Tenth Circuit breaks ranks on Crime Victim’s Rights Act

By Jake Spratt

In In re Antrobus, 519 F.3d 1123 (10th Cir. 2008), the Tenth Circuit Court of Appeals lent its voice to a growing circuit split involving the Crime Victims’ Rights Act of 2004 (“CVRA”).  The CVRA grants enumerated rights to victims of federal crimes, such as the right to speak at sentencing and to be notified of any public hearings.  If a lower court abridges any of these rights, the CVRA specifically grants victims the right to “petition the court of appeals for a writ of mandamus.”  The Tenth Circuit, breaking sharply from the Ninth and Second Circuits before it, held that a victim petitioning for a writ of mandamus under the CVRA must show a “clear and indisputable right” for issuance of the writ.

Congress created the CVRA with two purposes in mind: to empower crime victims with a list of enumerated rights, and to grant victims standing to enforce those rights.  With respect to the latter aim, the CVRA explicitly grants victims the right to petition a court of appeals for a writ of mandamus in the event that a lower court violates one or more of the enumerated rights.

The Act does not, however, simply incorporate the traditional writ by reference; rather, the CVRA modifies the writ of mandamus by restricting how petitions are to be brought and adjudicated within the CVRA.  Most notably, section d(3) requires a reviewing court to “take up and decide such application [for writ] forthwith within 72 hours after the petition has been filed.”  The common law writ of mandamus does not impose this dramatic timeline.  The writ of mandamus that appears in the CVRA is, therefore, a modified version of the traditional writ.

These procedural modifications have led some courts to conclude that Congress also intended to modify the standard of review applicable to petitions brought under the CVRA.  Traditionally, courts have only issued a writ of mandamus in light of “exceptional circumstances amounting to a judicial usurpation of power or a clear abuse of discretion.”  Cheney v. U.S. Dist. Ct., 542 U.S. 367 (2004).  Under this strict standard, a party petitioning for an “ordinary” writ of mandamus bears the burden of clearing an extremely high hurdle before the writ will issue.  This standard is consistent with the U.S. Supreme Court’s view of mandamus as a “drastic and extraordinary remedy” reserved only for “extraordinary causes.”

To date, two circuits have rejected the traditionally strict standard as inappropriate for CVRA petitions.  In the first case to address the issue, In re Huff, 409 F.3d 555 (2d Cir. 2005), the Second Circuit held that petitions for the writ of mandamus brought under the CVRA should be reviewed under an “abuse of discretion” standard: if a reviewing court believes that a trial court abused its discretion by ignoring or improperly administering a victim’s enumerated right, then it must issue the writ.

The Second Circuit reasoned that the CVRA’s modified mandamus procedures revealed Congress’ intent to treat the writ as akin to an appellate mechanism.  Because Congress employed the writ within the CVRA as a vehicle for ordinary appellate review, the court reasoned, courts should review petitions brought under the CVRA using the traditional appellate standard of review.  The Ninth Circuit adopted this view two years later in In re Kenna, 435 F.3d 1101 (9th Cir. 2006).

In Antrobus, the Tenth Circuit explicitly broke from the Second and Ninth Circuits’ position.  The court held that a victim petitioning for a writ under the CVRA must satisfy the same strict standard of review traditionally afforded to writs of mandamus.  The court firmly rejected the Second and Ninth Circuits’ reasoning that Congress had intended CVRA writs of mandamus to be somehow different than traditional writs of mandamus.  Instead, the Tenth Circuit argued that mandamus is a well-worn term of art that carries with it several centuries’ worth of judicial interpretations.  Absent explicit statutory language to the contrary, the court reasoned, Congress is assumed to have adopted all the history and tradition wrapped up in such a term—including the traditional standard of review.

The Antrobus decision created a split amongst the circuits as to which standard of review is appropriate.  This disagreement has important practical impacts.  Under the strict, traditional standard adopted in Antrobus, an “ordinary” abuse of discretion would not require the writ to issue; only a “clear abuse of discretion” amounting to a “judicial usurpation of power” would compel appellate action.  Although the precise difference between the two standards may be unclear, one thing is certain: victims petitioning for writ in the Second and Ninth Circuits are much more likely to have their rights enforced than victims petitioning in the Tenth.

The highly sensitive nature of victims’ rights and the drastically disparate outcomes produced under the two standards of review suggests the U.S. Supreme Court will likely settle this matter soon.  In the meantime, however, advocates and crime victims in the Tenth Circuit should be prepared to leap a very high hurdle when petitioning for a writ of mandamus under the CVRA.