Appendix — Leonhard v. United States
Supreme Court brief1981
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In The ;
Supreme Court of the United States
OCTOBER TERM, 1980
THOMAS S. LEONHARD, et al.,
Petitioners,
US.
UNITED STATES OF AMERICA, etal.,
Respondents.
Petition For A Writ Of Certiorari To The
United States Court Of Appeals For The
Second Circuit
PETITIONERS’ APPENDIX
SALVATORE R. MARTOCHE, ESQ.
Attorney for Petitioners
300 Statler Office Building
Buffalo, New York 14202
(716) 856-1010
Law Offices of
MARTOCHE AND FEUERSTEIN
Of Counsel
TABLE OF CONTENTS
APPENDIX A
Opinions, Orders and Judgments of the
United States Court of Appeals
for the Second Circuit
and
District Court for the Western District
of New York
Order of United States Court of Appeals Second Circuit,
SE NIN TIES, ox: 6 w'6Sace 0 08 ba Wo6 4d 00,0084
Notice of Motion and Order of United States Court of
Appeals Second Circuit, Dated September 9, 1980... .
Order of United States Court of Appeals Second Circuit,
I a So bine » Med able a6: Oe"
Opinion of United States Court of Appeals Second Circuit
Order of United States District Court Western District of
New York, Dated November 10, 1980 .............
Corrected Judgment of United States District Court
Western District of New York, Dated November 10,
Judgment of United States District Court Western
District of New York, Dated September 24, 1979... ..
Opir.ion of United States District Court Western District
of New York, Dated September 21,1979 ...........
Judgment of United States District Court Western
District of New York, Dated October 29, 1979 .......
A-61
A-62
A-63
A-64
A-71
**»
7’.
w
Opinion of United States District Court Western District
of New York, Dated October 25, 1979.............. A-72
Letter of Hon. Harold P. Burke, Dated November 19,
APPENDIX B
Constitutional Provisions and Statutes Involved....... B-l
APPENDIX A
Opinions, Orders and Judgments of the
United States Court of Appeals
for the Second Circuit
and
District Court for the Western District
of New York
A-1
APPENDIX A
Order of United States Court of Appeals Second Circuit
Dated October 24, 1980
UNITED STATES COURT OF APPEALS
SECOND CIRCUIT
At a stated term of the United States Court of Appeals, in and
for the Second Circuit, held at the United States Court House, in
the City of New York, on the 24th day of October, one thousand
nine hundred and eighty.
THOMAS 8S. LEONHARD, etal.,
Plaintiffs-Appellants,
Vv.
THE UNITED STATES OF AMERICA; UNITED STATES
DEPARTMENT OF JUSTICE; et al.,
Defendants-Appellees,
and
PASCAL CALABRESE,
Defendant.
79-6218
A petition for rehearing containing a suggestion that the
action be reheard in banc having been filed herein by counsel for
the plaintiff-appellant, Thomas E. Leonard,
Upon consideration by the panel that heard the appeal, it is
Ordered that said petition for rehearing is DENIED.
It is further noted that the suggestion for rehearing in banc
has been transmitted to the judges of the court in regular active
service and to any other judge on the panel that heard the appeal
'»
ry
A-2
APPENDIX A
Order of United States Court of Appeals Second Circuit
Dated October 24, 1980
and that no such judge has requested that a vote be taken
thereon.
ls) A. DANIEL FUSARO
A. Daniel Fusaro
Clerk
UNITED STATES COURT OF APPEALS
SECOND CIRCUIT
FILED
OCT 24 1980
A. DANIEL FUSARO, CLERK
'*
A-3
APPENDIX A
Notice of Motion and Order of United States
Court of Appeals Second Circuit, Dated September 9, 1980
Docket Number 79-6218
NOTICE OF MOTION
for extension of time to file Petition for Rehearing en banc.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
THOMAS S. LEONHARD, ET AL.
vs.
THE UNITED STATES OF AMERICA, ET AL.
MOTION BY:
ALAN R. FEUERSTEIN, (716) 856-1010
Has opposing counsel consented? No.
Has service been effected? Yes.
Is oral argument desired? No.
(Substantive motions only)
Requested return date: 9/12/80
(See Second Circuit Rule 27(b))
Date of argument of appeal, if scheduled: January, 1980
Judge or agency whose order is being appealed:
OPPOSING COUNSEL:
ANTHONY J. STEINMEYER, (202) 633-5108; COBBY
SHERIFF, (212) 488-3444; ANTHONY C. VACARRO (716) 855-
4343
Brief statement of the relief requested: Extension of time to
file petition for Rehearing en banc.
|
A4
APPENDIX A
Notice of Motion and Order of United States
Court of Appeals Second Circuit, Dated September 9, 1980
Previous requests for similar relief and disposition: none
Statement of the issue(s) presented by this motion: delay in
receipt of the opinion of the panel of this Court as necessitating
an extension of time for the Appellant to file petition for a
rehearing en banc.
Brief statement of the facts (with page references to the
moving papers): As of 9/5/80, the appellant has not received a
copy of the opinion rendered by a panel of this Court on the
above-captioned action, even though the same was entered on
August 28, 1980. Appellant has made several attempts to obtain
a copy of this opinion, both through this Court, and other
sources, without success. A copy of the opinion is necessary for
the appellant to prepare his petition for rehearing en banc.
Summary of the argument (with page references to the moving
papers): As of 9/5/80, more than one week after it had been
entered by a panel of this Court, the appellant has not yet
received a copy of this Court’s opinion, affirming the District
Court’s Orders in the above-captioned action. ecause of the
complexity of the issues involved in this case, and the length of
the said opinion, it is necessary that the appellant have a copy of
the same before preparing this petition for rehearing en banc. As
the 14-day period for filing petition for rehearing will soon pass
without the appellant having received a copy of this Court’s
opinion, it is respectfully requested that this Court extend the
time in which the appellant may file his petition.
The return date requested is a product of the time limits
involved in the petition for rehearing. (Please refer to attached
affidavit)
Date: September 5, 1980
ls) ALAN R. FEUERSTEIN
Alan R. Feuerstein
.%
A-5
APPENDIX A
Notice of Motion and Order of United States
Court of Appeals Second Circuit, Dated September 9, 1980
ORDER
IT IS HEREBY ORDERED that the motion for leave to file
today a petition for rehearing be and it hereby is granted.
ls) AMALYA L. KEARSE
Hon. Amalya L. Kearse, CJ
Circuit Judge
Date: September 24, 1980
UNITED STATES COURT OF APPEALS
SECOND CIRCUIT
FILED
SEP 9, 1980
A. DANIEL FUSARO, CLERK
A46
APPENDIX A
Order of United States Court of Appeals Second Circuit
Dated August 28, 1980
UNITED STATES COURT OF APPEALS
FOR THE
SECOND CIRCUIT
At a stated Term of the United States Court of Appeals for the
Second Circuit, held at the United States Courthouse in the City
of New York, on the twenty-eighth day of August, one thousand
nine hundred and eighty.
Present:
HON. HENRY J. FRIENDLY
HON. WALTER R. MANSFIELD
HON. AMALYA L. KEARSE, C.JJ.
THOMAS S. LEONHARD, Individually, and THOMAS S.
LEONHARD, As Natural Parent and Legal Guardian of:
MICHAEL LEONHARD, An _ Infant, STEPHAN
LEONHARD, An Infant, and KAREN LEONHARD, An
Infant,
Plaintiff-Appellants,
THE UNITED STATES OF AMERICA; UNITED STATES
DEPARTMENT OF JUSTICE; et. al.
79-6218
Appeal from the United States District Court for the Western
District of New York.
This cause came on to be heard on the transcript of record from
the United States District Court for the Western District of New
York, and was argued by counsel.
AT
APPENDIX A
Order of United States Court of Appeals Second Circuit
Dated August 28, 1980
ON CONSIDERATION WHEREOF, it is now hereby ordered,
adjudged, and decreed that the orders of said District Court be
and they hereby are affirmed without costs in accordance with
the opinion of this court.
A. DANIEL FUSARO, Clerk
ls) ARTHUR HELLER
by: Arthur Heller, Deputy Clerk
A true copy,
ls) A. DANIEL FUSARO
Clerk
UNITED STATES COURT OF APPEALS
SECOND CIRCUIT
FILED
AUG 28 1980
A. DANIEL FUSARO, CLERK
A8
APPENDIX A
Opinion of United States Court of Appeals Second Circuit
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
>
No. 658—September Term, 1979
(Argued January 18, 1980 Decided August 28, 1980)
Docket No. 79-6218
>
THOMAS §. LEONHARD, Individually, and THomas §S.
LEONHARD, as Natural Parent and Legal Guardian
of: MICHAEL LEONHARD, an Infant, STEPHAN
LEONHARD, an Infant, and KAREN LEONHARD, an
Infant,
Plaintiffs-Appellants,
—-V.—
THE UNITED STATES OF AMERICA; UNITED STATES DEPART-
MENT OF JUSTICE; HON. GRIFFIN BELL, and His
Predecessors in Office, to and Including HON. JOHN
MITCHELL, Individually and in their Official Capac-
ity; THOMAS A. KENNELLY, Individually and in His
Official Capacity; GERALD SHUR, Individually and in
His Official Capacity; BENJAMIN R. CIVILETT!,
Individually and in his Official Capacity; THE
UNITED STATES MARSHAL’S SERVICE; WAYNE B.
COLBURN, Individually and in his Official Capacity;
FIVE UNKNOWN AGENTS OF THE UNITED STATES
DEPARTMENT OF JUSTICE, Individually and in their
Official Capacity; JOHN CAMERON, Individually and
in His Official Capacity; THE NEW YORK STATE
DEPARTMENT OF CORRECTIONAL SERVICES; BENJAMIN
s+.
A-9
APPENDIX A Sieh
Opinion of United States Court of Appeals Second Circurt
WARD, and his Predecessors in Office from 1967,
Individually and in Their Official Capacity; THE
NEW YORK STATE BOARD OF PAROLE; EUGENE
HAMMOCK, and His Predecessors in Office from
1967, Individually and in Their Official Capacity;
THE CITY OF BUFFALO; SAMUEL GIAMBRONE, Individu-
ally and in His Official Capacity, Si
Defendants-Appellees,
—and—
PASCAL CALABRESE, Individually and in
His Official Capacity,
Defendant.
Before:
FRIENDLY, MANSFIELD and KEARSE,
Circuit Judges.
>
Appeal from orders of the United States District
Court for the Western District of New York, Harold P.
Burke, Judge, dismissing complaint for damages
resulting from separation and concealment of the three
infant plaintiffs from their father.
Affirmed.
—
ALAN R. FEUERSTEIN, Buffalo, N.Y. (Mar-
toche and Feuerstein, Buffalo, N.Y., on
the brief), for Plaintiffs-Appellants.
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A-10
APPENDIX A
Opinion of United States Court of Appeals Second Circuit
ANTHONY J. STEINMEYER, Attorney, Depart-
ment of Justice, Washington, D.C.
(Richard J. Arcara, United States Attor-
ney for the Western District of New
York, Alice Daniel, Assistant Attorney
General, on the brief), for the United
States and other federal Defendants-
Appellees.
GERALD RYAN, Assistant Attorney General
(Robert Abrams, Attorney General of
the State of New York, Cobby J.
Shereff and Deborah L. Wolikow, Law
Apprentices, on the brief), for the New
York State Department of Correctional
Services and other state Defendants-
Appellees.
ANTHONY C. VACCARO, Assistant Corporation
Counsel, Buffalo, N.Y. (Joseph P.
McNamara, Corporation Counsel, on the
brief), for Defendants-Appellees City of
Buffalo and Samuel Giambrone.
So
KEARSE, Circuit Judge:
Thomas Leonhard (“Leonhard”), suing in his own
behalf and as legal guardian of his three children
Michael, Stephan, and Karen Leonhard, appeal from
the summary dismissal of their action, commenced in
1978 in the United Stetes District Court for the
Western District of New York, seeking money damages
for the violation of his and his children’s constitutional
rights and for torts committed against the children
A-11
APPENDIX A
Opinion of United States Court of Appeals Second Circuit
resulting from the separation and concealment of the
children from Leonhard in 1967. Named as defendants
were the United States and various federal agencies
and officials (the “federal defendants”), certain New
York State agencies and officials (the “state defen-
dants”), the City of Buffalo and Samuel Giambrone, a
former Buffalo police officer (the “city defendants”),
and one Pascal Calabrese. The three groups of
defendants moved to dismiss on various grounds
including collateral estoppel, statute of limitations,
governmental immunity, and failure to state a claim
upon which relief can be granted.
After hearing argument, the district court, Harold P.
Burke, Judge, entered orders dismissing the complaint
against all of the defendants, except Calabrese who had
not been served with process. Plaintiffs appeal from
those orders. The federal defendants argue that the
appeal should be dismissed for lack of jurisdiction
because the claims against Calabrese were never
dismissed and because no judgment was actually
entered in favor of Giambrone.
For the reasons set forth below, we hold that we have
jurisdiction and that all claims were properly dismissed.
I. THE FACTUAL BACKGROUND
In 1966, Leonhard and his wife Rochelle were
divorced. The decree, entered by the State Supreme
Court for Erie County, New York, awarded custody of
their three children to Rochelle; Leonhard was given
visitation rights.‘ Early in 1967, Rochelle married
The decree was entered in Leonhard v. Leonhard, No. C-94314
(N.Y. Sup. Ct. Erie Co. 29, 1966), and provides in relevant
part:
(footnote continued on next page)
A-12
APPENDIX A
Opinion of United States Court of Appeals Second Circuit
defendant Calabrese and she and the children lived
with him in Buffalo. Shortly thereafter, however,
Calabrese began serving a five-year term of imprison-
ment in a New York state prison. In early 1967,
members of the Buffalo Strike Force for Organized
Crime, a part of the United States Department of
Justice, learned from defendant Giambrone, a detective
in the Buffalo Police Department, that Calabrese might
have useful information on organized crime. It devel-
oped that Calabrese was willing to testify against
certain members of organized crime, but only if the
Strike Force agreed to protect him, Rochelle and the
children, and to relocate them with new identities. The
Strike Force officials agreed to this and later in 1967
arranged Calabrese’s transfer to a federal prison and
moved Rochelle and the children to a military
reservation. Leonhard was not consulted.
