b'Proposed Changes in Operation of\nthe Witness Protection Program\nThe Attorney G eneral has broad discretion in adm inistering the W itness Protection Program estab\xc2\xad\nlished under T itle V o f the O rganized Crim e Control Act o f 1970, and his decisions in this\nconnection are not subject to judicial review under the statute.\nTwo proposed changes in the adm inistration o f the Program , dealing with the settlem ent o f existing\ndebts by p ersons entering the Program and with the custody of children brought into the Program ,\nare generally w ithin the A ttorney G eneral\xe2\x80\x99s authority. However, certain m odifications should be\nm ade to protect fully the due process n g h ts of persons entitled to litigate or enforce custody and\nvisitation rights against a participant in the Ptogram . W hether the proposed changes provide\nconstitutionally adequate protection for either creditors unable to satisfy their claim s because of\nthe governm ent\xe2\x80\x99s refusal to disclose the identity o f persons in the Program , or for persons w ithin\nthe Program w hose identity is disclosed to creditors, may depend on the facts of each case.\nThe proposed ch an g es would not subject the governm ent to liability under the Federal Tort C laim s\nA ct, because they com e within an exception to the waiver o f sovereign im m unity in that A ct. Nor\nwould they subject the governm ent to liability for contract dam ages under the H icker A ct.\n\nDecember 29, 1982\nMEMORANDUM OPINION FOR THE\nASSOCIATE ATTORNEY GENERAL\nThis memorandum responds to your request for our opinion concerning\nproposed changes in the operation of the Witness Protection Program (the\nProgram). For the reasons outlined in detail in this memorandum, we conclude\nthat all of the proposed changes are legally permissible, although we recommend\ncertain additional modifications in the handling of child custody litigation to\nalleviate certain constitutional concerns present in the Program even after adop\xc2\xad\ntion of the proposed changes.\nI. Description of Program and Proposed Changes\nUnder the Program, which was established under Title V of the Organized\nCrime Control Act of 1970, Pub. L. No. 91\xe2\x80\x94452, \xc2\xa7\xc2\xa7 501-504, 84 Stat. 922,\n933\xe2\x80\x9434 reprinted in notes prec. 18 U.S.C. \xc2\xa7 3481 (1976) (Crime Control Act),\nthe Attorney General is authorized to protect witnesses and families of witnesses\nwhose lives might be placed in danger as a result of their testimony against\norganized crime figures. The Attorney General has delegated the authority to\nprovide this protection to the United States Marshals Service (the Marshals\n821\n\n\x0cService). See 28 C.F.R. \xc2\xa7 0 .1 11(c) (1982). In discharging these duties, the\nMarshals Service ordinarily assigns marshals to guard participants or relocates\nthem with new identities in a new area of the country. The Service generally\nassures the continued security of participants who have been relocated by\nrefusing to disclose their new identity to members of the public.1 However, this\npolicy of concealing the new identities of relocated participants has led to two\ngeneral problems.\nThe first arises when witnesses have accumulated large debts before entering\nthe Program. When a witness enters the Program, he signs a form agreement,\ncalled a Memorandum of Understanding, in which he agrees to \xe2\x80\x9c settle\xe2\x80\x9d all of his\ndebts with creditors.2 Frequently, however, witnesses do not fulfill this pledge,\nand creditors attempting to sue on claims against a witness in the Program are\nunable to enforce any judgment against the witness because they cannot learn his\nnew location and identity. Currently, the Marshals Service will assist a creditor\nonly by forwarding his mail and legal process to the witness. If the witness\nrefuses to appear at any judicial proceeding or to satisfy any judgment, the\ncreditor lacks any avenue for securing relief.\nThe second problem arises when a participant is sued by an ex-spouse or other\nperson outside the Program seeking to obtain custody of a child who was brought\ninto the Program.3 In some cases, the witness or his spouse has legal custody of\nthe child when they enter the Program, but the ex-spouse sues to modify the prior\norder granting one of them custody. In other cases, children have been brought\ninto the Program in violation of a court order granting the ex-spouse custody. The\nMemorandum of Understanding signed by the witness specifically states that the\nMarshals Service will not permit the witness to bring children into the Program in\nviolation of a court order,4 but witnesses and/or their spouses have defied this\nprohibition without the knowledge of the Marshals Service or government\nattorneys.5 The Marshals Service facilitates child custody litigation by transmit\xc2\xad\nting mail and legal process to the witness and spouse, by assuring the security of\nany legal proceedings, and by paying the counsel fees of impecunious witnesses\nand spouses. It does not currently disclose the new identity of a witness or his\nspouse, however, even though the witness may refuse to participate in any\njudicial proceeding or to conform to any judgment.\nAny solution to these recurrent problems must reconcile the needs of the\ngovernment, witnesses, and the spouses of witnesses to conceal the participants\xe2\x80\x99\nnew identities with the right of creditors and ex-spouses to satisfy their legitimate\n1 The M arshals Service will disclose a participant\'s new identity to a law enforcement official seeking to arrest the\nparticipant for a felony committed before his entrance into the Program.\n2 M emorandum of Understanding at 5 (supplied with opinion request)\n3 We generally will use the term \xe2\x80\x9c ex-spouse" throughout this memorandum We assume, however, that custody\nsuits may also be brought by persons who are not ex-spouses but who nevertheless have legal custody or visitation\nrights. In addiuon, for the sake o f convenience, we will refer to the ex-spouse as female and the witness as male,\nalthough the opposite could just as well be true.\n4 See Memorandum of Understanding at 5.\n5 See, e.g , Salmeron v Gover, No. 81-047 (D .D .C 1981) (M arshals Service and ex-spouse of witness agreed in\na consent decree approved by the court to return child brought into Program by witness in violation of a state custody\norder)\n\n822\n\n\x0clegal claims. Accordingly, it has been proposed that the Marshals Service adopt\nthe following policy. First, in cases where creditors bring suit against a witness,\nor where ex-spouses bring suit against a witness or his spouse, the Marshals\nService would arrange for a secure courtroom, service of process on the defend\xc2\xad\nant, and reimbursement of counsel fees of an indigent defendant. Second, in the\nsituation where an ex-spouse obtains \xe2\x80\x9c legal custody\xe2\x80\x9d of a child, the Marshals\nService would accept service of the relevant court order, arrange for the order to\nbe sealed and validated for the ex-spouse in the jurisdiction where the child\nresides, and permit the local sheriff to execute the order. The Marshals Service\nwould not disclose to the ex-spouse the new identity or the location of the child. It\nwould also not inform the sheriff that he was seizing a child who was living with a\nwitness and/or his spouse. If the security of the witness or his spouse were\nthreatened by the return of an older child who knew their new identities, they\napparently would be relocated. Finally, in the circumstance where a creditor\nsecures a \xe2\x80\x9c money judgment\xe2\x80\x9d against the witness which the witness refuses to\nsatisfy, officials of the Department of Justice would assume the authority, when\njustice and fairness requires, to disclose the identity and location of the witness to\nthe creditor.6 Their decision would be based on a weighing of the following\nfactors: \xe2\x80\x9c the size of the judgment, the circumstances of the particular swindle or\nother act, the witnesses\xe2\x80\x99 continued need to law enforcement, as well as other\nfactors in the particular case,\xe2\x80\x9d which we assume would include the financial\nability of the witness to satisfy the legal claims.7\nYou have asked us to examine whether any of the proposed changes would\nviolate the Memorandum of Understanding or any other provision of law. The\nfollowing five legal issues which are raised by the proposal and the operation of\nthe Program are discussed in detail in this memorandum.\nFirst, does the Crime Control Act authorize the Attorney General to adopt the\nproposed changes? For reasons outlined below, we conclude that the Attorney\nGeneral has the statutory authority to adopt these procedures.\nSecond, would the proposed changes subject the government to liability under\nthe Tort Claims Act, 28 U.S.C. \xc2\xa7\xc2\xa7 1346(b), 2671-2680, for any injury that a\nparticipant might sustain as a result of the disclosure of his identity? Under the\nTort Claims Act, the federal government has waived its immunity from suit in\ncertain circumstances for the violation of state tort law by its employees. In our\nview, however, the proposed changes would not subject the government to tort\nliability because they come within an exception to the waiver of sovereign\nimmunity in the Tort Claims Act.\nThird, would the proposed changes subject the government to liability under\nthe Tucker Act, 28 U.S.C. \xc2\xa7\xc2\xa7 1346(a)(2) and 1491, which waives the federal\ngovernment\xe2\x80\x99s immunity from damages for its violation of the terms of certain of\n6 fo r obvious reasons, we recommend that any regulation which is ultimately adopted for the Program provide\nthat these decisions be made by persons holding particular offices, rather than providing that specific individuals\nmake these decisions.\n7 The proposal does not consider the hypothetical situation in which a creditor only sues a non-witness\nparticipant. Because a non-witness participant is normally a family member of the witness, and the witness might be\nresponsible for his debts under state law, these suits may well become suits against the witness himself.\n\n823\n\n\x0cits contracts? If the Memorandum of Understanding is an enforceable contract\nand precludes any of the proposed changes, the government could be liable for\ndamages under the Act. We conclude, however, that even assuming the Memo\xc2\xad\nrandum of Understanding is an enforceable agreement, the proposed changes\nwould not subject the government to contract damages because they would not\nviolate the terms of the Memorandum of Understanding.\nFourth, would the proposed changes in the treatment of custody cases, al\xc2\xad\nthough not themselves illegal, go far enough in protecting the constitutional\nrights of ex-spouses in their relationship with their children in the Program? In\nour view, while the proposed changes alleviate many of the constitutional\nproblems in the operation of the Program, they do not adequately protect the\nconstitutional rights of ex-spouses when the government\xe2\x80\x99s hiding of a witness\nprecludes the ex-spouse from litigating her custody and visitation rights to a\nchild. Accordingly, we recommend that, in additioh to the proposed procedures,\nthe Marshals Service consider disclosing the participant\xe2\x80\x99s new identity in certain\ncircumstances.