Proposed Changes in Operation of the Witness Protection Program

Proposed Changes in Operation of

the Witness Protection Program

The Attorney G eneral has broad discretion in adm inistering the W itness Protection Program estab­

lished under T itle V o f the O rganized Crim e Control Act o f 1970, and his decisions in this

connection are not subject to judicial review under the statute.

Two proposed changes in the adm inistration o f the Program , dealing with the settlem ent o f existing

debts by p ersons entering the Program and with the custody of children brought into the Program ,

are generally w ithin the A ttorney G eneral’s authority. However, certain m odifications should be

m ade to protect fully the due process n g h ts of persons entitled to litigate or enforce custody and

visitation rights against a participant in the Ptogram . W hether the proposed changes provide

constitutionally adequate protection for either creditors unable to satisfy their claim s because of

the governm ent’s refusal to disclose the identity o f persons in the Program , or for persons w ithin

the Program w hose identity is disclosed to creditors, may depend on the facts of each case.

The proposed ch an g es would not subject the governm ent to liability under the Federal Tort C laim s

A ct, because they com e within an exception to the waiver o f sovereign im m unity in that A ct. Nor

would they subject the governm ent to liability for contract dam ages under the H icker A ct.

December 29, 1982

MEMORANDUM OPINION FOR THE

ASSOCIATE ATTORNEY GENERAL

This memorandum responds to your request for our opinion concerning

proposed changes in the operation of the Witness Protection Program (the

Program). For the reasons outlined in detail in this memorandum, we conclude

that all of the proposed changes are legally permissible, although we recommend

certain additional modifications in the handling of child custody litigation to

alleviate certain constitutional concerns present in the Program even after adop­

tion of the proposed changes.

I. Description of Program and Proposed Changes

Under the Program, which was established under Title V of the Organized

Crime Control Act of 1970, Pub. L. No. 91—452, §§ 501-504, 84 Stat. 922,

933—34 reprinted in notes prec. 18 U.S.C. § 3481 (1976) (Crime Control Act),

the Attorney General is authorized to protect witnesses and families of witnesses

whose lives might be placed in danger as a result of their testimony against

organized crime figures. The Attorney General has delegated the authority to

provide this protection to the United States Marshals Service (the Marshals

821

Service). See 28 C.F.R. § 0 .1 11(c) (1982). In discharging these duties, the

Marshals Service ordinarily assigns marshals to guard participants or relocates

them with new identities in a new area of the country. The Service generally

assures the continued security of participants who have been relocated by

refusing to disclose their new identity to members of the public.1 However, this

policy of concealing the new identities of relocated participants has led to two

general problems.

The first arises when witnesses have accumulated large debts before entering

the Program. When a witness enters the Program, he signs a form agreement,

called a Memorandum of Understanding, in which he agrees to “ settle” all of his

debts with creditors.2 Frequently, however, witnesses do not fulfill this pledge,

and creditors attempting to sue on claims against a witness in the Program are

unable to enforce any judgment against the witness because they cannot learn his

new location and identity. Currently, the Marshals Service will assist a creditor

only by forwarding his mail and legal process to the witness. If the witness

refuses to appear at any judicial proceeding or to satisfy any judgment, the

creditor lacks any avenue for securing relief.

The second problem arises when a participant is sued by an ex-spouse or other

person outside the Program seeking to obtain custody of a child who was brought

into the Program.3 In some cases, the witness or his spouse has legal custody of

the child when they enter the Program, but the ex-spouse sues to modify the prior

order granting one of them custody. In other cases, children have been brought

into the Program in violation of a court order granting the ex-spouse custody. The

Memorandum of Understanding signed by the witness specifically states that the

Marshals Service will not permit the witness to bring children into the Program in

violation of a court order,4 but witnesses and/or their spouses have defied this

prohibition without the knowledge of the Marshals Service or government

attorneys.5 The Marshals Service facilitates child custody litigation by transmit­

ting mail and legal process to the witness and spouse, by assuring the security of

any legal proceedings, and by paying the counsel fees of impecunious witnesses

and spouses. It does not currently disclose the new identity of a witness or his

spouse, however, even though the witness may refuse to participate in any

judicial proceeding or to conform to any judgment.

Any solution to these recurrent problems must reconcile the needs of the

government, witnesses, and the spouses of witnesses to conceal the participants’

new identities with the right of creditors and ex-spouses to satisfy their legitimate

1 The M arshals Service will disclose a participant's new identity to a law enforcement official seeking to arrest the

participant for a felony committed before his entrance into the Program.

2 M emorandum of Understanding at 5 (supplied with opinion request)

3 We generally will use the term “ ex-spouse" throughout this memorandum We assume, however, that custody

suits may also be brought by persons who are not ex-spouses but who nevertheless have legal custody or visitation

rights. In addiuon, for the sake o f convenience, we will refer to the ex-spouse as female and the witness as male,

although the opposite could just as well be true.

4 See Memorandum of Understanding at 5.

5 See, e.g , Salmeron v Gover, No. 81-047 (D .D .C 1981) (M arshals Service and ex-spouse of witness agreed in

a consent decree approved by the court to return child brought into Program by witness in violation of a state custody

order)

822

legal claims. Accordingly, it has been proposed that the Marshals Service adopt

the following policy. First, in cases where creditors bring suit against a witness,

or where ex-spouses bring suit against a witness or his spouse, the Marshals

Service would arrange for a secure courtroom, service of process on the defend­

ant, and reimbursement of counsel fees of an indigent defendant. Second, in the

situation where an ex-spouse obtains “ legal custody” of a child, the Marshals

Service would accept service of the relevant court order, arrange for the order to

be sealed and validated for the ex-spouse in the jurisdiction where the child

resides, and permit the local sheriff to execute the order. The Marshals Service

would not disclose to the ex-spouse the new identity or the location of the child. It

would also not inform the sheriff that he was seizing a child who was living with a

witness and/or his spouse. If the security of the witness or his spouse were

threatened by the return of an older child who knew their new identities, they

apparently would be relocated. Finally, in the circumstance where a creditor

secures a “ money judgment” against the witness which the witness refuses to

satisfy, officials of the Department of Justice would assume the authority, when

justice and fairness requires, to disclose the identity and location of the witness to

the creditor.6 Their decision would be based on a weighing of the following

factors: “ the size of the judgment, the circumstances of the particular swindle or

other act, the witnesses’ continued need to law enforcement, as well as other

factors in the particular case,” which we assume would include the financial

ability of the witness to satisfy the legal claims.7

You have asked us to examine whether any of the proposed changes would

violate the Memorandum of Understanding or any other provision of law. The

following five legal issues which are raised by the proposal and the operation of

the Program are discussed in detail in this memorandum.

First, does the Crime Control Act authorize the Attorney General to adopt the

proposed changes? For reasons outlined below, we conclude that the Attorney

General has the statutory authority to adopt these procedures.

Second, would the proposed changes subject the government to liability under

the Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680, for any injury that a

participant might sustain as a result of the disclosure of his identity? Under the

Tort Claims Act, the federal government has waived its immunity from suit in

certain circumstances for the violation of state tort law by its employees. In our

view, however, the proposed changes would not subject the government to tort

liability because they come within an exception to the waiver of sovereign

immunity in the Tort Claims Act.

Third, would the proposed changes subject the government to liability under

the Tucker Act, 28 U.S.C. §§ 1346(a)(2) and 1491, which waives the federal

government’s immunity from damages for its violation of the terms of certain of

6 fo r obvious reasons, we recommend that any regulation which is ultimately adopted for the Program provide

that these decisions be made by persons holding particular offices, rather than providing that specific individuals

make these decisions.

7 The proposal does not consider the hypothetical situation in which a creditor only sues a non-witness

participant. Because a non-witness participant is normally a family member of the witness, and the witness might be

responsible for his debts under state law, these suits may well become suits against the witness himself.

823

its contracts? If the Memorandum of Understanding is an enforceable contract

and precludes any of the proposed changes, the government could be liable for

damages under the Act. We conclude, however, that even assuming the Memo­

randum of Understanding is an enforceable agreement, the proposed changes

would not subject the government to contract damages because they would not

violate the terms of the Memorandum of Understanding.

Fourth, would the proposed changes in the treatment of custody cases, al­

though not themselves illegal, go far enough in protecting the constitutional

rights of ex-spouses in their relationship with their children in the Program? In

our view, while the proposed changes alleviate many of the constitutional

problems in the operation of the Program, they do not adequately protect the

constitutional rights of ex-spouses when the government’s hiding of a witness

precludes the ex-spouse from litigating her custody and visitation rights to a

child. Accordingly, we recommend that, in additioh to the proposed procedures,

the Marshals Service consider disclosing the participant’s new identity in certain

circumstances.

Finally, would the Program, along with the proposed modifications, ade­

quately protect the constitutional rights of creditors who are unable to satisfy their

claims because the Marshals Service will not disclose the identity of the debtor/

witness in their cases? As we have said, under the proposed modifications, the

Marshals Service would disclose witnesses’ identities to creditors in some

egregious cases, but not in all cases. Since resolution of this legal question is

dependent on the factual circumstances in which such claims arise, we are not in

a position to state a categorical general conclusion to this class of questions. This

issue should be reexamined after the proposed changes have been adopted and

the courts have had occasion to examine this question in concrete factual

situations arising under the Program. We cannot say at this time, however, that the

proposed modifications would not adequately protect the constitutional rights of

creditors.