In the fall of 1967 Calabrese testified as a
government witness in a successful prosecution of
organized crime members. As a result of this coopera-
tion, the New York State Parole Board granted him
parole in February 1968. Defendant Kennelly, a Justice
Department attorney working with the Buffalo Strike
{It is) ORDERED that the plaintiff [Rochelle] have custody and
control of the children of the marriage, MICHAEL LEONHARD,
ee ee a
ORDERED that the defendant [Thomas] be permitted visitation
rights with the children on Sundays between ten and six and
three days during the summer vacation of the defendant and on
Se ee ee ee ee ee eee
ORDERED that the defendant pay to the plaintiff the sum of
forty-five dollars ($45.00) per week for the support and
maintenance of the children of the marriage and defendant to
provide Blue Shield/Blue Cross.
A-13
APPENDIX A
Opinion of United States Court of Appeals Second Circuit
Force, arranged for Calabrese, Rochelle, and the
children to be moved to a new and secret residence.
Under Kennelly’s direction, thé government provided
new identities and supporting credentials for the entire
family and secured employment for Calabrese. The
family later relocated again on its own initiative; at
that point only Kennelly knew their identities and
location.
The effect of all of this was that Leonhard was left
without any knowledge of his children’s whereabouts.
He first tried to locate his children in August 1967. In
mid-1969 Leonhard’s attorney contacted Kennelly to
attempt to locate the children. Kennelly refused to
reveal the whereabouts of Rochelle and the children,
but agreed to forward correspondence between Rochelle
and Leonhard. Rochelle refused to permit Leonhard to
see the children even at a neutral location, for fear they
would reveal their new identities. Leonhard finally
commenced an action in New York Supreme Court to
modify the divorce decree and award him custody. He
attempted to serve process on Rochelle via Kennelly,
but Kennelly, who was not Rochelle’s attorney, refused
to accept service or to forward the papers. When
Rochelle learned of the suit, from sources undisclosed,
she warned Kennelly that if he in any way revealed her
whereabouts she and the children would disappear
without informing even Kennelly of their new identities
and location. In June 1971, by default, the New York
court granted Leonhard custody of the three children.
A. The Prior Action (“Leonhard I’)
In July 1971, Leonhard commenced an action in the
United States District Court for the Western District of
New York against Kennelly, John Mitchell (then
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A-14
APPENDIX A
Opinion of United States Court of Appeals Second Circuit
Attorney General), and other officials of the Depart-
ment of Justice. Alleging that the defendants had
secreted his three children and given them new
identities, and that he now had custody, Leonhard
sought relief in the nature of mandamus, pursuant to
28 U.S.C. § 1361 (1970), to compel the defendants to
disclose the whereabouts and new identities of the
children. No damages were sought, and Leonhard sued
only on his own behalf; his children were not parties to
the action.
The district court denied mandamus and the judg-
ment was affirmed in Leonhard v. Mitchell (“Leonhard
I’), 473 F.2d 709 (2d Cir.), cert. denied, 412 U.S. 949
(1973). This Court held that Leonhard had no “clear
constitutional right to custody or visitation rights,” 473
F.2d at 713, and that Kennelly’s refusal to disclose the
whereabouts of the children was a rational exercise of
his discretion, making mandamus inappropriate:
Kennelly arranged to secrete Rochelle and the
children at the specific request of Pascal Calabrese.
At that time—February, 1968—Rochelle had legal
custody of the children and believed that their
safety from threatened violence required that they
no longer be visited by their natural father.
Information received by Strike Force officials
concerning a “murder contract” placed on the heads
of the Calabreses confirmed their initial fears.
Kennelly’s present refusal to disclose the location
of Calabrese family is grounded in his sense of
obligation to them, both because of his agreement
never to disclose their location and of his continued
belief that the lives of the children and Rochelle
and Pascal would be endangered if this information
should become known. In view of the circum-
A-15
APPENDIX A
Opinion of United States Court of Appeals Second Circuit
stances, we could hardly dismiss this latter fear as
groundless or irrational.
Id. at 713-14 (footnote omitted). The Court conciuded
as follows:
In sum, the extraordinary factual posture of this
case indicates that Kennelly, rather than having
abused a discretionary power which he held, acted
in good faith in attempting to balance two
competing interests: Thomas Leonhard’s natural
wish to be reunited with his children, and Rochelle
Calabrese’s equally natural desire to protect the
children from serious harm or even death.
Id. at 714 (footnote omitted).
B. The Present Complaint
On July 4, 1975, according to plaintiffs’ counsel,
Rochelle “decided that she had done a grave injustice to
her children and to Thomas Leonhard and decided to
put the children in contact with their father.”*? On July
11, 1975, Leonhard was reunited with his children. On
June 30, 1978, Leonhard filed the present action,
asserting twelve separately stated claims, three on his
own behalf and nine on behalf of one or all of the
children; on these claims each named plaintiff seeks
damages ranging from $10,000 to $500,000.°
2 —s- Transcript of hearing, June 11, 1979. Plaintiffs’ brief to this Court
on the present appeal also states that Rochelle telephoned Leonhard’s
attorney on July 4, 1975.
3 Paragraph 1 of the complaint also mentions injunctive relief.
However, the complaint nowhere specifies which defendants are
sought to be enjoined to do, or forbear from doing, what acts. The
final paragraph of the complaint is a general prayer “for judgment
declaring unlawful the actions of defendants complained of herein.”
'*
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A-16
APPENDIX A
Opinion of United States Court of Appeals Second Circuit
The complaint alleges that by separating and
concealing the children from Leonhard from 1967 to
1975 and refusing Leonhard’s repeated requests to be
informed of their whereabouts, Kennelly and other
agents of the Organized Crime Strike Force deprived
the plaintiffs of their constitutional rights; Kennelly
and the agents are said to have had “actual or
constructive knowledge” that their acts violated plain-
tiffs’ constitutional rights.‘ The complaint alleges that
defendant Giambrone participated in the removal and
concealment, that he “knew or should have known” that
his conduct was in violation of the plaintiffs’ constitu-
tional rights, and that he acted “intentionally and
under and by the full authority” of the City of Buffalo.
These claims are asserted under 42 U.S.C. § 1983
(1976) and the First, Fourth, Fifth, Ninth and
Fourteenth Amendments to the Constitution.
In addition to these constitutional ciaims, asserted on
behalf of both Leonhard and the children, the
complaint asserts several non-constitutional claims on
behalf of the children alone. It alleges that Calabrese
committed torts against the children, and alleges that
the United States, by arranging Calabrese’s release and
furnishing support and new identities for him, Rochelle
and the children, undertook a duty, which it breached,
to protect the children from mental and physical harm.'
4 In addition to these allegations, the complaint contains a section
denominated “Parties,” in which various government officials
including past and present Attorneys General of the United States,
United States Marshals and others are described as having
formulated procedures and “initiate{d]” the actions complained of.
5 Each child demands damages of $10,000 under the Tucker Act, 28
U.S.C. § 1346(aX2), plus $500,000 under the Federal Tort Claims
Act, 28 U.S.C. § 1346(b).
A-17
APPENDIX A
Opinion of United States Court of Appeals Second Circuit
In addition to the above defendants, several New
York state agencies and officials were made defendants:
the New York State Department of Correctional
Services and Benjamin Ward, a former Commissioner
of that Department, together with all of his predeces-
sors in office; and the New York State Board of Parole
and Eugene Hammock as an agent of that Board,
together with all of his predecessors in office. None of
the complaint’s twelve separately stated claims is
asserted against the state defendants. These defendants
are simply listed in the section of the complaint
denominated “Parties,” and are alleged to have acted in
concert with the federal defendants in releasing
Calabrese from a correctional facility in the State of
New York in contravention of state law.
C. The Decisions Below and the Appeals to This Court
All defendants, except Calabrese (who was never
served and made no appearance) and Giambrone, moved
to dismiss the complaint on the grounds, inter alia, that
it failed to state a claim and that all claims asserted
were barred by the applicable statutes of limitations. In
addition, the federal defendants asserted that the
decision in Leonhard I barred the plaintiffs from
litigating the issues raised in the present complaint
under principles of res judicata and collateral estoppel;
the state defendants asserted that the state agencies
and officials were immune from suit under the
Eleventh Amendment; and the City of Buffalo asserted
that it was immune from suit under the doctrines of
Monroe v. Pape, 365 U.S. 167 (1961), and Monell v.
Department of Social Services, 436 U.S. 658 (1978). In
opposition to the motions to dismiss, following a
modicum of discovery of the state defendants, plaintiffs
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A-18
APPENDIX A
Opinion of United States Court of Appeals Second Circuit
filed a detailed memorandum, several exhibits and two
affidavits. The exhibits included copies of administra-
tive claim forms that had been filed by Leonhard and
each of the children with the government on June 27,
1977, claiming physical, mental and emotional injury as
a result of the removal and concealment of the children.
One of the affidavits submitted by plaintiffs was a copy
of the affidavit that Kennelly had submitted in
Leonhard I;* the other was an affidavit apparently
executed by Rochelle for the purposes of the present
action.’
Eventually, the claims against all defendants except
Calabrese were dismissed. The procession of dismissals
and appeals, however, was somewhat unorthodox. On
September 21, 1979, Judge Burke ordered the com-
plaint against the federal defendants dismissed on
grounds of res judicata, collateral estoppel, statute of
limitations, and failure to file timely administrative
claims, and ordered the complaint against the City of
Buffalo dismissed on the authority of Monroe v. Pape,
supra. Despite the absence of a certification pursuant to
Fed. R. Civ. P. 54(b), judgment for the federal
defendants and the City of Buffalo was entered on
6 It appears that plaintiffs submitted Kennelly’s affidavit for the
purpose of comparing the issues here with those decided in Leonhard
I, rather than for the truth of its statements.
7 We infer that Rochelle is now estranged from Calabrese. Her
affidavit, which she executed under the name Rochelle Leonhard,
states that she and the children lived with Calabrese from 1968 until
June 1975. She states that she now lives in Nevada. The complaint
asserts that Calabrese resides in Seattle, Washington.
Rochelle’s affidavit recounts, inter alia, the moves that she and the
children made after their initial removal from New York in 1967,
the names they assumed, and the extent to which the government
participated in their concealment and support. See note 20 infra.
A-19
APPENDIX A
Opinion of United States Court of Appeals Second Circuit
September 24.* Neither the September 21 order nor the
September 24 judgment dealt with the state defen-
dants, Giambrone or Calabrese. On October 17,
plaintiffs filed notice of appeal from the September 21
order, and the appeal was docketed in this Court on
October 22. On October 25, notwithstanding plaintiffs’
October 17 attempt to appeal to this Court, Judge ©
Burke entered a second order, this time dismissing the
state defendants on grounds of failure to state a claim
under § 1983, immunity under the Eleventh Amend-
ment, and expiration of the statute of limitations. On
October 30, plaintiffs filed an amended notice of
appeal, seeking review of both of Judge Burke’s orders
f (dated September 21 and October 25). Judgment in
favor of the state defendants was entered in the district
court on October 30, after plaintiffs’ notice of appeal
had been filed. Plaintiffs’ amended appeal was added to
this Court’s docket on November 5, at which time there
still had been no adjudication of the claims against
Giambrone and Calabrese. On November 19, however,
Judge Burke sent a letter to the Clerk of the district
8 Rule 54(b) provides:
Judgment Upon Multiple Claims or Involving Multiple Parties.
When more than one claim for relief is presented in an action,
whether as a claim, counterclaim, cross-claim, or third-party
claim, or when multiple parties are involved, the court may direct
the entry of a final judgment as to one or more but fewer than all
of the claims or parties only upon an express determination that
there is no just reason for delay and upon an express direction for
the entry of judgment. In tne absence of such determination and
direction, any order or other form of decision, however
designated, which adjudicates fewer than all the claims or the
rights and liabilities of fewer than all the parties shall not
terminate the action as to any of the claims or parties, and the
order or other form of decision is subject to revision at any time
before the entry of judgment adjudicating all the claims and the
rights and liabilities of all the parties.
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A-20
APPENDIX A
Opinion of United States Court of Appeals Second Circuit
court, authorizing him to correct a “typographical
error” in the September 21 order, by adding Giambrone
to the defendants dismissed. The Clerk received this
letter on November 20, but since the district court
record had already been sent to this Court, no change
was actually made on the order itself. No judgment was
entered in favor of Giambrone nor did plaintiffs file
any additional notice of appeal. Judge Burke’s letter of
November 19 was eventually entered on the district
court docket on February 4, 1980, subsequent to
argument cf the appeal in this Court; on February 5,
the letter was transmitted to this Court as a
supplement to the original record. Finally, on February
15, 1980, Judge Burke ordered that his previous
decisions of dismissal “be certified and considered as a
final appealable Order.”
Il. APPELLATE JURISDICTION
The federal defendants point out that neither of the
judgments appealed from adjudicated the claims
against Calabrese and Giambrone. They argue that
since the judgments adjudicated the rights of fewer
than all the parties and contained no certification
pursuant to Fed. R. Civ. P. 54(b), they are not final, and
therefore not appealable under 28 U.S.C. § 1291 (1976).
For the reasons below we disagree.
A. Calabrese
We begin with the effect of the non-dismissal as to
Calabrese, who was not served with process and did not
appear. It is clear, under Rule 54(b), that when there
are two or more defendants who have been served and
the district court dismisses the action as to fewer than
A-21
APPENDIX A
Opinion of United States Court of Appeals Second Circuat
all of them, a final judgment may not be entered
reflecting that dismissal unless the court so instructs
and makes an “express determination” that there is no
just reason to delay entry of the judgment. E.g., New
York v. Nuclear Regulatory Comm’n, 550 F.2d 745, 761
(2d Cir. 1977); Independent Investor Protective League
v. Touche Ross & Co., 542 F.2d 156, 157 (2d Cir. 1976);
Robert Stigwood Group Ltd. v. Hurwitz, 462 F.2d 910,
913 (2d Cir. 1972). In such a situation the early
dismissal remains subject to revision until the liabilities
of all defendants have been adjudicated; thus an
immediate appeal should not be available. When,
however, the action is dismissed as to all defendants
who have been served and only unserved defendants
“remain,” the circumstances are materially different.
Now there is no reason for Rule 54(b) to preclude the
immediate and automatic entry of a final judgment
since there is no basis for believing there will be any
further adjudications in the action, or, therefore, for
holding the dismissals subject to revision.’ Thus, at
least two circuits have held that a defendant who has
not been served is not a party for purposes of Rule
54(b). See United States v. Studivant, 529 F.2d 673,
674 n.2 (3d Cir. 1976); Siegmund v. General Commodi-
ties Corp., 175 F.2d 952, 953 (9th Cir. 1949).
This reading of Rule 54(b) is consistent with the
practice which prevailed prior to the adoption of the
Rule in its present form (prior to 1963 the Rule dealt
with multiple claims but was silent as to multiple
9 If the court is given reason to believe that it is premature to
assume that service will not be made on absent parties, it can of
course direct that judgment reflecting the dismissal of the parties
served not be entered until further order of the court. See Fed. R.