\nFinally, would the Program, along with the proposed modifications, ade\xc2\xad\nquately protect the constitutional rights of creditors who are unable to satisfy their\nclaims because the Marshals Service will not disclose the identity of the debtor/\nwitness in their cases? As we have said, under the proposed modifications, the\nMarshals Service would disclose witnesses\xe2\x80\x99 identities to creditors in some\negregious cases, but not in all cases. Since resolution of this legal question is\ndependent on the factual circumstances in which such claims arise, we are not in\na position to state a categorical general conclusion to this class of questions. This\nissue should be reexamined after the proposed changes have been adopted and\nthe courts have had occasion to examine this question in concrete factual\nsituations arising under the Program. We cannot say at this time, however, that the\nproposed modifications would not adequately protect the constitutional rights of\ncreditors.\nII.\nAuthority to Adopt the Proposed\nProcedures Under the Crime Control Act\nIn authorizing the Attorney General to establish and administer the Program,\nthe Crime Control Act states in pertinent part:\nSec. 501. The Attorney General of the United States is authorized\nto provide for the security of Government witnesses, potential\nGovernment witnesses, and the families of Government witnesses\nand potential witnesses in legal proceedings against any person\nalleged to have participated in an organized criminal activity.\nSec. 502. The Attorney General of the United States is author\xc2\xad\nized to rent, purchase, modify, or remodel protected housing\nfacilities and to otherwise offer to provide for the health, safety,\nand welfare of witnesses and persons intended to be called as\nGovernment witnesses, and the families of witnesses and persons\n824\n\n\x0cintended to be called as Government witnesses in legal proceed\xc2\xad\nings instituted against any person alleged to have participated in\nan organized criminal activity whenever, in his judgment, testi\xc2\xad\nmony from, or a willingness to testify by, such a witness would\nplace his life or person, or the life or person of a member of his\nfamily or household, in jeopardy. Any person availing himself of\nan offer by the Attorney General to use such facilities may\ncontinue to use such facilities for as long as the Attorney General\ndetermines the jeopardy to his life or person continues.\nReprinted in notes prec. 18 U.S.C. \xc2\xa7 3481. Under these provisions, the admin\xc2\xad\n\nistration of the Program is left largely to the \xe2\x80\x9cjudgment\xe2\x80\x9d and \xe2\x80\x9c determin[ation]\xe2\x80\x9d\nof the Attorney General. He is not required to protect any witness. He may\n\xe2\x80\x9c offer\xe2\x80\x9d to protect a witness and his family \xe2\x80\x9c whenever, in his judgm ent,\xe2\x80\x9d the\nwitness\xe2\x80\x99 testimony would place \xe2\x80\x9c his life or person, or the life or person of a\nmember of his family or household, in jeopardy.\xe2\x80\x9d Once a person has accepted an\n\xe2\x80\x9c offer\xe2\x80\x9d of protection, the person \xe2\x80\x9c may\xe2\x80\x9d only continue to use government\n\xe2\x80\x9c facilities for as long as the Attorney General determines the jeopardy to his life\nor person continues.\xe2\x80\x9d As the House Report on this provision observed, Congress\nintended to \xe2\x80\x9c give[ ] the Attorney General broad authority to determine the\nparticular facilities to be afforded and the length of time the facilities should be\navailable.\xe2\x80\x9d H.R. Rep. No. 1549,91st Cong., 2d Sess. 48 (1970). S eea lso S . Rep.\nNo. 617, 91st Cong., 1st Sess. 59-60 (1969).\nThis broad discretion of the Attorney General in administering the Program is\nunderscored by Congress\xe2\x80\x99 failure to provide for witnesses or their families to\nbring suit to be accepted into the Program, to receive any particular type of\nprotection, or to prevent termination from the Program. Moreover, no such intent\nis implicit from the structure and language of the statute.8 Thus, the Act does not\n8 In Cort v. Ash, 422 U S. 66 ( 1975), the Supreme Court identified four factors in determining whether Congress\nhad implicitly intended to create a private right of action under a statute. Three of these factors militate against\nfinding an implied private cause of action under the Crime Control Act.\nThe first factor is whether the plaintiff is \xe2\x80\x9c \xe2\x80\x98one of the class for whose especial benefit the statute was enacted\'\n\xe2\x80\x94 that is, does the statute create a federal right in favor of the plaintiff?\xe2\x80\x9d Id. at 78 (Emphasis in original.) The\nCrime Control Act does not give any "especial" class of persons a nght to protection; it merely authorizes the\nAttorney General to offer protection if he believes the witness\' testimony might place the witness or his family in\njeopardy. Once a witness has been selected for the Program, he \xe2\x80\x9c may\xe2\x80\x9d continue to use its \xe2\x80\x9c facilities\xe2\x80\x9d for as long as\nthe Attorney General determines his life is still in jeopardy. But this does not create a \xe2\x80\x9c right\xe2\x80\x9d to protection in specific\n\xe2\x80\x9c nght or duty creating language [which] has generally been the most accurate indicator of the propriety of\nimplication of a cause of action.\xe2\x80\x9d Cannon v. University c f Chicago, 441 U S. 677, 690 n 13 (1979). Rather than\ndeclaring that the witness \xe2\x80\x9c shall have a right\xe2\x80\x9d to protection in the specified circumstances, as Congress has provided\nin other cases where the Supreme Court has found an implied cause of action, see id., the Act merely states that he\n\xe2\x80\x9c may\xe2\x80\x9d receive protection when, according to the subjective judgment of the Attorney General, the witness\xe2\x80\x99 life or\nperson continues to be in jeopardy In this context, we do not believe that the statute can be said to \xe2\x80\x9c create a federal\nnght in the favor of the plaintiff.\xe2\x80\x9d Cort v. Ash, 422 U.S at 78 C f Universities Research Assn v Coutu, 450 U S.\n754.772 (1981) ( \xe2\x80\x9c \xe2\x80\x98far less reason*\xe2\x80\x9d to imply cause of action \xe2\x80\x9c where Congress, rather than drafting the legislation\n\xe2\x80\x98with an unmistakeable focus on the benefited class,\' instead has framed the statute simply as a general prohibition\nor a command to a federal agency\xe2\x80\x9d ) (quoting Cannon v. University o f Chicago, 441 U S. at 690-92).\nThe second and third factors can be analyzed together They are whether there is \xe2\x80\x9c any indication of legislative\nintent, explicit o r implicit, either to create such a remedy or deny one;\xe2\x80\x9d and whether it is \xe2\x80\x9c consistent with the\nunderlying purposes of the legislative scheme to imply such a remedy for the plaintiff." Cort v. Ash, 422 U .S. at 78.\nAs discussed supra, the language and the legislative history of the Crime Control Act reveal that Congress intended\nto grant the Attorney General broad discretion in administering the program. Moreover, the substantive standard\nC ontinued\n\n825\n\n\x0cmake decisions of the Attorney General in administering the Program subject to\njudicial review under the statute. See Garcia v. United States, 666 F.2d at 963;\nMelo-Tone Vending v. United States, 666 F.2d at 690; Leonhard v. United States,\n633 F.2d at 623. Cf. D oe v. United States, 224 Ct. Cl. 632 (1980).9\nIn determining whether this broad grant of authority permits adoption of all of\nthe proposed changes, two types of decisions in the operation of the Program\nmust be separately considered.\nA. Selection c f W itnesses and Coordination c f Their Protection\n\nThe first type of decision relates generally to the Attorney General\xe2\x80\x99s selection\nof persons to participate in the Program and the coordination of their protection\nonce they have been selected. There appears to be little doubt that the Crime\nControl Act gives the Attorney General the widest authority to adopt those\nproposals that directly involve only these issues. Thus, the Attorney General\xe2\x80\x99s\ndelegee in the exercise of this authority\xe2\x80\x94 the Marshals Service\xe2\x80\x94 would clearly\nbe permitted to arrange for service of process on participants and to provide\nsecure courtrooms for participants to litigate their cases. The Crime Control Act\nwould also authorize the payment of attorney fees of impecunious participants in\nthe circumstances which have been recommended, although this conclusion\nrequires a somewhat more detailed explanation.\nThe Act grants the Marshals Service the authority to provide for the \xe2\x80\x9c health,\nsafety, and welfare\xe2\x80\x9d of witnesses. Under this authority, the Service currently\nwhich the Attorney General is to apply in making his decisions\xe2\x80\x94jeopardy to the witness\xe2\x80\x99 life or person\xe2\x80\x94 is not\neasily am enable to judicial scrutiny. Both of these facts suggest that Congress did not intend the Attorney General\'s\ndecisions to be subjected to judicial review. The final factor\xe2\x80\x94 w hether this is a cause of action \xe2\x80\x9c tradiUonally\nrelegated to state law,\xe2\x80\x9d id.\xe2\x80\x94 is inapplicable to this case.\nBecause three of the four factors cited by the C ourt in Cort v. A sh weigh decidedly against finding a private right of\naction under the Program, we believe, as the First, Second and Fifth Circuits held m Melo-Tone Vending v. United\nStates, 666 F 2d 6 8 7 ,6 9 0 (1st Cir. 1981); Leonhard v UnitedStates, 633 F.2d 599,623 (2d Cir 1980), cert, denied\n451 U .S . 908 (1981); and Garcia v. United States, 666 F.2d 960, 963 (5th Cir. 1982), that neither a creditor, ex\xc2\xad\nspouse, o r a witness, respectively, can bring suit under the Act.\n9 Two panels in the Second Circuit have suggested an alternative reason why the federal government may not be\nsued under the Crime Control Act. Congress, in their view, has not waived the government\xe2\x80\x99s sovereign immunity to\nsuit under the Act. See D oe v Civiletti, 635 F.2d 8 8 ,9 4 (2d Cir 1980); Leonhard v. United States, 633 F.2d at 623.\nW hile resolution of the sovereign immunity issue would not affect the government\xe2\x80\x99s liability because we believe\nthere is no private right o f action under the Act, see Sea-Land Service v. Alaska Railroad, 659 F.2d 243, 245 (D.C.\nCir. 1981), cert, denied, 455 U .S. 9 1 9 (1 9 8 2 );/////v U nitedStates, 571 F.2d 1098,1102-03 (9thCir. 1978), there is\nreason to doubt that courts outside the Second Circuit would find the government immune from suit in these\ncircumstances. The courts in D oe and Leonhard reasoned that the Crime Control Act does not waive sovereign\nimmunity for suits brought against the government under the Act, and that the general waiver of sovereign immunity\nfor injunctive relief in the 1976 amendment to \xc2\xa7 702 of the Administrative Procedures Act does not waive immunity\nin cases, such as those brought under the Crime Control Act, where jurisdiction anses under 28 U .S.C \xc2\xa7 1331, the\ngeneral federal question provision. See also Estate c f Watson v Blumenthal, 586 F.2d 925, 932 (2d Cir. 1978)\n(interpreting waiver o f immunity under \xc2\xa7 702 not to apply to cases arising under \xc2\xa7 1331). Numerous courts outside\nthe Second C ircuit, however, have rejected this narrow interpretation of the 1976 amendment and have held that it\nwaives sovereign immunity to injunctive relief for all suits brought against the federal government. See Schnapper\nv. Foley, 667 F.2d 102 (D .C . Cir. 1981), cert, denied, 455 U.S. 948 (1982); Sea-Land Service v. Alaska Railroad,\n659 F.2d at 245 n .2; Newsom v. Vanderbilt University, 653 F 2d 1100 (6th Cir. 1981 );B ellerv Middendorf, 632 F 2d\n788 (9th Cir. 1980), cert, denied, 452 U.S. 905 (1981); Sheehan v Arm y and Air Force Exchange Service, 619 F. 2d\n1132. 