                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA



   LAURA GONZALEZ-VERA, et al.

                          Plaintiffs,

                         v.
                                                      Civil Action 07-00995 (HHK)
   MICHAEL VERNON TOWNLEY, et al.,

                          Defendants.




                                  MEMORANDUM OPINION

       Plaintiffs Laura Gonzalez-Vera and Aaron Lloyd (together, “plaintiffs”) bring this action

against defendants Michael Vernon Townley, United States Attorney General Eric Holder (“AG”),

and the United States of America (“Government”) (together, “defendants”). Townley is a person

under the protection of the federal Witness Security Program, 18 U.S.C. § 3521 et seq. (2006)

(“WSP”), and plaintiffs seek to enforce a civil judgment against him. Accordingly, they name

Townley as a defendant, but the de facto respondent pursuant to 18 U.S.C. § 3523(b) is the AG.

Essentially, plaintiffs ask the court to appoint a guardian to enforce their judgment against Townley.

Before the court are two dispositive motions: plaintiffs’ “motion for summary judgment” [#9] and

defendants’ “motion to dismiss, or alternatively, for summary judgment” [#12]. Upon consideration

of the motions, the oppositions thereto, and the record of this case, the court concludes that

plaintiffs’ motion must be DENIED and defendants’ motion must be GRANTED.
                                      I. BACKGROUND

       Plaintiff Gonzalez-Vera is the widow of Carlos Soria, and plaintiff Lloyd is the personal

representative of his estate. They hold a judgment against Townley for his role in Soria’s murder.

See Gonzalez-Vera v. Kissinger, 1:02-cv-02240, Order Granting Def. Judg. (November 23, 2005).

Their efforts to enforce the judgment are governed by 18 U.S.C. § 3523, which provides:

       (a) If a person provided protection under this chapter is named as a defendant in a
       civil cause of action arising prior to or during the period in which the protection is
       provided . . . . 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. The
       Attorney General shall notify the plaintiff in the action whether such process has
       been served. If a judgment in such action is entered against that person the Attorney
       General shall determine whether the person has made reasonable efforts to comply
       with the judgment. The Attorney General shall take appropriate steps to urge the
       person to comply with the judgment. If the Attorney General determines that the
       person has not made reasonable efforts to comply with the judgment, the Attorney
       General may, after considering the danger to the person and upon the request of the
       person holding the judgment disclose the identity and location of the person to the
       plaintiff entitled to recovery pursuant to the judgment.

                                                 ***
       (b)(1) Any person who holds a judgment entered by a Federal or State court in his
       or her favor against a person provided protection under this chapter may, upon a
       decision by the Attorney General to deny disclosure of the current identity and
       location of such protected person, bring an action against the protected person in the
       United States district court in the district where the person holding the judgment
       (hereinafter in this subsection referred to as the “petitioner”) resides. . . .

                                                 ***
       [(b)](3) Upon a determination (A) that the petitioner holds a judgment entered by a
       Federal or State court and (B) that the Attorney General has declined to disclose to
       the petitioner the current identity and location of the protected person against whom
       the judgment was entered, the court shall appoint a guardian to act on behalf of the
       petitioner to enforce the judgment. . . . The Attorney General shall disclose to the
       guardian the current identity and location of the protected person and any other
       information necessary to enable the guardian to carry out his or her duties . . . .

18 U.S.C. § 3523 (emphasis added). The issue before the court is how to interpret these provisions.



                                                 2
       There is no dispute that the AG has complied with his obligations under § 3523(a): the AG

served Townley with process and notified plaintiffs that Townley had been served; and after

plaintiffs secured a default judgment against Townley, the AG determined that Townley would make

reasonable efforts to comply with that judgment by paying $75 per week until his retirement.

Therefore, plaintiffs ask nothing more of the AG with respect to § 3523(a). Pursuant to § 3523(b),

however, plaintiffs contend that the court must appoint a guardian to enforce their judgment and that

the AG must disclose Townley’s identity and location to that guardian to facilitate that enforcement.

