In re: Courtney Wild

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 19-13843

________________________

D.C. Docket No. 9:08-cv-80736-KAM

In re: COURTNEY WILD,

Petitioner.

________________________

On Petition for Writ of Mandamus to the United States District Court for the

Southern District of Florida

________________________

(April 15, 2021)

Before WILLIAM PRYOR, Chief Judge, and WILSON, MARTIN, JILL PRYOR,

NEWSOM, BRANCH, LUCK, LAGOA, BRASHER, TJOFLAT, and HULL,

Circuit Judges.*

NEWSOM, Circuit Judge, delivered the opinion of the Court, 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,

II, III, IVA, IVB1-3a, IVC, IVD1, and V.

*

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.

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WILLIAM PRYOR, Chief Judge, filed a concurring opinion, in which NEWSOM,

LAGOA, and TJOFLAT, Circuit Judges, joined.

NEWSOM, Circuit Judge, filed a concurring opinion.

TJOFLAT, Circuit Judge, filed a concurring opinion, in which WILLIAM

PRYOR, Chief Judge, and WILSON, NEWSOM, and LAGOA, Circuit Judges,

joined.

BRANCH, Circuit Judge, filed a dissenting opinion, in which MARTIN, JILL

PRYOR, and HULL, Circuit Judges, joined.

HULL, Circuit Judge, filed a dissenting opinion.

NEWSOM, Circuit Judge:

This petition for writ of mandamus arises under the Crime Victims’ Rights

Act, 18 U.S.C. § 3771. Petitioner Courtney Wild is one of more than 30 women

who, according to allegations that we have no reason to doubt and therefore accept

as true in deciding this case, were victimized by notorious sex trafficker and child

abuser Jeffrey Epstein. In her mandamus petition, Ms. Wild asserts that when

federal prosecutors secretly negotiated and executed a non-prosecution agreement

with Epstein in 2007, they violated her rights under the CVRA—in particular, her

rights to confer with and to be treated fairly by the government’s lawyers.

We have the profoundest sympathy for Ms. Wild and others like her, who

suffered unspeakable horror at Epstein’s hands, only to be left in the dark—and, so

it seems, affirmatively misled—by government attorneys. Even so, we find

ourselves constrained to deny Ms. Wild’s petition. While the CVRA permits a

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crime victim like Ms. Wild to “mov[e]” for relief within the context of a

preexisting proceeding—and, more generally, to pursue administrative remedies—

it does not authorize a victim to seek judicial enforcement of her CVRA rights in a

freestanding civil action. Because the government never filed charges against

Epstein, there was no preexisting proceeding in which Ms. Wild could have moved

for relief under the CVRA, and the Act does not sanction her stand-alone suit.

I

A

The facts underlying this case, as we understand them, are beyond

scandalous—they tell a tale of national disgrace.

Over the course of eight years, between 1999 and 2007, well-heeled and

well-connected financier Jeffrey Epstein and multiple coconspirators sexually

abused more than 30 young girls, including Ms. Wild, in Palm Beach, Florida and

elsewhere in the United States and abroad. Epstein paid his employees to find girls

and deliver them to him—some not yet even 15 years old. Once Epstein had the

girls, he either sexually abused them himself, gave them over to be abused by

others, or both. Epstein, in turn, paid bounties to some of his victims to recruit

others into his ring.

Following a tip in 2005, the Palm Beach Police Department and the FBI

conducted a two-year investigation of Epstein’s conduct. After developing

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substantial incriminating evidence, the FBI referred the matter to the United States

Attorney’s Office for the Southern District of Florida. Beginning in January 2007,

and over the course of the ensuing eight months, Epstein’s defense team engaged

in extensive negotiations with government lawyers in an effort to avoid indictment.

At the same time, prosecutors were corresponding with Epstein’s known victims.

As early as March 2007, they sent letters advising each one that “as a victim and/or

witness of a federal offense, you have a number of rights.” The letters, which the

government distributed over the course of about six months, went on to enumerate

the eight CVRA rights then in force—including, as particularly relevant here,

“[t]he reasonable right to confer with the attorney for the [Government] in the

case” and “[t]he right to be treated with fairness and with respect for the victim’s

dignity and privacy.”

By May 2007, government lawyers had completed both an 82-page

prosecution memo and a 53-page draft indictment alleging that Epstein had

committed numerous federal sex crimes. In July, Epstein’s lawyers sent a detailed

letter to prosecutors arguing that, in fact, Epstein hadn’t broken any federal laws.

By mid-September, the sides had exchanged multiple drafts of what would become

an infamous non-prosecution agreement (NPA). Pursuant to their eventual

agreement, Epstein would plead guilty in Florida court to two state prostitution

offenses, and, in exchange, he and any coconspirators (at least four of whom have

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since been identified) would receive immunity from federal prosecution. 1 In June

2008, Epstein pleaded guilty to the state crimes as agreed and was sentenced to 18

months’ imprisonment, 12 months’ home confinement, and lifetime sex-offender

status.

The district court found that “[f]rom the time the FBI began investigating

Epstein until September 24, 2007”—when the government formally executed the

NPA with Epstein—federal prosecutors “never conferred with the victims about

a[n] NPA or told the victims that such an agreement was under consideration.”

Doe 1 v. United States, 359 F. Supp. 3d 1201, 1208 (S.D. Fla. 2019). Worse, it

appears that prosecutors worked hand-in-hand with Epstein’s lawyers—or at the

very least acceded to their requests—to keep the NPA’s existence and terms

hidden from victims. The NPA itself provided that “[t]he parties anticipate that

this agreement will not be made part of any public record” and, further, that “[i]f

the United States receives a Freedom of Information Act request or any

compulsory process commanding the disclosure of the agreement, it will provide

notice to Epstein before making that disclosure.” Moreover, at approximately the

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.

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same time that the sides concluded the NPA, they began negotiating about what

prosecutors could (and couldn’t) tell victims about the agreement. Seemingly in

deference to Epstein’s lawyers’ repeated requests, the government held off—for

nearly an entire year—on notifying Epstein’s victims of the NPA’s existence.

And to be clear, the government’s efforts appear to have graduated from

passive nondisclosure to (or at least close to) active misrepresentation. In January

2008, for example, approximately four months after finalizing and executing the

NPA, the government sent a letter to Ms. Wild stating that Epstein’s case was

“currently under investigation,” explaining that “[t]his can be a lengthy process,”

and “request[ing her] continued patience while [it] conduct[ed] a thorough

investigation.” The government sent a similar letter to another victim in May

2008, some eight months after inking the NPA. 2

If secrecy was the goal, it seems to have been achieved—there is no

indication that any of Epstein’s victims were informed about the NPA or his state

charges until after he pleaded guilty. On the day that Epstein entered his guilty

plea in June 2008, some (but by no means all) victims were notified that the federal

investigation of Epstein had concluded. But it wasn’t until July 2008—during the

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.

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course of this litigation—that Ms. Wild learned of the NPA’s existence, and until

August 2008 that she finally obtained a copy of the agreement.

We are doubtlessly omitting many of the sad details of this shameful story.

For our purposes, we needn’t discuss the particulars of Epstein’s crimes, or the fact

that the national media essentially ignored for nearly a decade the jailing of a

prominent financier for sex crimes against young girls. 3 Today, the public facts of

the case are well known—Epstein was eventually indicted on federal sex-

trafficking charges in the Southern District of New York, and in August 2019,

while awaiting trial, he was found dead in his jail cell of an apparent suicide.

B

In July 2008, Ms. Wild brought suit in the United States District Court for

the Southern District of Florida, styling her initial pleading—which she filed ex

parte, without naming a defendant—an “Emergency Victim’s Petition for

Enforcement of Crime Victim’s Rights Act.” As the district court explained,

“because no criminal case was pending” at the time—no federal charges having

been filed against Epstein or anyone else—Ms. Wild “filed [her] petition as a new

matter . . . which the Clerk of Court docketed as a civil action” against the United

3

Cf. David Folkenflik, A Dead Cat, A Lawyer’s Call And A 5-Figure Donation: How Media Fell

Short 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.

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States. Does v. United States, 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 the CVRA

and that by keeping her in the dark about their dealings with Epstein, federal

prosecutors had violated her rights under the Act—in particular, her rights “to

confer with the attorney for the Government in the case,” 18 U.S.C. § 3771(a)(5),

and “to be treated with fairness and with respect for [her] dignity and privacy,” id.

§ 3771(a)(8). 4 She asked the court to “order the United States Attorney to comply

with the provisions of the CVRA . . . .”

Over the course of the ensuing decade, the district court issued a number of

significant rulings. For our purposes, three of the court’s orders are particularly

important.

Initially, in 2011 the district court “addresse[d] the threshold issue whether

the CVRA attaches before the government brings formal charges against the

defendant.” Does, 817 F. Supp. 2d at 1341. The court held that “it does because

the statutory language clearly contemplates pre-charge proceedings.” Id. Having

made that determination, the district court “defer[red]” ruling on the question

whether federal prosecutors had violated the Act until the parties could conduct

additional discovery. Id. at 1343.

4

A second petitioner joined the suit shortly after it was filed. For simplicity’s sake, we will refer

to the present action as “Ms. Wild’s” suit.

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Following another eight years of litigation, the district court issued a pair of

rulings that prompted the mandamus petition now before us. In February 2019, the

court found that the government had infringed Ms. Wild’s CVRA rights. See Doe

1, 359 F. Supp. 3d at 1222. In particular, the court held that federal prosecutors

violated the Act by “enter[ing] into a[n] NPA with Epstein without conferring with

[Ms. Wild] during its negotiation and signing.” Id. at 1218. “Had [Ms. Wild] been

informed about the Government’s intention to forego [sic] federal prosecution of

Epstein in deference to him pleading guilty to state charges,” the district court

emphasized, she “could have conferred with the attorney for the Government and

provided input.” Id. The court concluded that it was precisely “this type of

communication between prosecutors and victims that was intended by the passage

of the CVRA.” Id. at 1219.

Having found CVRA violations, the court directed the parties—which by

then included Epstein as an intervenor—to address “the issue of what remedy, if

any, should be applied.” Id. at 1222. In response, Ms. Wild proposed multiple

remedies, including: (1) rescission of the NPA; (2) an injunction against further

CVRA violations; (3) an order scheduling a victim-impact hearing and a meeting

between victims and Alexander Acosta, the former United States Attorney for the

Southern District of Florida; (4) discovery of certain grand-jury materials, records

regarding prosecutors’ decision to enter into the NPA, and files concerning law-

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enforcement authorities’ investigation of Epstein; (5) mandatory CVRA training

for employees of the Southern District’s United States Attorney’s office; and (6)

sanctions, attorneys’ fees, and restitution. In August 2019, while the court was

considering the parties’ briefing regarding remedies, Epstein died of an apparent

suicide; his death prompted another round of briefing on the issue of mootness.

In September 2019, having considered the parties’ briefing and the impact of

Epstein’s death, the district court dismissed Ms. Wild’s suit, denying each of her

requested remedies. See Doe 1 v. United States, 411 F. Supp. 3d 1321 (S.D. Fla.

2019). In its order, the district court made a number of rulings. First, it held that

Epstein’s death mooted any claim regarding the NPA’s continuing validity, as he

was no longer subject to prosecution. See id. at 1326. Relatedly, the court

concluded that it lacked jurisdiction to consider Ms. Wild’s claim regarding the

validity of the NPA as it applied to Epstein’s coconspirators; any opinion regarding

that issue, the court determined, would be merely advisory because the

coconspirators—as non-parties to the suit—couldn’t be estopped from asserting the

NPA’s validity at any future prosecution. See id. at 1326–27. Second, the court

denied Ms. Wild’s request for an injunction on the ground that she had failed to

show “continuing, present adverse effects” or any “real and immediate” threat of

future CVRA violations. Id. at 1328. Third, the court rejected Ms. Wild’s requests

for a victim-impact hearing and a meeting with Acosta on the grounds that it

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lacked jurisdiction over Acosta, that she had already had the opportunity to

participate in an Epstein-related hearing in New York, that the Epstein prosecution

had concluded, and that the government had already agreed to confer with victims

concerning any ongoing investigation of Epstein’s coconspirators. See id. at 1328–

29. Fourth, the court denied Ms. Wild’s discovery requests for grand-jury

materials and investigative files. See id. at 1329–30. Fifth, the court declined to

order “educational remedies,” as the government had already agreed to implement

CVRA training for employees of the Southern District’s United States Attorney’s

office. Id. at 1330. And finally, the court rejected Ms. Wild’s request for

sanctions, fees, and restitution. See id. at 1330–31.