1139 (5th C ir 1980), rev\xe2\x80\x99d o n other grounds, 4 5 6 U .S . 7 2 8 ,7 3 3 n.3 (1982); Jttfee v UnitedStates. 592 F.2d\n712, 7 1 8 -1 9 (3d Cir.), cert, denied. 441 U .S . 961 (1979); H ilt v. U nited States. 571 F 2 d at 1102. Thus, it is\nprobable that at least these courts would find that the federal government has waived its sovereign immunity to\ninjunctive relief under the Crime Control Act.\n\n826\n\n\x0cmakes subsistence payments to some participants when they are first relocated.\nThe hiring of an attorney appears to be permissible under this same authority.\nMore importantly, however, the hiring of an attorney is frequently compelled, in\nour view, by the witness\xe2\x80\x99 cooperation with the government and is thus related to\nthe Attorney General\xe2\x80\x99s statutorily authorized goal of protecting the participant\xe2\x80\x99s\nnew identity. Very likely, for example, some custody disputes occur because\nrelocation of a participant effectively extinguishes the visitation rights of the non\xc2\xad\ncustodial parent. The participant\xe2\x80\x99s financial situation may deteriorate as a result\nof his rapid liquidation of assets and relocation. Once a suit has been brought in\nthese cases, moreover, the safety of the participant may require him to hire an\noutside attorney, rather than to interview potential witnesses or present his case\nhimself. Finally, the resolution of custody and debtor disputes may be more\nimportant because of the participant\xe2\x80\x99s entry into the Program. A participant who\nloses custody of a child may be effectively foreclosed from ever seeing his child\nagain. On the other hand, a participant\xe2\x80\x99s loss of a suit to a creditor could lead the\nMarshals Service to disclose his new identity under the proposed procedures, in\nall of these cases, therefore, the participant\xe2\x80\x99s need to hire an attorney may result\ndirectly or indirectly from the danger to his life resulting from his cooperation\nwith the government. Accordingly, we believe that the Crime Control Act\nauthorizes but does not require the Attorney General to pay the attorneys\xe2\x80\x99 fees of\nimpecunious participants under the circumstances you have described.\nAlthough several statutes restrict the employment of private attorneys by the\nfederal government, we do not believe they would prohibit the payment of private\nattorneys\xe2\x80\x99 fees under these circumstances. These provisions require that, except\nas authorized by law, officers of the Department of Justice must conduct all\nlitigation \xe2\x80\x9c in which the United States, an agency, or officer thereof is a party, o ris\ninterested, and securing evidence therefor. . . .\xe2\x80\x9d 28 U.S.C. \xc2\xa7 516. See also 28\nU.S.C. \xc2\xa7 51 9 .10 In the custody and debtor disputes which are described in the\nproposal, however, neither the United States, an agency, or an employee would\nbe a party or an interested person.\nB. Termination of Witnesses from the Program\n\nThe second type of proposed change in the operation of the Program concerns\nthe termination of witnesses or members of their families from the Program, such\nas when a witness\xe2\x80\x99 identity is disclosed to a creditor or a child is returned to an ex\xc2\xad\nspouse. These actions raise different legal issues because the Act specifically\nprovides that a person who has entered the Program \xe2\x80\x9c may continue to use such\nfacilities for as long as the Attorney General determines the jeopardy to his life or\nperson continues.\xe2\x80\x9d Reprinted in notes prec. 18 U.S.C. \xc2\xa7 3481. This clause does\nnot restrict the Attorney General\xe2\x80\x99s authority to oversee the \xe2\x80\x9c facilities\xe2\x80\x9d provided\nthe witness and his family\xe2\x80\x94 that is, to determine the nature and extent of their\n10 The Department o f Justice has recognized a narrow exception to this prohibition where a conflict of interest\nrequires the employment of outside counsel See 28 C F.R. \xc2\xa7\xc2\xa7 50.15(a)(5) & (a)(6), 50 16 (1982)\n\n827\n\n\x0cprotection. An argument could perhaps be made, however, that it restricts the\nAttorney General\xe2\x80\x99s right to terminate a witness and his family from the Program\nby requiring the Attorney General to determine that their lives or persons are no\nlonger in jeopardy. While the distinction between terminating a witness\xe2\x80\x99 par\xc2\xad\nticipation and changing the nature of his protection is not always clear, disclosing\na participant\xe2\x80\x99s new identity or arranging the return of a child would normally\nconstitute termination from the Program, assuming no further provision was\nmade for their protection after disclosure.\nDespite the ambiguity of the language in the statute, for two reasons we believe\nthat the Attorney General is clearly authorized to terminate witnesses from the\nProgram in the circumstances that have been proposed.\nFirst, the section itself only provides that the witness \xe2\x80\x9c may\xe2\x80\x9d use the facilities\nso long as the Attorney General believes his life remains in danger. By using the\nword \xe2\x80\x9c may,\xe2\x80\x9d Congress appears to have intended only that protection of a witness\ncould continue after any trial for as long as the witness\xe2\x80\x99 life remained in danger,\nnot that the Attorney General was required to provide such protection. See 116\nCong. Rec. 35292 (1970) (remarks of Rep. Poff). The only court to consider this\nquestion, G arcia v. United States, 666 F.2d at 963-64, has found that this\nsentence does not limit the Attorney General\xe2\x80\x99s otherwise broad discretion to\ndecide when to terminate participants from the Program. We agree with this\ndecision, although it is possible that other courts could reach an opposite\nconclusion if the government were to terminate a witness on patently unreason\xc2\xad\nable grounds."\nSecond, even if the Attorney General\xe2\x80\x99s authority to terminate a witness\xe2\x80\x99\nparticipation were interpreted to be limited by this language, we do not believe\nthe clause prohibits the Attorney General from disclosing a participant\xe2\x80\x99s identity\nor arranging for the return of a child under the circumstances which have been\nproposed. With respect to the witness, the Attorney General\xe2\x80\x99s authority to\ndisclose his new identity to a creditor follows implicitly from the Attorney\nGeneral\xe2\x80\x99s power to impose and enforce regulations in the administration of the\nProgram. For example, the Attorney General can clearly condition a witness\xe2\x80\x99\nacceptance into the Program, as he currently does through the Memorandum of\nUnderstanding, on the witness\xe2\x80\x99 pledge to settle all prior debts. Once the Attorney\nGeneral has accepted a witness into the Program, he may insist that previously\nunsettled debts be satisfied. Such a restriction is not qualitatively different from\nmany others imposed by the Marshals Office, such as prohibiting a participant\nfrom returning to his old address, or using his new identity to commit fraud. In\nlight of the Attorney General\xe2\x80\x99s authority to impose these requirements, it follows\nlogically that he should be able to take reasonable actions to enforce them. This\nwould necessarily include the right to disclose the identity of a witness in those\n11 The witness in Garcia had repeatedly and flagrantly violated the terms of his protection by giving numerous\npress interviews revealing his new identity and location. See 666 F. 2d at 962. He was discharged and readmitted into\nthe Program three times Because the language o f the statute and the legislative history are somewhat ambiguous, we\ncannot exclude the possibility that anothercourt confronted with a more compelling factual circumstance would find\nthe Attorney General\'s authonty more restncted\n\n828\n\n\x0cegregious cases where the witness is using the Program as a shield against a\nlegitimate creditor and where there is no reasonable alternative for satisfying the\nclaim .12\nThe Attorney General would also have the authority to arrange for the return of\na child to an ex-spouse with lawful custody, although for somewhat different\nreasons.13 If a state court has granted the ex-spouse custody, and that decision is\nlegally enforceable against the participant, the Attorney General is not terminat\xc2\xad\ning the child from the Program by arranging his return. Rather, the child, whose\nlegal interests are protected by the state court and the parent with custody, is in\neffect withdrawing from the Program. As a matter of policy, we would of course\nstrongly advise that the Attorney General inform the state court of any possible\ndanger to the child, especially where the custody decision was rendered before\nthe child entered the Program. The Crime Control Act, however, would not\nprohibit the Attorney General from complying with any resulting decision that\nthe ex-spouse had custody. Accordingly, the return of the child, like the dis\xc2\xad\nclosure of a witness\xe2\x80\x99 new identity to a creditor, would not be prohibited by the\nCrime Control Act, whether or not the provision described above is interpreted to\nplace a specific limitation on the Attorney General\xe2\x80\x99s authority to terminate a\nparticipant from the Program.\nIII. Potential Government Liability to a Participant Under the Federal\nTort Claims Act\nAssuming the Crime Control Act authorizes the Attorney General to adopt the\nproposed procedures, the important question remains whether the Program,\nalong with the proposed changes, violates any other statute or constitutional\nprovision. We begin this examination with the Federal Tort Claims Act, 28\nU.S.C. \xc2\xa7\xc2\xa7 1346(b), 2671-80.\nThe Federal Tort Claims Act generally waives the federal government\xe2\x80\x99s\nimmunity for tort claims \xe2\x80\x9c where the United States, if a private person, would be\nliable to the claimant in accordance with the law of the place where the act or\nomission occurred.\xe2\x80\x9d 28 U.S.C. \xc2\xa7 1346(b). Several states have recognized that\nthe government can be held liable in tort for failing to provide adequate protection\nfor a government informant whom officials had reason to believe was in danger\nbecause of the assistance he provided to the government. See, e.g ., G ardner v.\nVillage c f Chicago Ridge, 219 N.E.2d 147 (111. 1966); Schuster v. City cfN ew\nYork, 154 N .E.2d 534 (N.Y. 1958); Chapman v. City c f Philadelphia, 434 A.2d\n753 (Pa. Super. 1981). Federal courts have recognized the federal government\nmight be held liable under the Federal Tort Claims Act for failing to protect an\ninformant under the same theory. See M iller v. United States, 530 F. Supp. 611,\n12 We presume that in the circumstances you have described there would be no other reasonable means for\nenforcing the money judgment against the witness without disclosing his new identity\n13 The Attorney General\'s authority to discipline those who ignore his regulations on child custody does not\nappear independently to justify returning a child to an ex-spouse insofar as the child\'s rights are concerned. The child\nhas not violated any of the Program\'s requirements. Nor can the child avoid any sanctions, as the participant can,\nsimply by complying with the directions of the Marshals Service\n\n829\n\n\x0c615 (E.D. Pa. 1982); Crain v. Krehbiel, 443 F. Supp. 202, 214 (N.D. Cal. 1977);\nSwanner v. U nited States, 309 F. Supp. 1183, 1187-88 (M.D. Ala. 1970). Cf.