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Witness Protection Program Termination Unreviewable; 188 Days in SHU Triggers Due Process Protections

Witness Protection Program Termination Unreviewable; 188 Days in SHU Triggers Due Process Protections


by Mark Wilson


The Second Circuit Court of Appeals has held that claims related to termination from a federal witness protection program are not judicially reviewable. The Court reinstated an administrative segregation claim, however, holding that 188 days in segregation triggered due process protections.

A federal prisoner incarcerated at FCI Otisville in New York, identified only as “J.S.,” voluntarily participated in the U.S. Department of Justice’s (DOJ) Witness Security Program, also known as the witness protection program, from December 2007 to March 2010 pursuant to a “prisoner-witness agreement” and a memorandum of understanding with the DOJ.

Upon entering the program, J.S. agreed that contacting or attempting to contact unauthorized individuals could result in his termination from the program.

In October 2009, DOJ officials informed J.S. that he had violated the agreement by contacting unauthorized individuals, and a program termination notice was issued.

J.S. administratively appealed the termination, arguing that the DOJ’s failure to provide him with notice of whom he allegedly contacted deprived him of due process. He also claimed the alleged violation was impossible because prison staff approved all of his contacts.

On April 19, 2010, prison unit manager Donna Hill served J.S. with a copy of the DOJ order denying his appeal. The DOJ “doesn’t have to go by the same rules as everybody else,” Hill said when J.S. again objected to the lack of notice regarding whom he had allegedly contacted. “They don’t have to tell you what you did, you know what you did.”

Hill instructed J.S. to initial the order. After he did so, he was immediately confined in the prison’s Security Housing Unit (SHU) for 188 days.

J.S. filed a Bivens action alleging that his witness protection program termination and SHU confinement were unconstitutional. The district court dismissed the action sua sponte, holding that it lacked subject-matter jurisdiction because 18 U.S.C. § 3521(f) states that witness protection program termination decisions “shall not be subject to judicial review.”

The Second Circuit upheld the dismissal of the termination claim, agreeing that § 3521(f) bars judicial review of such termination decisions and Congress did not create a property interest in participation in the witness protection program. In the latter regard, J.S. was “unable to show that he has been deprived of a property right for which process is due because ‘a benefit is not a protected entitlement if government officials may grant or deny it in their discretion.’”

The appellate court reversed the dismissal of J.S.’s SHU claim, however, concluding with “little difficulty” that “188 days of administrative confinement is sufficient to implicate Sandin-type liberty interests,” referring to the due process standard set forth in Sandin v. Conner, 115 S.Ct. 2293 (1995) [PLN, Aug. 1995, p.1]. The Court of Appeals also found that J.S. should be allowed on remand to replead his claim, not included in his original complaint, “that his confinement [in the SHU] was not merely administrative but was punitive because it was intended to punish his breach of the Program agreement....”

In a concurring opinion, two Second Circuit judges made “the troubling observation that Congress has created procedural guarantees for Witness Security Program ... participants which when violated, as they appear to have been here, give rise to no judicial remedy.” They expressed hope “that Congress may choose to review and audit compliance with, or even revise, 18 U.S.C. § 3521 to provide greater enforcement of the procedural protections it intended Program participants to have.” The dissenting judges also directed the court clerk to send a copy of the opinion to the DOJ’s Office of the Inspector General for review.

The case was remanded so J.S. could replead his SHU claim, while the dismissal of the program termination claim was affirmed. See: J.S. v. T’Kach,714 F.3d 99 (2d Cir. 2013).



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Related legal case

J.S. v. T’Kach