In In re: Wild, Case No. 19-13843 (Apr. 15, 2021) (en banc), the Court once again denied a petition for mandamus brought by victims of Jeffrey Epstein.
The Court held, reluctantly, that the rights of victims under the Crime Victims’ Rights Act ("CVRA") of 2004, including the right to confer with prosecutors and be treated fairly, do not attach until federal criminal proceedings are initiated. Here, there was no federal criminal proceeding brought. So, despite evidence of a secret non-prosecution agreement between the government and Epstein, the victims’ statutory rights were never triggered. The majority expressed its "profoundest sympathy" for the victims, but felt compelled to hold that the CVRA does not authorize a victim to seek judicial enforcement of her CVRA rights in a freestanding civil action.
Chief Judge William Pryor, joined by Judges Newsom, Lagoa, and Tjoflat, filed a concurring opinion, to respond to three "fundamental errors" in the dissenting opinion. First, that the Court is not in the business of issuing advisory opinions. Second, that statutes must be read as a whole; not as individual subsections in isolation. And, third, that statutes are interpreted with a presumption against implied rights of action.
Judge Newsom filed a separate concurring opinion, underscoring how "sick" he felt at the result, but that it was the result the law required.
Judge Tjoflat, joined by Chief Judge William Pryor and Judges Wilson, Newsom, and Lagoa, filed a separate concurring opinion. He wrote separately to elaborate on the "untoward effects a pre-charge CVRA model would have on the fairness of our courts and on the separation of powers." Such a model would "impermissibly drag federal courts into the business of prosecution."
Judge Branch, joined by Judges Martin, Jill Pryor, and Hull, dissented. They argued that: (1) the plain text of the CVRA grants crime victims two "pre-charge" rights--the "reasonable right to confer with the attorney for the Government" and the "right to be treated with fairness"; (2) the CVRA provides crime victims with the statutory private remedy of judicial enforcement of those rights "if no prosecution is underway" by filing a motion for relief "in the district court in which the crime occurred."
Judge Hull filed a separate dissent. She joined Judge Branch's dissent in full, but wrote separately to discuss: (1) the majority skipped over the first en banc issue; (2) as to that first issue, under the plain language of the CVRA, victims have reasonable rights to confer with prosecutors and those rights attach pre-charge; (3) how the majority misapplied the Sandoval case;(4) the amicus brief submitted by three U.S. Senators in support of the proposition that the CVRA's plain text does not condition a victim's rights and remedy upon a preexisting indictment; and (5) the far-reaching consequences of the Majority's holding.