The AG counters that plaintiffs have no right to a guardian and that § 3523(b) imposes no obligation

on him. The parties offer conflicting interpretations of § 3523(a)-(b) in support of their positions.

                                          II. ANALYSIS

       The instant motions present a straightforward question of statutory interpretation: whether

plaintiffs are entitled to a court-appointed guardian under § 3523. “In resolving a question of

statutory interpretation, a court’s starting point is always the language of the statute.” Saadeh v.

Farouki, 107 F.3d 52, 57 (D.C. Cir. 1997) (citing Commissioner of Internal Revenue v. Engle, 464

U.S. 206, 214 (1984)). “If the language is plain on its face, courts do not ordinarily resort to

legislative history.” Id. (citing Garcia v. United States, 469 U.S. 70, 76 n.3 (1984)). Furthermore,

“It is a generally accepted precept of interpretation that statutes or regulations are to be read as a

whole, with each part or section . . . construed in connection with every other part or section.”

American Federation of Government Employees, Local 2782 v. Federal Labor Relations Authority,

803 F.2d 737, 740 (D.C. Cir. 1986) (internal quotation omitted). And “the cardinal principle of

statutory construction [is] that courts must give effect, if possible, to every clause and word of a

statute . . . .” Williams v. Taylor, 529 U.S. 362, 364 (2000).


                                                  3
       Plaintiffs contend that the court must appoint a guardian pursuant to § 3523(b). In support

of their contention, plaintiffs argue that the court must appoint a guardian if they can establish two

preconditions: first, that they “hold[] a judgment entered by a Federal or State court”; and second,

that the Attorney General has declined to disclose to the petitioner the current identity and location

of the protected person against whom the judgment was entered. § 3523(b)(3)(A)-(B). According

to plaintiffs, they have established both conditions: they hold a valid judgment against Townley, and

the AG has declined to disclose Townley’s identity and location to them. Accordingly, plaintiffs

contend that the court must appoint a guardian under a plain reading of § 3523(b)(3).

       Defendants counter that plaintiffs have no right to a guardian under § 3523(b)(3). Defendants

acknowledge that plaintiffs hold a judgment and thus have established the first precondition, but they

contend that plaintiffs cannot establish the second precondition. According to defendants, the error

in plaintiffs interpretation of § 3523 is that it completely ignores § 3523(a). Specifically, defendants

point out that § 3523(a) only authorizes the AG to disclose Townley’s identity and location to

plaintiffs “if the [AG] determines that [Townley] has not made reasonable efforts to comply with the

judgment.” § 3523(a). Here, the AG has not made such a determination. Indeed, the AG determined

that Townley will make reasonable efforts to comply with the judgment. Thus, the AG “has [not]

declined to disclose” Townley’s identify to plaintiffs because the statute never authorized him to do

so in the first place. § 3523(b)(3). Accordingly, defendants contend that plaintiffs have not satisfied

the second precondition, and they are not entitled to a court-appointed guardian.

       The court agrees with defendants. The AG has not declined to reveal Townley’s identity and

location within the meaning of the statute because § 3523(a) does not authorize a disclosure unless

the AG determines that Townley has not made reasonable efforts to comply with the judgment.


                                                   4
Plaintiffs admitted as much before this litigation, and they requested nothing more from the AG.

(See Pls.’ Mot. Summ. J., Ex. C, at 9 (They requested: “[i]f it is determined that Defendant Townley

has not made reasonable efforts to comply with the judgment, that the Attorney General disclose the

identity and location of Defendant Townley to Plaintiff’s counsel.”); id. at 15 (same).) The AG

determined that Townley will make reasonable efforts to comply with the judgment.1 Under §

3523(a), once the AG has made that determination, the statute authorizes him to do nothing more.

Therefore, plaintiffs have not satisfied § 3523(b)(3)(B), and they are not entitled to a guardian.2

         What necessarily follows from this conclusion goes beyond plaintiffs having failed to satisfy

§ 3523(b)(3)(B). Indeed, the statute does not authorize petitioners to bring this case at all.

