William Franz v. United States of America

712 F.2d 1428, 229 U.S. App. D.C. 396, 1983 U.S. App. LEXIS 28131

Opinions

HARRY T. EDWARDS, Circuit Judge:

*

The opinion for the court in this case was issued on May 10,1983, and reported at 707 F.2d 582. Now, more than a month after the original decision, a separate statement, concurring in part and dissenting in part [hereinafter referred to as “the Separate Statement”], has been filed. At this juncture, a full response to the arguments advanced therein would not be productive. However, to ensure that the opinion for the court is neither misunderstood nor misapplied, it is necessary to call attention to the most important of the misstatements and the most troubling of the suggestions contained in the Separate Statement.

I

The Separate Statement initially objects to consideration of the constitutional claims made by the appellants, on the ground that the case should have been remanded to allow the parties to present evidence concerning Congress’ intent to “preempt” state domestic-relations law. This strained effort to avoid the difficult questions raised by the appeal cannot withstand critical scrutiny.

The language and legislative history of the Organized Crime Control Act of 1970 (“the Act”) make perfectly clear that the Attorney General has been vested with discretionary authority sufficiently expansive to empower him to ignore state-created entitlements to the extent that he has in this case. The Act affords the Attorney General broad authority “to provide for the security of Government witnesses” and their families in the Witness Protection Program. See 707 F.2d at 586 n. 6. Nothing in the statute purports to limit the discretion of the Attorney General in circumstances when provision for the protection of a Government witness and his family implicates the rights of a non-custodial parent. There is no doubt that, in establishing a program designed to protect witnesses against organized crime, Congress did not intend to “federalize” domestic-relations law. It seems equally plain, however, that Congress meant to authorize the Attorney General to act, on occasion, in a manner that might be at odds with visitation rights created by state law.

To suggest otherwise, as the Separate Statement seemingly does, is to be blind to the obvious. It is inconceivable that Congress did not anticipate that the implementation of the Witness Protection Program might adversely affect the rights of third parties (such as creditors and non-custodial parents). The Program always has contemplated a change of identity and a relocation of participants to protect against their discovery. Inherent in any such scheme is the possibility that participants will be lost to third parties seeking to collect debts, enforce visitation rights, or the like. Despite these obvious problems, Section 502 of the Act unequivocally states that the Attorney General may include a potential witness and his family in the Program “whenever, in his judgment, testimony 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.” (Emphasis added). Furthermore, under Section 502, participation in the Program may continue “for as long as the Attorney General determines the jeopardy to [the inductee’s] life or person continues.” (Emphasis added).

We need not look solely to the explicit language of the statute, or to the consistent practices of the Government officials who have implemented the Witness Protection Program,¹ in order to understand congressional intent. The legislative history makes evident that Congress meant to empower the Attorney General to act in whatever way he saw fit to alleviate what it regarded as the pressing problem of retaliation against persons who provided evidence against organized crime. In the form in which it was originally introduced, the portion of the Organized Crime Control Act dealing with the protection of witnesses was somewhat less explicit than the final version in granting discretionary authority to the Attorney General. The Justice Department, in its extensive comments on the original bill, “wholeheartedly supported] the theory behind” the proposed protection program, but suggested, inter alia, that the provision be clarified to ensure that the Attorney General was not fettered in any way in deciding how to act in particular cases.

[W]e believe that there should be authorization of appropriations for the care and protection of such witnesses to be used in whatever manner is deemed most useful under the special circumstances of each case. Such a provision would provide the necessary flexibility to adequately deal with this problem.

Department of Justice Comments on S. 30, reprinted in S.Rep. No. 617, 91st Cong., 1st Sess. 112 (1969) (emphasis added). The pertinent provisions in the proposed statute were subsequently altered in accordance with the Justice Department’s suggestions, whereupon the Department expressed its support for the bill. S.Rep. No. 617, supra, at 60. The final Senate and House reports leave no doubt as to the outcome of the exchange; both reports stress the extent of the discretionary power the Attorney General was to enjoy:

Section 501. — This section authorizes the Attorney General to provide security for potential witnesses and their families in organized crime proceedings. The proceedings themselves need not be criminal. ... It is necessary only that legal proceedings be involved and that the underlying factual situation embrace organized criminal activity.

Section 502. — This section gives the Attorney General broad authority to determine the particular facility to be afforded and the length of time the facilities should be available. This authority extends to providing for the health and welfare, and to offering all needed facilities to witnesses, and to their families or members of a household. Use of such facilities may continue so long as necessary for protection, and the grant of authority is sufficiently broad to allow for relocation. There is no requirement that anyone accept such an offer by the Attorney General.