Seeking review of the district court’s order refusing every remedy that she

had sought, Ms. Wild filed—as the CVRA directs—a petition for writ of

mandamus with this Court. See 18 U.S.C. § 3771(d)(3) (stating that “[i]f the

district court denies the relief sought,” a victim “may petition the court of appeals

for a writ of mandamus”). The government filed a “brief in response” in which it

not only opposed Ms. Wild’s arguments on the merits, but also raised several

threshold arguments concerning the scope of the CVRA and the circumstances in

which rights under the Act are judicially enforceable.5

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).

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A divided panel of this Court denied Ms. Wild’s mandamus petition, holding

“that the CVRA does not apply before the commencement of criminal

proceedings—and thus, on the facts of this case, does not provide [Ms. Wild] any

judicially enforceable rights.” In re Wild, 955 F.3d 1196, 1220 (11th Cir. 2020),

reh’g en banc granted, opinion vacated, 967 F.3d 1285 (11th Cir. 2020).

A majority of the active judges of this Circuit voted to rehear the case en

banc, and we directed the parties to address two questions: (1) Whether the CVRA

creates rights that attach and apply before the formal commencement of criminal

proceedings; and (2) Whether, even assuming that it does so, the CVRA further

creates a private right of action, such that any pre-charge right is judicially

enforceable in a freestanding lawsuit.

In response to those questions, Ms. Wild contends that her rights “to confer

with the attorney for the Government in the case,” 18 U.S.C. § 3771(a)(5), and “to

be treated with fairness,” id. § 3771(a)(8), attached even before the commencement

of—and as it turns out, in the absence of—any criminal proceedings against

Epstein and, further, that the CVRA authorized her to seek judicial enforcement of

those rights in a stand-alone civil action. The government disputes both

propositions.6

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

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We conclude that we needn’t decide whether, in the abstract, the rights to

confer and to be treated with fairness might attach prior to the formal

commencement of criminal proceedings or whether, if they do, they might be

enforceable through, say, political or administrative channels. Nor, for that matter,

need we even decide whether, if the rights to confer and to be treated fairly apply

pre-charge, a victim could later seek to vindicate them during the course of an

ongoing criminal prosecution.7 Here, the only issue we have to confront is

whether the CVRA authorizes Ms. Wild to file a freestanding civil suit seeking

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

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 government’s 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 118. Because

the question we answer is different from the one presented in Dean, our decision creates no

circuit split, as our dissenting colleagues imply.

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judicial enforcement of her rights under the CVRA in the absence of any

underlying proceeding. 8 For reasons we’ll explain, we hold that it does not. 9

Before jumping into the merits, we begin with an introductory summary of

the CVRA’s key provisions.

II

The CVRA is a compact statute, occupying but one section (and only three

pages) of the United States Code. See 18 U.S.C. § 3771. The entire Act comprises

just six subsections, the pertinent portions of which we will outline briefly.

The CVRA opens, in subsection (a), with a catalogue of “rights” that federal

law guarantees to “crime victims.” (The Act separately defines 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)(2)(A).) The version of the CVRA

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. Att’y 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 157;

see also Branch Dissenting Op. at 111. 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, 138 S. Ct. 577, 589 n.7 (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 111–120; Hull Dissenting Op. at 157–164.

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in effect during the events in question here—between 2006 and 2008—stated as

follows:

(a) Rights of crime victims.—A crime victim has the following

rights:

(1) The right to be reasonably protected from the accused.

(2) The right to reasonable, accurate, and timely notice of any

public court proceeding, or any parole proceeding, involving the

crime or of any release or escape of the accused.

(3) The right not to be excluded from any such public court

proceeding, unless the court, after receiving clear and convincing

evidence, determines that testimony by the victim would be

materially altered if the victim heard other testimony at that

proceeding.

(4) The right to be reasonably heard at any public proceeding in the

district court involving release, plea, sentencing, or any parole

proceeding.

(5) The reasonable right to confer with the attorney for the

Government in the case.

(6) The right to full and timely restitution as provided in law.

(7) The right to proceedings free from unreasonable delay.

(8) The right to be treated with fairness and with respect for the

victim’s dignity and privacy.

Id. § 3771(a).

Subsection (b), titled “Rights afforded,” focuses specifically on courts’

responsibilities under the Act. Subsection (b)(1) states that “[i]n any court

proceeding involving an offense against a crime victim, the court shall ensure that

the crime victim is afforded the rights described in subsection (a).” Id.

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§ 3771(b)(1). Subsection (b)(2) pertains to “Federal habeas corpus proceeding[s]”

and provides that the “court shall ensure” that the victim is afforded a more limited

set of rights. Id. § 3771(b)(2).

Subsection (c), titled “Best efforts to accord rights,” imposes obligations on

non-judicial actors. One of its constituent clauses—which Ms. Wild calls the

“coverage” provision—states as follows:

Officers 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 make their best

efforts to see that crime victims are notified of, and accorded, the

rights described in subsection (a).

Id. § 3771(c)(1).

Subsection (d) addresses “Enforcement and limitations.” It opens by stating

that either the crime victim, her authorized representative, or the government “may

assert the rights described in subsection (a).” 18 U.S.C. § 3771(d)(1). The balance

of subsection (d) prescribes exactly how, when, and where those rights may be

asserted, as well as the limitations on judicial enforcement. In that connection,

several of subsection (d)(3)’s provisions are particularly relevant here. First, and

most obviously given its title—“Motion for relief and writ of mandamus”—

subsection (d)(3) gives victims a “motion” remedy in the district court and a

mandamus remedy in the court of appeals. With respect to the former, subsection

(d)(3) states that “[t]he district court shall take up and decide any motion asserting

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a victim’s right forthwith.” Id. § 3771(d)(3). And with respect to the latter, it

provides that “[i]f the district court denies the relief sought, the movant may

petition the court of appeals for a writ of mandamus.” Id. Another of subsection

(d)(3)’s provisions—which Ms. Wild calls the “venue” provision—states that

“[t]he rights described in subsection (a) shall be asserted in the district court in

which a defendant is being prosecuted for the crime or, if no prosecution is

underway, in the district court in the district in which the crime occurred.” Id.

§ 3771(d)(3).

Subsection (d)(6), titled “No cause of action,” also contains two pertinent

provisions. First, it states that “[n]othing in this chapter shall be construed to

authorize a cause of action for damages.” Id. § 3771(d)(6). Second, and

separately, it emphasizes that “[n]othing in this chapter shall be construed to impair

the prosecutorial discretion of the Attorney General or any officer under his

direction.” Id.

Finally, subsection (f) instructs the Attorney General 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)(1). (We’ve already introduced subsection (e), which defines the term

“crime victim.”) Subsection (f) specifies that the regulations “shall”—among other

things—(1) “designate an administrative authority within the Department of Justice

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to receive and investigate complaints relating to the provision or violation of the

rights of a crime victim,” (2) “contain disciplinary sanctions, including suspension

or termination from employment, for employees of the Department of Justice 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 no

judicial review” of his decision. Id. § 3771(f)(2).

Pursuant to subsection (f)’s directive, the Attorney General adopted

administrative-enforcement regulations, which are codified at 28 C.F.R. § 45.10.

The regulations establish “Victims’ Rights Ombudsman” and “point of contact”

offices within the Department of Justice and create a detailed administrative

“[c]omplaint process.” 28 C.F.R. § 45.10(b)–(c). They require an alleged victim’s

complaint to include, among other information, “[t]he district court case number”

and “[t]he name of the defendant in the case.” Id. § 45.10(c)(2)(iii)–(iv). Upon

receipt of a complaint, the designated point of contact “shall investigate the

allegation(s) . . . within a reasonable period of time” and then “report the results of

the investigation to” the Ombudsman, who, in turn, may conduct any “further

investigation” that he deems warranted. Id. § 45.10(c)(4)–(6). If the Ombudsman

determines that a victim’s rights have been violated, he “shall require” the

offending employee “to undergo training on victims’ rights,” and if the

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Ombudsman finds a willful violation, he “shall recommend” to the offending

employee’s superior an additional “range of disciplinary sanctions.” Id.

§ 45.10(d)–(e). As required by statute, the regulations provide that the

Ombudsman’s decision is final and that “[a] complainant may not seek judicial

review of the [Ombudsman’s] determination regarding the complaint.” Id.

§ 45.10(c)(8).

With that primer, we proceed to address Ms. Wild’s case. 10

III

As already noted, Ms. Wild initiated this litigation by filing, ex parte, a

document styled an “Emergency Victim’s Petition for Enforcement of Crime

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 (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)—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.

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Victim’s Rights Act.” As the district court explained, “because no criminal case

was pending” at the time, Ms. Wild “filed [her] petition as a new matter,” which

the court clerk “docketed as a civil action” against the United States. Does, 817 F.

Supp. 2d at 1341 n.4. A threshold—and we find dispositive—question is whether

the CVRA authorized Ms. Wild to file what was, in essence, a freestanding

lawsuit, before the commencement of (and in the absence of) any preexisting

criminal proceeding.

In determining whether any federal statute empowers a would-be plaintiff to

file suit to vindicate her rights, our lodestar is Alexander v. Sandoval, in which the

Supreme Court (reversing an erroneous decision of ours) unequivocally “swor[e]

off” its old “habit of venturing beyond Congress’s intent” to liberally “imply”

private rights of action in favor of a rigorous attention to statutory text and

structure. 532 U.S. 275, 287 (2001). “Like substantive federal law itself,” the

Court explained there, “private rights of action to enforce federal law must be

created by Congress.” Id. at 286. Accordingly, the Court emphasized, “[t]he

judicial task” is straightforward: A reviewing court must “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.” Id. (emphasis added). In making the

latter determination, the Supreme Court said, “[s]tatutory intent . . . is

determinative.” Id. Absent a clear expression of congressional intent to authorize

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a would-be plaintiff to sue, “a cause of action does not exist and courts may not

create one, no matter how desirable that might be as a policy matter, or how

compatible with the statute.” Id. at 286–87. Moreover, a reviewing court may not

plumb a statute’s supposed purposes and policies in search of the requisite intent to

create a cause of action; rather, the inquiry both begins and ends with a careful

examination of the statute’s language. Id. at 288. Finally—and as it turns out

importantly here—the Supreme Court observed that “[t]he express provision of

one method of enforcing a substantive rule suggests that Congress intended to

preclude others.” Id. at 290.11

In the two decades since Sandoval was decided, we have faithfully heeded

the Supreme Court’s directives and have demanded clear evidence of

congressional intent as a prerequisite to a private right of action. See, e.g., Love v.

Delta Air Lines, 310 F.3d 1347, 1358–59 (11th Cir. 2002) (conducting Sandoval

analysis of Air Carrier Access Act); see also, e.g., Bellitto v. Snipes, 935 F.3d

1192, 1202–03 (11th Cir. 2019) (Help America Vote Act); Alabama v. PCI

Gaming Auth., 801 F.3d 1278, 1296–97 (11th Cir. 2015) (Indian Gaming

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 124–128;

Hull Dissenting Op. at 174–75. 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 (emphasis

added).

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Regulatory Act); DirecTV, Inc. v. Treworgy, 373 F.3d 1124, 1129 (11th Cir. 2004)

(Wiretap Act); McDonald v. S. Farm Bureau Life Ins. Co., 291 F.3d 718, 723 (11th

Cir. 2002) (Federal Insurance Contributions Act).

