J.S. v. T'Kach
714 F.3d 99
2d Cir.2013Background
- JS, a former Witness Security Program participant, was in custody at FCI Otisville from Dec 2007 to Mar 2010.
- JS’s program participation was governed by a written agreement and a DOJ MOU; the Attorney General has broad discretionary authority over protection levels.
- OEO terminated JS for alleged unauthorized contacts with unauthorized individuals, according to Rule 2b; JS received a termination notice and timely appeal rights were involved.
- JS appealed on grounds that he was not told the factual basis for termination before the appeal decision and that staff had approved contacts.
- OEO denied the appeal; after denial, JS was placed in the SHU for 188 days, triggering due process and Eighth Amendment concerns.
- The district court dismissed JS’s complaint sua sponte, holding lack of subject-matter jurisdiction over termination claims under § 3521(f) and declining to address the SHU claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 3521(f) bars review of termination challenges | JS argues due process claims survive despite the bar. | JS’s termination review is statutorily barred from judicial review. | § 3521(f) bars judicial review of termination decisions. |
| Whether JS had a property interest in program participation requiring due process | JS contends termination violated due process by not receiving adequate notice and opportunity to challenge. | Participation in the Program does not create a protectable property interest; discretion governs termination. | No protectable property interest in program participation; due process claim failure. |
| Whether the SHU confinement claim should be permitted to proceed | 188 days in SHU implicates a Sandin-type liberty interest; claim should not be dismissed without fact-finding. | Confinement was discretionary and not reviewable; the district court need not allow amendment. | SHU claim implicated a liberty interest and should be remanded with leave to replead; district court erred in dismissing sua sponte. |
Key Cases Cited
- United States v. Gigante, 187 F.3d 261 (2d Cir. 1999) (district court without jurisdiction to review terminat ion decisions under § 3521(f))
- Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985) (pre-deprivation due process requires adequate process; property interest framework)
- Sandin v. Conner, 515 U.S. 472 (1995) (liberty interests in prison confinement determined by atypical and significant hardship)
- Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005) (no protected entitlement where government officials exercise discretion)
- Davis v. Barrett, 576 F.3d 129 (2d Cir. 2009) (SHU confinement can implicate Sandin liberty interests; need factual record)
- Reynoso v. Selsky, 292 Fed.Appx. 120 (2d Cir. 2008) (SHU confinement durations require factual findings to determine atypicality)
- Arce v. Walker, 139 F.3d 329 (2d Cir. 1998) (insufficient SHU confinement duration discussion; liberty interest analysis)
- U.S. v. Gigante, 187 F.3d 261 (2d Cir. 1999) (reviewability of termination decisions under § 3521(f))