No due process rights to Witness Protection Program

The Justice Department kicked someone out of the Witness Security Program because, it said, he broke the rules governing improper contacts with the wrong people. He challenged his expulsion from the program as a due process violation. He loses the case because courts are not allowed to entertain challenges like this.

The case is J.S. v. T'Kach, decided on April 10. The plaintiff's name is a secret because he must have testified against someone in return for witness protection. The government came to believe that plaintiff broke the rules while he was incarcerated at federal prison in Otisville, New York. He argues that the expulsion was unfair because the government did not tell him the name of the person with whom he had improper contact. Under normal circumstances, this would be a good due process case; you cannot deprive someone of a property interest without prior notice of what you allegedly did wrong.

This is not a normal case, though. The federal statute that governs this program says that the Attorney General decision to terminate protection is not subject to judicial review. The federal courts have no authority to resolve cases like this. The Attorney General can do whatever he wants. Another problem with the case is that due process claims cannot be predicated on an entitlement to which the government has discretion to revoke. There is thus no property interest here.

The holding in this case is not that remarkable. Things get interesting in the concurrence, though. Judge Parker wrote the majority opinion, to which Judges Hall and Wallace (sitting by designation) signed on. But Judge Parker filed a separate concurrence, to which Judge Hall also signed on. Judges Parker and Hall therefore submit a separate opinion to further flesh out their views. They are troubled that Congress did create procedural requirements to ensure that the Witness Security Program is administered fairly. Defendants apparently violated those requirements. While the Second Circuit says that plaintiff cannot pursue a due process claim, Judges Parker and Hall suggest that Congress revise the statute "to provide greater enforcement of the procedural protections it intended Program participants to have."