to imagine a more significant "impair[ment of] What would that proceeding look like? A mini- (or perhaps prosecutorial discretion" than a district court's injunction not-so-mini-) trial in which the court finds facts and makes affirmatively ordering government lawyers (presumably on WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 13 EFTA00074611 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 pain of contempt) to conduct their prosecution of a particular proceeding—as its terms plainly permit—thus squares with matter in a particular manner. the background expectation of judicial involvement. Reading the Act to provide a private right of action for pre- To be clear, even if all that Ms. Wild's interpretation charge judicial enforcement, by contrast, contravenes the risked was pre-charge judicial intervention in ongoing background expectation of executive exclusivity. 19 criminal investigations, the threat it posed to prosecutorial discretion would be reason enough to reject it. Freed from any line limiting judicial enforcement to the post-charge phases of a prosecution, courts would be empowered to C issue injunctions requiring consultation with victims (to The CVRA's final provision—§ 3771(1)—further name just a few examples) before law-enforcement raids, demonstrates that the Act doesn't create a private right of warrant applications, arrests, witness interviews, lineups, action authorizing a crime victim to file a freestanding, and interrogations. Needless to say, that would work an pre-charge lawsuit to vindicate her statutory rights. In extraordinary expansion of an already-extraordinary statute. addition to the limited "motion" remedy specified in But there's even more at stake here. What about the subsection (d)(3) and discussed already, subsection (f)— circumstance in which a prosecutor has declined to bring titled "Procedures to promote compliance"—mandates the charges because she has determined that no crime was promulgation of regulations to administratively "enforce committed? Or, as in this case, where the prosecutor has the rights of crime victims and to ensure compliance by simply made the decision (right or wrong) that it isn't a responsible officials" with CVRA rights, and then goes on wise use of government resources to litigate whether a to require that those regulations include a mechanism for federal crime occurred because the presumed perpetrator "receiv[ing] and investigat[ing] complaints," for prescribing is already slated to serve time in state prison? Ms. Wild's "training" for non-compliant •1264 DOJ employees, and reading of the CVRA would permit a putative victim to for imposing "disciplinary sanctions" on willful violators. IS challenge the correctness, in either case, of the prosecutor's U.S.C. § 3771(f)(1)—(2). As already explained, the Attorney no-charge decision in *1263 court—effectively appealing General implemented subsection (f)'s directive by adopting the prosecutor's exercise of discretion to a federal district regulations that not only prescribe a detailed administrative judge. Judicial review of a prosecutor's decision whether to "[c]omplaint process" but also require DOJ officials to prosecute is the very quintessence of an "impair[ment of] promptly "investigate" any alleged CVRA violations, "report prosecutorial discretion." IR the results of the investigation" up the chain, and, if violations are found, to impose a "range of disciplinary sss sanctions." 28 C.F.R. § 45.10(b)—(e). Both the Act and its implementing regulations expressly forbid "judicial review" [18[ 1191 The commencement of criminal proceedings of any administrative determination. See 18 U.S.C. § 3771(f) marks a clear and sensible boundary on the prosecutorial- (2); 28 C.F.R. § 45.10(c)(8). discretion spectrum. Before charges are filed—when the government is still in the process of investigating and Congress's decision to direct the establishment of a robust deciding "whether to prosecute"—its authority and discretion administrative-enforcement scheme severely undermines any are understood to be "exclusive" and "absolute." f Nixon, suggestion that (without saying so) it intended to authorize 418 U.S. at 693, 94 S.Ct. 3090. By contrast, once the crime victims to file stand-alone civil actions in federal charging decision is made, the prosecutor steps into the court. Our post-t Sandoval decision in Love it Delta court's jurisdiction—its "house," so to speak—and thus Air Lines, 310 F.3d 1347 (11th Cir. 2002), illustrates that necessarily cedes some of her control of the course and very point, against a remedial backdrop that bears some management of the case. From that point forward, the court similarity to the CVRA. There, we held that Congress had will "assume a more active role in administering adjudication not created a private right of action to enforce the prohibition of a defendant's guilt and determining the appropriate on disability-based discrimination under the Air Carrier sentence." United States v. Fokker Sem. B. V, 818 F.3d Access Act. Id. at 1358-59. We reiterated Sandoval's 733, 737 (D.C. Cir. 2016). Interpreting the CVRA to authorize teaching that "[s]tatutory intent" to create a private remedy "is judicial enforcement only in the context of a preexisting determinative," and we recalled our own earlier observation WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 14 EFTA00074612 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 that "[t]he bar for showing [the required] legislative intent omitted) (quoting ( IISandoval, 532 U.S. at 290, 121 S.Ct. is high." Id. at 1352-53 (quotation marks and citations 1511). omitted). Most notably for present purposes, we observed *1265 And indeed, as the Supreme Court emphasized in (once again echoing Sandoval) that if a statute "provides a discernible enforcement mechanism ... we ought not imply a Sandoval, "[s]ometimes th[at] suggestion is so strong that private right of action because `[t]he express provision of one it precludes a finding of congressional intent to create a method ofenforcing a substantive rule suggests that Congress private right of action ...." Il l 532 U.S. at 290, 121 S.Ct. intended to preclude others.' "P 11d. at 1353. 1511. Just so here. First, the only form of judicial "relief' that the CVRA expressly references is "a motion to re- open a plea or sentence"—which, it goes without saying, We emphasized in P "Love that the Air Carriers Access contemplates a preexisting criminal proceeding. 18 U.S.C. Act embodied its own remedial apparatus, which we § 3771(d)(5). In particular, the Act states that a victim may described as having two parts. First, the Act created move to re-open a plea or sentence "only if," among other "an elaborate administrative enforcement scheme"—which, things, she "asserted the right to be heard before or during among other things, permitted aggrieved individuals to file complaints with the Department of Transportation, the proceeding at issue and such right was denied." P 11d. required the Department to investigate those complaints, and (emphasis added). In contrast to that remedial mismatch authorized the Department to impose a range of sanctions. with Ms. Wild's requests, the administrative-enforcement process specifically provides for some of the very forms ? SM. at 1354-55, 1358. Second, the Act authorized what of relief that Ms. Wild sought here. See id. § 3771(f)(2) we called "a limited form of judicial review"—in particular, (requiring administrative-enforcement regulations to provide it permitted "an individual with 'a substantial interest' in a for "training" and "disciplinary sanctions"); see also 28 DOT enforcement action [to] petition for review in a United C.F.R. § 45.10(d)—(e) (providing for same). States Court of Appeals." Id. at 1356, 1358. That two-track remedial regime, we concluded, "belie[d] any congressional Second, and relatedly, Ms. Wild's interpretation—that the intent" to create a freestanding "private right to sue in a federal CVRA authorizes her to bring a stand-alone civil action— district court." I Id. at 1354. Finding ourselves bound by contravenes the Act's clear statement that "there shall be no Congress's intent—as reflected in statutory text and structure judicial review of the final decision of the Attorney General —we held that we couldn't "create by implication a private by a complainant." 18 U.S.C. § 3771(f)(2)(D); see also 28 right of action, no matter how socially desirable or otherwise C.F.R. § 45.10(cX8) ("A complainant may not seek judicial review of the [Victims' Rights Ombudsman's] determination warranted the result may be." It " Id. at 1359-60. regarding the complaint."). On Ms. Wild's reading, any victim dissatisfied with the result of her administrative-complaint Love's rationale—which, as noted, follows straightaway process could simply file a freestanding suit seeking the same relief, thereby circumventing the Act's prohibition on judicial from ["Sandoval—maps onto this case pretty closely. Just review of agency determinations. as it did in the Air Carrier Access Act, in the CVRA Congress created both a robust administrative-enforcement It is difficult—if not impossible—to reconcile Ms. Wild's regime—complete with "complaints," "investigat[ions]," freestanding pre-charge suit for judicial enforcement of her "decision[s]," and "sanctions"—and a "limited" means CVRA rights with the administrative-enforcement scheme of judicial review—namely, subsection (d)(3)'s "motion" that the Act establishes for addressing alleged violations. remedy. The same conclusion that we reached in II "Love That difficulty constitutes still further evidence that Congress thus likewise follows here: Congress's "express provision hasn't clearly manifested its intent to authorize stand-alone of one method of enforcing a substantive rule"—or as civil actions of the sort that Ms. Wild filed here. 2" in P Love, two methods—"suggests that [it] intended to preclude others."? " Love, 310 F.3d at 1353 (quotations marks WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 15 EFTA00074613 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 In sum, we find that numerous aspects of the CVRA to the period before the prosecution's commencement. But —among them, subsection (dX3)'s specification of a subsection (d)(3) is temporally agnostic—on its face, it could "motion" remedy and warning against appellate review well mean that "no prosecution is [still] underway." CI unduly delaying ongoing "proceedings," subsection (d) Underway, Oxford English Dictionary, https://oed.com (last (6)'s "[n]o cause of action" language and prohibition visited Jan. 8, 2021) (defining "underway" as it pertains to on any construction of the Act that would "impair ... "a process, project, [or] activity" to mean "set in progress; prosecutorial discretion," and subsection (f)'s establishment in the course of happening or being carried out"); Under ofa detailed administrative-enforcement *1266 apparatus— way, Merriam-Webster's Collegiate Dictionary 1365 (11th ed. 2014) (defining - under way" to mean "in progress: preclude any conclusion that the Act reflects a? Sandoval- AFOOT"). So understood, the CVRA would sensibly permit qualifying clear expression of congressional intent to a victim to file a post-prosecution motion alleging that the authorize a crime victim to file a freestanding civil action. government violated her rights during the course of the prosecution and asking the court, for instance, to "re-open a plea or sentence." 18 U.S.C. § 3771(d)(5). 2i D Against all this, Ms. Wild relies on two provisions of the CVRA that, she insists, authorize her to seek pre-charge *1267 2 judicial enforcement of her statutory rights. Neither, we conclude, clearly demonstrates Congress's intent to create a Second, and separately, Ms. Wild points to § 377I(c)(1)— the private right of action. so-called "coverage" provision—which states that "[o]fficers and employees of the Department of Justice and other departments and agencies of the United States engaged in the detection, investigation, or prosecution of crime shall 1 make their best efforts to see that crime victims are notified of, and accorded, the rights described in subsection (a)." First, and most prominently, Ms. Wild points to a single sentence—or, more precisely, a single comma phrase—in From the premise that the CVRA applies to "federal officers § 3771(d)(3), which she calls the Act's "venue" provision: 'engaged in the detection, investigation, or prosecution of crime' "—with an emphasis on the provision's "detection" "The rights described in subsection (a) shall be asserted in the district court in which a defendant is being prosecuted and "investigation" components—Ms. Wild reasons to the for the crime or, if no prosecution is underway, in the conclusion that "the Act protects victims before charges are filed." En Banc Reply Br. of Petitioner at 21. district court in the district in which the crime occurred." Basically, Ms. Wild's contention—which the district court adopted—is that the "no prosecution is underway" clause Ms. Wild's reliance on subsection (c)(1) is misplaced for three reasons. First, and most obviously, that provision must mean that CVRA rights can be enforced in court before the commencement of criminal proceedings and, therefore, doesn't speak to judicial enforcement at all. Rather, unlike that subsection (d)(3)'s "motion" remedy must constitute subsections (b) and (d), which address courts' responsibilities under the Act, subsection (c)(1) address non-judicial actors, a Sandoval-qualifying expression of clear congressional requiring them to "make their best efforts" to ensure that intent to create a private right of action that would authorize a crime victims' rights are respected. Accordingly, whatever § stand-alone pm-charge civil action. We respectfully disagree. 3771(c)( I) may say about when CVRA rights attach, in the Subsection (dX3) could just as easily—and far more sensibly, abstract—an issue that we have said we needn't decide—it given the statutory context and the practical and constitutional can't provide the basis for discerning a private right of action problems that Ms. Wild's interpretation would entail—be to seek pre-charge judicial enforcement of those rights. understood to refer to the period after a "prosecution" has run its course and resulted in a final judgment of conviction. Second, and in any event, understood in proper context, it is clear to us that § 377I(c)( I ) is a "to whom" provision, not 1201 1211 Ms. Wild and the district court read the "no a "when" provision. That is, it merely clarifies that CVRA prosecution is underway" clause to say, in effect, "no obligations extend beyond the officers and employees of prosecution is [yet] underway"—thereby necessarily pointing "the Department of Justice" to include, as well, the officers WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 16 EFTA00074614 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 and employees of "other departments and agencies of the prosecutors must confer with the victims as well." En Banc United States" that (like DOJ) are "engaged in the detection, Br. ofPetitioner at 33. That is a line, to be sure—and a line that investigation, or prosecution of crime"—e.g., IRS, ICE, and *1269 happens to include this case—but it has no footing TSA. Those agencies' employees, like DOTS, must "make in the text of the provisions that she invokes for support. We their best efforts to see that crime victims" are afforded cannot re-write, or arbitrarily circumscribe, the CVRA's text CVRA rights. If subsection (c)(1) were intended to be a simply to accommodate a particular result. "when" *1268 provision, then the phrase "in the detection, investigation, or prosecution of crime" presumably would sss have been situated differently in the provision, such that the full sentence would read: "Officers and employees of the Even giving Ms. Wild's "venue"- and "coverage"-provision Department of Justice and other departments and agencies arguments every benefit ofevery doubt, we don't see in either of the United States engaged in-the detectionHnvestigation, a 1 Sandoval-qualifying clear expression of congressional or-preseeufien-oferime shall make their best efforts to see intent to authorize a freestanding private right of action to that crime victims are notified of, and accorded, the rights enforce CVRA rights before the commencement of criminal described in subsection (a) in the detection. investigation, or proceedings. To the contrary, we find that the textual and prosecution of crime." structural evidence overwhelmingly demonstrates that the CVRA provides a mechanism for judicial enforcement only in Finally, Ms. Wild's reliance on § 3771(c)(1) proves entirely the context of a preexisting proceeding. To the extent that the too much. If, as Ms. Wild thinks subsection (c)(1) shows, Act's language and structure leave any doubt about its proper CVRA rights are subject to judicial enforcement during scope, we presume that Congress "acted against the backdrop the "detection" and "investigation" of crime, then there of long-settled understandings about the independence of is no meaningful basis—at least no meaningful textual the Executive with regard to charging decisions." if" 'Fokker basis—for limiting the Act's pre-charge application. To the SLITS., 818 F.3d at 738. Had Congress intended to upend contrary, Ms. Wild's reading of the term "investigation" in (rather than reinforce) those "long-settled understandings" subsection (cX1) would—as already noted—require law- by authorizing a crime victim to file a pre-charge suit enforcement officers to "confer" with victims, subject only seeking to enjoin prosecutors to conduct their investigation to a squishy "reasonable[ness]" limitation, see § 3771(aX5), in a particular manner, we can only assume it would have before conducting a raid, seeking a warrant, making an arrest, interviewing a witness, convening a lineup, or conducting an expressed itself more clearly. See, Puerto Rico v. interrogation. Moreover, every cop on the beat is involved in Franklin Cat Tax-Free Trust, — U.S. —, 136 S. Ct. crime "detection"—even before any crime is committed. Of 1938, 1947, 195 L.Ed.2d 298 (2016) ("Congress 'does not, course, there can't be a "crime victim" until a crime occurs, one might say, hide elephants in mouseholes.' " (quoting so the inclusion of "detection" in the coverage provision P Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 468, 121 just further demonstrates the misfit here. In other words, S.Ct. 903, 149 L.Ed.2d 1 (2001))). Ms. Wild's reading of "detection"—which would apply even before a crime's commission—renders the clause not just unreasonably extreme but also incoherent. Absent a much clearer indication, we cannot assume that Congress intended V such a jarring result. For the foregoing reasons, we hold that the CVRA does not provide a private right of action authorizing crime victims Presumably sensing the slipperiness of her position—which is inherent in her reliance on both § 3771(d)(3)'s "venue" to seek judicial enforcement of CVRA rights outside the confines of a preexisting proceeding. We have searched the provision and § 3771(c)'s "coverage" provision—Ms. Wild Act's language and structure, and we simply cannot discern a understandably seeks to draw a line that would capture this case only, without risking a landslide: "At least," she says, clear expression of congressional intent to authorize the sort of stand-alone civil action that Ms. Wild filed here. "in circumstances where a case has matured to the point where an investigation has been completed, federal charges have been drafted, and prosecutors and defense attorneys are We are aware, ofcourse, that many will misunderstand today's decision. To be clear, the question before us is not whether engaging in negotiations about disposition of those charges, WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 17 EFTA00074615 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 Jeffrey Epstein was a bad man. By all accounts, he was. Nor decide whether the Act confers rights that attach before the is the question before us whether, as a matter ofbest practices, commencement of criminal proceedings and that might be prosecutors should have consulted with Ms. Wild (and other enforceable through non-judicial channels. Id. at 1251-52. victims) before negotiating and executing Epstein's NPA. By That determination would have no bearing on the outcome of all accounts—including the government's own—they should this petition. have. Our sole charge is to determine, on the facts before us, whether the CVRA provides Ms. Wild with a private right The dissents take issue with this approach and accuse us of action to enforce her rights outside of the context of a of "blithely" skipping over the first issue. Hull Dissenting preexisting criminal proceeding. Despite our sympathy for Op. at 1315; see also Branch Dissenting Op. at 1294 ("This Ms. Wild—and the courage that she has shown in pursuing issue, which was the basis of the prior panel's decision, is this litigation—we find ourselves constrained to hold that it an important legal question of first impression in our Circuit. does not. Nevertheless, the Majority declines to address it in its en bane decision."). One of our dissenting colleagues is candid about PETITION DENIED. her motivations. She urges us to answer the first question because of the "victims' perseverance in litigating the rights issue for a decade and obtaining en banc review of the WILLIAM PRYOR, Chief Judge, joined by NEWSOM, rights issue," "the seriousness of the federal sex-trafficking LAGOA, and TJOFLAT, Circuit Judges, concurring: crimes against petitioner Wild and the other 30-plus minor I join the majority's opinion in full. I write separately victims," "the government's egregious misconduct," and "the to respond to three fundamental errors in the dissenting fact that if the Epstein victims' ... rights attached pre-charge, opinions. First, by urging us to decide an issue that does not the government's misconduct undisputedly violated them." affect the outcome of this mandamus petition, our dissenting Id. at 1316. Conspicuously, the dissenters do not assert that colleagues have forgotten that we do not issue advisory answering the first question would change how we resolve the opinions. Second, the dissents commit the most common error underlying case or controversy. of statutory interpretation by reading individual subsections in isolation instead of reading the whole text of the statute. There is a well-known term for judicial opinions that interpret Finally, the dissents misunderstand what it means to interpret laws without resolving cases or controversies: advisory *1270 statutes with a presumption against implied rights of opinions. The federal judicial power is limited to resolving action. I address each mistake in turn. actual "Cases" and "Controversies." U.S. Const. art. Ill, § 2, cl. I. "No principle is more fundamental to the judiciary's proper role in our system ofgovernment than [this] A. Federal Courts Lack the Power constitutional limitation[.]" Simon v. E. Ky Welfare Rts. to Issue Advisory Opinions. Org., 426 U.S. 26, 37, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976). The prohibition against advisory opinions is "the oldest and When we ordered rehearing en bane, we asked the parties to most consistent thread in the federal law of justiciability." answer two questions in their briefs. First, does the Crime Victim Rights Act, I8 U.S.C. § 3771, "grant[ ] a crime victim I Flast a Cohen, 392 U.S. 83, 96, 88 S.Ct. 1942, 20 L.Ed.2d any statutory rights that apply before the filing of a formal 947 (1968) (internal quotation marks omitted). Today, it is criminal charge by the government prosecutor?" And second, "taken for granted" as "an uncontroversial and central element "[i]f a crime victim has statutory rights under the [Act] that of our understanding of federal judicial power." Richard H. apply pre-charge, does the [Act] also grant a crime victim Fallon, Jr. et al., Hart and Wechsler's The Federal Courts and a statutory remedy to enforce a violation of their statutory the Federal System 50 (7th ed. 2015). rights?" The rule that federal courts do not issue advisory opinions can The majority opinion sensibly collapses these two questions be traced back to the Founding era. In 1793, after Secretary into one: does the Act grant a crime victim the right "to of State Thomas Jefferson sent the Supreme Court questions file a freestanding civil suit seeking judicial enforcement of about the rights and obligations of the United States to remain her rights under the [Act] in the absence of any underlying neutral toward the warring nations ofEurope, the Court made proceeding"? Maj. Op. at 1252. It explains that we need not clear that the Constitution prohibited it from advising the WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 18 EFTA00074616 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 Executive Branch. 3 Correspondence and Public Papers of issue an advisory opinion about the powers and duties of John Jay 486-89 (Henry P. Johnston ed. 1891). As the Justices the Executive. Although the dissents may disagree with ow explained *1271 in a letter to President George Washington, more modest approach to resolving this mandamus petition, "the lines of separation drawn by the Constitution between the there is nothing "blithe" about refraining from extra-judicial three departments of the government ... and our being judges pronouncements and respecting our limited role under the of a court in the last resort[ ] are considerations which afford Constitution. strong arguments against the propriety of our extrajudicially deciding the questions alluded to." Id. at 488. The dissents respond to a strawman version of this concern by turning it into a jurisdictional issue. Hull Dissenting Op. at The prohibition against issuing advisory opinions also runs 1316-18. Lest there be any confusion, I acknowledge that we have jurisdiction to decide whether the Act confers pre-charge through our caselaw all the way back to ?al Hayburn's Case, rights, just as the original panel did. But because the majority 2 U.S. 408, 2 Dail. 409, I L.Ed. 436 (1792). A federal opinion correctly decides that the Act does not confer any statute authorized courts to determine disability pensions for judicially enforceable rights before the commencement of Revolutionary War veterans. ?'Mistretta v. United States, criminal proceedings, nothing that we could say about pre- 488 U.S. 361. 402, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) charge rights that might be enforceable through non judicial (describing Hayburn's Case). These determinations were channels would change the outcome of this petition. t subject to review by the Secretary of War. t ld. The Supreme The dissents counter that we could resolve the first question Court was presented with a mandamus petition asking it to as an alternative holding. Id. at 1317-18. But our answer to order a federal circuit court to consider a pension request. the first question would be an alternative holding only if we ? I Hayburn's Case, 2 U.S. (2 Dall.) at 409. It decided rejected the dissents' interpretation of the Act and concluded that the Act does not confer any pre-charge rights, judicially not to take up the petition until the next term. P yld. By enforceable or otherwise. If, on the other hand, we were to then, Congress had amended the statute and rendered the agree with the dissents and say that the Act does confer pre- controversy moot. t Id. at 409-10. Although the Supreme charge rights, those rights would not be judicially enforceable Court never issued an opinion, five justices considered the and our resolution of this petition for a writ of mandamus statute while riding circuit, and the Supreme Court reporter would not change. Moreover, ow opinion about pre-charge *1272 rights would not be binding on the Executive in the included their opinions in a footnote. Id. at 410 n.t. All same way that the opinions about pension requests were not agreed that requiring a federal court to issue nonbinding opinions advising the Executive on how to perform its binding in? I He/Aunts Case. duties breached the separation of powers inherent in the constitutional structure. Id. The circuit court for the district of North Carolina, which included Justice James Iredell, B. We Construe Statutes by Reading the Whole doubted "the propriety of giving an opinion in a case which Text, Not Individual Subsections in Isolation. has not yet come regularly and judicially before" it. ? I Id. The dissents repeatedly assert that their interpretation of the at 414 n.t. "None can be more sensible," the court wrote, Act follows from the "plain and unambiguous meaning" "than we are of the necessity of judges being in general of subsections (aX5), (aX8), and (d)(3). Branch Dissenting extremely cautious in not intimating an opinion in any case Op. at 1295-96, 1313-14 (internal quotation marks omitted). extrajudicially[.]" Id. They accuse us of "do[ing] violence to the statutory text" by "drawing a line limiting judicial enforcement to the Like the pension recommendations that federal courts were post-charge phases of a prosecution." Id. at 1314 (internal quotation marks omitted). Our role as judges, they remind us, asked to provide in f a Haybunes Case, the dissents would is to interpret and follow the law regardless of the outcome. have us advise the Executive Branch about what rights it must provide a crime victim going through political Id. (citing? Bostock v. Clayton County, — U.S. -, 140 or administrative channels before the commencement of S. Ct 1731, 1823, 207 L.Ed.2d 218 (2020) (Kavanaugh, J., criminal proceedings. In other words, they would have us dissenting)). WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 19 EFTA00074617 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 proceeding involving an offense against a crime victim." Id. Our dissenting colleagues' professed commitment to 3771(6)(1) (emphasis added). And the Act later provides textualism is laudable. But it is one thing to recite the canons that a crime victim may assert his or her rights in subsection ofstatutory interpretation, and it is an entirely different matter (a) by filing a "motion" "in *1273 the district court in which a defendant is being prosecuted for the crime or, if no to apply them correctly. See Rostock, 140 S. Ct. at 1755- prosecution is underway, in the district court in the district in 56 (Afito, J., dissenting) ("The Court's opinion is like a pirate which the crime occurred." Id. § 377I(d)(3). ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice The dissents' answer to the problems posed by these Scalia excoriated ...."). provisions is to interpret the word "motion" in subsection (d) (3) as establishing a cause of action to launch a freestanding The dissents commit a basic error of statutory interpretation civil action. But the dissents do not dispute that the Act by reading subsections (a)(5), (aX8), and (dX3) in isolation allows a crime victim to move the district court to assert without looking to the rest of the Act. "Statutory his or her rights in an ongoing criminal proceeding. So the construction ... is a holistic endeavor?? a United Say. Assen of dissents have to interpret the word "motion" to mean two Tex. v. Timbers ofInwood Forest Assocs., Ltd., 484 U.S. 365, different things at the same time. In the context of an ongoing 371, 108 S.Ct 626, 98 L.Ed.2d 740 (1988). "In expounding a criminal proceeding, the dissents agree that a motion is an statute, we must not be guided by a single sentence or member ordinary filing with the district court. But in the absence of of a sentence, but look to the provisions of the whole law, a criminal proceeding, the dissents contend that the "motion" and to its object and policy."? j Pennhurst State Sch. & Hosp. serves as a complaint that commences a civil action against y. Halderman, 451 U.S. I, 18, 101 S.Ct. 1531, 67 L.Ed.2d the government. Subsection (d)(3) also provides that "[i]f the 694 (1981) (internal quotation marks omitted). "Perhaps no district court denies the relief sought, the movant may petition interpretive fault is more common than the failure to follow the court of appeals for a writ of mandamus." Id. Under the the whole-text canon, which calls on the judicial interpreter dissents' interpretation, a "movant" again means either one to consider the entire text, in view of its structure and of of two different things: the victim in a criminal proceeding or the physical and logical relation of its many parts." Antonin the plaintiff in a civil action. To further complicate matters, Scalia & Bryan A. Garner, Reading Law: The Interpretation the Act uses the word "motion" again only two paragraphs ofLegal Texts § 24, at 167 (2012). And although the dissents later but with only one possible meaning. Subsection (d)(5) cite the whole-text canon, Branch Dissenting Op. at 1295-96, provides that "[a] victim may make a motion to re-open a they fail to apply it in their analysis. plea or sentence," which makes sense only in the context of a criminal proceeding. Id. § 377I(d)(5). So the dissents treat the The dissents' error manifests itself in several ways. Take, word "motion" as if it is a linguistic chameleon that changes for example, the dissents' focus on subsection (a), which its meaning in different circumstances to serve whatever provides a list of crime victims' rights. 