II. Authority to Adopt the Proposed

Procedures Under the Crime Control Act

In authorizing the Attorney General to establish and administer the Program,

the Crime Control Act states in pertinent part:

Sec. 501. The Attorney General of the United States is authorized

to provide for the security of Government witnesses, potential

Government witnesses, and the families of Government witnesses

and potential witnesses in legal proceedings against any person

alleged to have participated in an organized criminal activity.

Sec. 502. The Attorney General of the United States is author­

ized to rent, purchase, modify, or remodel protected housing

facilities and to otherwise offer to provide for the health, safety,

and welfare of witnesses and persons intended to be called as

Government witnesses, and the families of witnesses and persons

824

intended to be called as Government witnesses in legal proceed­

ings instituted against any person alleged to have participated in

an organized criminal activity whenever, in his judgment, testi­

mony from, or a willingness to testify by, such a witness would

place his life or person, or the life or person of a member of his

family or household, in jeopardy. Any person availing himself of

an offer by the Attorney General to use such facilities may

continue to use such facilities for as long as the Attorney General

determines the jeopardy to his life or person continues.

Reprinted in notes prec. 18 U.S.C. § 3481. Under these provisions, the admin­

istration of the Program is left largely to the “judgment” and “ determin[ation]”

of the Attorney General. He is not required to protect any witness. He may

“ offer” to protect a witness and his family “ whenever, in his judgm ent,” the

witness’ testimony would place “ his life or person, or the life or person of a

member of his family or household, in jeopardy.” Once a person has accepted an

“ offer” of protection, the person “ may” only continue to use government

“ facilities for as long as the Attorney General determines the jeopardy to his life

or person continues.” As the House Report on this provision observed, Congress

intended to “ give[ ] the Attorney General broad authority to determine the

particular facilities to be afforded and the length of time the facilities should be

available.” H.R. Rep. No. 1549,91st Cong., 2d Sess. 48 (1970). S eea lso S . Rep.

No. 617, 91st Cong., 1st Sess. 59-60 (1969).

This broad discretion of the Attorney General in administering the Program is

underscored by Congress’ failure to provide for witnesses or their families to

bring suit to be accepted into the Program, to receive any particular type of

protection, or to prevent termination from the Program. Moreover, no such intent

is implicit from the structure and language of the statute.8 Thus, the Act does not

8 In Cort v. Ash, 422 U S. 66 ( 1975), the Supreme Court identified four factors in determining whether Congress

had implicitly intended to create a private right of action under a statute. Three of these factors militate against

finding an implied private cause of action under the Crime Control Act.

The first factor is whether the plaintiff is “ ‘one of the class for whose especial benefit the statute was enacted'

— that is, does the statute create a federal right in favor of the plaintiff?” Id. at 78 (Emphasis in original.) The

Crime Control Act does not give any "especial" class of persons a nght to protection; it merely authorizes the

Attorney General to offer protection if he believes the witness' testimony might place the witness or his family in

jeopardy. Once a witness has been selected for the Program, he “ may” continue to use its “ facilities” for as long as

the Attorney General determines his life is still in jeopardy. But this does not create a “ right” to protection in specific

“ nght or duty creating language [which] has generally been the most accurate indicator of the propriety of

implication of a cause of action.” Cannon v. University c f Chicago, 441 U S. 677, 690 n 13 (1979). Rather than

declaring that the witness “ shall have a right” to protection in the specified circumstances, as Congress has provided

in other cases where the Supreme Court has found an implied cause of action, see id., the Act merely states that he

“ may” receive protection when, according to the subjective judgment of the Attorney General, the witness’ life or

person continues to be in jeopardy In this context, we do not believe that the statute can be said to “ create a federal

nght in the favor of the plaintiff.” Cort v. Ash, 422 U.S at 78 C f Universities Research Assn v Coutu, 450 U S.

754.772 (1981) ( “ ‘far less reason*” to imply cause of action “ where Congress, rather than drafting the legislation

‘with an unmistakeable focus on the benefited class,' instead has framed the statute simply as a general prohibition

or a command to a federal agency” ) (quoting Cannon v. University o f Chicago, 441 U S. at 690-92).

The second and third factors can be analyzed together They are whether there is “ any indication of legislative

intent, explicit o r implicit, either to create such a remedy or deny one;” and whether it is “ consistent with the

underlying purposes of the legislative scheme to imply such a remedy for the plaintiff." Cort v. Ash, 422 U .S. at 78.

As discussed supra, the language and the legislative history of the Crime Control Act reveal that Congress intended

to grant the Attorney General broad discretion in administering the program. Moreover, the substantive standard

C ontinued

825

make decisions of the Attorney General in administering the Program subject to

judicial review under the statute. See Garcia v. United States, 666 F.2d at 963;

Melo-Tone Vending v. United States, 666 F.2d at 690; Leonhard v. United States,

633 F.2d at 623. Cf. D oe v. United States, 224 Ct. Cl. 632 (1980).9

In determining whether this broad grant of authority permits adoption of all of

the proposed changes, two types of decisions in the operation of the Program

must be separately considered.

A. Selection c f W itnesses and Coordination c f Their Protection

The first type of decision relates generally to the Attorney General’s selection

of persons to participate in the Program and the coordination of their protection

once they have been selected. There appears to be little doubt that the Crime

Control Act gives the Attorney General the widest authority to adopt those

proposals that directly involve only these issues. Thus, the Attorney General’s

delegee in the exercise of this authority— the Marshals Service— would clearly

be permitted to arrange for service of process on participants and to provide

secure courtrooms for participants to litigate their cases. The Crime Control Act

would also authorize the payment of attorney fees of impecunious participants in

the circumstances which have been recommended, although this conclusion

requires a somewhat more detailed explanation.

The Act grants the Marshals Service the authority to provide for the “ health,

safety, and welfare” of witnesses. Under this authority, the Service currently

which the Attorney General is to apply in making his decisions—jeopardy to the witness’ life or person— is not

easily am enable to judicial scrutiny. Both of these facts suggest that Congress did not intend the Attorney General's

decisions to be subjected to judicial review. The final factor— w hether this is a cause of action “ tradiUonally

relegated to state law,” id.— is inapplicable to this case.

Because three of the four factors cited by the C ourt in Cort v. A sh weigh decidedly against finding a private right of

action under the Program, we believe, as the First, Second and Fifth Circuits held m Melo-Tone Vending v. United

States, 666 F 2d 6 8 7 ,6 9 0 (1st Cir. 1981); Leonhard v UnitedStates, 633 F.2d 599,623 (2d Cir 1980), cert, denied

451 U .S . 908 (1981); and Garcia v. United States, 666 F.2d 960, 963 (5th Cir. 1982), that neither a creditor, ex­

spouse, o r a witness, respectively, can bring suit under the Act.

9 Two panels in the Second Circuit have suggested an alternative reason why the federal government may not be

sued under the Crime Control Act. Congress, in their view, has not waived the government’s sovereign immunity to

suit under the Act. See D oe v Civiletti, 635 F.2d 8 8 ,9 4 (2d Cir 1980); Leonhard v. United States, 633 F.2d at 623.

W hile resolution of the sovereign immunity issue would not affect the government’s liability because we believe

there is no private right o f action under the Act, see Sea-Land Service v. Alaska Railroad, 659 F.2d 243, 245 (D.C.

Cir. 1981), cert, denied, 455 U .S. 9 1 9 (1 9 8 2 );/////v U nitedStates, 571 F.2d 1098,1102-03 (9thCir. 1978), there is

reason to doubt that courts outside the Second Circuit would find the government immune from suit in these

circumstances. The courts in D oe and Leonhard reasoned that the Crime Control Act does not waive sovereign

immunity for suits brought against the government under the Act, and that the general waiver of sovereign immunity

for injunctive relief in the 1976 amendment to § 702 of the Administrative Procedures Act does not waive immunity

in cases, such as those brought under the Crime Control Act, where jurisdiction anses under 28 U .S.C § 1331, the

general federal question provision. See also Estate c f Watson v Blumenthal, 586 F.2d 925, 932 (2d Cir. 1978)

(interpreting waiver o f immunity under § 702 not to apply to cases arising under § 1331). Numerous courts outside

the Second C ircuit, however, have rejected this narrow interpretation of the 1976 amendment and have held that it

waives sovereign immunity to injunctive relief for all suits brought against the federal government. See Schnapper

v. Foley, 667 F.2d 102 (D .C . Cir. 1981), cert, denied, 455 U.S. 948 (1982); Sea-Land Service v. Alaska Railroad,

659 F.2d at 245 n .2; Newsom v. Vanderbilt University, 653 F 2d 1100 (6th Cir. 1981 );B ellerv Middendorf, 632 F 2d

788 (9th Cir. 1980), cert, denied, 452 U.S. 905 (1981); Sheehan v Arm y and Air Force Exchange Service, 619 F. 2d

1132. 1139 (5th C ir 1980), rev’d o n other grounds, 4 5 6 U .S . 7 2 8 ,7 3 3 n.3 (1982); Jttfee v UnitedStates. 592 F.2d

712, 7 1 8 -1 9 (3d Cir.), cert, denied. 441 U .S . 961 (1979); H ilt v. U nited States. 571 F 2 d at 1102. Thus, it is

probable that at least these courts would find that the federal government has waived its sovereign immunity to

injunctive relief under the Crime Control Act.

