Date: May 26, 2026

CVRA Mandamus Is Limited to Enforcing Enumerated Victims’ Rights, Not Substantive Review of Rule 48(a) Dismissals

I. Introduction

In re Naoise Connolly Ryan; Emily Chelangat Babu; Joshua Mwazo Babu; Catherine Berthet; Huguette Debets, Et al., decided by the United States Court of Appeals for the Fifth Circuit on May 22, 2026, arises from criminal proceedings connected to Boeing’s conduct after two fatal crashes involving Boeing 737 MAX aircraft (Lion Air Flight 610 and Ethiopian Airlines Flight 302).

After the Department of Justice charged Boeing with conspiracy to defraud the United States under 18 U.S.C. § 371, the prosecution’s resolution path shifted from a 2021 Deferred Prosecution Agreement (DPA) to a 2025 Non-Prosecution Agreement (NPA) coupled with a Rule 48(a) motion to dismiss the pending charge. Families of crash victims invoked the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771 et seq., arguing that DOJ violated their rights—particularly the rights to confer and to be treated with fairness—and that the district court should not have dismissed the prosecution.

The Fifth Circuit, in a substituted opinion (withdrawing its prior opinion, 171 F.4th 773), denied mandamus relief. The case presents three key issues: (1) whether challenges to the 2021 DPA remained live after Boeing’s alleged breach; (2) whether DOJ’s process around the 2025 NPA violated CVRA conferral/fairness rights; and (3) whether the CVRA authorizes appellate review of the merits of a district court’s Rule 48(a) dismissal decision under the guise of victims’ rights enforcement.

II. Summary of the Opinion

DPA challenge is moot: Once Boeing allegedly breached the 2021 DPA, its terms relieved the government of obligations, and third-party challenges to a no-longer-binding agreement became moot.
No CVRA violation in NPA conferral/fairness: DOJ satisfied the CVRA’s “reasonable right to confer” by conducting the May 2025 video call and did not mislead families about the NPA’s timing or the possibility of refiling charges upon breach.
No CVRA jurisdiction to substantively review Rule 48(a) dismissal: The CVRA’s mandamus mechanism is confined to enforcing the statute’s enumerated rights and does not permit victims to litigate whether dismissal was “contrary to the public interest” or based on allegedly flawed penalty calculations.

III. Analysis

A. Precedents Cited

1. CVRA mandamus standard of review

The court anchored its CVRA mandamus review framework in the statute’s instruction to apply “ordinary standards of appellate review.” It quoted In re Doe, 57 F.4th 667, 672-73 (9th Cir. 2023), for the familiar tripartite standard: de novo for legal conclusions, clear error for factual findings, and abuse of discretion for discretionary judgments. This mattered because Petitioners sought both legal rulings (the scope of CVRA and jurisdiction) and fact-sensitive conclusions (whether they were “misled”).

2. Mootness of the 2021 DPA challenge

The court treated the DPA as a contract and applied contract-based mootness logic. It relied on United States v. Castaneda, 162 F.3d 832, 835 (5th Cir. 1998), for the proposition that agreements not to prosecute are “contractual in nature” interpreted under general contract principles. It then cited Bender v. Donoghue, 70 F.2d 723, 724 (5th Cir. 1934), for the principle that a third party’s challenge is moot once the contract no longer binds a contracting party.

The court also addressed waiver/forfeiture arguments by emphasizing mootness as jurisdictional, citing St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S. 531, 537 (1978), for the point that jurisdictional defects may be raised at any time (including sua sponte).

3. What “confer” and “fairness” require under the CVRA

For the content of “confer,” the Fifth Circuit relied on its own CVRA precedent, In re Dean, 527 F.3d 391, 394-95 (5th Cir. 2008) (per curiam), describing a right to “communicate meaningfully” with prosecutors.

Petitioners’ “misleading” theory invoked Doe 1 v. United States, 359 F. Supp. 3d 1201, 1219 (S.D. Fla. 2019), quoted for the proposition that when the government provides information, it cannot be misleading. The Fifth Circuit did not reject that premise in the abstract, but held the record did not support a finding of misleading conduct here.

The court reinforced the ordinary meaning of “confer” by quoting dictionary definitions and a procedural conferral example from In re Presto, 358 B.R. 290, 293 (Bankr. S.D. Tex. 2006).

