In re Wild, 994 F.3d 1244 (2021)

In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 994 F.3d 1244 Editor's Note: Additions are indicated by Text and deletions by Text . United States Court of Appeals, Eleventh Circuit. IN RE: Petitioner. No. 19-13843 (April 15, 2021) Synopsis Background: Alleged victim of child sexual abuse brought civil action against federal government, alleging that government violated Crime Victims' Rights Act (CVRA) by failing to confer with alleged victim before entering into non-prosecution agreement with alleged perpetrator. Alleged perpetrator intervened. The United States District Court for the Southern District of Florida, No. 9:08-cv-80736-KAM, Kenneth A. Marra, Senior District Judge, 359 F.Supp.3d 1201, determined that government had violated CVRA, but after alleged perpetrator's death, alleged victim's requested remedies were denied and the action was dismissed, ' 41 I F.Supp.3d 1321. Alleged victim petitioned for writ of mandamus. The United States Court of Appeals for the Eleventh Circuit, r 955 F.3d 1196, denied the petition. (Holding:( On rehearing en banc, the Court of Appeals, Newsom, Circuit Judge, as a matter of apparent first impression, held that the CVRA did not create a private right of action authorizing crime victim to file stand-alone civil lawsuit to enforce CVRA rights. Petition denied. William H. Pryor, Chief Judge, filed concurring opinion, in which Newsom, Lagoa, Tjoflat, Circuit Judges, joined. Newsom, Circuit Judge, filed concurring opinion. Tjoflat, Circuit Judge, filed concurring opinion, in which William H. Pryor, Chief Judge, and Wilson, Newsom, and Lagoa, Circuit Judges, joined. Branch, Circuit Judge, filed dissenting opinion, in which Martin, Jill Pryor, and Hull, Circuit Judges, joined. Hull, Circuit Judge, filed dissenting opinion. Procedural Posture(s): On Appeal; Petition for Writ of Mandamus. West Headnotes (21) 111 Federal Courts I Questions of Law in General When the issues presented are questions of law, an appellate court reviews them de novo. 121 Mandamus 0. Scope of inquiry and powers of court Government did not waive, for consideration by Court of Appeals on alleged victim's petition for writ of mandamus, an argument that Crime Victims' Rights Act (CVRA) did not apply if criminal proceedings had not been initiated, though government did not file a cross-appeal from district court's initial determination that CVRA was applicable, which determination had been made before district court dismissed alleged victim's civil action against government because alleged perpetrator of child sexual abuse died while the civil action was pending; proceeding initiated by alleged victim was not an "appeal," but mandamus petition, and while CVRA directed Court of Appeals to apply ordinary standards of appellate review in a mandamus proceeding brought by a crime victim, CVRA did not direct Court of Appeals to employ rules of procedure for typical appeals. 18 U.S.C.A. § 3771(d)(3). I Cases that cite this headnote 131 Action Statutory rights of action Criminal Law 0. Civil liabilities to persons injured; reparation The Crime Victims' Rights Act (CVRA) does not create a private right of action authorizing a crime victim to file stand-alone civil lawsuit WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. EFTA00074599 In re Wild, 994 F.3d 1244 (2021) 28 Pa. L. Weekly Fed. C 2701 to enforce CVRA rights, including the right to confer with federal government's attorneys and the right to be treated fairly by them, before the commencement of, or in the absence of, any preexisting criminal proceeding. 18 U.S.C.A. §§ 3771(a), 3771(b), 3771(d)( 1). 3 Cases that cite this headnote 141 Action 0. Statutory rights of action Like substantive federal law itself, private rights of action to enforce federal law must be created by Congress. 151 Action 4- Statutory rights of action 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, in determining whether a statute creates a private right of action. 161 Constitutional Law Creation of rights of action Absent clear expression of congressional intent to authorize would-be plaintiff to sue, a private 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. Constitutional Law 0. Creation of rights of action A reviewing court may not plumb a statute's supposed purposes and policies in search of the requisite intent to create a private cause of action; rather, inquiry both begins and ends with careful examination of the statute's language. Statutes 4- Express mention and implied exclusion; expressio unius est exclusio alterius A statute's express provision of one method of enforcing a substantive rule suggests that Congress intended to preclude others. 191 Statutes 0. Plain language; plain, ordinary, common, or literal meaning In all cases involving statutory construction, court assumes that the legislative purpose is expressed by the ordinary meaning, not the idiosyncratic meaning, of the words used. (10) United States 0. Necessity of waiver or consent The United States is generally immune from suit, unless sovereign immunity is expressly waived. [11] District and Prosecuting Attorneys 4- Charging discretion The core of prosecutorial discretion is the decision whether or not to charge an individual with a criminal offense in the first place. 1121 Constitutional Law 4- Nature and scope in general The executive branch has exclusive authority and absolute discretion to decide whether to prosecute a criminal case. I Cases that cite this headnote [13[ Constitutional Law 4- Nature and scope in general Prosecutorial discretion flows not from desire to give carte blanche to law enforcement officials but from recognition of constitutional principle of separation of powers. U.S. Const. art. 3, § I et seq. [14[ District and Prosecuting Attorneys 4- Charging discretion The discretionary power of the attorney for the United States in determining whether a prosecution shall be commenced or maintained may depend upon matters of policy wholly apart WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 2 EFTA00074600 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 from any question of probable cause. U.S. Const. Amend. 4. 1151 District and Prosecuting Attorneys 0. Charging discretion 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. 