826

makes subsistence payments to some participants when they are first relocated.

The hiring of an attorney appears to be permissible under this same authority.

More importantly, however, the hiring of an attorney is frequently compelled, in

our view, by the witness’ cooperation with the government and is thus related to

the Attorney General’s statutorily authorized goal of protecting the participant’s

new identity. Very likely, for example, some custody disputes occur because

relocation of a participant effectively extinguishes the visitation rights of the non­

custodial parent. The participant’s financial situation may deteriorate as a result

of his rapid liquidation of assets and relocation. Once a suit has been brought in

these cases, moreover, the safety of the participant may require him to hire an

outside attorney, rather than to interview potential witnesses or present his case

himself. Finally, the resolution of custody and debtor disputes may be more

important because of the participant’s entry into the Program. A participant who

loses custody of a child may be effectively foreclosed from ever seeing his child

again. On the other hand, a participant’s loss of a suit to a creditor could lead the

Marshals Service to disclose his new identity under the proposed procedures, in

all of these cases, therefore, the participant’s need to hire an attorney may result

directly or indirectly from the danger to his life resulting from his cooperation

with the government. Accordingly, we believe that the Crime Control Act

authorizes but does not require the Attorney General to pay the attorneys’ fees of

impecunious participants under the circumstances you have described.

Although several statutes restrict the employment of private attorneys by the

federal government, we do not believe they would prohibit the payment of private

attorneys’ fees under these circumstances. These provisions require that, except

as authorized by law, officers of the Department of Justice must conduct all

litigation “ in which the United States, an agency, or officer thereof is a party, o ris

interested, and securing evidence therefor. . . .” 28 U.S.C. § 516. See also 28

U.S.C. § 51 9 .10 In the custody and debtor disputes which are described in the

proposal, however, neither the United States, an agency, or an employee would

be a party or an interested person.

B. Termination of Witnesses from the Program

The second type of proposed change in the operation of the Program concerns

the termination of witnesses or members of their families from the Program, such

as when a witness’ identity is disclosed to a creditor or a child is returned to an ex­

spouse. These actions raise different legal issues because the Act specifically

provides that a person who has entered the Program “ may continue to use such

facilities for as long as the Attorney General determines the jeopardy to his life or

person continues.” Reprinted in notes prec. 18 U.S.C. § 3481. This clause does

not restrict the Attorney General’s authority to oversee the “ facilities” provided

the witness and his family— that is, to determine the nature and extent of their

10 The Department o f Justice has recognized a narrow exception to this prohibition where a conflict of interest

requires the employment of outside counsel See 28 C F.R. §§ 50.15(a)(5) & (a)(6), 50 16 (1982)

827

protection. An argument could perhaps be made, however, that it restricts the

Attorney General’s right to terminate a witness and his family from the Program

by requiring the Attorney General to determine that their lives or persons are no

longer in jeopardy. While the distinction between terminating a witness’ par­

ticipation and changing the nature of his protection is not always clear, disclosing

a participant’s new identity or arranging the return of a child would normally

constitute termination from the Program, assuming no further provision was

made for their protection after disclosure.

Despite the ambiguity of the language in the statute, for two reasons we believe

that the Attorney General is clearly authorized to terminate witnesses from the

Program in the circumstances that have been proposed.

First, the section itself only provides that the witness “ may” use the facilities

so long as the Attorney General believes his life remains in danger. By using the

word “ may,” Congress appears to have intended only that protection of a witness

could continue after any trial for as long as the witness’ life remained in danger,

not that the Attorney General was required to provide such protection. See 116

Cong. Rec. 35292 (1970) (remarks of Rep. Poff). The only court to consider this

question, G arcia v. United States, 666 F.2d at 963-64, has found that this

sentence does not limit the Attorney General’s otherwise broad discretion to

decide when to terminate participants from the Program. We agree with this

decision, although it is possible that other courts could reach an opposite

conclusion if the government were to terminate a witness on patently unreason­

able grounds."

Second, even if the Attorney General’s authority to terminate a witness’

participation were interpreted to be limited by this language, we do not believe

the clause prohibits the Attorney General from disclosing a participant’s identity

or arranging for the return of a child under the circumstances which have been

proposed. With respect to the witness, the Attorney General’s authority to

disclose his new identity to a creditor follows implicitly from the Attorney

General’s power to impose and enforce regulations in the administration of the

Program. For example, the Attorney General can clearly condition a witness’

acceptance into the Program, as he currently does through the Memorandum of

Understanding, on the witness’ pledge to settle all prior debts. Once the Attorney

General has accepted a witness into the Program, he may insist that previously

unsettled debts be satisfied. Such a restriction is not qualitatively different from

many others imposed by the Marshals Office, such as prohibiting a participant

from returning to his old address, or using his new identity to commit fraud. In

light of the Attorney General’s authority to impose these requirements, it follows

logically that he should be able to take reasonable actions to enforce them. This

would necessarily include the right to disclose the identity of a witness in those

11 The witness in Garcia had repeatedly and flagrantly violated the terms of his protection by giving numerous

press interviews revealing his new identity and location. See 666 F. 2d at 962. He was discharged and readmitted into

the Program three times Because the language o f the statute and the legislative history are somewhat ambiguous, we

cannot exclude the possibility that anothercourt confronted with a more compelling factual circumstance would find

the Attorney General's authonty more restncted

828

egregious cases where the witness is using the Program as a shield against a

legitimate creditor and where there is no reasonable alternative for satisfying the

claim .12

The Attorney General would also have the authority to arrange for the return of

a child to an ex-spouse with lawful custody, although for somewhat different

reasons.13 If a state court has granted the ex-spouse custody, and that decision is

legally enforceable against the participant, the Attorney General is not terminat­

ing the child from the Program by arranging his return. Rather, the child, whose

legal interests are protected by the state court and the parent with custody, is in

effect withdrawing from the Program. As a matter of policy, we would of course

strongly advise that the Attorney General inform the state court of any possible

danger to the child, especially where the custody decision was rendered before

the child entered the Program. The Crime Control Act, however, would not

prohibit the Attorney General from complying with any resulting decision that

the ex-spouse had custody. Accordingly, the return of the child, like the dis­

closure of a witness’ new identity to a creditor, would not be prohibited by the

Crime Control Act, whether or not the provision described above is interpreted to

place a specific limitation on the Attorney General’s authority to terminate a

participant from the Program.

III. Potential Government Liability to a Participant Under the Federal

Tort Claims Act

Assuming the Crime Control Act authorizes the Attorney General to adopt the

proposed procedures, the important question remains whether the Program,

along with the proposed changes, violates any other statute or constitutional

provision. We begin this examination with the Federal Tort Claims Act, 28

U.S.C. §§ 1346(b), 2671-80.

The Federal Tort Claims Act generally waives the federal government’s

immunity for tort claims “ where the United States, if a private person, would be

liable to the claimant in accordance with the law of the place where the act or

omission occurred.” 28 U.S.C. § 1346(b). Several states have recognized that

the government can be held liable in tort for failing to provide adequate protection

for a government informant whom officials had reason to believe was in danger

because of the assistance he provided to the government. See, e.g ., G ardner v.

Village c f Chicago Ridge, 219 N.E.2d 147 (111. 1966); Schuster v. City cfN ew

York, 154 N .E.2d 534 (N.Y. 1958); Chapman v. City c f Philadelphia, 434 A.2d

753 (Pa. Super. 1981). Federal courts have recognized the federal government

might be held liable under the Federal Tort Claims Act for failing to protect an

informant under the same theory. See M iller v. United States, 530 F. Supp. 611,

12 We presume that in the circumstances you have described there would be no other reasonable means for

enforcing the money judgment against the witness without disclosing his new identity

13 The Attorney General's authority to discipline those who ignore his regulations on child custody does not

appear independently to justify returning a child to an ex-spouse insofar as the child's rights are concerned. The child

has not violated any of the Program's requirements. Nor can the child avoid any sanctions, as the participant can,

simply by complying with the directions of the Marshals Service

829

615 (E.D. Pa. 1982); Crain v. Krehbiel, 443 F. Supp. 202, 214 (N.D. Cal. 1977);

Swanner v. U nited States, 309 F. Supp. 1183, 1187-88 (M.D. Ala. 1970). Cf.