Civ. P. 58, quoted in note 16 infra.
>»
A-22
APPENDIX A
Opinion of United States Court of Appeals Second Circuit
parties) and indeed prior to the adoption of the original
Federal Rules in 1938. In Ferguson v. Bartels Brewing
Co., 284 F.2d 855, 857 (2d Cir. 1960), this Court
dismissed an appeal because the order appealed from
had not dealt with one of the defendants who had been
served, but recognized the distinction in question here:
[O]ne of the individuals named as codefendant.. .
has apparently not been served. Thus he is not a
party to the case, and his designation as a
codefendant would not bar entry of a final
judgment against the other defendants who have
been actually made parties.’®
Compare Hohorst v. Hamburg-American Packet Co.,
148 U.S. 262 (1893) (the absence of a dismissal as to
some served defendants prevented entry of a final,
appealable order of dismissal as to one defendant), with
Hooven, Owens & Rentschler Co. v. John
Featherstone’s Sons, 111 F. 81, 84-85 (8th Cir. 1901),
and Bradshaw v. Miners’ Bank, 81 F. 902, 904 (7th Cir.
1897) (“The right to appeal from the decree in favor of
the Miners’ Bank is not affected by the fact that there
has been no decree against the Illinois & Missouri Lead
& Zinc Company. That company, though named in the
bill as a respondent, was not served with process, and
therefore is not a party to the record... .”).
Hence we conclude that the absence of a dismissal as
to Calabrese is no impediment to the present appeal.
10 But see dictum in Lyford v. Carter, 274 F.2d 815, 815 n.1 (2d Cir.
1960), suggesting that a dismissal even as to unserved defendants is
@ prerequisite to appeal, but construing the dismissal to have applied
to all named defendants. The opinion in Ferguson v. Bartels Brewing
Co., supra, 284 F.2d at 857, points out that the Lyford statement
“was not necessary to decision.” (Footnote omitted.)
A-23
APPENDIX A
Opinion of United States Court of Appeals Second Circuit
B. Giambrone
The treatment of Giambrone is somewhat more
complex. The federal defendants argue that the appeals
taken before Giambrone was dismissed gave this Court
no jurisdiction, but that the docketing of those
attempted appeals made ineffective the district court’s
November 19 attempt to amend its September 21 order
to reflect the dismissal of Giambrone. In addition they
contend that even if the September 21 order were
deemed amended by Judge Burke’s November 19 letter,
no appeal would lie because the dismissal of Giambrone
was never embodied in a judgment.'' We are not
persuaded.
As originally entered, the orders of September 21 and
October 25 were not appealable because neither of them
dealt with the claims against Giambrone. We agree that
in those circumstances the attempted appeals did not
give us jurisdiction. Judge Burke’s letter of November
19, however, authorized the Clerk of the district court
to correct a “typographical error” in the order of
September 21, to include the dismissal of the complaint
as against Giambrone. The question is whether the
11 Neither the defendants nor the plaintiffs has voiced any objection
to the fact that the claims against Giambrone were dismissed
without his ever having moved for such relief. We note, however,
that Giambrone’s answer pleaded, inter alia, statute of limitations,
and absence of malice or deceit, and prayed for judgment dismissing
the complaint. The district court has the power to dismiss a
complaint sua sponte for failure to state a claim, Robins v. Rarback,
325 F.2d 929 (2d Cir. 1963), cert. denied, 379 U.S. 974 (1965); see 5
C. Wright & A. Miller, Federal Practice and Procedure § 1357, at
593 (1969). There appears to be no reason why the same rule should
not apply to a dismissal on statute of limitations grounds, at least
where, as here, the facts supporting the statute of limitations
om eatie. forth in the papers plaintiff himself submitted. See
|
A-24
_APPENDIX A
Opinion of United States Court of Appeals Second Circuit
district court had retained jurisdiction to make the
correction.
Normally the filing of a timely and sufficient notice
of appeal immediately transfers jurisdiction, as to any
matters involved in the appeal, from the district court
to the court of appeals. Once a proper appeal is taken,
the district court may generally take action only in aid
of the appeal or to correct clerical errors as allowed by
the Federal Rules of Civil (or Criminal) Procedure."* See
9 Moore’s Federal Practice $9 203.11 (2d ed. 1980).
Whether or not the filing of a notice of appeal from a
non-appealable order also immediately divests the
district court of jurisdiction to proceed as to the
matters involved in the purported appeal is not
answered by the Rules themselves, and the courts
which have considered the question have divided.”
12 Fed. R. Civ. P. 60(a) provides as follows:
Clerical Mistakes. Clerical mistakes in judgments, orders or
other parts of the record and errors therein arising from oversight
or omission may be corrected by the court at any time of its own
initiative or on the motion of any party and after such notice, if
any, as the court orders. During the pendency of an appeal, such
mistakes may be so corrected before the appeal is docketed in the
appellate court, and thereafter while the appeal is pending may be
so corrected with leave of the appellate court.
If the present appeal had not been docketed in this Court, the
district court would have had the power to cause the correction to be
made. Or if an appeal had been taken from an appealable order, thus
giving us jurisdiction, we could authorize the correction to be made.
13 Professor Moore describes the problem as follows:
The problem was created by the elimination in 1937 of petition
and allowance of appeals in favor of the simple filing of the
notice. It seems likely that the draftemen of former Civil Rule
A-25
APPENDIX A
Opinion of United States Court of Appeals Second Circuat
Compare United States v. Hitchmon, 602 F.2d 689 (5th
Cir. 1979) (en banc); Hodgson v. Mahoney, 460 F.2d
326, 328 (1st Cir.), cert. denied, 409 U.S. 1039 (1972);
Ruby v. Secretary of the United States Navy, 365 F.2d
385, 388-89 (9th Cir. 1966) (en banc), cert. denied, 386
U.S. 1011 (1967); Euziere v. United States, 266 F.2d
88, 91 (10th Cir. 1959), vacated on other grounds, 364
U.S. 282 (1960), holding that the district courts
retained jurisdiction, with Williams v. Bernhardt Bros.
Tugboat Serv., Inc., 357 F.2d 883 (7th Cir. 1966);
District 65, Distributive, Processing & Office Workers
Union v. McKague, 216 F.2d 153 (3d Cir. 1954),
holding to the contrary. District courts in this circuit
have taken the position that such an attempted appeal
does not deprive them of the power to proceed,
Browning Debenture Holders’ Committee v. DASA
Corp., 454 F. Supp. 88 (S.D.N.Y. 1978); Weisman v.
Darneille, 79 F.R.D. 389 (S.D.N.Y. 1978); Lowenschuss
v. Kane, 392 F. Supp. 59 (S.D.N.Y. 1974),"* and we find
73a) had in mind the simplification of appellate procedure by the
elimination of a step that was looked upon as pro forma. Former
Civil Rule 73(a) and present Rule 3(a) provide the procedure for
BEd mopeyenndin f wapplnen piaods cow rts, May Mageeead by
filing a notice of appeal. An appeal not permitted by law may not
be “taken” at all, and the court of appeals requires no jurisdiction
of it. If the court of appeals acquires no jurisdiction, it seems to
follow that the district court loses no jurisdiction that it otherwise
would have. Of course the court of appeals has jurisdiction to
determine its jurisdiction, and the district court cannot interfere
with that. To hold, however, that the mere invocation of the
jurisdiction of the court of appeals when it is obvious that it has
none, will stay all proceedings in the district court, appears to be
a most inefficient way to manage the case.
9 Moore's Federal Practice § 203.11, at 3-51 to 3-52 (1980) (footnotes
omitted; emphasis in original).
14 = But see Gumer v. Shearson, Hammill & Co., 516 F.2d 283, 285 (2d
Cir. 1974), stating that “[t}echnically, we could dismiss the appeal on
’%
-*
A-26
APPENDIX A
Opinion of United States Court of Appeals Second Circuit
this to be the preferable view. While greater certainty
as to district court power results from the more rigid
rule that any filing of a notice of appeal divests the
district court of jurisdiction as to the matters covered
by the notice, we see no efficiency to be gained by
allowing a party arbitrarily to halt the district court
proceedings by filing a plainly unauthorized notice
which confers on this Court the power to do nothing
but dismiss the appeal. Hence we conclude that the
district court retained power to correct the judgment of
September 24 to reflect its dismissal of the action
against Giambrone.
A related question is whether we are deprived of
jurisdiction to hear the appeal from the now final order
below on the ground that the notice of appeal was
premature. Some courts have taken a strict view that
the court of appeals must have jurisdiction of the
appeal, if at all, at the time the notice is filed. See, e.g.,
Williams v. Bernhardt Bros. Tugboat Serv., Inc., supra.
Others have deemed premature appeals to be validated
by subsequent events. See, e.g., Lemke v. United
States, 346 U.S. 325 (1953); Richerson v. Jones, 551
F.2d 918, 922 (3d Cir. 1977); Tilden Financial Corp. v.
Palo Tire Serv. Inc., 596 F.2d 604, 606-07 (3d Cir.
1979); Plummer v. United States, 580 F.2d 72 (3d Cir.
1978); Morris v. Uhl & Lopez Eng’rs, Inc., 442 F.2d
1247, 1250-51 (10th Cir. 1971); Markham v. Holt, 369
F.2d 940 (5th Cir. 1966); Ruby v. Secretary of the
United States Navy, 365 F.2d 385 (9th Cir. 1966) (en
banc), cert. denied, 386 U.S. 1011 (1967). See also 9
A-27
APPENDIX A
Opinion of United States Court of Appeals Second Circuit
Moore’s Federal Practice § 204.14 (2d ed. 1980); 15 C.
Wright, A. Miller, & E. Cooper, Federal Practice and.
Procedure § 3915 at 599-600 (1976)."* In the absence of
prejudice to the nonappealing party, this Court too has
declined to dismiss premature notices of appeal where
subsequent actions of the district court have imbued
the order appealed from with finality. See, e.g., Sanchez
v. Maher, 560 F.2d 1105, 1107 n.2 (2d Cir. 1977)
(appeal allowed where notice of appeal filed after the
decision but before entry of judgment; judgment not
entered until after argument of the appeal); Gumer v.
Shearson, Hammill & Co., 516 F.2d 283 (2d Cir. 1974)
(appeal allowed where, after notice of appeal had been
filed, district court entered Rule 54(b) certification nunc
pro tunc); Kaufman & Ruderman, Inc. v. Cohn &
Rosenberger, 177 F.2d 849 (2d Cir. 1949) (appeal
decided on merits, with permission granted to seek Rule
54(b) certification, nunc pro tunc). The defendants in
the present case have not indicated any respect in
which they would be better off if the appeal had been
taken after the November 19 correction, rather than
before. We therefore treat the premature notice of
appeal as having been timely filed after the dismissals
by the district court became final orders.
Finally, we do not find the absence of an actual
judgment embodying the dismissal of Giambrone fatal
to our jurisdiction. Although Fed. R. Civ. P. 58 requires
that a judgment be set forth on a separate document,’*®
15 See also Fed. R. App. P. 4(aX2), which, as amended effective
August 1, 1979, provides that except in circumstances not applicable
here, “a notice of appeal filed after the announcement of a decision
or order but before the entry of the judgment or order shall be
treated as filed after such entry and on the day thereof.”
16 Rule 58 provides:
(footnote continued on next page)
-
A-28
APPENDIX A
Opinion of United States Court of Appeals Second Circuit
this requirement is intended merely to pinpoint,
principally for the benefit of the appellant, the
commencement of time for filing a notice of appeal.
Thus, in Bankers Trust Co. v. Mallis, 435 U.S. 381
(1978), the Supreme Court held that appellate jurisdic-
tion could properly be assumed even though the
separate document requirement had not been met:
Certainty as to timeliness, however, is not
advanced by holding that appellate jurisdiction
does not exist absent a separate judgment. If, by
error, a separate judgment is not filed before a
party appeals, nothing but delay would flow from
requiring the court of appeals to dismiss the
appeal. Upon dismissal, the district court would
simply file and enter the separate judgment, from
which a timely appeal would then be taken. Wheels
would spin for no practical purpose.
Id. at 385 (footnote omitted). The Court in Bankers
Trust noted that the district court had clearly intended
that its opinion and order be the final decision in the
Subject to the provisions of Rule 54(b): (1) u
verdict of a jury, or upon a
recover only a sum certain or
forthwith prepare, sign, and enter the judgment wi
any direction by the court; (2) upon a decision
granting other relief, or upon a special verdict or a
accompanied by answers to interrogatories, the
promptly approve the form of the judgment, and clerk
thereupon enter it. Every judgment shall be set forth
separate document. A judgment is effective only when so set
and when entered as provided in Rule 7a). En
judgment shall not be delayed for taxing of costs. Attorneys
not submit forms of judgment except upon direction of the
and these directions shall not be given as a matter
1
F
F
i
1
ate
H
5 Ht
‘ieeeseeiete eel
A-29
APPENDIX A
Opinion of United States Court of Appeals Second Circuit
case, “[a] judgment of dismissal” was recorded in the
district clerk’s docket, and the appellee did not object
to the taking of the appeal im the absence of a separate
judgment. In those circumstances, the Court held, the
parties “should be deemed to have waived” the separate
document requirement and a court of appeals can
properly take jurisdiction. Jd. at 387-88. See Elfenbein
v. Gulf & Western Industries, Inc., 590 F.2d 445, 449
(2d Cir. 1978); Turner v. Air Transport Lodge 1894,
585 F.2d 1180 (2d Cir. 1978).
While the facts of the present case are somewhat
different, the rationale of Bankers Trust requires that
we not spin our wheels here by dismissing for lack of a
judgment. Judge Burke clearly intended the September
21 order, as corrected by the November 19 letter, and
as supplemented by the October 25 order, to be his
final decision in the case, and separate judgments were
actually entered prior to his correction of the
“typographical” omission of Giambrone from the
September order. All that remained was the ministerial
task of making the mandated correction of the
September judgment already entered, instruction for
which has itself now been entered in the docket.
We do not believe the interests of any party will be
harmed by our refusal to dismiss at this stage.
Giambrone has not cbjected to the taking of this appeal
in the absence of a judgment in his favor. It is true that
the federal defendants have objected, but they have not
shown any respect in which they have been prejudiced;
since final dismissals have been ordered as to all served
defendants, it is difficult to see how the temporary
- technical defect as to Giambrone could prejudice any
defendant. We therefore will instruct the Clerk of the
district court to make the appropriate correction upon
A-30
APPENDIX A
Opinion of United States Court of Appeals Second Circuit
receipt of our mandate, and for present purposes we
treat such correction as having been made. We now
turn to the merits of the appeal.