18 U.S.C. § 3771(a). purpose they favor, but we presume "that identical words Most of these rights make sense only in the context of used in different parts of the same act are intended to have ongoing criminal proceedings, which supports the majority's the same meaning." Scalia & Garner, Reading Law § 25, at view that crime victims cannot seek judicial enforcement 170 (quoting ? AN. Cleaners & Dyers, Inc. v. United States, of these rights until after criminal charges are filed. The 286 U.S. 427, 433, 52 S.Ct. 607, 76 L.Ed. 1204 (1932)). The dissents point out that two of these rights, read in isolation dissents have no explanation for their incongruous reading of from the rest of the statute, could apply before the filing the whole statute. of criminal charges: "[t]he reasonable right to confer" with the government attorney and "[t]he right to be treated with The dissents' interpretation of "motion" in subsection (d) fairness and with respect." Id. § 3771(aX5), (a)(8). But the (3) as sometimes creating a civil cause of action is also dissents fail to account for other provisions of the Act that difficult to reconcile with subsection (d)(6), which is titled make clear that the rights in subsection (a) can be asserted "No cause of action." 18 U.S.C. § 3771(d)(6). To be sure, the only in the context of ongoing criminal proceedings. The first sentence in subsection (dX6) refers to a cause of action paragraph immediately after the list of crime victims' rights for damages only, which could leave open the possibility provides that a "court shall ensure that the crime victim is of declaratory or injunctive relief. But the second sentence afforded the rights described in subsection (a)" "[i]n any court provides, "Nothing in this chapter shall be construed to WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 20 EFTA00074618 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 impair the prosecutorial discretion of the Attorney General the "statutory structure provides a discernible enforcement or any officer under his direction." Id. And as Judge Tjoflat u mechanism, Sandoval teaches that we ought not imply a meticulously explains in his concurring opinion, allowing private right of action because `the express provision of one an individual to initiate a freestanding civil action seeking method ofenforcing a substantive rule suggests that Congress declaratory or injunctive reliefunder the Act in the absence of an ongoing criminal proceeding would unquestionably impair intended to preclude others.' " Love v. Delta Air Lines, 310 prosecutorial discretion. Tjoflat Concurring Op. at 1282-88. F.3d 1347, 1353 (Ilth Cir. 2002) (alteration adopted) (quoting Sandoval, 532 U.S. at 290, 121 S.Ct. 1511). Finally, the dissents have no answer to the majority's point that the United States has not clearly waived sovereign immunity. The dissents' criticisms of the majority opinion's application Maj. Op. at 1258-59 n.15. As a leading treatise explains, "A statute does not waive sovereign immunity ... unless that of Sandoval to the Act are puzzling. They spend several ` disposition is unequivocally clear." Scalia & Garner, Reading pages explaining a Sandoval in detail and arguing that the Law § 46, at 281. No provision of the Act plausibly, much less majority has misapplied it. Branch Dissenting Op. at 1299- unequivocally, suggests that the United States has consented 1302, 1308-10; Hull Dissenting Op. at 1320-25. But they to be sued in a civil action by a crime victim seeking to enforce also contend that the Act expressly grants a private right of his or her rights under the Act. action. Branch Dissenting Op. at 1298-99; Hull Dissenting Op. at 1321, 1323. If the Act expressly granted a private right By failing to read the whole text of the Act, the dissents of action, then f j Sandoval would be beside the point. commit a common error of statutory interpretation. When read in the context of the entire statute, their interpretation of In addition to this schizophrenic line of attack, the dissents subsections (a)(5), (a)(8), and (dX3) is implausible. also misunderstand Sandoval. They contend that the Crime Victims' Rights Act is distinguishable from the statute at issue *1274 C Statutes Are Interpreted with a in Sandoval because it has "rights-creating language" Presumption Against Implied Rights of-Action. and is addressed to crime victims instead of government agencies. Hull Dissenting Op. at 1323 (internal quotation The dissents expend significant time and energy asserting that marks omitted). Never mind that the Act expressly provides the majority opinion is wrong that f Alexander v. Sandoval, for an administrative-enforcement mechanism by requiring 532 U.S. 275, 121 S.Ct 1511, 149 L.Ed.2d 517 (2001), the government to promulgate regulations for "receiv[ing] counsels against finding an implied cause of action in the and investigat[ing] complaints" from crime victims and for Act. My colleagues may recall that our Court was reversed in "training" and "disciplin[ing]" government employees. 18 U.S.C. § 3771(f)(1), (f)(2)(A)-(C). That fact alone should Sandoval. I fear that the lesson of that reversal still has not defeat the possibility of a pre-charge private right of action. been learned by some. The dissents also wrongly assume that the Act's supposedly We interpret statutes with a presumption against, not in favor "rights-creating language" is concrete enough to be judicially of, the existence of an implied right ofaction. Scalia & Garner, enforceable. Hull Dissenting Op. at 1322 (internal quotation Reading Law § 51. at 313. The Supreme Court made this marks omitted). The Supreme Court long ago explained that principle clear in Sandoval when it said that it had "sworn Congress sometimes uses language that is "intended to be off the habit of venturing beyond Congress's intent" by hortatory, not mandatory." t I Pennhurst, 451 U.S. at 24, 101 discovering implied rights of action in statutory texts. ?II 532 S.Ct. 1531. "A particular statutory provision, for example, U.S. at 287, 121 S.Ct. 1511. If a statute passed by Congress may be so manifestly precatory that it could not fairly be does not "display[ ] an intent to create not just a private right read to impose a binding obligation on a governmental but also a private remedy," then "a cause of action does not unit, or its terms may be so vague and amorphous that exist and courts may not create one, no matter how desirable determining whether a deprivation might have occurred that might be as a policy matter, or how compatible with would strain judicial competence." C a Livadas v. Bradshaw, the statute." Id. at 286-87, 121 S.Ct. 1511. Moreover, if 512 U.S. 107, 132, 114 S.Ct. 2068, 129 L.Ed.2d 93 (1994) WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 21 EFTA00074619 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 (alteration adopted) (citation *1275 and internal quotation 2020). Even as the en bane Court vindicates and reaffirms marks omitted). Terms like "reasonable" and "sufficient," that decision today, I am filled with the same sense of sorrow. absent any statutory guidance as to how they are to be As our opinion summarizes, Ms. Wild "suffered unspeakable measured, are "far too tenuous to support the notion that horror" at the hands of Jeffrey Epstein, one of this era's most Congress" meant to confer judicially enforceable rights on infamous child predators. Maj. Op. at 1247. Then, adding insult to an already grievous injury, government prosecutors individuals. C a Blessing v. Firestone, 520 U.S. 329, 345, (by their own admission) affirmatively misled Ms. Wild— 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997); see also!' Suter and dozens of others like her—regarding the status of their v. Artist M., 503 U.S. 347, 359-60, 112 S.Ct. 1360, 118 criminal investigation. Shameful all the way around. The L.Ed.2d 1 (1992). We expect Congress to "speak with a clear whole thing makes me sick. voice[ ] and [to] manifest[ ] an unambiguous intent to confer individual rights." PI Gonzaga Univ. v. Doe, 536 U.S. 273, But—and it's a big "but"—my job, as a judge, isn't to 280, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002) (alteration dispense "justice," in the abstract, as I see fit. My role in ow rejected) (internal quotation marks omitted). tripartite form ofgovernment is, as relevant here, to faithfully interpret and apply the laws that Congress has passed in "The reasonable right to confer with" a government attorney accordance with the precedents that the Supreme Court has and "[t]he right to be treated with fairness and with respect" established. Sometimes I'll like the results; sometimes I won't. do not provide the kind of administrable language that the But adherence to the rule of law requires a certain outcome- Supreme Court has said—time and again—is required of blindness—or at least outcome-agnosticism. That constraint judicially enforceable rights. 18 U.S.C. § 3771(a)(5), (aX8). —that fact of being bound by rules that others have made It is one thing to say that these vague "rights" are enforceable —is what separates judges from elected politicians in ow in the context of a pending criminal action where the crime constitutional system. On days like this—when my heart victim already has far more specific rights, such as protection breaks for one of the parties before me—it's *1276 also what from the accused, id. § 3771(a)(1), accurate and timely notice makes being a judge particularly tough. of court proceedings, id. § 3771(aX2), the opportunity to be heard, id. § 3771(a)(4), and restitution, id. § 3771(aX6). But So, about today's decision,I'll simply say the same thing I said it is implausible that the Act creates judicially enforceable last go-round: "It's not a result [I] like, but it's the result [I] "rights" to confer reasonably and to be treated with fairness think the law requires." r M m Wild, 955 F.3d at 1198. And and respect in a standalone civil suit. my obligation—my oath—is to the law. sss TJOFLAT, Circuit Judge, with whom WILLIAM PRYOR, One final point merits a response. The dissents remind us that ChiefJudge, and WILSON, NEWSOM, and LAGOA, Circuit "our role as judges is to interpret and follow the law as written, Judges, join, concurring: regardless of whether we like the result." Branch Dissenting I concur wholeheartedly in the majority's opinion. I write separately to elaborate on the untoward effects a pre-charge Op. at 1314 (alteration rejected) (quoting Bostock, 140 S. CVRA model would have on the fairness of our courts and Ct. at 1823 (Kavanaugh, J., dissenting)). Respectfully, readers on the separation of powers. My concurrence proceeds in of today's opinions can judge for themselves who is faithfully three parts. First, I will outline the litigation models Judge interpreting the Act and who, if anyone, is allowing their policy preferences to influence their judgment. Branch's dissent t and the majority propose: one conferring judicially enforceable rights to crime victims pre-charge, and one conferring such rights to crime victims post-charge. Then, NEWSOM, Circuit Judge, concurring: I will identify two fairness concerns the dissent's pre-charge When I authored the now-vacated panel opinion denying model would raise. Finally, to bring us home, I will expand Ms. Wild's mandamus petition, I expressed my "sincere[ ] on the majority's discussion of the separation of powers regret" that the decision had left her "largely emptyhanded." doctrine and elaborate on why a pre-charge CVRA model would impermissibly drag federal courts into the business of In re Wild, 955 F.3d 1196, 1220 (11th Cir. 2020), reh'g prosecution. By laying these problems out in simple terms, en bane granted, opinion vacated, 967 F.3d 1285 (11th Cir. WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 22 EFTA00074620 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 my hope is that readers of today's decision will understand that the crime victim's civil discovery would eventually precisely why we are compelled to deny Ms. Wild's petition. subject the federal investigators to depositions. Ultimately, while the federal investigation is still ongoing, the district court would be required to hold a bench trial to determine whether there is probable cause to believe a To orient the reader, I will begin with a brief overview of the federal crime has been committed, and if so, whether the pre- and post-charge CVRA litigation models. victim who filed the complaint is a "crime victim" under the CVRA. This trial would presumably include the presentation of discovered evidence, testimony from some witnesses, fact finding, and, in the end, legal determinations by the district A. court. Assuming the district court concludes that (1) there is probable cause to believe a federal offense was committed Let's start with the dissent's pre-charge model. 2 For now, I and (2) the victim was indeed a "crime victim" of that will keep the analysis high-level, as I will walk through the offense,6 the court must then go about the task of crafting an problems with this model in detail in parts II and III. injunctive order 7 that mandates the United States Attorney's If a victim's CVRA rights are judicially enforceable pm- compliance with IS U.S.C. § 377l(a)(5) and (a)(8) during the charge, then any pm-charge efforts to vindicate those ongoing criminal investigation. rights must begin, as the majority opinion explains, with a freestanding civil lawsuit against the United States Attorney 3 for the district in which the alleged crime was committed. B. In his civil complaint, the victim would need to allege that there is probable cause to believe that a specific *1277 Now, let's take a look at the majority's post-charge model. person—for shorthand, "the accused"—committed a specific Under that model, a crime victim may seek to enforce his federal crime, and that the victim is indeed a "crime victim" rights by filing a "motion" in a preexisting criminal action. See Maj. Op. at 1257-58. The victim's motion would likely as defined by 18 U.S.C. § 3771(eX2). 4 The complaint seek (among other things) an injunctive order requiring the would also seek some relief, presumably an injunctive order United States Attorney to honor the victim's "reasonable requiring the United States Attorney to honor the victim's right to confer" and "right to be treated with fairness and rights under IS U.S.C. § 3771(a)(5)—the "reasonable right with respect"—just like the pre-charge model. But, under to confer"—and (aX8)—the "right to be treated with fairness the post-charge model, there is *1278 no need to open a and with respect." freestanding civil lawsuit, there is no need to interfere with the government's investigation, and there is no need to drag In response, the United States Attorney would file an the United States Attorney into district court—the attorney is answer 5 to the complaint. It stands to reason that, in the already before the court to prosecute the underlying criminal answer, the United States Attorney would prefer a general case. Instead, the post-charge model leaves only two narrow denial—pursuant to Federal Rule of Civil Procedure 8(b) issues to be litigated in a hearing before the court: is the victim (3)—to avoid revealing any specific information that could in fact a "crime victim" as defined in 18 U.S.C. § 3771(e), jeopardize an ongoing federal investigation. Any attempt to and if so, should an order issue to mandate the Government keep the investigation under wraps, however, would likely be attorney's compliance with § 3771(a)(5) and (a)(8)? thwarted by the victim's requests for discovery ofinformation from the investigation that is relevant to the CVRA claim— Importantly, under this model, the crime victim's motion can specifically the issue ofprobable cause. See,e.g.,Farnsworth be filed only after there has been a presumptive determination v. Procter & Gamble Co., 758 F.2d 1545, 1546 (11th Cir. that a federal offense has been committed and that the accused 1985) ("The law's basic presumption is that the public is the one who committed it. To state the obvious, by the is entitled to every person's evidence. The Federal Rules time a charge has been filed, the grand jury has already of Civil Procedure strongly favor full discovery whenever concluded that there is probable cause to believe that the possible." (citations omitted)). Indeed, it is entirely possible accused committed the offense at issue. Indeed, in some WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 23 EFTA00074621 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 instances, the accused may have already pled guilty by inconsistent obligations because of the interest." Fed. R. Civ. the time the crime victim files his motion, and thus any R I 9(a)(I)(BXi)-(ii).9 argument regarding the lack of probable cause would be waived. See, United States v. Pierre, 120 F.3d 1153, The second part of our test—drawn from Rule 19(b)— 1155 (11th Cir. 1997) ("A defendant's unconditional plea sets forth four nonexclusive factors "that must be examined of guilty, made knowingly, voluntarily, and with the benefit in each case to determine whether, in equity and good of competent counsel, waives all non-jurisdictional defects conscience, the court should proceed without a party whose in that defendant's court proceedings." (alteration adopted)). absence from the litigation is compelled." Provident As a result, there is no need in the post-charge model to Tradesmen Bank & Trust Co. v. Patterson, 390 U.S. 102, determine whether probable cause exists to believe a crime 109, 88 S. Ct. 733, 737-38, 19 L.Ed.2d 936 (1968). These that is currently being investigated was committed. four factors include "( 1) how prejudicial a judgment would be to the nonjoined and joined parties, (2) whether the prejudice could be lessened depending on the relief fashioned, (3) II. whether the judgment without joinder would be adequate, and (4) whether the plaintiff would have any alternative remedies With these models in mind, I turn to two fairness concerns that were the case dismissed for nonjoinder." C a Laker Ainvays, accompany the dissent's pre-charge CVRA litigation model. Inc. v. British Ainvap, PLC, 182 F.3d 843, 848 (11th Cir. 1999). A. So, a district court faced with a pre-charge CVRA lawsuit would first be asked to determine whether the accused First, the dissent's pre-charge model raises the question of is a "required party." 1a To address this question, let's whether the individual accused of a federal crime must be look at two examples. First, consider a case in which joined in the crime victim's freestanding CVRA civil action. the accused has entered into a nonprosecution agreement For a variety ofreasons, I believe the answer must be "yes." with the United States Attorney. If the crime victim's pre- charge suit ultimately seeks mission of the nonprosecution Rule 19 of the Federal Rules of Civil Procedure governs agreement between the accused and the government, it is the joinder of parties. This Circuit has outlined a two-part abundantly clear that the accused is both a required and test for determining "whether a party is indispensable" under indispensable party. See, e.g., Hon. William W. Schwarzer Rule l9. Focus on the Fain. it Pinellas Suncoast Transit et al., Federal Civil Procedure Before Trial § 7:114 r[A]II Auth., 344 F.3d 1263, 1279 (II th Cir. 2003) (citation omitted). parties to a contract and others having a substantial interest "First, the court must ascertain under the standards of Rule in it are indispensable in an action to rescind or set aside I9(a) whether the person in question is one who should be r the contract?" (quotation marks omitted)); Enter Mgmt. joined if feasible. If the person should be joined but cannot Consultants, Inc. it United States a rel. Hodel, 883 F.2d 890, be (because, for example, joinder would divest the court of 894 (10th Cir. 1989) ("No procedural principle is more deeply jurisdiction) then the court must inquire whether, applying imbedded in the common law than that, in an action to set the factors enumerated in Rule 19(b), the litigation may aside a lease or a contract, all parties who may be affected by continue." C R Id at 1280 (citation omitted). the determination of the action are indispensable." (cleaned up)). If the accused—a party to the contract—is not required, Part one of our two-part Rule 19 test focuses on whether a how could the district court go about "accord[ing] complete person is a "required party." A person is a required party to a relief among existing parties"? Fed R. Civ. P. I 9(a)( I )(A). lawsuit when (I) "in that person's absence, the court cannot It would be a strange result indeed for the court to rescind accord complete relief *1279 among existing parties," or a contract that one of the signatories was not permitted to (2) where the absent party claims an interest relating to the defend. action, disposing of the action without the absent party may "as a practical matter impair or impede the person's ability Second, even in a case without a nonprosecution agreement, to protect the interest; or leave an existing party subject to I am convinced that *1280 the accused would be a required a substantial risk of incurring double, multiple, or otherwise WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 24 EFTA00074622 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 party in the civil suit. Regardless of the remedy sought, a to believe the accused committed a federal offense. As I crime victim's pre-charge CVRA suit will necessarily require will discuss infra part III, this determination places intense a determination by the district court that there is probable pressure on the United States Attorney to, at the very least. cause to believe a federal offense has been committed and that make an arrest of the accused. the accused committed it. See supra part I.A. This is exact& the same determination a magistrate judge is asked to make at The second factor—"whether the prejudice could be lessened a Federal Rule ofCriminal Procedure 5.1 preliminary hearing. depending on the relief fashioned"—militates for the same Fed. R. Crim. P. 5.1(e)("If the magistrate judge finds probable result. Id. Regardless of the relief fashioned, the district court, cause to believe an offense has been committed and the by rendering a judgment in favor of the crime victim, has defendant committed it, the magistrate judge must promptly already made a determination that there is probable cause to require the defendant to appear for further proceedings."). II believe the accused committed the offense. There simply is no It goes without saying that a defendant's attendance is way to lessen that prejudice to the accused, nor can the court expected at the preliminary hearing, and the defendant would lessen the pressure the decision *1281 places on the United be permitted to cross-examine adverse witnesses and present States Attorney. So, although the third and fourth factors of evidence. Id. I see no reason that we should treat a pseudo- the test—whether the judgment without joinder would be preliminary hearing in a pre-charge CVRA civil action any adequate and whether the plaintiff would have any alternative differently. remedies were the case dismissed for nonjoinder—may, in some instances, cut the opposite direction, I see no way that Indeed, my position finds some support in the text of Rule the balance of these "pragmatic considerations" could ever I 9(aX1)(B)(i): "A person who is subject to service of process weigh against a finding of indispensability. In re Torcise, and whose joinder will not deprive the court ofsubject-matter 116 F.3d 860, 865 (11th Cir. 1997). As a result, the accused jurisdiction must be joined as a party if ... that person claims would need to be joined in any pre-charge CVRA suit. 12 an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may ... as a practical matter impair or impede the person's ability to protect the interest." Does the accused have an B. "interest relating to the subject of the" pre-charge CVRA suit? With the accused's presence in the pre-charge civil suit Undoubtedly. The pre-charge suit is litigating whether there is secured, I turn briefly to my concerns about the accused's probable cause to believe that the accused committed a federal representation in that suit. crime, and any ruling by the court on that issue may ultimately affect the accused's rights. So then, would disposing of the Pursuant to the Sixth Amendment, criminal defendants are action in the accused's absence impair the accused's ability to protect those rights? Of course. A district court allowing a entitled to the assistance of counsel. United States It crime victim to question witnesses adverse to the accused in Gorey, 540 F.3d 1253, 1262 (11th Cir. 2008) (en bane). That the accused's absence stinks of unfairness. right attaches, for the purposes of the Sixth Amendment, when "a prosecution is commenced."? a McNeil v. Wisconsin, Next, assuming the accused is a required party, the court 501 U.S. 171, 175, III S. Ct. 2204, 2207, 115 L.Ed.2d 158 must determine whether the accused is indispensable. See (1991). In other words, a criminal defendant is entitled to Provident Tradesmens Bank & Trust Co, 390 U.S. at counsel "at or after the initiation ofadversary judicial criminal 118-19, 88 S. Ct. at 742-43. In other words, the district proceedings—whether by way of formal charge, preliminary court must decide whether the litigation may—"in equity and hearing, indictment, information, or arraignment"? a United good conscience"—continue despite the accused's absence. States v. Gouveia, 467 U.S. 180, 188, 104 S. Ct. 2292, 2297, Fed. R. Civ. P. 19(b). Surely it could not in the pre-charge 81 L.Ed.2d 146 (1984) (emphasis added) (citation omitted). suit. The first factor we have outlined in this consideration But a civil litigant has no constitutional right to counsel, and —"how prejudicial a judgment would be to the nonjoined while a court may appoint counsel for an indigent litigant, see and joined parties"—is nearly diapositive. Laker Airways, I 28 U.S.C. § 1915(e)(1), 13 the court has broad discretion 182 F.3d at 848. A judgment in favor of the crime victim in making this decision and should do so only in "exceptional would necessarily entail a finding that there is probable cause WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 25 EFTA00074623 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 should be the case as a theoretical matter, but our case law circumstances," I/ a Bass it Perrin, 170 F.3d 1312, 1320 (11th makes clear that it cannot be the case in practice. In any event, Cir. 1999). there is simply no way that Congress intended to create a freestanding cause of action that allows the rights of those Consider how the differing treatment of criminal defendants accused of federal crimes to be litigated in civil cases in which and civil litigants affects the majority's and dissent's positions. they may not participate. In the majority's post-charge model, the accused is a criminal defendant and thus has the right to counsel. f Garey, 540 F.3d at 1262. But in the dissent's pre-charge model, the III. accused—assuming she must be joined in the suit—is no different than any other civil litigant and, as a result, has no Now, to the heart of the matter—the separation of powers. right to counsel. This is an odd (and, I argue, unfair) result. In the criminal context, it is abundantly clear that a defendant There can be no doubt that the Executive Branch has is entitled to counsel at a preliminary hearing, consistent with the Sixth Amendment's "purpose of protecting the exclusive power over prosecutorial decisions. See United unaided layman at critical confrontations with his adversary." States st Nixon, 418 U.S. 683, 693, 94 S. Ct. 3090, 3100, 41 L.Ed.2d 1039 (1974) ("[T]he Executive Branch has Goumia, 467 U.S. at 189, 104 S. Ct. at 2298. And yet, in exclusive authority and absolute discretion to decide whether a civil suit litigating precisely the same issue as a criminal preliminary hearing—that is, whether there is probable cause to prosecute a case ...."); t Confiscation Cases, 74 U.S. (7 to believe the accused committed a federal offense—the Wall.) 454, 457, 19 L. Ed. 196 (1868) ("Public prosecutions, dissent's model hangs the accused out to dry. until they come before the court to which they are returnable, are within the exclusive direction of the district attorney ....'); Now, one could argue that 28 U.S.C. § 1915(e)(1) provides Heckler v. Chaney, 470 U.S. 821, 832, 105 S. Ct. a safety valve for this *1282 type of situation. And while 1649, 1656, 84 L.Ed.2d 714 (1985) r[T]he decision of a prosecutor in the Executive Branch not to indict ... has I concede that t § 1915(e)(1) may, in some circumstances, long been regarded as [within] the special province of the permit the district court to appoint counsel for a civil litigant, Executive Branch, inasmuch as it is the Executive who is our case law makes clear that this mechanism should be used charged by the Constitution to 'take Care that the Laws be sparingly: "The appointment of counsel is ... a privilege that is faithfully executed.' "(quoting U.S. Const. art. II, § 3)). This justified only by exceptional circumstances, such as where the Executive Branch authority obviously includes the decision facts and legal issues are so novel or complex as to require the to investigate suspected criminal activity and whether to seek, assistance of a trained practitioner?" t tt Dean v. Barber, 951 or not seek, an indictment from the grand jury. F.2d 1210, 1216 (11th Cir. 1992) (quoting Poole v. Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987) (citations omitted)). Federal courts may not arrogate the powers of the other It is not immediately clear to me that a district court would branches of government."P *1283 Application of conclude that a civil CVRA suit is "so novel or complex" as President's Commen on Organized Crime, 763 F.2d 1191, to require the appointment of counsel. And even if it were 1195 (11th Cir. 1985) ("What the separation of powers has clear, an accused's request for court-appointed counsel would been construed to prohibit is those arrogations of power to one be a litigable issue, and different courts could reach different branch of government which `disrupt[ ] the proper balance conclusions. between the coordinate branches.' " (quoting p a Nixon v. sss Adm'r of Gen. Servs., 433 U.S. 425, 443, 97 S. Ct. 2777, 2790, 53 L.Ed.2d 867 (1977))). So, to maintain the separation In short, I believe the operational difficulties that accompany of powers—which is based on "Montesquieu's view that the a pre-charge civil CVRA suit open the door to rank unfairness. maintenance of independence as between the legislative, the By litigating criminal law issues in a civil case, the dissent's executive and the judicial branches" was essential to the model puts at risk the rights of the accused, rights that preservation of liberty, P a Myers v. United States, 272 U.S. would otherwise be protected under the majority's post- 52, 116, 47 S. Ct. 21, 25, 71 L.Ed. 160 ( I 926)—federal charge criminal model. One can quibble with whether that courts must stay out of the prosecution business. But despite WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 26 EFTA00074624 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 repeated admonitions on this point from both the Supreme admit that there is probable cause to believe the accused Court and this Court, the dissent's pm-charge CVRA litigation committed the crime, or it can deny. Both present serious model would inevitably embed federal courts in the United problems. States Attorney's investigation and prosecution of the case. If the United States Attorney concedes that them is probable sss cause, the public—and the crime victim—will reasonably wonder why the accused has not already been arrested or First, consider the issue of confidentiality. As I discussed indicted. Of course, there are good reasons that the United in part I.A., there is a presumption that a crime victim's States Attorney would prefer to continue investigating despite pre-charge civil action will be a matter of public record. the existence of probable cause. Most obviously, probable cause is only enough for an indictment, not a conviction. To 11 1 Wilson, 759 F.2d at 1571 (stating that denying the secure a conviction, the United States Attorney must gather public access to litigation records must be necessitated by enough evidence to overcome the presumption of innocence a compelling governmental interest, and the denial must be narrowly tailored to that interest). This presents a very real and prove guilt beyond a reasonable doubt. See ? mkt Ir problem for the United States Attorney. In a high-profile Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073, 25 L.Ed.2d case, the press will undoubtedly be active, and there is no 368 (1970). In addition, it may be that the accused is being guarantee in an unsealed case that witnesses—or even the investigated for more than one crime. So, while the United crime victim—would not disclose confidential information. States Attorney may hope to gather enough evidence to indict The disclosure of any confidential information regarding the accused on multiple crimes, the dissent's pre-charge model the government's ongoing investigation could derail the would have the government show its hand before it has fully investigation and have serious detrimental effects on the well- built its case. The pressure this places on the government to being of informants and cooperating witnesses. IS Indeed, seek an indictment or to make an arrest prematurely short witnesses called *1284 in the pre-charge civil case—whose circuits our system ofjustice. testimony is now public—may become worthless to the United States Attorney in the subsequent criminal proceeding. Alternatively, what if the United States Attorney denies that there is probable cause to believe the accused committed a To this, one may say that district court judges should federal crime? On this point, I see two potential scenarios simply seal these pre-charge cases as a matter of course, or unfolding. On the one *1285 hand, the district court may perhaps that we should treat them as we would a grand jury —over the United States Attorney's denial—find probable proceeding. I have two points in rebuttal. The first proposal cause, thereby influencing the government's decision whether —a presumption of sealing—is directly contrary to ow to file a complaint under Federal Rule of Criminal Procedure precedent. See id. (discussing the "presumption of openness 3 or to seek an indictment. This plainly places federal courts in to civil proceedings"). It would be an extreme deviation from the prosecution business, and the public would surely see the our caselaw and tradition to find a freestanding right of action outsized sway the court holds over the prosecutor's discretion. in the CVRA and only then try to shut Pandora's box by On the other hand, the district court may agree with the kicking the presumption of public access to the curb. 16 And while the second proposal—a grand-jury like proceeding— United States Attorney and find no probable cause. 