# Appendix — Rodriguez v. National Center Center for Missing & Exploited Children (No. 05-1059)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2005

## Text

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published. The Clerk is directed to withhold issuance of the
mandate in Appeal No. 05-5202, the direct appeal, until
seven days after resolution of any timely petition for
rehearing.” See Fed. R. App. P. 41(b); D.C. Cir. Rule 41.

Per Curiam

FOR THE COURT:
Mark J. Langer, Clerk

BY: /S,
John T. Haley
Deputy Clerk

*Chief Judge Michel is « judge of the United States Court of
Appeals for the Federal Circuit, sifting by designation
pursuant to 28 U.S.C. § 291(a).

**Chief Judge Restani is a judge of the United States Court
of International Trade, sifting by designation pursuant to 28
U.S.C. § 293(a).

***Senior District Judge Stafford is a judge of the United
States District Court for the Northern District of Florida,
sitting by designation pursuant to 28 U.S.C. § 292(d).

As No. 05-5130 is an original action filed in the United
States Court of Appeals for the District of Columbia Circuit, no
mandate will issue

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No. 05-51 30, et. al., In re Rodriguez

MEMORANDUM

I. BACKGROUND

Isidoro Rodriguez (“Rodriguez”) brought suit in the United
States District Court for the District of Columbia on behalf
of himself and his minor son, Isidoro Rodriguez- Hazbun
(“Isidoro”}, against the National Center for Missing and
Exploited Children, et. al.,° alleging that the defendants
conspired to deprive him of his constitutional rights under
the First, Fifth, and Ninth Amendments and civil rights
under 42 U.S.C. §§ 1985(3) and 1986 (2000) and are also
liable under the Federal Tort Claims Act (“FTCA”), 28
U.S.C. §§ 2671-2680 (2000). Among other relief, he sought
money damages, costs, and attorneys’ fees. He also

petitioned for a writ of mandamus to “keep [Isidoro safe
while in Colombia, assure access and unhindered
communication with Isidoro, and to seek pursuant to

The defendants named in Rodriguez's original complaint
include: the National Center for Missing and Exploited Children,
Ernie Allen, Nancy Hammer, Guillermo Galarza, Proskauer Rose
LLP, Warren L. Dennis, Susan Brinkerhoff, Miles & Stockbridge
LLP, Stephen J. Cullen, Patrick H. Stiehm, Mary B. Marshall,
Robert McCannell, Knute E. Malmborg, and John Does 1-20, in
their individual capacity, the Office of Children Issues, the
Office of Legal Adviser for Consular Affairs, U.S. Department of
State, an unknown number of unnamed and unknown
employees of the United States, in their official and individual
capacities, the United States Department of State, and the
United States of America. For simplicity, the named defendants
are categorized herein as either “federal defendants” or “private
defendants.” Collectively, however, they are referred to as
simply “defendants.”

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Isidoro’s wishes and rights his immediate return to the
United States.” Compl. at p. 38. During the pendency of his
case, Rodriguez filed an amended complaint, adding
numerous additional defendants, including every court and
the majority of judges who had ruled on his previous
federal and state filings. He likewise moved to disqualify
Judge Richard W. Roberts, the district judge assigned to his
case, pursuant to 28 U.S.C. § 455 (2000).

The district court granted the defendants’ motion to dismiss
the original complaint under Federal Rule of Civil
Procedure 12(b) for lack of subject matter jurisdiction and
for failure to state a claim upon which relief may be
granted. Rodriguez v. Nat’ Ctr. for Missing & Exploited
Children. et. al., No. 03-120, slip op. at 13 (D.D.C. Mar. 31,
2005). First, as to Rodriguez’s constitutional claim, the
district court held that the federal defendants are immune
from suit based upon the doctrine of sovereign immunity.
Id. at 19-20. It also held that the private defendants are not
proper defendants under the Constitution, citing Bivens v.
Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971). Id. at 21-25.