\nLeonhard v. U nited States, 633 F.2d at 625 n.39. Thus, any of the proposed\nprocedures which subjected the participant to increased danger, such as dis\xc2\xad\nclosure of his new identity to a creditor, might give rise to a cause of action under\nstate tort law if the participant were subsequently harmed.14\nThe proposed procedures would not themselves subject the government to\nliability, however, because they come within a specific exception to the waiver of\nsovereign immunity under the Federal Tort Claims Act. Section 2680(a) states\nthat the waiver of immunity does not apply to\n[a]ny claim based upon an act or omission of an employee of the\nGovernment, exercising due care, in the execution c f a statute or\nregulation, whether or not such statute o r regulation be valid, or\nbased upon the exercise o r performance or the failure to exercise\nor perform a discretionary function or duty on the part of a federal\nagency or an employee of the Government, whether or not the\ndiscretion involved be abused.\n(Emphasis added.) Under this provision, the federal government is immune from\ntort liability for its adoption of regulations, or the execution of regulations by\nofficials exercising due care. See Dalehite v. United States, 346 U.S. 15, 33\n(1953); M iller v. United States, 583 F.2d 857, 868 (6th Cir. 1978); Powell v.\nUnited States, 233 F.2d, 851,854 (10th Cir. 1956). By including this exemption,\nCongress intended that \xe2\x80\x9c the legality of a rule or regulation should [not] be tested\nthrough the medium of a damage suit for tort.\xe2\x80\x9d H.R. Rep. No. 1287,79th C ong.,\n1st Sess. 6 (1945). Thus, assuming the proposed changes are adopted as regula\xc2\xad\ntions, as we presume they would be,15 they would not independently subject the\nfederal government to tort liability.16 Only the failure of Department officials to\nexercise due care in implementing the regulations of the Witness Protection\nProgram could subject the government to tort liability, see Hatahley v. United\nStates, 351 U.S. 173, 181 (1956), and we see no basis for refusing to adopt an\notherwise valid regulation providing for disclosure under the circumstances\ndiscussed here.\n14 Alternatively, an ex-spouse o r witness m ight bring suit for tortious interference with his or her relationship with\na child admitted o r terminated from the Program. See Ruffalo v. Civiletti, 539 F Supp 949, 953 (W D. Mo 1982).\n15 We caution that the adoption of new procedures for the Program should be undertaken only after notice and\ncomment. See 5 U S.C . \xc2\xa7 553\n16 Because we assume the proposed procedures will be adopted as regulations, we need not address whether they\nwould fall within the other exception in \xc2\xa7 2680(a)\xe2\x80\x94 the \xe2\x80\x9c discretionary function\xe2\x80\x9d exception Under this exception\nthe federal government is immune from liability for the decisions of officials performing a \xe2\x80\x9c discretionary function\nor duty\xe2\x80\x9d o r carrying out directions or policies that were formulated in the exercise of such discretion. See Dalehite v.\nUnited States. 346 U S. at 3 4-36. We note, however, that two courts have found that at least certain types of\ndecisions made in the operation of the Program may not be protected by this exception See Ruffalo v. Civiletti. 539\nF. Supp. at 953 (allegedly negligent decision to include child of witness in Program); Miller v. United States. 530 F.\nSupp. at 615 (allegedly negligent protection o f a witness) But cf. Bergmann v. UnitedStates, 689 F.2d789(8th Cir.\n1982) (government\'s negligent selection and supervision of protected witness in the Program held to be within\ndiscretionary function exception), Leonhard v. United States, 633 F 2d at 625 (decision not to give continued\nsupport to or supervise persons in Program within discretionary function exception)\n\n830\n\n\x0cIV. Potential Government Liability to a Participant Under\nthe l\\icker Act: the Memorandum of Understanding\nThe other basis upon which the proposed procedures might subject the\ngovernment to statutory liability is the Tucker Act, 28 U.S.C. \xc2\xa7\xc2\xa7 1346(a)(2) and\n1491. Under the Tucker Act, the federal government has generally waived its\nsovereign immunity for money damages for breach of contract. See Hatzlachh\nSupply v. UnitedStates, 444 U.S. 460,463,465 n.5,466 (1980). Thus, the form\nMemorandum of Understanding, signed by a representative of the Marshals\nService and the witness, could arguably subject the government to liability for\nmoney damages if it is a binding contract and if it prohibits the Marshals Service\nfrom disclosing the witness\xe2\x80\x99 identity in the circumstances which it has been\nproposed to disclose his identity.\nA review of the terms of the Memorandum of Understanding currently used by\nthe Marshals Service, however, reveals that it would not prohibit disclosure under\nthe proposed procedures, even if it were a binding agreement, an issue we need\nnot decide. The only proposed procedures that the Memorandum of Understand\xc2\xad\ning might affect are those that could place a witness in danger, namely, disclosure\nof his identity to a creditor or return of a child to an ex-spouse. Yet, the\nMemorandum specifically provides that the government will not shield a witness\nfrom the claims of his creditors or from ex-spouses seeking custody of children.\nThe introduction states that the Marshals Service \xe2\x80\x9c will not shield the witness\nfrom civil or criminal litigation initiated prior to or subsequent to entry into the\nProgram\xe2\x80\x9d (p. 2). The section on \xe2\x80\x9c Debts and Related Legal Matters\xe2\x80\x9d provides\nthat the failure to settle all debts before entering the Program \xe2\x80\x9c will jeopardize the\nwitness\xe2\x80\x99 participation in the Witness Protection Program since the Marshals\nService will not shield witnesses from legitimate creditors\xe2\x80\x9d (p. 5). Similarly, in\nthe same section, the Memorandum states that \xe2\x80\x9c [c]ourt orders which grant\ncustody of minor children to persons other than the witness who is being\nrelocated will be honored and said MINOR CHILDREN WILL NOT be relo\xc2\xad\ncated in violation of the court order\xe2\x80\x9d (p. 5) (emphasis in original). Finally, the\nAttorney General retains the right under the Memorandum to terminate any\nwitness\xe2\x80\x99 participation in the Program for reasons he deems \xe2\x80\x9c appropriate\xe2\x80\x9d (p. 1).\nThis would presumably include the authority to disclose the witness\xe2\x80\x99 location to a\ncreditor or his child\xe2\x80\x99s location to a sheriff seeking to enforce a child custody\ndecree. In light of all of these provisions, the Memorandum of Understanding, in\nour view, would not subject the Marshals Service to liability for taking the actions\ndiscussed in your proposed procedures.\nDespite this conclusion, we recommend that the Marshals Service amend the\nMemorandum of Understanding to set forth in detail the broad powers of the\nAttorney General to terminate participants from the Program, including, but not\nlimited to, those situations covered in the proposed changes. All new entrants to\nthe Program should be required to sign this form, and the Marshals Service\nshould also attempt to have persons who are already participating in the Program\nto sign such an amended form. This would assure that all participants have the\n831\n\n\x0cclearest notice possible of the obligations of their participation in the Program,\nthat they would be cognizant o f the need to comply with the restrictions of the\nProgram, and that they would be less likely to engage in protracted and costly\nlitigation over the operation of the Program.\nV. Constitutional Limitation on Operation of Program: Protection of an\nEx-Spouse\xe2\x80\x99s Relationship with a Child\nHaving determined that there is no statutory impediment to the adoption of the\nproposed procedures, various constitutional issues raised by the proposal remain\nto be considered. We begin with the issue of whether the proposed procedures\nadequately protect the constitutionally protected relationship between the ex\xc2\xad\nspouse and her child in the Program. In our view, the proposed changes which\nprovide for enforcement of valid custody decrees make important improvements\nin protecting this interest, but ultimately may not go far enough in assuring that\nthe ex-spouse\xe2\x80\x99s constitutional rights are not violated. To explain this conclusion,\nwe consider in some detail the constitutional protection for the ex-spouse\xe2\x80\x99s\nrelationship with her child and the extent to which the proposed procedures\nprotect this interest.\nA. Constitutional Interests\n\nAccording to various court decisions, the ex-spouse\xe2\x80\x99s relationship with her\nchild, which is regulated by state law, is deserving of constitutional protection in\nthese circu m stances for tw o reasons\xe2\x80\x94 one substantive and the other\njurisdictional.\nThe substantive reason is that courts have held that the relationship between the\nex-spouse and the child represents a \xe2\x80\x9c fundamental liberty interest\xe2\x80\x9d deserving of\nsubstantive and procedural protection under the Due Process Clause of the Fifth\nand Fourteenth Amendments. Santosky v. Kramer, 455 U.S. 745,753 (1982). As\nthe Supreme Court has observed, the Court\xe2\x80\x99s \xe2\x80\x9c decisions have by now made plain\n. . . that a parent\xe2\x80\x99s desire for and right to \xe2\x80\x98the companionship, care, custody, and\nmanagement of his or her children\xe2\x80\x99 is an important interest that \xe2\x80\x98undeniably\nwarrants deference and, absent a powerful countervailing interest, protection.\xe2\x80\x99\xe2\x80\x9d\nL assiter v. D ept, of Social Services, 452 U.S. 18, 27 (1981) (quoting Stanley v.\nIllinois, 405 U.S. 645, 651 (1972)). See also Quilloin v. Walcott, 434 U.S. 246,\n255 (1978); Wisconsin v. Yoder, 406 U.S. 205, 231\xe2\x80\x9433 (1972); Stanley v.\nIllinois, 405 U.S. 645 , 651-52 (1972); M eyer v. Nebraska, 262 U.S. 390,\n399-400 (1923).17 This constitutional protection, moreover, has a procedural\n17 Although the Supreme C ourt\xe2\x80\x99s decisions in this area have primarily examined limitations on the government\xe2\x80\x99s\nauthority to terminate a child\xe2\x80\x99s relationship with his family, rather than to mediate between parents in a child custody\ndispute, see Caban v Mohammed, 441 U S. 380, 414 n 27 (1979) (Stevens, J , dissenting), the language and logic\nof the C ourt\xe2\x80\x99s decisions would clearly extend some constitutional scrutiny to the termination of a parent\xe2\x80\x99s\nrelationship with his child in the context of a child custody dispute. Cf. Quillom v. Walcott, 434 U S. at 255 Lower\ncourts have extended constitutional scrutiny in similar types of situations. See, e.g., Morrison v. Jones, 607 F2d\n1269, 1 2 7 5 (9 th C ir 1979), cert denied, 445 U .S . 962(1980), Ku/Th/o v Civiletti, 539 F. Supp. at 952 (1982); R oev\nConn . 4 1 7 F Supp 7 6 9 ,7 7 7 (M D Ala 1976) (three judge court) B u tc f L eonhardv Mitchell, 473 F 2d 709 (2d\nCir. 1973) (discussed in detail below)\n\n832\n\n\x0caspect: even where the state has a sufficiently compelling justification for\nterminating the ex-spouse\xe2\x80\x99s interests, its actions \xe2\x80\x9c must be accomplished by\nprocedures meeting the requisites of the Due Process Clause.\xe2\x80\x9d Santosky v.\nKramer, 455 U.S. at 753 (quoting Lassiter v. Dept, c f Social Services, 452 U.S.\n18, 37 (1981)). See also Stanley v. Illinois, 405 U.S. at 658. Thus, serious\nconstitutional problems could be raised if the operation of the Program substan\xc2\xad\ntially infringes upon the ex-spouse\xe2\x80\x99s relationship with the child without \xe2\x80\x9c a strong\ncountervailing interest\xe2\x80\x9d of the federal government or without affording the ex\xc2\xad\nspouse procedural due process.