United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 12, 2010 Decided February 23, 2010
No. 09-5134
LAURA GONZALEZ-VERA AND ALI ABED BEYDOUN, AS
PERSONAL REPRESENTATIVE OF THE ESTATE OF CARMELO
SORIA ESPINOZA, DECEASED,
APPELLANTS
v.
MICHAEL VERNON TOWNLEY, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:07-cv-00995-HHK)
Sarah Melikian, Student Counsel, argued the cause for
appellants. On the briefs was Ali A. Beydoun, Supervisory
Attorney.
Abby C. Wright, Attorney, U.S. Department of Justice,
argued the cause for appellees. With her on the brief was
Mark B. Stern, Attorney. R. Craig Lawrence, Assistant U.S.
Attorney, entered an appearance.
Before: HENDERSON and TATEL, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
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Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: How does one enforce a civil
judgment against a person protected by the Witness Security
Program? Congress, it turns out, answered this question in
18 U.S.C. § 3523. That provision requires the Attorney
General to determine whether the protected person is making
“reasonable efforts” to satisfy the judgment and establishes
procedures for collecting the judgment if the person is failing
to do so. In this case, the Attorney General found that a
protected person would make reasonable efforts to pay a
judgment owed to appellant. Dissatisfied, appellant sought to
invoke one of section 3523’s enforcement procedures—
appointment of a guardian to help collect the judgment.
Under these circumstances, the district court held, section
3523 does not authorize appointment of a guardian. For the
reasons set forth in this opinion, we agree.
I.
On September 21, 1976, former Chilean ambassador and
foreign minister Orlando Letelier and his assistant Ronni
Moffitt were assassinated as they drove to their office in
Washington, D.C. Michael Vernon Townley, an American
citizen and agent of Chilean President Augusto Pinochet’s
intelligence service, Dirección de Intelligencia Nacional,
admitted his complicity in the killings, testified in the
criminal proceedings, and pleaded guilty to one count of
conspiracy to murder a foreign official. United States v.
Sampol, 636 F.2d 621, 629 & n.3 (D.C. Cir. 1980). After
serving five years in prison, Townley entered the Witness
Security Program (WSP), commonly known as the Witness
Protection Program. Through the WSP, the Attorney General
may relocate and protect witnesses whose safety is at risk. 18
3
U.S.C. § 3521(a)(1). Such protection may include the
creation of a new identity. Id. § 3521(b)(1)(A).
In the years following the two assassinations, Townley’s
involvement in various other crimes came to light. In
particular, he was linked to the July 1976 torture and murder
of Carmelo Soria Espinoza (“Soria”), a United Nations
diplomat then living and working in Chile. In November
2002, Soria’s widow, Laura Gonzalez-Vera, along with the
personal representative of Soria’s estate, sued Townley
seeking damages for Soria’s torture and killing. When
Townley defaulted, the district court entered a $7 million
judgment against him. Gonzalez-Vera v. Kissinger, No. 02-
02240, Order for Default Judgment (D.D.C. Nov. 23, 2005).
Gonzalez-Vera then asked the Attorney General to help
collect the judgment pursuant to 18 U.S.C. § 3523.
Subsection (a) of that provision states that if a civil judgment
is entered against a person enrolled in the WSP, “the
Attorney General shall determine whether the [protected]
person has made reasonable efforts to comply with the
judgment” and “shall . . . urge the person to comply with the
judgment.” In language central to this case, subsection (a)
states:
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.
In response to Gonzalez-Vera’s request, the United States
Marshals Service informed Townley that unless he took
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satisfactory steps to comply with the judgment, his identity
and location could be disclosed pursuant to subsection (a).
Townley responded with an affidavit describing his present
assets, debts, income, and financial history. Based on that
affidavit, the WSP Director, to whom the Attorney General
has delegated his authority on such issues, determined that “it
is not unreasonable for [Townley] to pay $75 per week”
toward the judgment. Letter from Stephen J. T’Kach,
Director, U.S. Department of Justice Witness Security
Program, to Jeffery M. Johnson, Dickstein Shapiro LLP (June
1, 2007). Townley agreed, but according to the Director,
Gonzalez-Vera rejected the arrangement and so has received
no payments. Although Gonzalez-Vera has a different view
of what transpired, this disagreement is irrelevant to the
statutory question we face here.