1161 Constitutional Law 4- Prosecutors As an incident of the constitutional separation of powers, 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. U.S. Const. art. 2, § 3; U.S. Const. art. 3, § I et seq. 1171 Criminal Law 0. Civil liabilities to persons injured; reparation Any individual asserting rights under the Crime Victims' Rights Act (CVRA) must, at the very outset, demonstrate to the district court that she is a "crime victim" entitled to statutory protection. 18 U.S.C.A. §§ 3771(a), 3771(eX2)(A). 2 Cases that cite this headnote [18[ Constitutional Law 0. Nature and scope in general District and Prosecuting Attorneys 0. Charging discretion 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, the prosecutoes authority and discretion are understood to be exclusive and absolute. U.S. Const. art. 2, § 3; U.S. Const. art. 3, § I et seq. I Cases that cite this headnote 1191 Constitutional Law 4- Encroachment on Judiciary 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 the criminal case. U.S. Const. art. 3, § I et seq. 1201 Criminal Law 0•- Grand jury; indictment, information, or complaint For Sixth Amendment right-to-counsel purposes, prosecution does not begin with criminal complaint's filing. U.S. Const. Amend. 6. [211 Criminal Law 0. Preliminary examination; arraignment; appearance; bail The Sixth Amendment right to counsel does not attach, because a prosecution does not begin, until, at the earliest, a suspect's initial appearance before a judicial officer. U.S. Const. Amend. 6. *1246 On Petition for Writ of Mandamus to the United States District Court for the Southern District of Florida, D.C. Docket No. 9:08-cv-80736-KAM Attorneys and Law Firms Paul Cassell, University of Utah College of Law, SALT LAKE CTY, UT, Bradley James Edwards, Edwards Pottinger, LLC, FORT LAUDERDALE, FL, for Petitioner. Richard Christian Komando, Bradley Garrison & Komando, ORANGE PARK, FL, for Amicus Curiae NATIONAL CRIME VICTIM LAW INSTITUTE. Jill E. Steinberg, Nathan Parker Kitchens, U.S. Attorney's Office, ATLANTA, GA, for Mandamus Respondent. Allyson Newton Ho, Bradley George Hubbard, Gibson Dunn & Crutcher, LLP, DALLAS, TX, for Amici Curiae DIANE FEINSTEIN, ORRIN HATCH and JON KYL. WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 3 EFTA00074601 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 Before WILLIAM PRYOR, Chief Judge, and WILSON, MARTIN, JILL PRYOR, NEWSOM, BRANCH, LUCK, LAGOA, BRASHER, TJOFLAT, and HULL, Circuit Judges.* Opinion 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, IVB I-3a, IVC, IVD I, and V. 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: *1247 This petition for writ of mandamus arises under the Crime Victims' Rights Act, 18 U.S.C. § 3771. Petitioner 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. 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 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 *1248 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 WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 4 EFTA00074602 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 prosecutors arguing that, in fact, Epstein hadn't broken any 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 since been identified) would receive immunity from federal prosecution. I 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 I 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—er 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 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] *1249 conduct[ed] a thorough investigation." The government sent a similar letter to another victim in May 2008, some eight months after inking the NPA. 2If 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 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 er pane, 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 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. WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 5 EFTA00074603 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 Initially, in 2011 the district court "addresse[d] the threshold issue whether the CVRA attaches before the government brings formal charges against the defendant." Pi Does, 817 F. Supp. 2d at 1341. The court held that "it does because the statutory language clearly contemplates pre- charge proceedings." 1 hi Having made that determination, the district court "defer[red]" ruling on the question whether federal prosecutors had violated the Act *1250 until the parties could conduct additional discovery. ?lid at 1343. 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 I, 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: (I) 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-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. It Wild's suit, denying each of her requested remedies. See1 Doe I v. United States, 411 R 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 ? lid. 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?1 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 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 *1251 United States Attorney's office. I Id. at 1330. And finally, the court rejected Ms. Wild's request for sanctions, fees, and restitution. SeePI 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 IS 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 WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 6 EFTA00074604 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 A divided panel of this Court denied Ms. Wild's mandamus 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." Plik; re Wild, 955 F.3d 1196, 1220 (11th Cir. 2020), reh'g en bane 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 III We conclude that we needn't decide whether, in the abstract, the rights to confer *1252 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 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. 11 The CVRA is a compact statute, occupying but one section (and only three pages) of the United States Code. See IS 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 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. *1253 (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). WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 7 EFTA00074605 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 Subsection (b), titled "Rights afforded," focuses specifically on courts' responsibilities under the Act. Subsection (b)(I) 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. § 3771(b)(I). 