\nThe relationship of the ex-spouse with the child is also deserving of protection\nfrom federal intrusion because the Marshals Service has no authority to make\nchild custody and visitation decisions. Obviously, nothing in the Crime Control\nAct or its legislative history suggests that Congress intended to federalize child\ncustody law or to authorize Marshals Service officials to make legally binding\nchild custody decisions. Moreover, even if it had, such a grant of authority could\nraise serious Tenth Amendment problems. See National League c f Cities v.\nUsery, 426 U.S. 833 (1976). \xe2\x80\x9c The whole subject of the domestic relations of\nhusband and wife, parent and child,\xe2\x80\x9d as the Supreme Court has noted, \xe2\x80\x9c belongs\nto the laws of the States and not to the laws of the United States.\xe2\x80\x9d In Re Burrus,\n136 U.S. 586, 593-94 (1890). See also Lehman v. Lycoming, 458 U.S. 502,\n511-12(1982); United States v. Yazell, 382 U.S. 341,352(1966); Wise v. Bravo,\n666F.2d 1328, 1332 (10th Cir. 1981). Thus, absent a compelling countervailing\ngovernment interest in a particular case, the operation of the Program should, in\nour view, generally assure that the ex-spouse\xe2\x80\x99s constitutionally protected and\nstate defined custodial interest in the child is not effectively terminated as a result\nof the federal government\xe2\x80\x99s hiding of the child.\nB. Protection c f an Ex-Spouse\'s Custodial Rights Under the Program\n\nThe proposed changes in the operation of the Program go a long way toward\nsatisfying this requirement, and thus we strongly recommend their adoption.\nUnfortunately, as a detailed description of these procedures reveals, they may not\nprotect the ex-spouse\xe2\x80\x99s custodial interests adequately in every situation.\nUnder the proposed procedures, the Marshals Service would arrange for the\nenforcement of a valid and enforceable state judicial decision granting custody of\nthe child to the ex-spouse. Although not discussed in the proposal, the following\nconstitutional and statutory requirements would have to be fulfilled for the\ndecision to be legally binding against the participant and therefore for the\ngovernment to arrange for its enforcement. First, the court must have satisfied the\nconstitutional requirement of notice, that is, the participant must have received\n\xe2\x80\x9c \xe2\x80\x98notice reasonably calculated, under all the circumstances, to apprise [him] of\nthe pendency of the action and afford [him] an opportunity to present [his]\nobjections.\xe2\x80\x99 \xe2\x80\x9d Armstrong v. Manzo, 380 U.S. 545, 550 (1965) (quoting Mullane\nv. Central Hanover Trust C o., 339 U.S. 306, 314 (1950)). Second, the court\nmust have \xe2\x80\x9c personal jurisdiction\xe2\x80\x9d over the participant so as to satisfy the Due\n833\n\n\x0cProcess Clause of the Fourteenth Amendment. Under this standard, there must be\n\xe2\x80\x9c sufficient connection between the [participant] and the forum State to make it\nfair to require defense of the action in the forum.\xe2\x80\x9d Kulko v. Superior Court of\nCalifornia, 436 U.S. 84, 91 (1978). See International Shoe Co. v. Washington,\n326 U.S. 310, 316 (1945). Third, as a matter of state law, the decision must be\nlegally enforceable against the participant in the state in which it was rendered\nand in the state in which the child and participant currently reside.18\nThe policy of enforcing custody decisions that meet these requirements would\nnormally satisfy ex-spouses\xe2\x80\x99 custodial rights because most ex-spouses should be\nable to find a state forum that could meet these requirements, and litigate their\nclaims. By agreeing to forward process through the mail, for example, the\nMarshals Service assures that the participant has been, provided notice and an\nopportunity to be heard. Therefore, any subsequent judgment would not be\ninvalid for lack of adequate notice. Stanley v. Illinois, 405 U.S. at 657 n .9 .19\nMoreover, under the Uniform Child Custody Jurisdiction Act, which has been\nadopted by at least 46 states,20 one state always has jurisdiction over custody\ndisputes. See \xc2\xa7 3(a)(4). All states which have adopted the Act recognize a\ndecision rendered by another state in conformity with the dictates of the Act. See\n\xc2\xa7 13. Finally, we assume that, in most of these cases, the defendant would have\nhad sufficient personal contacts with at least one state before he entered the\nProgram to satisfy the personal jurisdiction requirements of the Due Process\nClause. Thus, because the ex-spouse probably would not need to learn the new\nidentity of the participant in order to litigate any claim or to enforce any\nsubsequent custody decision, we doubt that the Marshals Service\xe2\x80\x99s proposed\npolicy would often create constitutional problems.\nNevertheless, there may be cases where an ex-spouse is unable to litigate her\nclaims because the witness has not had sufficient contacts with any state before he\nentered the Program, and thus the ex-spouse is unable to obtain personal\njurisdiction. In our view, under the general reasoning of the Supreme Court\ndecisions cited above, the Marshals Service normally would be constitutionally\nrequired to disclose the participant\xe2\x80\x99s identity in these rare circumstances, so long\nas the witness otherwise had an opportunity to litigate the case in a secure\n18 The Supreme Court has held that a state is not constitutionally required to give full faith and credit to a custody\ndecree o f another state if the state court finds that there are changed circumstances to justify a change in custody See\nHalvey v. Halvey, 330 U .S. 610 (1947), Kovacs v. Brewer, 356 U S. 604 (1958). Because a state court can always\nfind changed circumstances, there is, in practice, no absolute constitutional requirement that a state court enforce an\nout-of-state custody decree. O f course, it may do so, as a matter of comity, under its own laws\n19 We believe it is also important, as you have proposed, to provide a secure environment where the witness can\nlitigate his claims. Although the due process requirements of an \xe2\x80\x9c opportunity to be heard" do not obligate the\ngovernment to provide all persons with a secure courtroom if they believe their lives are threatened, the operation of\nthe Program might nevertheless create practical, if not constitutional, problems if witnesses under government\nprotection are forced to choose between risking their lives or not litigating claims to child custody Because the\nproposed changes would avoid these problems, we need not decide whether it would be unconstitutional in this\nspecific and unusual context not to provide the witness with a secure environment to litigate these claims. C f Little v.\nStreater, 452 U .S. 1 (1981) (state constitutionally obligated to pay for blood tests for indigent defendants in\npaternity suit); Lassiter v. D ept, c f Social Services, 452 U S. 18 (1981) (state obligated to provide counsel for\nindigent parents in certain parental termination hearings); Mathews v Eldridge, 424 U S. 319 (1976).\n20 See S. Katz, Child Snatching. The Legal Response to the Abduction of Children, 155-62 (1981). Children,\npp. 155-62 (1981).\n\n834\n\n\x0cenvironment and to waive objections to personal jurisdiction.21 In some of these\ncases the ex-spouse will never have litigated the question of custody before the\nparticipant had entered the Program. Thus, failure to disclose the participant\xe2\x80\x99s\nnew identity would absolutely deprive the ex-spouse of the opportunity to litigate\nher constitutionally protected claim to custody of the child. Even where the issue\nof custody had previously been litigated, and the participant had been awarded\ncustody before he entered the Program, the failure to disclose his identity would\npreclude the ex-spouse from relitigating the custody issue in light of the child\xe2\x80\x99s\nparticipation in the Program and the extinction of the ex-spouse\xe2\x80\x99s visitation\nrights. The ex-spouse\xe2\x80\x99s claim to learn the participant\xe2\x80\x99s new identity in all of these\ncases would be especially weighty because the participant could avoid the\nconstitutional problem by waiving objections to personal jurisdiction. See, e .g ..\nInsurance Corp. c f Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694,\n698 (1982); M cDonald v. Mabee, 243 U.S. 90, 91 (1917). The most recent case\nto have considered an ex-spouse\xe2\x80\x99s right to learn the new identity of her child,\nRuffalo v. C iviletti, 539 F. Supp. 949, generally supports the conclusion that the\ngovernment has an obligation to protect the custodial interest of the ex-spouse in\nsuch circumstances. The court in Ruffalo denied summary judgment for the\ngovernment in a suit by an ex-spouse for damages resulting from admission of a\nchild into the Program. While no final decision has been reached in the case, the\ncourt indicated that the government\xe2\x80\x99s assistance in depriving a spouse of\ncustodial rights to her child could subject it to damages.\nThe only other decision to reach this question, Leonhard v. Mitchell, 473 F.2d\n709, may appear to be inconsistent with this view, but we believe it should be read\nnarrowly in light of its special factual and legal context. In Leonhard the Second\nCircuit held that the refusal of the government to disclose a child\xe2\x80\x99s new identity to\nan ex-spouse did not violate a \xe2\x80\x9c clear constitutional right,\xe2\x80\x9d id. at 713, and\ntherefore it denied a mandamus action to force disclosure. The court in\nLeonhard, however, was faced with the stark choice of either disclosing the\nwitness\xe2\x80\x99 identity, which the government argued would result in the witness\xe2\x80\x99 and\nthe child\xe2\x80\x99s death, or protecting their identity. There was no mechanism in that\ncase, as there would be under the proposed procedures, for permitting a witness\nto litigate his claim in a safe environment. The decision in Leonhard, moreover,\nwas rendered before the most recent Supreme Court decisions establishing a\nclearer constitutional basis to a child\xe2\x80\x99s relationship with his parents. The lack of\nclear precedent was important to the Leonhard court\xe2\x80\x99s conclusion that the\nplaintiff had not met the burden required for a writ of mandamus. For these\nreasons, we believe Leonhard should not be read to support the government\xe2\x80\x99s\nrefusal to disclose the witness\xe2\x80\x99 identity where the witness could litigate the issue\nof custody without threat to his life.22\n21 In practice, the threat to disclose the participant\'s identity in these circumstances might force the participants to\nwaive objection to personal jurisdiction, thereby avoiding the constitutional problem Thus, the inability of a spouse\nto obtain personal jurisdiction may not pose a significant problem.\n22 The witness in Leonhard, moreover, had custody of the child when he entered the Program. The government\xe2\x80\x99s\nresponsibilities might well have been different if the government had admitted the child into the Program when the\nwitness did not have custody.\n\n835\n\n\x0cWe raise only one caveat to this conclusion. Disclosing the new identity of a\nrecalcitrant participant could place the lives of the child and the participant\xe2\x80\x99s\nspouse in danger. Thus, the Marshals Service could argue in such cases that it has\na sufficiently compelling interest to justify withholding the new identity of the\nparticipant, despite his recalcitrance, because disclosure would endanger the\nlives of other persons in the Program. Although it is impossible to judge whether\nor in what factual circumstances courts would accept this view, we recommend\nthat the Marshals Service avoid this constitutional dilemma by offering to provide\nindependent protection for the child and spouse during the pendency of litigation\nin such cases.