4. Statute of limitations and tolling while charges are pending

To reject the claim that the NPA rendered all future prosecution time-barred, the court relied on Fifth Circuit authority that filing an information tolls limitations while charges remain pending: United States v. Schmick, 904 F.2d 936, 940 (5th Cir. 1990); and Miller v. U.S. ex rel. Hunt, 181 F.2d 363, 364 (5th Cir. 1950). The court accepted that “tolling” may be temporary rather than permanently stopping the clock, but deemed that distinction irrelevant because the key question was whether the charge was time-barred as of the NPA’s signing date.

5. CVRA’s limits: no substantive appellate review of a Rule 48(a) dismissal

The central jurisdictional limit came from the Ninth Circuit’s articulation in In re J.H., 138 F.4th 1347, 1349 (9th Cir. 2025): the CVRA mandamus procedure does not permit victims to challenge matters other than denial of enumerated rights.

The court then grounded the limitation in the Supreme Court’s broader principle that private citizens generally lack a judicially cognizable interest in prosecuting others, citing Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973). This principle served as a constitutional/structural backdrop to resist reading CVRA “fairness” as a de facto right of appeal on dismissal merits.

6. Procedural backdrop from earlier Boeing/MAX litigation

The court referenced its earlier decision, In re Ryan, 88 F.4th 614 (5th Cir. 2023), for crash background and for its earlier observations about DPAs and timing (including the panel’s statement that mandamus was premature at that stage and that district courts lack authority to exercise substantive review over DPAs). It also referenced the district court’s earlier CVRA ruling in United States v. Boeing Co., 655 F. Supp. 3d 519 (N.D. Tex. 2023), and the later dismissal order in United States v. Boeing Co., No. 4:21-CR-5, 2025 WL 3095958 (N.D. Tex. Nov. 6, 2025).

For “sequence of NPA vs. dismissal,” the court cited examples undermining any asserted “normal sequence,” including In re Wild, 994 F.3d 1244, 1247-48 (11th Cir. 2021) (en banc) and United States v. Bird, 709 F.2d 388, 389-90 (5th Cir. 1983).

B. Legal Reasoning

1. Why the 2021 DPA challenge became moot

The court reasoned that once Boeing breached the DPA, the agreement’s express terms made Boeing “subject to prosecution for any federal criminal violation,” thereby relieving the government of its obligations. Under the contract framing from United States v. Castaneda, the DPA’s binding effect ended. Under Bender v. Donoghue, a third party cannot maintain a live challenge to a contract that no longer binds the relevant parties.

Petitioners attempted to keep the controversy alive by arguing that the 2025 NPA incorporated DPA penalty calculations, allegedly tainting the dismissal. The court rejected that causal theory as jurisdictionally and factually insufficient: reusing calculations did not show the government acted as though still bound by the DPA, and the calculations were described as based on a statutory maximum fine DOJ believed it could secure. Thus, no live DPA-based dispute remained.

Notably, the court explicitly declined to reach broader questions about judicial power to set aside DPAs, because mootness resolved the DPA challenge.

2. Why DOJ satisfied the CVRA’s “reasonable right to confer” and “fairness” obligations for the 2025 NPA

The court treated “confer” as a process right: victims must have a meaningful opportunity to communicate, not a veto and not a guarantee that prosecutors will adopt victims’ preferred course. It found the May 2025 video call met the statutory requirement because DOJ compared views and consulted with the families, consistent with In re Dean.

On “misleading” allegations, the court parsed the record rather than adopting a broad rule about required disclosures. It held DOJ did not mislead the families about the NPA’s timing because the government clearly explained (i) it was considering an NPA, (ii) an NPA is an exchange for nonprosecution, and (iii) an NPA would require a motion to dismiss. The court emphasized DOJ never represented it would wait for dismissal before signing an NPA; if anything, it signaled the opposite.

On limitations, the court held DOJ was not misleading when it said it could renew charges despite time passing, because the NPA permitted prosecution for conduct not time-barred at the time of signing. The pending § 371 charge was not time-barred in May 2025 because the 2021 information tolled limitations while charges were pending, consistent with United States v. Schmick and Miller v. U.S. ex rel. Hunt. Even if tolling is only suspension (not permanent clock-stopping), the suspension sufficed for the representation made.

Having found no CVRA violation, the court again declined to address arguments about district courts’ power to set aside NPAs.