So the question here, all must agree, is whether in enacting the CVRA

Congress clearly and affirmatively manifested its intent—as reflected in the Act’s

text and structure—to create a private right of action by which a crime victim can

(as Ms. Wild did here) initiate a freestanding lawsuit to enforce her rights before

the formal commencement of any criminal proceeding.

IV

To answer that question, we naturally train our focus on the provisions of the

CVRA that prescribe—and circumscribe—judicial involvement and enforcement.

Doing so, we find no clear evidence that Congress intended to authorize crime

victims to seek judicial enforcement of CVRA rights prior to the commencement

of criminal proceedings.

Only two provisions of the Act speak directly to the issue of judicial

enforcement—§ 3771(b) and § 3771(d). Neither, we 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

enforce those rights before the commencement of criminal proceedings. And the

evidence from the remainder of the CVRA—in particular from § 3771(f), which

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prescribes and details a mechanism for administrative enforcement—confirms our

conclusion that Congress didn’t clearly manifest its intent to authorize crime

victims to file stand-alone civil actions.

A

First up is § 3771(b), which is titled “Rights afforded.” To the extent that

§ 3771(b) bears on the question before us, it strongly indicates that the CVRA does

not authorize judicial enforcement outside the context of a preexisting proceeding.

Subsection (b)(1) states that “[i]n any court proceeding involving an offense

against a crime victim, the court shall ensure that the crime victim is afforded the

rights described in subsection (a).” Separately, subsection (b)(2) states that “[i]n a

Federal habeas corpus proceeding arising out of a State conviction”—i.e., a

proceeding under 28 U.S.C. § 2254—“the court shall ensure that a crime victim is

afforded the rights described in paragraphs (3), (4), (7), and (8) of subsection (a).”

Section 3771(b) is the only provision of the CVRA that expressly directs the

judiciary, in particular, to “ensure” that victims’ rights are protected, and it

contains no suggestion that the Act provides for judicial enforcement of crime

victims’ rights outside the confines of a preexisting “proceeding.” Quite the

contrary, subsection (b) indicates that courts’ responsibilities to enforce victims’

rights (as distinct from the responsibilities of other government actors) arise only

in the context of the “proceeding[s]” pending before them.

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B

Far more important to our inquiry is § 3771(d), on which Ms. Wild

principally relies. Subsection (d) is titled “Enforcement and limitations,” and it

prescribes the logistics and limits of judicial enforcement of victims’ CVRA rights.

1

As evidence that the CVRA creates a private right of action, Ms. Wild points

to § 3771(d)(1), which provides, in relevant part, that “[t]he crime victim . . . may

assert the rights described in subsection (a).” See Oral Arg. at 58:05. But Ms.

Wild needs more than just a mechanism for “assert[ing]” her rights in court. Given

the 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

district court, outside the context of any preexisting criminal prosecution, see

Does, 817 F. Supp. 2d at 1341 n.4—she must demonstrate that the CVRA creates a

mechanism for vindicating her rights in a stand-alone civil action.

We hold that subsection (d) does not create a private right of action by

which a victim can initiate a freestanding lawsuit, wholly unconnected to any

preexisting criminal prosecution and untethered to any proceeding that came

before it. That is so for several reasons, which we will examine in detail before

turning to Ms. Wild’s counterarguments.

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2

Perhaps most compellingly, subsection (d)(3) specifies that a crime victim’s

vehicle for “assert[ing]” her CVRA rights is a “[m]otion for relief” in the district

court and, further, that “[t]he district court shall take up and decide any motion

asserting a victim’s right forthwith.”

“As in all cases involving statutory construction . . . we assume that the

legislative purpose is expressed by the ordinary meaning”—not the idiosyncratic

meaning—“of the words used.” Am. Tobacco Co. v. Patterson, 456 U.S. 63, 68

(1982) (quotation marks 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., Motion, Black’s Law Dictionary (10th

ed. 2014) (“Frequently, in the progress of litigation, it is desired to have the court

take some action which is incidental to the main proceeding . . . . Such action is

invoked by an application usually less formal than the pleadings, and called a

motion.” (quoting John C. Townes, Studies in American Elementary Law 621

(1911) (emphasis added)); see also 56 Am. Jur. 2d Motions, Rules, and Orders § 1

(2020) (“The term ‘motion’ generally means 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

in a pending case.” (footnotes omitted and emphasis added)); 60 C.J.S. Motions

and Orders § 1 (2020) (“The term ‘motion’ generally means an application made

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to a court or judge for the purpose of obtaining a rule or order directing some act to

be done in favor of the applicant in a pending case. A motion is a request for

relief, usually interlocutory relief, within a case.” (footnotes omitted and emphasis

added)); Motion (Movant or Move), The Wolters Kluwer Bouvier Law Dictionary:

Desk Edition (Stephen Michael Sheppard, ed., 2012) (“A motion is presented to a

court in a pending action. . . .” (emphasis added)).

Just as importantly here—if not more so—the term “motion” has never been

commonly understood to denote a vehicle for initiating a new and freestanding

lawsuit. As one legal encyclopedia summarizes matters: “The function of a

motion is not to initiate new litigation, but to bring before the court for ruling some

material but incidental matter arising in the progress of the case in which the

motion is filed. A motion is not an independent right or remedy . . . .” 56 Am. Jur.

2d, supra, § 1 (footnotes omitted and emphasis added). A new suit is generally

commenced through a “complaint,” which (per the Federal Rules of Civil

Procedure) is a form of “pleading” and thus distinct from a “motion.” See Fed. R.

Civ. P. 3, 7. “[A] motion,” put simply, “is not a pleading.” Garner’s Dictionary of

Legal Usage 591 (3d ed. 2011).12

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 129–130; Hull Dissenting Op. at 177

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.

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The closest that the law seems to have come to using the word “motion” to

signify an instrument for initiating a new action is 28 U.S.C. § 2255, which

authorizes a federal prisoner to file a “motion” to “vacate, set aside or correct” his

criminal sentence. But § 2255 doesn’t truly reflect an understanding of the term

“motion” as a means of commencing a stand-alone lawsuit, because—and to be

clear, our dissenting colleagues don’t dispute any of this—a convicted defendant

files his so-called “motion” in “the court which imposed [his] sentence” and,

indeed, in his closed criminal case. 28 U.S.C. § 2255(a)–(f); see also Rules

Governing Section 2255 Proceedings for the United States District Courts, Rule

3(b) (stating that once the inmate has filed his motion with the clerk, “[t]he clerk

must file the motion and enter it on the criminal docket of the case in which the

challenged judgment was entered”). Accordingly, “a motion under § 2255 is a

further step in the movant’s criminal case and not a separate civil action.” Id.,

Rule 1 advisory committee’s note (emphasis added). So even a § 2255 “motion”

presupposes a preexisting criminal proceeding. 13

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

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Moreover, it’s not just that Ms. Wild’s position would require us to give the

word “motion” a peculiar meaning, but also (and worse) that it would require us to

give that word—not the same word repeated twice in the same sentence or

paragraph, 14 but the very same word—two different meanings, depending on the

circumstances. If (as the statute plainly envisions) a crime victim asserts her rights

in the course of a preexisting proceeding, then the term “motion” in § 3771(d)(3)

carries its ordinary meaning—i.e., a request for relief made in a pending action. If,

by contrast, a victim were to seek to assert her rights before any criminal

prosecution has commenced, then the term would take on the specialized,

decidedly un-ordinary meaning that the legal dictionaries and encyclopedias

expressly condemn. We are loathe to ascribe an idiosyncratic meaning to the word

“motion,” and we are doubly loathe to ascribe such different meanings to the very

same word.15

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 (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

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Additional context from subsection (d)(3) confirms our ordinary-meaning

conclusion that the CVRA’s “motion” remedy specifies a means of judicial

enforcement within the confines of a preexisting proceeding. The subsection’s

third sentence begins, “If the district court denies the relief sought, the movant”—

note, not “the plaintiff”—“may petition the court of appeals for a writ of

mandamus.” 18 U.S.C. § 3771(d)(3). The subsection then directs the court of

appeals (at least in the absence of the sort of agreement the parties reached here) to

“take up and decide” the mandamus petition “within 72 hours.” Id. Importantly

here, the provision continues by stating that “[i]n no event shall proceedings be

stayed or subject to a continuance of more than five days for purposes of enforcing

this chapter.” Id. (emphasis added). That last sentence further demonstrates that

Congress envisioned that judicial involvement and enforcement in CVRA matters

would occur only in the context of preexisting “proceedings.” Id.

In sum, Congress has given crime victims a specific means of judicial

enforcement, a “motion”—which both plain-meaning and contextual

considerations confirm denotes a vehicle for seeking relief within the context of a

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 (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.”).

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preexisting case, not for initiating a freestanding civil action. And as the Supreme

Court emphasized in Sandoval—and as we will further unpack shortly in

examining the CVRA’s administrative-enforcement apparatus—“[t]he express

provision of one method of enforcing a substantive rule suggests that Congress

intended to preclude others.” 532 U.S. at 290; see also, e.g., PCI Gaming Auth.,

801 F.3d at 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)).

3

Subsection (d)(6), which is conspicuously titled “No cause of action,”

bolsters our view that the CVRA doesn’t authorize a crime victim to file a

freestanding civil action to assert her rights even before the commencement of—

and in the absence of—criminal proceedings.

a

Perhaps most starkly, subsection (d)(6)’s first sentence states that “[n]othing

in this chapter shall be construed to authorize a cause of action for damages . . . .”

Far from a Sandoval-qualifying clear statement of congressional intent to create a

private right of action, that provision very nearly forecloses one. Of course, one

might object—as our dissenting colleagues do—that subsection (d)(6) doesn’t

expressly rule out a private suit for declaratory or injunctive relief. But under

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Sandoval and its progeny, the question isn’t whether Congress “intended to

preclude” a private right of action, see Branch Dissenting Op. at 141–42, but

rather, whether it intended to provide one. There is certainly nothing in subsection

(d)(6)’s first sentence to suggest that it did.

Contrast, by way of example, 18 U.S.C. § 2255, which expressly creates a

“[c]ivil remedy for personal injuries” arising out of particular child-sex crimes.

That statute specifies that a minor victim “who suffers personal injury” as a result

of a violation of any of various federal criminal statutes can “sue in any

appropriate United States District Court” and recover compensatory and punitive

damages and, if appropriate, “preliminary and equitable 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 CVRA, it presumably would have enacted some provision

that resembles § 2255. It didn’t even come close, and its “silence” in that respect

“is controlling.” Freemanville Water Sys., Inc. v. Poarch Band of Creek Indians,

563 F.3d 1205, 1209 (11th Cir. 2009).

b

Subsection (d)(6)’s second sentence weighs even more heavily in our

calculus: “Nothing in this chapter shall be construed to impair the prosecutorial

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discretion of the Attorney General or any officer under his direction.” 18 U.S.C.

§ 3771(d)(6). To imply a private right of action authorizing a crime victim to file a

freestanding lawsuit, even before the commencement of criminal proceedings, we

would 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 reasons we will explain, Ms. Wild’s “constru[ction]”

of the CVRA would seriously “impair . . . prosecutorial discretion,” in direct

contravention of the Act’s plain terms.

Broadly defined, the term “prosecutorial discretion” refers to the soup-to-

nuts entirety of “[a] prosecutor’s power to choose from the options available in a

criminal case, such as filing charges, prosecuting, not prosecuting, plea-bargaining,

and recommending a sentence to the court.” Prosecutorial Discretion, Black’s

Law Dictionary (10th ed. 2014). The core of prosecutorial discretion, though—its

essence—is the decision whether or not to charge an individual with a criminal

offense in the first place. The Supreme Court has repeatedly reaffirmed the

principle—which dates back centuries—that “the Executive Branch has exclusive

authority and absolute discretion to decide whether to prosecute a case.” United

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States v. Nixon, 418 U.S. 683, 693 (1974) (citing Confiscation Cases, 74 U.S. (7

Wall.) 454 (1869)).16

Ms. Wild’s interpretation of the CVRA risks “impair[ing] . . . prosecutorial

discretion” in at least two fundamental ways, which we will examine in turn.

i

As an initial matter, consider that the very first determination that a court

must make when asked to enforce the CVRA is whether the party seeking the

Act’s benefit is a “crime victim.” That’s because the CVRA’s opening provision

makes clear that the Act’s protections—the rights enumerated therein—are

available only to “crime victim[s].” 18 U.S.C. § 3771(a) (“A crime victim has the

following rights . . . .”). Notably for our purposes, the CVRA defines the term

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 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 (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)).

