United States District Court, S.D. Florida
OPINION AND ORDER 
KENNETH A. MARRA, UNITED STATES DISTRICT JUDGE
cause is before the Court upon Jane Doe 1 and Jane Doe
2's Submissions on Proposed Remedies (DE 458); the
Government's Response to Petitioners' Submission on
Proposed Remedies (DE 462); Limited Intervenor Jeffery
Epstein's Brief in Opposition to Proposed Remedies (DE
463); Jane Doe 1 and Jane Doe 2's Reply to the Government
in Support of their Submission on Proposed Remedies (DE 464);
Jane Doe 1 and Jane Doe 2's Reply to Intervenor
Epstein's Brief in Opposition to Proposed Remedies (DE
466); Jane Doe 1 and Jane Doe 2's Statement Noting Death
Pursuant to Rule 25 of the Federal Rules of Civil Procedure
(DE 475); Response to Rule 25 Notice, and Suggestion of
Mootness (DE 476) and Jane Doe 1 and Jane Doe 2's Motion
to Strike Response to Rule 25 Notice (DE 477).
February 21, 2019, the Court entered its Order (DE 435)
finding that the Government violated the Crime Victims'
Rights Act (“CVRA”), 18 U.S.C. §3771, when
it failed to confer with Petitioners prior to entering into a
non-prosecution agreement (“NPA”) with Jeffrey
Epstein (“Mr. Epstein”). The Court permitted the
parties to brief and present additional evidence relative to
the issue of what remedies, if any, should be imposed by the
Court as a result. The briefing was extensive and the Court
has carefully reviewed all of the arguments. No additional
evidence was presented by any of the parties. Furthermore,
during the time the matter was under advisement, Mr. Epstein
died, which resulted in additional briefing. The Court will
simply provide an abbreviated summary of the parties'
arguments, given that the briefs are available on the public
initially requested the following remedies: (1) rescind the
provisions in the NPA between the U.S. Attorneys Office in
the Southern District of Florida and Mr. Epstein that barred
his prosecution and the prosecution of his named and unnamed
alleged co-conspirators; (2) declare that the United States
Constitution would permit such a prosecution; (3) enjoin the
U.S. Attorney's Office to forthwith make its best efforts
to protect the CVRA rights of Jane Doe 1 and Jane Doe 2 and
other Epstein victims; (4) enjoin the U.S. Attorney's
Office to forthwith confer with Jane Doe 1 and Jane Doe 2 and
other Epstein victims to provide them with accurate and
timely notice of future case events; (5) order a meeting for
the victims with members of the current U.S. Attorney's
Office and the former U.S. Attorney's Office, including
former U.S. Attorney Alexander Acosta; (6) conduct a court
hearing for victims, requiring the attendance of Mr.
Acosta; (7) provide various information to the
victims including information in the Government's
possession about why it did not prosecute Epstein's
crimes, grand jury material, information from the Federal
Bureau of Investigation (“FBI”), sealed material
submitted by the Government to the Court and material filed
by the Government in DE 414 and DE 348; (8) require the
Justice Department to conduct a course of training for
employees in the U.S. Attorney's Office in the Southern
District of Florida about the CVRA and (9) order the
Government to pay monetary sanctions, restitution,
attorney's fees and costs.
Government asserts that these remedies are not authorized by
the CVRA. The Government, however, states that it should have
communicated more effectively with Petitioners and proposes
the following remedies: (1) the Department of Justice will
designate a representative to meet with Petitioners and other
victims to discuss the decision to resolve the Epstein case;
(2) the Government will participate in a public court
proceeding in which Petitioners can make a victim impact
statement and (3) all criminal prosecutors in the United
States Attorney's Office for the Southern District of
Florida will undergo additional training on the CVRA, victim
rights and victim assistance issues.
to his death, Mr. Epstein addressed the rescission remedies
proposed by Petitioners, asserting that they were
unauthorized by the CVRA, precluded by contract law, the
doctrines of judicial and equitable estoppel, substantive due
process, separation of powers and ripeness. Mr. Epstein also
opposed the Government's proposed remedy of a proceeding
in which “unadjudicated victims” “make
impact statements about a person who has not been convicted
of, or facing sentencing for, a federal crime, ” (DE
463 at 61.)
provided the Court with a reply memoranda addressing both the
Government's arguments (DE 464), as well as those of Mr.
Epstein. (DE 466). On August 12, 2019, Petitioners filed a
statement, noting Mr. Epstein's death. As part of that
notice, Petitioners argue that Mr. Epstein's death
rendered all of his objections to Petitioners' proposed
remedies moot. (DE 475 at 1.) Moreover, Petitioners contend
that most of the Government's objections which were
“predicated on protecting Epstein's
interests” are also moot. (Id.) Based on this
theory, Petitioners urge the Court to grant all of
Petitioners' proposed remedies, including invaliding the
provisions in the NPA that precluded prosecution of
Epstein's alleged co-conspirators. (Id.)