Second, the district court found that the United States did
not waive its sovereign immunity for Rodriguez’s tort claim.
id. at 31. It also observed that of all of the torts he alleged,
Rodriguez presented only a claim for intentional infliction
of emotional distress (“IIED”)at the agency level, a
prerequisite for litigating a tort claim under the FTCA. Id.
at 32. The district court thus limited its consideration of
Rodriguez’s tort claim to this one cause of action and held
that he failed to allege any facts showing outrageous
conduct on the part of the remaining defendants, an
essential element of an ITED claim. Id. at 34-35.

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Third, the district court held that Rodriguez’s civil rights
claims against the federal defendants are barred by the
doctrine of sovereign immunity. Id. at 36. As to the private
defendants, the district court held that Rodriguez did not
allege facts sufficient to show that the private defendants
conspired to violate either Rodriguez’s or Isidoro’s civil
rights based on a discriminatory animus directed at U.S
Hispanic males. Id. at 37-39.

Finally, since the United States District Court for the
Eastern District of Virginia had issued an order requiring
that Isidoro return to Colombia, the district court found that
Rodriguez failed to show a “clear and indisputable” right to
a writ of mandamus. Id. at 39. It likewise concluded that
both Rodriguez’s motion to disqualify and his amended
complaint were “nothing more than a transparent attempt
at judge-shopping and forum-shopping.” Id. at 42
Consequently, the district court denied both the petition foi
writ of mandamus and the motion to disqualify and struck
Rodriguez’s amended complaint.

Because the origina! complaint was dismissed under Rule
12(b), the district court entered final judgment, dismissing
the entire action. On May 23, 2005, Rodriguez timely
appealed.

Il. DISCUSSION

The appellees argue that summary affirmance is appropriate
because the district court correctly held that even accepting
Rodriguez's well-plead allegations as true, they did not
engage in a conspiracy to deprive Rodriguez and Isidoro of
their constitutional or civil rights or to commit a tortious act
against either of them. Rodriguez responds by asserting that
summary affirmance must be denied because “the ongoing

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deprivation of {Rodriguez’s and Isidoro’s rights to impartial
access to both federal and Virginia courts to seek redress of
the ongoing obstruction with Rodriguez’s substantive
parental rights” violates the constitution and federal statute.
Resp. for Appellees at 9. As Rodriguez and Isidoro have had
ample access to the courts, Rodriguez’s argument is
unresponsive to the motion for summary affirmance. On the
merits, he appears to assert that he and his son are being
wronged, rather than why the trial court’s dismissal or any
other ruling constitutes reversible error.

A.

We conclude that the district court correctly found that the
United States, its agencies, and officials are immune from
suit under the doctrine of sovereign immunity as to
Rodriguez’s constitutional, tort, and civil rights claims. See
United States v. Testan, 424 U.S. 392, 399 (1976). Here,
Congress did not waive the United States’s sovereign
immunity with respect to Rodriguez’s constitutional claim.
See Clark v. Library of Congress, 750 F.2d 89, 103 n.31,
104 (D.C. Cir. 1984). Nor did Congress waive the United
States’s sovereign immunity with respect to Rodriguez’s tort
claim, see FDIC v. Meyer, 510 U.S. 471, 477-78 (1994), or
his statutory civil rights claims, see Hohri v. United States,
782 F.2d 227, 245 (D.C. Cir. 1986). Consequently, the
district court properly dismissed all Rodriguez's claims
against the federal defendants for lack of subject matter
jurisdiction.

B.

As to the private defendants, we address each cause of
action in turn, beginning with Rodriguez’s allegation of a
civil conspiracy to violate Rodriguez’s and Isidoro’s

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constitutional rights. We agree with the district court that
the private defendants cannot be Viable for such a
conspiracy because they were not acti 2 under the color of
law. See Browning v. Clinton, 292 F.3d 235, 250 (D.C. Cir.
2002) (“Critical to a successful Bivens claim, of course, [the
defendants} must have acted ‘under color of [federal]
authority.” (quoting Bivens, 403 U.S. 388, 389 (1971)
(alteration in original))). Rather, the private defendants
acted as private entities. Indeed, Rodriguez's complaint, as
the district court noted, does not even allege that any of the
private defendants acted under color of law. As such,
Rodriguez’s constitutional claim against the private
defendants was correctly dismissed by the district court for
lack of subject matter jurisdiction.