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“crime victim” to mean “a person directly and proximately harmed as a result of

the commission of a Federal offense.” Id. § 3771(e)(2)(A). Accordingly, any

individual asserting rights under the CVRA must, at the very outset, demonstrate to

the district court that she is a “crime victim” entitled to statutory protection. And,

given the statutory definition’s terms, in order to determine whether the individual

has made the requisite showing, the court must decide whether a “Federal offense”

has occurred. When a prosecutor has already commenced criminal proceedings

against an identifiable individual for a specific crime, that prosecutor has made at

least a presumptive determination that the individual has in fact committed a

“Federal offense.” So, as applied in the context of a preexisting criminal

proceeding, the “crime victim” determination is straightforward: An individual

who has been “directly and proximately harmed” as a result of the conduct charged

by the government is entitled to CVRA protection and may assert her rights in

court accordingly.

Not so outside the context of a preexisting criminal proceeding. In that

circumstance, if an individual were to assert CVRA rights as a “crime victim,” the

court would first have to determine—but this time without any initial

determination by the government in the form of a charging decision and, indeed,

presumably while the government’s investigation remains ongoing—whether or

not a “Federal offense” has been committed. That scenario—which is a necessary

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consequence of Ms. Wild’s interpretation—presents at least three intractable

problems.

First, and most obviously, that reading puts the cart before the horse: When

else, if ever, is a court called on to decide whether an “offense” (i.e., a crime) has

occurred—as opposed to a moral wrong more generally—before the government

has even decided to press charges? The answer, so far as we are aware, is never.

Second, how, in the absence of a charging decision, would the court even go about

ascertaining whether an “offense” had occurred? What would that proceeding look

like? A mini- (or perhaps not-so-mini-) trial in which the court finds facts and

makes legal determinations regarding an “offense” yet to be named? Finally, and

in any event, it seems obvious to us that simply by conducting such a proceeding

and by concluding (up front) that an “offense” has—or hasn’t—occurred, the court

would not only exert enormous pressure on the government’s charging decisions,

but also likely frustrate the government’s ongoing investigation. The

“impair[ment]” of prosecutorial discretion would be palpable.17

17

To be clear, it’s 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 152–53. 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 152.

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ii

Separately, even if the threshold “crime victim” barrier could be overcome,

the judicial enforcement of CVRA rights in the pre-charge phase would risk unduly

impairing prosecutorial discretion. Consider first, as a baseline, how CVRA

enforcement ordinarily occurs—post-charge, during the course of an ongoing

prosecution. There, a crime victim who believes that government lawyers have

violated her rights is quite unlikely to request the sort of extraordinary affirmative

injunction that Ms. Wild sought here—a directive “order[ing]” prosecutors to

confer with her and treat her fairly. Instead, she will simply ask the court to

decline to take some action that prosecutors (or the defendant, or perhaps both)

have advocated, on the ground that her statutory rights haven’t been respected. So,

for instance, a victim complaining that government lawyers set a hearing without

properly notifying her, see 18 U.S.C. § 3771(a)(2)–(4), will ask the court to delay

the hearing. A victim who asserts that prosecutors struck a plea deal without

consulting her, see id. § 3771(a)(5), will ask the court to reject the agreement.

Importantly here, while such requests provide the victim complete relief, they

don’t meaningfully impinge on post-charge prosecutorial prerogatives because a

district court already has near-plenary control over its own docket and substantial

discretion over whether to accept or reject a plea deal. Any marginal “impair[ment

of] prosecutorial discretion” is therefore negligible.

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Outside the context of a preexisting criminal proceeding, by contrast, the

situation is starkly different, and the intrusion is significantly greater. It is in that

circumstance, as the facts and procedural history of this case demonstrate, that a

victim—there being no hearing to delay or agreement to challenge—will be left to

ask the court (as Ms. Wild did here) to “order” prosecutors to confer with her or to

treat her “fair[ly].” It is hard to imagine a more significant “impair[ment of]

prosecutorial discretion” than a district court’s injunction affirmatively ordering

government lawyers (presumably on pain of contempt) to conduct their

prosecution of a particular matter in a particular manner.

To be clear, even if all that Ms. Wild’s interpretation risked was pre-charge

judicial intervention in ongoing 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 issue injunctions requiring consultation with victims (to

name just a few examples) before law-enforcement raids, warrant applications,

arrests, witness interviews, lineups, and interrogations. Needless to say, that would

work an extraordinary expansion of an already-extraordinary statute. But there’s

even more at stake here. What about the circumstance in which a prosecutor has

declined to bring charges because she has determined that no crime was

committed? Or, as in this case, where the prosecutor has simply made the decision

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(right or wrong) that it isn’t a wise use of government resources to litigate whether

a federal crime occurred because the presumed perpetrator is already slated to

serve time in state prison? Ms. Wild’s reading of the CVRA would permit a

putative victim to challenge the correctness, in either case, of the prosecutor’s no-

charge decision in court—effectively appealing the prosecutor’s exercise of

discretion to a federal district judge. Judicial review of a prosecutor’s decision

whether to prosecute is the very quintessence of an “impair[ment of] prosecutorial

discretion.”18

* * *

The commencement of criminal proceedings marks a clear and sensible

boundary on the prosecutorial-discretion spectrum. Before charges are filed—

when the government is still in the process of investigating and deciding “whether

to prosecute”—its authority and discretion are understood to be “exclusive” and

“absolute.” Nixon, 418 U.S. at 693. By contrast, once the charging decision is

made, the prosecutor steps into the court’s jurisdiction—its “house,” so to speak—

and thus necessarily cedes some of her control of the course and management of

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 153–54. To be clear, though, § 3771(d)(6) is not a panacea against

“constru[ctions]” 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.

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the case. From that point forward, the court will “assume a more active role in

administering adjudication of a defendant’s guilt and determining the appropriate

sentence.” United States v. Fokker Servs. B.V., 818 F.3d 733, 737 (D.C. Cir.

2016). Interpreting the CVRA to authorize judicial enforcement only in the

context of a preexisting proceeding—as its terms plainly permit—thus squares

with the background expectation of judicial involvement. Reading the Act to

provide a private right of action for pre-charge judicial enforcement, by contrast,

contravenes the background expectation of executive exclusivity. 19

C

The CVRA’s final provision—§ 3771(f)—further demonstrates that the Act

doesn’t create a private right of action authorizing a crime victim to file a

freestanding, pre-charge lawsuit to vindicate her statutory rights. In addition to the

limited “motion” remedy specified in subsection (d)(3) and discussed already,

subsection (f)—titled “Procedures to promote compliance”—mandates the

19

Our dissenting colleagues’ assertion that “concern[s] about impairment of prosecutorial

discretion appl[y] equally post-indictment” (Branch Dissenting Op. at 153) 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[]” 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 155; see also Hull Dissenting Op. at

177. 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.

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promulgation of regulations to administratively “enforce the rights of crime

victims and to ensure compliance by responsible officials” with CVRA rights, and

then goes on to require that those regulations include a mechanism for “receiv[ing]

and investigat[ing] complaints,” for prescribing “training” for non-compliant DOJ

employees, and for imposing “disciplinary sanctions” on willful violators. 18

U.S.C. § 3771(f)(1)–(2). As already explained, the Attorney General implemented

subsection (f)’s directive by adopting regulations that not only prescribe a detailed

administrative “[c]omplaint process” but also require DOJ officials to promptly

“investigate” any alleged CVRA violations, “report the results of the investigation”

up the chain, and, if violations are found, to impose a “range of disciplinary

sanctions.” 28 C.F.R. § 45.10(b)–(e). Both the Act and its implementing

regulations expressly forbid “judicial review” of any administrative determination.

See 18 U.S.C. § 3771(f)(2); 28 C.F.R. § 45.10(c)(8).

Congress’s decision to direct the establishment of a robust administrative-

enforcement scheme severely undermines any suggestion that (without saying so)

it intended to authorize crime victims to file stand-alone civil actions in federal

court. Our post-Sandoval decision in Love v. Delta Air Lines, 310 F.3d 1347 (11th

Cir. 2002), illustrates that very point, against a remedial backdrop that bears some

similarity to the CVRA. There, we held that Congress had not created a private

right of action to enforce the prohibition on disability-based discrimination under

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the Air Carrier Access Act. Id. at 1358–59. We reiterated Sandoval’s teaching

that “[s]tatutory intent” to create a private remedy “is determinative,” and we

recalled our own earlier observation that “[t]he bar for showing [the required]

legislative intent is high.” Id. at 1352–53 (quotation marks and citations omitted).

Most notably for present purposes, we observed (once again echoing Sandoval)

that if a statute “provides a discernible enforcement mechanism . . . we ought not

imply a private right of action because ‘[t]he express provision of one method of

enforcing a substantive rule suggests that Congress intended to preclude others.’”

Id. at 1353.

We emphasized in Love that the Air Carriers Access Act embodied its own

remedial apparatus, which we described as having two parts. First, the Act created

“an elaborate administrative enforcement scheme”—which, among other things,

permitted aggrieved individuals to file complaints with the Department of

Transportation, required the Department to investigate those complaints, and

authorized the Department to impose a range of sanctions. Id. at 1354–55, 1358.

Second, the Act authorized what we called “a limited form of judicial review”—in

particular, it permitted “an individual with ‘a substantial interest’ in a DOT

enforcement action [to] petition for review in a United States Court of Appeals.”

Id. at 1356, 1358. That two-track remedial regime, we concluded, “belie[d] any

congressional intent” to create a freestanding “private right to sue in a federal

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district court.” Id. at 1354. Finding ourselves bound by Congress’s intent—as

reflected in statutory text and structure—we held that we couldn’t “create by

implication a private right of action, no matter how socially desirable or otherwise

warranted the result may be.” Id. at 1359–60.

Love’s rationale—which, as noted, follows straightaway from Sandoval—

maps onto this case pretty closely. Just as it did in the Air Carrier Access Act, in

the CVRA Congress created both a robust administrative-enforcement regime—

complete with “complaints,” “investigat[ions],” “decision[s],” and “sanctions”—

and a “limited” means of judicial review—namely, subsection (d)(3)’s “motion”

remedy. The same conclusion that we reached in Love thus likewise follows here:

Congress’s “express provision of one method of enforcing a substantive rule”—or

as in Love, two methods—“suggests that [it] intended to preclude others.” Love,

310 F.3d at 1353 (quotations marks omitted) (quoting Sandoval, 532 U.S. at 290).

And indeed, as the Supreme Court emphasized in Sandoval, “[s]ometimes

th[at] suggestion is so strong that it precludes a finding of congressional intent to

create a private right of action . . . .” 532 U.S. at 290. 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, contemplates a

preexisting criminal proceeding. 18 U.S.C. § 3771(d)(5). In particular, the Act

states that a victim may move to re-open a plea or sentence “only if,” among other

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things, she “asserted the right to be heard before or during the proceeding at issue

and such right was denied.” Id. (emphasis added). In contrast to that remedial

mismatch with Ms. Wild’s requests, the administrative-enforcement process

specifically provides for some of the very forms of relief that Ms. Wild sought

here. See id. § 3771(f)(2) (requiring administrative-enforcement regulations to

provide for “training” and “disciplinary sanctions”); see also 28 C.F.R. § 45.10(d)–

(e) (providing for same).