\nC. Protection of Ex-Spouse\xe2\x80\x99s Visitation Rights\nAssuming that an ex-spouse has been given an opportunity to litigate and\narrange for the enforcement of any custody decision, a separate constitutional\nproblem remains with regard to the effect of the proposed policies on her\nvisitation rights. Unlike the situation of a custody dispute, where the proposed\nchanges, along with our recommendations, assure that any valid custodial\ninterest of an ex-spouse is vindicated, the operation of the Program necessarily\nrequires the extinction of an ex-spouse\xe2\x80\x99s visitation rights.23 This raises two\nconstitutional questions\xe2\x80\x94one substantive and one procedural.\nThe substantive issue is whether it is constitutional to terminate the visitation\nrights of an ex-spouse merely because the custodial parent is in the Program.\nAlthough the extent of constitutional protection for an ex-spouse\xe2\x80\x99s visitation\nrights is unclear, it is probable that the absolute termination of all visitation or\ncontact between ex-spouse and child, which necessarily occurs when a child\nenters the Program, would be subjected to constitutional scrutiny. See Wise v.\nBravo, 666 F.2d at 1332 (\xe2\x80\x9cvisitation rights . . . within the reach of Due Process\n. . . Clause\xe2\x80\x9d ); id. at 1338 (Seymour, J., concurring) (same); Ruffalo v. Civiletti,\n539 F. Supp. at 952 (termination of visitation rights to child in Witness Protection\nProgram subject to constitutional scrutiny).24 Moreover, while the Supreme\nCourt has not articulated the permissible grounds for terminating a child\xe2\x80\x99s\nrelationship with a parent, it has suggested that \xe2\x80\x9c the Due Process Clause would\nbe offended \xe2\x80\x98[i]f a State were to attempt to force the breakup of a natural family,\nover the objections of the parents and their children, without some showing of\nunfitness and for the sole reason that to do so was thought to be in the child\xe2\x80\x99s best\ninterest.\xe2\x80\x99 \xe2\x80\x9d Quilloin v. Walcott, 434 U.S. at 255 (quoting Smith v. Organization of\nFoster Families, 431 U.S. 816, 862-63 (1977) (Stewart, J., concurring)).25\n23 Although we have not been asked what procedures should be followed when the witness and ex-spouse have\nbeen granted joint custody, as numerous state statutes permit, see, e g., Cal. Civ Code, \xc2\xa7 4600.5(a), the analysis of\nvisitation rights should be generally applicable to this situation as well.\n24 Cf. Leonhard v U nited States. 633 F.2d at 618 (child in Program has constitutionally implicated interest in\nrelationship with father outside the Program). B ut cf. Leonhard v. Mitchell, 473 F.2d at 713-14 (discussed above)\n23 -See also Santosky v. Kramer, 455 U .S. at 760 n 10 (it is not \xe2\x80\x9c clear that the State constitutionally could\nterminate a parent\'s rights without showing parental unfitness\xe2\x80\x9d ) (emphasis in original). C f Stanley v Illinois, 405\nU .S. 645 (sinking down under Due Process Clause the irrebuttable presumption that illegitimate father is unfit\nparent).\n\n836\n\n\x0cBecause the termination of an ex-spouse\xe2\x80\x99s visitation rights may end, as a practical\nmatter, any personal relationship or contact between the ex-spouse and the child\nfor an extended period, if not forever, the question arises whether such a\ndisruption may be accomplished constitutionally without a showing that the ex\xc2\xad\nspouse is somehow an unfit parent.\nIn the unique circumstance of the Witness Protection Program, the termination\nof the ex-spouse\xe2\x80\x99s visitation rights should not violate the constitutional rights of\nthe ex-spouse. In Quilloin itself, the Supreme Court recognized that there were\nsituations where a parent\xe2\x80\x99s rights could be terminated merely because it was in the\nbest interests of the child. The Court upheld a state procedure permitting the\nadoption of an illegitimate child by a stepfather over the objections of the natural\nfather when the state court found it was in the best interests of the child. The\nCourt specifically relied on the fact that the traditional family unit in Quilloin had\nalready been dissolved and the child was joining a family unit already in\nexistence. Similarly, in a case arising under the Witness Protection Program, the\noriginal family unit normally will already have been dissolved, and the child will\nbe living with one parent with custody. Even more importantly, the life of the\nparticipant and of the child could be placed in jeopardy if the spouse were able to\nexercise her visitation rights. The judgment that visitation could threaten the\nwell-being of the child, moreover, will normally be shared by officials of the\nMarshals Service, the parent of the child, and, as discussed below, the state court\noverseeing the custody and visitation dispute. We do not believe that the constitu\xc2\xad\ntional protection for the ex-spouse\xe2\x80\x99s relationship with the child includes jeopard\xc2\xad\nizing the physical well-being of the child or his custodial parent in these unusual\ncircumstances. Largely for these reasons, two courts which have considered this\nquestion, Leonhard v. Mitchell, 473 F.2d at 714 and Franz v. United States, 526\nF.Supp. 126 (D.D.C. 1981) have found the termination of an ex-spouse\xe2\x80\x99s visita\xc2\xad\ntion rights to a child in the Program is constitutional.26\nEven though the termination of an ex-spouse\xe2\x80\x99s visitation rights is, in our view,\nconstitutional under these unique circumstances, the procedural question re\xc2\xad\nmains whether the Marshals Service may ever admit a child into the Program if\nthe participant has not first obtained a modification of any state court decision\ngiving the ex-spouse visitation rights. Normally, \xe2\x80\x9c [b]efore a person is deprived\nof a protected interest, he must be afforded opportunity for some kind of hearing,\n\xe2\x80\x98except for extraordinary situations where some valid governmental interest is at\nstake that justifies postponing the hearing until after the event.\xe2\x80\x99 \xe2\x80\x9d B oard cf Regents\nv. Roth, 408 U.S. 564, 570 n.7 (1972) (quoting Boddie v. Connecticut, 401 U.S.\n371, 379 (1971)). Thus, an ex-spouse could argue that the Marshals Service\nshould not admit a child into the Program until she has had an opportunity to\nlitigate the issue of her visitation rights in a state court. As a practical matter, any\n26 \\n Ruffalo v Civiletti, 539 F. Supp. at 952, the District Court denied summary judgment for the government in a\nsuit brought by a participant\'s ex-wife who was seeking damages for the loss of visitation rights to her child in the\nProgram. The court noted, however, that there are situations where the government would be justified in terminating\nvisitation rights. See id. Thus, it is possible that, even under its analysis, the government could prove at trial\nsufficient justification for its actions to withstand constitutional scrutiny.\n\n837\n\n\x0clitigation over the issue of visitation rights would probably resolve itself into a\ndispute over custody. Because no participant could bring a child into the Program\nand continue the ex-spouse\xe2\x80\x99s visitation rights, any decision by the state court to\ncontinue the ex-spouse\xe2\x80\x99s visitation rights would effectively require that the ex\xc2\xad\nspouse receive custody. The procedural due process question therefore becomes\nwhether the ex-spouse has a right to litigate this issue Before the participant enters\nthe Program, or whether she must wait to litigate it through the special mecha\xc2\xad\nnisms we have outlined above.\nBecause of the unusual facts o f this situation, resolution of this question should\nbe left in the first instance to officials of the Marshals Service. As the Supreme\nCourt has observed, due process \xe2\x80\x9c is not a technical conception with a fixed\ncontent unrelated to time, place, and circumstances.\xe2\x80\x9d Cafeteria Workers v.\nMcElroy, 367 U.S. 886, 895 (1961). We suspect that in most instances, the\nparticipant\xe2\x80\x99s and child\xe2\x80\x99s life could be placed in jeopardy if an ex-spouse had a\nright to contest the extinction of her visitation rights before the child entered the\nProgram. Such cases appear to be classic examples of \xe2\x80\x9c extraordinary situations\nwhere some valid governmental interest is at stake that justifies postponing the\nhearing until after the event.\xe2\x80\x9d B oard c f Regents Roth, 408 U.S. at 570. See also\nDuchesne v. Sugarman, 566 F.2d at 826. On the other hand, there may be\ninstances where there is an opportunity to litigate the issue in state court without\nendangering the participant\xe2\x80\x99s or the child\xe2\x80\x99s life. The Memorandum of Under\xc2\xad\nstanding (p. 5), for example, requires the witness to reach an agreement with all\nof his creditors before entering the Program, suggesting that there is also time, at\nleast in the case of some participants, to litigate the visitation issue before the\nparticipant and child assume new identities. In such cases, the Marshals Service\nwould appear to be obligated to allow the ex-spouse an opportunity to contest the\nextinction of her visitation rights in state court before the child enters the\nProgram. Because we are not sufficiently familiar with the operation of the\nProgram to assess these interests, we recommend that the Marshals Service\ndetermine the circumstances in which it believes it has a compelling interest in\nnot providing the ex-spouse with an opportunity to obtain a modification of a\nvisitation decree before the child enters the Program. We are, of course, available\nto evaluate the constitutionality of such standards or guidelines in light of the\nMarshals Service\xe2\x80\x99s analysis of the governmental interest.\nVI. Protection of Child\xe2\x80\x99s Constitutionally Protected Relationship with the\nParental Ex-Spouse\nThe courts have suggested that a child in the Program has a constitutionally\nimplicated interest in his relationship with the parental ex-spouse. See Leonhard\nv. United States, 633 F.2d at 618; Franz v. United States, 526 F.Supp. 126\n(D.D.C. 1981). As in the case of the parental ex-spouse\xe2\x80\x99s interest, the child\xe2\x80\x99s\ninterest has two aspects\xe2\x80\x94his interest in being in the custody of a parent who has a\nlegal right to custody; and his interest in being within reach of a parent with a\nright to visitation. Nevertheless, for much the same reasons that the proposed\n838\n\n\x0cprocedures, along with our recommended changes, would satisfy the constitu\xc2\xad\ntional interests of the ex-spouse in her relationship with the child, they would also\naccommodate the child\xe2\x80\x99s protected interest in his relationship with the ex\xc2\xad\nspouse.27\nWith respect to the custody issue, the proposed procedures would assure that\nan ex-spouse could litigate the issue and obtain custody pursuant to a valid\ncustody order. Accordingly, the child would not be deprived of his interest in\nbeing in the custody of a parent who wished to pursue her custody rights.\nWith respect to visitation, the child would be kept out of reach of visitation by\nan ex-spouse, but, as where the ex-spouse challenges this action, the government\nhas a sufficiently compelling interest in refusing to disclose the participant\xe2\x80\x99s and\nchild\xe2\x80\x99s new identity in these circumstances. This conclusion is based on three\nfactors.