J.S. v. T'Kach, Docket No. 11–1287–pr.

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtB.D. PARKER
Citation714 F.3d 99
PartiesJ.S., Plaintiff–Appellant, v. Stephen T'KACH, Director Office of Enforcement Operations (OEO), in his Individual Capacity, Eileen Ruleman, Chief of OEO, in her Individual Capacity, Jennifer Sequi, Coordinator of OEO, in her Individual Capacity, Donna Hill, Unit Manager F.C.I., Otisville, N.Y., in her Individual Capacity, and Louis Scialabba, Counselor at F.C.I. Otisville, N.Y., in his Individual Capacity, Defendants–Appellees.
Decision Date10 April 2013
Docket NumberDocket No. 11–1287–pr.

714 F.3d 99

J.S., Plaintiff–Appellant,
v.
Stephen T'KACH, Director Office of Enforcement Operations (OEO), in his Individual Capacity, Eileen Ruleman, Chief of OEO, in her Individual Capacity, Jennifer Sequi, Coordinator of OEO, in her Individual Capacity, Donna Hill, Unit Manager F.C.I., Otisville, N.Y., in her Individual Capacity, and Louis Scialabba, Counselor at F.C.I. Otisville, N.Y., in his Individual Capacity, Defendants–Appellees.
1

Docket No. 11–1287–pr.

United States Court of Appeals,
Second Circuit.

Argued: May 22, 2012.
Decided: April 10, 2013.


[714 F.3d 101]


Douglas F. Broder (Philip Rogers, on the brief) K & L Gates LLP, New York, NY, for Plaintiff–Appellant.

James Nicholas Boeving, Assistant United States Attorney (Sarah Sheive Normand, Assistant United States Attorney, on the brief) for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Defendants–Appellees.


Before: B.D. PARKER, HALL, and WALLACE,* Circuit Judges.

B.D. PARKER, J., delivered the opinion of the Court, in which WALLACE and HALL, JJ., joined. HALL, J., filed a concurring opinion, in which B.D. PARKER, J., joined.

B.D. PARKER, Circuit Judge:

Plaintiff-appellant, JS, formerly a participant in the Justice Department's Witness Security Program (“the Program”), brings this action pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), alleging that he was terminated from the Program without being afforded procedural due process. JS also alleges that following his termination he was placed in a Segregated Housing Unit (“SHU”) for 188 days and that this confinement violated due process and constituted cruel and unusual punishment. The United States District Court for the Southern District of New York (Buchwald, J.), relying on United States v. Gigante, 187 F.3d 261 (2d Cir.1999), held that it lacked subject matter jurisdiction over JS's termination claim and, without reaching the sufficiency of his solitary confinement claims, sua sponte dismissed the complaint. We AFFIRM the district court's dismissal of JS's due process claim with regard to his termination from the Program. However, we REMAND to permit JS to replead with respect to his confinement in the SHU.

[714 F.3d 102]

BACKGROUND

The following facts are drawn from the complaint, the allegations of which, at this stage, we accept as true. See Gonzalez v. Hasty, 651 F.3d 318, 321 (2d Cir.2011). JS is a federal prisoner who was incarcerated at the Federal Correctional Institution (“F.C.I.”) Otisville and who participated in the Program from December 2007 until March 2010. JS's participation was governed by a Witness Security Program Prisoner–Witness Agreement (the “written agreement”) and a Memorandum of Understanding (“MOU”) between JS and the Department of Justice.

The Attorney General has “broad discretion to administer” the Program. Doe v. Civiletti, 635 F.2d 88, 97 (2d Cir.1980); see also Bergmann v. United States, 689 F.2d 789, 793 (8th Cir.1982). This discretion is reflected throughout the governing statute. Whether or not a witness will be protected under the program is within the Attorney General's discretion. Abbott v. Petrovsky, 717 F.2d 1191, 1193 (8th Cir.1983); see also18 U.S.C. § 3521(a)(1) (“The Attorney General may provide for the relocation and other protection of a witness or a potential witness.” (emphasis added)). Once a witness is admitted, the type and level of protection afforded is also within the Attorney General's discretion, and may continue for as long as, in the judgment of the Attorney General, the danger to that person exists. 18 U.S.C. § 3521(b)(1). An individual's participation in the Program is voluntary, and an individual who joins is free to leave at any time. Hertzke v. Riley, 715 F.Supp. 117, 120 (E.D.Pa.), aff'd,891 F.2d 281 (3d Cir.1989).

