The opinion of the court was delivered by: Ross, United States District Judge
Plaintiffs Patrick B. Garmhausen ("Garmhausen") and his parents, Charles F. Garmhausen and Susan I. Garmhausen (the "Grandparents"), are the father and grandparents, respectively, of Patrick Sean Garmhausen ("Patrick Sean"), on whose behalf they also bring this action. They allege that Patrick Sean is in the Witness Security Program (the "Program") with his mother, Debra T. Corridan ("Corridan"), who, they complain, denies them court-ordered custody and visitation rights with respect to Patrick Sean. Plaintiffs further complain that FBI Special Agent James McCarthy ("McCarthy") and former Assistant United States Attorney Wayne Baker ("Baker") are responsible for Corridan and Patrick Sean's placement into the Program and that they, together with Attorney General Eric Holder ("Holder") and the United States Department of Justice (the "DOJ"), failed to comply with the authorizing legislation and constitutional due process with respect to Patrick Sean's relocation through the Program. Plaintiffs seek an order compelling Holder, McCarthy, and the DOJ to disclose the whereabouts of Patrick Sean, an order requiring Corridan to comply with state visitation and custody orders, and money damages against McCarthy and Baker.
Defendants Holder, McCarthy, and the DOJ (the "Moving Defendants") now bring this motion to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. For the reasons explained below, the motion is granted in part and denied in part.
1. Historical Background to the Program Statute
Congress first established the Witness Security Program as part of the Organized Crime Control Act of 1970 (the "1970 Act"), with the purpose of guaranteeing the safety of government witnesses who agree to testify against alleged participants in organized criminal activity and thereby creating an incentive for persons involved in such activities to become informants. See Pub. L. No. 91-452, §§ 501-504, 84 Stat. 922, 933-34 (1970). The 1970 Act's witness security provisions were terse and vague, however, and it soon became apparent that more detailed provisions were needed to address two broad issues: crimes committed by protected persons following their relocation and the failure of protected persons to meet their civil law obligations, including money judgments and child custody and visitation orders. See H.R. Rep. No. 98-767, pt. 1, at 11-12 (1984). Between 1970 and 1984, when Congress revised the Program's authorizing legislation, several child custody and visitation cases reached the United States Courts of Appeals. These early cases informed the drafting of the statutory provisions at issue in the present case. Some of these cases, discussed below, also specifically addressed issues that the present case also raises.
In Leonhard v. Mitchell, a father sought a writ of mandamus to compel DOJ officials to disclose the location and identities of his three children, who had been relocated with their mother for their protection. 473 F.2d 709 (2d Cir. 1973). The Second Circuit held that sovereign immunity did not bar the suit but that mandamus was unavailable in the absence of a clear duty. Id. at 712 n.2, 713-14. The court explicitly rejected Leonhard's attempt to locate such a duty in the Due Process Clause of the Fifth Amendment, noting the "absence of a clear constitutional right to custody or visitation rights." Id. at 713.*fn1
In Ruffalo v. Civiletti, the plaintiff mother, who had legal custody of her son at the time of his relocation, brought suit both against federal officials and against her ex-husband who had been relocated with their son. 702 F.2d 710 (8th Cir. 1983). The Eighth Circuit held that the district court had subject matter jurisdiction to hear the claims despite the doctrine of sovereign immunity and the domestic relations exception to federal jurisdiction. Id. at 714 n.7, 717-18. The court concluded that Ruffalo "made out a strong prima facie entitlement to some form of equitable relief" and remanded the case for an evidentiary hearing to determine what kind of relief, if any, would be appropriate. Id. at 712.
Finally, in Franz v. United States, a father with visitation rights brought an action on behalf of himself and his children against the United States, the DOJ, and the Attorney General seeking declaratory and injunctive relief, and money damages, related to the children's placement into the Program with their mother and stepfather. 707 F.2d 582 (D.C. Cir. 1983). Finding that plaintiffs possessed a "fundamental liberty interest" in one another's companionship, the court urged the creation of guidelines for the Program that could accommodate such interests and engaged in a lengthy discussion of how adequate guidelines would look. See id. at 603.
In response to these cases and to other developments, including crimes committed by protected persons and their failures to satisfy civil judgments against them, Congress passed the Witness Security Reform Act of 1984, which enacted the current code provisions. Pub. L. 98-473, §§ 1207-1210, 98 Stat. 1837, 2153-63 (1984) (codified as amended at 18 U.S.C. §§ 3521-3528 (the "Program Statute")); see H.R. Rep. No. 98-767, pt. 1, at 13 ("The section relating to child custody problems is an attempt to respond to the decisions of several courts of appeal.") (citing Franz, 707 F.2d 582). Three sections of the Program Statute are particularly relevant to this case, and the court therefore describes them in detail.
Section 3521 establishes the basic parameters of the Program, empowering the Attorney General to take the steps necessary to provide for the relocation and other protection of witnesses and potential witnesses if he determines that they are in danger. § 3521(a)(1). The Attorney General may also provide for the protection of such a witness's immediate family members if they may also be endangered on account of the participation of the witness in a judicial proceeding. Id. The decision to provide protection is discretionary, however, and "[t]he United States and its officers and employees shall not be subject to any civil liability on account of any decision to provide or not to provide protection under this chapter." § 3521(a)(3).
Before providing protection to any person under the Program Statute, the Attorney General shall, to the extent practicable, obtain information relating to the suitability of the person for protection, §3521(c), and enter into a memorandum of understanding with that person, § 3521(d). The memorandum of understanding must include the agreement of the person, inter alia, to comply with legal obligations and civil judgments against that person, to designate another person to act as agent for the service of process, and to make a sworn statement of all outstanding legal obligations, including obligations concerning child custody and visitation. § 3521(d)(1).