Ill. LEONHARD'S CLAIMS
We deal first with the claims on behalf of Leonhard,
which assert that each group of defendants violated
Leonhard’s constitutional rights. Among the defenses
interposed was the bar of the statute of limitations. For
the reasons below we agree that Leonhard’s claims are
time-barred."”
A. The Federal Defendants
The gist of Leonhard’s claims against the federal
defendants is that, commencing on or about August 15,
1967, various federal officials violated his constitu-
tional rights by removing and concealing his children
from him until July 1975. Leonhard’s claims are
apparently based directly on the United States
Constitution, under the principles of Bivens v. Six
Unknown Named Agents of Federal Bureau of Nar-
cotics, 403 U.S. 388 (1971). Since this action was not
commenced until June 30, 1978, more than ten years
after the removal of the children, the defendants
contend that it is time-barred. The merit of their
contention depends on when Leonhard’s causes of
action accrued and what period of limitations is
applied.
Leonhard contends that the statute did not begin to
run until July 1975. He argues that his claim accrued
17 We do not, therefore, reach the other grounds relied on by the
district court for dismissal of Leonhard’s claims.
-”"
A-31
APPENDIX A
Opinion of United States Court of Appeals Second Circuit
anew each time he wished to visit his children and was
unable to do so: “Each time he was deprived of these
rights, a new cause of action accrued and continued to
accrue until July 11, 1975, when Appellant and his
children were reunited.” (Brief at 57). There are a
variety of possible dates on which Leonhard’s claim
may be deemed to have ripened for statute of
limitations purposes, but none of them as late as that
he urges.
Under general principles of law, a cause of action
accrues when conduct that invades the rights of
another has caused injury. When the injury occurs, the
injured party has the right to bring suit for all of the
damages, past, present and future, caused by the
defendant’s acts. See Restatement (Second) of Torts
§§ 899, 910 (1977). The earliest allegedly wrongful act
which resulted in Leonhard’s loss of his children
occurred sometime in 1967, when Leonhard’s children
were removed from New York and first concealed from
him."*
At common law this general principle is subject to the
modifications that a claim to redress a continuing
wrong will be deemed to have accrued on the date of
the last wrongful act. Thus, in New York, “{djespite the
18 There is some disagreement as to just when in 1967 Rochelle and
the children were in fact removed from New York: Leonhard places
the date at about August 15, the date on which he first attempted to
visit the children and was unable to find them; Kennelly’s affidavit
states that the first move took place in June; and Rochelle’s affidavit
states that they were first moved in February. Whether the actual
date of removal was the date that Leonhard first discovered his loss
or was one of the earlier dates is immaterial in the present
circumstances. This would be so even if, contrary to our conclusion,
the cause of action were deemed not to have accrued until discovery
by Leonhard that his children were gone, see Birnbaum v. United
States, 588 F.2d 319, 335 n.31 (2d Cir. 1978), rather than upon their
removal. See note 19 infra.
’»
A-32
APPENDIX A
Opinion of United States Court of Appeals Second Circuit
general principle that a cause of action accrues when
the wrong is done, regardless of when it is discovered,
certain wrongs are considered to be continuing wrongs,
and the statute of limitations, therefore, runs from the
commission of the last wrongful act.” N.Y. Civ. Prac.
Law [hereinafter “CPLR”] § 203 note (McKinney 1972)
(McLaughlin, Practice Commentaries C203:1). See also
Restatement (Second) of Torts § 899, comment c (“For
false imprisonment, the statute begins to run only
when the imprisonment ends, since the period of
imprisonment is treated as a unit.”) This rule is well
illustrated by the decision in Montgomery v. Crum, 199
Ind. 660, 161 N.E. 251, 257-59 (1928). There a mother,
who had been awarded custody of her daughter
following a divorce, sought damages for the abduction
of the daughter by her estranged husband and his
parents, which had resulted in a nine-year separation of
mother from daughter. In response to an assertion that
the two-year statute of limitations barred the mother’s
claim, the court observed that if the abduction
consisted of an unbroken chain of wrongful acts at least
some of which occurred during the two years immedi-
ately preceding suit, the statute would not bar the
action, stating that “the statute of limitations will not
begin to run until there is a cessation of the overt acts
constituting the wrong.” 161 N.E. at 259. But if all of
the overt acts preceded that two-year period, the
statute would have run. Jd. Accord: Restatement
(Second) of Torts § 899, comment c: “When there has
been a loss of services over a considerable period of
time by a continuous series of acts, as when a child is
withheld from the custody of his parents, the injured
party recovers only for that to which he was entitled
within the statutory period before suit.” (Emphasis
A-33
APPENDIX A
Opinion of United States Court of Appeals Second Circurt
added.) Thus if we are to apply the common law
modification to determine when Leonhard’s causes of
action arose, we will have to determine the date of the
defendants’ last overt act. A preliminary question is
whether common law rules should be applied.
Although we must look to state law to determine
what period of limitations applies, see page 22 infra,
the issue as to when Leonhard’s cause of action accrued
remains a question of federal law, Kaiser v. Cahn, 510
F.2d 282, 285 (2d Cir. 1974), and there are persuasive
reasons in the present case for eschewing application of
the common law accrual principles appropriate for torts
such as abduction. First, the defendants at all times
dealt with the children’s mother, who had custody of
them and who joined in and consented to their
relocation and concealment. A claim for abduction or
false imprisonment would thus be untenable. See part
V. C. infra. Moreover, there were reasons for the
defendants’ actions which strongly implicate federal
interests. Their actions were concededly part of “their
efforts to deal with a very serious problem, organized
crime, and to make an agreement, a deal, with a
government informant.” (Statement of plaintiffs’ coun-
sel at hearing in district court.) The procurement of
testimony against alleged members of organized crime
will normally require appropriate protection of both the
informant and his family. Relocation and concealment
will commonly be part of this protection. To prevent
intimidation, we would think the protection would
begin prior to any disclosure to the putative criminals
that the informant will testify. Thereafter the protec-
tion would continue in order to prevent reprisals: after
the government has obtained the testimony of the
informant, it would hardly seem prudent or conscion-
'*
A-34
APPENDIX A
Opinion of United States Court of Appeals Second Circuit
able for the government officials to turn and disclose
the whereabouts of the informant’s family. It appears,
therefore, that once the family of an informant is
concealed, the federal officials are virtually committed
to continue that concealment for some period of time.
Thus, it is the initial. concealment which would give rise
to a right of action, and subsequeni acts in furtherance
and continuation of the conceaiment should not give
rise to new or renewed causes of action. If we apply this
principle, Leonhard’s cause of action accrued in 1967.
Even if common law accrual rules applied, however,
Leonhard would not be able to justify his preferred
1975 date, since he does not allege that any of the
defendants’ acts occurred as late as 1975.'* While the
19 Leonhard also argues that the statute did not commence to run
until 1975 because of fraudulent concealment. Apparently he argues
that he was told by defendants that his children were being properly
cared for and did not learn until 1975 that they were being
mistreated. He also appears to claim, although it is far from clear,
that the defendants told him that the children were in danger, when
in fact they were not in danger. For the latter proposition he refers
to Rochelle’s affidavit which states, in part, that
according to all reports received by affiant from agents of the
City of Buffalo and agents of the Justice Department of the
United States, neither she nor her children were in any danger
from persons involved in organized crime as a result of testimony
of PASCAL CALABRESE on behalf of the United States.
It is difficult to know what to make of this statement. It does not
indicate that Rochelle was unconcerned for the children’s safety; it
does not contradict Kennelly’s affidavit submitted in Leonhard I
detailing Rochelle’s insistence that their whereabouts not be
disclosed. And the affidavit in no way suggests that at the time
Rochelle agreed to the relocation of herself and the children, any
defendant falsely represented to her that she or the children were in
danger. What seems clear, however, is that neither Rochelle’s
affidavit nor any other facts presented by plaintiffs supports resort
to the doctrine of fraudulent concealment. This federally created
doctrine in some circumstances allows an effective tolling of the
statute of limitations if the existence of a cause of action has been
fraudulently concealed from the holder of the claim. See United
States v. Diamond Coal & Coke Co., 255 US. 323 (1921);
A-35
APPENDIX A
Opinion of United States Court of Appeals Second Circuit
complaint alleges conclusorily that the federal defen-
dants concealed the children until 1975 and refused his
“repeated requests to be informed of [their] where-
abouts,” no overt acts are alleged. And the affidavit of
Rochelle, submitted to the district court by plaintiffs,
shows only that the government concealed and
supported Rochelle and the children until July 1970.”
Exploration Co. v. United States, 247 U.S. 435 (1918); Bailey v.
Glover, 88 U.S. (21 Wall.) 342 (1875). See generally Moviecolor Ltd.
v. Eastman Kodak Co., 288 F.2d 80 (2d Cir.), cert. denied, 368 U.S.
821 (1961). Leonhard’s cause of action was for the termination of his
relationship with his children. (Not being their custodian, he had no
right to recover for injuries they may have suffered. See
Restatement (Second) of Torts § 703, comment e.) There is no
question here that Leonhard learned of the removal and concealment
of the children as early as August 1967. He brought suit to compel
disclosure of their whereabouts in July 1971 (see note 26). Any claim
that his cause of action was concealed from him until 1975 is
specious.
Paragraphs 6-9 of Rochelle’s affidavit state as follows:
SIXTH: That at certain times relevant to this action PASCAL
CALABRESE was a paid informant and agent for, and was under
the control of the Justice Department of the United States.
SEVENTH: That your affiant and her children resided with
PASCAL CALABRESE after being removed from Buffalo, New
York, by agents of the United States Department of Justice and
the City of Buffalo. They were relocated with the assistance of
the United States Government and lived in Loring Air Force
Base, Caribu, Maine under the assumed name of CAPT.
PATRICK ANDREWS from February 1967 to March 1968; and
resided in Bel Aire, Maryland, under the assumed name of
ANGELO from June 1968 to August 1968; and, resided in Ann
Arbor, Michigan, and its surrounding areas under the assumed
name of ANGELO from August 1968 to July 1970.
EIGHTH: That throughout this period the federal government
provided monetary, financial and employment assistance to
PASCAL CALABRESE.
NINTH: That from July 1970 to the present, MICHAEL,
KAREN, and STEPHEN LEONHARD have resided in Reno,
Nevada, with affiant, using the assumed name of CALA until
about July 1975.
A-36
APPENDIX A
Opinion of United States Court of Appeals Second Circuit
Thus, even applying common law rules, on the basis of
the evidence presented by plaintiffs we conclude that
Leonhard’s claims accrued not later than July 1970.”
The remaining question is within what period
Leonhard was required to bring suit. Since Congress
has not provided a statute of limitations for Bivens
actions, we must use the most nearly analogous state
statute of limitations. See Board of Regents v.
Tomanio, 48 U.S.L.W. 4556 (U.S. May 19, 1980);
Johnson v. Railway Express Agency, Inc., 421 U.S. 454
(1975).
In Regan v. Sullivan, 557 F.2d 300 (2d Cir. 1977),
this Court held that the most appropriate statute for a
Bivens action accruing in New York is either the three-
year limitation provided by CPLR § 214(2) for an action
to recover upon a liability imposed by statute, or the
six-year limitation provided by CPLR § 213(1) for
actions for which no limitation is specifically pre-
scribed. In Regan we had no need to determine which of
the two periods was the more appropriate because the
action was barred under either statute. The same is true
here. Since Leonhard’s causes of action accrued no later
than 1970, i.e., more than six years before the June
1978 commencement of this suit, the suit is barred.
B. The State Defendants
Leonhard’s complaint challenges only a single act by
the state defendants: that they released Pascal Cala-
brese from custody prior to the date authorized by law.
While the complaint is far from clear in this respect, it
21 An intermediate possibility would be February 1968, when
Rochelle and the children were relocated by the government
following Calabrese’s release from prison.
A-37
APPENDIX A
Opinion of United States Court of Appeals Second Circuit
may be construed to allege that the release of Calabrese
in 1968 violated Leonhard’s constitutional rights and to
seek relief under § 1983.”
As to § 1983 actions, like Bivens-type actions,
Congress has not specified a statute of limitations, and
again we must look to state law. With respect to § 1983
actions brought in federal district courts in New York,
this Court has repeatedly held that the appropriate
period is the three-year limitation of CPLR § 21.4(2).
Taylor v. Mayone, No. 79-2078 (2d Cir. June 27, 1980);
Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d
438, 449 (2d Cir. 1980);** Leigh v. McGuire, 613 F.2d
380 (2d Cir. 1979), vacated and remanded for further
consideration, 48 U.S.L.W. 3767 (U.S. May 27, 1980);
Meyer v. Frank, 550 F.2d 726 (2d Cir.), cert. denied,
434 U.S. 830 (1977); Kaiser v. Cahn, 510 F.2d 282 (2d
Cir. 1974); Ortiz v. LaVallee, 442 F.2d 912 (2d Cir.
1971); Swan v. Board of Higher Education, 319 F.2d 56
(2d Cir. 1963); Bomar v. Keyes, 162 F.2d 136, 140 (2d
22 442 U.S.C. § 1983 provides as follows:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory, subjects,
or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action at law, suit
in equity, or other proper proceeding for redress.
23 But see footnote 6 of the Quinn opinion, noting that recent
developments suggest the applicability of New York's six-year
statute for actions not otherwise provided for, on the ground that
§ 1983 itself does not impose liabilities but merely provides
additional remedies. See Chapman v. Houston Welfare Rights Org.,
441 U.S. 600 (1979); State v. Cortelle Corp., 38 N.Y.2d 83, 85, 378
N.Y.S.2d 654, 655 (1975). We need not explore this possibility here
since either the three-year or the six-year period would bar
Leonhard’s claim. See also Board of Regents v. Tomanio, supra, 48
U.S.L.W. at 4558 n.4.
'*
rs
A-38
APPENDIX A
Opinion of United States Court of Appeals Second Circuit
Cir.) (L. Hand, J.) (predecessor statute of § 214(2)), cert.
denied, 332 U.S. 825 (1947).
There is no reason to apply a different limitations
period here. Since Calabrese was paroled in 1968, and
Leonhard’s complaint was filed in 1978, Leonhard’s
action against the state defendants is time-barred.
