Document 9:08-cv-80736-KAM

Case 9:08-cv-80736-KAM Document 209 Entered on FLSD Docket 07/09/2019 Page 4 of 20 Water Management Dist., 647 F.3d 1296, 1302 (11th Cir. 2011) (“If at any point in the litigation the plaintiff ceases to meet all three requirements for constitutional standing, the case no longer presents a live case or controversy, and the federal court must dismiss the case for lack of subject matter jurisdiction.”); Phoenix of Broward, Inc. v. McDonald’s Corp., 489 F.3d 1156, 1161 (11th Cir. 2007) (“[T]he issue of constitutional standing is jurisdictional . . .”); National Parks Conservation Ass’n v. Norton, 324 F.3d 1229, 1242 (11th Cir. 2003) (“[B]ecause the constitutional standing doctrine stems directly from Article III’s ‘case or controversy’ requirement, this issue implicates our subject matter jurisdiction, and accordingly must be addressed as a threshold matter regardless of whether it is raised by the parties.”) (citation omitted). In these proceedings, the only identified legal relief that Petitioners have sought pursuant to the CVRA is the setting aside of the Non-Prosecution Agreement that was entered into between Jeffrey Epstein and the U.S. Attorney’s Office for the Southern District of Florida (“USAO-SDFL”). See, e.g., DE 99 at 6 (recognizing that the relief Petitioners seek “is to invalidate the non-prosecution agreement”). But even assuming arguendo that Petitioners’ rights under the CVRA were violated when Epstein and the USAO-SDFL entered into the Non-Prosecution Agreement, constitutional due process guarantees do not allow either the Non-Prosecution Agreement – which by its terms induced Epstein to, inter alia, plead guilty to state criminal charges and serve an 18-month sentence of state incarceration3 – or the governmental this Court need not reach or address those issues because an analysis of the third prong of the standing test incontrovertibly establishes the Petitioners’ lack of standing. Nonetheless, the circumstances which demonstrate Petitioners’ lack of a concrete injury traceable to government conduct are explored infra in Section II of this memorandum, which addresses how Petitioners’ claims and these proceedings lack constitutional ripeness. 3 See also July 11, 2008 Hr’g Tr. at 20-21 (Petitioners’ acknowledgement that Epstein’s reliance on promises in Non-Prosecution Agreement led to his guilty plea to state charges and his --- PAGE BREAK --- Case 9:08-cv-80736-KAM Document 209 Entered on FLSD Docket 07/06/2019 Page 8 of 20 see also, e.g., Association For Children for Enforcement of Support, Inc. v. Conger, 899 F.2d 1164, 1165 (11th Cir. 1990). Under the doctrine, "[a] claim is not ripe when it is based on speculative possibilities," In re Jacks, 642 F.3d 1323, 1332 (11th Cir. 2011), such as if the claim "rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all," Atlanta Gas Light Co. v. FERC, 140 F.3d 1392, 1404 (11th Cir. 1998) (quoting Texas v. United States, 523 U.S. 296, 300 (1998)). Indeed, "[t]he ripeness doctrine is designed to prevent federal courts from engaging in such speculation and prematurely and perhaps unnecessarily reaching constitutional issues." Pittman, 267 F.3d at 1280. In these proceedings, the Petitioners have sought to set aside the Non-Prosecution Agreement between Epstein and the USAO-SDFL so that Petitioners can "confer with the attorney for the Government" about the possible filing of federal criminal charges against Epstein and the potential disposition of any such charges. See, e.g., July 11, 2008 Hr'g Tr. at 6-7 (seeking an "[o]rder that the [non-prosecution] agreement that was negotiated is invalid" so that Petitioners can exercise the right to confer with the government); id. at 19-20, 24; 18 U.S.C. § 3771(a)(5); see also DE 1 at 2 ¶ 5 (claiming that Petitioner was "denied her rights" under the CVRA because she "received no consultation with the attorney for the government regarding the possible disposition of the charges"). Notwithstanding the Non-Prosecution Agreement, Petitioners are and have been free to confer with attorneys for the government about the investigation and potential prosecution of Epstein. At least one attorney for the government (Assistant United States Attorney Villafaña from the USAO-SDFL) had spoken to Petitioners about the offenses committed against them by Epstein prior to the signing of the Non-Prosecution Agreement, see, e.g., July 11, 2008 Hr'g Tr. at 22 (acknowledging that prosecutors spoke to Petitioners "about what happened" to them); DE 7 DOJ-OGR-00000312