Epstein's attorneys responded that his death rendered
Petitioners' request for rescission of the NPA moot.
Petitioners have asked the Court to strike this response
since Mr. Epstein is dead, and therefore he should no longer
have a voice in this proceeding.
against Jeffrey Epstein and the Alleged Co-Conspirators
Doe 1 and Jane Doe 2 seek an order finding the provisions in
the NPA barring the prosecution of Epstein's alleged
co-conspirators null and void, to the extent they prevent
their prosecution for federal crimes committed in the
Southern District of Florida against Jane Doe 1 or 2 (or any
other victim of a federal sex crime offense committed by
Epstein's alleged co-conspirators within the Southern
District of Florida).
III of the U.S. Constitution grants the judiciary the
authority to adjudicate cases and controversies. “In
our system of government, courts have ‘no business'
deciding legal disputes or expounding on law in the absence
of such a case or controversy.” Already, LLC v.
Nike, Inc., 568 U.S. 85, 90 (2013). “[A]n
‘actual controversy' must exist not only ‘at
the time the complaint is filed,' but through ‘all
stages' of the litigation.” Id. at 90-91;
see also Arizonans for Official English v. Arizona,
520 U.S. 43, 67 (1997) (“To qualify as a case fit for
federal-court adjudication, ‘an actual controversy must
be extant at all stages of review, not merely at the time the
complaint is filed'”) (quoting Preiser v.
Newkirk, 422 U.S. 395, 401 (1975)); Gagliardi v.
TJCV Land Tr., 889 F.3d 728, 733 (11th Cir. 2018) (a
justiciable case or controversy must be present “at all
stages of review.”)
there is no longer an Article III controversy permitting the
Court to address the appropriateness of the remedy of
rescission. As a result of Mr. Epstein's death, there can
be no criminal prosecution against him and the Court cannot
consider granting this relief to the victims. Id. at
733. (“Mootness demands that there be something about
the case that remains alive, present, real, and immediate so
that a federal court can provide redress in some palpable
way.”); see also Genesis Healthcare Corp. v.
Symczyk, 569 U.S. 66, 72 (2013) (“If an
intervening circumstance deprives the plaintiff of a
‘personal stake in the outcome of the lawsuit,' at
any point during litigation, the action can no longer proceed
and must be dismissed as moot.”)
the Court is without jurisdiction to grant Petitioners'
request for rescission of the NPA provisions with respect to
Mr. Epstein's alleged co-conspirators. That request
invites the Court to render an advisory opinion.
“Strict application of the ripeness doctrine prevents
federal courts from rendering impermissible advisory opinions
and wasting resources through review of potential or abstract
disputes.” National Advert. Co. v. City of
Miami, 402 F.3d 1335, 1339 (11th Cir. 2005).
“While the constitutional aspect of [the ripeness]
inquiry focuses on whether the Article III requirements of an
actual “case or controversy” are met, the
prudential aspect asks whether it is appropriate for this
case to be litigated in a federal court by these parties at
this time.” Id.
requesting rescission of the NPA with respect to the alleged
co-conspirators, Petitioners seek a ruling affecting the
rights of non-parties to this case. If the Court granted such
relief, and a criminal prosecution was to be instituted
against the alleged co-conspirators, they would be free to
assert the benefits, if any, which inured to them under the
NPA as a bar to any prosecution. The question of the validity
of the non-prosecution provisions of the NPA as they relate
to the alleged co-conspirators will have to be litigated with
their participation if any prosecution against them is ever
brought. Any decision by this Court on that question is
meaningless without their participation in this proceeding.
Steans v. Combined Ins. Co. of Am., 148 F.3d 1266,
1270 (11th Cir. 1998) (“a judgment in personam
is not binding on a party who is not designated as a
party.”) Mr. Epstein chose to intervene in this case
relative to the question of an appropriate remedy, and thus
he would have been bound by any ruling issued by the Court.
The alleged co-conspirators did not intervene, nor were they
obligated to do so. See Martin v. Wilks, 490 U.S.
755, 763 (1989) (“a party seeking a judgment binding on
another cannot obligate that person to intervene; he must be
joined.”), superseded by statute in not relevant
part as stated in, Landgraf v. USI Film
Products, 511 U.S. 244 (1994). Moreover, no party to
this proceeding sought to join them to this case. Since the
alleged co-conspirators are not parties to this case, any
ruling this Court makes that purports to affect their rights
under the NPA would merely be advisory and is thus beyond
this Court's jurisdiction to issue.
request that the Court issue an injunction requiring the U.S.
Attorney's Office in the Southern District in Florida to
make its “best efforts” to protect the CVRA
rights of Mr. Epstein's victims, to confer with Jane Doe
1 and Jane Doe 2 and other Epstein victims who ...