C. The City Defendants
Leonhard’s claim against the city defendants also is
asserted under § 1983. The claim is that Giambrone,
acting under color of law as an employee of the Buffalo
police department and acting with the authority of the
City, participated in the removal and concealment of
Leonhard’s children from him.* Although the com-
plaint contains conclusory assertions that Giambrone
and the City refused to reveal the children’s where-
abouts to Leonhard and impeded Leonhard’s efforts to
find them, it does not allege any overt acts on the part
24 This claim and the children’s claim against Giambrone assert that
throughout the period from 1967 to 1975, Leonhard was the legal
guardian and custodian of the children. These allegations are
contradicted by plaintiffs’ brief on appeal and by records of which
we may take judicial notice. Plaintiffs’ brief on this appeal indicates
that it was not until June 1971 that Leonhard obtained a court order
stating that he had custody of the children. This is substantiated by
Leonhard’s amended petition for mandamus in Leonhard I, which
also stated that the 1966 divorce decree had given Rochelle custody
with Leonhard having merely visitation rights. A certified copy of
the divorce decree is part of the record in Leonhard I and is quoted
in note 1, supra.
Finally, there is substantial question whether the New York
Supreme Court order obtained by Leonhard in June 1971 was
effective to give him custody of the children. The order was obtained
by default, and according to Rochelle’s affidavit she and the children
resided in Nevada at that time. In the absence of both Rochelle and
the children from the state it does not appear that the New York
court had jurisdiction to affect the custody of the children. See May
v. Anderson, 345 U.S. 528 (1953); Restatement (Second) of Conflicts
of Laws § 79 (1969).
A-39
APPENDIX A
Opinion of United States Court of Appeals Second Circuit
of Giambrone or the City after 1967. We conclude,
therefore, that Leonhard’s claims against Giambrone
and the City accrued in 1967 when the children were
removed, or in any event no later than 1970 when the
last overt acts to conceal the children occurred. See part
A above. Since a three-year period of limitations applies
to these claims, see part B above, Leonhard's claims
against the city defendants were properly dismissed.
IV. THE CHILDREN'S CONSTITUTIONAL CLAIMS
As outlined in part I, the children, like Leonhard,
assert that the acts of the defendants violated their
constitutional rights. The district court drew no
distinction between the claims of Leonhard and those of
the children. The children’s constitutional claims
against each group of defendants were held barred by
the statute of limitations; in addition their claims
against the federal defendants were held barred by
principles of collateral estoppel, their claims against the
state defendants were held barred by the Eleventh
Amendment and dismissed for failure to state a claim,
and their claims against the city defendants were held
barred by the principle of Monroe v. Pape, supra. We
disagree with certain of these rationales, although not
with the results.
While the claims of Leonhard himself are barred by
the applicable statutes of limitations, the constitutional
claims of the children are not. As noted above, for both
Bivens-type actions and § 1983 actions we must borrow
the most appropriate state statutes of limitations. In
addition, however, to the extent not inconsistent with
the policies underlying the federal claims, we must
borrow any restrictions placed by the state on the
we
|
A-40
APPENDIX A
Opinion of United States Court of Appeals Second Circuit
running of the statutes. See Board of Regents uv.
Tomanio, supra; Johnson v. Railway Express, supra.
New York CPLR § 208 provides that the running of the
statute of limitations is tolled if the person possessing
the cause of action is under a disability because of
infancy. A three-year or longer statute of limitations is
tolled until three years after the disability ends. Since
the record indicates that the oldest of the Leonhard
children did not reach the age of 18 until six months
before this suit was commenced,” we conclude that the
assertion of their claims is timely.
Nor should the children’s claims have been dismissed
on grounds of collateral estoppel. The district court felt
that the denial of mandamus in Leonhard I presupposed
a finding that the defendants owed no duty to the
children. While there may be ground for differing views
as to whether the claims of Leonhard himself are
barred by the decision in Leonhard J,™ there is no
25 _— As to the children’s ages we rely on Rochelle’s affidavit. There is
about a one-year discrepancy between Rochelle’s affidavit and the
administrative claim forms as to each of the children’s ages. The
difference is of no legal consequence here.
26 = =There appears to be some force to the argument that Leonhard has
asserted in both actions the same claims of wrongdoing by the
defendants, the same invasions of his rights, and the same legal basis
for his claims, and that only the relief prayed for is different. Thus,
although Leonhard contends that he never raised in Leonhard | the
issues raised here, “namely, separation, removal and concealment,”
(e.g., Brief at 23), his amended petition for mandamus in Leonhard I
alleged inter alia that the defendants caused the children to be
“secreted in a location unknown to” him (§3F), and “have
consistently refused to divulge” their whereabouts (§ 5), that the
defendants were “responsible for this ivation of custody and for
the separation of [Leonhard] from his " (§ 3L), and that by
reason of defendants’ acts Leonhard “was deprived of his liberty to
Se eee a a is effectively
deprived of aw S Sie Gdn to dition of te Fifth
Amendment the Constitution’s requirement of due process.”
(j 4B.) (footnote continued on next page)
'%
A-41
APPENDIX A
Opinion of United States Court of Appeals Second Circuit
question that the claims of the children are not so
barred. The children were not parties to Leonhard I,
and the duties in issue there were those allegedly owed
to Leonhard and not to the children. “Some litigants—
those who never appeared in a prior action—may not be
collaterally estopped without litigating the issue. They
have never had a chance to present their evidence and
arguments on the claim. Due process prohibits estop-
ping them despite one or more existing adjudications of
the identical issue which stand squarely against their
position.” Blonder-Tongue Laboratories, Inc. v. Univer-
sity of Ill. Foundation, 402 U.S. 313, 329 (1971); see
Parklane Hosiery Co. v. Shore, 439 U.S. 322, 329
(1979).
This leaves for analysis the contentions that the
children have failed to state a ‘constitutional claim upon
which relief can be granted. We consider this
contention with respect to each group of defendants in
turn.
Nevertheless, the relief sought in Leonhard J, mandamus to compel
disclosure, was different from the present claim for damages. While
there appears to have been no reason that Leonhard could not have
sued for damages at the same time that he sought mandamus, see
Fed. R. Civ. P. 18; Crawford v. Cushman, 531 F.2d 1114, 1126 (2d
Cir. 1976); Restatement (Second) of Judgments §§ 61, 61.1 (Tent.
Dr. No. 5, 1978), the nature of the relief sought by the mandamus
petition called into question a duty different from that which is
fundamental to the present case. In Leonhard | the issue was simply
whether the defendants could be ordered, at that time, to disclose
the children’s whereabouts, and the principal question was whether
the decision not to disclose was within the defendants’ discretion.
Given our view that the subsequent concealment of the children
follows virtually automatically upon the initial undertaking to
protect them, see part ITI. A. supra, it would seem harsh to hold that
an unsuccessful suit to terminate the subsequent concealment barred
ee Oe ee a
removal.
’*s
A-42
APPENDIX A .
Opinion of United States Court of Appeals Second Circuit
A. The Federal Defendants
The complaint alleges that the acts of Kennelly and
other agents of the Department of Justice in removing
the children in 1967 and concealing them from
Leonhard deprived the children of their constitutional
rights to visitation, companionship and rearing by their
natural father, without due process of law.” Our
analysis of the interests and status of the children and
of the governmental functions involved persuades us
that the children have failed to state a constitutional
claim.
It has long been recognized that the relationship
between parent and child is constitutionally protected.
E.g., Quilloin v. Wolcott, 434 U.S. 246, 255 (1978);
Wisconsin v. Yoder, 406 U.S. 205, 231-33 (1972);
Stanley v. Illinois, 405 U.S. 645 (1972); Meyer v.
Nebraska, 262 U.S. 390, 399-401 (1923); cf. Prince uv.
Massachusetts, 321 U.S. 158 (1944). The Due Process
Clause limits the power of the state to take action
which ruptures or impinges upon the parent-child
27 ~_—sIt is not clear to what extent plaintiffs seek to assert these claims
against government agencies as well as individuals. We note that all
of the claims against the federal agencies were properly dimissed,
because Congress has not waived their sovereign immunity. See
Kessler v. General Servs. Adm., 341 F.2d 275 (2d Cir. 1964); Gnotta
v. United States, 415 F.2d 1271, 1277 (8th Cir. 1969) (Blackmun,
J.), cert. denied, 397 U.S. 934 (1970). It is immaterial that the
defense of sovereign immunity was not expressly raised by the
agencies below nor pressed by them on this appeal. Since sovereign
immunity is a jurisdictional defect, see United States v. Sherwood,
312 U.S. 584, 587-88 (1941), it can be raised at any time, see Fed. R.
Civ. P. 12(hX3), and indeed by a court of appeals on its own motion.
Hill v. United States, 571 F.2d 1098, 1100 (9th Cir. 1978),
Armstrong v. United States, 283 F.2d 122, 123 (3d Cir. 1960). Cf.
Alabama v. Pugh, 438 U.S. 781, 782 n.1 (1978); Edelman v. Jordan,
415 US. 651, 678 (1974).
_
A-43
APPENDIX A
Opinion of United States Court of Appeals Second Circuit
relationship. As the Supreme Court stated in Quillcin v.
Wolcott, supra:
We have little doubt that the Due Process Clause
would be offended “{iJf a State were to attempt to
force the breakup of a natural family, over the
objections of the parents and their children,
without some showing of unfitness and for the sole
reason that to do so was thought to be in the
children’s best interest.”
434 U.S. at 255 (quoting Smith v. Organization of
Foster Families, 431 U.S. 816, 862-63 (1977) (Stewart,
J., concurring in judgment)). Cf. Moore v. City of East
Cleveland, 431 U.S. 494, 503-06 (1977) (plurality
opinion) (state may not arbitrarily prevent members of
an extended family from living together). Thus, the
state may not constitutionally withhold children,
properly taken into temporary custody by the state in
an emergency, from their mother without her consent
and without judicial authorization. Duchesne v. Sugar-
man, 566 F.2d 817, 828 (2d Cir. 1977); see Morrison v.
Jones, 607 F.2d 1269, 1276 (9th Cir. 1979), cert.
denied, 100 S. Ct. 1648 (1980). Nor may it deprive a
divorced father of notice and an opportunity to be
heard before his child is adopted by his marital
successor. Armstrong v. Manzo, 380 U.S. 545 (1964).
Even in cases of child neglect, the Due Process Clause
places limits on the state’s power to terminate the
parent-child relationship. See generally Note, Constitu-
tional Limitations on tne Scope of State Child Neglect
Statutes, 79 Colum. L. Rev. 719 (1979).
In analyzing the applicability of such precepts to the
children’s claims in the present case it is important at
the outset to identify certain contentions that are not
'»
A-44
APPENDIX A
Opinion of United States Court of Appeals Second Circuit
pertinent here. First, the visitation rights of Leonhard
are not involved. Even assuming that Leonhard had a
constitutionally protected - interest in visiting his
children, a question we have not reached because
Leonhard’s claims are time-barred, the children do not
have standing to complain of abridgement of
Leonhard’s rights. Second, the theory that the removal
and concealment of the children “consigned” them to
the company of a convicted criminal has no factual
basis. The children were committed to Calabrese’s
company when Rochelle married him, and they lived
with him before he commenced to serve his prison
term. Rochelle had custody of them when she separated
from Leonhard, and her custody was not altered when
she married Calabrese. While the early release of
Calabrese accelerated the return of the children to the
company of Calabrese, plaintiffs cite no authority, and,
we know of none, to suggest that this violated any right
guaranteed them by the Constitution. Finally, we are
not dealing with a governmental rupture of a family
unit. The family unit that once was comprised of
Leonhard, Rochelle and their children, had already been
ruptured by Leonhard and Rochelle. Upon their divorce,
Leonhard was deprived of custodial rights and was
awarded only visitation rights. All of this occurred well
in advance of the involvement of the federal defendants
in the lives of the children.
The crux of the children’s claim is simply that they
were placed beyond the reach of their father. The fact
that this occurred without a hearing did not implicate
the children’s constitutional rights because it was done
in the course of the defendants’ official duties, was
done for the protection of the children, and was done
with Rochelle’s consent.
i
>>
A-45
APPENDIX A
Opinion of United States Court of Appeals Second Circuit
The most critical fact in determining whether the
rights of the children were violated is the fact that
Rochelle had sole custody of them. She was the parent
who had been entrusted with their care, their
education, their health and safety. There is no question
that Rochelle consented to the removal and conceal-
ment of the children, nor that they remained in her
custody for the entire time that they were concealed
from their father. It is to be presumed that she was
properly concerned for their welfare. See Parham uv.
J.R., 442 U.S. 584, 602-03 (1979). There is no
indication in her affidavit, nor any suggestion by the
plaintiffs, that this was not so. And surely the
presumption is reinforced by the circumstances, which
were instinct with the risk of harm to the chiidren the
minute Calabrese became a potential witness against
organized crime figures; the risk would increase
substantially when the fact that Calabrese might testify
became known to the accused criminals, as the children
could become targets of premonitory or retaliatory acts,
or could be the incidental victims of acts directly
against Calabrese. It was Rochelle’s right and her duty
to weigh the interest of the children in being available
for periodic visits from their father against their
exposure to possible kidnapping or bodily harm. Her
decision appears to be unassailable.
It is also important to note that the officials involved
were attempting to carry out two official functions:
first, to stamp out organized crime, and second, to
protect witnesses, and the families of witnesses, who
would testify or had testified against members of
organized crime. There is no question that the officials’
decision to remove and conceal Rochelle and the
children was made in pursuit of these functions. The
'%
-
A-46
APPENDIX A
Opinion of United States Court of Appeals Second Circuit
plaintiffs’ attorney described the decision as part of
“their efforts to deal with a very serious problem,
organized crime, and to make an agreement, a deal,
with a government informant.” In deciding to protect
the family of such an informant the officials must be
entitled to rely on the consents of the family members
to be removed and concealed. The Leonhard children, of
course, were not old enough to make such decisions for
themselves; their ages ranged from three to seven. Had
they been old enough to make their own decisions, the
officials could have relied on their consents and the
children would obviously have no claim against those
officials. Given th. .r actual infancy, their mother made
the decision. The fact that the decision was made by
only one parent rather than both” is of no legal
consequence since custody resided solely with the
consenting parent. See Parham v. J.R., supra, 442 U.S.
- at 589 and passim; Boone v. Wyman, 295 F. Supp.
1143 (S.D.N.Y.) (Mansfield, J.), aff'd, 412 F.2d 857 (2d
Cir. 1969), cert. denied, 396 U.S. 1024 (1970). See also
Duchesne v. Sugarman, supra. Thus we conclude that
the federal officials’ removal and concealment of the
children on the consent of their mother and sole
custodian, did not violate the children’s constitutional
rights; given the fact of Rochelle’s consent, no hearing
as to the rights of the children was required.
Indeed, considering the uncivilized nature of the risks
against which the removal and concealment of the
children sought to forfend, it is difficult to envision the
possibility of a hearing, either before or after the fact,
which would be “useful [] ... in the given
28 Certainly if both Rochelle and Leonhard had consented the
children would have no claim.