Second, and relatedly, Ms. Wild’s interpretation—that the CVRA authorizes

her to bring a stand-alone civil action—contravenes the Act’s clear statement that

“there shall be no judicial review of the final decision of the Attorney General by a

complainant.” 18 U.S.C. § 3771(f)(2)(D); see also 28 C.F.R. § 45.10(c)(8) (“A

complainant may not seek judicial review of the [Victims’ Rights Ombudsman’s]

determination regarding the complaint.”). On Ms. Wild’s reading, any victim

dissatisfied with the result of her administrative-complaint process could simply

file a freestanding suit seeking the same relief, thereby circumventing the Act’s

prohibition on judicial review of agency determinations.

It is difficult—if not impossible—to reconcile Ms. Wild’s freestanding pre-

charge suit for judicial enforcement of her CVRA rights with the administrative-

enforcement scheme that the Act establishes for addressing alleged violations.

That difficulty constitutes still further evidence that Congress hasn’t clearly

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manifested its intent to authorize stand-alone civil actions of the sort that Ms. Wild

filed here.20

* * *

In sum, we find that numerous aspects of the CVRA—among them,

subsection (d)(3)’s specification of a “motion” remedy and warning against

appellate review unduly delaying ongoing “proceedings,” subsection (d)(6)’s “[n]o

cause of action” language and prohibition on any construction of the Act that

would “impair . . . prosecutorial discretion,” and subsection (f)’s establishment of a

detailed administrative-enforcement apparatus—preclude any conclusion that the

Act reflects a Sandoval-qualifying clear expression of congressional intent to

authorize a crime victim to file a freestanding civil action.

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 145, 148. 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. 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. The point for present purposes is that in the

Sandoval era the significance of an administrative apparatus is that it “suggests that Congress

intended to preclude other” means of enforcement. Id. at 290.

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D

Against all this, Ms. Wild relies on two provisions of the CVRA that, she

insists, authorize her to seek pre-charge judicial enforcement of her statutory

rights. Neither, we conclude, clearly demonstrates Congress’s intent to create a

private right of action.

1

First, and most prominently, Ms. Wild points to a single sentence—or, more

precisely, a single comma phrase—in § 3771(d)(3), which she calls the Act’s

“venue” provision: “The rights described in subsection (a) shall be asserted in the

district court in which a defendant is being prosecuted for the crime or, if no

prosecution is underway, in the 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 must mean that CVRA rights can be

enforced in court before the commencement of criminal proceedings and,

therefore, that subsection (d)(3)’s “motion” remedy must constitute a Sandoval-

qualifying expression of clear congressional intent to create a private right of

action that would authorize a stand-alone pre-charge civil action. We respectfully

disagree. Subsection (d)(3) could just as easily—and far more sensibly, given the

statutory context and the practical and constitutional problems that Ms. Wild’s

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interpretation would entail—be understood to refer to the period after a

“prosecution” has run its course and resulted in a final judgment of conviction.

Ms. Wild and the district court read the “no prosecution is underway” clause

to say, in effect, “no prosecution is [yet] underway”—thereby necessarily pointing

to the period before the prosecution’s commencement. But subsection (d)(3) is

temporally agnostic—on its face, it could well mean that “no prosecution is [still]

underway.” Cf. Underway, Oxford English Dictionary, https://oed.com (last

visited Jan. 8, 2021) (defining “underway” as it pertains to “a process, project, [or]

activity” to mean “set in progress; in the course of happening or being carried

out”); Under way, Merriam-Webster’s Collegiate Dictionary 1365 (11th ed. 2014)

(defining “under way” to mean “in progress: AFOOT”). So understood, the

CVRA would sensibly permit a victim to file a post-prosecution motion alleging

that the 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).21

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.”).

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2

Second, and separately, Ms. Wild points to § 3771(c)(1)— the 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 make their

best efforts to see that crime victims are notified of, and accorded, the rights

described in subsection (a).” From the premise that the CVRA applies to “federal

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 “[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 government, 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 not begin with the criminal complaint’s filing. See United States 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 (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”).

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officers ‘engaged in the detection, investigation, or prosecution of crime’”—with

an emphasis on the provision’s “detection” and “investigation” components—Ms.

Wild reasons to the conclusion that “the Act protects victims before charges are

filed.” En Banc Reply Br. of Petitioner at 21.

Ms. Wild’s reliance on subsection (c)(1) is misplaced for three reasons.

First, and most obviously, that provision doesn’t speak to judicial enforcement at

all. Rather, unlike subsections (b) and (d), which address courts’ responsibilities

under the Act, subsection (c)(1) address non-judicial actors, requiring them to

“make their best efforts” to ensure that crime victims’ rights are respected.

Accordingly, whatever § 3771(c)(1) may say about when CVRA rights attach, in

the abstract—an issue that we have said we needn’t decide—it can’t provide the

basis for discerning a private right of action to seek pre-charge judicial

enforcement of those rights.

Second, and in any event, understood in proper context, it is clear to us that

§ 3771(c)(1) is a “to whom” provision, not a “when” provision. That is, it merely

clarifies that CVRA obligations extend beyond the officers and employees of “the

Department of Justice” to include, as well, the officers and employees of “other

departments and agencies of the United States” that (like DOJ) are “engaged in the

detection, investigation, or prosecution of crime”—e.g., IRS, ICE, and TSA.

Those agencies’ employees, like DOJ’s, must “make their best efforts to see that

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crime victims” are afforded CVRA rights. If subsection (c)(1) were intended to be

a “when” provision, then the phrase “in the detection, investigation, or prosecution

of crime” presumably would have been situated differently in the provision, such

that the full sentence would read: “Officers 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 make their best efforts to see

that crime victims are notified of, and accorded, the rights described in subsection

(a) in the detection, investigation, or prosecution of crime.”22

Finally, Ms. Wild’s reliance on § 3771(c)(1) proves entirely too much. If, as

Ms. Wild thinks subsection (c)(1) shows, CVRA rights are subject to judicial

enforcement during the “detection” and “investigation” of crime, then there is no

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 & Garner, Reading Law at 176–77 (cautioning 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”).

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meaningful basis—at least no meaningful textual basis—for limiting the Act’s pre-

charge application. To the contrary, Ms. Wild’s reading of the term

“investigation” in subsection (c)(1) would—as already noted—require law-

enforcement officers to “confer” with victims, subject only to a squishy

“reasonable[ness]” limitation, see § 3771(a)(5), before conducting a raid, seeking a

warrant, making an arrest, interviewing a witness, convening a lineup, or

conducting an interrogation. Moreover, every cop on the beat is involved in crime

“detection”—even before any crime is committed. Of course, there can’t be a

“crime victim” until a crime occurs, so the inclusion of “detection” in the coverage

provision just further demonstrates the misfit here. In other words, 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 such a jarring

result.

Presumably sensing the slipperiness of her position—which is inherent in

her reliance on both § 3771(d)(3)’s “venue” provision and § 3771(c)’s “coverage”

provision—Ms. Wild understandably seeks to draw a line that would capture this

case only, without risking a landslide: “At least,” she says, “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

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engaging in negotiations about disposition of those charges, prosecutors must

confer with the victims as well.” En Banc Br. of Petitioner at 33. That is a line, to

be sure—and a line that happens to include this case—but it has no footing in the

text of the provisions that she invokes for support. We cannot re-write, or

arbitrarily circumscribe, the CVRA’s text simply to accommodate a particular

result.

* * *

Even giving Ms. Wild’s “venue”- and “coverage”-provision arguments

every benefit of every doubt, we don’t see in either a Sandoval-qualifying clear

expression of congressional intent to authorize a freestanding private right of

action to enforce CVRA rights before the commencement of criminal proceedings.

To the contrary, we find that the textual and structural evidence overwhelmingly

demonstrates that the CVRA provides a mechanism for judicial enforcement only

in the context of a preexisting proceeding. To the extent that the Act’s language

and structure leave any doubt about its proper scope, we presume that Congress

“acted against the backdrop of long-settled understandings about the independence

of the Executive with regard to charging decisions.” Fokker Servs., 818 F.3d at

738. Had Congress intended to upend (rather than reinforce) those “long-settled

understandings” by authorizing a crime victim to file a pre-charge suit seeking to

enjoin prosecutors to conduct their investigation in a particular manner, we can

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only assume it would have expressed itself more clearly. See, e.g., Puerto Rico v.

Franklin Cal. Tax-Free Trust, 136 S. Ct. 1938, 1947 (2016) (“Congress ‘does not,

one might say, hide elephants in mouseholes.’” (quoting Whitman v. Am. Trucking

Ass’ns, 531 U.S. 457, 468 (2001))).

V

For the foregoing reasons, we hold that the CVRA does not provide a private

right of action authorizing crime victims to seek judicial enforcement of CVRA

rights outside the confines of a preexisting proceeding. We have searched the

Act’s language and structure, and we simply cannot discern a clear expression of

congressional intent to authorize the sort of stand-alone civil action that Ms. Wild

filed here.

We are aware, of course, that many will misunderstand today’s decision. To

be clear, the question before us is not whether Jeffrey Epstein was a bad man. By

all accounts, he was. Nor is the question before us whether, as a matter of best

practices, prosecutors should have consulted with Ms. Wild (and other victims)

before negotiating and executing Epstein’s NPA. By all accounts—including the

government’s own—they should have. Our sole charge is to determine, on the

facts before us, whether the CVRA provides Ms. Wild with a private right of

action to enforce her rights outside of the context of a preexisting criminal

proceeding. Despite our sympathy for Ms. Wild—and the courage that she has

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shown in pursuing this litigation—we find ourselves constrained to hold that it

does not.

PETITION DENIED.

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WILLIAM PRYOR, Chief Judge, joined by NEWSOM, LAGOA, and TJOFLAT,

Circuit Judges, concurring:

I join the majority’s opinion in full. I write separately to respond to three

fundamental errors in the dissenting opinions. First, by urging us to decide an issue

that does not affect the outcome of this mandamus petition, our dissenting

colleagues have forgotten that we do not issue advisory opinions. Second, the

dissents commit the most common error of statutory interpretation by reading

individual subsections in isolation instead of reading the whole text of the statute.

Finally, the dissents misunderstand what it means to interpret statutes with a

presumption against implied rights of action. I address each mistake in turn.

A. Federal Courts Lack the Power to Issue Advisory Opinions.

When we ordered rehearing en banc, we asked the parties to answer two

questions in their briefs. First, does the Crime Victim Rights’ Act, 18 U.S.C.

§ 3771, “grant[] a crime victim any statutory rights that apply before the filing of a

formal criminal charge by the government prosecutor?” And second, “[i]f a crime

victim has statutory rights under the [Act] that apply pre-charge, does the [Act]

also grant a crime victim a statutory remedy to enforce a violation of their statutory

rights?”

The majority opinion sensibly collapses these two questions into one: does

the Act grant a crime victim the right “to file a freestanding civil suit seeking

judicial enforcement of her rights under the [Act] in the absence of any underlying

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proceeding”? Maj. Op. at 13–14. It explains that we need not decide whether the

Act confers rights that attach before the commencement of criminal proceedings

and that might be enforceable through non-judicial channels. Id. at 13. That

determination would have no bearing on the outcome of this petition.

The dissents take issue with this approach and accuse us of “blithely”

skipping over the first issue. Hull Dissenting Op. at 157; see also Branch

Dissenting Op. at 111 (“This issue, which was the basis of the prior panel’s

decision, is an important legal question of first impression in our Circuit.

Nevertheless, the Majority declines to address it in its en banc decision.”). One of

our dissenting colleagues is candid about 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 rights issue,” “the seriousness of

the federal sex-trafficking crimes against petitioner Wild and the other 30-plus

minor victims,” “the government’s egregious misconduct,” and “the fact that if the

Epstein victims’ . . . rights attached pre-charge, the government’s misconduct

undisputedly violated them.” Id. at 159–60. Conspicuously, the dissenters do not

assert that answering the first question would change how we resolve the

underlying case or controversy.

There is a well-known term for judicial opinions that interpret laws without

resolving cases or controversies: advisory opinions. The federal judicial power is

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limited to resolving actual “Cases” and “Controversies.” U.S. Const. art. III, § 2,

cl. 1. “No principle is more fundamental to the judiciary’s proper role in our

system of government than [this] constitutional limitation[.]” Simon v. E. Ky.