With respect to Rodriguez’s tort claim, he particularly
alleges that the private defendants violated Isidoro’s and his
rights to the “society and companionship in the father/son
relationship, access to the courts of the Commonwealth of
Virginia, consticute an illegal shanghaiing of Isidoro from
the United States, negligent supervision, intentional
infliction of emotional distress, violation of freedom to
petition the government, falsification of official documents,
and an invasion of privacy.” Compl. 4141. Of these claims,
the district court correctly noted that Rodriguez, pursuant
to 28 U.S.C. § 2675(a) (2000), only presented his claim for
intentional infliction of emotional distress to the United
States Department of State, the appropriate administrative
agency. See Compl. 4 142. His claim was denied in 2002,
thus allowing the present tort claim. The district court also
correctly found that Rodriguez's original complaint was
devoid of any factual allegations reflecting egregious
conduct, let alone outrageous or atrocious conduct, on the
part of the private defendants. See Brownino, 292 F.3d at
248 (The tort of intentional infliction of emotional

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distress“requires conduct so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community.”) (quotations and
citations omitted). We thus conclude that the district court
properly dismissed Rodriguez’s tort claim for failure to state
a claim.

Finally, we conclude that the district court properly
dismissed Rodriguez’s civil rights claims against the private
defendants for failure to state a claim. To prove a
conspiracy in violation of § 1985(3), a plaintiff must show,
inter alia that “some racial, or perhaps otherwise
class-based, invidiously discriminatory animus [lay] behind
the conspirators’ action.” Bray v. Alexandria Women’s
Health Clinic, 506 U.S. 263, 268 (1993) (citations and
quotations omitted). Here, even under the most liberal
interpretation of the original complaint, Rodriguez did not
allege any facts, which if true, would show that the private
defendants conspired against either Rodriguez or Isidoro
because they are Hispanic males living in the United States.
In his original complaint, Rodriguez merely alleges:
“Defendants conspired against Plaintiffs . . . based on
invidious discriminatory animus against Rodriguez and
Isidoro as U.S. citizens Hispanic men.” Compl. 4 145. This
allegation is merely a bald assertion; it plainly fails to
connect the private defendants’ alleged actions against
Rodriguez and Isidoro with the latters’ status as U.S.
Hispanic males. Moreover, since a colorable claim under §
1985 is a prerequisite to a claim under § 1986, Mollnow v.

Carlton, 716 F.2d 627, 632 (9th Cir. 1983), the district
court properly dismissed Rodriguez’s derivative § 1986
claim.

C.

The district court correctly denied Rodriguez's petition for
a writ of mandamus. Pursuant to the Mandamus Act, 28
U.S.C. § 1361 (2000), a district court may grant mandamus
relief if “(1) the plaintiff has a clear right to relief; (2) the
defendant has a clear duty to act; and (3) there is no other
adequate remedy available to the plaintiff.” Power _v.
Barnhart, 292 F.3d 781, 784 (D.C. Cir. 2002) (quoting N.
States Power Co. v. Dep’t. of Energy, 128 F.3d 754, 758
(D.C. Cir. 1997)). Rodriguez cannot show a clear right to
relief under any of the facts alleged in his complaint or
reasonable inferences to be drawn therefrom. See Kerr v.
U.S. Dist. Court for N. Dist. of Cal., 426 U.S. 394, 402
(1976) (citations and quotations omitted). On the contrary,
as the district court noted, Isidoro presently resides in
Colombia with his mother as a result of the order of the
Eastern District of Virginia. See Hazbun Escaf v. Rodriguez,
200 F. Supp. 2d 603 (E.D. Va. 2002), affirmed, Hazbun
Escaf v. Rodriguez, 52 Fed. Appx. 207 (4th Cir. 2002).
Rodriguez and Isidoro have had the opportunity to fully
adjudicate the merits of their child custody dispute in court;
they simply are dissatisfied and disagree with the result.
Accordingly, the district court was correct in holding that
Rodriguez could not show a clear and indisputable right to
a writ of mandamus.

