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. 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 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." P i 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. ?l id 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. See 1 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 ? l 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? 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. SeeP I 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 3 1d. 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 ?9 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 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 relief. But under Sandoval and its progeny, the question isn't whether Congress "intended to preclude" a private right of action, see Branch Dissenting Op. at 1307-08, but rather, whether it intended to provide one. There is certainly nothing in subsection (d)(6)'s first sentence to suggest that it did. *1260 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 Sp., Inc. v. Poarch Band of Creek Indians, 563 F.3d 1205, 1209 (1 I th Cir. 2009). b Subsection (d)(6)'s second sentence weighs even more heavily in ow calculus: "Nothing in this chapter shall be construed to impair the prosecutorial 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. 1111 1121 1131 1141 1151 1161 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." f u United States v. Nixon, 418 U.S. 683, 693, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) (citing P i Confiscation Cases, 74 U.S. (7 Wall.) 454, 19 L.Ed. 196 (1869)). 16 *1261 Ms. Wild's interpretation of the CVRA risks "impair[ing] ... prosecutorial discretion" in at least two fundamental ways, which we will examine in turn. WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 12 EFTA00074610 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 [171 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]." IS U.S.C. § 3771(a) ("A crime victim has the following rights ...."). Notably for our purposes, the CVRA 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)(2XA). 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 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—befom 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. I7 *1262 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 IS 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. 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 WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 13 EFTA00074611 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 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 (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 *1263 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." IR sss [18[ 1191 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." f Nixon, 418 U.S. at 693, 94 S.Ct. 3090. 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 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 Sem. 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(1)—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 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 •1264 DOJ employees, and for imposing "disciplinary sanctions" on willful violators. IS 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-t Sandoval decision in Love it 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 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 WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 14 EFTA00074612 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 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.' "P 11d. at 1353. We emphasized in P "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. ?SM. 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 district court." I 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." It " 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 II "Love thus likewise follows here: Congress's "express provision of one method of enforcing a substantive rule"—or as in P Love, two methods—"suggests that [it] intended to preclude others."? " Love, 310 F.3d at 1353 (quotations marks omitted) (quoting ( IISandoval, 532 U.S. at 290, 121 S.Ct. 1511). *1265 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 ...." Il l 532 U.S. at 290, 121 S.Ct. 1511. 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 things, she "asserted the right to be heard before or during the proceeding at issue and such right was denied." P 11d. (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(cX8) ("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 manifested its intent to authorize stand-alone civil actions of the sort that Ms. Wild filed here. 2" WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 15 EFTA00074613 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 In sum, we find that numerous aspects of the CVRA —among them, subsection (dX3)'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 *1266 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. 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 pm-charge civil action. We respectfully disagree. Subsection (dX3) could just as easily—and far more sensibly, given the statutory context and the practical and constitutional problems that Ms. Wild's 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. 1201 1211 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." CI 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). 2i *1267 2 Second, and separately, Ms. Wild points to § 377I(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 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)( I) 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 § 377I(c)( I ) 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 WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 16 EFTA00074614 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 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 DOTS, must "make their best efforts to see that crime victims" are afforded CVRA rights. If subsection (c)(1) were intended to be a "when" *1268 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 detectionHnvestigation, or-preseeufien-oferime 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." 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 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 (cX1) would—as already noted—require law- enforcement officers to "confer" with victims, subject only to a squishy "reasonable[ness]" limitation, see § 3771(aX5), 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 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 *1269 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. sss Even giving Ms. Wild's "venue"- and "coverage"-provision arguments every benefit of every doubt, we don't see in either a 1 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." if" 'Fokker SLITS., 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 only assume it would have expressed itself more clearly. See, Puerto Rico v. Franklin Cat Tax-Free Trust, — U.S. —, 136 S. Ct. 1938, 1947, 195 L.Ed.2d 298 (2016) ("Congress 'does not, one might say, hide elephants in mouseholes.' " (quoting P Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 468, 121 S.Ct. 903, 149 L.Ed.2d 1 (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 WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 17 EFTA00074615 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 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 shown in pursuing this litigation—we find ourselves constrained to hold that it does not. PETITION DENIED. 