Welfare Rts. Org., 426 U.S. 26, 37 (1976). The prohibition against advisory

opinions is “the oldest and most consistent thread in the federal law of

justiciability.” Flast v. Cohen, 392 U.S. 83, 96 (1968) (internal quotation marks

omitted). Today, it is “taken for granted” as “an uncontroversial and central

element of our understanding of federal judicial power.” Richard H. Fallon, Jr. et

al., Hart and Wechsler’s The Federal Courts and the Federal System 50 (7th ed.

2015).

The rule that federal courts do not issue advisory opinions can be traced

back to the Founding era. In 1793, after Secretary of State Thomas Jefferson sent

the Supreme Court questions about the rights and obligations of the United States

to remain neutral toward the warring nations of Europe, the Court made clear that

the Constitution prohibited it from advising the Executive Branch.

3 Correspondence and Public Papers of John Jay 486–89 (Henry P. Johnston ed.

1891). As the Justices explained in a letter to President George Washington, “the

lines of separation drawn by the Constitution between the three departments of the

government . . . and our being judges of a court in the last resort[] are

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considerations which afford strong arguments against the propriety of our extra-

judicially deciding the questions alluded to.” Id. at 488.

The prohibition against issuing advisory opinions also runs through our

caselaw all the way back to Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792). A federal

statute authorized courts to determine disability pensions for Revolutionary War

veterans. Mistretta v. United States, 488 U.S. 361, 402 (1989) (describing

Hayburn’s Case). These determinations were subject to review by the Secretary of

War. Id. The Supreme Court was presented with a mandamus petition asking it to

order a federal circuit court to consider a pension request. Hayburn’s Case, 2 U.S.

(2 Dall.) at 409. It decided not to take up the petition until the next term. Id. By

then, Congress had amended the statute and rendered the controversy moot. Id. at

409–10. Although the Supreme Court never issued an opinion, five justices

considered the statute while riding circuit, and the Supreme Court reporter

included their opinions in a footnote. Id. at 410 n.†. All agreed that requiring a

federal court to issue nonbinding opinions advising the Executive on how to

perform its 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, doubted “the propriety of giving an opinion in a case which

has not yet come regularly and judicially before” it. Id. at 414 n.†. “None can be

more sensible,” the court wrote, “than we are of the necessity of judges being in

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general extremely cautious in not intimating an opinion in any case extra-

judicially[.]” Id.

Like the pension recommendations that federal courts were asked to provide

in Hayburn’s Case, the dissents would have us advise the Executive Branch about

what rights it must provide a crime victim going through political or administrative

channels before the commencement of criminal proceedings. In other words, they

would have us issue an advisory opinion about the powers and duties of the

Executive. Although the dissents may disagree with our more modest approach to

resolving this mandamus petition, there is nothing “blithe” about refraining from

extra-judicial pronouncements and respecting our limited role under the

Constitution.

The dissents respond to a strawman version of this concern by turning it into

a jurisdictional issue. Hull Dissenting Op. at 160–64. Lest there be any confusion, I

acknowledge that we have jurisdiction to decide whether the Act confers pre-

charge rights, just as the original panel did. But because the majority opinion

correctly decides that the Act does not confer any judicially enforceable rights

before the commencement of criminal proceedings, nothing that we could say

about pre-charge rights that might be enforceable through non-judicial channels

would change the outcome of this petition.

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The dissents counter that we could resolve the first question as an alternative

holding. Id. at 162–64. But our answer to the first question would be an alternative

holding only if we rejected the dissents’ interpretation of the Act and concluded

that the Act does not confer any pre-charge rights, judicially enforceable or

otherwise. If, on the other hand, we were to agree with the dissents and say that the

Act does confer pre-charge rights, those rights would not be judicially enforceable

and our resolution of this petition for a writ of mandamus would not change.

Moreover, our opinion about pre-charge rights would not be binding on the

Executive in the same way that the opinions about pension requests were not

binding in Hayburn’s Case.

B. We Construe Statutes by Reading the Whole Text, Not Individual

Subsections in Isolation.

The dissents repeatedly assert that their interpretation of the Act follows

from the “plain and unambiguous meaning” of subsections (a)(5), (a)(8), and

(d)(3). Branch Dissenting Op. at 114, 154 (internal quotation marks omitted). They

accuse us of “do[ing] violence to the statutory text” by “drawing a line limiting

judicial enforcement to the post-charge phases of a prosecution.” Id. at 155

(internal quotation marks omitted). Our role as judges, they remind us, is to

interpret and follow the law regardless of the outcome. Id. (citing Bostock v.

Clayton County, 140 S. Ct. 1731, 1823 (2020) (Kavanaugh, J., dissenting)).

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Our dissenting colleagues’ professed commitment to textualism is laudable.

But it is one thing to recite the canons of statutory interpretation, and it is an

entirely different matter to apply them correctly. See Bostock, 140 S. Ct. at 1755–

56 (Alito, J., dissenting) (“The Court’s opinion is like a pirate ship. It sails under a

textualist flag, but what it actually represents is a theory of statutory interpretation

that Justice Scalia excoriated . . . .”).

The dissents commit a basic error of statutory interpretation by reading

subsections (a)(5), (a)(8), and (d)(3) in isolation without looking to the rest of the

Act. “Statutory construction . . . is a holistic endeavor.” United Sav. Ass’n of Tex.

v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371 (1988). “In

expounding a statute, we must not be guided by a single sentence or member of a

sentence, but look to the provisions of the whole law, and to its object and policy.”

Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 18 (1981) (internal

quotation marks omitted). “Perhaps no interpretive fault is more common than the

failure to follow the whole-text canon, which calls on the judicial interpreter to

consider the entire text, in view of its structure and of the physical and logical

relation of its many parts.” Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts § 24, at 167 (2012). And although the dissents cite

the whole-text canon, Branch Dissenting Op. at 114, they fail to apply it in their

analysis.

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The dissents’ error manifests itself in several ways. Take, for example, the

dissents’ focus on subsection (a), which provides a list of crime victims’ rights. 18

U.S.C. § 3771(a). Most of these rights make sense only in the context of ongoing

criminal proceedings, which supports the majority’s view that crime victims cannot

seek judicial enforcement of these rights until after criminal charges are filed. The

dissents point out that two of these rights, read in isolation from the rest of the

statute, could apply before the filing of criminal charges: “[t]he reasonable right to

confer” with the government attorney and “[t]he right to be treated with fairness

and with respect.” Id. § 3771(a)(5), (a)(8). But the dissents fail to account for other

provisions of the Act that make clear that the rights in subsection (a) can be

asserted only in the context of ongoing criminal proceedings. The paragraph

immediately after the list of crime victims’ rights provides that a “court shall

ensure that the crime victim is afforded the rights described in subsection (a)” “[i]n

any court proceeding involving an offense against a crime victim.” Id.

§ 3771(b)(1) (emphasis added). And the Act later provides that a crime victim may

assert his or her rights in subsection (a) by filing a “motion” “in the district court in

which a defendant is being prosecuted for the crime or, if no prosecution is

underway, in the district court in the district in which the crime occurred.” Id.

§ 3771(d)(3).

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The dissents’ answer to the problems posed by these provisions is to

interpret the word “motion” in subsection (d)(3) as establishing a cause of action to

launch a freestanding civil action. But the dissents do not dispute that the Act

allows a crime victim to move the district court to assert his or her rights in an

ongoing criminal proceeding. So the dissents have to interpret the word “motion”

to mean two different things at the same time. In the context of an ongoing

criminal proceeding, the dissents agree that a motion is an ordinary filing with the

district court. But in the absence of a criminal proceeding, the dissents contend that

the “motion” serves as a complaint that commences a civil action against the

government. Subsection (d)(3) also provides that “[i]f the district court denies the

relief sought, the movant may petition the court of appeals for a writ of

mandamus.” Id. Under the dissents’ interpretation, a “movant” again means either

one of two different things: the victim in a criminal proceeding or the plaintiff in a

civil action. To further complicate matters, the Act uses the word “motion” again

only two paragraphs later but with only one possible meaning. Subsection (d)(5)

provides that “[a] victim may make a motion to re-open a plea or sentence,” which

makes sense only in the context of a criminal proceeding. Id. § 3771(d)(5). So the

dissents treat the word “motion” as if it is a linguistic chameleon that changes its

meaning in different circumstances to serve whatever purpose they favor, but we

presume “that identical words used in different parts of the same act are intended

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to have the same meaning.” Scalia & Garner, Reading Law § 25, at 170 (quoting

Atl. Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433 (1932)). The

dissents have no explanation for their incongruous reading of the whole statute.

The dissents’ interpretation of “motion” in subsection (d)(3) as sometimes

creating a civil cause of action is also difficult to reconcile with subsection (d)(6),

which is titled “No cause of action.” 18 U.S.C. § 3771(d)(6). To be sure, the first

sentence in subsection (d)(6) refers to a cause of action for damages only, which

could leave open the possibility of declaratory or injunctive relief. But the second

sentence provides, “Nothing in this chapter shall be construed to impair the

prosecutorial discretion of the Attorney General or any officer under his direction.”

Id. And as Judge Tjoflat meticulously explains in his concurring opinion, allowing

an individual to initiate a freestanding civil action seeking declaratory or injunctive

relief under the Act in the absence of an ongoing criminal proceeding would

unquestionably impair prosecutorial discretion. Tjoflat Concurring Op. at 84–96.

Finally, the dissents have no answer to the majority’s point that the United

States has not clearly waived sovereign immunity. Maj. Op. at 28 n.15. As a

leading treatise explains, “A statute does not waive sovereign immunity . . . unless

that disposition is unequivocally clear.” Scalia & Garner, Reading Law § 46, at

281. No provision of the Act plausibly, much less unequivocally, suggests that the

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United States has consented to be sued in a civil action by a crime victim seeking

to enforce his or her rights under the Act.

By failing to read the whole text of the Act, the dissents commit a common

error of statutory interpretation. When read in the context of the entire statute, their

interpretation of subsections (a)(5), (a)(8), and (d)(3) is implausible.

C. Statutes Are Interpreted with a Presumption Against Implied Rights of

Action.

The dissents expend significant time and energy asserting that the majority

opinion is wrong that Alexander v. Sandoval, 532 U.S. 275 (2001), counsels

against finding an implied cause of action in the Act. My colleagues may recall

that our Court was reversed in Sandoval. I fear that the lesson of that reversal still

has not been learned by some.

We interpret statutes with a presumption against, not in favor of, the

existence of an implied right of action. Scalia & Garner, Reading Law § 51, at 313.

The Supreme Court made this principle clear in Sandoval when it said that it had

“sworn off the habit of venturing beyond Congress’s intent” by discovering

implied rights of action in statutory texts. 532 U.S. at 287. If a statute passed by

Congress does not “display[] an intent to create not just a private right but also a

private remedy,” then “a cause of action does not exist and courts may not create

one, no matter how desirable that might be as a policy matter, or how compatible

with the statute.” Id. at 286–87. Moreover, if the “statutory structure provides a

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discernible enforcement mechanism, Sandoval teaches that we ought not imply a

private right of action because ‘the express provision of one method of enforcing a

substantive rule suggests that Congress intended to preclude others.’” Love v. Delta

Air Lines, 310 F.3d 1347, 1353 (11th Cir. 2002) (alteration adopted) (quoting

Sandoval, 532 U.S. at 290).

The dissents’ criticisms of the majority opinion’s application of Sandoval to

the Act are puzzling. They spend 11 and 10 pages, respectively, explaining

Sandoval in detail and arguing that the majority has misapplied it. Branch

Dissenting Op. at 122–27, 142–46; Hull Dissenting Op. at 169–78. But they also

contend that the Act expressly grants a private right of action. Branch Dissenting

Op. at 121; Hull Dissenting Op. at 170, 176. If the Act expressly granted a private

right of action, then Sandoval would be beside the point.