111 If the may have some appeal, grand jury secrecy is ensured by the government then proceeds with its investigation and later Federal Rules ofCriminal Procedure. See Fed. R. Crim. P. 6(e) indicts the accused on the same crime the crime victim's complaint alleged, what is the public left to think? In the (2)(b). 17 There is no such rule in the Federal Rules of Civil pre-charge civil suit, the United States Attorney—wanting Procedure, and it is not clear to me that the judiciary could to continue its investigation unimpeded—is incentivized to impose one. make its worst case for probable cause. For example, the S.. government may deny that certain evidence points to probable cause, or perhaps the government would take it easy on witnesses called by the crime victim in the civil case. But Next, consider the catch-22 the crime victim's complaint then, when the United States Attorney goes to indict, she creates for the United States Attorney. The government has would argue that the evidence does indicate that there was two options when responding to the complaint: it can either probable cause. Likewise, at the criminal trial, the United WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 27 EFTA00074625 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 States Attorney would pull out all the stops when questioning 65.11, at 65-103 (2d ed. 1975) (alteration in original))). Third, the same witnesses she only lightly examined in the civil an injunction that does not meet these requirements breeds case. 19 Those paying careful attention would reasonably disrespect for the courts and the rule of law. conclude that the government sandbagged in the civil case so that it could better prosecute the criminal one. In these pre-charge civil CVRA suits, an injunction requiring the attorney to "confer" with the victim and treat him "fairly" Unfortunately, the dissent's model leaves the United States would be wide open to interpretation. It stands to reason Attorney with little room to maneuver. The government can that the United States Attorney would interpret the injunction (1) admit that there is probable cause and face the wrath of as narrowly as possible—perhaps it only requires a short the public for failing to seek an indictment; (2) deny that there conversation with the victim about the investigation—while is probable cause, lose in the civil case, and still be expected the victim would construe it as broadly as possible—perhaps by the public to prosecute the accused in a half-baked case; it compels the government to cede to his wishes and rescind or (3) deny that there is probable cause, win in the civil case, a nonprosecution agreement. Put simply, the parties would be expected to prosecute the accused, go forward with the be left guessing about what the injunction required—such an prosecution, argue that there is probable cause, and thus give injunction simply does not satisfy Rule 65. Seel' Robertson, the appearance of sandbagging. 10 *1286 Two rocks on one 147 F.3d at 1311. side, a hard place on the other. But even if the district court could craft an adequately sss specific injunction, there is a second problem: compelling compliance with the injunction. Let's assume, for example, Finally, consider how the pre-charge civil CVRA suit would that the injunction requires the United States Attorney to likely proceed in practice. The crime victim would file suit attend an in-person meeting with the victim to discuss the alleging that the United States Attorney failed to honor IS criminal investigation. After the meeting, the crime victim U.S.C. § 3771(a)(5)—the "reasonable right to confer"— may feel as though the United States Attorney is stalling a and (a)(8)—the "right to be treated with fairness and with charging decision, or the victim may feel—for any number respect." After some motions, some discovery, and a pseudo- ofreasons—that he was not treated fairly during the meeting. preliminary hearing, the parties would wind up before the The victim could then return to the district court in which district judge for a bench trial to determine whether the the civil action was filed and seek an order requiring the victim's CVRA rights have been violated. Assuming the court United States Attorney to show cause as to why she should rules in favor of the victim, it must then craft a remedy— not be held in contempt—and perhaps sanctioned—for failing an injunction requiring the attorney to confer with the victim to comply with the injunction. At the show-cause hearing, the and to treat the victim with respect. This injunction poses two United States Attorney would again have to explain why the major problems for the dissent's model. investigation is being conducted a certain way or why certain information could not be disclosed *1287 to the crime To start, how could a district judge craft an injunction that victim. The district court would then need to dig around in the complies with Federal Rule of Civil Procedure 65? Under United States Attorney's investigation—potentially revealing that rule, the order must be "specific[ ]" and "describe in confidential information—to discover exactly what had and reasonable detail ... the act ... required." Fed. R. Civ. P. had not been disclosed to the crime victim. 22 Ultimately, it 65(dX I )(B)—(C). These requirements serve three purposes. is entirely possible that the district court would influence the First, they provide notice to the enjoined party of precisely course of the United States Attorney's investigation or order what it must do to avoid being held in contempt—the disclosure of otherwise confidential information to the crime party cannot be left guessing. See McDonald's Corp. v. victim. Robertson, 147 F.3d 1301, 1311 (11th Cir. 1998). Second, a specific and reasonably detailed order is easy to enforce, This contempt problem is not a one-and-done ordeal, either. while a vague order is not. See Iftnn Oil Co. v. Purolator At any step in the government's investigation, the crime victim could call upon the district court to meddle in the Chem. Corp., 536 F.2d 84, 86 (5th Cir. 1976)21 (stating case. That problem is only compounded by large-scale cases that "(I)oose injunctive orders are neither easily obeyed nor in which multiple victims could—pursuant to the injunction strictly enforceable" (quoting 7 J. Moore, Federal Practice P —seek to have the United States Attorney conduct the WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 28 EFTA00074626 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 investigation in conflicting ways. 23 This would essentially holds that Jeffrey Epsteie's victims were not authorized to transform federal courts from impartial arbiters to prosecution bring this petition because the CVRA does not permit stand- micromanagers. alone suits, and, therefore, it should have been dismissed at the very outset back in 2008. I respectfully dissent because Plainly, such interference is unacceptable. The notion that (I) the plain text of the CVRA grants crime victims two a district court could have any input on a United States "pre-charge" rights—the "reasonable right to confer with the Attorney's investigation and decision whether to file a attorney for the Government" and the "right to be treated with complaint or bring a case to the grand jury is entirely fairness"—and (2) it provides crime victims with the statutory incompatible with the constitutional assignment to the private remedy of judicial enforcement of those rights "if no Executive Branch of exclusive power over prosecutorial prosecution is underway" by filing a motion for relief "in the district court in the district in which the crime occurred." See decisions. WU Nixon, 418 U.S. at 693, 94 S. Ct. at 3100. 18 U.S.C. § 3771(a)(5), (a)(8), (d). Additionally, it is hard to imagine a bigger intrusion on executive autonomy than the possibility that a United States As background, a prior panel of this Court decided that the Attorney will be held in contempt for violating an injunction CVRA grants no crime victim any rights in the "pre-charge" if her investigation is not handled as the victim and district period before an indictment. Thus, because the government court see fit. never indicted Jeffrey Epstein, the panel held that his victims Given the separation of powers problems the dissent's pre- never had any CVRA rights. 1 In tr Wild, 955 F.3d 1196, charge model raises, and given that the majority's post-charge 1219 (11th Cir. 2020). One member of the panel dissented, model avoids those problems, the Court is compelled by pointing out how (1) the plain text of the CVRA does not the canon of constitutional avoidance to adopt the latter contain the requirement of a preexisting indictment or court proceeding, and (2) the panel's holding materially rewrote the model. See?. Gomez v. United States, 490 U.S. 858, 864, 109 S. Ct. 2237, 2241, 104 L.Ed.2d 923 (1989) ("It is statute and gutted victims' rights under the CVRA. Phi. at our settled policy to avoid an interpretation of a federal 1223-25 (Hull, J., dissenting). statute that engenders constitutional issues if a reasonable alternative interpretation poses no constitutional question."). Petitioner Wild filed a petition for rehearing en bane, which This conclusion is bolstered by the language of the CVRA, was granted. After vacating the panel opinion, we ordered which explicitly states that none of the statute's provisions briefing and oral argument on two issues: should be read to diminish prosecutorial discretion: "Nothing I. Whether the [CVRA] ... grants a crime victim any in this chapter shall be construed to impair the prosecutorial statutory rights that apply before the filing of a formal discretion of the Attorney General *1288 or any officer criminal charge by the government prosecutor? under his direction." 18 U.S.C. § 3771(d)(6). 2. If a crime victim has statutory rights under the CVRA that apply pre-charge, does the CVRA also grant a crime IV. victim a statutory remedy to enforce a violation of their statutory rights? So, for all the reasons stated in the majority's opinion, and for the fairness and separation of powers reasons I have outlined The Majority now changes course and avoids the first issue above, I believe the Court is required to deny Ms. Wild's completely, stating that "we needn't decide whether, in the petition. abstract, the rights to confer and to be treated with fairness might attach prior to the formal commencement of criminal proceedings." BRANCH, Circuit Judge, joined by MARTIN, JILL In answering only the second question, the Majority assumes PRYOR, and HULL, Circuit Judges, dissenting: implicitly, albeit in a cursory manner, that victims' rights This petition for a writ ofmandamus presents important issues "might attach" during the "pre-charge" period. But the of first impression regarding the Crime Victims' Rights Act Majority then holds that the CVRA does not give crime ("CVRA"), 18 U.S.C. § 3771, that affect all crime victims victims a private right to enforce their CVRA rights judicially in this Circuit. After over a decade of litigation, the Majority WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 29 EFTA00074627 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 unless the government decides to indict and commence court network of more than 30 underage girls whom he sexually proceedings. I In other words, rather than discuss the "rights- abused at his mansion in Palm Beach, Florida. The victims ded one of the initial petitioners in this case, creating" language in the CVRA and its relevance to the remedy issue, the Majority avoids the first en bane issue. la (Jane Doe I), who was 15 years old when Epstein first sexually abused her. See *1289 f - Alexander v. Sandoval, 532 U.S. 275, 288, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001) (noting that the Following the FBI's investigation, the U.S. Attorney's Office presence or absence of " `rights-creating' language" in a for the Southern District of Florida accepted the case for statute is "critical to the Court's analysis" of whether Congress prosecution and assigned specific federal prosecutors to intended to provide a private right of action to a particular handle the case. The lead Assistant U.S. Attorney ("AUSA"), benefitted class). The Majority then, in essence, adds a new A. Marie Villafaita, sent a letter to the identified victims, requirement to the text of the CVRA—that there must be a informing each victim that she was protected by, and had preexisting indictment and ongoing court proceeding before rights under, the CVRA. a crime victim may file a motion for relief under § 3771(d). I dissent because the Majority errs in failing to enforce the For example, in 2006, the U.S. Attorney's Office wrote plain text of the CVRA and in concluding that this case should petitioner Wild, stating that: (1) "you have a number of have been dismissed at the outset in 2008. rights" under the CVRA, including "[t]he reasonable right to confer with the attorney for the United States in the case," My dissent proceeds in five parts. First, I review the facts "[t]he right to be treated with fairness," and "the right to surrounding the plea deal with Epstein. Second, I review the petition the Court for relief' if Wild believed her CVRA rights procedural history. Third, I turn to how Congress granted were being violated; (2) "the U.S. Department of Justice expressly to crime victims in § 3771(a)(5) and (a)(8) a and other federal investigative agencies, including the [FBI], "reasonable" right to confer and a right to be treated fairly must use their best efforts to make sure that these rights are and those rights attach pre-charge. Fourth, I review (A) protected"; and (3) "[y]ou also are entitled to notification of how the Majority has misapplied and misinterpreted the upcoming case events" and "[a]t this time, your case is under Supreme Court's? Sandoval decision; (B) how the CVRA investigation." See IS U.S.C. § 3771(a), (d)(3). In March text in § 377I(d) expressly provides victims who believe 2007, the U.S. Attorney's *1290 Office began sending these their CVRA rights were violated pre-charge with a statutory letters to Epstein's other victims. remedy—a private right to seek judicial enforcement of their statutory rights in § 3771(a)—when no prosecution is By May 2007, the U.S. Attorney's Office had completed an underway; (C) how the statutory interpretation errors in the 82-page prosecution memo and a 53-page draft indictment Majority's reading of § 3771(d) and (f) leads it to the opposite against Epstein, charging him with federal crimes related to conclusion; and (D) how even under the Majority's analysis, the sex trafficking of minor victims. The prosecutors were the existence of the administrative remedy in § 3771(1) does prepared and ready to indict Epstein. not make the express judicial remedy in § 377I(d) unavailable to the victims, much less show that Congress did not intend Meanwhile, for over nine months in 2007 (from January a judicial remedy for crime victims in the "pre-charge" to September), the U.S. Attorney's Office secretly engaged period. Fifth, I discuss why the CVRA plainly precludes any in discussions with Epstein's defense team regarding interference with prosecutorial discretion. the forthcoming federal criminal charges. During this time, Epstein's defense team made multiple unsuccessful presentations to convince the U.S. Attorney's Office not to prosecute Epstein, maintaining he committed no federal 1. FACTS crimes. However, following a September 7, 2007 meeting As recounted by the Majority, following a 2005 report by the with Epstein's defense team, U.S. Attorney Alexander R. parents of a 14-year-old girl that then 52-year-old billionaire Acosta" notified Epstein's team that "our Office [has] Jeffrey Epstein sexually abused their daughter, local Florida decided to proceed with the indictment." 3 authorities—and later the FBI—began investigating Epstein. That investigation revealed that, between approximately 1999 Despite this statement, the former U.S. Attorney subsequently and 2007, Epstein and multiple co-conspirators assembled a changed his position for reasons not apparent from the record. WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 30 EFTA00074628 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 Specifically, rather than pursue the indictment, the U.S. for months concerning the Agreement and the resolution Attorney's Office entertained a non-prosecution agreement, of the federal case. For example, on January 10, 2008, whereby the U.S. Attorney's Office would defer federal the government sent Epstein's victims more letters, this prosecution of Epstein and his co-conspirators if Epstein time misrepresenting that "[t]his case is currently under pleaded guilty to two state prostitution-solicitation charges. investigation. This can be a lengthy process and we request And on September 24, 2007, the U.S. Attorney's Office your continued patience while we conduct a thorough and Epstein signed a seven-page agreement, entitled "Non- investigation." Further, on January 31, 2008, Wild met with Prosecution Agreement," documenting the government's AUSA Villafaila, FBI agents, and another federal prosecutor, charging decision and Epstein's agreement with it. provided additional details of Epstein's sexual abuse of her, and expressed her hope that Epstein would be prosecuted. The Agreement identified the federal crimes of Epstein and During that meeting, however, the federal prosecutors and his co-conspirators 4 and provided that the U.S. Attorney's FBI agents still did not disclose the Agreement to Wild. Then, Office agreed that "prosecution in th[e] District for these in mid-June of 2008, Bradley Edwards, the attorney for Wild offenses shall be deferred" provided that Epstein met certain and several of Epstein's other victims, discussed with AUSA conditions. Additionally, the Agreement extended immunity Villafafia the possibility of federal charges being filed against to Epstein's named co-conspirators, Epstein in the future. AUSA Villafaiia failed to mention the • Lesley Groff, [and ' as well as "any Agreement or its terms. potential co-conspirators" of Epstein's. In return for federal immunity, Epstein agreed to plead guilty to two low-level On June 30, 2008, Epstein pleaded guilty in Florida state court state solicitation of prostitution charges and serve 18 months to (I) solicitation of *1292 prostitution and (2) procuring a person under the age of 18 for prostitution. That same day, the in the county jail. 5 state court sentenced Epstein to 18 months' imprisonment in the county jail. A core term of the Agreement was that it remain secret from the public, even after it was finalized. The Agreement Having still not been informed of the resolution of Epstein's specifically provided that "[t]tle parties anticipate that this federal case, on July 3, 2008, attorney Edwards sent a letter to agreement will not be made part of any public record," the U.S. Attorney's Office communicating the victims' wishes and that, should the United States receive "a Freedom of that federal charges be filed against Epstein. Information Act request or any compulsory process *1291 commanding the disclosure of the agreement, it will provide notice to Epstein before making that disclosure." 6 II. PROCEDURAL HISTORY The victims were not notified of the executed Agreement. Because no prosecution was underway for years and lacking Instead, for nine months after the September 2007 execution any information about the case, on July 7, 2008, Courtney of the Agreement, the U.S. Attorney's Office continued to Wild (proceeding as "Jane Doe I") filed an emergency negotiate with Epstein's defense team about the extent of petition in "the district court in the district in which the crime crime victim notifications—a course of action which the occurred." See 18 U.S.C. § 3771(d)(3) ("The rights described U.S. Attorney's Office now admits is a deviation from the in subsection (a) shall be asserted in the district court in government's standard practice. Epstein's attorneys opposed which a defendant is being prosecuted for the crime or, if no any victim notifications, but the U.S. Attorney's Office prosecution is underway, in the district court in the district in insistently and repeatedly told Epstein's attorneys that it was which the crime occurred."). statutorily obligated under the CVRA to notify and confer with the victims about the Agreement and upcoming events, Wild's petition alleged that she was a victim of Epstein's including Epstein's state plea. 7 federal crimes and that the U.S. Attorney's Office had violated her CVRA rights (1) to confer with federal prosecutors, (2) Nevertheless, for still unknown reasons, the U.S. Attorney's to be treated with fairness, (3) to receive timely notice of Office acquiesced to the demands of Epstein's attorneys and relevant court proceedings, and (4) to receive information did not notify all of the victims of the Agreement. Rather, about restitution. Another of Epstein's victims identified as the U.S. Attorney's Office affirmatively misled victims Jane Doe 42 later joined the petition. WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 31 EFTA00074629 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 crime occurred." I/11d. (internal citation omitted). Having Once the victims filed the petition in the district court, the determined that the CVRA rights could attach pre-charge, the U.S. Attorney's Office reversed course, contradicting what it district court deferred ruling (pending discovery) on the issue had stated expressly in multiple earlier letters to the victims. of whether the particular rights asserted by the victims here— The U.S. Attorney's Office now claimed that the CVRA rights the rights to confer and to be treated fairly—attached, and, if never attached "pre-charge," and, therefore, because there so, whether the U.S. Attorney's Office violated those rights. was no criminal indictment (or information or complaint) ever filed, Epstein's victims never had any CVRA rights in the Id. at 1343. first place. It was only in the U.S. Attorney's Office's July 9, 2008, responsive pleading in the district court that Wild Thereafter, in a published order denying the government's learned that, over nine months earlier in September 2007, the subsequent motion to dismiss the action, the district court held U.S. Attorney's Office had signed an agreement with Epstein that the "'reasonable right to confer... in the case' guaranteed not to prosecute him for federal crimes if Epstein pleaded by the CVRA at § 377l (a)(5) is properly read to extend to the guilty to two state charges. pre-charge stage of criminal investigations and proceedings, certainly where—as here—the relevant prosecuting authority In August 2008, pursuant to a court order, the victims finally has formally accepted a case for prosecution." Doe v United obtained a copy of the Agreement. What followed was more States, 950 F. Supp. 2d 1262, 1267 (S.D. Fla. 2013) (alteration than a decade of contentious litigation between the victims, in original). 8 the government, and Epstein, who was allowed to intervene to oppose the victims' discovery requests. See ck Doe No. I B. District Court's February 2019 Order: Government v. United States, 749 F.3d 999, 1003 (11th Cir. 2014). Violated Victims' Rights After years of litigation, in February 2019, the district court A. District Court's 2011 and 2013 Orders: Victims Have ruled that the U.S. Attorney's Office had violated the victims' CVRA Rights That Attach "Pre-Charge" CVRA rights to confer and to be treated fairly. Doe I v United During the district court proceedings, the government argued States, 359 F. Supp. 3d 1201, 1218-22 (S.D. Fla. 2019). The that "as a matter of law the CVRA does not apply before court found that the U.S. Attorney's Office not only entered formal charges are filed, i.e., before an indictment or similar into the Agreement without conferring with the victims but also decided to "conceal the existence of the [Agreement] and charging document." ti Does v. United States, 817 F. Supp. mislead the victims to believe that federal prosecution was 2d 1337, 1341 (S.D. Fla. 2011). The district court, in a still a possibility." 9 Id. at 1218-19. published order, rejected this argument, holding that "the statutory language [of the CVRA] clearly contemplates pre- The district court directed the parties to brief potential charge proceedings," and, therefore, "those rights must attach remedies. Id. at 1222. Wild proposed several remedies, before a complaint or indictment formally charg[ing] the including an order scheduling a victim-impact hearing and a defendant with the crime" is filed. 11d. at 1341-42. meeting between the victims and the prosecutors, the release of certain documents concerning the prosecutors' decision to Furthermore, in examining the statutory text and structure enter into the Agreement, the recission of the Agreement, and of the CVRA, the district court interpreted the CVRA as the discovery of other materials. permitting a crime victim to initiate a freestanding cause of action to enforce the victim's CVRA rights where no C. District Court's September 2019 Order Closing Case prosecution is underway—just as Wild did here. !. 01d. at 1340-41. Specifically, citing § 3771(d)(3), the district court Epstein was found dead in his prison cell of an alleged suicide explained that "[i]f a prosecution is underway, the CVRA on August 10, 2019. 10 *1294 On September 16, 2019, the grants victims standing to vindicate *1293 their rights in district court entered an order closing the case. As to Epstein, the ongoing criminal action. If, however, a prosecution is the district court determined that "there is no longer an Article not underway, the victims may initiate a new action under Ill controversy" given his death. As to the co-conspirators, the CVRA in the district court of the district where the the district court found it lacked jurisdiction over them. WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 32 EFTA00074630 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 second question of whether the CVRA grants crime victims a statutory remedy to enforce violations of those rights, I will D. Wild's Petition for Mandamus in this Court address both in order." Thereafter, on September 30, 2019, Wild filed a petition for writ of mandamus with this Court, seeking review of the *1295 The CVRA grants "crime victims" 12 the following district court's September 2019 order closing the case. See IS rights: U.S.C. § 3771(d)(3) ("If the district court denies the relief sought, the movant may petition the court ofappeals for a writ (I) The right to be reasonably protected from the accused. of mandamus."). Her petition set forth various types of relief (2) The right to reasonable, accurate, and timely notice of sought under the CVRA and explained why the petition was any public court proceeding, or any parole proceeding, not moot. involving the crime or of any release or escape of the accused. The government opposed Wild's arguments on the merits and argued, in relevant part, that: (1) the action was moot because (3) The right not to be excluded from any such public court any rights the victims had already had been or would be proceeding, unless the court, after receiving clear and vindicated; (2) the victims had no rights under the CVRA convincing evidence, determines that testimony by the because the government never filed formal federal charges victim would be materially altered if the victim heard against Epstein in a court; and (3) the CVRA did not authorize other testimony at that proceeding. the victims to file this case or authorize their requested remedies. (4) The right to be reasonably heard at any public proceeding in the district court involving release, plea, On April 14, 2020, a divided panel of this Court denied sentencing, or any parole proceeding. Wild's mandamus petition. A majority of the panel agreed with the government that the CVRA rights did not attach "pre- (5) The reasonable right to confer with the attorney for the charge" and that the victims never had any statutory rights Government in the case. under the CVRA in the first place. 1 1/ In re Wild, 955 F.3d (6) The right to full and timely restitution as provided in at 1219. The dissent disagreed, discussing why the victims law. had CVRA rights under the plain text of the statute. 11d. at (7) The right to proceedings free from unreasonable delay. 1223-25 (Hull, J., dissenting). All agreed that if the victims had CVRA rights "pre-charge," the prosecutors egregiously (8) The right to be treated with fairness and with respect for violated them. Wild petitioned this Court for rehearing en the victim's dignity and privacy. bane. On August 7, 2020, this Court granted the petition, vacated the panel opinion, and directed the parties to brief two 18 U.S.C. § 377I(a) (2008). 13 In this case, there are only issues, which I discuss in turn. two CVRA rights at issue: the conferral right set forth in subsection (aX5) and the right to be treated with fairness and respect set forth in subsection (a)(8). III. CRIME VICTIMS' RIGHTS "PRE-CHARGE" In determining when the statutory rights granted to crime The first issue on which we ordered en bane briefing is victims in the CVRA attach, "[o]ur starting point is the whether the CVRA grants crime victims the rights to confer language of the statute itself." I/ 1EEOC g STME, LLC, 938 and be treated fairly prior to the filing of an indictment. This F.3d 1305, 1313 (11th Cir. 2019) (quotation omitted). When question is about the timing of when CVRA rights attach, not "the language at issue has a plain and unambiguous meaning," the scope of the rights. This issue, which was the basis of the we "need go no further." United States v. St. Amour, 886 prior panel's decision, is an important legal question of first F.3d 1009, 1013 (11th Cir. 2018) (quoting United States impression in our Circuit. Nevertheless, the Majority declines v. Fisher, 289 F.3d 1329, 1337-38 (11th Cir. 2002)); see also to address it in its en bane decision. Because the first question of whether the CVRA grants crime victims any rights prior to ? Robinson g Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. the filing of an indictment is inextricably intertwined with the 843, 136 L.Ed.2d 808 (1997) ("The plainness or ambiguity of WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 33 EFTA00074631 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 statutory language is determined by reference to the language strident." (quoting C a Commer ofInternal Revenue v. Beck's *1296 itself, the specific context in which that language is Est., 129 F.2d 243, 245 (2d Cir. 1942))). Where, as here, used, and the broader context of the statute as a whole."). the language Congress used is clear and unambiguous, our Furthermore, in determining the meaning of a statute, we "assume that Congress used the words of the statute as they inquiry is complete. CBS Inc. it PrimeTime 24 Joint are commonly and ordinarily understood and must construe Venture, 245 F.3d 1217, 1222 (11th Cir. 2001). We are bound the statute so each of its provisions is given full effect." to "presume that Congress said what it meant and meant what P United States it McLymont, 45 F.3d 400, 401 (II th Cir. it said." Id. (quoting P. United States it Steele, 147 F.3d 1995). Therefore, "[w]e do not look at one word or term in 1316, 1318 (11th Cir. 1998) (en bane)); see alsol ° Keene isolation, but instead we look to the entire statutory context." Corp., 508 U.S. at 208, 113 S.Ct. 2035. Therefore, under the [ • STME, 938 F.3d at 1314 (quotation omitted). plain language of the CVRA, the rights set forth in subsections (a)(5) and (a)(8) attach pre-charge. Additionally, under the conventional rules of statutory construction, when Congress has used a more limited term Indeed, the remainder of the CVRA is structured in in one part of a statute, but left it out of other parts, courts acknowledgement of the fact that the plain language of the should not imply the term where it has been excluded. See CVRA provides that certain rights attach pre-charge. See Keene Corp. v. United States, 508 U.S. 200, 208, 113 ! ei Home Depot U.S.A., Inc. v. Jackson, 587 U.S. —, S.Ct. 2035, 124 L.Ed.2d 118 (1993) ("[W]here Congress —, 139 S. Ct. 1743, 1748, 204 L.Ed.2d 34 (2019) ("It includes particular language in one section of a statute but is a fundamental canon of statutory construction that the omits it in another ..., it is generally presumed that Congress words of a statute must be read in their context and with a acts intentionally and purposely in the disparate inclusion view to their place in the overall statutory scheme." (quoting or exclusion." (quotation omitted)); C a Russello v. United ! I Davis v. Mich. Dep't of Treasury, 489 U.S. 803, 809, 109 States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) S.Ct. 1500, 103 L.Ed.2d 891 (1989))); P ° Johnson v. United (declining to read a term appearing in two subsections of a States, 559 U.S. 133, 139, 130 S.Ct. 1265, 176 L.Ed.2d I statute to have the same meaning where there is "differing (2010) ("Ultimately, context determines *1297 meaning."). language" in the subsections). Thus, our statutory analysis Specifically, subsections (c) and (d) expressly refer to the begins (and ultimately ends) with the language of § 377I(a) rights in subsection (a) and further bolster the conclusion (5) and (a)(8). that certain rights afforded to crime victims in subsection (a) attach pre-charge. The plain language of § 3771(a)(5) and (aX8) makes it clear that the rights attach prior to the filing of any indictment. Section 3771(c), titled "[blest efforts to accord rights," Unlike the rights described in § 377I(aX2), (a)(3), and (aX4), instructs that the Justice Department and "other departments which contain temporally-limiting language that ties those and agencies of the United States engaged in the detection, rights to post-indictment court proceedings, § 3771(aX5) and investigation, or prosecution of crime shall make their best (a)(8) contains no such language. The presence oftemporally- efforts to see that crime victims are accorded[ ] the limiting language in certain subsections of the CVRA and rights described in subsection (a)." 