Rule 2b of the written agreement provides that contacting or attempting to contact unauthorized individuals constitutes a breach of the agreement. The MOU provides a similar prohibition on unauthorized contacts. The written agreement states that “[f]ailure to adhere to this Agreement could result in termination of Program services without notice (emphasis in original). Neither the MOU nor the written agreement sets forth the procedures to be followed in the event the Justice Department's Office of Enforcement Operations (“OEO”) recommends termination.

In October 2009, the OEO notified JS that it was aware that he had made contact with unauthorized individuals in violation of Rule 2b. On March 9, 2010, the OEO sent JS a termination notice, stating that he had again violated Rule 2b by having unauthorized contacts with unauthorized individuals. The notice instructed JS on how to appeal his termination.

On March 11, 2010, JS filed a Notice of Appeal contending that his termination violated due process because OEO had failed to inform him of whom he was alleged to have contacted. He also contended that, because all his contacts had been approved by staff persons at the institution, he could not have violated the agreement. Louis Scialabba, a counselor at Otisville, reviewed the appeal and forwarded it to OEO with a recommendation that the termination be finalized. JS also wrote to Eileen Ruleman, Chief of OEO, on March 21 expressing his frustration at having been terminated without first being told the factual basis for the termination. OEO received that letter on April 3, 2010.

The record does not indicate that the OEO received JS's March 11 Notice of Appeal, and its written disposition suggests that OEO had received only JS's March 21 letter. That letter did not state the basis for his appeal but merely expressed his displeasure with having been terminated from the Program. OEO concluded that JS had failed to articulate a ground for appeal and affirmed his termination,

[714 F.3d 103]

finding that he had initiated contact on multiple occasions with unauthorized individuals.

On April 19, 2010, Donna Hill, a unit manager at Otisville, gave JS a copy of an order from Stephen T'Kach, Director of OEO, denying the appeal. JS then complained to Hill that OEO had failed to explain the factual basis for the allegations that led to his termination. Hill responded, “OEO doesn't have to go by the same rules as everybody else. They don't have to tell you what you did, you know what you did.” Hill then instructed JS to initial T'Kach's order. Immediately upon his initialing the order, prison officials placed JS in the SHU, where he was held for 188 days. In December 2010, JS initiated this Bivens action against T'Kach, Ruleman, OEO Coordinator Jennifer Segui, Hill, and Scialabba in their individual capacities alleging that his termination and placement in segregated housing violated his rights under the Fifth and Eighth Amendments.

In February 2011, prior to a responsive pleading, the district court sua sponte dismissed the complaint. The district court held that in light of 18 U.S.C. § 3521(f) which provides that “[t]he decision of the Attorney General to terminate [a witness's] protection [under the Program] shall not be subject to judicial review,” the court lacked subject matter jurisdiction over JS's due process claim. The court also ruled that the complaint otherwise failed to state a claim on which relief could be granted.2 This appeal followed.

DISCUSSION

We review a district court's sua sponte dismissal of an action and its complaint de novo. See McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir.2004). The complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Where, as in this case, the plaintiff is proceeding pro se, the district court must construe the complaint liberally, reading it with special solicitude and interpreting it to raise the strongest claims that it suggests. Harris v. City of New York, 607 F.3d 18, 24 (2d Cir.2010). Moreover, district courts generally should not dismiss a pro se complaint without granting the plaintiff leave to amend. See Shomo v. City of New York, 579 F.3d 176, 183 (2d Cir.2009); Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000).

A. Termination from the Program

JS alleges that his participation in the Program constituted a property interest and that he was wrongly deprived of that interest because he was not afforded an opportunity to meaningfully challenge the OEO's decision to terminate him. Specifically, he contends that because he was not informed of the factual basis supporting the termination until after his appeal was denied, he could not properly appeal the termination and the district court erred in concluding that it lacked

[714 F.3d 104]

jurisdiction to review his claims.3 We disagree.