Leonhard v. U nited States, 633 F.2d at 625 n.39. Thus, any of the proposed

procedures which subjected the participant to increased danger, such as dis­

closure of his new identity to a creditor, might give rise to a cause of action under

state tort law if the participant were subsequently harmed.14

The proposed procedures would not themselves subject the government to

liability, however, because they come within a specific exception to the waiver of

sovereign immunity under the Federal Tort Claims Act. Section 2680(a) states

that the waiver of immunity does not apply to

[a]ny claim based upon an act or omission of an employee of the

Government, exercising due care, in the execution c f a statute or

regulation, whether or not such statute o r regulation be valid, or

based upon the exercise o r performance or the failure to exercise

or perform a discretionary function or duty on the part of a federal

agency or an employee of the Government, whether or not the

discretion involved be abused.

(Emphasis added.) Under this provision, the federal government is immune from

tort liability for its adoption of regulations, or the execution of regulations by

officials exercising due care. See Dalehite v. United States, 346 U.S. 15, 33

(1953); M iller v. United States, 583 F.2d 857, 868 (6th Cir. 1978); Powell v.

United States, 233 F.2d, 851,854 (10th Cir. 1956). By including this exemption,

Congress intended that “ the legality of a rule or regulation should [not] be tested

through the medium of a damage suit for tort.” H.R. Rep. No. 1287,79th C ong.,

1st Sess. 6 (1945). Thus, assuming the proposed changes are adopted as regula­

tions, as we presume they would be,15 they would not independently subject the

federal government to tort liability.16 Only the failure of Department officials to

exercise due care in implementing the regulations of the Witness Protection

Program could subject the government to tort liability, see Hatahley v. United

States, 351 U.S. 173, 181 (1956), and we see no basis for refusing to adopt an

otherwise valid regulation providing for disclosure under the circumstances

discussed here.

14 Alternatively, an ex-spouse o r witness m ight bring suit for tortious interference with his or her relationship with

a child admitted o r terminated from the Program. See Ruffalo v. Civiletti, 539 F Supp 949, 953 (W D. Mo 1982).

15 We caution that the adoption of new procedures for the Program should be undertaken only after notice and

comment. See 5 U S.C . § 553

16 Because we assume the proposed procedures will be adopted as regulations, we need not address whether they

would fall within the other exception in § 2680(a)— the “ discretionary function” exception Under this exception

the federal government is immune from liability for the decisions of officials performing a “ discretionary function

or duty” o r carrying out directions or policies that were formulated in the exercise of such discretion. See Dalehite v.

United States. 346 U S. at 3 4-36. We note, however, that two courts have found that at least certain types of

decisions made in the operation of the Program may not be protected by this exception See Ruffalo v. Civiletti. 539

F. Supp. at 953 (allegedly negligent decision to include child of witness in Program); Miller v. United States. 530 F.

Supp. at 615 (allegedly negligent protection o f a witness) But cf. Bergmann v. UnitedStates, 689 F.2d789(8th Cir.

1982) (government's negligent selection and supervision of protected witness in the Program held to be within

discretionary function exception), Leonhard v. United States, 633 F 2d at 625 (decision not to give continued

support to or supervise persons in Program within discretionary function exception)

830

IV. Potential Government Liability to a Participant Under

the l\icker Act: the Memorandum of Understanding

The other basis upon which the proposed procedures might subject the

government to statutory liability is the Tucker Act, 28 U.S.C. §§ 1346(a)(2) and

1491. Under the Tucker Act, the federal government has generally waived its

sovereign immunity for money damages for breach of contract. See Hatzlachh

Supply v. UnitedStates, 444 U.S. 460,463,465 n.5,466 (1980). Thus, the form

Memorandum of Understanding, signed by a representative of the Marshals

Service and the witness, could arguably subject the government to liability for

money damages if it is a binding contract and if it prohibits the Marshals Service

from disclosing the witness’ identity in the circumstances which it has been

proposed to disclose his identity.

A review of the terms of the Memorandum of Understanding currently used by

the Marshals Service, however, reveals that it would not prohibit disclosure under

the proposed procedures, even if it were a binding agreement, an issue we need

not decide. The only proposed procedures that the Memorandum of Understand­

ing might affect are those that could place a witness in danger, namely, disclosure

of his identity to a creditor or return of a child to an ex-spouse. Yet, the

Memorandum specifically provides that the government will not shield a witness

from the claims of his creditors or from ex-spouses seeking custody of children.

The introduction states that the Marshals Service “ will not shield the witness

from civil or criminal litigation initiated prior to or subsequent to entry into the

Program” (p. 2). The section on “ Debts and Related Legal Matters” provides

that the failure to settle all debts before entering the Program “ will jeopardize the

witness’ participation in the Witness Protection Program since the Marshals

Service will not shield witnesses from legitimate creditors” (p. 5). Similarly, in

the same section, the Memorandum states that “ [c]ourt orders which grant

custody of minor children to persons other than the witness who is being

relocated will be honored and said MINOR CHILDREN WILL NOT be relo­

cated in violation of the court order” (p. 5) (emphasis in original). Finally, the

Attorney General retains the right under the Memorandum to terminate any

witness’ participation in the Program for reasons he deems “ appropriate” (p. 1).

This would presumably include the authority to disclose the witness’ location to a

creditor or his child’s location to a sheriff seeking to enforce a child custody

decree. In light of all of these provisions, the Memorandum of Understanding, in

our view, would not subject the Marshals Service to liability for taking the actions

discussed in your proposed procedures.

Despite this conclusion, we recommend that the Marshals Service amend the

Memorandum of Understanding to set forth in detail the broad powers of the

Attorney General to terminate participants from the Program, including, but not

limited to, those situations covered in the proposed changes. All new entrants to

the Program should be required to sign this form, and the Marshals Service

should also attempt to have persons who are already participating in the Program

to sign such an amended form. This would assure that all participants have the

831

clearest notice possible of the obligations of their participation in the Program,

that they would be cognizant o f the need to comply with the restrictions of the

Program, and that they would be less likely to engage in protracted and costly

litigation over the operation of the Program.

V. Constitutional Limitation on Operation of Program: Protection of an

Ex-Spouse’s Relationship with a Child

Having determined that there is no statutory impediment to the adoption of the

proposed procedures, various constitutional issues raised by the proposal remain

to be considered. We begin with the issue of whether the proposed procedures

adequately protect the constitutionally protected relationship between the ex­

spouse and her child in the Program. In our view, the proposed changes which

provide for enforcement of valid custody decrees make important improvements

in protecting this interest, but ultimately may not go far enough in assuring that

the ex-spouse’s constitutional rights are not violated. To explain this conclusion,

we consider in some detail the constitutional protection for the ex-spouse’s

relationship with her child and the extent to which the proposed procedures

protect this interest.

A. Constitutional Interests

According to various court decisions, the ex-spouse’s relationship with her

child, which is regulated by state law, is deserving of constitutional protection in

these circu m stances for tw o reasons— one substantive and the other

jurisdictional.

The substantive reason is that courts have held that the relationship between the

ex-spouse and the child represents a “ fundamental liberty interest” deserving of

substantive and procedural protection under the Due Process Clause of the Fifth

and Fourteenth Amendments. Santosky v. Kramer, 455 U.S. 745,753 (1982). As

the Supreme Court has observed, the Court’s “ decisions have by now made plain

. . . that a parent’s desire for and right to ‘the companionship, care, custody, and

management of his or her children’ is an important interest that ‘undeniably

warrants deference and, absent a powerful countervailing interest, protection.’”

L assiter v. D ept, of Social Services, 452 U.S. 18, 27 (1981) (quoting Stanley v.

Illinois, 405 U.S. 645, 651 (1972)). See also Quilloin v. Walcott, 434 U.S. 246,

255 (1978); Wisconsin v. Yoder, 406 U.S. 205, 231—33 (1972); Stanley v.

Illinois, 405 U.S. 645 , 651-52 (1972); M eyer v. Nebraska, 262 U.S. 390,

399-400 (1923).17 This constitutional protection, moreover, has a procedural

17 Although the Supreme C ourt’s decisions in this area have primarily examined limitations on the government’s

authority to terminate a child’s relationship with his family, rather than to mediate between parents in a child custody

dispute, see Caban v Mohammed, 441 U S. 380, 414 n 27 (1979) (Stevens, J , dissenting), the language and logic

of the C ourt’s decisions would clearly extend some constitutional scrutiny to the termination of a parent’s

relationship with his child in the context of a child custody dispute. Cf. Quillom v. Walcott, 434 U S. at 255 Lower

courts have extended constitutional scrutiny in similar types of situations. See, e.g., Morrison v. Jones, 607 F2d

1269, 1 2 7 5 (9 th C ir 1979), cert denied, 445 U .S . 962(1980), Ku/Th/o v Civiletti, 539 F. Supp. at 952 (1982); R oev

Conn . 4 1 7 F Supp 7 6 9 ,7 7 7 (M D Ala 1976) (three judge court) B u tc f L eonhardv Mitchell, 473 F 2d 709 (2d

Cir. 1973) (discussed in detail below)

832

aspect: even where the state has a sufficiently compelling justification for

terminating the ex-spouse’s interests, its actions “ must be accomplished by

procedures meeting the requisites of the Due Process Clause.” Santosky v.

Kramer, 455 U.S. at 753 (quoting Lassiter v. Dept, c f Social Services, 452 U.S.

