205-06.pdf

Appendix F Case 9:08-cv-80736-KAM Document 205-6 Entered on FLSD Docket 07/05/2013 Page 1 of 101 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 08-80736-CIV-MARRA/JOHNSON JANE DOE #1 AND JANE DOE #2, Petitioners, vs. UNITED STATES, Respondent. _______________________________/ U NITED STATES’ SEALED REPLY IN SUPPORT OF ITS M OTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION In their Response to Government’s Sealed Motion to Dismiss for Lack of Subject Matter Jurisdiction (DE 127) and their Sealed Supplemental Response Regarding Remedies (“Sealed Resp.”), Petitioners attempt to establish both their standing in these proceedings and this Court’s subject matter jurisdiction over the proceedings. Notwithstanding Petitioners’ arguments, however, this Court lacks subject matter jurisdiction over these proceedings because Petitioners lack Article III standing and because the claims raised by Petitioners are not constitutionally ripe. I. The Claims Raised in the Petition Must Be Dismissed for Lack of Subject Matter Jurisdiction Because the Petitioners Lack Standing to Bring Those Claims. In their responses to the government’s motion to dismiss, Petitioners attempt to establish standing by arguing that the Non-Prosecution Agreement is an illegal agreement that can be set aside in these CVRA proceedings and by asserting, at the eleventh hour, that they are entitled to nearly two dozen additional civil remedies for the claimed violations of the CVRA. Petitioners’ efforts, however, are unavailing. Petitioners’ claimed CVRA violations/injuries cannot be redressed by the remedies they seek, Petitioners accordingly lack standing to pursue their CVRA Case 9:08-cv-80736-KAM Document 205-6 Entered on FLSD Docket 07/05/2013 Page 2 of 101 2 claims, and these proceedings must therefore be dismissed for lack of subject matter jurisdiction. 1 See, e.g., Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180-81, 185 (2000); Florida Wildlife Federation, Inc. v. South Florida Water Management Dist., 647 F.3d 1296, 1302 (11th Cir. 2011); Phoenix of Broward, Inc. v. McDonald’s Corp., 489 F.3d 1156, 1161 (11th Cir. 2007); Scott v. Taylor, 470 F.3d 1014, 1018 (11th Cir. 2006); National Parks Conservation Ass’n v. Norton, 324 F.3d 1229, 1242 (11th Cir. 2003). A. This Court Must Address the Subject Matter Jurisdiction Issues Raised by the Government Before Allowing These Proceedings to Continue As a threshold matter, Petitioners have argued that this Court cannot dismiss these proceedings at this time for lack of standing because the standing issues raised by the government are intertwined with the ultimate merits of their CVRA claims. DE 127 at 7-8. That is not so. Although the government disputes Petitioners’ claims that the government’s actions violated the CVRA, 2 the government’s standing arguments have “assum[ed] arguendo that 1 Petitioners nonetheless contend that, even if no remedy is available to them, they can circumvent constitutional standing requirements by invoking the “capable of repetition, yet evading review” exception for mootness. DE 127 at 18. However, “if a plaintiff lacks standing at the time the action commences, the fact that the dispute is capable of repetition yet evading review will not entitle the complainant to a federal judicial forum.” Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 170 (2000). Moreover, the “capable of repetition, yet evading review” exception is inapplicable in this case because it only applies “where ‘(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.’” Federal Election Comm’n v. Wisconsin Right to Life, Inc., 551 U.S. 449, 462 (2007) (quoting Spencer v. Kemna, 523 U.S. 1, 17 (1998)). Neither of those circumstances exists here. 2 For example, the United States has disputed throughout these proceedings that the CVRA grants victims a statutory right to confer with the attorney for the government before federal criminal charges are instituted, and it further contends that Petitioners’ claims that they were denied timely notice of court proceedings as required by 18 U.S.C. § 3771(a)(2) are frivolous; the only court proceedings that have taken place in connection with Epstein’s criminal offenses were state court proceedings involving state criminal offenses, for which the CVRA does not Case 9:08-cv-80736-KAM Document 205-6 Entered on FLSD Docket 07/05/2013 Page 3 of 101 3 Petitioners’ rights under the CVRA were violated when Epstein and the USAO-SDFL entered into the Non-Prosecution Agreement.” Mot. to Dismiss at 3. Indeed, the basis of the government’s motion is that, even assuming that the CVRA was violated as Petitioners claim, Petitioners lack standing to seek redress for those violations, and that these proceedings must accordingly be dismissed for lack of subject matter jurisdiction. Under these circumstances, this Court is obligated to address and resolve the question of whether it has subject matter jurisdiction before proceeding any further with this matter. E.g., University of South Alabama v. American Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999) (holding that “the district court should have resolved the issue of subject matter jurisdiction before reaching the merits of any other issue” and that “the district court erred in failing to first address its power to act”); id. at 410 (“Simply put, once a federal court determines that it is without subject matter jurisdiction, the court is powerless to continue.”); Taylor v. Appleton, 30 F.3d 1365, 1366 (11th Cir. 1994) (“[A] court must first determine whether it has proper subject matter jurisdiction before addressing the substantive issues.”); see also, e.g., Ex parte McCardle, 74 U.S. 506, 514 (1868) (“Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.”). require notice, see, e.g., 18 U.S.C. § 3771(a)(2), (b)(1); cf. 18 U.S.C. § 3771(a)(2)(A), (C) (curtailing notice rights and obligations even for federal proceedings when they involve a state crime); United States v. Guevara-Toloso, 2005 WL 1210982, *2 (E.D.N.Y. 2005) (recognizing that the CVRA does not require notice of public court proceedings based on violations of state criminal law), and, in any event, AUSA Villafaña provided Petitioners with pre-hearing notice of those state proceeding – in which Epstein pled guilty to state criminal charges – upon the government’s learning that the state plea hearing had been scheduled, DE 14 at ¶ 11; DE 48 at ¶ 41. Case 9:08-cv-80736-KAM Document 205-6 Entered on FLSD Docket 07/05/2013 Page 4 of 101 4 B. Petitioners Lack Standing to Seek Rescission of the Non-Prosecution Agreement Between the USAO-SDFL an