707 F.2d 582 (D.C. Cir. 1983), 81-2369, Franz v. United States

Docket Nº:81-2369.
Citation:707 F.2d 582
Party Name:William FRANZ, et al., Appellants, v. UNITED STATES of America, et al.
Case Date:May 10, 1983
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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707 F.2d 582 (D.C. Cir. 1983)

William FRANZ, et al., Appellants,


UNITED STATES of America, et al.

No. 81-2369.

United States Court of Appeals, District of Columbia Circuit

May 10, 1983

Argued Oct. 20, 1982.

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Appeal from the United States District Court for the District of Columbia (D.C.Civil Action No. 81-0173).

George Kannar, American Civil Liberties Union, New York City, for appellants.

William H. Briggs, Jr., Asst. U.S. Atty., Washington, D.C., for appellees. Stanley S. Harris, U.S. Atty., Royce C. Lamberth, R. Craig Lawrence and Jason D. Kogan, Asst. U.S. Attys., Washington, D.C., were on the brief for appellees.

Before TAMM, EDWARDS and BORK, Circuit Judges.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

Separate Statement, concurring in part and dissenting in part, filed by Circuit Judge BORK.

HARRY T. EDWARDS, Circuit Judge:

At issue in this case is the validity of one aspect of the administration of the federal Witness Protection Program. 1 Exercising the discretion vested in them by statute, various federal officials relocated and changed the identities of a government informant, his wife, and her three children by a former marriage, in return for the informant's testimony against alleged leaders of organized crime. Unfortunately, this routine and otherwise unassailable procedure had the effect of severing the ongoing relationship between the children and their natural father. The father brought the present suit--on behalf of himself and his children 2--challenging the actions of the federal officials on a variety of constitutional and statutory grounds. He sought declaratory and injunctive relief to enable him to reestablish contact with his children, and damages to compensate all of them for injuries sustained as a result of their separation. The District Court dismissed the complaint for failure to state a claim upon which relief can be granted. 3

As all parties concede, resolution of this case requires a weighing of three important interests: the public interest in the suppression of organized crime; the interest of the informant, his spouse, and the children in securing protection against the threat of violent reprisal to which they are all exposed; and the interest of the children and their father in maintaining the bonds between them. The essence of the plaintiffs' claims is that, in acting to sever totally and permanently the relationships between a non-custodial parent and his minor children without their participation or consent, the defendants struck an impermissible balance of the foregoing interests. Although we reach no judgment on the proper

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ultimate disposition of this case, we conclude that the plaintiffs clearly have stated a cause of action sufficient to survive a motion to dismiss.

Taking as true the facts alleged in the complaint, 4 we find that the administrators of the Witness Protection Program abrogated the constitutionally protected rights of the plaintiffs to one another's companionship without (1) affording the father requisite procedural protections, (2) making a particularized finding and showing of a legitimate state interest sufficient to justify the infringement, or (3) availing themselves of equally effective alternative solutions to the problem before them that would have been less restrictive of the plaintiffs' rights. Accordingly, we reverse and remand for further proceedings. 5



The Witness Protection Program was established as part of the Organized Crime Control Act of 1970. 6 Its purposes are to guarantee the safety of government witnesses who agree to testify against alleged participants in organized criminal activity and thereby to create an incentive for persons involved in such activities to become informants. Broad discretion is vested in the Attorney General "to provide for the security of" such witnesses. 7

It was originally contemplated that the program would be implemented principally through the purchase and maintenance of housing facilities that would serve as more or less permanent havens for witnesses and

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their families. 8 That approach soon proved impracticable and the strategy was adopted of relocating witnesses and their families and providing them with "new identities, the documents to support these new identities, as well as housing, employment, medical services and other social services." 9

The Attorney General has delegated to the United States Marshals Service virtually all of his authority over the actual administration of the program. 10 But decisions regarding who will be accepted into the program are still made by certain direct subordinates of the Attorney General. An Order promulgated by the Justice Department in 1975 provides that a recommendation to admit a prospective witness must be made by a U.S. Attorney or Assistant U.S. Attorney and approved by the Assistant Attorney General in charge of the concerned division. 11 Only after this screening process has been completed is the Marshals Service notified and instructed to prepare for the induction of the witness. 12

The Justice Department Order also prescribes criteria by which prospective inductees are to be evaluated. The Assistant Attorney General is instructed to admit a "proposed witness" into the program only upon satisfaction of the following conditions:

(1) The person is a qualifying witness in a specific case in process or during or after a grand jury proceeding,

(2) Evidence in possession indicates that the life of the witness and/or that of a member of the witness' family or household is in immediate jeopardy, and

(3) Evidence in possession indicates it would be advantageous to the Federal interest for the Department to protect the witness and/or a family or household member. 13

These criteria, it will be observed, make no mention of the impact of the admission of a witness and his "family or household" on established relationships between members of that household and other persons (e.g., natural parents); the Assistant Attorney General is to consider only the advantage to the "Federal interest" of accepting each candidate, not the effects upon the interests of third parties. 14

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Nor does it appear that peripheral familial rights are taken into account at any other point in the standard admission procedure or in the subsequent administration of a case. The one apparent (and partial) exception to this generalization turns out, in practice, to be illusory. At the time of their induction, all witnesses and adult members of their households are required to read and sign a lengthy "Memorandum of Understanding." 15 The document includes the following provisions: a warning by the Marshals Service that it "WILL NOT SHIELD witnesses from civil or criminal litigation initiated prior to or subsequent to entry into the Program"; 16 a mandate that "[a]ll court orders which are directed to the witness must be immediately brought to the attention of the ... Marshals Service" (combined with a strong suggestion that the Service will assist in their enforcement); 17 and a form authorizing either the Marshals Service or a named party to receive service of process on behalf of the witness. 18 These provisions might be interpreted as requirements that participants in the program abide by judicially ratified familial rights of third parties. Indeed, a former Director of the Marshals Service testified in 1978 that it was the current "policy" of the Service to "work to secure some accommodations so the rights of [a non-relocated parent] are protected"--specifically, to "make [the children] available [for visitation] if the circumstances are proper." 19 However, such a "policy" certainly was not implemented in this case. 20 And the defendants did not suggest, either in their brief or at oral argument, that the Service makes any affirmative effort to afford non-custodial parents access to their relocated children. 21 We are compelled to conclude, therefore, that the character and strength of familial relationships between members of a witness' household and third parties who will not be relocated are given no formal consideration either by the Justice Department officials responsible for deciding whether to admit a candidate and his "family or household" into the Witness Protection Program or by the administrators of the Marshals Service when deciding how any given case should be handled.


Partly because of the preliminary stage at which the suit was dismissed, the circumstances out of which this action grows are not entirely clear. The following is a rough outline of the pertinent facts, assuming all allegations in the plaintiffs' complaint are true.

In 1966, William Franz married Catherine Mary Franz. In the ensuing years, the couple had three children: William Michael Franz, Christine Catherine Franz, and Donna Marie Franz. Sometime thereafter the

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couple separated. In February 1974, a Pennsylvania court awarded William visitation rights; Catherine appears to have had or been awarded custody of the children. 22 Between 1974 and 1978, William regularly exercised his right to visit his offspring. 23 On July 9, 1976, William and Catherine were divorced.

Sometime prior to the divorce, Catherine "developed a personal relationship" with (and later may have married) one Charles Allen. 24 Allen subsequently confessed himself to be a contract killer in the employ of leaders of organized crime in the Philadelphia area. He offered to testify in a federal criminal trial in return for the relocation and protection of himself, Catherine, and Catherine's three children. The Assistant Attorney...

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