’.*
A-47
APPENDIX A
Opinion of United States Court of Appeals Second Circuit
circumstances,” and which would not entail “adverse
consequences.” See Friendly, “Some Kind of Hearing”,
123 U. Pa. L. Rev. 1267, 1278 (1975). If a hearing had
been held prior to the removal and concealment of the
children, and Calabrese either remained willing to
testify or the alleged criminals believed, even erro-
neously, that there remained any possibility that he
would testify, the children would be exposed to the
danger of abduction or other harm as leverage against
Calabrese to prevent his testimony. A hearing after
Calabrese testified could hardly be more meaningful
since it would expose the children to the danger of
retaliatory acts, undoubtedly designed in part to
discourage other potential witnesses against organized
crime. And, as we have discussed at pages 20-21 above,
for the government officials to reveal the whereabouts
of the children after testimony has been given and
before the officials feel the dangers have abated would
be the very essence of bad faith. We are thus compelled
to conclude that due process did not require a hearing
on the decision by Rochelle and the government
officials to remove and conceal the children.
This conclusion finds support in the recent decision of
the Supreme Court in Parham v. J.R., supra. Involved
there was the question whether the state could
constitutionally rely on a decision by a child’s parent or
guardian to commit the child to a mental institution
without a hearing before or after the commitment. The
Court held that despite the child’s substantial liberty
interest in not being confined, he has no constitutional
claim when his parent or guardian has decided that he
should be placed in a mental hospital and the hospital
psychiatrists have determined that he needs treatment.
Id. at 606-13. The liberty interest in Parham was
clearly more substantial than the interest of the
-%
7.
A-48
APPENDIX A
Opinion of United States Court of Appeals Second Circuit
children here in the possibility of periodic visits from
their father. And the effect of the parents’ decision in
Parham, i.e., the complete removal of the child from
any family environment, was far more drastic than the
effect here of the children’s relocation accompanied by
their mother. Since, as was held in Parham, a child has
no right to a hearing when his parent decides to obtain
needed medical treatment for him by transferring him
from the family to the confinement of a mental
institution, a fortiori children have no cause to
complain when their custodial parent and the govern-
ment officials charged with such functions decide to
protect their safety by relocating and concealing them,
with their parent.” If the more drastic intrusion does
not require a hearing, surely the less drastic intrusion
does not.
In sum, since “[wJhat process is constitutionally due
cannot be divorced from the nature of the ultimate
decision that is being made,” id. at 608, we conclude
that the officials’ exercise of their discretion and their
reliance on Rochelle’s consent to the removal and
concealment of the children to protect them from
organized crime, did not deny the children due process
of law.* The children’s constitutional claims were
properly dismissed.
29 ~—sIt could be argued that Parham can be distinguished because the
need for medical treatment was determined by psychiatrist
factfinders who were neutral, whereas here the federal officials who
decided to remove and conceal the children were “interested” in their
protection, in the sense that only by protecting them could they
obtain the testimony they desired. We do not view this as a
significant difference because the dangers to the children were
inherent in the very circumstances of Calabrese’s willingness to
testify against members of organized crime.
30s As to some of the federal defendants, the complaint was properly
dismissed for the additional reason that they were not alleged to
>»
A-49
APPENDIX A
Opinion of United States Court of Appeals Second Circuit
B. The State Defendants
The single assertion against the state defendants is
that two state agencies, the Department of Correctional
Services and the Parole Board, and certain of their
officials, released Calabrese from custody in violation of
the law. The children’s complaint against these
defendants under 42 U.S.C. § 1983 was properly
dismissed on grounds of immunity and failure to state a
claim.
To the extent that the children assert claims for
damages against agencies of the state," they run
squarely into the barrier of the Eleventh Amendment.
It is well established that that Amendment bars a suit
for damages absent the state’s consent. Alabama uv.
Pugh, 438 U.S. 781 (1978); Edelman v. Jordan, 415
U.S. 651 (1974); Ford Motor Co. v. Department of
Treasury, 323 U.S. 459, 464 (1945); see Monell v.
have participated personally in the removal and concealment of the
children. Some, e.g., defendant Griffin Bell, were not in office at the
time the children were removed. See 429 U.S. iv n.2. Some are
alleged merely to have been supervisors—e.g., defendant Gerald Shur
is alleged generally to have formulated and implemented procedures
and methodology. Public officials may be held responsible only to the
extent that they caused the plaintiff's rights to be violated; they
cannot be held liable for violations committed by their subordinates
or predecessors in office. Johnson v. Glick, 481 F.2d 1028, 1033-34
(2d Cir.), cert. denied, 414 U.S. 1033 (1973); Sostre v. McGinnis, 442
F.2d 178, 189 (2d Cir. 1971) (en banc), cert. denied, 404 U.S. 1049,
405 U.S. 978 (1972).
31 As noted earlier, the assertions against the state defendants are
plaintiffs nevertheless intended to asvert claims against these
defendants. However, at the hearing below, requested
permission, in light of recent authority, to withdraw their claims
against the state agencies. There appears to have been no good
reason for the district court to grant this permission rather than
pespalen is comme dcteaiy Seleuck af diealaun tie ates
’*%
7%
A-50
APPENDIX A
Opinion of United States Court of Appeals Second Circuit
Department of Social Services, 436 U.S. 658, 690 n.54
(1978). While the Eleventh Amendment may permit
certain types of prospective injunctive relief, Ex Parte
Young, 209 U.S. 123 (1908), we find no demand for
injunctive relief against the state defendants in this
action.
Moreover, even assuming that the release of Cala-
brese violated state law and that the removal of the
children violated their constitutional rights, no claim
upon which relief can be granted has been stated
against either the state agencies or the state officials.
Although the complaint asserts that in releasing
Calabrese the state defendants acted “in concert with”
the federal defendants, it is not alleged that any of
these defendants participated in the removal or
concealment of the children from Leonhard. Any
connection between the mere release of Calabrese and
the injuries alleged would be far too tenuous to support
a claim against these defendants. See Martinez v.
California, 444 U.S. 277 (1980); Sostre v. McGinnis,
442 F.2d 178, 189-90 (2d Cir. 1971) (en banc), cert.
denied, 404 U.S. 1049, 405 U.S. 978 (1972).
C. Giambrone and the City of Buffalo
Giambrone, unlike the state defendants, is alleged to
have participated in the removal and concealment of
the children. He is alleged to have done so “under and
by the full authority of” the City of Buffalo. For the
reasons stated in part A above, however, the complaint
fails to state a claim against Giambrone and the City
for violation of the children’s constitutional rights.
Moreover, even if a viable constitutional claim had
been asserted against Giambrone, the dismissal of the
action against the City would have been proper because
7.
A-51
APPENDIX A
Opinion of United States Court of Appeals Second Circuit
the complaint does not allege that Giambrone acted
pursuant to any official policy, regulation or custom of
the City. A municipality cannot be held liable on a
§ 1983 claim under a respondeat superior theory; it is
liable only if federal rights are violated pursuant to its
official policy or custom. Monell v. Department of
Social Services, supra, 436 U.S. at 663 n.7; Monroe v.
Pape, supra. The assertion that Giambrone acted on the
“authority” of the City is merely an allegation of
agency, and is insufficient to support a claim against
the City.
V. THE CHILDREN'S OTHER CLAIMS
In addition to their constitutional claims, the children
assert certain non-constitutional claims under the
Tucker Act, the Federal Tort Claims Act*? and common
law.*
physical, and emotional injury and damages” in the amount of
$1,500,000. To the extent that the complaint intended to assert a
( A-52
APPENDIX A
Opinion of United States Court of Appeals Second Circuit
A. Tucker Act Claim
The children’s Tucker Act claims are that the
Attorney General of the United States, knowing that
Calabrese was a convicted felon, consigned the children
to the company and association of Calabrese, who
caused them mental and physical harm. The children
claim that the Attorney General thereby violated the
Organized Crime Control Act, and each child seeks
damages from the United States under the Tucker Aci
in the amount of $10,000. Their claim is fatally flawed
in several respects.
The United States, of course, “is immune from suit
save as it consents to be sued.” E.g., United States uv.
Sherwood, 312 U.S. 584, 586 (1941). The Tucker Act,
28 U.S.C. § 1346(aX2) (1976), gives the district courts
jurisdiction over civil actions “against the United
States, not exceeding $10,000 in amount, founded. . .
upon. . . any Act of Congress.” This section, however,
is merely a jurisdictional provision; “it does not create
any substantive right enforceable against the United
States for money damages.” United States v. Testan,
424 U.S. 392, 398 (1976). In order to determine
whether any substantive right exists, we must look to
the Act of Congress relied on, to find a clear waiver of
sovereign immunity. “And it has been said, in a Court
of Claims context, that a waiver of the traditional
sovereign immunity ‘cannot be implied but must be
unequivocally expressed.’ United States v. King, 395.
US. [1, 4 (1969)]; Soriano v. United States, 352 U:S.
270, 276 (1957).” United States v. Testan, supra, 424
U.S. at 399.
no view on these claims since Calabrese was never served and did not
appear.
A-53
APPENDIX A
Opinion of United States Court of Appeals Second Circuit
The substantive statute relied on by the children is
the Organized Crime Control Act (the “Act”). This Act
authorizes the Attorney General to provide for the
health, safety and welfare of prospective witnesses, and
their families, expected to be called to testify against
alleged members of organized crime, whenever in the
Attorney General’s judgment, such testimony or
willingness to testify would place in jeopardy the life or
person of the prospective witness or his family. Pub. L.
91-452, Title V, §§ 501-504, 84 Stat. 933 (Oct. 15,
1970). The initial problem with the children’s claim is
Sec. 501. The Attorney General of the United States is
’s
- |
A-54
APPENDIX A
Opinion of United States Court of Appeals Second Circuit
that the Act contains no suggestion that Congress
intended to waive the government’s immunity to a suit
for failure to provide protection against reprisals or to
create any private right of action for such a failure.*
Moreover, even if some right of action were inferable, it
could not be presumed that Congress intended to
permit members of the family of the witness to sue the
United States for injuries inflicted upon them by the
witness. The risk that the witness may thereafter abuse
members of his family is simply not one of the dangers
sought to be eliminated by the Act. Finally, the Act was
not in effect at the pertinent times. The children were
removed and first given new identities in 1967; and
according to Rochelle’s affidavit, the government’s
participation in their concealment ended in July 1970.
The Organized Crime Control Act was not passed until
October 15, 1970. There is no indication that Congress
intended to create any rights in favor of the family of a
witness who had already testified in the past and had
been shielded from organized crime for as long as the
government felt necessary.
any department, agency, or instrumentality thereof of the cost of
maintaining and protecting such witnesses.
Sec. 504. There is hereby authorized to be appropriated from
time to time such funds as are necessary to carry out the
f
provisions of this title.
35 This may not, however, leave the witness without remedy for
injuries suffered as a result of reprisals for his assistance to the
A-55
APPENDIX A
Opinion of United States Court of Appeals Second Circuit
For all of these reasons, the Tucker Act claims were
properly dismissed.
B. Tort Claims Against the United States
The children’s tort claims against the United States
are somewhat similar to their Tucker Act claims. They
allege that in arranging for the release of Calabrese and
undertaking to conceal and support the children, the
government undertook a duty to protect them from
mental and physical harm. Reading the complaint in
conjunction with the plaintiffs’ administrative claim
forms, it appears that the children claim that the
United States negligently breached this duty by
allowing them to be assaulted, battered, deprived of
proper care and education, and mentally abused, by
Calabrese. Each of the children seeks $500,000 in
damages from the United States under the Tort Claims
Act, 28 U.S.C. § 2674 (1976).
For tort claims, as for contract or statutory claims,
the United States may be sued only to the extent that it
has waived its sovereign immunity. The waiver for tort
claims is limited both in substantive scope and in
duration. The temporal constraints that Congress has
placed on the government’s vulnerability to tort suits
are found in 28 U.S.C. § 2401(b) (1976). Section 2402(b)
provides in pertinent part that “{a] tort claim against
the United States shall be forever barred unless it is
presented in writing to the appropriate Federal agency
within two years after such claim accrues .. . .”™ It is
36 = Section 2401(b) also provides that such
action is begun within six months after the date of mailing,
.
|
E
A-56
APPENDIX A
Opinion of United States Court of Appeals Second Circuit
firmly established that the two-year period is not tolled
by a claimant’s minority. E.g., Smith v. United States,
588 F.2d 1209, 1211 (8th Cir. 1978); Simon v. United
States, 244 F.2d 703 (5th Cir: 1957); United States v.
Glenn, 231 F.2d 884 (9th Cir.), cert. denied, 352 U.S.
926 (1956); Hoch v. Carter, 242 F. Supp. 863 (S.D.N.Y.
1965).
The children’s tort claims were filed with the
government on June 27, 1977. The effect of the two-
year limitation provided by § 2401(b) is thus to bar
recovery by the children on any tort claim that accrued
prior to June 27, 1975. To the extent that their tort
claims against the United States accrued prior to that
date, they were properly dismissed for lack of ju-
risdiction.
It is unclear whether this disposition leaves any tort
claims for the children to prosecute against the United
States.*’ Rochelle’s affidavit states that the children
lived with Calabrese only “until June 1975,” and does
not specify the date their cohabitation ceased. The
complaint asserts that Calabrese unlawfully imprisoned
the children until July 4, 1975. Even on the assumption
that Calabrese may have falsely imprisoned the
finally denied by the appropriate agency, provides that “{tjhe failure
of an agency to make final disposition of a claim within six months
after it is filed shall, at the option of the claimant any time
thereafter, be deemed a final denial of the claim for purposes of this
section.” The government has never responded to the tort claims
filed by the plaintiffs in 1977. Hence the six-month provision of
2401(b) does not impede the present suit. See Mack v. United
tates Postal Service, 414 F. Supp. 504, 508-08 (E.D. Mich. 1976).
37 Two claims that Calabrese assaulted Karen Leonhard assert that
those assaults occurred in 1970 and February 1975. To the extent
that these alleged acts form the basis for tort claims against the
United States, such claims are time-barred.
7%
A-57
APPENDIX A
Opinion of United States Court of Appeals Second Circuit
children at any time between June 27, 1975 and July 4,
1975, however, the Tort Claims Act bars the children’s
recovery on such aclaim. .
With certain exceptions, the United States has
consented to be liable for its torts only “to the same
extent as a private individual under like circum-
stances.”* 28 U.S.C. § 2674. Thus, it has not consented
to be liable for injuries which its negligence has not
proximately caused. See, e.g., Beesley v. United States,
364 F.2d 194 (10th Cir. 1966); United States uv.
Shively, 345 F.2d 294 (5th Cir.), cert. denied, 382 US.