Specifically, the statute authorizes plaintiffs to bring this action only “upon a decision by the

Attorney General to deny disclosure of [Townley’s] current identity and location . . . .” § 3523(b)(1)

(emphasis added). Here, the AG did not make a “decision . . . to deny disclosure” because the AG

was not authorized to disclose Townley’s identity. Id. The statute grants the AG authority to

disclose Townley’s identity only upon finding that Townley was not making reasonable efforts to

comply with the judgment. See § 3523(a). The AG made no such determination. Accordingly, he

could not disclose Townley’s identity. The AG had no choice, no discretion, no decision. See id.



         1
           Plaintiffs suggest that the AG incorrectly determined that Townley will make reasonable efforts to comply
with the judgment. Indeed, plaintiffs contend that Townley has more assets than the AG has located and thus is able
to make a greater payment than the $75 per month payment, which the AG specified. These arguments, however, are
not relevant to the question of statutory interpretation before the court.

         2
            The relevant legislative history supports this conclusion. During the floor debate, Rep. Moorehead
described the purpose of the statute as follows: “H.R. 4249 would codify the existing practice of the Department to
disclose the new name and location of the protected witness if the person refuses to honor an outstanding judgment.”
130 Cong. Rec. 13016 (1986) (emphasis added). Thus, according to Rep. Moorehead, the statute only contemplates
disclosing the name and location of a protected witness, like Townley, if the AG first determines that Townley is not
making reasonable efforts to comply with or “to honor” the judgment against him. See id.

                                                          5
The “decision,” which the AG may have had before him, lies in his discretionary authority to

disclose or not disclose Townley’s identity based on his assessment of the “danger” that Townley

would face from disclosure. See id. The statutes does not authorize the AG to make this assessment

nor this decision, however, unless he determines that Townley has not made reasonable efforts to

comply with the judgment. Therefore, once the AG determined that Townley would make

reasonable efforts to comply, no decision was before him. Accordingly, plaintiffs lack statutory

authorization to bring this suit.3 See § 3523(b)(1).

         Accepting all allegations as true, the court holds that this action must be dismissed because

plaintiffs can prove no set of facts in support of any of their claims that would entitle them to relief.4

See Gray v. Bell, 712 F.2d 490, 493 n.2 (D.C. Cir. 1983); see also FED . R. CIV . P. 12(b).




         3
            The only federal case that has interpreted § 3523 supports this conclusion. See Hermanson v. Hunter,
Civ. No. 07-00936, 2008 W L 2856470, *3-4 (N.D. Cal. July 23, 2008) (holding that the district court lacked subject
matter jurisdiction because the plaintiff had no right to bring suit and because the United States had not waived its
sovereign immunity; both conclusions were based on the finding that the plaintiff did not ask the AG to disclose the
protected person’s identity, and, therefore, the AG did not make a decision to deny disclosure). Unlike the court in
Hermanson, the court here finds no issue with respect to sovereign immunity. The reason is that § 3523(b)(1) only
authorizes a plaintiff to bring a suit “against the protected person,” not against the AG or the United States. The only
burden that § 3523(b)(2) places on the AG is to “appear in the action” and “affirm or deny” certain allegations in the
complaint. Accordingly, neither the AG nor the United States is a proper defendant in this case. Thus, were the
court not dismissing the entire case, it certainly would dismiss the AG and the United States. That said, the court
holds only that § 3523 did not authorize plaintiffs to bring this suit, and, therefore, this action must be dismissed.

         4
            The court need not address defendants’ argument that plaintiffs cannot bring this suit because they do not
reside in this district nor need the court address the host of policy arguments raised by the parties.

                                                           6
                                     III. CONCLUSION

      For the foregoing reasons, it is this 18th day of February 2009, hereby

      ORDERED that plaintiffs’ motion for summary judgment [#9] is DENIED, and that

defendants’ motion to dismiss, or in the alternative, for summary judgment [##12, 16] is

GRANTED. The court will enter a FINAL JUDGMENT in accordance with this Memorandum

Opinion.




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