Id. at 150 (emphasis added). (The corresponding discussion in the House Report is substantially identical, see H.R.Rep. No. 1549, 91st Cong., 2d Sess. 48 (1970).)

Recent legislative initiatives seeking to modify the power of the Attorney General in implementing the Witness Protection Program also illuminate Congress’ understanding of the extent of the discretionary authority enjoyed by the Attorney General under the statute as it now stands. In recent years, due to increasing concern over the inability of third parties to enforce judgments against Program participants, see GAO Report, supra note 1, at 14,18-27, several bills have been introduced in Congress to address this issue. As noted in the GAO Report,

[i]n general, each bill required the Attorney General to take affirmative actions to urge the relocated person to comply with the judgment and to determine whether the relocated person had made reasonable efforts to comply with the judgment. If the Attorney General determined that the relocated person did not make reasonable efforts to comply with the judgment, he could, at his discretion, after weighing the danger to the person relocated, disclose the identity and location of that person to the plaintiff attempting to enforce the judgment.

Id. at 30 (emphasis added). What is noteworthy about these legislative proposals— all of which have been designed to limit the discretion of the Attorney General — is that none would mandate the disclosure of the identity of a person in the Witness Protection Program when the rights of a non-custodial parent were at stake. Rather, even under the most sweeping of the bills, the Attorney General would still retain the discretion to withhold the identity and location of a Program participant “after weighing the danger to the person.” This is clearly consistent with the discretion given to and exercised by the Attorney General under the present Program.²

In light of the foregoing, it is quite plain that the Attorney General always has had broad authority under the Organized Crime Control Act to adhere to the practices heretofore followed in the Witness Protection Program. This authority is supported by the clear language and legislative history of the Act. We conclude, therefore, that the Separate Statement’s reliance on arguments focused on preemption doctrine is nothing more than a failing attempt to put a square peg in a round hole.³

II

The objections advanced in the Separate Statement to the majority’s substantive due process analysis merit only brief attention. The Separate Statement is ingenuous enough to admit that its dissatisfaction with the majority’s interpretation of the doctrine derives more from distaste for substantive due process theory in general than from disagreement regarding whether the principles established by the Supreme Court are fairly applicable to the instant case. However, a few comments contained in the Separate Statement should not be allowed to pass unchallenged.

First, the suggestion that “the majority has created a fundamental right or interest by predicting a tradition that will spring to life in the future” is plainly wrong. Relying on a demographic study by the U.S. Bureau of the Census, the majority observed that non-custodial familial relations are becoming ever more common in American society. It then reasoned that the absence of a strong tradition recognizing the sanctity of such relationships, which is readily explainable by the relative rarity of “broken families” in American society in the past, should not result in denial of constitutional protection for such relationships as they become increasingly prevalent, 707 F.2d at 601, any more than the non-existence of telephones or electronic eavesdropping devices at the time the Fourth Amendment was ratified should be invoked to deny constitutional protection today against warrantless “wiretapping” by the police, cf. Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 512, 19 L.Ed.2d 576 (1967). In short, neither the absence of a strong tradition of respect nor a “prophecy” of the development of such a tradition was relied upon in the majority opinion to “create ” a constitutional right; rather, the absence of the tradition, linked as it is to a social structure different from the present, was not allowed to defeat the right.

Second, it is difficult to take seriously the suggestion in the Separate Statement that severance of the bond between a minor child and his or her parent is constitutionally indistinguishable (under the terms of the majority’s analysis) from severance of the bond between an adult draftee and his (or her) parent. When children grow up, their dependence on their parents for guidance, socialization, and support gradually diminishes. At the same time, the strength and importance of the emotional bonds between them and their parents usually decrease. Concededly, the bond between a parent and child when the child is an adult usually bears some resemblance to the same bond when the child was a minor. But, as a long line of Supreme Court cases attests, see 707 F.2d at 595 & nn. 53-57, the differences between the two stages of the relationship are sufficiently marked to warrant sharply different constitutional treatment.