Gonzalez-Vera then sued Townley and the Attorney
General in the United States District Court for the District of
Columbia pursuant to section 3523(b)(1), which provides that
any person who holds a judgment against a WSP participant
“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.” If the petitioner in fact
holds a judgment and if the court finds “that the Attorney
General has declined to disclose to the petitioner the current
identity and location of the protected person,” then subsection
(b)(3) requires the court to “appoint a guardian to act on
behalf of the petitioner.” § 3523(b)(3). The Attorney
General must then disclose to the guardian the protected
person’s identity and location. Id.
The Attorney General moved to dismiss, arguing that
subsection (b)(1) makes a guardianship proceeding available
only where the Attorney General determines that the
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protected person is failing to make reasonable efforts to
comply but, “after considering the danger to the [protected]
person,” § 3523(a), nonetheless declines to disclose the
person’s identity and location. Subsection (b)(1) does not,
the Attorney General insisted, allow the judgment-holder to
sue for the appointment of a guardian, where, as here, the
Attorney General finds that the protected person will make
reasonable efforts to pay.
Agreeing with the Attorney General, the district court
emphasized that “the statute authorizes plaintiffs to bring this
action only ‘upon a decision by the Attorney General to deny
disclosure’”—a decision, the district court held, the Attorney
General had no authority to make “because § 3523(a) does
not authorize . . . disclosure unless the [Attorney General]
determines that Townley has not made reasonable efforts to
comply with the judgment.” Gonzalez-Vera v. Townley, 597
F. Supp. 2d 98, 102, 101 (D.D.C. 2009) (quoting
§ 3523(b)(1)). Having found that Townley would make
reasonable efforts, the Attorney General “had no choice, no
discretion, no decision.” Id. at 102. Because Gonzalez-Vera
“lack[ed] statutory authorization to bring this suit,” the
district court dismissed the case. Id.
Gonzalez-Vera appeals, arguing that the district court
misinterpreted the statute. We review de novo the district
court’s grant of a motion to dismiss, see, e.g., Piersall v.
Winter, 435 F.3d 319, 321 (D.C. Cir. 2006), as well as its
resolution of this “pure question of statutory interpretation,”
United States v. Villanueva-Sotelo, 515 F.3d 1234, 1237
(D.C. Cir. 2008); see also Murphy Exploration and Prod. Co.
v. Dep’t of Interior, 252 F.3d 473, 478–79 (D.C. Cir. 2001)
(agency’s construction of a statute receives no deference
where statute grants judicial power to the courts rather than
administrative power to the agency).
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II.
As noted above, section 3523(b)(1) permits a judgment-
holder to sue for the appointment of a guardian “upon a
decision by the Attorney General to deny disclosure.”
Because this case turns on the meaning of that phrase and its
relationship to the process described in subsection (a), we
think it helpful to begin by quoting the relevant provisions of
the statute in full:
(a) If a judgment . . . is entered against [a protected]
person the Attorney General shall determine
whether the person has made reasonable efforts
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 . . . resides. . . .
(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
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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
under this subsection. . . .
18 U.S.C. § 3523.
The parties agree that the Attorney General makes a
“decision . . . to deny disclosure” within the meaning of
subsection (b)(1) when he (1) finds that the protected person
is failing to make reasonable efforts to comply with the
judgment but (2) nonetheless declines to disclose because
disclosure of the protected person’s identity and location
would endanger that person. According to Gonzalez-Vera,
the Attorney General also makes a “decision . . . to deny
disclosure” where, as here, he determines that the protected
person is making reasonable efforts to satisfy the judgment,
and thus does not disclose the protected person’s identity and
location. In support, Gonzalez-Vera relies on two features of
section 3523. First, she points out that nothing in subsection
(a) expressly bars the Attorney General from disclosing the
protected person’s information if he determines that
reasonable efforts are being made. In other words, she
argues, the Attorney General has authority to disclose—and
thus can make a “decision . . . to deny disclosure”—even
where he finds that the protected person is making reasonable
efforts. Second, she emphasizes that subsection (b) nowhere
references the reasonable-efforts determination required by
subsection (a), thus demonstrating that these two subsections
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provide “two independent mechanisms to assist with
enforcement of an outstanding judgment.” Appellant’s Br. 8.
Accordingly, she concludes, subsection (b)(1)’s guardianship
proceeding is available regardless of the outcome of
subsection (a)’s reasonable-efforts determination.