18 U.S.C. § 3771(c)( I) its absence in others demonstrates that when Congress (emphasis added). There would be no reason to mandate wants to limit crime victims' rights to post-indictment court that federal agencies involved in crime "detection" or proceedings, it knows how to do so and does so expressly. See "investigation" ensure that crime victims are accorded their Va. Uranium, Inc. it Warren, 587 U.S. —, 139 S. Ct. 1894, CVRA rights if those rights did not exist "pre-charge." Rather, 1900, 204 L.Ed.2d 377 (2019) (explaining that "in any field of the use of disjunctive wording in subsection (c)—the "or"— statutory interpretation, it is our duty to respect not only what indicates agencies that fit either description must comply, Congress wrote but, as importantly, what it didn't write"); even though in some circumstances the investigatory and see also Antonin Scalia & Bryan A. Gamer, Reading Law: prosecution phases may overlap. Furthermore, if victims The Interpretation ofLegal Texts 182 (2012) ("The familiar have CVRA rights only after an indictment is filed, the `easy-to-say-so-if-that-is-what-was-meant' rule of statutory other "departments and agencies" would then necessarily interpretation has MI force here. The silence of Congress is be involved, to some extent, with the "prosecution of WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 34 EFTA00074632 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 [the] crime," and the use of the term "prosecution" would government from notifying the victims of a potential *1298 be sufficient to sweep in all relevant actors, making the plea agreement until after one was executed. Id. at 393. "detection" and "investigation" language in subsection (c) superfluous. See Scalia & Garner, supra, at 176 ("If a Thereafter, the government filed a criminal information under provision is susceptible of(I) a meaning that gives it an effect seal, and within days, the government and BP signed the plea already achieved by another provision ..., and (2) another meaning that leaves both provisions with some independent agreement. P Id. Upon the signing of the plea agreement, operation, the latter should be preferred.'). the criminal information was unsealed, the plea agreement was announced, and notices were mailed to the victims Additionally, § 3771(d)(3) provides that "lino prosecution is "advising of scheduled proceedings and of their right to be underway," crime victims can assert the rights described in heard." Id. Numerous victims came forward prior to, and subsection (a) "in the district court in which a defendant is at, the plea hearing and requested that the plea agreement being prosecuted for the crime or, in the district court in the be rejected based on the violations of their rights as crime district in which the crime occurred." 18 U.S.C. § 3771(d) (3) (emphasis added). Thus, the plain statutory language of victims under the CVRA. Id. The district court rejected the subsection (dX3) demonstrates that the CVRA grants crime victims' request, and the victims filed a petition for a writ of victims' rights that apply prior to formal charges being filed. mandamus in the U. S. Court of Appeals for the Fifth Circuit, pursuant to § 377l(d)(3). ? I Id. Upon review, the Fifth Circuit It is noteworthy that the only other circuit court to address concluded, as discussed above, that " '[t]here am clearly whether the statutory rights under the CVRA attach pre- rights under the CVRA that apply before any prosecution indictment has reached the same conclusion, holding that " is underway.' ... includ[ing] the CVRA's establishment of 'Where are clearly rights under the CVRA that apply before victims' reasonable right to confer with the attorney for any prosecution is underway.' Logically, this includes the the Government.' " P Id. at 394. The Fifth Circuit also CVRA's establishment of victims"reasonable right to confer concluded, based on the unique facts of that case, that the with the attorney for the Government.' "See ? j In re Dean, government violated the victims' right to confer under § 527 F.3d 391, 394 (5th Cir. 2008) (per curiam) (internal 3771(a)(5). ? I Id. citation and quotation omitted). Notably, the facts of ? In re Dean are similar to the facts in this case. Specifically, We should join the Fifth Circuit in holding that under the after an explosion at a refinery owned and operated by BP plain language of the CVRA victims have a pm-charge right Products North America Inc. ("BP") killed 15 people and to confer with prosecutors. Since the government admits that injured more than 170, the Department of Justice ("DOJ") it never conferred at any time with the victims, I also conclude investigated and decided to bring federal charges against BP. under the factual circumstances of this case that the victims' Id. at 392-93. However, prior to the filing ofan indictment conferral right was violated. However, I express no opinion or information, the government filed a sealed ex pane as to the scope of the conferral right or at what precise point motion with the district court, advising the court that a plea that right was violated in this case. I need go no further. agreement was imminent and requesting an order outlining As explained above, under the CVRA, the Epstein crime victims had a reasonable right to confer with the attorney for the procedure it should follow under the CVRA. ' hi. at the United States and a right to be treated with fairness and 392. The government indicated that due to the large number these rights attach prior to any indictment or formal charges of victims, consulting the victims prior to finalizing the plea being filed and were violated. Accordingly, I now turn to agreement was impracticable as were victim notifications of the second question before this en bane court—whether the the pending agreement because media coverage could disrupt CVRA grants crime victims a statutory remedy to enforce a the plea negotiations and potentially prejudice the case. violation of their statutory rights. Id. Based on the government's concerns and its proposed recommendation for what would constitute a reasonable procedure under the CVRA given the circumstances, the IV. VICTIMS' STATUTORY REMEDY district court entered an ex pane order that prohibited the WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 35 EFTA00074633 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 As posited by the Majority, the second en bane issue requires structure of the statute for evidence of congressional "intent us to determine whether Congress created in the CVRA "a to create not just a private right but also a private remedy." private right ofaction"—Le., a statutory remedy in the form of ? d 532 U.S. at 286, 121 S.Ct. 1511; Love a Delta Air a freestanding lawsuit to enforce a victim's CVRA rights prior Lines, 310 F.3d 1347, 1351-52 (11th Cir. 2002) (explaining to the commencement of formal criminal proceedings. The that "legislative intent to create a private right of action [is] Majority and I agree that "[l]ike substantive federal law itself, the touchstone of [the] analysis"). private rights ofaction to enforce federal law must be created by Congress."? • Sandoval, 532 U.S. at 286, 121 S.Ct. 1511. Two statutes were at play in! "Sandoval—§ 601 and § 602 of Thus, our "judicial task is to interpret the statute Congress Title VI of the Civil Rights Act of 1964. Section 601 provides has passed to determine whether it displays an intent to create that "[n]o person in the United States shall, on the ground of not just a private right but also a private remedy." ? 11d. Our race, color, or national origin, be excluded from participation inquiry must focus on the "text and structure" of the statute. in, be denied the benefits of, or be subjected to discrimination It under any program or activity receiving Federal financial t Id. at 288, 121 S.Ct. 1511. assistance."? 142 U.S.C. § 2000d. And § 602 provides that: Applying Sandoval and its progeny to the CVRA, the Majority holds that, while Congress created a statutory remedy in § 3771(d) for crime victims to enforce their Each Federal department and agency statutory CVRA rights by filing a motion for relief in an which is empowered to extend ongoing criminal proceeding, Congress did not authorize a Federal financial assistance to any freestanding private right of action outside the context of program or activity, by way of ongoing criminal proceedings. *1299 In other words, the grant, loan, or contract other than a Majority holds that when CVRA violations occur pre-charge, contract of insurance or guaranty, is crime victims have no statutory remedy. authorized and directed to effectuate the provisions of [§ 601] of this I disagree because, under the plain language of § 377I(d) title with respect to such program or and the CVRA's structure as a whole, Congress granted the activity by issuing rules, regulations, victims a statutory remedy—a right to file a freestanding or orders of general applicability "[m]otion for relief' in "the district court in the district which shall be consistent with in which the crime occurred" when "no prosecution [is] achievement of the objectives of underway." 18 U.S.C. § 3771(dX3). Congress created an the statute authorizing the financial express right of action in § 3771(d)(3) and our inquiry assistance in connection with which should begin and end with the plain text of the CVRA. In the action is taken.... holding otherwise, the Majority ignores the ordinary and common meaning of the statutory language in the CVRA and Id. § 2000d-1. misapplies ? 4 Sandoval. Because the Majority's holding is premised on its application off u Sandoval, I begin with a Under § 602, the DOI enacted a federal regulation that forbid discussion of that decision and the flaws in the Majority's federal funding recipients from using "criteria or methods of interpretation. administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin. ... " Pa 532 U.S. at 278, 121 S.Ct. 1511 (quoting 28 A. Sandoval and its application to the CVRA C.F.R. § 42.104(b)(2) (2000)). The Alabama Department of Public Safety accepted federal funding from the DOI thereby As the Majority recognizes, in determining whether the CVRA authorizes crime victims to file a freestanding suit to subjecting itselfto the provisions ofTitle VI. Id. Therefore, enforce their CVRA rights outside of an ongoing criminal when the Alabama Department of Public Safety changed its proceeding, P Sandoval directs us to examine the text and policy and started administering written driver's license tests only in English, Sandoval (a Spanish speaker), on behalf of WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 36 EFTA00074634 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 a proposed class, sued seeking to enjoin the English-only from the types of statutes in which rights and private policy, arguing that it violated DOJ's regulation because it causes of action had been found because § 602 "focuse[d] had the effect of discriminating against non-English speakers neither on the individuals protected nor ... on the funding recipients being regulated, but on the agencies that [would] based on their national origin. ?a M. at 279, 121 S.Ct. 1511. ,1 The district court concluded that Sandoval could sue under do the regulating." 1d. (emphasis added). The ' Sandoval § 602 of to enforce the nondiscrimination regulation and Court also concluded that § 602's method "for enforcing its authorized regulations," such as withholding funding, enjoined the English-only policy. !II M. at 279, 121 S.Ct. similarly manifested no intent on Congress's part to create a 151 I. We affirmed. t Id. Reversing, the Supreme Court held private right of action under § 602 for individual persons to that § 602 created no *1300 private right of action to enforce enforce agency regulations. t M. Rather, the Court reasoned the regulations promulgated under § 602 of Title VI. C a M. at that § 602's "express provision of one method of enforcing a 281, 121 S.Ct. 1511. substantive rule *1301 suggests that Congress intended to preclude others." Id. at 290, 101 S.Ct. 1775. 17 In reaching its decision, the Supreme Court explained that, despite the absence of express authorization in § 601, it was clear from the rights-creating language in § 601 that Title We have emphasized that ( I) ! I Sandoval "clearly delimits VI provided for a private cause of action for individuals the sources that are relevant to ow search for legislative to enforce the statutory rights guaranteed to them in § intent," and (2) "[f]irst and foremost, we look to the statutory 601 through which they could obtain injunctive relief and text for 'rights-creating' language." CULove, 310 F.3d at damages. 15 Id. at 279-80, 121 S.Ct. 1511. But as the 1352 (quotation omitted). Thus, in order to determine whether Supreme Court noted, § 601 did not apply to the issue raised Congress intended for crime victims, like Wild, to have a statutory remedy to enforce their CVRA rights outside the in Sandoval's case. 16 ? II Id at 285, 121 S.Ct. 1511. Thus, the context of an ongoing criminal proceeding, we must apply the issue in C Sandoval was whether individuals had a private principles from ? II/ Sandoval to the CVRA. cause of action under § 602 to enforce violations of agency regulations. t Id. at 286, 121 S.Ct. 1511. Under ?I/ Sandoval, we must look for rights-creating ■ language in the CVRA. See? I Sandoval, 532 U.S. at 288- The C Sandoval Court first looked to the language of § 602 for "rights-creating language"—te., whether the statutory 89, 121 5.O. 1511; II a Love, 310 F.3d at 1352 (" 'Rights- text evinced an intent on Congress's part to benefit a particular creating language' is language 'explicitly confer[ing] a right directly on a class of persons that include[s] the plaintiff class of persons. Id. at 288-89, 121 S.Ct. 1511. The in [a] case,' or language identifying 'the class for whose Sandoval Court concluded that § 602 contained no "rights- especial benefit the statute was enacted.' " (citation omitted) creating" language. ! I /d. The Supreme Court explained (quoting Cannon, 441 U.S. at 690 n.13, 99 S.Ct. 1946, that "[s]tatutes that focus on the person regulated rather and let & Pac. Ry. Co. v. Rigsby, 241 U.S. 33, 39, than the individuals protected create 'no implication of an 36 S.Ct. 482, 60 L.Ed. 874 (1916)). And it is clear that intent to confer rights on a particular class of persons.' " the rights-creating language that was lacking in § 602 is Al t Id. at 289, 121 S.Ct. 1511 (emphasis added) (quoting patently present in § 3771(a) of the CVRA. See? HSandoval, !III California v. Sierra Club, 451 U.S. 287, 294, 101 S.Ct. 532 U.S. at 288, 121 S.Ct. 1511 ("It is immediately clear 1775, 68 L.Ed.2d 101 (1981)). Section § 602 authorized that the 'rights-creating' language so critical to the Court's federal agencies to issue regulations and empowered the analysis in Cannon of § 601 is completely absent from agencies to enforce those regulations by terminating funding § 602." (citation omitted)). The CVRA states that "[a] or "by any other means authorized by law." C li M at 289, crime victim has the following rights," and goes on to list 101 S.Ct. 1775 (quoting 42 U.S.C. § 2000d-1). Thus, § "[t]he reasonable right to confer with the attorney for the 602—which "limit[ed] agencies to 'effectuat[ing]' rights Government in the case," and "[t]he right to be treated already created by § 601"—was "yet a step further removed" with fairness and with respect for the victim's dignity and WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 37 EFTA00074635 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 privacy." 18 U.S.C. § 3771(a)(5), (8) (emphasis added). district in which the crime occurred. The district court shall Accordingly, the CVRA's statutory language, with its clear take up and decide any motion asserting a victim's right and unmistakable focus on "the individuals protected" (crime forthwith. victims), evinces Congress's clear "intent to confer rights on 18 U.S.C. § 3771(d) (emphasis added). In the clear and a particular class of persons." See ' Sandoval, 532 U.S. at unambiguous text of § 3771(d), Congress created a legal 289, 121 S.Ct. 1511 (quotation omitted). In other words, the mechanism for crime victims to enforce their CVRA rights text of the CVRA "expressly identifies the class Congress (i.e., statutory remedy) whenever a violation of such rights intended to benefit"—crime victims—and grants them certain might occur. Specifically, crime victims who believe that statutory "rights."III Cannon, 441 U.S. at 690, 99 S.Ct. 1946. a violation of their statutory rights under the CVRA has occurred may file a motion for relief(I) "in the district court And "it is a general and indisputable rule[ ] that where there in which a defendant is being prosecuted for the crime," or (2) "if no prosecution is underway, in the district court is a legal right, there is also a legal remedy." I I Marbuty in the district in which the crime occurred." Id. § 3771(d) v. Madison, 5 U.S. (I Cranch) 137, 163, 2 L.Ed. 60 (1803) (3) (emphasis added). As explained further below, read most (quoting 3 William Blackstone, Commentaries *23). I agree naturally, the phrase "if no prosecution is underway" refers with the Majority, however, that the presence of rights- to situations in which formal court proceedings have not yet creating language alone does not establish that crime victims begun—which is precisely what Epstein's victims faced. 18 have a statutory remedy. P ° Sandoval made clear that the This reading of the CVRA is the only one that gives full effect statute must "display[ ] an intent to create not just a private to the plain statutory text. right but also a private remedy." f 1 532 U.S. at 286, 121 S.Ct. Notwithstanding the clear "rights-creating" language in 1511 (emphasis added). Fortunately, unlike in P Sandoval, the CVRA and Congress's express inclusion of a judicial in which the statute in question did not provide expressly for mechanism to enforce those rights even "if no prosecution a private cause of action and the Court had to decide whether is underway," the Majority points to § 3771(d) and asserts one should be implied—we need not concern ourselves with implying any remedy here. Rather, Congress's intent that there is no "i Sandovehqualifying" clear expression of to provide crime victims with a private *1302 statutory congressional intent to authorize a private right of action to remedy is crystal clear because it expressly provided for such enforce CVRA rights until after an indictment is filed. The a remedy in § 3771(d)—the ability to file a freestanding Majority contends that this conclusion is compelled by the motion for relief when no prosecution is underway to enforce remaining structure of the CVRA for the following reasons: applicable rights under § 377I(a). (I) § 377l (d)(3) authorizes a crime victim to file a "[m]otion for relief," and a "motion" cannot initiate a freestanding cause of action; (2) the phrase "if no prosecution is underway" in B. Section 3771(d) expressly provides for a statutory § 377I(d)(3) is best understood to refer to motions filed after remedy the prosecution is completed—i.e., post-judgment motions; and (3) § 377I(d)(6)—which states that "[n]othing in this Section 3771(d), entitled "Enforcement and limitations," chapter shall be construed to authorize a cause of action for provides as follows: damages" and "[n]othing in this chapter shall be construed to (d) Enforcement and limitations.— impair the prosecutorial discretion of the Attorney General or any officer under his direction"—demonstrates that Congress (1) Rights.--The crime victim ... may assert the rights did not intend to authorize a freestanding lawsuit outside described in subsection (a). the context of ongoing criminal proceedings. As explained further, contrary to the *1303 Majority's contention, nothing in the CVRA compels the conclusion that Congress did not intend to authorize a private statutory remedy outside (3) Motion for relief and writ of mandamus.--The rights described in subsection (a) shall be asserted in the district the context of ongoing criminal proceedings. 19 Rather, for court in which a defendant is being prosecuted for the crime the reasons that follow, the CVRA as a whole supports the or, ifnoprosecution is underway, in the district court in the conclusion that Congress intended—and meant what it said —when it authorized expressly a private right of action for WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 38 EFTA00074636 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 judicial enforcement of a crime victims' statutory rights set the motion authorized under the CVRA, exist to provide forth in subsection (a) if no prosecution is underway by the third parties a vehicle to assert and protect their rights in the filing of a motion for relief in the district court in the district *1304 course of a criminal investigation to which they are in which the crime was committed. See 18 U.S.C. § 377I(d) not themselves a party. (3), (6). For example, Federal Rule of Criminal Procedure 4I(g), entitled "Motion to Return Property," provides that "[a] C. Errors in the Majority's statutory interpretation of § person aggrieved by an unlawful search and seizure of 3771(d) property or by the deprivation of property may move for the property's return," and it instructs an aggrieved party to file 1. Failure to honor common, ordinary definition of "[t]he motion ... in the district where the property was seized." "motion for reliefin § 3771(dX3) Fed. R. Crim. P. 41(g) (emphasis added). Thus, Rule 41(g) The Majority insists that the term "[m]otion for relief' authorizes third parties to file a freestanding "motion" to can mean only "a request filed within the context of enforce their rights even before a prosecution is initiated, and a preexisting judicial proceeding." The common legal the filing of such a motion is a separate enforcement action. definition of "motion," however, is more general and broader than the definition the Majority ascribes to it. Another pertinent example is a motion to quash a grand jury Specifically, a motion is "[a] written or oral application subpoena under Fed. R. Crim. P. 17(cX2). Motions under requesting a court to make a specified ruling or order." Rule I7(c)(2)—at least those directed at quashing subpoenas Motion, Black's Law Dictionary (11th ed. 2019); see also issued by a federal grand jury—are often filed prior to the Motion, Merriam-Webster Dictionary, https://www.merriam- initiation of any formal court proceeding, i.e., "pre-charge," webstencorn/dictionarylmotion (last visited March 16, 2021) because the subpoenas in question are usually issued by a (defining "motion" as "an application made to a court grand jury during the course ofan investigation. 2° And while or judge to obtain an order, ruling, or direction"). This federal grand juries are called into existence by order of the general definition encompasses a motion initiating a new district court, see Fed. R. Crim. P. 6(a)(I), they operate more proceeding, as well as one filed mid-proceeding, and the as instrumentalities of the U.S. Attorney's Office, see Wright Majority's demand that we ascribe only a more specific, & Miller § 101 ("In short, in the grand jury room it is the narrow definition to the word "motion" violates basic canons prosecutor who runs the show, a fact that has led some courts of statutory interpretation. See Scalia & Garner, supra, at to observe that grand juries are for all practical purposes an 69 ("Words are to be understood in their ordinary, everyday investigative and prosecutorial arm of the executive branch meanings—unless context indicates that they bear a technical of government." (quotation marks omitted)). Further, as sense."); see also M tr Walter Energy, 911 F.3d 1121, 1143 we explained in ?a United States v. Eisenberg, "[u]ntil an (11th Cir. 2018) ("To determine the ordinary meaning of a indictment is returned and a case presented to the United term, we often look to dictionary definitions for guidance."). States District Court, the responsibility for the functioning of the grand jury is largely in the hands of the U.S. Attorney." Further, although the Majority contends that "motion" can mean only a request filed in an ongoing judicial proceeding, 711 F.2d 959, 965 (11th Cir. 1983). However, the fact the federal rules and statutes provide for quite a few motions that the prosecutor exercises a lot of control over the grand that can be filed outside of an ongoing proceeding as free- jury "does not mean that the court cannot redress abuses by standing motions. See, e.g., 28 U.S.C. § 2255 (motions to either the grand jury or a U.S. Attorney." f 1 Id. Rather, by vacate or correct sentences); 28 U.S.C. § 1361 (mandamus filing a Rule 17(c) motion, an individual or company may ask proceedings are initiated as a new lawsuit); see also In the district court to quash an "unreasonable or oppressive" re Stewart, 552 F.3d 1285, 1288 (11th Cir. 2008) ("The subpoena issued by the grand jury or to otherwise rein in mandamus proceeding before us is a free standing cause of perceived abuses by the grand jury or prosecutors. Fed. R. action, brought by persons claiming to be CVRA victims Crim. R 17(c). against the district judge who denied them the right to appear and be heard." (emphasis added)); Fed. R. Crim. P. 41(g) In other words, Rule 17(c) authorizes an individual to file a (motions to return property); Fed. R. Crim. P. 17(c) (motion freestanding motion to quash a subpoena, which essentially to quash a grand jury subpoena). Often, such motions, like asks the district court to step in to ensure that the rights WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 39 EFTA00074637 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 of third parties are respected, despite the fact that there Crim. P. 41(g) ("A person aggrieved by an unlawful search is no ongoing court proceeding. 21 See In re Grand fray and seizure of property or by the deprivation of property Proceedings, 832 F.2d 554, 554 (11th Cir. 1987) (considering may move for the property's return."); Fed. R. Crim. P. a third party's "claim of privilege to prevent disclosure of 17(c) ("On motion made promptly, the court may quash or their state grand jury testimony"). The motion to quash need modify the subpoena if compliance would be unreasonable not—and in most cases could not—be filed in any ongoing or oppressive."); see also United States v. R. Enters., 498 court proceeding because in most instances no formal charges U.S. 292, 297-98, III S.Ct. 722, 112 L.Ed.2d 795 (1991) have been brought. See, e.g., id. at 555; In re Grand fury (distinguishing the standard for judicial review of motions to Matter No. 91-01386, 969 F.2d 995, 996 (11th Cir. 1992); In suppress subpoenas issued pursuant to Rule 17 by a grand jury re Grand Jury Subpoena, 831 F.2d 225, 226 (I I th Cir. 1987). versus those "issued in the context of a prospective criminal Rather, motions to quash subpoenas are filed in the district trial"). court overseeing the grand jury. In short, nothing precludes a "motion" *1305 from initiating a separate enforcement Consequently, for the above reasons, the Majority errs in action. holding that a "motion for relief," as contemplated by § 377I(d)(3), must be filed in an ongoing court proceeding The Majority also asserts that a reading of § 3771(d) that *1306 and cannot initiate a freestanding enforcement action. permits victims to file a freestanding motion for relief would cause the word "motion" to have two different meanings: (I) a freestanding motion; and (2) a motion filed in a 2. Misinterpretation of "if no prosecution is underway" preexisting judicial case. Wild's asserted interpretation of the in § 3771(d)(3) statute, however, does not create this so-called dual meaning Additionally, the Majority asserts that the phrase "if no of motion. Rather, the common, general definition of the prosecution is underway" in subsection (dX3) is best word motion is "[a] written or oral application requesting a understood to refer to motions filed after the prosecution is court to make a specified ruling or order." Motion, Black's completed—i.e., post-judgment motions. This reading of § Law Dictionary (11th ed. 2019). While the CVRA may 3771(d)(3) is strained and does not comport with how the permit motions to be filed in either the district where the word "underway" is ordinarily or commonly understood. As crime occurred or the district where the defendant is being the Majority acknowledges implicitly, in everyday parlance, prosecuted, the existence of alternative venues does not if "a process, project, [or] activity" is not "undenvay," we change the fundamental, ordinary, and common meaning of generally understand that it has not yet begun. It therefore the word motion. That ordinary meaning—"a written or oral is not credible to say that the phrase "if no prosecution is application requesting a court to make a specified ruling or underway" is just as likely to be commonly or ordinarily order"—is consistent in both contexts. The text of the CVRA understood to refer to a post-prosecution scenario—i.e., a authorizes a motion for relief and specifically contemplates judicial proceeding that has not only begun, but has fully the filing of such a motion both before and after the initiation completed. of a court proceeding. See 18 U.S.C. § 3771(d)(3). The controlling statutory interpretation "principle in this case is Further, the Majority's reading of the CVRA—as requiring the basic and unexceptional rule that courts must give effect that the "[m]otion for relief" be filed only in an ongoing to the clear meaning of statutes as written." P a Est. of Cowart proceeding—creates two statutory interpretation problems. tt Nicklos Drilling Co., 505 U.S. 469, 476, 112 S.Ct. 2589, First, it effectively reads the phrase "if no prosecution is 120 L.Ed.2d 379 (1992). The Majority can point to no canon underway" out of the statute—a highly disfavored practice. of statutory construction that would justify deviating from the See Scalia & Garner, supra, at 174 ("The surplusage canon plain and ordinary meaning of the statute. 22 holds that it is no more the court's function to revise by subtraction than by addition. ... As Chief Justice John Moreover, as previously explained, there are other instances Marshall explained: 'It would be dangerous in the extreme to in the federal rules where the single word "motion," using its infer from extrinsic circumstances, that a case for which the general, ordinary meaning, encompasses either a filing in an words of an instrument expressly provide, shall be exempted ongoing court proceeding or a freestanding filing in a district from its operation.' " (quoting !I I Sturges v. Crowninshield, court outside the context of a court proceeding. See Fed. R. 17 U.S. (4 Wheat.) 