883 (1965); United States v. Hutchins, 268 F.2d 69 (6th
Cir. 1959). Both the character and the timing of the
events alleged require a dismissal of the children’s
claims. The government acts complained of are ar-
ranging the release of Calabrese and arranging for the
children to live with him. The charge, of course, ignores
the facts that Rochelle had custody of the children and
that she was married to Calabrese. The government did
not impose the requirement that the children live with
Calabrese; they were already part of the same family
unit and had lived together prior to Calabrese’s
imprisonment. Moreover, despite the reiteration by
plaintiffs that Calabrese was a cnvicted felon, there is
no evidence in the record to suggest that he had a
history of child abuse or neglect; the crime for which he
was imprisoned was robbery.” And in any event, the
38 = Certain limitations on this vulnerability are included in § 2674
itself, ¢.g., the government is not liable for punitive damages. Other
exceptions to the government's liability are carved out in § 2680,
e.g., the government is not liable for the intentional torts of its
employees.
39 = These facts distinguish cases in which the government was held
accountable because it could easily have been expected, the
-*»
A-58
APPENDIX A
Opinion of United States Court of Appeals Second Circuit
protection of family members from each other is not
the kind of duty assumed in the program to protect
government informers who’ testify against organized
crime. Finally, although the acts of Calabrese which
may form the basis for the tort claims against the
government may have occurred between June 27, 1975
and July 4, 1975, the last overt act of the government
occurred half a decade earlier: Rochelle’s affidavit
reveals that the government’s last acts in supporting
and concealing the children occurred in July 1970.
Thus we find the acts of the government in arranging
Calabrese’s release in 1968, and concealing him and the
children through July 1970 to protect them from
reprisals by organized crime, too remote from the
claims that in 1975 Calabrese unlawfully imprisoned
the children. See W. Prosser, Handbook of the Law of
Torts § 51, at 322 (8d ed. 1964); cf. Martinez v.
California, supra.
Finally, the United States cannot be held liable for
failure to continue to support the children and
Calabrese past 1970 or to conduct minute supervision
over their daily lives. Such decisions are clearly matters
of discretion, and the government has not consented to
[aJny claim based upon ... the exercise or
performance or the failure to exercise or perform a
history or character of the perpetrator of the assault, to foresee the
assault which occurred. See, e.g., United States v. Muniz, 374 US.
150 (1963) (federal prisuner beaten by other prisoners); Downs v.
United States, 522 F.2d 990 (6th Cir. 1975) (pilot killed by hijacker
when FBI refused hijacker’s demands); Rogers v. United States, 397
F.2d 12 (4th Cir. 1968) (probationer tortured while in custody of «
person previously indicted for chaining and physically abusing
conta Fair v. United States, 234 F.2d 288 (5th Cir. 1956)
(decedents killed by psychotic officer released by Air Force). See also
Swanner v. United States, supra (government informer’s house
bombed after he agreed to testify).
A-59
APPENDIX A
Opinion of United States Court of Appeals Second Circuit
discretionary function or duty on the part of a
federal agency or an employee of the Government,
whether or not the discretion involved be abused.
28 U.S.C. § 2680(a) (1976).
C. Tort Claims Against Others
The complaint contains one common law tort claim
on behalf of the children against certain unidentified
individuals. It is asserted that these individuals
abducted the children from Leonhard in August 1967
and continued to harbor them from him until July
1975.” The claim does not appear to be sustainable.
It is clear that in 1967 Rochelle had lawful custody of
the children; Leonhard did not have custody but only
visitation rights. It is also clear that Rochelle consented
to the removal and concealment of the children, along
with the removal and concealment of herself, and that
the children always resided with her. Her affidavit
makes it clear beyond cavil that her, and the children’s,
removal and concealment were entirely voluntary. In
these circumstances the children have no claim for
40 Paragraph 68 alleges as follows:
On or about the 15th day of August, 1967, at 66 Normal Street,
Upper, Buffalo, New York, and continuing up and until the 4th
day of July, 1975, at 1575 Wedekind Street, Apartment C. Reno,
Nevada, the defendant herein, and a number of unknown agents
of the United States Department of Justice and United States
i
3
z
:
F
E
g
°-*
>.
A-60
APPENDIX A
Opinion of United States Court of Appeals Second Circuit
abduction or false imprisonment.*' See, e.g., Restate-
ment (Second) of Torts § 700, comment c (1976); id.
§ 892A, comment 6 (1977); id. § 703, comments a, e
(1976). Cf. Dale v. State, 44 A.D.2d 384, 355 N.Y.S.2d
485 (3d Dep’t 1974), aff'd mem., 36 N.Y.2d 833, 331
N.E.2d 686, 370 N.Y.S.2d 906 (1975); Anonymous v.
State, 17 A.D.2d 495, 236 N.Y.S.2d 88 (3d Dep't), leave
to appeal denied, 13 N.Y.2d 598, 245 N.Y.S.2d 1025
(1963).
CONCLUSION
The dismissals of all claims are affirmed. We instruct
the Clerk of the district court to correct the September
24, 1979, judgment nunc pro tunc in accordance with
the November 19, 1979, instructions of the district
judge.
No costs.
41 Technically, and with etymological soundness, it appears that at
common law there is no cause of action for abduction on behalf of
the child abducted; that claim belongs to the parent who had custody
of the child. See generally W. Prosser, Handbook of the Law of Torts
§ 118, at 905-06 (3d ed. 1964). The abducted child’s claim would be
for false imprisonment. See Robalina v. Armstrong, 15 Barb. 247
(N.Y. Sup. Ct. Fulton Co. 1852).
The claim for abduction quoted in note 40 supra is asserted only
on behalf of the children; no such claim has been asserted on behalf
of Leonhard. It seems clear, however, that Leonhard could not
prevail on an abduction claim because he was not entitled to custody
of the children. See, e.g., Aberlin v. Zisman, 244 F.2d 620 (1st Cir.)
(action by non-custodian father for abduction against child's
maternal aunt and uncle dismissed, applying New York law, where
aunt had been awarded temporary custody), cert. denied, 355 US.
857 (1957); McGrady v. Rosenbaum, 62 Misc.2d 182, 308 N.Y.S.2d
181 (Sup. Ct. N.Y. Co. 1970) (where child's mother has legal custody,
father has no cause of action against mother’s parents for aiding
mother in keeping child away from father), a/fd, 37 A.D.2d 917, 324
N.Y.S.2d 876 (ist Dep’t 1971). See also Pickle v. Page, 252 N.Y.
474, 169 N.E. 650 (1930) (sheriff who took child from its adoptive
a eee, ee eee ee ee oe
abduction).
A461
APPENDIX A
Order of United States District Court
Western District of New York
Dated November 10, 1980
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
THOMAS S. LEONHARD, Individually and THOMAS S&S.
LEONHARD, as Natural Parent and Legal Guardian of:
MICHAEL LEONHARD, etc.,
Plaintiff
Vv.
THE UNITED STATES OF AMERICA, etal.,
Defendants
Civ-78-357
A certified copy of the mandate of the United States Court of
Appeals for the Second Circuit dated August 28, 1980, having
been filed in the office of the Clerk of this court on November 10,
1980, it is hereby
ORDERED, ADJUDGED AND DECREED that said mandate
be, and hereby is, made the judgment of this court.
John T. Curtin
JOHN T. CURTIN
Chief United States District Judge
Dated: November 10, 1980
'
-
A-62
APPENDIX A
Corrected Judgment of United States
District Court Western District of New York
Dated November 10, 1980
* UNITED STATES DISTRICT COURT
FOR THE
WESTERN DISTRICT OF NEW YORK
CIVIL ACTION FILE NO. 78-357
THOMAS S. LEONHARD, Individually and THOMAS S.
LEONHARD, as Natural Parent and Legal Guardian of
MICHAEL LEONHARD, etc.
vs.
THE UNITED STATES OF AMERICA; UNITED STATES
DEPARTMENT OF JUSTICE; et al.
Pursuant to the opinion of the United States Court of Appeals
for the Second Circuit, filed in this court on November 10, 1980,
It is Ordered and Adjudged that the judgment entered in this
court on September 24, 1979, is corrected nunc pro tunc to read
that the complaint is dismissed as to all of the federal defend-
ants, as to the City of Buffalo, and also as to Defendant Samuel
Giambrone.
Dated at Buffalo, New York, this 10th day of November, 1980.
ls) JOHN K. ADAMS
Clerk of Court
FILED
NOV 10 3:27 PM '80
U.S. DISTRICT COURT
W.D. OF NY.
f
A463
APPENDIX A
Judgment of United States District Court
Western District of New York
Dated September 24,1979
UNITED STATES DISTRICT COURT
FOR THE
WESTERN DISTRICT OF NEW YORK
CIVIL ACTION FILE NO. 78-357
THOMAS S. LEONHARD, Individually and THOMAS S.
LEONHARD, as Natural Parent and Legal Guardian of:
MICHAEL LEONHARD etc.
vs.
THE UNITED STATES OF AMERICA; UNITED STATES
DEPARTMENT OF JUSTICE; et al.
This action came on for hearing before the Court, Honorable
Harold P. Burke, United States District Judge, presiding, and
the issues having been duly heard and a decision having been
duly rendered,
It is Ordered and Adjudged that the complaint is dismissed as
to all of the federal defendants.
The complaint is dismissed as against the City of Buffalo.
Dated at Buffalo, New York, this 24th day of September, 1979.
JOHN K. ADAMS
Clerk of Court
>.
A-64
APPENDIX A
Opinion of United States District Court
Western District of New York
Dated September 21, 1979
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
THOMAS S. LEONHARD, Individually, and THOMAS S.
LEONHARD as Natural Parent and Legal Guardian of
MICHAEL LEONHARD, An Infant, STEPHAN
LEONHARD, An Infant, and KAREN LEONHARD, An
Infant,
Plaintiffs,
vs.
THE UNITED STATES OF AMERICA; UNITED STATES
DEPARTMENT OF JUSTICE; HON. GRIFFIN BELL, and
His Predecessors in Office, To and Including HON. JOHN
MITCHELL, Individually and in their Official Capacity;
THOMAS A. KENNELLY, Individually and in his Official
Capacity; GERALD SHUR, Individually and in his Official
Capacity; BENJAMIN R. CIVILETTI, Individually and in his
Official Capacity; THE UNITED STATES MARSHALS
SERVICE; WAYNE B. COLBURN, Individually and in his
Official Capacity; FIVE UNKNOWN AGENTS OF THE
UNITED STATES DEPARTMENT OF JUSTICE, In-
dividually and in their Official Capacity, JOHN CAMERON,
Individually and in His Official Capacity; THE NEW YORK
STATE DEPARTMENT OF CORRECTIONAL SERVICES;
BENJAMIN WARD, and His Predecessors in Office from
1967, Individually and in Their Official Capacity; THE NEW
YORK STATE BOARD OF PAROLE; EUGENE HAMMOCK,
and His Predecessors in Office from 1967, Individually and in
Their Official Capacity; THE CITY OF BUFFALO; SAMUEL
>.
A-65
APPENDIX A
Opinion of United States District Court
Western District of New York
Dated September 21, 1979
GIAMBRONE, Individually and in His Official Capacity; and
PASCAL CALABRESE, Individually and in his Official
Capacity,
Defendants
Salvatore R. Martoche
300 Statler Office Building
Buffalo, N.Y. 14202
Attorney for plaintiffs
Thomas J. Burns
Assistant United States Attorney
for the federal defendants
Joseph P. McNamara —
Corporation Counsel
1100 City Hall
Buffalo, N.Y. 14202
Attorney for defendant City of Buffalo
By notice of motion with supporting papers filed September
18, 1978, the federal defendants move to dismiss the complaint.
By notice of motion with supporting papers filed July 28, 1978
the defendant City of Buffalo moves to dismiss the action on the
ground that the complaint fails to state a claim against the City
of Buffalo.
This is an action seeking declaratory, injunctive and monetary
relief from various defendants including the United States and
several present and former federal officials. It is based upon the
charge that the plaintiff was kept from his children of a prior
marriage because their new family was given protection under
the Federal Witness Protection Program.
A-66
APPENDIX A
Opinion of United States District Court
Western District of New York
Dated September 21, 1979
Several years ago, plaintiff Thomas Leonhard sought to compel
disclosure of the location of his children. This court (Henderson,
J.) refused to grant his request. The district court decision was
upheld by the Court of Appeals for the Second Circuit in
Leonhard vs. Mitchell, 473 F.2d. 709 (2 cir. 1973), cert. denied,
412 US. 749 (1973).
The facts upon which plaintiff Thomas Leonhard relied on for
relief are identical to the facts on which he asserts here. The
facts are set forth at some length: in Judge Kaufman’s decision
473 F.2d. 710-712. The court said at pages 710-712, “In sum, the
extraordinary factual posture of this case indicates that Ken-
nelly, rather than having abused a discretionary power which he
held, acted in good faith in attempting to balance two competing
interests; Thomas Leonhard’s natural wish to be reunited with
his children, and Rochelle Calabrese’s equally natural desire to
protect the children from serious harm or even death.”
After concluding that there was no duty running from the
United States or the individual federal defendants to the
plaintiff, the court specifically held that there was “no violation
of statutory or constitutional rights.”
Defendant argues that collateral estoppel is inapplicable here
since this case involves a different cause of action and different
parties. It is not the nature of the cause of action which
determines the applicability of collateral estoppel, but the
ultimate determination. In the earlier action, plaintiff sought
mandamus; in this case, the plaintiffs seek declaratory relief as
well as money damages. The operative facts are the same, and
the earlier conclusions of no duty and no violation require a
dismissal. Siegel vs. National Periedical Productions, Inc.. 508
F.2d. 909, 913 (2 cir. 1974). With respect to the additional parties,
A467
APPENDIX A
Opinion of United States District Court
Western District of New York
Dated September 21, 1979
who were not plaintiffs in the earlier action, there is no
requirement that there be mutuality of estoppel for the doctrine
to apply. Blonder-Tongue Laboratories, Inc. vs. University of
Illinows Foundation, 402 U.S. 313, 328-339 (1971); Federal Savings
and Loan Insurance Corp. vs. Hogan, 476 F.2d. 1182 (7 cir. 1973);
Zdanok vs. Glidden Company, 327 F.2d. 944, 954-956 (2 cir. 1964),
cert. denied 377 US. 934.
This action is barred by the statute of limitations. Regan vs.
Sullivan, 557 F.2d. 300 (2 cir. 1977).
Plaintiffs failed to file their administrative claims timely.