\nFirst, the Marshals Service has a compelling interest in protecting the minor\nchild and participating parent from the consequences that could result if the ex\xc2\xad\nspouse were permitted to visit. Assuming that officials of the Marshals Service\nact in good faith in assessing this danger, their decision to refuse to disclose the\nnew identity of the child in order not to jeopardize the child\xe2\x80\x99s safety would surely\nconstitute a reasonable performance of their official responsibilities.\nSecond, under the procedures we have proposed, either a state court or the ex\xc2\xad\nspouse would have concurred in the judgment of the Marshals Service that the\nvisitation rights must be extinguished. Under these procedures the Marshals\nService would afford the witness an opportunity to challenge the termination in\nstate court, and the Service would honor any decision of the state court con\xc2\xad\ntinuing visitation rights.28 Accordingly, a child\xe2\x80\x99s visitation rights would only be\nterminated when a state court had concurred in the decision of the parent and\nwitness as to the need to terminate visitation rights in the best interests of the\nchild. Otherwise, the ex-spouse would not have challenged the termination.\nFinally, the parent with custody of the child would have concurred in the\ngovernment\xe2\x80\x99s judgment as to the danger to the child. Parents speak for their\nchildren in a variety of different circumstances, and usually are presumed to\nrepresent their best interests. In a related context, for example, the Supreme\nCourt upheld a state procedure whereby a parent or guardian was permitted to\ncommit a child to a mental institution solely on the judgment of the parent and the\nhospital. Parham v. J.R., 442 U.S. 584 (1979). The court reasoned as follows:\n[0]ur constitutional system long ago rejected any notion that a\nchild is \xe2\x80\x9c the mere creation of the State,\xe2\x80\x9d and, on the contrary,\nasserted that parents generally \xe2\x80\x9c have the right, coupled with the\nhigh duty, to recognize and prepare [their children] for additional\nobligations.\xe2\x80\x9d Pierce v. Society c f Sisters, 268 U.S. 510, 535\n27 Only (he interests of minor children are at issue. The admission of an older child into the Program would not\ncreate any constitutional problem for, like the witness, an older child would have a nght, if he wished, to resume\ncontact with the ex-spouse. Leonhard v. United States, 633 F.2d at 619\n28 As a practical matter, this would probably mean the voluntary return of the child lo the ex-spouse in order to\nprotect the witness.\n\n839\n\n\x0c(1925). . . . The law\xe2\x80\x99s concept of the family rests on a presump\xc2\xad\ntion that parents possess what a child lacks in maturity, experi\xc2\xad\nence, and capacity for judgment required for making life\xe2\x80\x99s diffi\xc2\xad\ncult decisions. More important, historically it has recognized that\nnatural bonds of affection lead parents to act in the best interests of\ntheir children.\nId. at 602. (Citations omitted; emphasis in original.) Similarly, in cases arising\n\nunder the Witness Protection Program, a participant who has been granted\ncustody would enjoy this presumption of concern for the welfare and best\ninterests of his child.\nThe only courts to consider this issue, Leonhard v. United States, 633 F.2d at\n618, and Franz v. United States, 526 F. Supp. at 127, have denied a child\xe2\x80\x99s\nchallenge to the termination of visitation rights under the Program because the\nparent with custody had consented. While we question whether the custodial\nparent\xe2\x80\x99s consent alone would justify terminating the other parent\xe2\x80\x99s visitation\nrights, where officials of the Marshals Service and the state courts concur in that\njudgm ent, we do not believe that the children could successfully challenge the\ndecision on constitutional grounds.\nVII. Constitutional Limitations on the Enforcement of Debts of\nWitnesses\nA separate constitutional issue arises with respect to the proposed new policy\nfor dealing with creditors of witnesses. Under this policy, the Marshals Service\nwould evidently reveal the new identity of a witness to a creditor in certain\negregious cases, but not in all cases. While we find no statutory or constitutional\nimpediment to the disclosure of witnesses\xe2\x80\x99 identities in such cases, the failure to\ndisclose witnesses\xe2\x80\x99 identities to all bona fide creditors raises a constitutional issue\nunder the \xe2\x80\x9c takings clause\xe2\x80\x9d of the Fifth Amendment. This section provides that\n\xe2\x80\x9c private property [may not] be taken for public use, without just compensa\xc2\xad\ntion.\xe2\x80\x9d 29 If the Marshals Service\xe2\x80\x99s refusal to disclose the new identity of a witness\nin these circumstances constitutes a \xe2\x80\x9c taking\xe2\x80\x9d of the creditor\xe2\x80\x99s property within the\nmeaning of the Fifth Amendment, the government would be required to compen\xc2\xad\nsate the creditor for his claim against a witness.\nThe Supreme Court has recognized that there is no \xe2\x80\x9c set formula\xe2\x80\x9d for deter\xc2\xad\nmining when a government action constitutes a taking. Loretto v. Teleprompter\nM anhattan CATV Corp., 458 U .S. 419, 426 (1982). Ordinarily, in reaching its\ndecisions, the Court has engaged in \xe2\x80\x9c essentially ad hoc, factual inquiries,\xe2\x80\x9d Penn\nC entral Transportation Co. v. N ew York City, 438 U.S. 104, 124 (1978), which\n\xe2\x80\x9c call[ ] as much for the exercise of judgment as for the application of logic.\xe2\x80\x9d\n29 Contracts are property within the meaning of the Fifth Amendment. See. e g , UnitedStates Trust Co. v New\nJersey. 431 U .S I, 19 n.16 (1977), Armstrong v. United States, 364 U S. 40, 44-46 (1960), Contributors to\nPennsylvania Hospital v Philadelphia, 245 U S 20 (1917).\n\n840\n\n\x0cAndrus v. Allard, 444 U.S. 51, 65 (1979). Such judgment has been informed,\n\nhowever, by the Court\xe2\x80\x99s weighing of four different factors.30\nThe first factor is \xe2\x80\x9c [t]he economic impact of the regulation on the claimant\nand, particularly, the extent to which the regulation has interfered with distinct\ninvestment-backed expectations. . . .\xe2\x80\x9d Penn Central, 438 U.S. at 124. If a\ngovernment action has deprived the claimant of the most reasonable use of his\nproperty, the Court is much more likely to find there has been a taking than if he is\nleft with some reasonable economically viable use.31\nThe second factor is whether the claimant\xe2\x80\x99s investment-backed expectations\ncan be said to be \xe2\x80\x9c reasonable.\xe2\x80\x9d The government may prohibit certain \xe2\x80\x9c obnox\xc2\xad\nious\xe2\x80\x9d uses of property which would threaten \xe2\x80\x9c the health, safety, morals, or\ngeneral welfare,\xe2\x80\x9d N ectowv. Cambridge, 277 U.S. 183, 188 (1928); see Euclid w.\nAmbler Realty C o., 272 U.S. 365, 388-89 (1926). Under such circumstances,\nthe resulting economic loss to the owner is not considered compensable.32\nSimilarly, certain areas of economic activity are heavily regulated by the govern\xc2\xad\nment, so that it would be unreasonable for private citizens to expect that their\nproperty or contracts will not be subjected to future regulations. See Allied\nStructural Steel Co. v. Spannaus, 438 U.S. 234, 249 (1978); Veix v. Sixth Ward\nBuilding and Loan Assoc., 310 U.S. 32, 37-38 (1940).\nThe third factor is the extent to which the adverse government action falls upon\na broad class rather than upon a discrete group. Zoning laws that affect a cross\nsection of property in a community, see Agins v. C ity cfTiburon, 447 U.S. 255,\n262 (1980), rather than a discrete group, as in spot zoning, see Penn Central, 438\nU.S. at 132, and government wartime regulations that necessarily demand\nsacrifices from a large portion of the population, see United States v. Central\nEureka Mining Co., 357 U.S. 155, 168 (1958), are less likely to be classified as\ntakings. See also Monongahela Navigation v. United States, 148 U.S. 312, 325\n(1893); Sax, Takings and the Police Power, 74 Yale L.J. 36, 75-76 (1964).\nThe final factor is the extent to which the government\xe2\x80\x99s action is directed at and\nimpacts upon the defendant\xe2\x80\x99s property directly and physically, rather than indi\xc2\xad\nrectly. See, e.g ., Penn Central, 438 U.S. at 124; U nitedStates v. Central Eureka\nMining Co., 357 U.S. at 165\xe2\x80\x9466; Omnia Commercial Co. v. United States, 261\nU.S. 502, 510 (1923). As the Supreme Court has recently held, \xe2\x80\x9c a permanent\n30 Two general pnnciples should be bome in mind in examining any taking question. On the one hand,\n\xe2\x80\x9c (governm ent hardly could go on if to some extent values incident to property could not be diminished without\npaying for every change in the general law \xe2\x80\x9d Pennsylvania Coal Co. v. Mahon, 260 U .S. 393, 413 (1922) On the\nother hand, at some point the taking clause \xe2\x80\x9c bar[s] Government from forcing some people alone to bear public\nburdens which, in ail fairness and justice, should be bome by the public as a whole.\xe2\x80\x9d Armstrong v. United States,\n364 U S at 49. Any decision on taking ultimately \xe2\x80\x9c requires a weighing of private and public interests.\xe2\x80\x9d Agins v.\nCity cfTiburon. 447 U S. 255, 261 (1980) The factors discussed in the text have been cited by the Court when\nundertaking this balancing process.\n31 Compare Penn Central, 438 U S. at 136 (preservation of historical site \xe2\x80\x9c does not interfere with what must be\nregarded as . . the primary expectation concerning the use of the parcel\xe2\x80\x9d ) with Pennsylvania Coal Co v Mahon,\n260 U.S. 393,413 (1922) (where deprivation \xe2\x80\x9c reaches a certain magnitude, in most if not in all cases there must be\nan exercise of eminent domain and compensation to sustain the act\xe2\x80\x9d )\n32 See also Heart c f Atlanta Motel, Inc v. Untied States, 379 U.S. 241, 261 (1964) (loss of business due to\ngovernment antidiscrimination laws not compensable), Everard\'s Breweries v. Day, 265 U.S 545, 563 (1924) (loss\nof value of alcoholic beverage stock due to prohibition not compensable).\n\n841\n\n\x0cphysical occupation of property\xe2\x80\x9d is a taking \xe2\x80\x9c without regard to whether the\naction achieves an important public benefit or has only minimal economic impact\non the owner.\xe2\x80\x9d Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. at\n434-35.\nApplication of these factors to cases arising under the Witness Protection\nProgram is obviously complicated. In most situations, we assume that the\ncreditors would have a reasonable expectation to the payment of their claims,\ndepending upon the ability of the debtor to pay, andthe destruction of any specific\nclaim would obviously fall directly and probably exclusively on the claimant,\nthereby placing the cost of the government action upon a small discrete group\nrather than upon a cross section of the community. Moreover, in many cases, the\nService\xe2\x80\x99s refusal to disclose the location of witnesses would result in the practical\ndestruction of the creditors\xe2\x80\x99 entire claims, although there may be cases where the\nwithholding of information would only be temporary, or where there is a\nmechanism by which a creditor could satisfy his claim against other property of\nthe witness.