18, 37 (1981)). See also Stanley v. Illinois, 405 U.S. at 658. Thus, serious

constitutional problems could be raised if the operation of the Program substan­

tially infringes upon the ex-spouse’s relationship with the child without “ a strong

countervailing interest” of the federal government or without affording the ex­

spouse procedural due process.

The relationship of the ex-spouse with the child is also deserving of protection

from federal intrusion because the Marshals Service has no authority to make

child custody and visitation decisions. Obviously, nothing in the Crime Control

Act or its legislative history suggests that Congress intended to federalize child

custody law or to authorize Marshals Service officials to make legally binding

child custody decisions. Moreover, even if it had, such a grant of authority could

raise serious Tenth Amendment problems. See National League c f Cities v.

Usery, 426 U.S. 833 (1976). “ The whole subject of the domestic relations of

husband and wife, parent and child,” as the Supreme Court has noted, “ belongs

to the laws of the States and not to the laws of the United States.” In Re Burrus,

136 U.S. 586, 593-94 (1890). See also Lehman v. Lycoming, 458 U.S. 502,

511-12(1982); United States v. Yazell, 382 U.S. 341,352(1966); Wise v. Bravo,

666F.2d 1328, 1332 (10th Cir. 1981). Thus, absent a compelling countervailing

government interest in a particular case, the operation of the Program should, in

our view, generally assure that the ex-spouse’s constitutionally protected and

state defined custodial interest in the child is not effectively terminated as a result

of the federal government’s hiding of the child.

B. Protection c f an Ex-Spouse's Custodial Rights Under the Program

The proposed changes in the operation of the Program go a long way toward

satisfying this requirement, and thus we strongly recommend their adoption.

Unfortunately, as a detailed description of these procedures reveals, they may not

protect the ex-spouse’s custodial interests adequately in every situation.

Under the proposed procedures, the Marshals Service would arrange for the

enforcement of a valid and enforceable state judicial decision granting custody of

the child to the ex-spouse. Although not discussed in the proposal, the following

constitutional and statutory requirements would have to be fulfilled for the

decision to be legally binding against the participant and therefore for the

government to arrange for its enforcement. First, the court must have satisfied the

constitutional requirement of notice, that is, the participant must have received

“ ‘notice reasonably calculated, under all the circumstances, to apprise [him] of

the pendency of the action and afford [him] an opportunity to present [his]

objections.’ ” Armstrong v. Manzo, 380 U.S. 545, 550 (1965) (quoting Mullane

v. Central Hanover Trust C o., 339 U.S. 306, 314 (1950)). Second, the court

must have “ personal jurisdiction” over the participant so as to satisfy the Due

833

Process Clause of the Fourteenth Amendment. Under this standard, there must be

“ sufficient connection between the [participant] and the forum State to make it

fair to require defense of the action in the forum.” Kulko v. Superior Court of

California, 436 U.S. 84, 91 (1978). See International Shoe Co. v. Washington,

326 U.S. 310, 316 (1945). Third, as a matter of state law, the decision must be

legally enforceable against the participant in the state in which it was rendered

and in the state in which the child and participant currently reside.18

The policy of enforcing custody decisions that meet these requirements would

normally satisfy ex-spouses’ custodial rights because most ex-spouses should be

able to find a state forum that could meet these requirements, and litigate their

claims. By agreeing to forward process through the mail, for example, the

Marshals Service assures that the participant has been, provided notice and an

opportunity to be heard. Therefore, any subsequent judgment would not be

invalid for lack of adequate notice. Stanley v. Illinois, 405 U.S. at 657 n .9 .19

Moreover, under the Uniform Child Custody Jurisdiction Act, which has been

adopted by at least 46 states,20 one state always has jurisdiction over custody

disputes. See § 3(a)(4). All states which have adopted the Act recognize a

decision rendered by another state in conformity with the dictates of the Act. See

§ 13. Finally, we assume that, in most of these cases, the defendant would have

had sufficient personal contacts with at least one state before he entered the

Program to satisfy the personal jurisdiction requirements of the Due Process

Clause. Thus, because the ex-spouse probably would not need to learn the new

identity of the participant in order to litigate any claim or to enforce any

subsequent custody decision, we doubt that the Marshals Service’s proposed

policy would often create constitutional problems.

Nevertheless, there may be cases where an ex-spouse is unable to litigate her

claims because the witness has not had sufficient contacts with any state before he

entered the Program, and thus the ex-spouse is unable to obtain personal

jurisdiction. In our view, under the general reasoning of the Supreme Court

decisions cited above, the Marshals Service normally would be constitutionally

required to disclose the participant’s identity in these rare circumstances, so long

as the witness otherwise had an opportunity to litigate the case in a secure

18 The Supreme Court has held that a state is not constitutionally required to give full faith and credit to a custody

decree o f another state if the state court finds that there are changed circumstances to justify a change in custody See

Halvey v. Halvey, 330 U .S. 610 (1947), Kovacs v. Brewer, 356 U S. 604 (1958). Because a state court can always

find changed circumstances, there is, in practice, no absolute constitutional requirement that a state court enforce an

out-of-state custody decree. O f course, it may do so, as a matter of comity, under its own laws

19 We believe it is also important, as you have proposed, to provide a secure environment where the witness can

litigate his claims. Although the due process requirements of an “ opportunity to be heard" do not obligate the

government to provide all persons with a secure courtroom if they believe their lives are threatened, the operation of

the Program might nevertheless create practical, if not constitutional, problems if witnesses under government

protection are forced to choose between risking their lives or not litigating claims to child custody Because the

proposed changes would avoid these problems, we need not decide whether it would be unconstitutional in this

specific and unusual context not to provide the witness with a secure environment to litigate these claims. C f Little v.

Streater, 452 U .S. 1 (1981) (state constitutionally obligated to pay for blood tests for indigent defendants in

paternity suit); Lassiter v. D ept, c f Social Services, 452 U S. 18 (1981) (state obligated to provide counsel for

indigent parents in certain parental termination hearings); Mathews v Eldridge, 424 U S. 319 (1976).

20 See S. Katz, Child Snatching. The Legal Response to the Abduction of Children, 155-62 (1981). Children,

pp. 155-62 (1981).

834

environment and to waive objections to personal jurisdiction.21 In some of these

cases the ex-spouse will never have litigated the question of custody before the

participant had entered the Program. Thus, failure to disclose the participant’s

new identity would absolutely deprive the ex-spouse of the opportunity to litigate

her constitutionally protected claim to custody of the child. Even where the issue

of custody had previously been litigated, and the participant had been awarded

custody before he entered the Program, the failure to disclose his identity would

preclude the ex-spouse from relitigating the custody issue in light of the child’s

participation in the Program and the extinction of the ex-spouse’s visitation

rights. The ex-spouse’s claim to learn the participant’s new identity in all of these

cases would be especially weighty because the participant could avoid the

constitutional problem by waiving objections to personal jurisdiction. See, e .g ..

Insurance Corp. c f Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694,

698 (1982); M cDonald v. Mabee, 243 U.S. 90, 91 (1917). The most recent case

to have considered an ex-spouse’s right to learn the new identity of her child,

Ruffalo v. C iviletti, 539 F. Supp. 949, generally supports the conclusion that the

government has an obligation to protect the custodial interest of the ex-spouse in

such circumstances. The court in Ruffalo denied summary judgment for the

government in a suit by an ex-spouse for damages resulting from admission of a

child into the Program. While no final decision has been reached in the case, the

court indicated that the government’s assistance in depriving a spouse of

custodial rights to her child could subject it to damages.

The only other decision to reach this question, Leonhard v. Mitchell, 473 F.2d

709, may appear to be inconsistent with this view, but we believe it should be read

narrowly in light of its special factual and legal context. In Leonhard the Second

Circuit held that the refusal of the government to disclose a child’s new identity to

an ex-spouse did not violate a “ clear constitutional right,” id. at 713, and

therefore it denied a mandamus action to force disclosure. The court in

Leonhard, however, was faced with the stark choice of either disclosing the

witness’ identity, which the government argued would result in the witness’ and

the child’s death, or protecting their identity. There was no mechanism in that

case, as there would be under the proposed procedures, for permitting a witness

to litigate his claim in a safe environment. The decision in Leonhard, moreover,

was rendered before the most recent Supreme Court decisions establishing a

clearer constitutional basis to a child’s relationship with his parents. The lack of

clear precedent was important to the Leonhard court’s conclusion that the

plaintiff had not met the burden required for a writ of mandamus. For these

reasons, we believe Leonhard should not be read to support the government’s

refusal to disclose the witness’ identity where the witness could litigate the issue

of custody without threat to his life.22

21 In practice, the threat to disclose the participant's identity in these circumstances might force the participants to

waive objection to personal jurisdiction, thereby avoiding the constitutional problem Thus, the inability of a spouse

to obtain personal jurisdiction may not pose a significant problem.

22 The witness in Leonhard, moreover, had custody of the child when he entered the Program. The government’s

responsibilities might well have been different if the government had admitted the child into the Program when the

witness did not have custody.