D.

The district court did not abuse its discretion when it
denied Rodriguez’s motion to disqualify the district judge or
when it struck his amended complaint. As the district court
noted, Rodriguez's amended complaint murrored his
original complaint with the addition only of new
governmental defendants, including the United States

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District Court for the District of Columbia and Judge
Roberts, and new conspiracy-based causes of action.
Notably, Rodriguez made his filings after the defendants
filed a motion to dismiss the original complaint and after
Judge Roberts declined to recuse himself from the case. In
light of the chronology of events, we can only infer that
Rodriguez sought to delay any decision on the defendants’
motion to dismiss. We thus agree with the district court that
Rodriguez’s motion and his amended complaint reflect an
improper attempt to forum-shop and judge-shop.

Ill. CONCLUSION

Accordingly, for the reasons set forth herein, the district
court’s judgment of dismissal is summarily affirmed.

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United States Court of Appeals Of for the District of
Columbia Circuit
No-05-5130

Dated: August 1, 2005

In re lsidoro Rodriguez, Esq., and as Father and next of
friend of his 16 year old son Isidoro Rodriguez-Hazbun, and
Isidoro Rodriguez-Hazbun,

Petitioners

05-5202

Isidoro Rodriguez, Esq., Father Isidoro Rodriguez-Hazbun,
a minor and Isidoro Rodriguez-Hazbun,
Appellants

V.

National Center for Missing & Exploited Children, et al.,
Appellees

ORDER

It is ORDERED, on the court’s own motion, that the
above cases be consolidated.

For the Court
Mark J. Lagger, Clerk
By s/

Linda Jones
Deputy Clerk

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UNITED STATES DISTRICT COURT FOR THE DISTRICT
OF COLUMBIA

ISIDORO RODRIGUEZ, er al.,

Plaintiffs, : Civil Action
: No 03-CV-00120
v. : (RWR)

THE NATIONAL CENTER FOR
MISSING & EXPLOITED
CHILDREN, et al.,

Defendants.

ORDER

For the reasons set forth in the accompanying
Memorandum Opinion, it is hereby

ORDERED that defendants’ motion to dismiss [63,
65] be, and hereby are, GRANTED. The complaint is
DISMISSED. It is further

ORDERED that the plaintifts’ motion for writ of
mandamus [47] be, and hereby is, DENIED. It is further

ORDERED that plaintiffs’ motions to disqualify
[128, 132] ve, and hereby are, DENIED, and the
amended complaint is STRICKEN., It is further

ORDERED that all remaining motions [120, 121,
130, 133] be and hereby are, DENIED as moot.

This is a final, appealable order
SIGNED this 21“ day of March, 2005.

/S/

RICHARD ROBERTS
United States District Judge

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ISIDORO RODRIGUEZ, et al.,

Plaintiffs, : Civil Action

: No 03-CV-00120

V. : (RWR)

THE NATIONAL CENTER FOR
MISSING & EXPLOITED
CHILDREN, et al.,

Defendants.

MEMORANDUM OPINION

Isidoro Rodriguez ("Rodriguez") brought this lawsuit
on behalf of himself and his minor son, Isidoro Rodriguez-
Hazbun ("Isidoro") against a number of individuals, organi-
zations, and agencies, alleging that these defendants
conspired to deprive him of his constitutional rights and
committed violations of the Federal Tort Claims Act.
Plaintiffs also petition for a writ of mandamus directing the
Department of State to keep Isidoro safe in Colombia,
assure Rodrigi ez access to Isidoro, and seek Isidoro's return
to the United States. The federal defendants have moved
for dismissal of the complaint under Rules 12 (b) (1), (2),
(4), (5), and (6) of the Federal Rules of Civil Procedure,
alleging lack of subject matter and personal jurisdiction,
insufficient process and service, and failure to state a claim,
respectively. ‘The private defendants have moved for
dismissal pursuant to Rules 12 (b) (1) and 12 (b) (6).