Finally, the claim made in the Separate Statement that the result of our decision will be to “federalize[ ]” the “entire body of state domestic relations law” surely is a false alarm. Supreme Court decisions have long established that, when regulating the relations between parents and children, states must abide by certain minimal constitutional requirements — both substantive and procedural. See Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed.2d 599 (1982); Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 554, 54 L.Ed.2d 511 (1978) (dicta); Smith v. Organization of Foster Families, 431 U.S. 816, 842, 97 S.Ct. 2094, 2108, 53 L.Ed.2d 14 (1977) (dicta); Stanley v. Illinois, 405 U.S. 645, 651-52, 92 S.Ct. 1208, 1212-13, 31 L.Ed.2d 551 (1972); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438,442, 88 L.Ed. 645 (1944) (dicta); Pierce v. Society of Sisters, 268 U.S. 510, 534-35, 45 S.Ct. 571, 573-74, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923). The opinion for the court in this case, limited as it is to situations in which government officials permanently sever “all ties between a non-custodial parent and his children without their participation or consent,” 707 F.2d at 602, will not significantly tighten the constraints within which the states must operate.⁴

Ill

The Separate Statement, finally, takes issue with the brief discussion in the concluding section of the majority opinion regarding the relevance of procedural due process doctrine to this case. With a bit of hyperbole, the Separate Statement suggests that the majority opinion is “wholly inadequate to meet the majority’s own concerns, much less to deal with other serious problems.”

The bulk of the comments made in the Separate Statement are founded on one or more of three serious misinterpretations of the majority opinion. First, the Separate Statement presumes that the opinion for the court “prescribes” a set of procedures for future use in situations resembling this case. The opinion for the court does nothing of the kind. It holds simply that the appellants have not been accorded the procedural protections required by the Constitution and then goes on to identify “some of the major considerations that must be taken into account when designing a system for dealing with cases of this sort.” 707 F.2d at 608. The majority opinion disavows any intent (as the Separate Statement puts it) to “take the lead in devising the necessary procedures.” The proposals made in the majority opinion are deliberately styled “suggestions” to “a body with greater knowledge than we possess of the ways in which the Witness Protection Program does or might operate.” 707 F.2d at 608. To characterize the majority’s analysis as the formulation of a rigid set of procedures, with which the Marshals Service henceforth must comply, is wholly without justification.

Second, the Separate Statement conveniently ignores one of the suggestions that the opinion for the court does make. The majority ventures a guess that an “informal” procedure would be likely to work best in this peculiar context. 707 F.2d at 609. To read the Separate Statement, one would think that the majority opinion mandates a full-blown judicial proceeding. The Separate Statement expends considerable effort in demonstrating that such a procedure would likely be both unworkable and unhelpful — effort that, insofar as it is designed to topple a portion of the opinion for the court, is entirely wasted.

Finally, the suggestion in the Separate Statement that the opinion for the court would require proof, in each instance, that “the testimony of [the] informant is essential to the prosecution of an important leader of organized crime and that the interests of [the] noncustodial parent and members of the informant’s household cannot be accommodated without risking human life” is folderol. The quoted language is taken from the section of the majority opinion that discusses (without resolving the question) whether, in a situation in which the Marshals Service could not arrange secret meetings and in which induction of a witness and his household would entail, consequently, permanent severance of the bond between a non-custodial parent and his offspring, the strongest governmental objective imaginable would be sufficient to justify abrogation of the parent’s and children’s rights. 707 F.2d at 607. Never is it suggested that, in every case in which a witness and his household were accepted into the program, the government would in the future be required to demonstrate the existence of the conditions described above. The opinion for the court ventures no ruling on the issue of what precisely would have to be proved in each case. The refusal to do so was deliberate; as the majority pointed out (and as the Separate Statement appears to agree), we simply lack sufficient evidence at this juncture to make judgments of this sort.

In many respects, the discussion in the last section of the Separate Statement is highly unfortunate. Some of the comments in the Separate Statement, regarding the practicability of various procedural options, are both insightful and perfectly consistent with views espoused in the majority opinion. Sadly, however, these comments are often obscured by overstatements and misstatements. For example, the Separate Statement confidently asserts that non-custodial parents whose former spouses become affiliated with members of organized crime are more likely than average non-custodial parents to be themselves affiliated with organized crime. There is no reason for making such an assumption, and the Separate Statement certainly offers none.

Similarly, when the Separate Statement finds inconvenient the assertions by the Marshals Service that it is capable of arranging secret meetings between children in the Program and their non-custodial parents, it simply refuses to accept them. This cavalier repudiation of statements made by (a) the defendants in their brief, (b) the defendants’ counsel at oral argument, and (c) the Director of the Marshals Service and the Chief of the Witness Security Division in hearings before a Senate Subcommittee, insisting not only that they are capable of arranging such meetings but that they have done so in the past, see 707 F.2d at 590 & n. 28 (and Hearings cited therein), makes it extremely difficult to engage in a legitimate discussion of the issues.

