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April 16, 2021

One year (and 185 pages) later, divided Eleventh Circuit (now en banc) again rules Jeffrey Epstein's victims had no pre-charge rights under federal CVRA

Almost exactly one year ago, as blogged here, a divided Eleventh Circuit panel handed down a very long opinion on an very interesting issue concerning the rights of victims of a very high profile (and now very dead) federal defendant.  The opinions in the original panel decisions In re Courtney Wild, No. 19-13843 (11th Cir. April 14, 2020) (available here), ran a total of 120 pages.  Yesterday, exactly a year and a dat later, the Eleventh Circuit handed down this new en banc ruling in this case ruling 185 pages.  Judge Newsom, who authored the original panel's majority opinion for the court also authored the lead en banc opinion, which starts this way:

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 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.

Judge Tjoflat has a notable concurrence (joined by a number of judges) that starts this way:

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 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.

Judge Branch's dissent, which runs more than 50 pages, includes this road map of its coverage in its introduction:

My dissent proceeds in five parts.  First, I review the facts surrounding the plea deal with Epstein.  Second, I review the procedural history.  Third, I turn to how Congress granted expressly to crime victims in § 3771(a)(5) and (a)(8) a “reasonable” right to confer and a right to be treated fairly and those rights attach pre-charge.  Fourth, I review (A) how the Majority has misapplied and misinterpreted the Supreme Court’s Sandoval decision; (B) how the CVRA text in § 3771(d) expressly provides victims who believe their CVRA rights were violated pre-charge with a statutory remedy — a private right to seek judicial enforcement of their statutory rights in § 3771(a) — when no prosecution is underway; (C) how the statutory interpretation errors in the Majority’s reading of § 3771(d) and (f) leads it to the opposite conclusion; and (D) how even under the Majority’s analysis, the existence of the administrative remedy in § 3771(f) does not make the express judicial remedy in § 3771(d) unavailable to the victims, much less show that Congress did not intend a judicial remedy for crime victims in the “pre-charge” period.  Fifth, I discuss why the CVRA plainly precludes any interference with prosecutorial discretion.

I presume Ms. Wild will now seek Supreme Court review.  I do not believe the Supreme Court has ever taken up a case involving the interpretation of the CVRA, which was enacted by Congress almost two decades ago now.  For a host of reasons, I am disinclined to predict whether this high-profile case might garner the Justices' attention.

Prior related post:

UPDATE: I just saw Paul Cassell, who helps represent Ms. Wild, has this post about this ruling at The Volokh Conspiracy under this full headline: "The Eleventh Circuit Rules Against Jeffrey Epstein's Sex Abuse Victims' Efforts to Rescind His Secret Plea Deal.  The en banc ruling calls the sordid deal a 'national disgrace' but concludes the courts are powerless to enforce crime victims' rights in pre-charging situations -- a disturbing ruling that I hope will be quickly overturned."  Here is a key paragraph from this post about what may come next:

The Circuit's decision is wrong at so many levels that it is hard to see the precedent lasting long.  We plan to seek certiorari in the Supreme Court, which hopefully will rapidly undo this disturbing ruling with broad implications.  And if the Supreme Court declines to review the case, Congress will hopefully move rapidly to approve the proposed Courtney Wild Crime Victims' Rights Reform Act of 2019, which would directly overrule the Circuit's conclusion.

April 16, 2021 at 10:29 AM | Permalink


It is truly good to see the Appeals Court quash this utter nonsense. You are not allowed to bring wave after wave of persecutions over and over.

This stupid nonsense should be repelled with extreme prejudice and this is the first step.

To the "victims": go home. There is no payday. Grow up. Oh wait. You already have grown up. So what is wrong with you? You've allowed ambulance-chasers to convince you to play the victim a bit longer in order to extract money.


Posted by: restless94110 | Apr 16, 2021 7:14:53 PM

Is it just me, or does Cassell appear to be nearly deranged on the issue of victims right?

His constant self-righteousness irritates me immensely.

Posted by: Fat Bastard | Apr 16, 2021 8:31:28 PM

My sentiments exactly. Now, if the equally deranged judge in the Ghislaine Maxwell case would just let her go home...and perhaps attend to more dangerous and realistic defendants.

Posted by: FluffyRoss | Apr 17, 2021 8:59:07 AM

I submitted a longish comment that somehow got suppressed, so I'll try again with a Cliffs Notes version that now also takes into account FluffyRoss's comment.

Cassell is insufferable and not nearly as bright as he thinks. Victims' rights laws are also generally abominable. But this is a fairly unique case in that you have the intersection of a fairly benign law (CVRA) and the underlying deplorable situation of a sweetheart NPA that just happens to be addressable to some extent by the victims' claims. So I'll back Cassell in this particular instance, but only because the bottom-line result would be useful, not because he's some kind of genius or heroic figure. The real solution in this kind of case is much greater transparency and controls around NPAs generally.

Speaking of Cassell being wrong, there's little chance of SCOTUS review. He posits a split with an earlier case in CA5, but the key issue here—whether CVRA grants a private right of action—didn't even come up in the CA5 case. So the split only exists in Cassell's imagination. The current case also has potential "vehicle" problems because Epstein is kaput. And even if SCOTUS did grant cert, I can only assume they'd affirm CA11. The current reactionary Justices detest private rights of action, and I'm sure the judges in the CA11 en banc majority know that all too well. You could say I'm not "Wild" about the chances for this case at SCOTUS.

If the argument made about Maxwell is to grant bail, that's absurd. Saying she's not dangerous is missing the point entirely. You have someone facing incredibly serious charges and a very stiff penalty if convicted. So the incentive to flee is massive. In fact she was already evading the authorities when they captured her And she has an immense amount of resources at her disposal to carry out an escape, second only pretty much to Carlos Ghosn (Ghislaine Ghosn has a nice ring to it!). That basically makes her the poster child (no pun!) for denying bail.

Posted by: hardreaders | Apr 17, 2021 9:38:55 AM

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