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In Counts One and Two, plaintiffs allege constitu-
tional violations under the First, Fifth, and Ninth Amend-
ments. Because plaintiffs have failed to serve process on
the federal individual defendants in their individual capaci-
ties, and because these individuals are entitled to sovereign
immunity from suits for money damages against them in
their official capacities, the constitutional claims against
these individuals will be dismissed. Because the federal
organizations have sovereign immunity from suits for
money damages, the constitutional claims will also be
dismissed as to these defendants. Because the private
organizations and some of the private individuals are not
proper defendants under Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971),
the constitutional claims will be dismissed as to them. For
the remaining individual private defendants, the constitu-
tional claims will be dismissed as to them because, even if
they are proper Bivens defendants, plaintiffs have not stated
a claim against those defendants that would withstand
qualified immunity.

In Count Three, plaintiffs allege a number of
violations of the Federal Tort Claims Act. Because the
United States has not waived sovereign immunity with
respect to constitutional torts, because plaintiffs failed to
present certain of their alleged non-constitutional tort
violations at the agency level, and because, with regard to
the alleged tort violation they did present at the agency
level, they fail to state a claim upon which relief can be
granted, plaintiffs’ claims under the Federal Tort Claims Act
must be dismissed.

In Count Four, plaintiffs allege, pursuant to 42
U.S.C. §§ 1985(3) and 1986, the existence of a conspiracy
to violate their constitutional rights. Because plaintiffs fail

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to sufficiently state a claim that any alleged conspiracy was
based on racial or other class-based animus, plaintiffs’
claims under these statutes will be dismissed.

Because plaintiffs have failed to show that their
right to a writ of mandamus, which they seek in Count live
and in a separately filed motion, is clear and indisputable,
the request to issue a writ of mandamus will be denied.

Finally, plaintiffs filed a motion to disqualify me,
pursuant to 28 U.S.C. § 455 (b) (5) (I) , along with an
amended complaint adding me, among others, as a defen-
dant. Because plaintiffs’ motion and amended complaint
are merely a transparent attempt at judge-shopping and
forum-shopping, the motion to disqualify will be denied and
the amended complaint will be stricken in its entirety.

BACKGROUND

I. PLAINTIFFS AND PREVIOUS LAWSUITS

According to the facts alleged in the complaint,
Rodriguez is an attorney admitted to the bar in Virginia
who traveled to and resided in Colombia between 1987 and
1999. (Compl. at 28, 30.) He fathered a child, Isidoro, in
1989. (Compl. at 31.) Rodriguez subsequently returned to
live in the United States in 1999. (Compl. at 34.) Isidoro
and his mother, Amalin Hazbun Escaf ("Hazbun"), remained
in Colombia. After Rodriguez moved to Virginia, Hazbun
and Rodriguez agreed to have Isidoro visit his father in the
United States on several occasions. Hazbun Escaf_v.
Rodriguez, 200 F. Supp. 2d 603, 607 (E.D. Va. 2002), aff'd,
Escaf v. Rodriguez, No. 02-487, 52 Fed. Appx. 207, 2002
WL 31760202 (4th Cir. Dec. 11, 2002), cert, denied, 538
U.S. 1000 (2003). Rodriguez claims that he had a right of

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"visitation and right of access to Isidoro" based on a verbal
divided custody agreement and written joint custody
agreement he entered with Hazbun. (PI.'s Omnibus Resp.
at 4.)

Isidoro's third trip to visit Rodriguez in Virginia
occurred during the months of June and July, 2001.
Hazbun Escaf, 200 F. Supp. 2d at 607. On July 13, 2001,
the day before Isidoro's scheduled return to Colombia,
Rodriguez informed Hazbun that Isidoro would be remain-
ing in the United States. Id. On the same day, Rodriguez
filed a petition to modify the custody agreement between
himself and Hazbun in the Juvenile and Domestic Relations
Court of Fairfax County, Virginia. (Compl. Ex. 3a.) On August
15, 2001, Hazbun filed a Hague Convention Return Applica-
tion with the Colombian Civil Authority, seeking Isidoro's
return to Colombia under the Hague Convention on the Civil
Aspects of International Child Abduction Act. Hazbun Escaf,
200 F. Supp. 2d at 607. Subsequently, on December 20, 2001,
Hazbun filed a suit in the United States District Court for the
Eastern District of Virginia seeking the return of Isidoro to
Colombia under the Hague Convention, as implemented in the
United States by the International Child Abduction Remedies
Act (ICARA"), 42 U.S.C. § 11601-11610. See Hazbun Escaf,
200 F. Supp. 2d at 608. Rodriguez alleges that the defendants
"conspired to file [the Hague Convention action], seeking and
causing the expeditious shanghaiing of Isidoro against his
wishes. . . fron: the United States to Colombia." (Compl. SI
38.)