835

We raise only one caveat to this conclusion. Disclosing the new identity of a

recalcitrant participant could place the lives of the child and the participant’s

spouse in danger. Thus, the Marshals Service could argue in such cases that it has

a sufficiently compelling interest to justify withholding the new identity of the

participant, despite his recalcitrance, because disclosure would endanger the

lives of other persons in the Program. Although it is impossible to judge whether

or in what factual circumstances courts would accept this view, we recommend

that the Marshals Service avoid this constitutional dilemma by offering to provide

independent protection for the child and spouse during the pendency of litigation

in such cases.

C. Protection of Ex-Spouse’s Visitation Rights

Assuming that an ex-spouse has been given an opportunity to litigate and

arrange for the enforcement of any custody decision, a separate constitutional

problem remains with regard to the effect of the proposed policies on her

visitation rights. Unlike the situation of a custody dispute, where the proposed

changes, along with our recommendations, assure that any valid custodial

interest of an ex-spouse is vindicated, the operation of the Program necessarily

requires the extinction of an ex-spouse’s visitation rights.23 This raises two

constitutional questions—one substantive and one procedural.

The substantive issue is whether it is constitutional to terminate the visitation

rights of an ex-spouse merely because the custodial parent is in the Program.

Although the extent of constitutional protection for an ex-spouse’s visitation

rights is unclear, it is probable that the absolute termination of all visitation or

contact between ex-spouse and child, which necessarily occurs when a child

enters the Program, would be subjected to constitutional scrutiny. See Wise v.

Bravo, 666 F.2d at 1332 (“visitation rights . . . within the reach of Due Process

. . . Clause” ); id. at 1338 (Seymour, J., concurring) (same); Ruffalo v. Civiletti,

539 F. Supp. at 952 (termination of visitation rights to child in Witness Protection

Program subject to constitutional scrutiny).24 Moreover, while the Supreme

Court has not articulated the permissible grounds for terminating a child’s

relationship with a parent, it has suggested that “ the Due Process Clause would

be offended ‘[i]f a State were to attempt to force the breakup of a natural family,

over the objections of the parents and their children, without some showing of

unfitness and for the sole reason that to do so was thought to be in the child’s best

interest.’ ” Quilloin v. Walcott, 434 U.S. at 255 (quoting Smith v. Organization of

Foster Families, 431 U.S. 816, 862-63 (1977) (Stewart, J., concurring)).25

23 Although we have not been asked what procedures should be followed when the witness and ex-spouse have

been granted joint custody, as numerous state statutes permit, see, e g., Cal. Civ Code, § 4600.5(a), the analysis of

visitation rights should be generally applicable to this situation as well.

24 Cf. Leonhard v U nited States. 633 F.2d at 618 (child in Program has constitutionally implicated interest in

relationship with father outside the Program). B ut cf. Leonhard v. Mitchell, 473 F.2d at 713-14 (discussed above)

23 -See also Santosky v. Kramer, 455 U .S. at 760 n 10 (it is not “ clear that the State constitutionally could

terminate a parent's rights without showing parental unfitness” ) (emphasis in original). C f Stanley v Illinois, 405

U .S. 645 (sinking down under Due Process Clause the irrebuttable presumption that illegitimate father is unfit

parent).

836

Because the termination of an ex-spouse’s visitation rights may end, as a practical

matter, any personal relationship or contact between the ex-spouse and the child

for an extended period, if not forever, the question arises whether such a

disruption may be accomplished constitutionally without a showing that the ex­

spouse is somehow an unfit parent.

In the unique circumstance of the Witness Protection Program, the termination

of the ex-spouse’s visitation rights should not violate the constitutional rights of

the ex-spouse. In Quilloin itself, the Supreme Court recognized that there were

situations where a parent’s rights could be terminated merely because it was in the

best interests of the child. The Court upheld a state procedure permitting the

adoption of an illegitimate child by a stepfather over the objections of the natural

father when the state court found it was in the best interests of the child. The

Court specifically relied on the fact that the traditional family unit in Quilloin had

already been dissolved and the child was joining a family unit already in

existence. Similarly, in a case arising under the Witness Protection Program, the

original family unit normally will already have been dissolved, and the child will

be living with one parent with custody. Even more importantly, the life of the

participant and of the child could be placed in jeopardy if the spouse were able to

exercise her visitation rights. The judgment that visitation could threaten the

well-being of the child, moreover, will normally be shared by officials of the

Marshals Service, the parent of the child, and, as discussed below, the state court

overseeing the custody and visitation dispute. We do not believe that the constitu­

tional protection for the ex-spouse’s relationship with the child includes jeopard­

izing the physical well-being of the child or his custodial parent in these unusual

circumstances. Largely for these reasons, two courts which have considered this

question, Leonhard v. Mitchell, 473 F.2d at 714 and Franz v. United States, 526

F.Supp. 126 (D.D.C. 1981) have found the termination of an ex-spouse’s visita­

tion rights to a child in the Program is constitutional.26

Even though the termination of an ex-spouse’s visitation rights is, in our view,

constitutional under these unique circumstances, the procedural question re­

mains whether the Marshals Service may ever admit a child into the Program if

the participant has not first obtained a modification of any state court decision

giving the ex-spouse visitation rights. Normally, “ [b]efore a person is deprived

of a protected interest, he must be afforded opportunity for some kind of hearing,

‘except for extraordinary situations where some valid governmental interest is at

stake that justifies postponing the hearing until after the event.’ ” B oard cf Regents

v. Roth, 408 U.S. 564, 570 n.7 (1972) (quoting Boddie v. Connecticut, 401 U.S.

371, 379 (1971)). Thus, an ex-spouse could argue that the Marshals Service

should not admit a child into the Program until she has had an opportunity to

litigate the issue of her visitation rights in a state court. As a practical matter, any

26 \n Ruffalo v Civiletti, 539 F. Supp. at 952, the District Court denied summary judgment for the government in a

suit brought by a participant's ex-wife who was seeking damages for the loss of visitation rights to her child in the

Program. The court noted, however, that there are situations where the government would be justified in terminating

visitation rights. See id. Thus, it is possible that, even under its analysis, the government could prove at trial

sufficient justification for its actions to withstand constitutional scrutiny.

837

litigation over the issue of visitation rights would probably resolve itself into a

dispute over custody. Because no participant could bring a child into the Program

and continue the ex-spouse’s visitation rights, any decision by the state court to

continue the ex-spouse’s visitation rights would effectively require that the ex­

spouse receive custody. The procedural due process question therefore becomes

whether the ex-spouse has a right to litigate this issue Before the participant enters

the Program, or whether she must wait to litigate it through the special mecha­

nisms we have outlined above.

Because of the unusual facts o f this situation, resolution of this question should

be left in the first instance to officials of the Marshals Service. As the Supreme

Court has observed, due process “ is not a technical conception with a fixed

content unrelated to time, place, and circumstances.” Cafeteria Workers v.

McElroy, 367 U.S. 886, 895 (1961). We suspect that in most instances, the

participant’s and child’s life could be placed in jeopardy if an ex-spouse had a

right to contest the extinction of her visitation rights before the child entered the

Program. Such cases appear to be classic examples of “ extraordinary situations

where some valid governmental interest is at stake that justifies postponing the

hearing until after the event.” B oard c f Regents Roth, 408 U.S. at 570. See also

Duchesne v. Sugarman, 566 F.2d at 826. On the other hand, there may be

instances where there is an opportunity to litigate the issue in state court without

endangering the participant’s or the child’s life. The Memorandum of Under­

standing (p. 5), for example, requires the witness to reach an agreement with all

of his creditors before entering the Program, suggesting that there is also time, at

least in the case of some participants, to litigate the visitation issue before the

participant and child assume new identities. In such cases, the Marshals Service

would appear to be obligated to allow the ex-spouse an opportunity to contest the

extinction of her visitation rights in state court before the child enters the

Program. Because we are not sufficiently familiar with the operation of the

Program to assess these interests, we recommend that the Marshals Service

determine the circumstances in which it believes it has a compelling interest in

not providing the ex-spouse with an opportunity to obtain a modification of a

visitation decree before the child enters the Program. We are, of course, available

to evaluate the constitutionality of such standards or guidelines in light of the

Marshals Service’s analysis of the governmental interest.

VI. Protection of Child’s Constitutionally Protected Relationship with the

Parental Ex-Spouse

The courts have suggested that a child in the Program has a constitutionally

implicated interest in his relationship with the parental ex-spouse. See Leonhard

v. United States, 633 F.2d at 618; Franz v. United States, 526 F.Supp. 126

(D.D.C. 1981). As in the case of the parental ex-spouse’s interest, the child’s

interest has two aspects—his interest in being in the custody of a parent who has a

legal right to custody; and his interest in being within reach of a parent with a

right to visitation. Nevertheless, for much the same reasons that the proposed

838

procedures, along with our recommended changes, would satisfy the constitu­

tional interests of the ex-spouse in her relationship with the child, they would also

accommodate the child’s protected interest in his relationship with the ex­

spouse.27

With respect to the custody issue, the proposed procedures would assure that

an ex-spouse could litigate the issue and obtain custody pursuant to a valid

custody order. Accordingly, the child would not be deprived of his interest in

being in the custody of a parent who wished to pursue her custody rights.

