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December 3, 2008

Another notable CVRA mandamus petition to watch

I am pleased to see from this post at The Volokh Conspiracy that Professor Paul Cassell is continuing his important efforts to get district and circuit courts to give serious effect to the federal Crime Victims' Rights Act. Here is a snippet of Paul's account of his latest CVRA doings:

Yesterday I filed a mandamus petition in the Eleventh Circuit, asking that borrowers who were overcharged on loans be recognized as "crime victims" under the federal Crime Victims' Rights Act. The petition seeks restitution and other rights in the criminal justice process.  The petition challenges a ruling by U.S. District Judge Elizabeth A. Kovachevich of the Middle District of Florida on November 21, 2008, that borrowers on loans from Coast Bank were not “crime victims” of Phillip Coon’s criminal conspiracy because they were not specifically listed in the criminal charges against him.  The petition contends that, because the borrowers suffered financial losses from the fraud, they are “victims” entitled to the protections of the federal Crime Victim’s Rights Act. The petition could produce the first appellate court decision deciding who is a “victim” under the law. The petition has important implications for the protection of victims’ rights in the prosecution of federal financial crimes.

The lengthy petition is available at this link.  Paul indicates that his "petition asks for a decision from the Eleventh Circuit by December 16, 2008."  I find this peculiar, because the CVRA (18 U.S.C. 3771) expressly provides that a circuit court receiving such a mandamus petition "shall take up and decide such application forthwith within 72 hours after the petition has been filed." 18 U.S.C. 3771(d)(3).

I do not see any basis in the CVRA or know of any authority for extending this statutory timeline for a circuit decision even if the petitioner is willing to wait longer for a decision.  By my reading, the Eleventh Circuit appears to be statutorily obliged to rule on this mandamus petition before the end of this week. 

Of course, this statutory requirement might be violated by the Eleventh Circuit (as it was in the leading CVRA case, the Kenna case from the Ninth Circuit).  But I find it curious and somewhat ironic that Paul's effort to seek rights under the CVRA apparently invites the Eleventh Circuit to violate the terms of the CVRA.

December 3, 2008 at 03:27 PM | Permalink


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How can you not see any basis in the CVRA? The line following the one that contains the 72 hour "requirement" states that in no event may a "continuance" exceed 5 days. That seems to me at the very list imply a court may grant a continuance of up to 5 days. I would also assume that neither the 72 hour time period nor the 5 day time period includes weekends. I'm no fan of Cassell but he at least read the statute.

Posted by: | Dec 4, 2008 4:44:23 PM

I read the statute, too, and nowhere do I see authority for the petitioner to set his/her own deadline for when this matter gets resolved. (Suppose a victim wants to be involved in a case just to delay sentencing before he/she seeks a civil judgment against the defendant. Should the victim be able to petition for mandamus and suggest that the circuit court need not rule for two months -- or two years?)

My sense of the 72-hour requirement is that Congress wanted circuits to rule on these petitions very quickly (and to have a very strong presumption against ruling for the petitioner). Obviously, Cassell does not want a rush to judgment against his victim-client. But I do not see how that interest --- especially given the clear statutory language directing circuits to act quickly --- authorizes a CVRA petitioner to bestow upon a circuit the authority to take 2 weeks to decide something that Congress plainly wanted decided in 72 hours.

I tend to be a big fan of dynamic statutory interpretation, but I find no authority in the CVRA for a circuit court taking two weeks to resolve a petition just because the petitioner wants the circuit court to take its own sweet time.

Of course, I think the 72-hour requirement is a VERY foolish part of the CVRA. But last time I checked, Cassell and many others have not argued that courts can and should ignore parts of a statute that seems foolish or inconvenient to the litigants or the judges.

Finally, why do you "assume" these time periods do not include weekends? I do not seem anything in the CVRA text supporting that contestable assumption. Maybe you and Cassell are better than I am at reading self-serving assumptions into statutory text; perhaps you can send me a pair of your statutory assumption glasses. I certainly can think of lots of statutes that I would like to read self-serving assumptions into when they do not serve my interests.

Posted by: Douglas A. Berman | Dec 6, 2008 12:52:55 PM

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