122, 202, 4 L.Ed. 529 (1819))). WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 40 EFTA00074638 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 offense was committed."); Advisory Committee's Notes on Second, the Majority's reading also impermissibly adds to the 1944 Adoption of Fed. R. Crim. P. 18.23 text of the statute the following requirements: (I ) all motions for relief must be filed in a preexisting court proceeding In short, when engaging in statutory interpretation, we abide (or after an indictment is filed); and (2) a crime victim can by the maxim that "[w]here the language Congress chose to never file a freestanding motion for relief. See L a Friends express its intent is clear and unambiguous, that is as far of Everglades it S. Fla. Water Mgmt. Dist, 570 F.3d 1210, as we go to ascertain its intent because we must presume 1224 (11th Cir. 2009) ("[W]e are not allowed to add or that Congress said what it meant and meant what it said." subtract words from a statute; we cannot rewrite it."); see United States v. Strickland, 261 F.3d 1271, 1274 (11th Cir. also f Blount it Rizzi, 400 U.S. 410, 419, 91 S.Ct. 423, 27 2001) (quoting f United States v. Steele, 147 F.3d 1316, L.Ed.2d 498 (1971) ("[I]t is for Congress, not this Court, to 1318 (11th Cir. 1998) (en bane)). The Majority's insistence rewrite the statute."). that the CVRA's language—"motion for relief' and "if no prosecution is underway"—could be read to refer only to Moreover, § 377I(dX3) directs that "if no prosecution is post-judgment proceedings turns this fundamental tenet of underway" a motion for relief must be filed "in the district statutory interpretation on its head. Rather, we must presume court in the district in which the crime occurred." See IR that Congress "meant what it said," which is that in cases like U.S.C. § 3771(d)(3). This directive reveals the flaw in the this one where a prosecution is not yet "underway," victims Majority's interpretation of the phrase "if no prosecution are able to assert their "pre-charge" rights in motion for relief is underway." Specifically, reading § 3771(d)(3)'s "if no filed "in the district court in the district in which the crime prosecution is underway" language to refer only to post- occurred," which is what Wild did here. 24 judgment proceedings might require a victim to file a motion for relief in the district where the crime occurred in which there is no pending or closed court proceeding because the 3. Misapplication of § 3771(d)(6) defendant was prosecuted in a different district. In other In further support of its interpretation of § 3771(d)(3)'s words, the motion for relief would initiate a freestanding "motion for relief' and "no prosecution is underway" cause of action, something the Majority insists the statute language, the Majority emphasizes that § 3771(d)(6) does not authorize. The Majority contends that this "supposed explicitly precludes causes of action "for damages," which oddity" is alleviated because, under the Sixth Amendment, also supposedly demonstrates that Congress did not intend for the district where the crime occurred will "almost always" be a "motion for relief' to initiate a freestanding *1308 private the district in which the defendant is charged and prosecuted. cause of action. See 18 U.S.C. § 3771(d)(6) ("Nothing in this See U.S. Const. amend. VI (granting the accused the right to chapter shall be construed to authorize a cause of action for be tried "by an impartial jury of the State and district wherein damages ...."). But § 3771(d)(6) actually supports the remedy the crime shall have been committed."). But this explanation pursued in this case. falls short. Notably, the statute says nothing about the sort ofdeclaratory First, had Congress intended the phrase "if no prosecution or injunctive relief the victims sought here. While we is underway" to mean that victims shall file a post-judgment generally "do not expect Congress to 'expressly preclude' motion for relief in the district court in which *1307 the defendant was charged or prosecuted, it could easily have said remedies,"I/ a Christ it Beneficial Corp., 547 F.3d 1292, 1298 so explicitly. (11th Cir. 2008), it follows necessarily that where Congress has done so, as in the CVRA, courts should be hesitant to Second, there are numerous circumstances—such as exclude other remedies not listed in the preclusive language. continuing offenses and offenses consisting of several transactions—in which a defendant is prosecuted in a C See a Transamerica Mortg. Advisors, Inc. it Lewis, 444 U.S. 11, 19, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979) ("[I]t is an different district than the one in which the crime occurred, elemental canon of statutory construction that where a statute notwithstanding the Sixth Amendment. See Fed. R. Crim. expressly provides a particular remedy or remedies, a court P. 18 ("Unless a statute or these rules permit othenvise, the government must prosecute an offense in a district where the must be chary of reading others into it."); Franklin it Gwinnett Cnty. Pub. Schs., 503 U.S. 60, 66, 112 S.Ct. 1028, WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 41 EFTA00074639 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 117 L.Ed.2d 208 (1992) ("[W]e presume the availability ofall any possibility that Congress intended to allow victims to appropriate remedies unless Congress has expressly indicated file a stand-alone action to enforce any pre-charge rights otherwise."). To be sure, if Congress intended to preclude all the CVRA might grant them. In support of its position, causes of action regardless of the relief sought, it would have the Majority primarily points to Sandaval's statement been unnecessary to carve out money damages explicitly from that "[t]he express provision of one method of enforcing a the panoply of potential relief. See? Delgado it U.S. All5P substantive rule suggests that Congress intended to preclude Gen., 487 F.3d 855, 862 (11th Cir. 2007) ("[W]here Congress others." t 532 U.S. at 290, 121 S.Ct. 1511. The Majority's knows how to say something but chooses not to, its silence is reasoning is flawed. controlling." (quotations omitted)). Thus, because Congress precluded causes of action for damages expressly, but did First, the Majority misunderstands the breadth of the holding not mention declaratory or injunctive relief, there is no basis for concluding that Congress intended to preclude such other in IF Sandoval. .Sandoval involved private plaintiffs seeking to enforce agency regulations under § 602 which forms ofrelief. 25 contained no rights-creating language and set forth a comprehensive enforcement scheme for agencies to enforce D. Misapplication of Sandoval to the administrative- their own regulations. P I Sandoval's recognition that the enforcement scheme in § 3771(0 administrative enforcement scheme set forth in § 602 undermined any "congressional intent to create privately I now turn to the Majority's argument that, under Sandoval, enforceable rights" under § 602 did not alter its parallel the existence of the administrative-enforcement scheme in recognition that plaintiffs had a private right of action § 3771(0 counsels against and "undermines any suggestion to enforce their statutory rights under § 601—which that (without saying so) [Congress] intended to authorize contained rights-creating language similar to the CVRA. It crime victims to file stand-alone civil actions in federal follows, therefore, that notwithstanding the existence of the court." I disagree because nothing in the administrative- enforcement scheme in § 3771(0, nothing precludes crime enforcement scheme evidences any congressional intent to victims from pursuing the judicial enforcement mechanism preclude the availability of the statutory legal mechanism set forth in § 3771(d)(3) to enforce their CVRA rights. Congress expressly provided for in § 3771(d)(3) where "no prosecution is underway." Moreover, as explained further, Indeed, under the Majority's own analysis, the CVRA crime victims whose rights are violated *1309 in the pre- expressly grants two possible remedial paths to crime victims charge phase cannot avail themselves of the administrative post-indictment: both administrative andjudicial enforcement of CVRA rights. Specifically, the Majority admits that if the scheme. 26 government files an indictment, victims can file a motion for relief in a district court in that ongoing court proceeding or an Section § 377I(0 directs the Attorney General to "promulgate administrative complaint filed with the DOJ under § 3771(0. regulations to enforce the rights ofcrime victims and to ensure Therefore, under the Majority's own analysis, the existence compliance by responsible officials with the obligations" of the administrative remedy in § 3771(0 does not preclude set out by statute. 18 U.S.C. § 3771(f)(1). Following this the express judicial remedy in § 3771(d), much less show directive, DOJ adopted administrative regulations, codified Congress intended to preclude that judicial remedy in *1310 at 28 C.F.R. § 45.10, that set forth an administrative favor ofthe § 3771(f) administrative scheme for crime victims "[c]omplaint process" and state that a victim's complaint whose rights have been violated in the pre-charge context. "shall contain ... [t]he district court case number" and "[t]he name of the defendant in the case." 28 C.F.R. § 45.10(c) Second, and perhaps most critically, the Majority's analysis (2)(iii)-(iv). If CVRA violations are found, DOJ officials forecloses all remedial paths to crime victims pre-indictment may impose "disciplinary sanctions" and "[a] complainant because the administrative-enforcement scheme in the CVRA may not seek judicial review of the [DOD's] determination regarding the complaint." Id. § 45.10(c X8). is not available to the victims in this case. In t[ Sandoval, it was not just that § 602 provided an alternative means to The Majority argues that the regulations create a "robust enforce the regulations; it was that the alternative means were administrative-enforcement scheme" which "undermines" actually available to enforce the regulation that the plaintiffs WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. EFTA00074640 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 sought to enforce. In other words, the Supreme Court's ruling seek judicial review of the DOT decision in a United States in ? Ti Sandoval did not leave the government free to run afoul Court of Appeals. Id. at 1354-57. We concluded that the of regulations promulgated under § 602, it simply recognized two administrative enforcement mechanisms paired with the that the statute prescribed a different enforcement mechanism *1311 right to seek judicial review "strongly undermine[d] the suggestion that Congress also intended to create by to address the government's violation. 532 U.S. at 290-91, implication a private right of action in a federal district court 121 S.Ct. 1511. But the administrative remedy in § 3771(f) requires that a victim's complaint contain a "district court but declined to say so expressly."? a Id. at 1357. case number" and "[t]he name of the defendant." 28 C.F.R. § 45.10(c)(2Xiii)—(iv). Therefore, crime victims, like those This case is materially different from ?"Love. First, unlike in this case, who suffer violations of their CVRA rights in the ACAA, the CVRA expressly grants crime victims a right the pre-charge period when there is no prosecution underway, to file a motion for relief directly in a district court. See would not be able to avail themselves of this administrative 18 U.S.C. § 3771(d)(3). Thus, the question in bile— remedy. 27 whether there was an implied private remedy available for violations of the ACAA—is materially different from 1. The Majority also argues that our post-t Sandoval decision the question in this case. Second, under the administrative in ? u Love v. Delta Air Lines supports the conclusion that the enforcement scheme of the ACAA, individuals who believed creation of the administrative scheme in § 377I (0 undermines they were discriminated against had a right to file an any possibility that Congress intended for crime victims to administrative complaint and to seek judicial review of be able to file freestanding actions to enforce their CVRA the final administrative decision. Here, it is clear that the CVRA grants crime victims certain rights that attach pre- rights, but the Majority's reliance on ? Love is misplaced. charge, but, as discussed previously, crime victims cannot V :I seek to vindicate violations of those rights through the In Love, we held that no implied private cause of action existed under the Air Carrier Access Act of 1986 ("ACAA"), administrative scheme in § 3771(0. This difference makes ? 1 49 U.S.C. § 41705, for disabled individuals alleging it clear that Love—and Sandoval for that matter—are a violation of the ACAA's antidiscrimination provision. 28 distinguishable. ?1 310 F.3d at 1358-59. In reaching this holding, we applied Moreover, because the administrative-enforcement scheme in _I § 3771(0 is not available to the victims here, the Majority's the principles set forth in ? Sandoval, emphasizing that the focus was on interpreting the ACAA to determine ruling—that the CVRA does not authorize a freestanding whether it displayed a congressional "intent to create not cause of action—leaves Epstein's victims completely without a remedy for the violation of their CVRA rights, despite just a private right but also a private remedy." ? l id. at the existence of rights-creating language in the CVRA and 1352 (quotation omitted). We noted that it was "indisputable Congress's creation of a judicial remedy even when there is that the ACAA d[id] not expressly provide a private "no prosecution underway." entitlement to sue in district court," and, therefore, if there was a private remedy, it would be an implied remedy. Accordingly, as explained previously, the Majority's Id. at 1354. However, "the surrounding statutory and misapplication of t Sandoval and its flawed statutory regulatory structure create[d] an elaborate and comprehensive interpretation of the CVRA as a whole results in its erroneous enforcement scheme that belie[d] any congressional intent to create a private remedy." ? I Id. Specifically. § 41705 holding that there is no 'Sandoval-qualifying" clear expression of congressional intent to authorize a private right provided for "three separate enforcement mechanisms": of action to enforce CVRA rights until after an indictment is (I) individuals could file an administrative complaint with filed. Contrary to the Majority, I would hold that the CVRA's the Department of Transportation ("DOT"), and DOT was plain text, structure, and "the physical and logical relation of required to investigate all complaints with its broad sanction its many parts" provides crime victims with a clear statutory powers; (2) the air carriers were required to have internal remedy to seek to enforce their statutory rights "pre-charge." dispute resolution mechanisms; and (3) individuals "with See Scalia & Garner, supra, at 167. a substantial interest in a DOT enforcement action" could WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 43 EFTA00074641 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 "shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction." IS U.S.C. § 377 I (d)(6). V. PROSECUTORIAL DISCRETION In an attempt to overcome the plain language of the CVRA, Second, the plain language of § 377I(a)(5) similarly makes the Majority emphasizes policy concerns that permitting it clear that no such intrusion on prosecutorial discretion victims to file a motion for relief in a federal district court— will occur. Specifically, § 3771(a)(5) does not simply grant in the absence of a preexisting indictment or court proceeding victims an unfettered conferral right. Rather, it merely grants a —would result in a number of ills, chief among them "reasonable" conferral right, and reasonableness is a common "unduly impairing prosecutorial discretion." But statutory and forceful limiting principle that is familiar throughout interpretation begins and ends with the plain language of the the legal field. See, Hardy v. Cross, 565 U.S. 65, statute, and we are required to enforce that plain meaning 69-70, 132 S.Ct. 490, 181 L.Ed.2d 468 (2011) (explaining even if the proper interpretation raises policy concerns. See that for purposes of the Sixth Amendment's Confrontation ?" Eldred v. Ashcroft, 537 U.S. 186, 222, 123 S.Ct. 769, 154 Clause, the "lengths to which the prosecution must go L.Ed.2d 683 (2003). "The wisdom of Congress' action ... is to produce a witness" is a "question of reasonableness"); not within our province to second guess." ? a Id. 29 *1312 ? II Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, But even assuming arguendo that such policy concerns could 136 L.Ed.2d 347 (1996) ("We have long held that the justify abandoning the plain text of the statute, the Majority's 'touchstone of the Fourth Amendment is reasonableness.' "); concerns fall apart upon closer inspection. 3 Thornburgh v. Abbott, 490 U.S. 401, 413, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989) (prison regulations affecting the For example, the Majority and Judge Tjoflat's concurring sending of publications to prisoners must be analyzed under opinion explain that enforcing victim's rights pre-charge a reasonableness standard); ? a Strickland v. Washington, 466 would require judges to identify victims and would risk judicial interference with ongoing "law-enforcement raids, U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) warrant applications, arrests, witness interviews, lineups, ("The proper measure of attorney performance" under the Sixth Amendment "remains simply reasonableness under and interrogations." In other words, pre-charge enforcement would permit victims and/or judges to exert "undue prevailing professional norms."); ? 3 Hensley v. Eckerhart, influence" over each step of criminal investigations and 461 U.S. 424, 426, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) the government's charging decisions. I disagree because the (explaining that "in federal civil right actions the court, in text of the CVRA alleviates any concern that pre-charge its discretion, may allow the prevailing party, other than the enforcement would unduly impair prosecutorial discretion. United States, a reasonable *1313 attorney's fee as part of the costs" (quotation omitted)). As an initial matter, the Majority, Judge Tjoflat's concurring opinion, and I agree that the Executive has exclusive and Furthermore, equally as limiting as the reasonableness complete authority over charging decisions. See? li United principle is that the conferral right granted to victims in § States v. Nixon, 418 U.S. 683, 693, 94 S.Ct. 3090, 41 377I(a)(5) is limited to conferral "with the attorney for the L.Ed.2d 1039 (1974) ("[T]he Executive Branch has exclusive Government in the case"—not with police or investigators. authority and absolute discretion to decide whether to See 18 U.S.C. § 377 I (a)(5). And nothing in the CVRA suggests any steps or decisions that a prosecutor must take or prosecute a case ...."); see also Heckler v. Chaney, 470 make in his charging decision. Thus, a plain reading of the U.S. 821, 832, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) statute indicates that there will be no judicial interference with ("[T]he decision of a prosecutor in the Executive Branch not a prosecutor's decision. If a prosecutor, after speaking with to indict ... has long been regarded as [within] the special the victim, decides not to prosecute or take the case to a grand province of the Executive Branch."). Section 377I(a)(5) in no jury, there will be no violation for the district court to remedy. way undercuts this fundamental precept. The Majority's and Judge Tjoflat's concurring opinion's First, § 377I(d)(6) expressly prohibits interference with parade ofhorribles about mini-trials to identify crime victims prosecutorial discretion by mandating that nothing in the Act and conferral "pre-charge" are red herrings. In the mine-run WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 44 EFTA00074642 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 of cases that have advanced to the stage where a government in the original mandamus petition in this Court: whether the attorney is assigned, it will be obvious—as it was in this case district court correctly concluded that, given Epstein's death, —who the identifiable victims are. The government's actions no remedy was available. in this case prove this point: AUSA Villafwia acknowledged the status of petitioner and others as "victims" of Epstein The Majority admits that it is drawing a "line limiting judicial and sent them a letter stating that "as a victim ... of a enforcement to the post-charge phases of a prosecution"— federal offense, you have a number of rights," including one that "marks a clear and sensible boundary on the "[t]he reasonable right to confer with the attorney for the prosecutorial-discretion spectrum" and "squares with the United States in the case" and "[t]he right to be treated with background expectation of judicial involvement." The flaw fairness and with respect for the victim's dignity and privacy." is that the Majority's line-drawing is of its own making AUSA Villafatla had no trouble identifying Epstein's victims and does violence to the statutory text. See I` Rostock %: as "crime victims" under the statute and treating them as Clayton Cry., Georgia, 590 U.S. —, 140 S. Ct. 1731, 1823, such. 30 207 L.Ed.2d 218 (2020) (Kavanaugh, J., dissenting) ("[O]ur role as judges is to interpret and follow the law as written, Moreover, the Majority's concern about impairment of regardless of whether we like the result ... [it] is not to make prosecutorial discretion applies equally post-indictment. or amend the law"); SeeP U Harbison v. Bell, 556 U.S. 180, Specifically, the Majority does not dispute that, post- 199, 129 S.Ct. 1481, 173 L.Ed.2d 347 (2009) (Thomas, J., indictment, the conferral right in § 3771(a)(5) attaches and is concurring) (A statute's "silence with respect to a [temporal or enforceable via a motion for relief under § 377l (d)(3). Given procedural] limitation in no way authorizes [courts] to assume the number of discretionary post-indictment decisions a that such a limitation must be read into [the] subsections ... prosecutor may make—reducing charges, upgrading charges, in order to blunt the slippery-slope policy arguments of those dismissing charges, and granting immunity—it is unclear opposed to a plain-meaning construction of the provisions how the mere filing of an indictment alleviates the concerns under review."). about "unduly impairing prosecutorial discretion." Rather, the same concerns set forth *1314 by the Majority are present For all of these reasons, I respectfully dissent. regardless of whether a motion for relief is filed in the pre- charge phase or the post-indictment phase, which leads to the conclusion that these prosecutorial discretion concerns are overblown. Therefore, concerns about undue interference HULL, Circuit Judge, dissenting: with prosecutorial discretion exist regardless of whether a Respectfully, I join Judge Branch's Dissent in full. I write motion for relief under § 377I(d)(3) is filed pre- or post- separately to add five points. To start, I discuss how the indictment. In any event, the CVRA expressly precludes such Majority skips over the first en banc issue and why we should interference; thus, this concern certainly provides no basis answer whether the Epstein victims' statutory conferral rights for ignoring the plain language of the statute. Accordingly, in § 3771(a) attached pre-charge. That issue was the basis in enforcing the plain language of the CVRA, prosecutorial of the Panel opinion and was briefed and argued en banc. It discretion is in no way compromised. involves an important legal issue of first impression in ow Circuit. Significantly too, deciding whether under § 3771(a) Ms. Wild had statutory conferral rights pre-charge that were violated is integral to this ongoing dispute and the proper VI. CONCLUSION statutory interpretation of whether the remedy provision in § I would decide both en bane issues and hold that the CVRA's 377I(d) applies pre-charge. plain text: (1) granted the crime victims two statutory rights that attached in the "pre-charge" period—the reasonable right Second, as to the merits of that first en banc issue, I agree to confer with the attorney for the Government and the right to with Judge Branch's Dissent that under the plain language be treated with fairness and respect; and (2) granted the crime of the CVRA victims have reasonable rights to confer with victims a statutory remedy—a private right to seek judicial prosecutors and these rights attach pre-charge, and that the enforcement of their statutory rights. See 18 U.S.C. § 3771(a) Epstein victims' rights were violated. Branch Dissenting Op. (5), (a)(8) and (d)(3). Therefore, I would remand the case back at 1298. to the panel to address in the first instance the issue raised WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 45 EFTA00074643 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 Yet, to the extent one credits the Majority's concerns about Cir. 2020). The Panel later stated: "[W]e hold that the prosecutorial discretion, I set forth a narrow "conferral right" CVRA does not apply before the commencement of criminal *1315 ruling in Section 11.A., which holds that after the proceedings—and thus, on the facts of this case, does not government signed the Agreement, the Epstein victims had provide the petitioner here any judicially enforceable rights." conferral rights under § 377I(a)(5). Once the ink was dry ! rn Id. at 1220. The Panel reasoned: "The facts that the on the Agreement, the U.S. Attorney had exercised his CVRA (I) does not sanction freestanding suits and (2) does discretion and made his charging decision. The government's prescribe mid-proceeding "motion[s]" combine—especially post-Agreement misconduct—not conferring and telling the in conjunction with subsection (a)'s enumeration—to indicate victims about the Agreement, its terms, and upcoming state that the Act's protections apply only after the initiation of court events for nearly a year—alone is sufficient to establish CVRA violations. While not all the conferral rights that the criminal proceedings." R Id. at 1210 (alteration in original). victims request, this narrower ruling would decide the merits of the first issue and tee up concretely the second issue. The Majority now says "we needn't decide whether, in the abstract, the rights to confer and to be treated with fairness It might attach prior to the formal commencement of criminal Third, as to the second issue, I discuss t Sandoval in detail proceedings." Maj. Op. at 1251-52. Good gracious, there's because the Majority uses snippets out of context and fails to nothing abstract about this case. The Majority admits that the r tell the whole Sandoval story. In t Sandoval there was no facts are "beyond scandalous" and the victims were not only "left in the dark," but "affirmatively misled" by government statute granting a private right of action, and [he l 'Sandoval attorneys. Maj. Op. at 1247. To add insult to injury, the inquiry was whether to imp_ly a private right of action for Majority refuses to answer the first en banc question as Ms. Sandoval to enforce agency regulations. Here, though, to whether the Epstein victims had any CVRA rights that the question is whether a specific statute, § 3771(d) enacted attached pre-charge. by Congress, exprmly grants Ms. Wild, as a crime victim, a private right of action to enforce her own CVRA statutory Moreover, that first en bane question—whether the CVRA rights (not agency regulations). I explain how the Majority in § 3771(a) granted victims rights that attach pre-charge— misapplies f Sandoval. is an integral part of the proper statutory interpretation of the remedy provision in *1316 § 377I(d), which refers back to Fourth, I review the Amicus Brief of three U.S. Senators those § 3771(a) rights. Indeed, both the Majority and Chief that also supports Judge Branch's conclusion that the CVRA's Judge Pryor's concurrence examine the CVRA as a whole plain text does not condition a victim's rights and remedy and look to various subsections of the CVRA to support their upon a preexisting indictment. Fifth, I discuss why the conclusion that § 377I(d) does not grant Ms. Wild a private Majority's ruling has far-reaching consequences beyond the cause of action. Pryor Concurring Op. at 1316-18 ("We Epstein case. Construe Statutes by Reading the Whole Text, Not Individual Subsections in Isolation."); Maj. Op. at 1259-61, 1263-66 (examining other subsections of § 3771 and concluding they support its statutory interpretation of § 3771(d)(3)). Yet they I. FIRST EN BANC ISSUE: CONFERRAL RIGHTS refuse to decide whether the subsection (a)(5) and (8) rights apply "pre-charge." If the CVRA grants the victims rights that The conferral-right issue is an important legal question of first do attach pre-charge—as the plain language of § 377I(a)(5) impression in our Circuit. But the Majority blithely skips over and (a)(8) suggests—that would also support Judge Branch's the issue, although it was the basis of the Panel opinion and conclusion that § 377I(d) provides Ms. Wild a private cause is now the first en bane issue briefed and argued. of action to enforce those rights in the pre-charge period before an indictment. Indeed, the Panel opinion squarely held: "We hold that at least as matters currently stand—which is to say at least We should also decide the first issue as to pre-charge rights, as the CVRA is currently written—rights under the Act do given: (1) the Epstein victims' perseverance in litigating the not attach until criminal proceedings have been initiated rights issue for a decade and obtaining en banc review of against a defendant, either by complaint, information, or the rights issue, that was forthrightly decided by the Panel indictment." In re Wild 955 F.3d 1196, 1198 (11th WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 46 EFTA00074644 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 opinion; (2) the seriousness of the federal sex-trafficking exploring every aspect of a multifaced situation embracing crimes against petitioner Wild and the other 30-plus minor conflicting and demanding interests" (quoting United States victims; (3) the government's egregious misconduct; and (4) v. Fruehauf, 365 U.S. 146, 157, 81 S. Ct. 547, 554, 5 L.Ed.2d the fact that if the Epstein victims' CVRA rights attached pre- 476 (1961)). charge, the government's misconduct undisputedly violated them. It defies basic fairness for the Majority, at this late Contrary to the concurrence, the first issue remains stage, to avoid answering whether the Epstein victims had any justiciable, and answering it would not be an advisory CVRA rights pre-charge. opinion. There is and has been a live controversy between Ms. Wild and the government as to the scope of her conferral Chief Judge Pryor's concurrence alleges that our answering right under the CVRA and the government's violations of her the first question would be issuing "an advisory opinion" rights. That genuine controversy did not end simply because to the Executive Branch. Pryor Concurring Op. at 1269-72. the Majority decided to dispose of her lawsuit on a procedural Invoking Article III of the Constitution, his concurrence states ground without deciding the rights issue. that (1) an advisory opinion is one "that interpret[s] laws without resolving cases or controversies": (2) "[n]o principle The concurrence also alleges (1) "our answer to the first is more fundamental to the judiciary's proper role in ow question would be an alternative holding only if we ... system of government" than the "constitutional limitation" concluded that the Act does not confer any pre-charge rights, imposed by Article Ill; and (3) the "prohibition against judicially enforceable or otherwise"; but (2) if we "say that advisory opinions is the oldest and most consistent thread the Act does confer pre-charge rights, those rights would in the federal law of justiciability." Pryor Concurring Op. not be judicially enforceable and our resolution of this at 1270-71 (quotation marks omitted). His theory seems to petition for a writ of mandamus would not change," and be that the victims-rights issue became non-justiciable the thus our ruling on the rights issue would be an advisory moment a majority of this Court concluded the CVRA did not opinion. But the justiciability of both merits and procedural provide Ms. Wild with a pre-charge remedy for any violation issues depend on whether an underlying case or controversy of her statutory rights. This advisory-opinion theory is flawed, exists and remains—not on the outcome the court reaches disregards the live controversy between the Epstein victims as to either issue. The federal law is replete with cases in and the government as adverse parties, and disrespects the which courts address two issues in the alternative, ruling concrete injury to those victims. alternatively on both the merits and procedural issues in cases, even though the resolution of the appeal or petition Article Ill of the Constitution grants our Court the power does not change. See. e.g., Riechmann v. Fla. Dep't of to decide "Cases" or "Controversies." U.S. Const. art. Ill, § Colt, 940 F.3d 559, 580 (11th Cir. 2019) ("Although we 2. That constitutional phrase "require[s] that a case embody conclude that the district court properly determined that a genuine, live dispute between adverse parties, thereby Riechmann's Brady claim was procedurally defaulted, we preventing the federal courts from issuing advisory opinions." will briefly address the substance of the underlying Brady P a Carney v. Adams, 592 U.S. —, 141 S. Ct. 493, 498, 208 claim, which we alternatively find lacks merit."); Echols L.Ed.2d 305 (2020). As the Supreme Court has explained, v. Lawton 913 F.3d 1313, 1323 ( 1 1 th Cir.), cert. denied this "longstanding legal doctrine" prevents courts from (1) — U.S. —, 139 S. Ct. 2678, 204 L.Ed.2d 1070 (2019) "providing advisory opinions at the request of one who, (concluding that while a plaintiffs "complaint state[d] a claim without other concrete injury, believes that the government is of retaliation under the First Amendment," the defendant was not following the law," and (2) ruling on hypothetical legal nonetheless entitled to qualified immunity because he did not issues, the answers to which have no effect on the relationship violate a First Amendment right that was clearly established); between the parties before them. lil a at 501 (emphasis Dukes v. Deaton 852 F.3d 1035, 1041 (11th Cir. 2017) ("Although we conclude that [the officer's] conduct violated added); see also f Flast v. Cohen, 392 U.S. 83, 96-97, 88 the Fourth Amendment, qualified immunity protects him S. Ct. 1942, 1951, 20 L.Ed.2d 947 (1968) (noting that suits from suit because his violation was not clearly established in which courts are asked to render advisory opinions "are not pressed before the Court with that clear concreteness in law when he acted."); Cinder v. City of Auburn. Ala. provided when a question emerges *1317 precisely framed 618 F.3d 1240, 1266-67 (11th Cir. 2010) (concluding, as and necessary for decision from a clash of adversary argument to qualified immunity. that (1) no constitutional violation WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 47 EFTA00074645 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 occurred, and (2) "[a]lternatively, at a minimum, Plaintiffs have not shown [the defendant] violated clearly established In addition, I already expressed my view that after the prosecutors concluded their investigation, drafted a 53-page federal law"); Bundy v. Dugger 850 F.2d 1402, 1414 (11th indictment against Epstein, and began plea negotiations with Cir. 1988) ("Alternatively, if the procedural default doctrine Epstein's defense team, they had a legal obligation under did not preclude us from examining the merits of the Faretta the CVRA to confer with the victims before executing the inquiry claim, we would conclude that [petitioner] was not secret plea Agreement. See I I In re Wild 955 F.3d at entitled to relief on this ground."); F d Smith v. Local No. 1250. Requiring an "attorney for the Government" to merely 25. Sheet Metal Workers Intl Ass'n 500 F.2d 741, 744-45 speak with a victim pre-charge in no way interferes with (5th Cir. 1974) (reviewing a court's order of "dismissal for prosecutorial discretion. After speaking with a victim, the lack of subject matter jurisdiction or alternatively a *1318 prosecutor retains exclusive discretion over whether to indict grant of summary judgment on the merits"). 