EPSTEIN
page 1 / 3766 . OCR, unverified
Dataset92 302
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Appendix F
EFTA00795170
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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.
UNITED STATES' SEALED REPLY IN SUPPORT OF ITS
MOTION 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
I
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claims, and these proceedings must therefore be dismissed for lack of subject matter
jurisdiction.' 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
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.
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. ยง 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
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Petitioners' rights under the CVRA were violated when Epstein and the USAO-SDFL entered