Smith v. T'Kash

Filing

OPINION, Concurring, by PWH, FILED.[902309] [11-1287]

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Hall, J., concurring in the judgment, with whom Parker, J., joins:

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related to his SHU confinement and that the district court erred when it dismissed the claim sua

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sponte. I also agree that the district court should grant leave for JS to replead his Eighth

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Amendment challenge to his confinement. I write only to articulate the troubling observation

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that Congress has created procedural guarantees for Witness Security Program (“Program”)

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participants which when violated, as they appear to have been here, give rise to no judicial

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remedy.

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I agree that JS has alleged facts on which he could plead a Fifth Amendment claim

JS’s complaint alleges a due process violation for being deprived of an opportunity fully

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to challenge the determination of the U.S. Department of Justice’s Office of Enforcement

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Operations (“OEO”) that he should be terminated from the Program. Because he was never

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informed of the precise factual basis supporting the termination until after his appeal was denied,

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JS asserts that he could not adequately challenge the initial termination decision. These

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allegations, taken as true, present a clear violation of what Congress has mandated as procedural

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guarantees to which OEO agrees to be bound in the required Memorandum of Understanding

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(“MOU”) that OEO must enter with each participant in the Program.

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As our opinion notes, the Program’s governing statute, 18 U.S.C. § 3521, places clear

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limits on judicial review of the adequacy of the grievance and appeals procedure that OEO

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implements. Section 3521(f) provides that “[t]he decision of the Attorney General to terminate

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[witness] protection shall not be subject to judicial review.” Thus, although JS has pleaded clear

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violations of the congressionally mandated statutory requirements governing the contents of a

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MOU and a participant’s rights to notice and an appeal, Congress has precluded federal courts

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from taking jurisdiction to consider such violations. It makes no difference that JS has styled the

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challenge to his termination from the Program as one sounding in denial of procedural due

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process because Program participation does not give rise to a protected property interest,

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termination from which is protected under the Constitution.

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Nonetheless, it is beyond cavil that Congress has mandated Program participants receive

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some procedural protections, even if federal courts cannot compel OEO to follow them. In

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authorizing the Program, Congress directed the Attorney General to enter into a MOU with each

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participant, and further directed that the MOU must include:

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the procedures to be followed in the case of a breach of the memorandum of
understanding, as such procedures are established by the Attorney General. Such
procedures shall include a procedure for filing and resolution of grievances of
persons provided protection under this chapter regarding the administration of the
program. This procedure shall include the opportunity for resolution of a
grievance by a person who was not involved in the case.
18 U.S.C. § 3521(d)(1) (emphasis added). With respect to termination, section 3521(f) prohibits

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OEO from terminating a participant absent a showing of “substantial[] breach[]” or facts

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supporting the conclusion that the participant “provide[d] false information concerning the

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memorandum of understanding or the circumstances pursuant to which the person was provided

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protection.” Id. § 3521(f). Additionally, “[b]efore terminating such protection, the Attorney

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General shall send notice to the person involved of the termination of the protection provided

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under this chapter and the reasons for the termination.” Id. (emphasis added).

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Clearly, Congress intended to insulate from judicial review all aspects of the Attorney

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General’s decision to terminate an individual from the Program. United States v. Gigante, 187

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F.3d 261 (2d Cir. 1999). Nonetheless, before OEO terminates a protected witness’s participation

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in the Program, Congress explicitly requires OEO to find a “substantial[] breach[]” of a

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participant’s MOU, to provide “notice to the person involved of the termination . . . and the

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reasons for the termination,” and to provide resolution of any grievance by an uninvolved arbiter.
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Id. at § 3521(f). While acceptance into the Program is discretionary, as is the ultimate decision

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to terminate a participant from the Program, once a participant is accepted into the Program,

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there is no question that OEO must follow requirements mandated by Congress both with respect

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to provisions that have to be included in the MOU and with respect to the procedures to be

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followed before terminating a protected witness’s participation in the Program.

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On this record, it appears that OEO failed to provide JS, either via the MOU or the

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prisoner-witness agreement, the procedures required by 18 U.S.C. §§ 3521(d)(1) and 3521(f).

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Incredibly, the government argues that providing these mandated procedures and embodying

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them in the MOU or other agreement is discretionary. That argument is meritless, unless by

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“discretionary” the government means that the federal courts have no jurisdiction to require the

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government to comply with the applicable statutory mandates. In common parlance, however,

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the procedures are not “discretionary.” Courts have long held that the use of the directive “shall”

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denotes a requirement. See In re New Haven Projects Ltd. Liability Co., 225 F.3d 283, 287–88

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(2d Cir. 2000). Although the Attorney General has some discretion over grievance and appeal

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procedures to be followed in the event of a breach of the MOU, those procedures shall include, at

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a minimum, the guarantees outlined in subsections 3521(d)(1) and (f). And, as the statute

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directs, a description of those procedures must be incorporated into the MOU or written

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agreement with the program participant. JS’s allegations, taken as true, and our own review of

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the sealed MOU and prisoner-witness agreement, demonstrate unequivocally that Congress’s

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directive has not been followed in this case.

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A review of the record on appeal reveals that JS did receive a pre-termination notice, and

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that he responded within the required amount of time via a notice of appeal and subsequent

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follow-up letter (in which he stated he had filed an appeal). OEO, however, gave no

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consideration to what JS had set forth in his appeal statement, thereby depriving JS of any

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meaningful ability to challenge OEO’s finding of the “substantial breach” that resulted in his

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Program termination. JS was denied precisely what the statutory procedural guarantees were

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meant to secure. This is truly troubling, and it is unfortunate, indeed, that the federal courts

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cannot review the adequacy of OEO’s conduct in this regard and its ostensible breach of the

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substantive requirements Congress has mandated.

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While I fully concur in the judgment, I express some hope that Congress may choose to

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review and audit compliance with, or even revise, 18 U.S.C. § 3521 to provide greater

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enforcement of the procedural protections it intended Program participants to have. At the very

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least, this is a matter that the Office of the Inspector General of the U.S. Department of Justice

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may wish to review. I respectfully request the Clerk of Court forward a copy of this opinion and

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concurrence to that Office.

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