The Program is governed by 18 U.S.C. § 3521, which the government argues, and the district court held, deprives federal courts of jurisdiction to consider JS's challenge to his termination. As noted, section 3521(f) provides that the Attorney General's decision to terminate protection is not subject to judicial review. Because subject-matter jurisdiction is “a tribunal's power to hear a case,” Morrison v. Nat'l Australia Bank Ltd., 561U.S. 247, 130 S.Ct. 2869, 2877, 177 L.Ed.2d 535 (2010) (internal quotation marks omitted), this provision leaves a district court without power or discretion to hear challenges to Program terminations. See Gigante, 187 F.3d at 262 (holding that a district court is “without jurisdiction to consider” challenges to Program terminations).

Even though this provision is clear and resort to legislative history is not required, we note that Congress's intention to bar judicial review of terminations and the process through which termination decisions are reached is clearly reflected in the legislative history of § 3521. The original draft of...

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99 practice notes
  • Cardiosom, L.L.C. v. United States, No. 08-533C
    • United States
    • Court of Federal Claims
    • April 30, 2014
    ...imposes a jurisdictional limitation when included in a statutory provision." Shweika, 723 F.3d atPage 14718 n.3 (citing J.S. v. T'Kach, 714 F.3d 99, 103-04 (2d Cir. 2013) (witness-relocation statute); Morris v. Office of Compliance, 608 F.3d 1344, 1347 (Fed. Cir. 2010) (Congressional Accoun......
  • Dechberry v. N.Y.C. Fire Dep't, No. 14–CV–2130 (KAM)(SMG).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • August 14, 2015
    ...plausibly allege that he was deprived of property without constitutionally adequate pre- or post-deprivation process." J.S. v. T'Kach, 714 F.3d 99, 105 (2d Cir.2013) (citing Ahlers v. Rabinowitz, 684 F.3d 53, 62 (2d Cir.2012) ). "[A] plaintiff must ‘first identify a property right, second s......
  • Jackson v. Cnty. of Nassau, 15-CV-7218(SJF)(AKT)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • April 13, 2016
    ...liberally, reading it with special solicitude and interpreting it to raise the strongest claims that it suggests[,]" J.S. v. T'Kach, 714 F.3d 99, 103 (2d Cir. 2013); accord Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011), a pro se complaint that is frivolous may nonetheless be dismissed ......
  • Spiteri v. Russo, 12-CV-2780 (MKB) (RLM)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • September 7, 2013
    ...plausibly allege that he was deprived of property without constitutionally adequate pre- or post-deprivation process." J.S. v. T'Kach, 714 F.3d 99, 105 (2d Cir. 2013). "In order to do this, a plaintiff must 'firstPage 42identify a property right, second show that the [government] has depriv......
  • Request a trial to view additional results
99 cases
  • Cardiosom, L.L.C. v. United States, No. 08-533C
    • United States
    • Court of Federal Claims
    • April 30, 2014
    ...imposes a jurisdictional limitation when included in a statutory provision." Shweika, 723 F.3d atPage 14718 n.3 (citing J.S. v. T'Kach, 714 F.3d 99, 103-04 (2d Cir. 2013) (witness-relocation statute); Morris v. Office of Compliance, 608 F.3d 1344, 1347 (Fed. Cir. 2010) (Congressional Accoun......
  • Dechberry v. N.Y.C. Fire Dep't, No. 14–CV–2130 (KAM)(SMG).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • August 14, 2015
    ...plausibly allege that he was deprived of property without constitutionally adequate pre- or post-deprivation process." J.S. v. T'Kach, 714 F.3d 99, 105 (2d Cir.2013) (citing Ahlers v. Rabinowitz, 684 F.3d 53, 62 (2d Cir.2012) ). "[A] plaintiff must ‘first identify a property right, second s......
  • Jackson v. Cnty. of Nassau, 15-CV-7218(SJF)(AKT)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • April 13, 2016
    ...liberally, reading it with special solicitude and interpreting it to raise the strongest claims that it suggests[,]" J.S. v. T'Kach, 714 F.3d 99, 103 (2d Cir. 2013); accord Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011), a pro se complaint that is frivolous may nonetheless be dismissed ......
  • Spiteri v. Russo, 12-CV-2780 (MKB) (RLM)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • September 7, 2013
    ...plausibly allege that he was deprived of property without constitutionally adequate pre- or post-deprivation process." J.S. v. T'Kach, 714 F.3d 99, 105 (2d Cir. 2013). "In order to do this, a plaintiff must 'firstPage 42identify a property right, second show that the [government] has depriv......
  • Request a trial to view additional results

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