# Appendix — Leonhard v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1221%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1981 - **Citation:** 451 U.S. 908 ## Text go-1z69 TES" No neater EERE A Ml tems sbi aK 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. **» 7% 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 '% 7% 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.” '* ‘% 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 ’*% 7% 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. '% 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 pro [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1221%3A2. Public record. Not legal advice.