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(cX1). 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(dX1). 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 (dX3) states that "[t]he district court shall take up and decide any motion asserting a victim's right forthwith." Id. § 3771(d)(3). And with respect to the latter, it provides that li]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 (dX6), titled "No cause of action," also contains two pertinent provisions. First, it states that InJothing in this chapter shall be construed to authorize a cause of action for damages." Id. § 377I(dX6). Second, and separately, it emphasizes that "[njothing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction." Id. *1254 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) (I). (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 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 oflustice 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(0(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, "Mlle district court case number" and "[t]he name of the defendant in the case." Id. § 45.10(c)(2Xiii)-(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 Ombudsman finds a willful violation, he "shall recommend" to the offending employee's WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 8 EFTA00074606 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 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, 121 S.Ct. 1511, 149 L.Ed.2d 517 (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, 121 S.Ct. 1511. Accordingly, the Court emphasized, "[t]he judicial task" is straightfonvard: 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 remedv" Id. (emphasis added). In making the latter determination, the Supreme Court said, "[s]tatutory intent ... is determinative." t Id. Absent a clear expression of congressional intent to authorize 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 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). 121 With that primer, we proceed to address Ms. Wild's CH 10 case. *1255 III [31 As already noted, Ms. Wild initiated this litigation by filing, a parte, a document styled 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, Ms. Wild "filed [her] petition as a new matter," which the court clerk "docketed as a civil action" against the United States. f [Does, 817 F. Supp. 2d at 1341 n.4. A threshold—and we find diapositive —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. matter, or how compatible with the statute." C 31d. at 286- 87, 121 S.Ct. 1511. 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, 121 S.Ct. 1511. 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." II a Id. at 290, 121 S.Ct. 1511.11 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.,11. Love it Delta Air Lines, 310 F.3d 1347, 1358-59 (11th Cir. 2002) (conducting C R Sandoval analysis of Air Carrier Access Act); see also, e.g., Bellitto it Snipes, 935 F.3d 1192, 1202-03 (11th Cir. 2019) (Help America Vote Act); *1256 Alabama PCI Gaming Auth., 801 F.3d 1278, 1296-97 (1 1 th Cir. 2015) (Indian Gaming Regulatory Act); fiiDireag Inc. it Treworgy, 373 F.3d 1124, 1129 (11th Cir. 2004) (Wiretap 141 151 161 171 181 In determining whether any fedenfict); !HI McDonald v. S. Farm Bureau Lift Ins. Co., 291 F.3d statute empowers a would-be plaintiff to file suit to vindicate 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. WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 9 EFTA00074607 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 Only two provisions of the Act speak directly to the issue of judicial enforcement -I 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 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 (bX2) states that "[l]n a Federal habeas corpus proceeding arising out of a State conviction"—i.e., a proceeding under ?928 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 377 I (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. 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)( ), which provides, in relevant part, that "Nile 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 •1257 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. 2 Perhaps most compellingly, subsection (dX3) 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." 191 "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, 102 S.Ct. 1534, 71 L.Ed.2d 748 (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. WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 10 EFTA00074608 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 Townes, Studies in American Elementary Law 621 (1911) (emphasis added)); see also 56 Am. Jur. 2d Motions, Rules, and Orders § I (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 § I (2020) ("The term 'motion' generally means an application made 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, § I (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 *1258 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 I advisory committee's note (emphasis added). So even a § 2255 "motion" presupposes a preexisting criminal proceeding. 13 [101 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—Le., 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 *1259 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." I8 U.S.C. § 377I (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 preexisting case, not for initiating a freestanding civil action. And as the Supreme Court emphasized in Swzdoval-and as we will further unpack shortly in examining the CVRA's administrative- WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 11 EFTA00074609 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 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, 121 S.Ct. 1511; see also, e.g., P 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 (dX6), 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 t 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 ow dissenting colleagues do—that subsection (dX6) doesn't expressly rule out a private suit for declaratory or injunctive