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 *1270 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 bane, we asked the parties to answer two questions in their briefs. First, does the Crime Victim Rights Act, I8 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 proceeding"? Maj. Op. at 1252. 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 1251-52. 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 1315; see also Branch Dissenting Op. at 1294 ("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 bane 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 1316. 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 limited to resolving actual "Cases" and "Controversies." U.S. Const. art. Ill, § 2, cl. I. "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, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976). The prohibition against advisory opinions is "the oldest and most consistent thread in the federal law of justiciability." I Flast a Cohen, 392 U.S. 83, 96, 88 S.Ct. 1942, 20 L.Ed.2d 947 (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 WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 18 EFTA00074616 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 Executive Branch. 3 Correspondence and Public Papers of John Jay 486-89 (Henry P. Johnston ed. 1891). As the Justices explained *1271 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 considerations which afford strong arguments against the propriety of our extrajudicially deciding the questions alluded to." Id. at 488. The prohibition against issuing advisory opinions also runs through our caselaw all the way back to ?al Hayburn's Case, 2 U.S. 408, 2 Dail. 409, I L.Ed. 436 (1792). A federal statute authorized courts to determine disability pensions for Revolutionary War veterans. ?'Mistretta v. United States, 488 U.S. 361. 402, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) (describing Hayburn's Case). These determinations were subject to review by the Secretary of War. t tld. The Supreme Court was presented with a mandamus petition asking it to order a federal circuit court to consider a pension request. ? I Hayburn's Case, 2 U.S. (2 Dall.) at 409. It decided not to take up the petition until the next term. P yld. By then, Congress had amended the statute and rendered the controversy moot. t 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.t. 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. ? I Id. at 414 n.t. "None can be more sensible," the court wrote, "than we are of the necessity of judges being in general extremely cautious in not intimating an opinion in any case extrajudicially[.]" Id. Like the pension recommendations that federal courts were asked to provide in f a Haybunes 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 ow 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 1316-18. 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. The dissents counter that we could resolve the first question as an alternative holding. Id. at 1317-18. 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, ow opinion about pre-charge *1272 rights would not be binding on the Executive in the same way that the opinions about pension requests were not binding in? I He/Aunts 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 (aX5), (aX8), and (d)(3). Branch Dissenting Op. at 1295-96, 1313-14 (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 1314 (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, — U.S. -, 140 S. Ct 1731, 1823, 207 L.Ed.2d 218 (2020) (Kavanaugh, J., dissenting)). WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 19 EFTA00074617 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 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 Rostock, 140 S. Ct. at 1755- 56 (Afito, 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), (aX8), and (dX3) in isolation without looking to the rest of the Act. "Statutory construction ... is a holistic endeavor?? a United Say. Assen of Tex. v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371, 108 S.Ct 626, 98 L.Ed.2d 740 (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."? j Pennhurst State Sch. & Hosp. y. Halderman, 451 U.S. I, 18, 101 S.Ct. 1531, 67 L.Ed.2d 694 (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 1295-96, they fail to apply it in their analysis. 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(aX5), (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(6)(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 *1273 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. § 377I(d)(3). 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. § 377I(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 to have the same meaning." Scalia & Garner, Reading Law § 25, at 170 (quoting ? AN. Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433, 52 S.Ct. 607, 76 L.Ed. 1204 (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 (dX6) 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 WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 20 EFTA00074618 In re Wild, 994 F.3d 1244 (2021) 28 Fla. L. Weekly Fed. C 2701 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 1282-88. Finally, the dissents have no answer to the majority's point that the United States has not clearly waived sovereign immunity. Maj. Op. at 1258-59 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 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 (dX3) is implausible. *1274 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 f Alexander v. Sandoval, 532 U.S. 275, 121 S.Ct 1511, 149 L.Ed.2d 517 (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. ?II 532 U.S. at 287, 121 S.Ct. 1511. 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, 121 S.Ct. 1511. Moreover, if the "statutory structure provides a discernible enforcement mechanism, u 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 (Ilth Cir. 2002) (alteration adopted) (quoting Sandoval, 532 U.S. at 290, 121 S.Ct. 1511). The dissents' criticisms of the majority opinion's application of Sandoval to ` the Act are puzzling. They spend several pages explaining a Sandoval in detail and arguing that the majority has misapplied it. Branch Dissenting Op. at 1299- 1302, 1308-10; Hull Dissenting Op. at 1320-25. But they also contend that the Act expressly grants a private right of action. Branch Dissenting Op. at 1298-99; Hull Dissenting Op. at 1321, 1323. If the Act expressly granted a private right of action, then f j 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 1323 (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 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 1322 (internal quotation marks omitted). The Supreme Court long ago explained that Congress sometimes uses language that is "intended to be hortatory, not mandatory." t I Pennhurst, 451 U.S. at 24, 101 S.Ct. 1531. "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." C a Livadas v. Bradshaw, 512 U.S. 107, 132, 114 S.Ct. 2068, 129 L.E