\nOn the other hand, in virtually all of these cases, the government will not have\ndirectly deprived the creditor o f his property, but rather only assisted a private\nperson in changing his identity, thereby indirectly and unintentionally depriving\nthe creditor of his property by making it impossible for the creditor to enforce his\nclaim. As the Supreme Court has noted in finding the government was not\nresponsible for the damage done by rioters reacting to the presence of govern\xc2\xad\nment troops, \xe2\x80\x9c in any case where government action is causally related to private\nmisconduct which leads to property damage[,] a determination must be made\nwhether the government involvement in the deprivation of private property is\nsufficiently direct and substantial to require compensation under the Fifth\nAmendment.\xe2\x80\x9d YMCA v. United States, 395 U.S. 85, 93 (1969). In cases arising\nunder the Witness Protection Program, the government normally will have made\ngood faith efforts not to permit a witness to enter the Program with outstanding\ndebts, will have disclosed the identity of witnesses to creditors in particularly\negregious cases, and will not itself have received any use of the property for its\nown purposes.33 All these considerations would support the argument that\ngovernment\xe2\x80\x99s actions are not \xe2\x80\x9c sufficiently direct and substantial\xe2\x80\x9d to require it to\npay compensation. Indeed, the only court that, to our knowledge, has considered\nthe question whether the Marshals Service\xe2\x80\x99s concealment of a witness from a\ncreditor constitutes a taking has found that it does not, for essentially these\nreasons. It held that \xe2\x80\x9c the governmental action [of concealing the debtor\xe2\x80\x99s\nidentity] was not directed at o r toward the plaintiffs property right, and any\ninterference with that right, the evidence of which plaintiff still retains, is at most\n33 This situation can be contrasted with Webb\'s Fabulous Pharmacies v Beckwith, 449 U.S. 155, 163 (1980),\nwhere the court struck down a state system o f interpleader funds because it was \xe2\x80\x9c a forced contribution to genera!\ngovernmental revenues" rather than an adjustment of the \xe2\x80\x9c benefits and burdens of economic life \xe2\x80\x9d See generally\nSax. Takings and the Police Power, 74 Yale L J. 36 (1964)\n\n842\n\n\x0can indirect consequence of the exercise of lawful government power.\xe2\x80\x9d Melo-Tone\nVending v. United States, 666 F.2d at 689.34\nIn light of the difficulty in determining whether any one of these factors would\nbe dispositive in a particular factual circumstance, we cannot say with any\ncertainty whether the courts would find the refusal to disclose a witness\xe2\x80\x99 identity\nto be a taking in any particular case. We note that the refusal of the Marshals\nService to admit into the Program witnesses who it knows have large debts, and\nits willingness to disclose the identity of witnesses to creditors in particularly\negregious cases, would certainly improve its legal position in those cases where it\ndecides not to disclose a witness\xe2\x80\x99 identity to creditors. Therefore, we cannot say\nat the present time in the abstract that the courts would not uphold such a refusal\nin a particular case. If you would like us to examine this issue in greater detail in\nparticular factual contexts, we would be happy to do so.35\nVIII. Witness\xe2\x80\x99 Statutorily Based Due Process Right\nFinally, we note that the proposed procedure would satisfy any constitutionally\nprotected interest the witness may have in the concealment of his identity.\nAlthough a witness\xe2\x80\x99 interest in preventing enforcement of claims does not invoke\nsubstantive constitutional protection, see United States v. Kras, 409 U.S. 434,\n446 (1973),36 the Supreme Court has recognized that a person may have a\nstatutorily derived \xe2\x80\x9c legitimate claim of entitlement.\xe2\x80\x9d B oard of Regents v. Roth,\n408 U.S. at 577. Such property or liberty interests\nare created and their dimensions are defined by existing rules or\nunderstandings that stem from an independent source such as\nstate law\xe2\x80\x94 rules or understandings that secure certain benefits and\nthat support claims of entitlement to those benefits.\n34 We also note that there is a practical consideration in support of this view, the government often does nol have\nsufficient information to litigate whether a creditor has a valid claim against a witness, and therefore against the\ngovernment The only person, other than the creditor, who has this information\xe2\x80\x94 the witness\xe2\x80\x94 has no incentive to\nassist the government if he knows that, by assisting the government, he may be held liable for his debt. Thus, any\ngeneral policy of reimbursing claims against creditors could possibly lead to abuse because of the difficulty in\nestablishing when a claimant has a valid case against the debtor, and therefore against the government\n35 For similar reasons, we do not believe it is wise to attempt to reach any definite conclusions whether the refusal\nto disclose the new identity of a witness would violate the Contract Clause. The Contract Clause provides that \xe2\x80\x9c [n]o\nStateshall\npassany\n. Law impairing the Obligation of Contracts.\n.\xe2\x80\x99\xe2\x80\x99 U.S C onst.,A rt l,\xc2\xa7 lO .W hileon\nits face the clause applies only to state impairments of contractual obligations, the Supreme Court has suggested that\nthe Fifth Amendment may impose similar restrictions on the federal government\'s impairment of contracts, see,\ne g.. Thorpe v Housing Authority, 393 U.S 268, 278 n 31 (1969); Perry v United States, 294 U S 330, 353-54\n(1935), although probably less stringent. Cf. U sery\\. TurnerElkhorn Mining Co , 428 U.S. 1 (1976). As in the case\nof takings, however, there is a question whether the refusal to disclose the whereabouts of a debtor can be said lo\nconstitute an \xe2\x80\x9c impairm ent" of the contract with his creditors in the types of cases arising under the Program. In\ndetermining whether an impairment of a contract violates the Contract Clause, moreover, the Supreme C ourt has\nconsidered how severe the impairment is and whether it is \xe2\x80\x9c necessary to meet an important general social problem \xe2\x80\x9d\nAllied Structural Steel Co v Spannaus. 438 U.S. at 247 See United States Trust Co. v New Jersey, 431 U S. 1,29\n(1977). Because such a determination is dependent on the facts of each case and the actions of the Marshals Service\nin minimizing unnecessary impairments of creditors\xe2\x80\x99 claims, we do not believe any general conclusion about the\noperation of the Program can be made.\n36 There is also no substantive constitutional nght to prevent the government from disclosing a witness\' new\nidentity to a creditor merely because it might assist a third person in locating the citizen and injunng him. C f Garcia\nv. United States, 666 F.2d at 963 (no substantive constitutional right to protection of Program)\n\n843\n\n\x0cId. When existing law creates such an entitlement, the government\xe2\x80\x99s decision to\n\nwithdraw the benefit must be accomplished through procedures which satisfy the\nprotections of the Due Process Clause.\nIn the case of a witness already receiving protection in the Program, the statute\nprovides that he may continue to use the government facilities \xe2\x80\x9c for as long as the\nAttorney General determines the jeopardy to his life or person continues.\xe2\x80\x9d Pub.\nL. No. 91-452, \xc2\xa7 502, 84 Stat. 922, 933 (1970). The only court to address this\nquestion has found, however, that this provision does not limit the authority of the\nAttorney General, and therefore does not create a due process right. Garcia v.\nU nitedStates, 666 F.2d at 964. Cf. D o e \\. Civiletti, 635F.2dat97 n.21 (no vested\nright to subsistence payments under the Act). As we discussed above, we agree\nwith this decision.\nMoreover, even if another court confronted with a more sympathetic fact\nsituation than that presented in G arcia 37 found that a witness did have such a\nvested right, the proposed procedures would satisfy any procedural due process\nright. Under these procedures, a witness would be afforded physical protection in\nany judicial proceeding so that he could contest any suit brought by a creditor\nagainst him and would be provided with an attorney to assist him in his defense. If\nhe should lose in that proceeding, but nevertheless refuse to satisfy the judgment,\nhe should not be entitled to any additional procedures before the Marshals\nService disclosed his identity. Therefore, even if a court were to find that a\nwitness had a vested interest in his continued participation in the Program,\nproviding the witness with a judicial forum and an attorney would discharge the\ngovernment\xe2\x80\x99s due process obligations. See generally Mathews v. Eldridge, 424\nU.S. 319, 335 (1976).\nIX . Conclusion\nOur conclusions can be summarized as follows.38 First, the Crime Control Act\nauthorizes the Attorney General to adopt the proposed procedures. Second, the\nproposed procedures would not subject the federal government to liability under\neither the Federal Tort Claims Act or the Tucker Act. Third, in certain rare\ncircumstances, the proposed procedures could possibly violate the due process\nrights of an ex-spouse who is unable, without knowledge of the witness\xe2\x80\x99 new\nidentity, to secure a binding custody or visitation rights determination against a\nwitness participant. Thus, in our view, the Marshals Service should disclose the\nwitness\xe2\x80\x99 identity to an ex-spouse in such disputes if (1) the witness refuses to\nwaive objections to jurisdiction, thereby precluding his ex-spouse from obtaining\na forum to litigate her claims, and (2) the Marshals Service would be able to\nprovide a secure forum for him to litigate his position if he waived objections. For\nsimilar reasons, the procedures should be modified to require a witness to seek\n37 In Garcia, the participant had repeatedly and flagrantly violated the terms of his agreement with the Marshals\nService.\n38 We have not considered the question of the ch ild \xe2\x80\x99s inheritance n ghts or possible future claim to use the name of\nhis natural parent, insofar as these issues are not presented by the proposed procedures.\n\n844\n\n\x0camendment of state custody orders granting his ex-spouse visitation rights before\nthe witness and child enter the Program if any resulting delay would not endanger\nthe physical well-being of the child or the witness. If such a modification cannot\nbe sought before entering the Program, appropriate efforts should be made as\npromptly thereafter to provide an opportunity for litigation in a secure environ\xc2\xad\nment provided by the Service.\nFinally, the decision to disclose a witness\xe2\x80\x99 new identity to a creditor is\npermissible in the egregious cases which have been described. On the other hand,\nwe cannot say at this point that a refusal to identify the witness to a creditor would\nviolate the Fifth Amendment, although we caution that resolution of this question\nmay be dependent on the facts of each case and the developing state of the law in\nthis complex area. To improve our legal position in such cases, we recommend\nthat the Service make every effort to assure that witnesses not be admitted into the\nProgram with outstanding debts, and that a good faith effort be made to induce\nwitnesses to pay legitimate claims in those cases where the Service concludes it is\ninappropriate to reveal their new identities.\nT\n\nheodore\n\nB. O\n\nlson\n\nAssistant Attorney General\nOffice c f Legal Counsel\n\n845\n\n\x0c'