Conclusion

The Separate Statement is no doubt correct in observing that the factual basis of this case has not been fully developed. A host of questions will have to be explored before the case is concluded. At this point, however, we are obliged only to decide the issues presented on this appeal. The District Court, 526 F.Supp. 126, dismissed the suit for failure to state a claim on which relief can be granted. We have been asked whether, on the facts as alleged in the complaint, that ruling was correct. Neither impatience with the “legal and factual mess” out of which the dispute arises nor uneasiness at the prospect of dealing with the ungainly constitutional doctrines implicated by the case relieves us of our duty to answer the question presented. For the reasons stated in the opinion for the court, we have enough information to determine whether the appellants have stated a claim, and we conclude that they have.

Circuit Judge TAMM concurs in this Addendum to the Opinion for the Court.

1

. See U.S. GAO, Report by the Comptroller General of the United States, Changes Needed in Witness Security Program, GAO/GGD-83-25, at 14, 18-27 (1983) (describing how, over the course of the 12 years in which the program has been in operation, relocation of witnesses and their households has frequently resulted in frustration of the rights of creditors and relatives of the inductees) [hereinafter cited as “GAO Report”].

2

. The most comprehensive of these bills, H.R. 7039, 97th Cong., 2d Sess. (1982), clearly covers suits by third parties against Program participants seeking to enforce familial rights, see id. at § 101 (proposing enactment of 18 U.S.C. § 3521(e)) — though, as indicated in the text, it would not require the Attorney General to disclose the identity of a participant who refused to comply with such a demand.

Equally telling, in terms of Congress’ understanding of the power presently enjoyed by the Attorney General, is the absence of any provision for the safeguarding of third-party familial rights in a bill introduced earlier in 1982. One of the purposes of this bill, S. 2420, 97th Cong., 2d Sess. (1982), in the form in which it emerged from the Senate Judiciary Committee, was to increase the ability of third parties to enforce claims against persons accepted into the Program. See S.Rep. No. 532, 97th Cong., 2d Sess. 26 (1982), U.S.Code Cong. & Admin.News 1982, p. 2515. Such increased protection was confined, however, to “civil cause[s] of action, arising prior to [the inductees’] relocation, for damages resulting from bodily injury, property damage, or injury to business,” id. at 5; despite the wide publicity that had been accorded the numerous instances in which acceptance of witnesses and their households into the Program had resulted in disruption of familial relations, nothing in the bill was designed to compel the Attorney General to take into account the potential for such disruption when deciding whom to admit (or when deciding whether to reveal the location or new identity of an admit-tee). [In October 1982, S. 2420 was enacted into law. Prior to its passage, however, the provisions pertaining to the Witness Protection Program were deleted, pending completion of a study by a Presidential Task Force and “broader examination of the operation of the current program.” See 128 Cong.Rec. S13,063-64 (daily ed. Oct. 1, 1982) (statement of Sen. Heinz).]

In sum, all of the recent legislative initiatives in this area take for granted that the Attorney General currently has statutory authority to act in the fashion he has in this case.

Finally, it should be noted that, in the extensive congressional hearings held in 1978 and 1980 to evaluate the operation of the Witness Protection Program, in which the problems generated when admission of witnesses’ households disrupted other familial relations were discussed at length, see Hearings cited at 707 F.2d at 587 nn. 8, 11, no one suggested that the Attorney General lacked statutory power to admit persons into the Program under such circumstances.

3

. It is somewhat ironic to note that the theory of this case suggested by the Separate Statement is potentially much more drastic than anything envisioned by the majority. Because the Separate Statement urges a preemption analysis in all-or-nothing terms, a finding that Congress had not evinced a desire to “override” state law would render illegal the acceptance of any witness (and his or her household) into the Witness Protection Program when the effect thereof would be to disrupt non-custodial familial relations. Alternatively, a finding that Congress did intend to “preempt” state law would require us to consider once again the question of Congress’ constitutional power to do so. In short, the solution proffered by the Separate Statement would either impose a drastic set of constraints on the Marshals Service or would simply postpone consideration of the difficult constitutional questions that lie at the core of this case.

4

. The suggestion that a requirement that government demonstrate a good reason before severing the bond between a child and his noncustodial parent will “undermine the institution of the intact marriage” is sufficiently ludicrous as to merit no rebuttal.