While conceding that in the earlier case, Leonhard vs. Mit-
chell, 473 F.2d. 709 (2 cir. 1973), there was no common law
constitutional duty to disclose the location of the children,
plaintiffs argue that such a duty arose in 1978 under the case of
Quilloin vs. Wolcott, 98 Sup. Ct. 549 (1978). Plaintiffs bring
themselves squarely within the holding of the Supreme Court in
Procumer vs. Navarette, 434 U.S. 555 (1978). There the court
held that an official cannot be held liable for damages unless the
constitutional! right he was alleged to have violated was “clearly
establishea” at the time of the alleged violation. Here, even
under the plaintiffs’ theory, the alleged violations ceased on July
11, 1975. Since there is no clearly established right under the
plaintiffs’ theory, the individual defendants are entitled to
qualified immunity under the dictates of that case. There can be
neither a common law nor a constitutional tort action in the
absence of a duty running from the alleged tortfeasor to the
injured plaintiff(s); alternatively, if such a duty were deemed to
be created under the Constitution subsequent to the acts of the
officials, they would be entitled to qualified immunity.
>
A8
APPENDIX A
Opinion of United States District Court
Western District of, New York
Dated September 21, 1979
The requirements of res judicata are set out by the Second
Circuit Court of Appeals in Herendeen vs. Champion In-
ternational Corp., 525 F.2d. 130 (2 cir. 1975) and Expert Electric
Inc. vs. Levine, 554 F.2d. 1227 (2 cir. 1977). Parties to an action
on which a judgment on the merits was rendered, or their
privies, are barred from relitigating the same issues and the
same cause of action in a second suit. Where the subsequent suit
is based on a different cause of action the doctrine of collateral
estoppel renders the prior judgment conclusive as to those issues
actually litigated. The requirements for collateral estoppel are
the same as those for res judicata; there must have been a valid
final judgment on the merits conclusive as to the same parties or
their privies regarding the same issues. Whether res judicata or
collateral estoppel bars Leonhard’s present civil action for
damages for an alleged violation of constitutional rights depends
on whether the cause of action in the second suit is the same as
the cause of action in the first suit. The causes of action alleged
are the same. No new facts or issues are alleged in the present
suit for damages. The evidence necessary to prove the existence
of a duty remains unchanged. The finding of no duty and the lack
of any violation of constitutional rights by the Court of Appeals
in the earlier action established the rights and interests of the
parties. A different judgment in the present action would not
only destroy the rights or interests so established but would
reverse the findings of the Second Circuit Court of Appeals that
there was no duty on the part of the defendants to disclose the
whereabouts of the children to Leonhard.
To permit the plaintiffs to proceed with the present action
under a guise of a different cause of action would permit the
plaintiffs to relitigate those issues which, under law, they are
A-69
APPENDIX A
Opinion of United States District Court
Western District of New York
Dated September 21, 1979
barred from doing. Pleading additional theories of recovery in a
subsequent action does not destroy the underlying identity of the
claim.
What the plaintiffs are attempting to do here is similar to
cases where a prisoner brings a civil action for damages against
the police alleging that his constitutional rights were violated in
the course of his arrest and interrogation but where an order had
previously been entered in a suppression hearing in a criminal
proceeding holding the prisoners’ confessions to be valid. In those
situations, the decision in the suppression hearing precludes the
prisoners’ claims for damages on the grounds of collateral
estoppel. Rodriguez vs. Beame, 423 F.Supp. 906 (S.D.N.Y. 1976);
Williams vs. Halpern, 360 F.Supp. 554 (S.D.N.Y. 1973).
Even if this court should hold that the causes of action in the
two lawsuits differ, the present action is still barred by the
doctrine of collateral estoppel which precludes relitigation of the
same issues in a subsequent suit based on a different cause of
action. In this regard, the Court of Appeals for the Second
Circuit confines the application of collateral estoppel to
“situations where the matter raised in the second suit is
identical in all respects with that decided in the first proceeding
and where the controiling facts and applicable legal rules remain
unchanged.” Neaderland vs. Commissioner of Internal Revenue,
424 F.2d. 639, 642 (2 cir. 1970, cert. denied, 400 U.S. 827 (1970).
Another requirement is that the matter raised in the second case
involves “substantially ‘the same bundle of legal principles that
contributed to the rendering of the first judgment’.” Clearly, the
present action brought by Leonhard meets this test; the issues
are identical as are the controlling facts. Although plaintiff
argues that the applicable legal rules with respect to con-
A-70
APPENDIX A
Opinion of United States District Court
Western District of New York
Dated September 21, 1979
stitutional rights were changed by a judicial decision, (Quilloin,
supra), this assertion does not destroy the applicability of
collateral estoppel.
Plaintiff Leonhard was afforded a “full and fair opportunity”
to litigate the issue of whether the government owed him a duty
to disclose the whereabouts of the Calabrese family. The issue
was decided against him and he is not entitled to relitigate it
here simply by virtue of the fact that he brings his infant
children into the action in his capacity as guardian ad litem.
Even though the infant children were not named parties in the
earlier action, they are bound by the finding of no duty because
the findings of no duty to the father to disclosed the whereabouts
of the children presupposes a finding of duty to the children to
disclose their whereabouts.
The complaint is dismissed as to all of the federal defendants.
The complaint is dismissed as against the City of Buffalo.
Monroe vs. Pape, 365 U.S. 167 (1961).
ALL OF THE ABOVE IS SO ORDERED.
ls) HAROLD P. BURKE
Harold P. Burke
United States District Judge
September 21, 1979.
A-71
APPENDIX A
Judgment of United States District Court
Western District of New York
Dated October 29, 1979
UNITED STATES DISTRICT COURT
FOR THE
WESTERN DISTRICT OF NEW YORK
Thomas S. Leonhard etc. et al.
vs.
United States Department of Justice, Hon. Griffin Bell etc. et al.
CIVIL ACTION FILE NO. 78-357
This action came on for trial (hearing) before the Court,
Honorable Harold P. Burke, United States District Judge,
presiding, and the issues having been duly tried (heard) and a
decision having been duly rendered,
It is Ordered and Adjudged that this complaint is dismissed
against Defts’ Benjamin Ward, Edward Hammock, The New
York State Board of Parole and the New York State Dept. of
Correctional Services upon the ground that the complaint makes
no allegation to which constitutionally protected rights of the
Pitfs. were violated.
Dated at Buffalo, New York, this 29th day of October, 1979.
ls) JOHN K. ADAMS
John K. Adams
Clerk of Court
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APPENDIX A
Opinion of United States District Court
Western District of New York
Dated October 25, 1979
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
THOMAS S. LEONHARD, Individually, and THOMAS S&S.
LEONHARD as natural parent and legal guardian of:
MICHAEL LEONHARD, An _ Infant, STEPHAN
LEONHARD, An Infant, and KAREN LEONHARD, An
Infant,
Plaintiffs,
vs
THE UNITED STATES OF AMERICA; UNITED STATES
DEPARTMENT OF JUSTICE; HON. GRIFFIN BELL, and
His Predecessors in Office, To and Including HON. JOHN
MITCHELL, Individually and in their Official Capacity;
THOMAS A. KENNELLY, Individually and in his Official
Capacity; GERALD SHUR, Individually and in his Official
Capacity; BENJAMIN R. CIVILETTI, Individually and in his
Official \Capacity; THE UNITED STATES MARSHALS
SERVICE; WAYNE B. COLBURN, Individually and in his
Official Capacity; FIVE UNKNOWN AGENTS OF THE
UNITED STATES DEPARTMENT OF JUSTICE, In-
dividually, and in their Official Capacity, JOHN CAMERON,
Individually and his Official Capacity; THE NEW YORK
STATE DEPARTMENT OF CORRECTIONAL SERVICES;
BENJAMIN WARD, and His Predecessors in Office from
1967, Individually and in their Official Capacity; THE NEW
YORK STATE BOARD OF PAROLE; EUGENE HAMMOCK,
and His Predecessors in Office from 1967; THE CITY OF
BUFFALO; SAMUEL GIAMBRONE, Individually and in his
A-73
APPENDIX A
Opinion of United States District Court
Western District of New York
Dated October 25, 1979
Official Capacity; and PASCAL CALABRESE, Individually
and in his Official Capacity,
Defendants
Salvatore R. Martoche
300 Statler Office Building
Buffalo, N.Y. 14202
Attorney for plaintiffs
Douglas S. Cream
Assistant Attorney General of New York
65 Court Street
Buffalo, N.Y. 14202
Attorney for defendants, Ward, Hammock, the New York State
Board of Parole and the New York State Department of
Correctional Services
By notice of motion with supporting papers dated November
21, 1978 the defendants Ward, Edward Hammock, the New York
State Board of Parole and the New York State Department of
Correctional Services, move to dismiss the complaint pursuant to
Rule 12, Federal Rules of Civil Procedure, upon the grounds set
forth in the affidavit of Douglas S. Cream sworn to November 21,
1978.
On due consideration the motion is granted. The complaint is
dismissed against the defendants Ward, Edward Hammock, The
New York State Board of Parole and the New York State
Department of Correctional Services upon the ground that the
complaint makes no allegation as to which constitutionally
protected rights of the plaintiffs were violated, the plaintiffs are
without standing to bring this suit for failure to allege that any
..
7.
A-74
APPENDIX A
Opinion of United States District Court
Western District of New York
Dated October 25, 1979
constitutionally protected rights were violated by the acts of the
defendants, the complaint alleges no cause of action against the
State defendants upon which relief can be granted pursuant to
42 U.S.C. Section 1983, the doctrine of respondeat superior may
not be used as a basis upon which to grant relief against a
defendant in an action brought under 42 U.S.C. 1983, the acts
complained of occurred more than ten years prior to filing of the
complaint, the complaint is barred by the statute of limitations,
the defendant State agencies are not liable to suit pursuant to 42
U.S.C. 1983, the defendant agencies of the State of New York are
immune from liability by virtue of the Eleventh Amendment to
the Constitution of the United States, all of the defendants are
immune from liability under the doctrine of good faith im-
munity.
ALL OF THE ABOVE IS SO ORDERED.
ls) HAROLD P. BURKE
Harold P. Burke
United States District Judge
October 25, 1979
A-75
APPENDIX A |
Letter of Hon. Harold P. Burke
‘Dated November 19, 1979
November 19, 1979
John K. Adams
Clerk, U.S. District Court
604 U.S. Court House
Buffalo, New York 14202
Re: Thomas S. Leonard, etc. et al vs. The United States of
America, et al. Civil 78-357.
Dear Sir:
This letter is your authority to correct a typographical error in
the decision herein dated September 21, 1979. The last
paragraph on page 8 should be amended by adding, “and
defendant Samuel Giambrone, individually and in his official
capacity.” The parties may conform their copy of the decision
accordingly.
Very truly yours,
ls) HAROLD P. BURKE
Harold P. Burke
US. District Judge
APPENDIX B
Constitutional Provisions and
Statutes Involved
Bl
APPENDIX B
Constitutional Provisions and Statutes Involved
Constitutional Provisions
Amendment I
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a
redress of grievances.
Amendment IV
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and par-
ticularly describing the place to be searched, and the persons or
things to be seized.
Amendment V
No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a
Grand Jury, except in cases arising in the land or naval forces, or
in the Militia, when in actual service in time of War or public
danger; nor shall any person be subject for the same offence to
be twice put in jeopardy of life or limb; nor shall be compelled in
any criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process of law;
nor shall private property be taken for public use, without just
compensation.
Amendment IX
The enumeration in the Constitution, of certain rights, shall
not be construed to deny or disparage others retained by the
people.
.%
>».
B-2
APPENDIX B
Constitutional Provisions and Statutes Involved
Amendment XIV, Sections 1 and 5
Section 1. All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside. No State shall make
or enforce any law which shall abridge the privileges or im-
munities of citizens of the United States; or shall any State
deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.
Section 5. The Congress shall have power to enforce, by ap-
propriate legislation, the provisions of this article.
Statutory Provisions
42 U.S.C. §1983
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory, subjects,
or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress.
28 U.S.C. §2401
(a) Every civil action commenced against the United States
shall be barred unless the complaint is filed within six years
after the right of action first accrues. The action of any person
under legal disability or beyond the seas at the time the claim
accrues may be commenced within three years after the
disability ceases.
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APPENDIX B
Constitutional Provisions and Statutes Involved
(b) A tort claim against the United State shail be forever
barred unless it is presented in writing to the appropriate
Federal agency within two years after such claim accrues or
unless action is begun within six months after the date of
mailing, by certified or registered mail, of notice of final denial
of the claim by the agency to which it was presented.
28 U.S.C. §2674
The United States shall be liable, respecting the provisions of
this title relating to tort claims, m the same manner and to the
same extent as a private individual under like circumstances,
but shall not be liable for interest prior to judgment or for
punitive damages.
If, however, in any case wherein death was caused, the law of
the place where the act or omission complained of occurred
provides, or has been construed to provide, for damages only
punitive in nature, the United States shall be liable for actual or
compensatory damages, measured by the pecuniary injuries
resulting from such death to the persons respectively, for whose
benefit the action was brought, in lieu
Public Law 91-452, Title V, §§501-504, 84 Stat. 933 (1970)
Sec. 501. The Attorney General of the United States is
authorized to provide for the security of Government witnesses,
potential Government witnesses, and the families of Govern-
ment witnesses and potential witnesses in legal proceedings
against any person alleged to have participated in an organized
criminal activity.
Sec. 502. The Attorney General of the United States is
authorized to rent, purchase, modify, or remodel protected
housing facilities and to otherwise offer to provide for the health,
ie Bn
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APPENDIX B
Constitutional Provisions and Statutes Involved
safety, and welfare of witnesses and persons intended to be
called as Government witnesses, and the families of witnesses
and persons intended to be called as Government witnesses in
legal proceedings instituted against any person alleged to have
participated in an organized criminal activity whenever, in his
judgment, testimony from, or a willingness to testify by, such a
witness would place his life or person, or the life or person of a
member of his family or household, in jeopardy. Any person
availing himself of an offer by the Attorney General to use such
facilities may continue to use such facilities for as long as the
Attorney General determines the jeopardy to his life or person
continues.
Sec. 503. As used in this title, “Government” means the
United States, any State, the District of Columbia, the Com-
monwealth of Puerto Rico, any territory or possession of the
United States, any political subdivision, or any department,
agency, or instrumentality thereof. The offer of facilities to
witnesses may be conditioned by the Attorney General upon
reimbursement in whole or in part of the United States by any
State or any political subdivision, or any department, agency, or
instrumentality thereof of the cost of maintaining and
protecting such witnesses.
Sec. 504. There is hereby authorized to be appropriated from
time to time such funds as are necessary to carry out the
provisions of this title.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.