2 Furthermore, or grant immunity. If a prosecutor confers, there is then no "in this circuit additional or alternative holdings are not dicta, CVRA violation for a victim to complain about in a court. but instead are as binding as solitary holdings." ? Bravo v. United States 532 F.3d 1154, 1162 (1I th Cir. 2008). But to the extent one nonetheless credits the Majority's concerns about possible interference with prosecutorial The mere fact that a court has decided one issue—procedural discretion, I set forth below a narrow conferral-right ruling or otherwise—that is capable of resolving a case on its own based on only the time period after the prosecutor exercised does not mean that no case or controversy exists and remains his discretion, made his charging decision, and executed the as to the other issue. The Panel opinion's holding—that Ms Agreement. Wild's CVRA rights did not attach pre-charge—was not an advisory opinion. And that holding alone resolved the case A. Alternative Ruling: Conferral Right After the at the Panel stage. It makes no sense to conclude that this Court at the Panel stage properly decided the justiciable issue Agreement's Execution of whether Ms. Wild's rights under the CVRA attached pre- The Majority concedes that: (1) after the Agreement's charge only up and until it concluded at the en banc stage that execution, the "prosecutors worked hand-in-hand with the Congress provided her with no cause of action to enforce Epstein's lawyers ... to keep the [September 2007] any rights she might have. NPA's existence and terms hidden from victims"; (2) the government's efforts graduated to "active misrepresentation"; Perhaps it's strategic to bypass the rights issue altogether, as and (3) "it wasn't until July 2008—during the course of this the Majority does, rather than to hold Ms. Wild has CVRA litigation—that Ms. Wild learned of the NPA's existence, rights that were violated but no remedy as to the government's and until August 2008 that she finally obtained a copy of misconduct. But it is wrong and a disservice to suggest the agreement." Maj. Op. at 1248-49. Once the Agreement that our Court's ruling on whether Ms. Wild had conferral was signed, the U.S. Attorney had exercised his prosecutorial rights pre-charge would constitute an impermissible advisory discretion and was required to confer with and tell the victims. opinion. 3 The prosecutors well knew this, writing Epstein's defense team that they must notify the victims about the Agreement and upcoming state plea. II. NARROW RULING: TIME PERIOD AFTER THE AGREEMENT Thus, as an alternative merits ruling on the first en banc issue, I would hold that after the prosecutor executed the Judge Branch's Dissent ably discusses why the CVRA's § Agreement with Epstein, (1) his victims had a reasonable 377I(a)(5) grants crime victims a "reasonable" conferral right right to confer with the prosecutor under § 377I(a)(5), and with *1319 "the attorney for the Government" and how (2) the government violated their rights by not disclosing the that conferral right attaches pre-charge and is not textually Agreement, its terms, and upcoming state court events, and by conditioned on a preexisting indictment or formal charge. I misrepresenting the case status. Such a narrow ruling is alone agree with her plain-text reading and that the government sufficient to establish the merits of Ms. Wild's conferral-right violated the Epstein victims' rights. claim, and permits her claim to proceed. WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 48 EFTA00074646 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 interfere with the prosecutor's discretion is all we need to say. How constitutional doctrines protecting prosecutorial B. Majority Repositions Its Blanket Post-Indictment discretion interact with the CVRA in other factual scenarios Restriction from Conferral Right to Private Right of Action are questions for future cases. See P a Bostock v. Clayton Cty. Ga. 590 U.S. —, 140 S. Ct. 1731, 1749, 1753-54, It is telling too that, at the panel stage, the Panel Majority 207 L.Ed.2d 218 (2020) (stating that "no ambiguity exists added a blanket post-indictment restriction to the conferral- about how Title VII's terms apply to the facts before us" and right text in 4 3771(a)(5) and held victims had no conferral that while "the [defendant] employers fear that complying with Title VIPs requirement in cases like ours may require rights before an indictment was filed. 1 In re Wild, 955 some employers to violate their religious convictions," how F.3d at 1198. The Panel Majority feared that recognizing "doctrines protecting religious liberty interact with Title VII a conferral right pre-indictment created these problems: (1) are questions for future cases"). On these facts, the victims' undue interference with prosecutorial discretion; (2) the need for mini-trials to identify the victims and the federal CVRA rights were violated! offenses committed; and (3) federal judges' "injunctions requiring(for instance) consultation with victims before raids, warrant applications, arrests, witness interviews, lineups, and III. PRIVATE RIGHT OF ACTION & SANDOVAL interrogations."I Id. at 1216-18. As to the second en banc issue, I join Judge Branch's holding that the CVRA's text in § 3771(d)(3), as written by Congress, Now the en banc Majority (1) bypasses the conferral-rights expressly granted Ms. Wild a private right of action to file issue altogether, (2) transposes those exact same fears over a "[m]otion for *1321 relief' to enforce CVRA rights "in to the second issue as to a private right of *1320 action, the district court in the district in which the crime occurred" and (3) adds the blanket post-indictment restriction to the when "no prosecution is underway." 18 U.S.C. § 3771(dX3). private-right-of-action text in § 3771(d). It repositions the Because the CVRA expressly grants a judicial enforcement same arguments from the conferral-right issue to the private- mechanism, I need not and do not seek to imply a cause of right-of-action issue. Even if one credits those concerns, they action. evaporate under my narrow holding in Section II.A. that afler the U.S. Attorney signed the Agreement, the victims had Furthermore, the Majority and concurring opinions heavily conferral rights that the government violated. 4 rely on Sandoval where the inquiry was whether to imply a private right of action for Ms. Sandoval to enforce agency C. A Holding Limited to the Facts Before Us regulations. Here, though, the question is whether a specific statute, § 3771(d) enacted by Congress expressly grants Ms. The Majority and concurring opinions posit multiple Wild, as a crime victim, a private right of action to enforce operational difficulties if victims may file a freestanding her own CVRA statutory rights (not agency regulations). motion in future cases. Although the CVRA expressly allows a motion for relief when "no prosecution is underway," Because the Majority uses snippets of t[ Sandoval out of 18 U.S.C. § 3771(d)(3), their opinions add a blanket post- context, I carefully walk the reader step-by-step through indictment restriction to the statute and conclude a motion the .1 Sandoval decision and then discuss /12 Sandoval's may be filed only when a formal prosecution is already meaning for this case. underway. $c Maj. Op. at 1247, 1265-66; Tjoflat Concurring Op. at 1282. A. Sandoval Judicial restraint counsels against fashioning a blanket rule against all applications of the CVRA statute pre-charge; yet P. Sandoval's facts. Alabama changed its written driver's the Majority does that here. There is no ambiguity in the tl license tests to English only. P Alexander v. Sandoval, 532 CVRA's statutory text, and there is no ambiguity as to how U.S. 275, 278-79, 121 S. Ct. 1511, 1515, 149 L.Ed.2d 517 the CVRA's terms apply to the facts before us. Holding (2001). Federal regulations forbid federal funding recipients, that the CVRA as applied in this particular case does not like Alabama, from using procedures that had discriminatory WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 49 EFTA00074647 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 effect. P . Id. at 278, 121 S. Ct. at 1515. Ms. Sandoval (a Spanish speaker) filed a lawsuit, as a class representative, 42 U.S.C. § 2000d-1. Section 602 has no language about "rights" and no text authorizing a private right of action. to enjoin the English-only policy as discriminatory. t Id. at 279, 121 S. Ct. at [515. The P u Supreme Court held Ms. rg Sandoval's no-right-of-action holding was only about whether § 602 authorized Ms. Sandoval to privately sue to Sandoval did not have a private right of action to enforce the agency's regulations that forbid Alabama from using policies enforce agency regulations. See Sandoval 532 U.S. at 285—86, 121 S. Ct. at 1519. with discriminatory impact. P. Id. at 281, 285, 293, 121 S. Ct. at 1517, 1519, 1523. Only the agency could enforce its ` Indeed, the § 602 inquiry in r . Sandoval was whether to regulations. t. Sandoval discussed two statutes: §§ 601 and imply a private cause ofaction for Ms. Sandoval to enforce the 602 of the Civil Rights Act. J agency's regulations. See c id. at 284-88, 121 S. Ct. at 1518— u P 1Sandoval's § 601 ruling. P I Sandoval recognized that 20. The c Sandoval Court concluded: (1) § 602 contained no under § 601, individuals had a private right of action to "rights-creating" language; (2) instead § 602 merely *1322 authorized federal agencies to issue regulations to effectuate enforce their statutory rights. P Id. at 279—80, 121 S. Ct. the provisions of § 601; and (3) thus § 602 evinced no intent at 1516. The r Sandoval Court, citing P Cannon 6 and the on Congress's part to create an individual private right of parties' concessions, took it as a given that individuals would action to enforce the agency's regulations. P Id. at 288-89, have a private right to enforce their statutory rights in § 121 S. Ct. at 1520-21. 601. V Id. But Ms. Sandoval was seeking to enforce agency regulations under § 602. P I Id. at 279, 121 S. Ct. at 1515. The P Sandoval Court found § 602's lack of any "rights- creating" language highly relevant, noting that statutes that "focus on the person regulated rather than the individuals Sandoval's § 602 ruling. The debated question in protected create no implication of an intent to confer rights tisSandoval was about the § 602 statute, which authorized on a particular class of persons." Id. at 289, 121 S. Ct. at federal agencies to issue regulations as follows: 1521 (emphasis added). The statutory language in § 602 did not focus "on the individuals protected ... but on the agencies Each Federal department and agency that will do the regulating." r l Id at 289, 121 S. Ct. at 1521. which is empowered to extend Federal financial assistance to any The P . Sandoval Court also discussed how § 602's method program or activity, by way of for enforcing regulations included the agency's "terminating grant, loan, or contract other than a funding to the particular program," such as funding recipient contract of insurance or guaranty, is J Alabama. c Id. at 289-91, 121 S. Ct. at 1521-22 (quoting 42 authorized and directed to effectuate U.S.C. § 2000d-l). The Supreme Court reasoned that § 602's the provisions of [§ 601] of this "express provision ofone method of enforcing a substantive title with respect to such program or rule suggests that Congress intended to preclude others." activity by issuing rules, regulations, V or orders of general applicability Id. at 290, 121 S. Ct. at 1521-22 (emphasis added). which shall be consistent with achievement of the objectives of Four times, the Majority cites this italicized statement the statute authorizing the financial from P Sandoval and argues the existence of the CVRA's assistance in connection with which administrative scheme in § 3771(f) suggests Congress the action is taken. intended to preclude a crime victim's private cause of action in § 3771(d). Maj. Op. at 1255-56, 1259, 1264, 1264-65. But as my detailed account of Itc Sandoval demonstrates, the WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 50 EFTA00074648 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 Majority is using this italicized statement wholly outside of As to enforcement of those statutory rights P. Sandoval its actual factual context in the ! I Sandoval decision and tells us that the presence *1323 of this "rights-creating summarily applying it to a materially different statutory text language" in a statute—here the CVRA—evinces an intent on and structure. Congress's part to create a private right of action to enforce those individual statutory rights. See ? " Sandoval 532 U.S. Summarizing, in? . Sandoval the § 602 statute contained no at 288, 121 S. Ct. at 1521. To be clear. though, we need not, language or any evidence of congressional intent to create and should not, imply a private right of action here. And we either a private right or a private remedy for Ms. Sandoval. do not rely solely on the rights-creating language in § 377 I (a) (5) and (8). As the Supreme Court notes, "[w]hen Congress Thus, the Supreme Court in ? " Sandoval held Ms. Sandoval ` intends private litigants to have a cause of action to support could not sue. So what is ? Sandoval's meaning for this case their statutory rights, the far better course is for it to specify that involves a materially different statute? P. Sandoval tells as much when it creates those rights." ? "Cannon, 441 U.S. us what we must do: examine the text and structure of the at 717, 99 S. Ct. at 1968. CVRA for evidence of congressional intent to create both a private right and a private remedy, which I do below. That is exactly what Congress did in the CVRA. In § 3771(d), Congress expressly provided a private right of action: a victim should "assert the rights described in subsection (a)" B. CVRA § 3771(d) via a "[m]otion for relief' filed "in the district court in In stark contrast to the § 602 text, the CVRA text, enacted which a defendant is being prosecuted for the crime or. if no by Congress, includes exactly the sort of "rights-creating" prosecution is underway, in the district court in the district in which the crime occurred." 18 U.S.C. § 3771(dX I ), (3). This language and private cause of action that the Sandoval sentence is written in clear English prose. Further, Congress Court found was absent from § 602. Sce id. at 288, 121 in the same sentence expressly differentiated between when a defendant is being prosecuted and when no prosecution is S. Ct. at 1521; see also ? a Love v. Delta Air Lines, 310 F.3d underway. It is linguistically implausible to read this text as 1347, 1352 (11th Cir. 2002) ("Rights-creating language is always requiring Ms. Wild to file her motion for relief in a language explicitly confer[ing] a right directly on a class of preexisting and ongoing criminal proceeding. The Majority's persons that include[s] the plaintiff in [a] case, or language counterarguments cannot overcome Judge Branch's natural identifying the class for whose especial benefit the statute was reading of this sentence or the clear commands of § 3771(d)'s enacted." (citation and quotation marks omitted) (alterations text and statutory context. in original)). The CVRA statute is replete with "rights-creating" language, C. Errors in Majority's Analysis About Sandoval such as "[a] crime victim has ... [t]he reasonable right to confer with the attorney for the Government" and "[t]he right In my view, the Majority errs in its ? I Sandoval analysis in to be treated with fairness." IS U.S.C. § 3771(a)(5), (8). The several ways. First, the Majority endlessly voices concern CVRA text, with its emphasis on a discrete class—crime victims—shows Congress's clear "intent to confer rights on that (I) the Epstein victims, like the ? I Sandoval plaintiff, are trying to "imply" a cause of action where Congress has a particular class of persons." See f Sandoval 532 U.S. at 289, 121 S. Ct. at 1521 (quotation marks omitted); sec. also not expressly created one, and (2) ? " Saps:loyal precludes "implying" a private right of action here. Maj. Op. at 1254- Geraaga_Univ. v. Doe, 536 U.S. 273, 284, 122 S. Ct. 2268, 56, 1259-61, 1263-66. The Majority opinion references 2275, 153 L.Ed.2d 309 (2002) (concluding the statute at issue implied causes of action four times. Maj. Op. at 1249- was "phrased 'with an unmistakable focus on the benefited 55, 1259, 1260, 1264. Chief Judge Pryoes concurring class.' " (quoting ?. Cannon 441 U.S. at 691, 99 S. Ct. at opinion references implied rights of action six times. Pryor 1955)). Concurring Op. at 1269-70, 1273-74. WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 51 EFTA00074649 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 Here, we need not, and do not, "imply" a private right a "practical" way to avoid judicial interference with of action because the CVRA expressly creates a judicial prosecutorial discretion and "the background expectation of enforcement mechanism: a "[m]otion for relief' filed in "the judicial involvement." 7 Id. at 1262, 1262-63, 1265-66. district court in the district in which the crime occurred." IS U.S.C. § 377I(d)(3). Our Court can, and should, stop at the plain text of the CVRA and the most natural reading of that Simply put, we are not asked, as in ? Sandoval to authorize text. an implied private right of action that is nowhere to be found in a statute. Rather, we are asked to give effect to the CVRA's Second, the Majority keeps repeating: (I) "we find no clear plain text without adding words to the statute. The Majority evidence" that Congress intended crime victims to file this accuses the Dissent and Ms. Wild of creating a remedy out of whole cloth because that outcome is "desirable" from a policy case, and (2) we find no 4 5 Sandoval-qualifying clear standpoint. Maj. Op. at 1264-65. Yet it's the Majority who expression of congressional intent." Maj. Op. at 1256, 1258 ignores the CVRA text in pursuit of its own policy concerns n.13, 1259, 1265-66, 1266, 1268-69. The Majority ignores and preferred bright-line restriction of victims' rights to a that ? I Sandoval's finding of no congressional intent to grant post-indictment period. Ms. Sandoval a private right of action was based on these key textual clues: (I) the § 602 statute had no "rights-creating language"; (2) the § 602 statute contained no text creating a IV. U.S. SENATORS' AMICUS BRIEF judicial enforcement mechanism; (3) the § 602 statute only empowered the agency to promulgate regulations and was not While the text controls, the legislative history of the CVRA enacted to benefit a discrete class of persons; and (4) the § 602 is consistent with its *1325 plain text. See ? II CBS Inc. v. statute focused on the agencies that will do the regulating, not on the individuals protected. Precisely what was missing in § PrimeTime 24 Joint Venture 245 F.3d 1217, 1229 n.7 (11th 602 is fully present in § 377I(a) and (d). And that statutory Cir. 2001) (recognizing the "bedrock principle" that there is no need to resort to legislative history where statutory text text in § 3771(a) and (d), enacted by Congress, expressly grants the Epstein victims a private right of action when no is clear, but nonetheless reviewing legislative history that prosecution is underway. "supports and complements the plain meaning of statutory language" (quotation marks omitted)); see also In re BFW Third, the Majority and Judge Tjoflat's opinions advance Liquidation, LLC 899 F.3d 1178, 1190 (11th Cir. 2018) policy reasons for the Majority's bright-line rule that are (reasoning that legislative history "bolster[ed]" our reading of unambiguous statutory text). untethered *1324 from Sandoval's analytical framework. To avoid impairing prosecutorial discretion, the Majority Senator Diane Feinstein and former Senators Jon Kyl says we need a "line limiting judicial enforcement to the and Orrin Hatch filed an amicus brief in support of our post-charge phases of a prosecution." Maj. Op. at 1262. Court's rehearing en bane the Panel's erroneous statutory The Majority also contends that "[i]nterpreting the CVRA interpretation of the CVRA. Senators Feinstein and Kyl to authorize judicial enforcement only in the context of drafted and, along with Senator Hatch, co-sponsored the a preexisting proceeding ... squares with the background CVRA. See Senators' Amicus Br. at I. All three senators expectation of judicial involvement" in a prosecutor's case. served on the Senate Judiciary Committee—with Senator Id. at 1262-63. The Majority concludes that "[r]eading Hatch as its chairman—when Congress passed the CVRA. the Act to provide a private right of action for pre- charge judicial enforcement, by contrast, contravenes the The Senators urge this Court to hold that the CVRA's plain background expectation of executive exclusivity." Id. at 1263. text in § 3771(a) grants crime victims pre-charge rights to The Majority shuts the courthouse door to the Epstein victims confer and be treated fairly, and in § 3771 (d)(3) the right to by adding a strict preexisting indictment requirement to § enforce them, "if no prosecution is undenvay," by filing a 377I(d)(3) when none exists in the text of that section. motion for relief in the district court. See id. at 7-12 (citing 18 U.S.C. § 377I(a), (d)(3)). They urge fidelity to the CVRA's As Judge Branch's Dissent explains, this is not a text as written and enacted by Congress, stressing that the straightforward, plain-text interpretation of § 377I(dX3). CVRA's text does not contain a temporal limitation and does Even the Majority admits it is "reading the Act" in not depend upon the filing of an indictment: WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 52 EFTA00074650 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 existence of a preexisting indictment or ongoing criminal Critically, as the panel majority acknowledged, its decision proceeding. "Only that policy choice, embodied in the terms was not compelled by statutory text. r 955 F.3d at 1205. of the law Congress adopted, commands this Court's respect." That comes as no surprise to the amici Senators who drafted Pereida v. Wilkinson 592 U.S.—,—, 141 S. Ct. 754, that text. Two rights conferred by the Act—the right "to 767, — L.Ed.2d — (2021). This legislative history in the confer with the attorney for the Government" and the right Senators' Amicus Brief also supports Judge Branch's natural "to be treated with fairness and with respect"—do not, by reading of the CVRA's plain text.9 their text, depend upon the filing of formal charges. IS U.S.C. § 377I(aX5), (8). Id. at 7. The Senators emphasize that, beyond the lack V. TWO-TIERED JUSTICE SYSTEM of any temporal limitation, two provisions—§ 3771(c)(1) and (dX3)—"make clear that the Act's rights attach before The Majority's holding has far-reaching consequences in ow formal charges are filed." Id. Section 3771(c)(1) requires Circuit. The pre-charge period has become critical in white- that government employees "engaged in the detection, collar cases. Defense attorneys are hired to represent potential investigation, or prosecution of crime" shall make best efforts defendants pre-charge to negotiate and extract the best plea to accord victims their rights. See 18 U.S.C. § 377I(c)( I). deal in advance of, or to forestall, any indictment. The Majority's ruling—limiting judicial enforcement of CVRA Next, the Senators submit that "if any doubts remain," about violations to a formal post-charge period—leaves federal the pre-charge application of the CVRA, "the Act sweeps prosecutors free to engage in the secret plea deals and them away with its proviso [in § 377 I (d)(3)] that the rights deception pre-charge that resulted in the travesty here. I° established by the Act may be asserted if no prosecution is underway, in the district court in the district in which the crime Over the last fifteen years, there has been a dramatic increase occurred." Senators' Amicus Br. at 7-8 (quotation marks in the use of pre-indictment "alternative settlement vehicles" omitted). *1327 such as deferred prosecution agreements and non- prosecution agreements to resolve federal crimes. See Cindy The Senators bolster their position by pointing to their R. Alexander & Mark A. Cohen, The_Evolution of Corporate statements in the Congressional Record at the time of the Criminal Settlements: An Empirical Perspective on Non- CVRA's enactment. Senators Feinstein and Kyl "emphasized Prosecution. Deferred Prosecution. and Plea Agreements, 52 that it 'is important for victims' rights to be asserted and Am. Crim. L. Rev. 537, 537-40 & n.14 (2015). II Under the protected throughout the criminal justice process'—and to Majority's ruling, victims have no CVRA remedy when a do that, victims need to be 'heard at the very moment when prosecutor secretly negotiates these pre-charge agreements in their rights are at stake.' " Id. at 5 (quoting 150 Cong. Rec. the absence of federal charges. 7294, 7304 (2004)). To accomplish that goal, the CVRA gives victims "the right to confer with the Government concerning The Majority's ruling also exacerbates disparities between any critical stage or disposition of the case." Id. at 6 (quoting wealthy defendants and those who cannot afford to hire well- 150 Cong. Rec. at 7302). connected and experienced attorneys during the pre-charge period. Most would-be defendants lack resources and usually The Senators emphasize that the events giving rise to this have no counsel during this pre-charge period. Consequently, litigation are "precisely the miscarriage ofjustice the Act was they do not have the pre-charge opportunity to negotiate intended to—and contrary to the [Panel] majority decision, the kind of extremely favorable deal that Epstein received. does—foreclose." Id. They express concern that ow Court's This sort of two-tiered justice system—one in which wealthy erroneous decision limiting the CVRA to only the post- defendants hire experienced counsel to negotiate plea deals in indictment phase of the criminal *1326 justice process secret and with no victim input—offends basic fairness and "will undo decades of progress toward recognizing and exacerbates the unequal playing field for poor and wealthy vindicating the vitally important rights of crime victims." criminal defendants. Id. at II. No matter the Majority and concurring opinions' myriad policy concerns, Congress was entitled to grant crime victims conferral rights that do not depend upon the WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 53 EFTA00074651 In re Wild, 994 F.3d 1244 (2021) 28 Re. L. Weekly Fed. C 2701 vindicate her statutory rights expressly created by Congress. VI. CONCLUSION Today, the Majority tells Ms. Wild and Epstein's other victims While the Majority laments how the national media fell that all of that was for naught, since they never had the right short on the Epstein story, this case is about how the U.S. to file their motion in the first place back in 2008. The Epstein prosecutors fell short on Epstein's evil crimes. Mysteries victims have no remedy as to the government's appalling remain about how Epstein escaped federal prosecution and misconduct because the Majority rewrites the CVRA to add why, for nearly a year, the government made affirmative a blanket post-indictment limitation and reads out of the misrepresentations to the Florida victims of his serious statute any ability for crime victims to judicially enforce their sex crimes and to the victims' counsel. The government conferral rights outside of a preexisting criminal proceeding. egregiously violated Ms. Wild's CVRA rights. "Our criminal The Majority's ruling eviscerates the CVRA and makes justice system should safeguard children from sexual the I Epstein case a poster child for an entirely different exploitation by criminal predators, not re-victimize them," as justice system for crime victims of wealthy defendants. I the prosecutors did here. u In re Wild, 955 F.3d at 1249-50 respectfully dissent, once again. See " l id. at 1223-1250 (Hull, .I., dissenting). (Hull, .I., dissenting). The petition Ms. Wild filed in the district court was one that the CVRA expressly authorizes when no prosecution All Citations is underway. Ms. Wild has spent over ten years seeking to 994 F.3d 1244,28 Ha. L. Weekly Fed. C 2701 Footnotes Judges Tjoflat and Hull were members of the en banc Court that heard oral argument in this case, both having elected to participate in this decision pursuant to 28 U.S.C. § 46(c)(1). Judges Jordan, Rosenbaum, and Grant are recused. 1 The NPA also contained several provisions concerning Epstein's victims. The government, for instance, agreed to provide a list of known victims to Epstein and, "in consultation with and subject to the good faith approval of Epstein's counsel," to "select an attorney representative" for the victims, to be "paid for by Epstein." Epstein waived his right to contest liability or damages "up to an [agreed] amount" in a victim's civil suit, "so long as the identified individual elect[ed] to proceed exclusively under 18 U.S.C. § 2255, and agree[d] to waive any other claim for damages." An odd set-up—and one that, it seems to us, was likely calculated to quickly and quietly resolve as many victim suits as possible. 2 The government has contended that these letters were technically accurate because the already-signed NPA remained under review by senior members of the Department of Justice. 3 Cl. David Folkenflik, A Dead Cat, A Lawyer's CallAndA 5-Figure Donation: How Media FellShort on Epstein, National Public Radio (Aug. 22, 2019, 6:06 PM), https://www.npr.org/2019/08/22/753390385/a-dead-cat-a- lawyers-call-and-a-5-figure-donation-how-media-fell-short-on-epstei. 4 A second petitioner joined the suit shortly after ft was filed. For simplicity's sake, we will refer to the present action as "Ms. Wild's" suit. 5 Although the CVRA instructs the court of appeals to "take up and decide" any mandamus petition 'forthwith within 72 hours," the Act also authorizes parties to stipulate, as they did here, to "a different time period for consideration." 18 U.S.C. § 3771(d)(3). 6 In its en banc brief, the government also (for the first time) contested our jurisdiction to consider Ms. Wild's mandamus petition. The 2015 version of the CVRA—which was in effect at the time Ms. Wild sought review in this Court—provides that a crime victim may file a mandamus petition in the "court of appeals," which it defines as "the United States court of appeals for the judicial district in which a defendant is being prosecuted." 