Like the district court, we find Gonzalez-Vera’s position
inconsistent with the statute’s text. Under subsection (a), the
Attorney General begins by “determin[ing] whether the
[protected] person has made reasonable efforts to comply
with the judgment.” “If” the answer is no, the statute gives
the Attorney General two choices. He “may” disclose the
protected person’s identity and location to the judgment-
holder or, if doing so would endanger the protected person,
he “may” decline to disclose, in which case the judgment-
holder can invoke subsection (b)(1) and seek appointment of
a guardian. But where, as here, the Attorney General
“determines” that the protected person is making reasonable
efforts, the statute gives him no authority to disclose to the
judgment-holder. Cf. United Mine Workers of Am. v. Mine
Safety and Health Admin., 823 F.2d 608, 618 (D.C. Cir.
1987) (reading 30 U.S.C. § 815(b)(2), which states that the
agency “may grant . . . [temporary] relief if” one of several
conditions is met, as authorizing it to grant such relief only if
one of the delineated conditions is met). In that
circumstance, the judgment-holder has no authority to initiate
subsection (b)’s guardianship proceedings because, by its
terms, subsection (b)(1) is triggered only “upon a decision by
the Attorney General to deny disclosure”—a decision the
Attorney General can make only if the protected person is not
making reasonable efforts to satisfy the judgment.
§ 3523(b)(1) (emphasis added).
Nor do we agree with Gonzalez-Vera that “[b]ecause
Congress explicitly included language addressing reasonable
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efforts in § 3523(a), the omission of similar language in
§ 3523(b) demonstrates that Congress purposefully excluded
a requirement from § 3523(b) that the Attorney General make
a reasonable efforts determination.” Appellant’s Br. 12. As
previously noted, subsection (a) provides that if the Attorney
General finds that a protected person is not making
reasonable efforts to comply, “the Attorney General may . . .
disclose the identity and location of the person” to the
judgment-holder. Subsection (b) repeatedly refers back to
this language. Specifically, subsection (b)(1) states that the
judgment holder “may, upon a decision by the [Attorney
General] to deny disclosure . . . bring an action.” Similarly,
subsection (b)(3) states that, before appointing a guardian, the
court must determine that the Attorney General has “declined
to disclose to the petitioner the current identity and location
of the protected person.” By using this language consistently
throughout section 3523, we think it clear that Congress
intended to make the availability of subsection (b)’s
guardianship provision dependent upon the Attorney
General’s subsection (a) decision to deny disclosure. See Am.
Fed’n of Gov’t Employees, Local 2782 v. Fed. Labor
Relations Auth., 803 F.2d 737, 740 (D.C. Cir. 1986) (“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.’”) (citation omitted) (ellipsis in original).
This result makes sense. Under Gonzalez-Vera’s
interpretation of subsection (b), guardianship would become
available in every case in which the protected person’s
identity and location are not disclosed to the judgment-
holder, including cases—like this one—in which the
Attorney General determines that the protected person is
making reasonable efforts to satisfy the judgment. But given
the statute’s language and structure, and the risks of
10
disclosing a protected person’s identity and location even to a
court-appointed guardian, we think it clear that Congress
intended to make guardianship available only where the
Attorney General finds that the protected person is failing to
make reasonable efforts—that is, only where disclosure to a
guardian is necessary to enforce the judgment. We realize
this leaves Gonzalez-Vera, though dissatisfied with
Townley’s efforts to pay, without a remedy in these
proceedings. As the Attorney General acknowledged at oral
argument, however, she remains free to seek a fresh
subsection (a) determination should she have reason to
believe that Townley’s financial circumstances may have
changed.
Finally, Gonzalez-Vera contends that our interpretation
of section 3523 presents two avoidable constitutional
concerns. Citing Hayburn’s Case, 2 U.S. 408, 410 (1792),
she first argues that by blocking a guardianship proceeding,
the Attorney General is, in effect, “revis[ing] or overturn[ing]
a final decision by an Article III court.” Appellant’s Br. 22.
Second, she argues that, as interpreted by the district court,
section 3523 violates the Fifth Amendment by depriving her
of her judgment, as well as the statutory right to a guardian,
without due process of law. But because Gonzalez-Vera
advanced neither of these arguments in the district court, she
may not do so here. See, e.g., Trout v. Sec’y of the Navy, 540
F.3d 442, 448 (D.C. Cir. 2008). To be sure, as Gonzalez-
Vera reminds us, waiver is a discretionary doctrine, but we
think it clear that no “plain miscarriage of justice” will result
from our declining to consider these arguments. Hormel v.
Helvering, 312 U.S. 552, 558 (1941).
We affirm the district court’s order dismissing the case.
So ordered.