With respect to visitation, the child would be kept out of reach of visitation by

an ex-spouse, but, as where the ex-spouse challenges this action, the government

has a sufficiently compelling interest in refusing to disclose the participant’s and

child’s new identity in these circumstances. This conclusion is based on three

factors.

First, the Marshals Service has a compelling interest in protecting the minor

child and participating parent from the consequences that could result if the ex­

spouse were permitted to visit. Assuming that officials of the Marshals Service

act in good faith in assessing this danger, their decision to refuse to disclose the

new identity of the child in order not to jeopardize the child’s safety would surely

constitute a reasonable performance of their official responsibilities.

Second, under the procedures we have proposed, either a state court or the ex­

spouse would have concurred in the judgment of the Marshals Service that the

visitation rights must be extinguished. Under these procedures the Marshals

Service would afford the witness an opportunity to challenge the termination in

state court, and the Service would honor any decision of the state court con­

tinuing visitation rights.28 Accordingly, a child’s visitation rights would only be

terminated when a state court had concurred in the decision of the parent and

witness as to the need to terminate visitation rights in the best interests of the

child. Otherwise, the ex-spouse would not have challenged the termination.

Finally, the parent with custody of the child would have concurred in the

government’s judgment as to the danger to the child. Parents speak for their

children in a variety of different circumstances, and usually are presumed to

represent their best interests. In a related context, for example, the Supreme

Court upheld a state procedure whereby a parent or guardian was permitted to

commit a child to a mental institution solely on the judgment of the parent and the

hospital. Parham v. J.R., 442 U.S. 584 (1979). The court reasoned as follows:

[0]ur constitutional system long ago rejected any notion that a

child is “ the mere creation of the State,” and, on the contrary,

asserted that parents generally “ have the right, coupled with the

high duty, to recognize and prepare [their children] for additional

obligations.” Pierce v. Society c f Sisters, 268 U.S. 510, 535

27 Only (he interests of minor children are at issue. The admission of an older child into the Program would not

create any constitutional problem for, like the witness, an older child would have a nght, if he wished, to resume

contact with the ex-spouse. Leonhard v. United States, 633 F.2d at 619

28 As a practical matter, this would probably mean the voluntary return of the child lo the ex-spouse in order to

protect the witness.

839

(1925). . . . The law’s concept of the family rests on a presump­

tion that parents possess what a child lacks in maturity, experi­

ence, and capacity for judgment required for making life’s diffi­

cult decisions. More important, historically it has recognized that

natural bonds of affection lead parents to act in the best interests of

their children.

Id. at 602. (Citations omitted; emphasis in original.) Similarly, in cases arising

under the Witness Protection Program, a participant who has been granted

custody would enjoy this presumption of concern for the welfare and best

interests of his child.

The only courts to consider this issue, Leonhard v. United States, 633 F.2d at

618, and Franz v. United States, 526 F. Supp. at 127, have denied a child’s

challenge to the termination of visitation rights under the Program because the

parent with custody had consented. While we question whether the custodial

parent’s consent alone would justify terminating the other parent’s visitation

rights, where officials of the Marshals Service and the state courts concur in that

judgm ent, we do not believe that the children could successfully challenge the

decision on constitutional grounds.

VII. Constitutional Limitations on the Enforcement of Debts of

Witnesses

A separate constitutional issue arises with respect to the proposed new policy

for dealing with creditors of witnesses. Under this policy, the Marshals Service

would evidently reveal the new identity of a witness to a creditor in certain

egregious cases, but not in all cases. While we find no statutory or constitutional

impediment to the disclosure of witnesses’ identities in such cases, the failure to

disclose witnesses’ identities to all bona fide creditors raises a constitutional issue

under the “ takings clause” of the Fifth Amendment. This section provides that

“ private property [may not] be taken for public use, without just compensa­

tion.” 29 If the Marshals Service’s refusal to disclose the new identity of a witness

in these circumstances constitutes a “ taking” of the creditor’s property within the

meaning of the Fifth Amendment, the government would be required to compen­

sate the creditor for his claim against a witness.

The Supreme Court has recognized that there is no “ set formula” for deter­

mining when a government action constitutes a taking. Loretto v. Teleprompter

M anhattan CATV Corp., 458 U .S. 419, 426 (1982). Ordinarily, in reaching its

decisions, the Court has engaged in “ essentially ad hoc, factual inquiries,” Penn

C entral Transportation Co. v. N ew York City, 438 U.S. 104, 124 (1978), which

“ call[ ] as much for the exercise of judgment as for the application of logic.”

29 Contracts are property within the meaning of the Fifth Amendment. See. e g , UnitedStates Trust Co. v New

Jersey. 431 U .S I, 19 n.16 (1977), Armstrong v. United States, 364 U S. 40, 44-46 (1960), Contributors to

Pennsylvania Hospital v Philadelphia, 245 U S 20 (1917).

840

Andrus v. Allard, 444 U.S. 51, 65 (1979). Such judgment has been informed,

however, by the Court’s weighing of four different factors.30

The first factor is “ [t]he economic impact of the regulation on the claimant

and, particularly, the extent to which the regulation has interfered with distinct

investment-backed expectations. . . .” Penn Central, 438 U.S. at 124. If a

government action has deprived the claimant of the most reasonable use of his

property, the Court is much more likely to find there has been a taking than if he is

left with some reasonable economically viable use.31

The second factor is whether the claimant’s investment-backed expectations

can be said to be “ reasonable.” The government may prohibit certain “ obnox­

ious” uses of property which would threaten “ the health, safety, morals, or

general welfare,” N ectowv. Cambridge, 277 U.S. 183, 188 (1928); see Euclid w.

Ambler Realty C o., 272 U.S. 365, 388-89 (1926). Under such circumstances,

the resulting economic loss to the owner is not considered compensable.32

Similarly, certain areas of economic activity are heavily regulated by the govern­

ment, so that it would be unreasonable for private citizens to expect that their

property or contracts will not be subjected to future regulations. See Allied

Structural Steel Co. v. Spannaus, 438 U.S. 234, 249 (1978); Veix v. Sixth Ward

Building and Loan Assoc., 310 U.S. 32, 37-38 (1940).

The third factor is the extent to which the adverse government action falls upon

a broad class rather than upon a discrete group. Zoning laws that affect a cross

section of property in a community, see Agins v. C ity cfTiburon, 447 U.S. 255,

262 (1980), rather than a discrete group, as in spot zoning, see Penn Central, 438

U.S. at 132, and government wartime regulations that necessarily demand

sacrifices from a large portion of the population, see United States v. Central

Eureka Mining Co., 357 U.S. 155, 168 (1958), are less likely to be classified as

takings. See also Monongahela Navigation v. United States, 148 U.S. 312, 325

(1893); Sax, Takings and the Police Power, 74 Yale L.J. 36, 75-76 (1964).

The final factor is the extent to which the government’s action is directed at and

impacts upon the defendant’s property directly and physically, rather than indi­

rectly. See, e.g ., Penn Central, 438 U.S. at 124; U nitedStates v. Central Eureka

Mining Co., 357 U.S. at 165—66; Omnia Commercial Co. v. United States, 261

U.S. 502, 510 (1923). As the Supreme Court has recently held, “ a permanent

30 Two general pnnciples should be bome in mind in examining any taking question. On the one hand,

“ (governm ent hardly could go on if to some extent values incident to property could not be diminished without

paying for every change in the general law ” Pennsylvania Coal Co. v. Mahon, 260 U .S. 393, 413 (1922) On the

other hand, at some point the taking clause “ bar[s] Government from forcing some people alone to bear public

burdens which, in ail fairness and justice, should be bome by the public as a whole.” Armstrong v. United States,

364 U S at 49. Any decision on taking ultimately “ requires a weighing of private and public interests.” Agins v.

City cfTiburon. 447 U S. 255, 261 (1980) The factors discussed in the text have been cited by the Court when

undertaking this balancing process.

31 Compare Penn Central, 438 U S. at 136 (preservation of historical site “ does not interfere with what must be

regarded as . . the primary expectation concerning the use of the parcel” ) with Pennsylvania Coal Co v Mahon,

260 U.S. 393,413 (1922) (where deprivation “ reaches a certain magnitude, in most if not in all cases there must be

an exercise of eminent domain and compensation to sustain the act” )

32 See also Heart c f Atlanta Motel, Inc v. Untied States, 379 U.S. 241, 261 (1964) (loss of business due to

government antidiscrimination laws not compensable), Everard's Breweries v. Day, 265 U.S 545, 563 (1924) (loss

of value of alcoholic beverage stock due to prohibition not compensable).

841

physical occupation of property” is a taking “ without regard to whether the

action achieves an important public benefit or has only minimal economic impact

on the owner.” Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. at

434-35.

Application of these factors to cases arising under the Witness Protection

Program is obviously complicated. In most situations, we assume that the

creditors would have a reasonable expectation to the payment of their claims,

depending upon the ability of the debtor to pay, andthe destruction of any specific

claim would obviously fall directly and probably exclusively on the claimant,

thereby placing the cost of the government action upon a small discrete group

rather than upon a cross section of the community. Moreover, in many cases, the

Service’s refusal to disclose the location of witnesses would result in the practical

destruction of the creditors’ entire claims, although there may be cases where the

withholding of information would only be temporary, or where there is a

mechanism by which a creditor could satisfy his claim against other property of

the witness.