18 U.S.C. § 3771(e)(1)(A). According to the government, that means that a victim may seek mandamus WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 54 EFTA00074652 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 relief only if (and while) a criminal defendant "is being prosecuted." Because that's not the case here, the argument goes, we lack jurisdiction even to entertain Wild's petition. We disagree for three reasons. First, § 3771(e)(1)(A) is more properly understood as a venue provision than a jurisdictional provision—it specifies in which "court of appeals" a victim should file. Cf. United States v. Ross. 963 F.3d 1056. 1063 (11th Cir. 2020) (en banc) (noting "the Supreme Court's directive that courts should avoid 'jurisdictionalizing' issues" that are more properly framed in other terms). Second, the governments position would render the CVRA internally inconsistent. By its terms, the Act clearly applies in the context of habeas corpus proceedings. See 18 U.S.C. § 3771(b)(2). But, of course, no one "is being prosecuted- in a habeas proceeding. So the government's position would imply that there is no mandamus jurisdiction to address a violation that occurs during a habeas proceeding, which the Act plainly covers. Finally, the government's position defies common sense. If Ms. Wild had sought mandamus relief in 2014, there would undoubtedly have been no bar to our review—there being no restrictive definition of "court of appeals- at that time. But, the government asserts, with the passage of the 2015 amendment—which all agree was meant to enhance victims' rights—that jurisdiction somehow evaporated. That seems exceedingly unlikely. 7 This was the posture in which the "attachment- issue arose in In re Dean, 527 F.3d 391 (5th Cir. 2008), on which our dissenting colleagues rely. See Branch Dissenting Op. at 1297. Because the question we answer is different from the one presented in Dean, our decision creates no circuit split, as our dissenting colleagues imply. 8 The CVRA (as amended in 2015) provides that this Court "shall apply ordinary standards of appellate review- to the issues presented in a mandamus petition under the Act. 18 U.S.C. § 3771(d)(3). Because the issues presented here are questions of law, we review them de novo. See. e.g., De Sandoval v. U.S. Arty Gen.. 440 F.3d 1276, 1278 (11th Cir. 2006). 9 Our dissenting colleagues accuse us of "blithely" "skip[ping] over the first of the two questions specified in our briefing order in favor of the second. See Hull Dissenting Op. at 1315; see also Branch Dissenting Op. at 1294. With respect, our path results from a shared conviction that courts should decide cases narrowly wherever possible. Our charge here is simply to resolve the parties' dispute, not to answer questions that don't (and can't) affect the outcome. Cf. District of Columbia v. Wesby, — U.S. -, 138 S. Ct. 577. 589 n.7. 199 L.Ed.2d 453 (2018) (encouraging courts addressing qualified-immunity cases to bypass the merits of the logically antecedent constitutional question in favor of the logically subsequent "clearly established law" question). Because we don't need to address the first, "attachment- question, we won't do so and, accordingly, won't engage our dissenting colleagues' extended analyses of the issues that it presents. See Branch Dissenting Op. at 1294-98; Hull Dissenting Op. at 1315-18. 10 Before considering the merits of Ms. Wild's petition, we must briefly address a front-end procedural issue. Ms. Wild contends that the government waived any argument that the CVRA doesn't provide for pre-charge judicial enforcement here when it failed to file a "cross-appeal" from the district court's 2011 order, which (as already explained) held as a matter of law [that] the CVRA can apply before formal charges are filed." Does. 817 F. Supp. 2d at 1343. We reject Ms. Wild's waiver argument. It's true that in the usual case, the government's failure to cross-appeal the district court's adverse 2011 order might well have precluded our review of that decision. See Greenlaw v. United States, 554 U.S. 237. 244-45, 128 S.Ct. 2559. 171 L.Ed.2d 399 (2008). This, though, isn't the usual case. Ms. Wild didn't file an "appeal"; rather, as the CVRA requires, she filed a petition for writ of mandamus. See 18 U.S.C. § 3771(d)(3); see also 16 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3932 (3d ed. 2019) (explaining that a mandamus petition is "an original application to the court of appeals"). The question before us, therefore, isn't whether to affirm or reverse the district court's orders, but rather whether to grant or deny Ms. Wild's mandamus petition—and the government is entitled to raise any argument it likes in support of its position that we should deny. And while the CVRA (as amended in 2015 to resolve a then-existing circuit split) directs us to 'apply ordinary standards of appellate review- in deciding the mandamus petition, see 18 U.S.C. § 3771(d)(3)- WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. EFTA00074653 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 rather than the heightened "clear usurpation of power or abuse of discretion" standard that typically applies in the mandamus context, In re Loudermilch, 158 F.3d 1143, 1145 (11th Cir. 1998)—it doesn't direct us to employ the rules of procedure that would apply if this were a typical appeal. 11 Our dissenting colleagues come perilously close to saying that "rights-creating" language is a sufficient basis for recognizing a private right of action. See Branch Dissenting Op. at 1300-02: Hull Dissenting Op. at 1322- 23. That is incorrect, at least under Sandoval. To be sure, such language is a necessary condition to a cause of action's existence, but it's not sufficient To the contrary, as the Sandoval Court clarified—and as we have emphasized here in text—"[t]he judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy." 532 U.S. at 286. 121 S.Ct. 1511 (emphasis added). 12 Our dissenting colleagues insist that they have the "common, ordinary" meaning of the word "motion" on their side—so much so, in fact, that they claim to have "dismantle[d]" our "tortured construction of the term. See Branch Dissenting Op. at 1302-03; Hull Dissenting Op. at 1324 n.7. Conspicuously, though, they offer no response to our exhaustive analysis of that word's accepted usage, as confirmed by legal dictionaries and encyclopedias. 13 We've been pointed to only two other instances, both arising out of the Federal Rules of Criminal Procedure, in which the term "motion" is even arguably used to initiate legal proceedings: Under Rule 41(g), which establishes the procedures governing searches during investigations, a third party may file a `motion" to enforce her rights before a criminal prosecution is formally commenced; and under Rule 17(c)(2), a witness may file a "motion" to quash a grand-jury subpoena before an indictment is handed down. Even setting aside the fact that both arise in altogether different contexts, those two examples don't alter our view that the term "motion- has never been commonly understood to denote a vehicle for initiating litigation, let alone as the vehicle for initiating a stand-alone civil action of the sort that Ms. Wild seems to envision—let alone the sort of Sandoval-qualifying clear expression of an intent required to create a private right of action. 14 Cf. Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 170 (2012) ("A word or phrase is presumed to bear the same meaning throughout a text ...."); cf. also Mohasco Corp. v. Silver. 447 U.S. 807, 826, 100 S.Ct. 2486.65 L.Ed.2d 532 (1980) (rejecting interpretation that would "giv[e] the word 'filed' two different meanings in the same section of the statute"). 15 This case's procedural history provides still further evidence that subsection (d)(3)'s "motion" remedy doesn't authorize a crime victim to file a freestanding civil action, outside the confines of a preexisting proceeding. Although the Act specifies a "motion- as its lone judicial-enforcement mechanism, Ms. Wild filed a document called an "Emergency Victim's Petition" in the district court, and she did so without naming a defendant. No doubt confused, the clerk of the district court docketed Ms. Wild's "Petition" as a civil action against the United States. See Does. 817 F. Supp. 2d at 1339-41 & n.4. The obvious problem: Absent a waiver, the United States is immune from suit. If the CVRA was intended to provide a vehicle for initiating a freestanding action against the government, it would have had to waive the United States' sovereign immunity, which, so far as we can tell, it didn't. See Lane v. Pena. 518 U.S. 187. 192. 116 S.Ct. 2092. 135 L.Ed.2d 486 (1996) (explaining that a waiver of the United States' sovereign immunity "must be unequivocally expressed in statutory text"); Scalia & Garner, Reading Law at 281 ("A statute does not waive sovereign immunity ... unless that disposition is unequivocally clear."). 16 This prosecutorial discretion 'flows not from a desire to give carte blanche to law enforcement officials but from recognition of the constitutional principle of separation of powers." United States v. Ream. 491 F.2d 1243. 1246 n.2 (5th Cir. 1974). As we said in Ream— The discretionary power of the attorney for the United States in determining whether a prosecution shall be commenced or maintained may well depend upon matters of policy wholly apart from any question of probable cause. Although as a member of the bar, the attorney for the United States is an officer of the WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. EFTA00074654 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 court, he is nevertheless an executive official of the Government, and it is as an officer of the executive department that he exercises a discretion as to whether or not there shall be a prosecution in a particular case. It follows, as an incident of the constitutional separation of powers, that the courts are not to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions. Id. (quoting United States v. Cox. 342 F.2d 167.171 (5th Cir. 1965)); accord, e.g., Heckler v. Chaney. 470 U.S. 821.832. 105 S.Ct. 1649,84 L.Ed.2d 714 (1985) ("[T]he decision of a prosecutor in the Executive Branch not to indict ... has long been regarded as the special province of the Executive Branch, inasmuch as it is the Executive who is charged by the Constitution to 'take Care that the Laws be faithfully executed.' " (quoting U.S. Const. art. II. § 3)). 17 To be clear, its no answer to say—as our dissenting colleagues do—that because government prosecutors identified Ms. Wild and others as "crime victim[s]" in the 2007 victim-notification letters, requiring a court to make a "crime victim" determination prior to any charging decision wouldn't pose a problem. See Branch Dissenting Op. at 1312-13. Needless to say, a prosecutor doesn't "impair (her own] discretion" by sending a victim-notification letter. By contrast, were a federal court to determine before the fact—literally, to prejudge —that a criminal "offense" had (or hadn't) occurred, it would be stepping all over prosecutors' toes. That very real concern is hardly a "red herring[ ]." Id. at 1312-13. 18 Just a brief word in response to our dissenting colleagues' prosecutorial-discretion argument: They seem to say that their interpretation of the CVRA doesn't impair prosecution because § 3771(d)(6 ) states—as of course it does—that nothing in the Act "'shall be construed to impair prosecutorial discretion of the Attorney General or any officer under his direction."' Branch Dissenting Op. at 1313-14. To be clear, though, § 3771(d) (6) is not a panacea against "construlctionsr of the Act that, in actual operation, impair prosecutorial discretion —it is a prohibition of such constructions. Subsection (d)(6), therefore, doesn't save our dissenting colleagues' interpretation, but rather condemns it. 19 Our dissenting colleagues' assertion that "concern[s] about impairment of prosecutorial discretion appl[y] equally post-indictment- (Branch Dissenting Op. at 1313) ignores what we have called the `clear and sensible boundary' that is marked by the formal initiation of criminal proceedings and that Chief Judge Srinivasan astutely recognized for the D.C. Circuit in Fokker Services. There is a world of difference between a court insinuating itself into a prosecutor's case before charges are filed and stepping in to "administer( I" the case thereafter. 818 F.3d at 737. Our dissenting colleagues accuse us of "drawing" our own line between the pre- and post-charge phases —i.e.. between detection and investigation, on the one hand, and formal prosecution, on the other. See Branch Dissenting Op. at 1314; see also Hull Dissenting Op. at 1323-24. That is incorrect. We have simply acknowledged—and enforced—the line that the CVRA itself embodies, and recognized that it (perhaps not surprisingly) is a sensible one. 20 With respect, we think that our dissenting colleagues misunderstand the relevance of the fact that, in addition to its (in-proceeding) "motion" remedy, the CVRA specifies a means of administrative enforcement. They reason backwards from the premises (which may or may not be correct) that -the administrative-enforcement scheme in the CVRA is not available to the victims in this case," and that -Epstein's victims [are thus] completely without a remedy," to the conclusion that a pre-charge cause of action must exist. Branch Dissenting Op. at 1309-10, 1311. To be sure, that mode of reasoning—if there's no other viable remedy, the courts should fashion one—prevailed in what the Supreme Court in Sandoval called the -ancien regime." 532 U.S. at 287.121 S.Ct. 1511. But the Sandoval Court couldn't have been much clearer that it was "sw[earing] off" its old way of thinking and establishing a new, more rigorous standard: Absent clear "statutory intent- to "create not just a private right but also a private remedy," a "cause of action does not exist and courts may not create one, no matter how desirable that might be as a matter of policy matter, or how compatible with the statute." Id. at 286-87, 121 S.Ct. 1511. The point for present purposes is that in the Sandoval WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. EFTA00074655 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 era the significance of an administrative apparatus is that it "suggests that Congress intended to preclude other" means of enforcement. f ai Id. at 290, 121 S.Ct. 1511. 21 Ms. Wild objects that it would be odd, under the "no prosecution is underway" clause, to require a victim to file a post-prosecution CVRA motion in the "district in which the crime occurred" rather than the "district court in which the defendant is being prosecuted." But any supposed oddity is alleviated by the fact that under the Sixth Amendment, those two districts will almost always be the same: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed ...." U.S. Const. amend. VI; see also Fed. R. Crim. P. 18 ("Unless a statute or these rules permit otherwise, the government must prosecute an offense in a district where the offense was committed."). We should note that there is still another way of understanding § 3771(d)(3)'s "no prosecution is underway" clause. That clause could be read to apply to the period of time between the initiation of criminal proceedings —which may occur as early as the filing of a criminal complaint under Federal Rule of Criminal Procedure 3— and the levying of formal charges in an indictment. The word "prosecution"—on which subsection (d)(3) pivots —is a legal term of art; in relevant part, it refers to a[t]he institution and continuance of a criminal suit [and] the process of exhibiting formal charges against an offender before a legal tribunal, and pursuing them to final judgment on behalf of the state or govemment, as by indictment or information." Prosecution, Webster's New International Dictionary (2d ed. 1944). Moreover, the law is clear, at least for Sixth Amendment right-to- counsel purposes, that a "prosecution" does notbegin with the criminal complaint's filing. See UnitedStates v. Langley, 848 F.2d 152, 153 (11th Cir. 1988) (explaining that, with respect to a defendant's Sixth Amendment right to counsel, prosecution begins "only after the government initiates adversarial judicial proceedings," not with "[t]he mere filing of a complaint); see also, e.g., United States v. States, 652 F.3d 734. 741- 42 (7th Cir. 2011) (same); United States v. Boskic, 545 F.3d 69, 82—84 (1st Cir. 2008) (same); United States v. Alvarado, 440 F.3d 191, 199-200 (4th Cir. 2006) (same). Rather, the Sixth Amendment right doesn't attach—because a "prosecution" doesn't begin—until, at the earliest, a suspect's 'initial appearance before a judicial officer." Rothgery v. Gillespie County, 554 U.S. 191, 199, 128 S.Ct. 2578, 171 L.Ed.2d 366 (2008). All of which is to say that even if Ms. Wild and the district court were correct that the "no prosecution is underway" clause meant that CVRA rights apply—and that a freestanding lawsuit may be initiated—before formal charges are filed, they may yet be incorrect that those rights can be judicially enforced during a pre-complaint investigation. Subsection (d)(3) can be read sensibly enough to apply (and to give victims a judicially enforceable right, for example, to "confer" with prosecutors, § 3771(a)(5)) between the filing of the criminal complaint and the suspect's initial appearance before a judge. That would, for instance, allow victims to express their views to prosecutors about whether the defendant should be granted pretrial release. See Fed. R. Crim. P. 5(d)(1)(C) (noting that pretrial-release decisions are made at the "initial appearance"). 22 Ms. Wild contends that this interpretation of § 3771(c)(1) can't explain "why Congress found it necessary to break out three separate phases of the criminal justice process: the 'detection,' 'investigation,' and 'prosecution' of crime." En Banc Br. of Petitioner at 21-22. If, she argues, Congress's intent was simply to cover federal agents during the post-charging phase of a case, it could have simply omitted the words "detection" and "investigation" from the Act, because any agent "who is in some way connected to the 'prosecution'—and, thus, in some way connected to crime victims—is already covered by the CVRA's language applying the Act to agencies engaged in 'prosecution.' " Id. at 22. Thus, she says, our interpretation impermissibly renders the terms "detection" and "investigation" meaningless. Id.; see also Paul G. Cassell et al., Crime Victims' Rights During Criminal Investigations? Applying the Crime Victims' Rights Act Before Criminal Charges Are Filed, 104 J. Crim. L. & Criminology 59, 87 (2014). We don't think so. We read subsection (c)(1) not as -break[ing] out" three different phases, but rather as attempting to broadly cover all necessary government-employee participants—in short, to ensure that the Act's protection extends beyond prosecutors. "Doublets and triplets abound in legalese," especially given that Congress often uses a "belt- and-suspenders" approach when drafting statutes. See Scalia & Gamer, ReadingLaw at 176-77 (cautioning WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 58 EFTA00074656 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 that the surplusage canon must be applied 'With careful regard to context" and that "a court may well prefer ordinary meaning to an unusual meaning that will avoid surplusage"). 1 Although I recognize that more than one dissenting opinion was written in this case, because multiple judges concurred in Judge Branch's opinion, I will refer to her dissent as 'The dissent" throughout my concurrence. 2 It is worth noting at the outset that I believe the pre-charge model would likely be used most frequently in complex cases—think wire fraud, financial fraud, etc. There is little need for CVRA enforcement of a victim's rights in a one-on-one crime, as the victim will almost certainly have been contacted by federal investigators to assist in investigating the offense. Indeed, it is likely that the attorney for the federal government would also be in contact with the victim prior to filing a criminal complaint or seeking an indictment, as the victim would presumably be a key trial witness. 3 I refer to the United States Attorney here and throughout this concurrence for ease of analysis. Of course, in the typical case, the victim would sue the specific attorney—typically an Assistant United States Attorney —in charge of the criminal investigation. However, it is worth noting that, "[a]bsent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471. 475. 114 S. Ct. 996. 1000. 127 L.Ed.2d 308 (1994). This presents an additional hurdle for the dissent's model, but because the Majority already ably discusses the sovereign immunity issue, Maj. Op. at 1258-59 n.15, I will assume it is not a barrier to the victim's civil suit for the sake of analysis. 4 That provision states: -The term 'crime victim' means a person directly and proximately harmed as a result of the commission of a Federal offense or an offense in the District of Columbia." 18 U.S.C. § 3771(e)(2)(A). 5 The crime victim's complaint and the United States Attorney's answer—along with any accompanying discovery—would presumptively be accessible by the public, see Wilson v. Am. Motors Corp.. 759 F.2d 1568. 1571 (11th Cir. 1985) (per curiam). absent a successful motion to seal the docket by one of the parties. I discuss some issues this raises in part III. 6 Anything less than a finding that there is probable cause to believe the accused committed a federal crime and that the victim was harmed by that offense would render the pre-charge civil suit little more than a fishing expedition for information about an ongoing federal criminal investigation. 7 See infra part III for a detailed discussion of the difficulties of constructing such an order. 8 The majority opinion suggests that the post-charge model is triggered by the levying of formal charges in an indictment. See Maj. Op. at 1266-67 n.21. Though I take the majority's point on the meaning of the term "prosecution," see id., I suggest that a finding of probable cause by a magistrate judge when issuing a warrant under Federal Rule of Criminal Procedure 4(a) or in a Rule 5.1 preliminary hearing would make the post- charge model operative as well. In both of those cases, the magistrate judge is asked to determine whether there is probable cause to believe that an offense has been committed and that the accused committed it. See Fed. R. Crim. P. 4(a), 5.1(e). For purposes of triggering the post-charge model, I see no reason why we should distinguish between a finding of probable cause made by the grand jury and the same finding made by a magistrate judge. 9 The full text of Federal Rule of Civil Procedure 19(a)(1) states: a) Persons Required to Be Joined if Feasible. (1) Required Party. A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if: (A) in that person's absence, the court cannot accord complete relief among existing parties: or (B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may: (i) as a practical matter impair or impede the person's ability to protect the interest; or (ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest. WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. EFTA00074657 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 10 The district court has a duty to join required parties on its own initiative. Fed R. Civ. P. 19(a)(2) ("If a person has not been joined as required, the court must order that the person be made a party."). 11 Indeed, this is also the same determination a magistrate judge is asked to make when determining whether an arrest warrant should issue. Fed. R. Crim. P. 4(a) ("If the complaint or one or more affidavits filed with the complaint establish probable cause to believe that an offense has been committed and that the defendant committed it, the judge must issue an arrest warrant to an officer authorized to execute it."). 12 Separately, I posit that the potential for unfairness to the accused in such a suit may require a judicially-created rule that the accused be permitted to attend the civil "preliminary hearing: regardless of the application of Rule 19. Otherwise, I have grave concerns that the district court will appear biased against the accused and will give the public the appearance of impropriety. See Code of Conduct for United States Judges Canon 2A (2019) ("An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge's honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired. Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. ..."). 13 28 U.S.C. § 1915(e)(1) specifically states that "[t]he court may request an attorney to represent any person unable to afford counsel." 14 Puzzlingly. the dissent states that we must enforce the plain meaning of the CVRA 'even if the proper interpretation raises policy concerns." Branch Dissenting Op. at 1311 (citing Eldred v. Ashcroft, 537 U.S. 186. 222. 123 S. Ct. 769. 790. 154 L.Ed.2d 683 (2003)). Of course, that is only true to the extent that the dissent's "plain meaning" interpretation of the CVRA does not render the statute unconstitutional; we will not enforce an unconstitutional statute. See. e.g., Fed. Election Comm'n v. Wis. Right To Life. Inc.. 551 U.S. 449, 503. 127 S. Ct. 2652. 2686. 168 L.Ed.2d 329 (2007) (Scalia. J., concurring) (stating that when a statute creates an "unworkable and unconstitutional" regime, "it is our responsibility to decline enforcement"). For reasons I explain throughout part III, even if the dissent's read of the CVRA is correct, its arrogation of Executive Branch authority would nevertheless render the statute unconstitutional and thus unenforceable. Of course, the dissent is correct that if the language of a statute is unambiguous, we will enforce the statutes plain meaning. Branch Dissenting Op. at 1311-12 n.29. But "when deciding which of two plausible statutory constructions to adopt, a court must consider the necessary consequences of its choice. If one of them would raise a multitude of constitutional problems, the other should prevail—whether or not those constitutional problems pertain to the particular litigant before the Court." °Clad< v. Martinez. 543 U.S. 371. 380-81. 125 S. Ct. 716. 724. 160 L.Ed.2d 734 (2005). It is thus no answer to say that the separation of powers problems might not apply to Ms. Wild's case, see Branch Dissenting Op. at 1313 n.30, or that we should consider the issue on an as-applied, case-by-case basis, see td. at 149—50 n.29. 47 S. Ct. 21, because we must consider the constitutional issues whether or not they apply to the specific facts of Ms. Wilds case, ()Clark. 543 U.S. at 380. 125 S. Ct. at 724. This is not some groundbreaking method of statutory interpretation—it is simply the canon of constitutional avoidance. Now, if one believes that the CVRA unambiguously grants a crime victim a pre-charge freestanding cause of action, or if one believes the pre-charge model does not raise 'serious constitutional problems," there is no issue. Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council. 485 U.S. 568. 575. 108 S. Ct. 1392. 1397. 99 L.Ed.2d 645 (1988)). But I do not believe the text is so clear, and—as I discuss below—I believe the separation of powers concerns that accompany the pre-charge model are severe. As a result, I am convinced that we are compelled to adopt the majority's post-charge model. 15 For example, we have stated that, in the context of grand jury proceedings, secrecy is paramount to "encourage) ) full and frank testimony on the part of witnesses." Pitch v. United States. 953 F.3d 1226. 1229 (11th Cir.), cert. denied, —U.S.-, 141 S. Ct. 624, 208 L.Ed.2d 230 (2020). If witnesses in these pseudo- WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. EFTA00074658 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 preliminary hearings thought their testimony—which could be released to the public—carried with it the threat of harm, it is difficult to imagine that they would ever be completely candid. 16 As the Fifth Circuit has put it: Legal arguments, and the documents underlying them, belong in the public domain. American courts are not private tribunals summoned to resolve disputes confidentially at taxpayer expense. When it comes to protecting the right of access, the judge is the public interest's principal champion. And when the parties are mutually interested in secrecy, the judge is its only champion. Binh Hoa Le v. Exeter Fin. Corp.. 990 F.3d 410. 421 (5th Cir. 2021) (footnote omitted). 17 Federal Rule of Criminal Procedure 6(e)(2)(B) reads: B) Unless these rules provide otherwise, the following persons must not disclose a matter occurring before the grand jury: (i) a grand juror; (ii) an interpreter: (iii) a court reporter; (iv) an operator of a recording device: (v) a person who transcribes recorded testimony; (vi) an attorney for the government; or (vii) a person to whom disclosure is made under Rule 6(e)(3)(A)(ii) or (iii). 18 Because the issue of probable cause would be tried as a bench trial, and not before a jury, the district court would be required to enter findings of facts and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a)(1). As a result, there is simply no way that the district court can avoid making determinations regarding the existence—or non-existence—of probable cause and the facts that support that conclusion. To shirk this Rule 52(a)(1) responsibility would essentially preclude meaningful appellate review. Of course, once the district court has made its findings and conclusions, the court's decision becomes a final, appealable order pursuant to 28 U.S.C. § 1291. The fact that the victim could appeal the district court's denial of probable cause—further protracting the pre-charge litigation—only increases the publicity drawn to the case and the potential for outside interference with the government's investigation. 19 At the criminal trial, the United States Attorney would be prepared with additional ammunition to question these witnesses: their testimony from the civil trial. So long as the parties agree to the authenticity of the civil trial transcripts, the witnesses' prior testimony would be admissible as impeachment evidence. This could be very beneficial for the government. For example, if a cooperating witness's—who may have been somehow involved in the federal crime—testimony at the civil trial suggested the accused's guilt, the United States Attorney is equipped to impeach the cooperating witness should he attempt to flip his story at the criminal trial. 20 There is, of course, a fourth scenario: the district court finds no probable cause, and the United States Attorney does not go on to prosecute the accused. I see little problem with that case, though one could express concern that a freestanding CVRA cause of action provides a platform for members of the public to falsely accuse individuals of committing federal crimes under the guise of filing a lawsuit. 21 In ()Bonner v. City of Prichard, 661 F.2d 1206. 1209 (11th Cir. 1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981. 22 This is, in my view, the most serious interference with the executive branch's discretion. Before a magistrate judge has found probable cause in the criminal case—either under Federal Rule of Criminal Procedure 4(a) or Rule 5.1—the district court in the pre-charge civil case is being led on a fishing expedition by the victim to "discover- probable cause. Of course, even after probable cause has been found in the pre-charge suit, the district court is still required to poke around in the government's investigation to craft and enforce the injunctive relief requested by the victim. As the saying goes: "Once the camel gets its nose in the tent, the body will soon follow." 23 The dissent makes much out of the fact that an Assistant United States Attorney acknowledged that Ms. Wild and others were "crime victims," arguing that this proves that crime victims will be readily identifiable and that my "parade of horribles" is actually a very manageable set of procedures. See Branch Dissenting Op. at WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. EFTA00074659 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 1312-13. Not so fast. As an initial matter, the majority is correct to point out that "a prosecutor doesn't 'impair [her own] discretion' by sending a victim-notification letter." Maj. Op. at 1262 n.17. The Assistant United States Attorney's actions do nothing to alleviate the separation of powers concerns the dissent's model raises. And, in any event, the dissent misses the point: we are not only deciding Ms. Wild's case today. The majority's opinion will set precedent for how CVRA suits will proceed in the Eleventh Circuit. The mere fact that an Assistant United States Attorney in this case recognized certain individuals as victims says nothing about how prosecutors and victims will act in future cases. 1 Because the prior panel held the victims had no pre-charge CVRA rights, it did not decide whether the victims had a statutory remedy to enforce any CVRA rights. 2 From June 2005 to June 2009, Acosta was the U.S. Attorney for the Southern District of Florida. 3 At that time, the State of Florida had already charged Epstein with one count of solicitation of prostitution. 