In addition to this schizophrenic line of attack, the dissents also

misunderstand Sandoval. They contend that the Crime Victims’ Rights Act is

distinguishable from the statute at issue in Sandoval because it has “rights-creating

language” and is addressed to crime victims instead of government agencies. Hull

Dissenting Op. at 176 (internal quotation marks omitted). Never mind that the Act

expressly provides for an administrative-enforcement mechanism by requiring the

government to promulgate regulations for “receiv[ing] and investigat[ing]

complaints” from crime victims and for “training” and “disciplin[ing]” government

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employees. 18 U.S.C. § 3771(f)(1), (f)(2)(A)–(C). That fact alone should defeat the

possibility of a pre-charge private right of action.

The dissents also wrongly assume that the Act’s supposedly “rights-creating

language” is concrete enough to be judicially enforceable. Hull Dissenting Op. at

173 (internal quotation marks omitted). The Supreme Court long ago explained

that Congress sometimes uses language that is “intended to be hortatory, not

mandatory.” Pennhurst, 451 U.S. at 24. “A particular statutory provision, for

example, may be so manifestly precatory that it could not fairly be read to impose

a binding obligation on a governmental unit, or its terms may be so vague and

amorphous that determining whether a deprivation might have occurred would

strain judicial competence.” Livadas v. Bradshaw, 512 U.S. 107, 132 (1994)

(alteration adopted) (citation and internal quotation marks omitted). Terms like

“reasonable” and “sufficient,” absent any statutory guidance as to how they are to

be measured, are “far too tenuous to support the notion that Congress” meant to

confer judicially enforceable rights on individuals. Blessing v. Freestone, 520 U.S.

329, 345 (1997); see also Suter v. Artist M., 503 U.S. 347, 359–60 (1992). We

expect Congress to “speak with a clear voice[] and [to] manifest[] an unambiguous

intent to confer individual rights.” Gonzaga Univ. v. Doe, 536 U.S. 273, 280

(2002) (alteration rejected) (internal quotation marks omitted).

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“The reasonable right to confer with” a government attorney and “[t]he right

to be treated with fairness and with respect” do not provide the kind of

administrable language that the Supreme Court has said—time and again—is

required of judicially enforceable rights. 18 U.S.C. § 3771(a)(5), (a)(8). It is one

thing to say that these vague “rights” are enforceable in the context of a pending

criminal action where the crime victim already has far more specific rights, such as

protection from the accused, id. § 3771(a)(1), accurate and timely notice of court

proceedings, id. § 3771(a)(2), the opportunity to be heard, id. § 3771(a)(4), and

restitution, id. § 3771(a)(6). But it is implausible that the Act creates judicially

enforceable “rights” to confer reasonably and to be treated with fairness and

respect in a standalone civil suit.

* * *

One final point merits a response. The dissents remind us that “our role as

judges is to interpret and follow the law as written, regardless of whether we like

the result.” Branch Dissenting Op. at 155 (alteration rejected) (quoting Bostock,

140 S. Ct. at 1823 (Kavanaugh, J., dissenting)). Respectfully, readers of today’s

opinions can judge for themselves who is faithfully interpreting the Act and who, if

anyone, is allowing their policy preferences to influence their judgment.

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NEWSOM, Circuit Judge, concurring:

When I authored the now-vacated panel opinion denying Ms. Wild’s

mandamus petition, I expressed my “sincere[] regret” that the decision had left her

“largely emptyhanded.” In re Wild, 955 F.3d 1196, 1220 (11th Cir. 2020), reh’g

en banc granted, opinion vacated, 967 F.3d 1285 (11th Cir. 2020). Even as the en

banc Court vindicates and reaffirms that decision today, I am filled with the same

sense of sorrow. As our opinion summarizes, Ms. Wild “suffered unspeakable

horror” at the hands of Jeffrey Epstein, one of this era’s most infamous child

predators. Maj. Op. at 2. Then, adding insult to an already grievous injury,

government prosecutors (by their own admission) affirmatively misled Ms. Wild—

and dozens of others like her—regarding the status of their criminal investigation.

Shameful all the way around. The whole thing makes me sick.

But—and it’s a big “but”—my job, as a judge, isn’t to dispense “justice,” in

the abstract, as I see fit. My role in our tripartite form of government is, as

relevant here, to faithfully interpret and apply the laws that Congress has passed in

accordance with the precedents that the Supreme Court has established.

Sometimes I’ll like the results; sometimes I won’t. But adherence to the rule of

law requires a certain outcome-blindness—or at least outcome-agnosticism. That

constraint—that fact of being bound by rules that others have made—is what

separates judges from elected politicians in our constitutional system. On days like

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this—when my heart breaks for one of the parties before me—it’s also what makes

being a judge particularly tough.

So, about today’s decision, I’ll simply say the same thing I said last go-

round: “It’s not a result [I] like, but it’s the result [I] think the law requires.” In re

Wild, 955 F.3d at 1198. And my obligation—my oath—is to the law.

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TJOFLAT, Circuit Judge, with whom WILLIAM PRYOR, Chief Judge, and

WILSON, NEWSOM, and LAGOA, Circuit Judges, join, concurring:

I concur wholeheartedly in the majority’s opinion. I write 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. My concurrence proceeds

in three parts. First, I will outline the litigation models Judge Branch’s dissent 1

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, I will identify two fairness concerns the dissent’s pre-charge model would

raise. Finally, to bring us home, I will expand on the majority’s discussion of the

separation of powers doctrine and elaborate on why a pre-charge CVRA model

would impermissibly drag federal courts into the business of prosecution. By

laying these problems out in simple terms, my hope is that readers of today’s

decision will understand precisely why we are compelled to deny Ms. Wild’s

petition.

I.

To orient the reader, I will begin with a brief overview of the pre- and post-

charge CVRA litigation models.

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.

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A.

Let’s start with the dissent’s pre-charge model.2 For now, I will keep the

analysis high-level, as I will walk through the problems with this model in detail in

parts II and III.

If a victim’s CVRA rights are judicially enforceable pre-charge, then any

pre-charge efforts to vindicate those 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. In his civil complaint, the

victim would need to allege that there is probable cause to believe that a specific

person—for shorthand, “the accused”—committed a specific federal crime, and

that the victim is indeed a “crime victim” as defined by 18 U.S.C. § 3771(e)(2).4

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 (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 28–29 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).

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The complaint would also seek some relief, presumably an injunctive order

requiring the United States Attorney to honor the victim’s rights under 18 U.S.C.

§ 3771(a)(5)—the “reasonable right to confer”—and (a)(8)—the “right to be

treated with fairness and with respect.”

In response, the United States Attorney would file an answer5 to the

complaint. It stands to reason that, in the answer, the United States Attorney

would prefer a general denial—pursuant to Federal Rule of Civil Procedure

8(b)(3)—to avoid revealing any specific information that could jeopardize an

ongoing federal investigation. Any attempt to keep the investigation under wraps,

however, would likely be thwarted by the victim’s requests for discovery of

information from the investigation that is relevant to the CVRA claim—

specifically the issue of probable cause. See, e.g., Farnsworth v. Procter &

Gamble Co., 758 F.2d 1545, 1546 (11th Cir. 1985) (“The law’s basic presumption

is that the public is entitled to every person’s evidence. The Federal Rules of Civil

Procedure strongly favor full discovery whenever possible.” (citations omitted)).

Indeed, it is entirely possible that the crime victim’s civil discovery would

eventually subject the federal investigators to depositions.

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.

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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 federal crime has been committed, and if so, whether the 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 court.

Assuming the district court concludes that (1) there is probable cause to believe a

federal offense was committed and (2) the victim was indeed a “crime victim” of

that offense, 6 the court must then go about the task of crafting an injunctive order7

that mandates the United States Attorney’s compliance with 18 U.S.C.

§ 3771(a)(5) and (a)(8) during the ongoing criminal investigation.

B.

Now, let’s take a look at the majority’s post-charge model. Under that

model, a crime victim may seek to enforce his rights by filing a “motion” in a

preexisting criminal action. See Maj. Op. at 26–27. The victim’s motion would

likely seek (among other things) an injunctive order requiring the United States

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.

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Attorney to honor the victim’s “reasonable right to confer” and “right to be treated

with fairness and with respect”—just like the pre-charge model. But, under the

post-charge model, there is no need to open a freestanding civil lawsuit, there is no

need to interfere with the government’s investigation, and there is no need to drag

the United States Attorney into district court—the attorney is already before the

court to prosecute the underlying criminal case. Instead, the post-charge model

leaves only two narrow issues to be litigated in a hearing before the court: is the

victim in fact a “crime victim” as defined in 18 U.S.C. § 3771(e), and if so, should

an order issue to mandate the Government attorney’s compliance with § 3771(a)(5)

and (a)(8)?

Importantly, under this model, the crime victim’s motion can be filed only

after there has been a presumptive determination that a federal offense has been

committed and that the accused is the one who committed it. To state the obvious,

by the time a charge has been filed, the grand jury has already concluded that there

is probable cause to believe that the accused committed the offense at issue. 8

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 46–47 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.

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Indeed, in some instances, the accused may have already pled guilty by the time

the crime victim files his motion, and thus any argument regarding the lack of

probable cause would be waived. See, e.g., United States v. Pierre, 120 F.3d 1153,

1155 (11th Cir. 1997) (“A defendant’s unconditional plea of guilty, made

knowingly, voluntarily, and with the benefit of competent counsel, waives all non-

jurisdictional defects in that defendant’s court proceedings.” (alteration adopted)).

As a result, there is no need in the post-charge model to determine whether

probable cause exists to believe a crime that is currently being investigated was

committed.

II.

With these models in mind, I turn to two fairness concerns that accompany

the dissent’s pre-charge CVRA litigation model.

A.

First, the dissent’s pre-charge model raises the question of whether the

individual accused of a federal crime must be joined in the crime victim’s

freestanding CVRA civil action. For a variety of reasons, I believe the answer

must be “yes.”

Rule 19 of the Federal Rules of Civil Procedure governs the joinder of

parties. This Circuit has outlined a two-part test for determining “whether a party

is indispensable” under Rule 19. Focus on the Fam. v. Pinellas Suncoast Transit

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Auth., 344 F.3d 1263, 1279 (11th Cir. 2003) (citation omitted). “First, the court

must ascertain under the standards of Rule 19(a) whether the person in question is

one who should be joined if feasible. If the person should be joined but cannot be

(because, for example, joinder would divest the court of jurisdiction) then the court

must inquire whether, applying the factors enumerated in Rule 19(b), the litigation

may continue.” Id. at 1280 (citation omitted).

Part one of our two-part Rule 19 test focuses on whether a person is a

“required party.” A person is a required party to a lawsuit when (1) “in that

person’s absence, the court cannot accord complete relief among existing parties,”

or (2) where the absent party claims an interest relating to the action, disposing of

the action without the absent party may “as a practical matter impair or impede the

person’s ability to protect the interest; or leave an existing party subject to a

substantial risk of incurring double, multiple, or otherwise inconsistent obligations

because of the interest.” Fed. R. Civ. P. 19(a)(1)(B)(i)–(ii).9

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:

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The second part of our test—drawn from Rule 19(b)—sets forth four

nonexclusive factors “that must be examined in each case to determine whether, in

equity and good conscience, the court should proceed without a party whose

absence from the litigation is compelled.” Provident Tradesmens Bank & Trust

Co. v. Patterson, 390 U.S. 102, 109, 88 S. Ct. 733, 737–38 (1968). These 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) whether the judgment without joinder would be adequate, and (4)

whether the plaintiff would have any alternative remedies were the case dismissed

for nonjoinder.” Laker Airways, Inc. v. British Airways, PLC, 182 F.3d 843, 848

(11th Cir. 1999).

So, a district court faced with a pre-charge CVRA lawsuit would first be

asked to determine whether the accused is a “required party.” 10 To address this

question, let’s look at two examples. First, consider a case in which the accused

has entered into a nonprosecution agreement with the United States Attorney. If

(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.

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.”).

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the crime victim’s pre-charge suit ultimately seeks recission of the nonprosecution

agreement between the accused and the government, it is abundantly clear that the

accused is both a required and indispensable party. See, e.g., Hon. William W.