On the other hand, in virtually all of these cases, the government will not have

directly deprived the creditor o f his property, but rather only assisted a private

person in changing his identity, thereby indirectly and unintentionally depriving

the creditor of his property by making it impossible for the creditor to enforce his

claim. As the Supreme Court has noted in finding the government was not

responsible for the damage done by rioters reacting to the presence of govern­

ment troops, “ in any case where government action is causally related to private

misconduct which leads to property damage[,] a determination must be made

whether the government involvement in the deprivation of private property is

sufficiently direct and substantial to require compensation under the Fifth

Amendment.” YMCA v. United States, 395 U.S. 85, 93 (1969). In cases arising

under the Witness Protection Program, the government normally will have made

good faith efforts not to permit a witness to enter the Program with outstanding

debts, will have disclosed the identity of witnesses to creditors in particularly

egregious cases, and will not itself have received any use of the property for its

own purposes.33 All these considerations would support the argument that

government’s actions are not “ sufficiently direct and substantial” to require it to

pay compensation. Indeed, the only court that, to our knowledge, has considered

the question whether the Marshals Service’s concealment of a witness from a

creditor constitutes a taking has found that it does not, for essentially these

reasons. It held that “ the governmental action [of concealing the debtor’s

identity] was not directed at o r toward the plaintiffs property right, and any

interference with that right, the evidence of which plaintiff still retains, is at most

33 This situation can be contrasted with Webb's Fabulous Pharmacies v Beckwith, 449 U.S. 155, 163 (1980),

where the court struck down a state system o f interpleader funds because it was “ a forced contribution to genera!

governmental revenues" rather than an adjustment of the “ benefits and burdens of economic life ” See generally

Sax. Takings and the Police Power, 74 Yale L J. 36 (1964)

842

an indirect consequence of the exercise of lawful government power.” Melo-Tone

Vending v. United States, 666 F.2d at 689.34

In light of the difficulty in determining whether any one of these factors would

be dispositive in a particular factual circumstance, we cannot say with any

certainty whether the courts would find the refusal to disclose a witness’ identity

to be a taking in any particular case. We note that the refusal of the Marshals

Service to admit into the Program witnesses who it knows have large debts, and

its willingness to disclose the identity of witnesses to creditors in particularly

egregious cases, would certainly improve its legal position in those cases where it

decides not to disclose a witness’ identity to creditors. Therefore, we cannot say

at the present time in the abstract that the courts would not uphold such a refusal

in a particular case. If you would like us to examine this issue in greater detail in

particular factual contexts, we would be happy to do so.35

VIII. Witness’ Statutorily Based Due Process Right

Finally, we note that the proposed procedure would satisfy any constitutionally

protected interest the witness may have in the concealment of his identity.

Although a witness’ interest in preventing enforcement of claims does not invoke

substantive constitutional protection, see United States v. Kras, 409 U.S. 434,

446 (1973),36 the Supreme Court has recognized that a person may have a

statutorily derived “ legitimate claim of entitlement.” B oard of Regents v. Roth,

408 U.S. at 577. Such property or liberty interests

are created and their dimensions are defined by existing rules or

understandings that stem from an independent source such as

state law— rules or understandings that secure certain benefits and

that support claims of entitlement to those benefits.

34 We also note that there is a practical consideration in support of this view, the government often does nol have

sufficient information to litigate whether a creditor has a valid claim against a witness, and therefore against the

government The only person, other than the creditor, who has this information— the witness— has no incentive to

assist the government if he knows that, by assisting the government, he may be held liable for his debt. Thus, any

general policy of reimbursing claims against creditors could possibly lead to abuse because of the difficulty in

establishing when a claimant has a valid case against the debtor, and therefore against the government

35 For similar reasons, we do not believe it is wise to attempt to reach any definite conclusions whether the refusal

to disclose the new identity of a witness would violate the Contract Clause. The Contract Clause provides that “ [n]o

Stateshall passany . Law impairing the Obligation of Contracts. .’’ U.S C onst.,A rt l,§ lO .W hileon

its face the clause applies only to state impairments of contractual obligations, the Supreme Court has suggested that

the Fifth Amendment may impose similar restrictions on the federal government's impairment of contracts, see,

e g.. Thorpe v Housing Authority, 393 U.S 268, 278 n 31 (1969); Perry v United States, 294 U S 330, 353-54

(1935), although probably less stringent. Cf. U sery\. TurnerElkhorn Mining Co , 428 U.S. 1 (1976). As in the case

of takings, however, there is a question whether the refusal to disclose the whereabouts of a debtor can be said lo

constitute an “ impairm ent" of the contract with his creditors in the types of cases arising under the Program. In

determining whether an impairment of a contract violates the Contract Clause, moreover, the Supreme C ourt has

considered how severe the impairment is and whether it is “ necessary to meet an important general social problem ”

Allied Structural Steel Co v Spannaus. 438 U.S. at 247 See United States Trust Co. v New Jersey, 431 U S. 1,29

(1977). Because such a determination is dependent on the facts of each case and the actions of the Marshals Service

in minimizing unnecessary impairments of creditors’ claims, we do not believe any general conclusion about the

operation of the Program can be made.

36 There is also no substantive constitutional nght to prevent the government from disclosing a witness' new

identity to a creditor merely because it might assist a third person in locating the citizen and injunng him. C f Garcia

v. United States, 666 F.2d at 963 (no substantive constitutional right to protection of Program)

843

Id. When existing law creates such an entitlement, the government’s decision to

withdraw the benefit must be accomplished through procedures which satisfy the

protections of the Due Process Clause.

In the case of a witness already receiving protection in the Program, the statute

provides that he may continue to use the government facilities “ for as long as the

Attorney General determines the jeopardy to his life or person continues.” Pub.

L. No. 91-452, § 502, 84 Stat. 922, 933 (1970). The only court to address this

question has found, however, that this provision does not limit the authority of the

Attorney General, and therefore does not create a due process right. Garcia v.

U nitedStates, 666 F.2d at 964. Cf. D o e \. Civiletti, 635F.2dat97 n.21 (no vested

right to subsistence payments under the Act). As we discussed above, we agree

with this decision.

Moreover, even if another court confronted with a more sympathetic fact

situation than that presented in G arcia 37 found that a witness did have such a

vested right, the proposed procedures would satisfy any procedural due process

right. Under these procedures, a witness would be afforded physical protection in

any judicial proceeding so that he could contest any suit brought by a creditor

against him and would be provided with an attorney to assist him in his defense. If

he should lose in that proceeding, but nevertheless refuse to satisfy the judgment,

he should not be entitled to any additional procedures before the Marshals

Service disclosed his identity. Therefore, even if a court were to find that a

witness had a vested interest in his continued participation in the Program,

providing the witness with a judicial forum and an attorney would discharge the

government’s due process obligations. See generally Mathews v. Eldridge, 424

U.S. 319, 335 (1976).

IX . Conclusion

Our conclusions can be summarized as follows.38 First, the Crime Control Act

authorizes the Attorney General to adopt the proposed procedures. Second, the

proposed procedures would not subject the federal government to liability under

either the Federal Tort Claims Act or the Tucker Act. Third, in certain rare

circumstances, the proposed procedures could possibly violate the due process

rights of an ex-spouse who is unable, without knowledge of the witness’ new

identity, to secure a binding custody or visitation rights determination against a

witness participant. Thus, in our view, the Marshals Service should disclose the

witness’ identity to an ex-spouse in such disputes if (1) the witness refuses to

waive objections to jurisdiction, thereby precluding his ex-spouse from obtaining

a forum to litigate her claims, and (2) the Marshals Service would be able to

provide a secure forum for him to litigate his position if he waived objections. For

similar reasons, the procedures should be modified to require a witness to seek

37 In Garcia, the participant had repeatedly and flagrantly violated the terms of his agreement with the Marshals

Service.

38 We have not considered the question of the ch ild ’s inheritance n ghts or possible future claim to use the name of

his natural parent, insofar as these issues are not presented by the proposed procedures.

844

amendment of state custody orders granting his ex-spouse visitation rights before

the witness and child enter the Program if any resulting delay would not endanger

the physical well-being of the child or the witness. If such a modification cannot

be sought before entering the Program, appropriate efforts should be made as

promptly thereafter to provide an opportunity for litigation in a secure environ­

ment provided by the Service.

Finally, the decision to disclose a witness’ new identity to a creditor is

permissible in the egregious cases which have been described. On the other hand,

we cannot say at this point that a refusal to identify the witness to a creditor would

violate the Fifth Amendment, although we caution that resolution of this question

may be dependent on the facts of each case and the developing state of the law in

this complex area. To improve our legal position in such cases, we recommend

that the Service make every effort to assure that witnesses not be admitted into the

Program with outstanding debts, and that a good faith effort be made to induce

witnesses to pay legitimate claims in those cases where the Service concludes it is

inappropriate to reveal their new identities.

T heodore B. O lson

Assistant Attorney General

Office c f Legal Counsel

845