Garcia v. U.S.
| Decision Date | 04 February 1982 |
| Docket Number | No. 80-5473,80-5473 |
| Citation | 666 F.2d 960 |
| Parties | Emilio GARCIA, Plaintiff-Appellant, v. UNITED STATES of America, et al., Defendants-Appellees. . Unit B * |
| Court | U.S. Court of Appeals — Fifth Circuit |
William P. Cagney, III, Miami, Fla., for plaintiff-appellant.
William Kanter, Atty., Susan A. Ehrlich, Barbara L. Herwig, C. Frederick Geilfuss, Civ. Div., U. S. Dept. of Justice, Washington, D. C., for defendants-appellees.
Appeal from the United States District Court for the Southern District of Florida.
Before RONEY, KRAVITCH and ANDERSON, Circuit Judges.
Plaintiff, Emilio Garcia, a drug informer, was given protection under the United States Marshal's Witness Protection Program, established by the Organized Crime Control Act of 1970. Discharged from the Program after giving newspaper interviews, he sued the United States and individual members of the Marshals Service for damages in a Bivens action, asserting the removal of protection had violated several of his constitutional rights. We affirm the dismissal of his complaint against the individuals of the Marshals Service on the ground that, because of the nature and purpose of the Witness Protection Program, his discharge did not violate substantive or procedural due process, First Amendment or privacy rights, and did not constitute cruel and unusual punishment. Sovereign immunity supports the dismissal of the claim against the United States.
From 1970 to 1974 plaintiff worked for the Bureau of Narcotics and Dangerous Drugs and its successor, the Drug Enforcement Agency ("DEA"), as a "special employee." He infiltrated drug smuggling operations, collected information on their activities, reported this information to DEA officials, and testified in several major drug cases. In return for his cooperation and in consideration of the personal and potential danger to plaintiff and his family, the officials of the United States Marshals Service offered plaintiff the protection of the Witness Protection Program, which was established as Title V of the Organized Crime Control Act of 1970. Pub.L.No. 91-452, 84 Stat. 933-934, reprinted in 18 U.S.C.A. prec. § 3481 (Supp.1981). Plaintiff voluntarily accepted the offer and became a participant in the Program.
Discussions with plaintiff concerning the Witness Protection Program and its problems appeared in newspaper articles on May 12 and 14, 1975. Several more articles followed over the next four months. In these articles plaintiff revealed his presence in Miami and his identity as Emilio Garcia. In fact, the paper published plaintiff's picture. After this occurred, plaintiff was discharged from the Program. He was readmitted and discharged from the Program three times thereafter. Plaintiff asserts several of his constitutional rights were violated when he was removed from the Program in spite of the Government's obligation to him and with knowledge of threats to his life and danger to his family. Specifically, plaintiff alleges the termination was in violation of his Fifth Amendment procedural and substantive due process rights; in violation of the exercise of his First Amendment rights; in violation of his right to privacy from Government invasion; and in violation of his Eighth Amendment right to be free from cruel and inhuman punishment.
The question on this appeal is whether the complaint alleging a Bivens type action was properly dismissed by the district court. In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Supreme Court upheld a cause of action for damages against a federal official responsible for injury to a constitutionally protected interest. In order to sustain a Bivens type action, the plaintiff must first demonstrate that his constitutional rights have been violated. Davis v. Passman, 442 U.S. 228, 248, 99 S.Ct. 2264, 2278, 60 L.Ed.2d 846 (1979). We must, therefore, examine the Witness Protection Program and plaintiff's allegations and determine to what extent his constitutional rights were involved and whether they were violated by his discharge.
The Witness Protection Program is essentially an authorization for the Government to extend benefits in the form of protective facilities and other protection. The statute creating the Program provides that the Attorney General is authorized to procure protected facilities and otherwise offer to provide for the health, safety and welfare of witnesses against organized crime "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." Pub.L.No. 91-452, 84 Stat. 933. 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. This provision gives the Attorney General broad authority to determine the particular facilities to be afforded and the length of time the facilities should be available. One cannot receive protection simply on demand.
The statute was enacted in response to a felt moral obligation to repay citizens who risk life by carrying out their duty as citizens to testify. It merely authorizes the provision of protection at the discretion of the Attorney General. The Attorney General has delegated his power over the Program to the United States Marshals Service. 28 C.F.R. § 0.111(c) (1980).
At present, the Marshals Service admits unincarcerated witnesses into the Program only after execution of "Memoranda of Understanding." Once a witness signs a Memorandum of Understanding, the Marshals Service assumes responsibility for his physical safety. The Service may either assign Marshals to guard the witness or give the witness a new identity and relocate him to another part of the country. If the witness is relocated, the Marshals may provide him with subsistence payments.
At the time plaintiff accepted protection under the Program, he and the Marshals Service entered into an oral agreement setting forth the conditions of his participation. The Marshals Service explicitly conditioned its offer of protection on plaintiff's "staying away from criminals, people that knew him and staying out of trouble." This restriction was imposed to ensure plaintiff's protection by his staying out of the public eye and away from those who threaten him. By allowing his picture, name and whereabouts to appear in the paper, his actions exposed him to those from whom the Marshals Service was attempting to protect him. Plaintiff admitted he was aware of the conditions of his continuance in the Program at the time of his actions.
Plaintiff claims he has a right to protection under the Program. His termination from the Program without just cause and without prior notice and a hearing, he argues, violates his substantive and procedural due process rights.
The Witness Protection Program is essentially an authorization for the Government to extend benefits in the form of protective facilities and other protection. It does not create a right to protection. If the Attorney General does not provide protective facilities, the witness is still protected to the same extent as other Americans called as witnesses.
Although plaintiff may be eligible to receive or to continue to receive the benefits of the Program, his participation in the Program is not constitutionally mandated. Cf. Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980); Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971). The Constitution does not require the establishment of the Witness Protection Program. In establishing a program to provide protection for witnesses against organized crime, Congress chose to grant to the Attorney General broad authority and discretion. With organized crime's feared disruption of the judicial system and the need of quick decisions without many people being involved, the Program bears a reasonable relation to the congressional purpose. See generally United States v. Coastal States Crude Gathering Co., 643 F.2d 1125, 1127-28 (5th Cir. 1981).
The Marshals Service discharged plaintiff from the Program after he had endangered himself by revealing his identity and location publicly. The Service's actions were not arbitrary and were based on sufficient cause when plaintiff's own actions rendered the Program's protection ineffective. Plaintiff's substantive due process rights are not involved in this case.
Plaintiff's procedural due process claim is that he was terminated without notice and an opportunity to be heard. To establish such a claim, a plaintiff must show he has been deprived of a protected liberty or property interest encompassed in the Due Process Clause of the Fifth Amendment. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569-70, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972).
A property interest is an entitlement to a Government benefit arising out of law or contract. It is not created by the Constitution. Roth, 408 U.S. at 577, 92 S.Ct. at 2709. The statute and legislative history repeatedly speaks of the legislation as "authorizing" the Attorney General to provide protection; it does not refer to a witness' entitlement to such protection. See, e.g., H.R.Rep.No.91-1549, 91st Cong., 2d Sess., reprinted in (1970) U.S.Code Cong. & Ad.News 4007, 4008, 4024. The history reveals that the Program gives "broad authority" to the Attorney General over substantive decisions.
Plaintiff points to the last sentence of section 502 which provides that one "availing himself of an offer to use such facilities may continue to use such facilities for so long as the Attorney General determines the jeopardy to his life or person continues." Pub.L.No. 91-452, 84 Stat. 933. This language, plaintiff...
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