Schwarzer et al., Federal Civil Procedure Before Trial § 7:114 (“[A]ll parties to a

contract and others having a substantial interest in it are indispensable in an action

to rescind or set aside the contract.” (quotation marks omitted)); Enter. Mgmt.

Consultants, Inc. v. United States ex rel. Hodel, 883 F.2d 890, 894 (10th Cir. 1989)

(“No procedural principle is more deeply imbedded in the common law than that,

in an action to set aside a lease or a contract, all parties who may be affected by the

determination of the action are indispensable.” (cleaned up)). If the accused—a

party to the contract—is not required, how could the district court go about

“accord[ing] complete relief among existing parties”? Fed R. Civ. P. 19(a)(1)(A).

It would be a strange result indeed for the court to rescind a contract that one of the

signatories was not permitted to defend.

Second, even in a case without a nonprosecution agreement, I am convinced

that the accused would be a required party in the civil suit. Regardless of the

remedy sought, a crime victim’s pre-charge CVRA suit will necessarily require a

determination by the district court that there is probable cause to believe a federal

offense has been committed and that the accused committed it. See supra part I.A.

This is exactly the same determination a magistrate judge is asked to make at a

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Federal Rule of Criminal Procedure 5.1 preliminary hearing. Fed. R. Crim. P.

5.1(e) (“If the magistrate judge finds probable cause to believe an offense has been

committed and the defendant committed it, the magistrate judge must promptly

require the defendant to appear for further proceedings.”).11 It goes without saying

that a defendant’s attendance is expected at the preliminary hearing, and the

defendant would be permitted to cross-examine adverse witnesses and present

evidence. Id. I see no reason that we should treat a pseudo-preliminary hearing in

a pre-charge CVRA civil action any differently.

Indeed, my position finds some support in the text of Rule 19(a)(1)(B)(i): “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 . . . 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 . . . as a practical matter impair

or impede the person’s ability to protect the interest.” Does the accused have an

“interest relating to the subject of the” pre-charge CVRA suit? Undoubtedly. The

pre-charge suit is litigating whether there is probable cause to believe that the

accused committed a federal crime, and any ruling by the court on that issue may

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.”).

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ultimately affect the accused’s rights. So then, would disposing of the action in the

accused’s absence impair the accused’s ability to protect those rights? Of course.

A district court allowing a crime victim to question witnesses adverse to the

accused in the accused’s absence stinks of unfairness.

Next, assuming the accused is a required party, the court must determine

whether the accused is indispensable. See Provident Tradesmens Bank & Trust

Co, 390 U.S. at 118–19, 88 S. Ct. at 742–43. In other words, the district court

must decide whether the litigation may—“in equity and good conscience”—

continue despite the accused’s absence. Fed. R. Civ. P. 19(b). Surely it could not

in the pre-charge suit. The first factor we have outlined in this consideration—

“how prejudicial a judgment would be to the nonjoined and joined parties”—is

nearly dispositive. Laker Airways, 182 F.3d at 848. A judgment in favor of the

crime victim would necessarily entail a finding that there is probable cause to

believe the accused committed a federal offense. As I will discuss infra part III,

this determination places intense pressure on the United States Attorney to, at the

very least, make an arrest of the accused.

The second factor—“whether the prejudice could be lessened depending on

the relief fashioned”—militates for the same result. Id. Regardless of the relief

fashioned, the district court, by rendering a judgment in favor of the crime victim,

has already made a determination that there is probable cause to believe the

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accused committed the offense. There simply is no way to lessen that prejudice to

the accused, nor can the court lessen the pressure the decision places on the United

States Attorney. So, although the third and fourth factors of the test—whether the

judgment without joinder would be adequate and whether the plaintiff would have

any alternative remedies were the case dismissed for nonjoinder—may, in some

instances, cut the opposite direction, I see no way that the balance of these

“pragmatic considerations” could ever weigh against a finding of indispensability.

In re Torcise, 116 F.3d 860, 865 (11th Cir. 1997). As a result, the accused would

need to be joined in any pre-charge CVRA suit.12

B.

With the accused’s presence in the pre-charge civil suit secured, I turn

briefly to my concerns about the accused’s representation in that suit.

Pursuant to the Sixth Amendment, criminal defendants are entitled to the

assistance of counsel. United States v. Garey, 540 F.3d 1253, 1262 (11th Cir.

2008) (en banc). That right attaches, for the purposes of the Sixth Amendment,

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. . . .”).

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when “a prosecution is commenced.” McNeil v. Wisconsin, 501 U.S. 171, 175,

111 S. Ct. 2204, 2207 (1991). In other words, a criminal defendant is entitled to

counsel “at or after the initiation of adversary judicial criminal proceedings—

whether by way of formal charge, preliminary hearing, indictment, information, or

arraignment.” United States v. Gouveia, 467 U.S. 180, 188, 104 S. Ct. 2292, 2297

(1984) (emphasis added) (citation omitted). But a civil litigant has no

constitutional right to counsel, and while a court may appoint counsel for an

indigent litigant, see 28 U.S.C. § 1915(e)(1), 13 the court has broad discretion in

making this decision and should do so only in “exceptional circumstances,” Bass v.

Perrin, 170 F.3d 1312, 1320 (11th Cir. 1999).

Consider how the differing treatment of criminal defendants and civil

litigants affects the majority’s and dissent’s positions. In the majority’s post-

charge model, the accused is a criminal defendant and thus has the right to counsel.

Garey, 540 F.3d at 1262. But in the dissent’s pre-charge model, the accused—

assuming she must be joined in the suit—is no different than any other civil litigant

and, as a result, has no right to counsel. This is an odd (and, I argue, unfair) result.

In the criminal context, it is abundantly clear that a defendant is entitled to counsel

at a preliminary hearing, consistent with the Sixth Amendment’s “purpose of

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.”

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protecting the unaided layman at critical confrontations with his adversary.”

Gouveia, 467 U.S. at 189, 104 S. Ct. at 2298. And yet, in a civil suit litigating

precisely the same issue as a criminal preliminary hearing—that is, whether there

is probable cause to believe the accused committed a federal offense—the dissent’s

model hangs the accused out to dry.

Now, one could argue that 28 U.S.C. § 1915(e)(1) provides a safety valve

for this type of situation. And while I concede that § 1915(e)(1) may, in some

circumstances, permit the district court to appoint counsel for a civil litigant, our

case law makes clear that this mechanism should be used sparingly: “The

appointment of counsel is . . . a privilege that is justified only by exceptional

circumstances, such as where the facts and legal issues are so novel or complex as

to require the assistance of a trained practitioner.” Dean v. Barber, 951 F.2d 1210,

1216 (11th Cir. 1992) (quoting Poole v. Lambert, 819 F.2d 1025, 1028 (11th Cir.

1987) (citations omitted)). It is not immediately clear to me that a district court

would conclude that a civil CVRA suit is “so novel or complex” as to require the

appointment of counsel. And even if it were clear, an accused’s request for court-

appointed counsel would be a litigable issue, and different courts could reach

different conclusions.

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* * *

In short, I believe the operational difficulties that accompany a pre-charge

civil CVRA suit open the door to rank unfairness. By litigating criminal law issues

in a civil case, the dissent’s model puts at risk the rights of the accused, rights that

would otherwise be protected under the majority’s post-charge criminal model.

One can quibble with whether that should be the case as a theoretical matter, but

our case law makes clear that it cannot be the case in practice. In any event, there

is simply no way that Congress intended to create a freestanding cause of action

that allows the rights of those accused of federal crimes to be litigated in civil cases

in which they may not participate.

III.

Now, to the heart of the matter—the separation of powers.

There can be no doubt that the Executive Branch has exclusive power over

prosecutorial decisions. See United States v. Nixon, 418 U.S. 683, 693, 94 S. Ct.

3090, 3100 (1974) (“[T]he Executive Branch has exclusive authority and absolute

discretion to decide whether to prosecute a case . . . .”); Confiscation Cases, 74

U.S. (7 Wall.) 454, 457, 19 L. Ed. 196 (1868) (“Public prosecutions, until they

come before the court to which they are returnable, are within the exclusive

direction of the district attorney . . . .”); Heckler v. Chaney, 470 U.S. 821, 832, 105

S. Ct. 1649, 1656 (1985) (“[T]he decision of a prosecutor in the Executive Branch

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not to indict . . . has long been regarded as [within] 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)). This Executive Branch authority obviously includes the

decision to investigate suspected criminal activity and whether to seek, or not seek,

an indictment from the grand jury.

Federal courts may not arrogate the powers of the other branches of

government. 14 Application of President’s Comm’n on Organized Crime, 763 F.2d

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 149 (citing

Eldred v. Ashcroft, 537 U.S. 186, 222, 123 S. Ct. 769, 790 (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 (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 statute’s plain meaning. Branch Dissenting Op. at 149–50 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.” Clark v. Martinez, 543 U.S. 371, 380–81, 125 S. Ct. 716, 724 (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 153 n.30, or that we should consider the issue on an as-

applied, case-by-case basis, see id. at 149–50 n.29, because we must consider the constitutional

issues whether or not they apply to the specific facts of Ms. Wild’s 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 (1988)). But I do not

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1191, 1195 (11th Cir. 1985) (“What the separation of powers has been construed to

prohibit is those arrogations of power to one branch of government which

‘disrupt[] the proper balance between the coordinate branches.’” (quoting Nixon v.

Adm’r of Gen. Servs., 433 U.S. 425, 443, 97 S. Ct. 2777, 2790 (1977))). So, to

maintain the separation of powers—which is based on “Montesquieu’s view that

the maintenance of independence as between the legislative, the executive and the

judicial branches” was essential to the preservation of liberty, Myers v. United

States, 272 U.S. 52, 116, 47 S. Ct. 21, 25 (1926)—federal courts must stay out of

the prosecution business. But despite repeated admonitions on this point from both

the Supreme Court and this Court, the dissent’s pre-charge CVRA litigation model

would inevitably embed federal courts in the United States Attorney’s

investigation and prosecution of the case.

* * *

First, consider the issue of confidentiality. As I discussed in part I.A, there

is a presumption that a crime victim’s pre-charge civil action will be a matter of

public record. Wilson, 759 F.2d at 1571 (stating that denying the public access to

litigation records must be necessitated by a compelling governmental interest, and

the denial must be narrowly tailored to that interest). This presents a very real

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.

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problem for the United States Attorney. In a high-profile case, the press will

undoubtedly be active, and there is no guarantee in an unsealed case that

witnesses—or even the crime victim—would not disclose confidential information.

The disclosure of any confidential information regarding the government’s

ongoing investigation could derail the investigation and have serious detrimental

effects on the well-being of informants and cooperating witnesses. 15 Indeed,

witnesses called in the pre-charge civil case—whose testimony is now public—

may become worthless to the United States Attorney in the subsequent criminal

proceeding.

To this, one may say that district court judges should simply seal these pre-

charge cases as a matter of course, or perhaps that we should treat them as we

would a grand jury proceeding. I have two points in rebuttal. The first proposal—

a presumption of sealing—is directly contrary to our precedent. See id. (discussing

the “presumption of openness to civil proceedings”). It would be an extreme

deviation from our caselaw and tradition to find a freestanding right of action in

the CVRA and only then try to shut Pandora’s box by kicking the presumption of

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, 141 S. Ct. 624 (2020). If witnesses in these

pseudo-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.

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public access to the curb.16 And while the second proposal—a grand-jury like

proceeding—may have some appeal, grand jury secrecy is ensured by the Federal

Rules of Criminal Procedure. See Fed. R. Crim. P. 6(e)(2)(b). 17 There is no such

rule in the Federal Rules of Civil Procedure, and it is not clear to me that the

judiciary could impose one.

* * *

Next, consider the catch-22 the crime victim’s complaint creates for the

United States Attorney. The government has two options when responding to the

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., No. 20-10377, 2021 WL 838266, at *8 (5th Cir. Mar. 5, 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 p

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