EFTA00074599.pdf

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