4 The Agreement listed the following federal crimes: (1) using and conspiring to use a facility of interstate commerce to persuade, induce, or entice minors to engage in prostitution, in violation of 18 U.S.C. §§2422(b), 371, and 2; (2) traveling and conspiring to travel in interstate commerce for the purpose of engaging in illicit sexual conduct with minors, in violation of ? ill 18 U.S.C. § 2423(b) and r a (e); and (3) recruiting, enticing, and obtaining a minor to engage in a commercial sex act, in violation of ? II 18 U.S.C. §§ 1591(a)(1) and 2. 5 The Agreement also provided that the ongoing grand jury proceedings would be suspended. Epstein also agreed to pay for a government-selected attorney for those specific individuals that the government had already identified as "victims" under 18 U.S.C. § 2255, and to not contest jurisdiction, liability, or damages (up to an agreed-upon amount) should any of the identified victims elect to file suit for restitution pursuant to § 2255 (so long as the victim elected to proceed exclusively under § 2255, as opposed to a civil damages action). 6 As the Agreement was being signed, Epstein's attorney Jay Lefkowitz e-mailed AUSA Villafana, requesting: "Marie - Please do whatever you can to keep this [Agreement] from becoming public." (emphasis added). AUSA Villafafia assured Lefkowitz that the Agreement would be kept confidential. 7 For example, in a December 6, 2007 letter, AUSA Villafana informed Lefkowitz that "fsjection 3771 ... commands that 'employees of the Department of Justice ... engaged in the detection. investigation, pr prosecution of crime shall make their best efforts to see that crime victims are notified of. and accorded, the rights described in subsection (a).' " (emphasis added) (second ellipsis in original). AUSA Villafana went on to note that the "Non-Prosecution Agreement resolves the federal investigation by allowing Mr. Epstein to plead to a state offense. The victims identified through the federal investigation should be appropriately in9rmed, and our... Agreement does not require the U.S. Attorney's Office to forego its legal obligation4" (emphasis added) AUSA Villafaha also sent Lefkowitz a draft of the Victim Notification Letter. She stated that the U.S. Attorney's Office would "not remove the language about contacting AUSA Villafafia or Special Agent Kuyrkendall with questions or concerns." Again, AUSA Villafafia wrote that "federal law requires that victims have the `reasonable right to confer with the attorney for the Government in this case/ 18 U.S.C. § 3771(a) (5)." (emphasis added). In a subsequent letter to Epstein's counsel, dated December 19, 2007, U.S. Attorney Acosta again addressed "the issue of victim's [sic] rights pursuant to Section 3771." U.S. Attorney Acosta stated: "I understand that the defense objects to the victims being given notice of (the] time andplace of Mr. Epstein's state court sentencing hearing.... We intend to provide victims with notice of the federal resolution, as required by law." (emphasis added). 8 For a number of years, discovery disputes continued. The district court ordered that the U.S. Attorneys Office disclose its correspondence with Epstein's defense counsel to the victims. Epstein, as an intervenor, appealed that order. Doe No. 1 v. United States, 749 F.3d 999 (11th Cir. 2014). In 2014, our Court heard that appeal. In affirming the discovery order (and finding that we had appellate jurisdiction), we noted that WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 62 EFTA00074660 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 this very case was "a proceeding ancillary to a criminal investigation," wherein the victims had brought this lawsuit to enforce their rights under the CVRA. Id. at 1001-04. 9 Although the February 2019 order did not specifically mention the right to be treated fairly, the district court later clarified, in its order denying as moot Wild's requested remedies, that the petitioners' "right[s] to be treated with fairness and to receive notice of court proceedings ... flow from the right to confer and were encompassed in the Court's ruling finding a violation of the CVRA." Doe I v. United States. 411 F. Supp. 3d 1321. 1329 (S.D. Fla. 2019) (footnote omitted). The government does not dispute that it never conferred with the victims and kept the Agreement secret. See Gov't En Banc Brief at 5. 10 In July 2019, the U.S. Attorney's Office for the Southern District of New York (`SDNY") had unsealed an indictment charging Epstein with a sex-trafficking conspiracy and substantive sex trafficking involving conduct that occurred in New York (and Florida to some extent). While he was in custody on these charges, Epstein was found dead. Statement of Attorney General William P. Barr on the Death of Jeffrey Epstein (Aug. 10, 2018), available at https://www.justice.gov/opa/pristatement-attorney-general-william-p- barr-death-jeffrey-epstein. In June 2020, the SDNY U.S. Attorneys Office indicted Ghislaine Maxwell for her participation with Epstein in the sexual abuse of numerous minor girls in New York and elsewhere. That case remains pending. 11 Chief Judge Pryor's concurrence asserts that addressing the first en banc question results in an impermissible advisory opinion. It is well-established that title exercise of judicial power under Art. III of the Constitution depends on the existence of a case or controversy." Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975). Thus, "a federal court has neither the power to render advisory opinions nor to decide questions that cannot affect the rights of litigants in the case before them." Id. (quotation omitted). Rather, a federal court's judgments must resolve "a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts." Id. (quotation omitted). Whether Epstein's crime victims had any CVRA rights that attached pre-charge was—and continues to be—a live controversy in this case. Indeed, the prior panel decision resolved this case on that very question. Consequently, addressing the first question issued by this en banc court does not result in an impermissible advisory opinion. See id. In any event, because I conclude that the CVRA grants crime victims a statutory remedy to enforce violations of their CVRA rights via a freestanding motion for relief under § 3771(d)(3) if no prosecution is underway, I must necessarily answer the first question—whether the CVRA grants crime victims any rights that attach pre-charge. Chief Judge Pryor's concurrence contends that the dissents respond to the advisory opinion concern "by turning it into a jurisdictional issue" or advocating for an alternative holding. Similarly, he questions our purported "motivations" for answering the first en banc question. Lest there be any confusion, my response to the advisory opinion concern expressed in his concurrence is not cast in jurisdictional garb. Rather, as explained in the previous paragraph, because I conclude that the CVRA grants crime victims a statutory remedy to enforce violations of their CVRA rights via a freestanding motion for relief under § 3771(d)(3) if no prosecution is underway, I must necessarily answer the first question. Thus, my motivation for answering the first en banc question derives solely from a plain-text application of the statute. 12 The CVRA defines a crime victim as "a person directly and proximately harmed as a result of the commission of a Federal offense." 18 U.S.C. § 3771(e). The government agreed, during the course of the district court proceedings and on appeal, that petitioner Wild qualifies as a "crime victim" for purposes of the CVRA. 13 These eight rights have not changed from 2004 to the present. However, in 2015, Congress added a ninth and tenth right to the CVRA. See Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-22, § 113(a) (1), 129 Stat. 227, 240. WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. EFTA00074661 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 14 It is true that, unlike in this case, a criminal information was filed in In re Dean. 527 F.3d at 393. That point is a distinction without a difference, however, because in In re Dean, the court addressed the issue of the victims' CVRA rights prior to the filing of the criminal information. 15 This conclusion flowed in part from the Supreme Court's earlier decision in Cannon, which in addressing § 901 of Title IX—which is patterned atter § 601 of Title VI—recognized that both § 601 and § 901 contained "rights-creating" language that benefited a particular class of persons. Cannon v. Univ. of Chicago. 441 U.S. 677. 683. 689-93. 99 S.Ct. 1946. 60 L.Ed.2d 560 (1979). The Supreme Court concluded that, although nothing in the text of § 601 or § 901 authorized a private cause of action for a violation of the statute, the "rights-creating" language in the statutes demonstrated clear congressional intent to provide for a statutory remedy to enforce the rights guaranteed in § 601 and § 901. Id. at 694-703, 717, 99 S.Ct. 1946. And, as noted in Sandoval, "Congress has since ratified Cannon's holding." 532 U.S. at 280. 121 S.Ct. 1511. 16 The Supreme Court explained that § 601 forbid only intentional discrimination, not disparate impact discrimination. Sandoval. 532 U.S. at 280-81. 121 S.Ct. 1511. Thus, it was "clear ... that the disparate- impact regulation( ] [at issue did] not simply apply [the provision] of § 601—since [the regulation] indeed forbid conduct that § 601 permits—and therefore lit was also] clear that the private right of action to enforce § 601 [did] not include a private right to enforce these regulations." Id. at 285-86. 121 S.Ct. 1511. Accordingly, the Supreme Court explained that a right to enforce the regulations 'must come, if at all, from the independent force of § 602." Id. at 286, 121 S.Ct. 1511. 17 Further. § 602 provided numerous barriers even to an agency enforcement action, including that the agency must first notify the violators of their failure to comply with regulations and determine that compliance cannot be obtained by voluntary means. Sandoval. 532 U.S. at 289-90, 121 S.Ct. 1511. These "elaborate restrictions on agency enforcement ... tend to contradict a congressional intent to create privately enforceable rights through § 602 itself." Id. at 290, 121 S.Ct. 1511. Because § 602 did not include any "rights-creating- language at all, there was no need for the Supreme Court to address "whether § 602's remedial scheme [could] overbear other evidence of congressional intent.- Id. at 291, 121 S.Ct. 1511. 18 The Majority expresses concern repeatedly that (1) the Epstein victims, like the plaintiffs in Sandoval, are trying to "imply a cause of action where Congress has not expressly created one, and (2) Sandoval precludes "implying" a private right of action here. There is no need to "imply" a private right of action here because the CVRA expressly creates a judicial enforcement mechanism: a "[m]otion for relief" filed in "the district court in the district in which the crime occurred." 18 U.S.C. § 3771(d)(3). We can, and should, end our analysis with the plain text of the CVRA statute. 19 I agree that statutory interpretation "requires paying attention to the whole law, not homing in on isolated words or even isolated sections. Context always matters. Let us not forget, however, why context matters: It is a tool for understanding the terms of the law, not an excuse for rewriting them." King v. Burwell. 576 U.S. 473, 500-01. 135 S.Ct. 2480, 192 L.Ed.2d 483 (2015) (Scalia, J., dissenting). As explained further in this opinion, the Majority's purportedly whole-text reading not only renders certain portions of the statute superfluous. but impermissibly rewrites the statute by adding to the text the following requirements: (1) all motions for relief must be filed in a preexisting court proceeding (or after an indictment is filed); and (2) a crime victim can never file a freestanding motion for relief. 20 Grand jury proceedings, by their very nature, occur prior to the filing of charges, as their purpose is to determine whether to bring charges is the first place. See 1 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 101 (4th ed. 2020). WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. EFTA00074662 In re Wild, 994 F.3d 1244 (2021) 28 Ha. L. Weekly Fed. C 2701 21 In a prior interlocutory appeal in this case, we recognized the similarity between an action to quash a grand jury subpoena and an action to enforce CVRA rights, noting that "the victims' petition, like a grand jury proceeding, is ancillary to a criminal investigation." Doe No. 1 v. United States. 749 F.3d 999. 1005 (11th Cir. 2014). 22 Chief Judge Pryor's concurrence asserts that the alleged dual meaning of motion demonstrates that I have failed to apply the whole-text canon and have erroneously read § 3771(a)(5), (a)(8), and (d)(3) in isolation. I disagree. As explained above, the meaning of the word "motion" remains the same regardless of whether the judicial enforcement mechanism is available pre- or post-charge. Furthermore, "[t]he whole-text canon refers to the principle that, when interpreting the meaning of a statute, the court should "consider the entire text, in view of its structure and of the physical and logical relation of its many parts: Scalia & Garner, supra, at 167. Many other canons are derived from the whole-text canon, including the surplusage canon. Id. at 168. Reading the CVRA as (1) providing crime victims with certain rights that attach pre-charge and (2) authorizing a private right of action to judicially enforce those rights when no prosecution is underway adheres faithfully to the whole-text canon as it is the only one that gives full effect to the plain statutory text of the CVRA as a whole, while simultaneously avoiding rendering portions of the statute superfluous and impermissibly adding words to the text. 23 The Advisory Committee Notes to Rule 18 state that "numerous statutes have been enacted to regulate the venue of criminal proceedings, particularly in respect to continuing offenses and offenses consisting of several transactions occurring in different districts. These special venue provisions are not affected by the rule" and are consistent with the Sixth Amendment. Advisory Committees Notes on 1944 Adoption of Fed. R. Crim. P. 18 (citations omitted). 24 Alternatively, the Majority suggests subsection (d)(3)'s "no prosecution is underway" language could also be read to refer specifically to the time between the filing of informal criminal charges—by way of, for example, a criminal complaint—and "the levying of formal charges in an indictment." Meaning, according to the Majority, that "even if Ms. Wild and the district court were correct that the *no prosecution is underway' clause meant that CVRA rights apply—and that a freestanding lawsuit may be initiated—before formal charges are filed, they may yet be incorrect that those rights can be judicially enforced during a pre-complaint investigation." In support of this reading, the Majority points to the Sixth Amendment right to counsel, which is triggered when "a prosecution is commenced" by, at a minimum, a suspect's "initial appearance before a judicial officer.- Rothgefy v. Gillespie Cnty.. 554 U.S. 191. 199. 128 S.Ct. 2578, 171 L.Ed.2d 366 (2008). There is, of course, no such temporal limitation in the plain language of § 3771(d)(3). And this reading suffers from the same logical flaw as the Majority's primary alternative reading: if Congress meant to instruct victims to file a motion for relief in the district in which a defendant has been informally charged, it would have said so. Furthermore, it is also not readily apparent why we should look to the Sixth Amendment right to counsel for our construction of "prosecution- and not instead to the Sixth Amendments speedy trial right, which "may attach before an indictment and as early as the time of arrest and holding to answer a criminal charge: Gouveia. 467 U.S. at 190. 104 S.Ct. 2292. 25 In addition to its discussion of § 3771(d)(3) and (d)(6), the Majority also briefly notes that § 3771(b), the only other provision of the CVRA that explicitly mentions judicial enforcement of CVRA rights, does not authorize a cause of action and, in fact, suggests that the judiciary is responsible for enforcement only within the confines of a preexisting "proceeding.- Subsection (b) specifies that "the court shall ensure that the crime victim is afforded the rights described in subsection (ay "pin any court proceeding involving an offense against a crime victim." 18 U.S.C. § 3771(b). Thus, the Majority reasons that the fact that § 3771(b) directs a district court presiding over a court proceeding to "ensure- that crime victims are afforded their rights in the context of that proceeding necessarily precludes the enforcement of those same rights outside that context. I disagree because, if anything, § 3771(b) reinforces the separate and important role that § 3771(d) plays. Subsection (b) simply makes clear that once a court proceeding has commenced, the district court has an ongoing duty to ensure that crime victims are accorded their rights, independent of whether a victim has filed a motion to enforce those rights. This duty is reinforced by the statute's prescription of a mechanism WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. EFTA00074663 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 —in subsection (d)—for victims to enforce their rights that exist separate and apart from the district court's independent duty to ensure those rights are enforced in a proceeding over which it is presiding. 18 U.S.C. § 3771(d). 26 The Majority asserts that in addressing the fact that the administrative remedy in § 3771(0 is not available to crime victims who believe they have suffered a violation of their statutory rights under the CVRA during the pre-charge phase, I am somehow reasoning that "if there is no visible remedy, courts should fashion one." To be clear, that is not the basis of my reasoning. It is of course the task of the legislature to create a private remedy and, as explained previously, Congress created such a remedy expressly and unequivocally in § 3771(d)(3)—a In0otion for relief' filed in "the district court in the district in which the crime occurred." While the existence of an administrative remedy in ? Sandoval counseled against implying a private cause of action, we are not faced with an implied remedy case. We can, and should, end our analysis with the plain text of the CVRA statute and enforce the express private cause of action Congress authorized in §3771(d)(3). 27 The Majority itself never says that these victims can vindicate their rights through the administrative process in § 3771(f). Rather, the Majority states that the victims' rights "might be enforceable through, say, political or administrative channels." (emphasis added). But given the language of the administrative scheme— which requires a victim's complaint to contain a district court case number—it is unclear to what political or administrative channels the Majority refers. 28 The ACAA provides, in pertinent part, that providing air transportation, an air carrier .... may not discriminate against an otherwise qualified individual on" certain grounds related to that individual's "physical or mental impairment." 49 U.S.C. § 41705(a). 29 I am not in any way suggesting that we ignore constitutional concerns. Such concerns, however, are simply not present in this case nor has the government raised any as-applied challenge to the constitutionality of the statute. Similarly, because I would hold that the statutory text is clear and unambiguous, the canon of constitutional avoidance discussed in Judge Tjoflat's concurring opinion never comes into play. See III Nielsen v. Preap, — U.S. -, 139 S. Ct. 954, 972, 203 L.Ed.2d 333 (2019) (explaining that this canon "has no application absent ambiguity" (quotation omitted)). Judge Tjoflat's concurring opinion argues that we are just deciding the case before us but are setting precedent for how the CVRA will be applied and such suits will proceed in the future. True to some extent. But there are any number of instances where the attachment and enforcement of the CVRA's conferral right pre- charge will not impair prosecutorial discretion. The fact that there may be some hypothetical future cases in which the application of the CVRA rights pre-charge might possibly intrude on prosecutorial discretion is not a basis for ignoring the plain language of the statute. Rather, the vehicle for addressing any risk to prosecutorial discretion by the parade of horribles posited by the Majority and Judge Tjoflat's concurring opinion is through an as-applied constitutional challenge—which the government is free to bring in a future case should such concerns arise. 30 The Majority and Judge Tjoflat's concurring opinion vigorously argue that identifying who is a crime victim pre- charge presents "three intractable problems": (1) courts, not prosecutors, deciding if any offense occurred; (2) the need for a "mini-trial" to figure out whether a federal offense occurred and who was a victim; and (3) courts exerting pressure on the government's charging decision by conducting such mini-trials. Yet the CVRA's definition of a crime victim is straightforward: a "crime victim" is "a person directly and proximately harmed as a result of the commission of a Federal offense." 18 U.S.C. § 3771(e). Even in this massive sex- trafficking case in which no formal charges were ever filed, the prosecutors had no trouble determining that a federal offense had occurred and identifying 30 crime victims. Judge Tjoflat's concurring opinion expresses concern that the fact that the government in this particular case was able to identify victims does not establish necessarily that the government will be able to do so in future cases. Nevertheless, the concerns identified by the Majority and Judge Tjoflat's concurring opinion surrounding the identification of victims are undermined by the fact that in the many years since the Fifth Circuit's opinion in ? I In re Dean and the district court here ruled that crime victims have rights pre-charge, WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 66 EFTA00074664 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 the government has not presented any evidence suggesting any difficulties in identifying crime victims of federal offenses or of mini-trials to do so. I stand by my conclusion that both the attachment pre-charge of crime victims' rights to reasonable conferral and to be treated fairly and with respect and the enforcement of those rights through a freestanding cause of action via a motion for relief if no prosecution is underway—as authorized expressly by Congress—do not impair prosecutorial discretion in this case. 1 Federal courts cannot issue advisory opinions because of the Constitution's case or controversy requirement. Thus, to be justiciable, the first issue must involve a genuine live controversy involving a present claim by one party and another party disputing it that can be determined judicially. See Carney. 592 U.S. at —. 141 S. Ct. at 498. Whether the Epstein victims had conferral rights that the government violated is justiciable and should be decided for the reasons outlined above. 2 See also Hamm v. Comm'r, Ala. Dept of Corr.. 620 F. App'x 752. 782 (11th Cir. 2015) ("[W]e conclude that [the petitioners] Brady claim here is procedurally defaulted and that a merits review is precluded. Alternatively, we find the claim to be without merit." (emphasis added)); Harris v. Goderick. 608 F. App'x 760, 764 (11th Cir. 2015) r[E]ven assuming, arguendo, that [plaintiff's] false arrest claims are not barred by the statute of limitations, each non-immune defendant arguably possessed probable cause for actions taken in the course of prosecuting [plaintiff] for his probation violation ...."); Davies v. Former Acting Dist. Dir.-Orlando. 484 F. App'x 385. 389 & n.5 (11th Cir. 2012) (affirming the dismissal of a Bivens claim as barred by the applicable statute of limitations but noting that. "(elven assuming arguendo that the statute of limitations did not bar this case .... it is apparent that Defendants would in any event be entitled to qualified immunity"). 3 As a separate and different argument, the Majority opinion likens its avoiding the victims' rights question (the first en banc issue) to qualified immunity cases, in which a court may bypass the antecedent constitutional- rights question. Maj. Op. at 1252 n.9. But when a court skips over a constitutional issue, two things happen. First, the court avoids making any precedent as to the constitutional violation, and the 42 U.S.C. § 1983 plaintiff in the next case will still have no clearly established law to cite. Second, the government officials will not be on notice that certain conduct is a constitutional violation. The fact that a court may elect to skip over an individual-rights question does not mean that a court should do so. Indeed, for years in qualified immunity cases, the Supreme Court required lower courts to decide the constitutional question and stop avoiding it because otherwise the law would never be clearly established. See * Saucier v. Katz. 533 U.S. 194. 201. 121 S. Ct. 2151. 2156. 150 L.Ed.2d 272 (2001). Although the Supreme Court has now relaxed this rule, the fact remains that the first question as to the victims' rights—like that of individual rights in qualified immunity cases—is an important legal question that should be answered here for the reasons articulated above. See Pearson v. Callahan. 555 U.S. 223, 236, 129 S. Ct. 808, 818, 172 L.Ed.2d 565 (2009) (holding that the two-step sequence from s Saucier "should not be regarded as mandatory in all cases," but recognizing that it is "often beneficial" and "appropriate- and that "the" Saucier Court was certainly correct in noting that the two-step procedure promotes the development of constitutional precedent"). 4 This narrow conferral-right ruling limited to the post-Agreement time frame also pretermits any need to draw a line marking a precise point when the conferral right attaches. And because the prosecutor had made his charging decision and executed the Agreement, this eliminates debate about § 3771(d)(6)'s proscription against impairing prosecutorial discretion. See 18 U.S.C. § 3771(d)(6). 5 Although Judge Tjoflat's concurring opinion invokes the canon of constitutional avoidance, it does not apply here because there is no ambiguity in the CVRA text. See United States v. Stevens. 559 U.S. 460, 481, 130 S. Ct. 1577. 1591-92. 176 L.Ed.2d 435 (2010) (providing that courts cannot 'rely upon the canon of construction that 'ambiguous statutory language [should] be construed to avoid serious constitutional doubts' " unless the statute is first ambiguous (alteration in original)). As the Supreme Court recently explained, "[s]potting a constitutional issue does not give a court the authority to rewrite a statute as it pleases." WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. EFTA00074665 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 Jennings v. Rodriguez. 538 U.S. -. -. 138 S. Ct. 830. 843-44, 200 L.Ed.2d 122 (2018) (declining to apply the canon of constitutional avoidance because the statutory language at issue was not ambiguous). To that end, the Supreme Court has cautioned that, "rewrit[ing) a ... law to conform it to constitutional requirements ... would constitute a serious invasion of the legislative domain." Stevens. 559 U.S. at 481, 130 S. Ct. at 1592 (second alteration in original) (citations and quotation marks omitted). 6 Cannon v. Univ. of Chicago. 441 U.S. 677. 99 S. Ct. 1946.60 L.Ed.2d 560 (1979). 7 Judge Branch's Dissent dismantles the Majority's tortured construction of § 3771(d)(3)'s terms, like "motion" and "no prosecution is underway." Her Dissent reviews how the Majority eschews the common, ordinary, everyday meaning of the word "motion; and wrongly defines "motion- to require a preexisting underlying court proceeding. Her Dissent explains the common meaning of "motions" and how federal law authorizes a "motion- to be filed freestanding in numerous other areas of criminal law. I agree and need not cover this territory. Rather, I show how the Majority strays from the plain text and muses about expectations. 8 Chief Judge Pryor's concurrence points out that each dissent spends at least 10 pages discussing Sandoval, an implied cause of action decision, even though they contend that the CVRA grants a private right of action. The concurrence describes the dissents as "puzzling" and "schizophrenic" for this reason: "If the Act expressly granted a private right of action, then Sandoval would be beside the point.- Pryor Concurring Op. at —. Although clever wordsmithing, this is a non sequitur. Sandoval is necessarily discussed. First, the Majority and the concurring opinions rely heavily upon it; yet our explication of Sandoval reveals how they misconstrue Sandoval, an implied cause of action decision, and misapply it to the materially different statutory text and structure in the CVRA. Second, as the most recent Supreme Court decision cited, Sandoval instructs that we examine the text and structure of the statute at issue for evidence of congressional intent to create both a private right and a private remedy. But the Majority skips over the private rights issue altogether. Third, our journey through Sandoval demonstrates that the evidence of congressional intent that was missing in the § 602 statute in Sandoval is patently present in the CVRA's statutory language. Fourth, a full read of Sandoval is required to compare the § 602 text and the nature of the administrative enforcement scheme (with judicial review) available in that case with the CVRA text and wholly dissimilar administrative scheme (with no judicial review) unavailable to the victims here. 9 I appreciate my colleague's sincere "sense of sorrow," "heart break[ ],- and regret about the result reached in the Majority opinion authored by him. Newsom Concurring Op. at 1275-76. But this personal consternation goes too far when it admonishes us that the job, as a judge, is "adherence to the rule of law; and the "obligation- and "oath" of a judge is to "the law" and implies that only the Majority opinion he has authored does that. Id. If nothing else, we should all agree that each judge has taken the same oath and is attempting to honor the same obligation to the rule of law. The dissenters simply read the CVRA's plain statutory language quite differently. For what it's worth, the Senators read that text as the dissenters do. But I still don't believe any colleague has violated his or her oath. 10 The DOD's failure to discipline its own prosecutors heightens the importance of the CVRA's private right of action. The DOD's Office of Professional Responsibility ('OPR") conducted a review of the Epstein case. While the Report found that prosecutors exercised "poor judgment; it concluded they did not commit "professional misconduct" and did not recommend any sanctions or disciplinary actions. See Department of Justice Office of Professional Responsibility Report, Executive Summary, at ix—xii (Nov. 2020). The Report has been heavily criticized. Seee.g., Kevin G. Hall, Jay Weaver & Ben Wieder Senator rips finding that Acosta used 'poor judgment' but broke no rules in Epstein case. Miami Herald. Nov. 14, 2020, available WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. EFTA00074666 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 at https://www.miamiherald.cominewsAocal/article247133141.html (" 'Letting a well-connected billionaire get away with child rape and international sex trafficking isn't "poor judgment"—it is a disgusting failure. Americans ought to be enraged,' Nebraska Sen. Ben Sasse, chairman of the Senate Judiciary Oversight Subcommittee, said in a statement Thursday afternoon.....'The DOJ's crooked deal with Epstein effectively shut down investigations into his child sex trafficking ring and protected his co-conspirators in other states. Justice has not been served,' Sasse added."). OPR's Report is viewed as a "whitewash," letting everyone off the hook," "offensive," "hurtful," and like another slap in the face to the victims." James Hill, Key takeaways from the Justice Department review of Jeffrey Epstein sweetheart deal, ABC News (Nov. 16, 2020), available at https&/abcnews.go.com/US/ key-takeaways-justice-department-review-jeffrey-epsteln-sweetheartistory?id.74222922. Given the OPR Report, it is hardly surprising the victims continue to pursue this civil suit to discover and unravel the mystery of why the prosecutors not only signed such a sweetheart plea deal for the billionaire Epstein in the first place but did so in secret and then for nearly a year took great efforts to hide the Agreement by affirmative misrepresentations to the victims and their counsel too. 11 In 2020 alone, the DOJ executed 32 agreements to defer prosecution for corporate criminality. See Duke University School of Law & University of Virginia's Legal Data Lab, Data and flonimp.nts, Corporate Prosecution Registry, https://corporate-prosecution-registry.cornibrowse/; see also 2019 Year-End Update on Corporate Non-Prosecution Agreements and Deferred Prosecution Agreements, Gibson Dunn (Jan. 8, 2020), https://www.gibsondunn.com/2019-year-end-npa-dpa-update/ (stating that the DOJ's use of NPAs and DPAs in white collar cases rose from 2 in 2000 to 31 in 2019 and has been normalized "[a]cross [a]gencies"). End of Document O2021 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 69 EFTA00074667