3. Why the CVRA does not authorize appellate “public interest” review of Rule 48(a) dismissals

Petitioners sought to reverse dismissal as contrary to the public interest—an argument that resembles traditional debates about Rule 48(a)’s “leave of court” function. The Fifth Circuit did not decide the merits of that Rule 48(a) controversy. Instead, it held it lacked CVRA jurisdiction to do so.

The court’s reasoning was textual and structural:

Text: 18 U.S.C. § 3771(d)(3) creates a mandamus path when “the district court denies the relief sought” in enforcing enumerated rights. The statute does not create a general right to challenge dismissal decisions.
Structure: Allowing victims to recast dismissal-merits challenges as “fairness” claims would effectively create an unlimited right to appeal dismissals, colliding with Linda R.S. v. Richard D.’s principle that nonparties generally lack a judicially cognizable interest in the prosecution or nonprosecution of another.
Persuasive authority: In re J.H. squarely supported limiting CVRA mandamus to enumerated-rights enforcement, not merits review.

Accordingly, the court held it could not review whether dismissal was contrary to the public interest or whether the district court relied on incorrect financial calculations.

C. Impact

1. A clarified jurisdictional boundary for CVRA mandamus

The most consequential holding is jurisdictional: CVRA mandamus in the Fifth Circuit is confined to correcting denials of enumerated statutory rights, not to reviewing the substantive merits of prosecutorial dismissal decisions under Rule 48(a). This sharply limits appellate leverage for victims seeking to contest nonprosecution outcomes, even where they characterize the outcome as unfair or contrary to public interest.

2. Reinforcement of conferral as process, not control

By holding that a video call comparing views sufficed, and by declining to impose additional sequencing or disclosure rules about when an NPA must be executed, the opinion reinforces that “conferral” is satisfied by meaningful consultation, not by negotiating participation rights akin to party status.

3. Practical consequences for agreement design (NPAs/DPAs) and victim communications

The court’s analysis signals that DOJ can reduce CVRA risk by clearly documenting conferral, accurately describing the relationship between agreements and dismissal motions, and precisely articulating limitations/tolling implications (especially when promising the ability to refile charges upon breach).

4. Mootness as a litigation endpoint for challenges to breached DPAs

Treating the DPA as moot upon breach limits retrospective CVRA litigation about negotiation defects once the agreement ceases to bind the government—particularly where subsequent resolutions incorporate similar terms. This increases the importance of timely relief efforts while an agreement remains operative.

IV. Complex Concepts Simplified

Crime Victims’ Rights Act (CVRA): A federal statute giving crime victims certain procedural rights in federal criminal cases—such as the right to confer with prosecutors and the right to be treated fairly. It does not automatically make victims parties to the prosecution.
Mandamus (under the CVRA): An expedited appellate mechanism to correct a district court’s denial of CVRA rights. Here, the Fifth Circuit held it is not a vehicle to appeal the merits of a dismissal decision itself.
DPA vs. NPA: A Deferred Prosecution Agreement (DPA) typically involves filed charges that are paused while the defendant complies with conditions. A Non-Prosecution Agreement (NPA) is an agreement not to prosecute in exchange for conditions; in this case it was paired with dismissal of an already-filed charge.
Rule 48(a) “leave of court”: Fed. R. Crim. P. 48(a) requires court permission for the government to dismiss charges. This opinion does not define the full scope of that permission; it holds only that the CVRA does not give victims appellate jurisdiction to challenge the dismissal’s merits.
Mootness: A case (or issue) is moot when the court can no longer grant meaningful relief because the underlying dispute is no longer live—here, because the DPA no longer bound the parties after breach.
Tolling (statute of limitations): A suspension of the limitations period. The court relied on Fifth Circuit authority that filing an information tolls limitations while charges are pending, so the charge was not time-barred when the NPA was executed.

V. Conclusion

The Fifth Circuit’s substituted opinion denies CVRA mandamus relief and, in doing so, establishes a clear limiting principle: the CVRA’s mandamus mechanism authorizes appellate correction only for denials of enumerated victims’ rights, not substantive review of a Rule 48(a) dismissal decision or the public-interest merits of nonprosecution.

The court further holds that (i) challenges to a breached DPA are moot once the agreement no longer binds the parties, and (ii) DOJ satisfied CVRA conferral/fairness obligations regarding the NPA through meaningful consultation and non-misleading communications, including on limitations consequences. Collectively, these holdings reinforce the CVRA as a statute of participatory process rights rather than a mechanism for victims to control or appeal core prosecutorial disposition decisions.