For substantial breach of the memorandum of understanding or for providing false information concerning the memorandum or the circumstances pursuant to which protection was provided, including information with respect to child custody and visitation, the Attorney General may terminate protection. § 3521(f). Such termination is not subject to judicial review. Id.
The Attorney General may also "disclose or refuse to disclose the identity or location of the person relocated or protected, or any other matter concerning the person or the program" after weighing enumerated factors including the danger that disclosure would pose to the person and the benefit that it would afford the person seeking the disclosure. § 3521(b)(1)(G). He shall, however, disclose such information to law enforcement officials if the protected person is under investigation for a crime of violence or any offense punishable by more than one year in prison. Id. No one to whom the Attorney General discloses such information may redisclose it without his authorization. Unauthorized disclosure is punishable by a fine of $5,000 or five years imprisonment, or both. § 3521(b)(3).
b. Civil Judgments Provisions
Section 3523 provides a mechanism for holding a protected person to account for his or her civil law obligations. If a protected person is made a defendant in a civil action, the Attorney General "shall make reasonable efforts to serve a copy of the process upon the person protected at the person's last known address. . . . [and] shall notify the plaintiff in the action whether such process has been served." § 3523(a). If a judgment is entered against the protected person, the Attorney General shall determine whether the person has made reasonable efforts to comply with the judgment and take appropriate steps to urge the person to comply with it. Id. If the Attorney General determines that the protected person has not made reasonable efforts to comply, he may disclose the identity and location of that person to the judgment creditor, upon the express condition that further disclosure by the judgment creditor may be made only to the extent that it is essential to his efforts to recover under the judgment. Id. "Any such disclosure or nondisclosure by the Attorney General shall not subject the United States and its officers or employees to any civil liability." Id.
Should the Attorney General decide, in his discretion, not to disclose the identity and location of the protected person, the judgment creditor may bring an action against the protected person in the United States District Court for the district in which the judgment creditor resides. § 3523(b)(1). "The Attorney General shall appear in the action and shall affirm or deny the statements in the complaint that the person against whom the judgment is allegedly held is provided protection under this chapter and that the petitioner requested the Attorney General to disclose the identity and location of the protected person for the purpose of enforcing the judgment." § 3523(b)(2). If the court determines that the petitioner holds a valid judgment and the Attorney General has declined to disclose the identity and location of the protected judgment debtor, then "the court shall appoint a guardian to act on behalf of the petitioner to enforce the judgment." § 3523(b)(3). Then the Attorney General "shall disclose to the guardian the current identity and location of the protected person," and the guardian has the duty to enforce the judgment. § 3523(b)(3)-(4). The guardian may not disclose the identity or location of the protected person other than to a court in order to enforce the judgment. § 3523(b)(4).
c. Child Custody and Visitation Provisions
Section 3524 addresses custody and visitation arrangements with respect to children provided protection through the Program. "The Attorney General may not relocate any child in connection with protection provided to a person under this chapter if it appears that a person other than that protected person has legal custody of that child." § 3524(a). Before providing protection to a child and custodial parent, the Attorney General shall obtain and examine a copy of any court order of custody or visitation for the purpose of assuring that compliance with the order can be achieved. § 3524(b). If compliance with a visitation order cannot be achieved, the Attorney General may provide protection only if the parent being relocated initiates legal action to modify the existing court order and agrees in writing to abide by any resulting court orders. Id.
Next, under subsection (c), "the Attorney General shall, as soon as practicable after the person and child are so relocated, notify" the non-protected parent, to whom the protected parent has obligations with respect to child custody or visitation, that the child has been relocated through the Program. § 3524(c). "The notification shall also include statements that the rights of the parent not so relocated to visitation or custody, or both, under the court order shall not be infringed by the relocation of the child and the Department of Justice responsibility with respect thereto." Id. The DOJ will pay all reasonable costs of transportation and security for visitation at a secure location, up to thirty days or twelve times a year. Id. Additional visitation may be provided for at the discretion of the Attorney General. Id.
Subsections (d), (e), and (f) of Section 3524 create several rights of action in a federal district court. Under Section 3524(d)(1), any party to a court order regarding child custody or visitation may bring an action to modify that order. Under Section 3524(d)(5), a non-protected parent may bring an action against a protected parent for violation by that protected parent of a court order with respect to child custody or visitation. Then,
[i]f the court finds that such a violation has occurred, the court may hold in contempt the protected person. Once held in contempt, the protected person shall have a maximum of sixty days, in the discretion of the Attorney General, to comply with the court order. If the protected person fails to comply with the order within the time specified by the Attorney General, the Attorney General shall disclose the new identity and address of the protected person to the other parent and terminate any financial assistance to the protected person unless otherwise directed by the court. § 3524(d)(5). "The United States shall be required by the court to pay litigation costs, including reasonable attorneys' fees, incurred by a parent who prevails in enforcing a custody or visitation order; but shall retain the right to recover such costs from the protected person." § 3524(d)(6).
Under Section 3524(e)(1), if the Attorney General determines that the implementation of a court order with respect to child custody or visitation is made "substantially impossible" by the child's relocation through the program, he may bring an action to modify that court order on behalf of the protected parent. Upon clear and convincing evidence that implementation would be substantially impossible, "the court may modify the court order but shall, subject to appropriate security considerations, provide an alternative as substantially equivalent to the original rights of the nonrelocating parent as feasible under the circumstances." § 3524(e)(1).
Section 3524(f) provides for a right of action where a protected parent owes child custody or visitation obligations that are not imposed by a court order. In such a case, either parent may bring an action for an order of custody or visitation. § 3524(f).
The United States is obligated to pay the cost of any action brought under Subsections (d), (e), and (f) of ...