On May 6, 2002, United States District Judge T.S. Ellis,
III, of the Eastern District of Virginia issued a memorandum
opinion holding that Rodriguez's retention of Isidoro in the
United States violated Hazbun's custody rights, that Isidoro
was not in grave risk of harm, that Isidoro's stated desire to

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remain in the United States did not bar his return to Colombia,
and that ICARA and the Hague Convention required Isidoro's
return to Colombia. See Hazbun Escaf v. Rediiguez, 200 F.
Supp. 2d 603 (E.D. Va. 2002). On December '1, 2002, the
United States Court of Appeals for the Fourth Circuit affirmed
the district court's ruling and also concluded that "the proceed-
ings in district court did not violate either Rodriguez's or
Isidoro’s rights.” Escaf v. Rodriguez, No. 02-487, 52 Fed. Appx.
207, 2002 WL31760202 (4th Cir. Dec. 11, 2002), cert, denied,
538 U.S. 1000 (2003).

Rodriguez subsequently filed the instant action alleging
that various defendants conspired to deprive him and his son
of their constitutional rights. Il. FEDERAL DEFENDANTS

With regard to the following federal defendants,
plaintiffs allege that each “ha[s] and continues to engage in
a custom, policy, or practice of disregarding and thereby
violating the fundamental rights of United States citizens
vis-a-vis their application and administration of the [Hague]
Convention." (Compl. SIS! 58, 77, 103.) Plaintiffs also
claim generally that "Defendants employees and agents
intentionally conspired to deprive Rodriguez and Isidoro to
their rights to equal protection and due process in whole or
in part because of their being Hispanic." (Compl. SIS! 59,
78, 104.)

A. United States Department of State, The Office of
Children's Issues, Bureau of Consular Affairs

Plaintiffs allege that defendants Office of Children's
Issues, Bureau of Consular Affairs, and the U.S. Department
of State are the entities responsible for the administration
of the Hague Convention and ICARA. (Corapl. SI 46.) The only
specific act he alleges that these entities engaged in was

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“assist{ing] in the filing" of Hazbun's Convention action on
December 20, 2001. (Compl SI 74.)

B. Mary B. Marshall

Defendant Mary B. Marshall, whom plaintiffs sue in
her individual and official capacities, is an employee and
director of the Office of Children's Issues of the United
States Department of State. (Compl. 23.) Plaintiffs appear
to allege that Marshall "assisted in filing" Hazbun's Hague
Convention action. (Compl. SI 74.) Plaintiffs also allege
that Marshall sent letters to Fairfax Family Court on
January 3, 2002 and to Judge Ellis on March 15, 2002.
(Compl. SI 75.) They claim that these letters violated 42
U.S.C. §§ 11603-11604 "by negligently seeking to circum-
vent" Rodriguez's family court action and by concealing
information regarding Colombia. (Id.) Finally, plaintiffs
claim that Marshall acted negligently by improperly autho-
rizing the alleged conspiracy, allowing interference in
Rodriguez's family court action, failing to train and properly
supervise employees, and failing to assure access and
communication between Rodriguez and Isidoro. (See
Compl. SI 123.)

C. Robert McCannell, Knute E. Malmborg, Office of Legal
Adviser for Consular Affairs

Plaintiffs allege that Robert McCannell is the
Executive Director of the Office of Legal Adviser for Con
sular Affairs. (Compl. SI 24.) Plaintiffs allege that Knute E.
Malmborg is an attorney adviser at the Office of Legal
Adviser for Consular Affairs. (Compl. 1 25.) Plaintiffs sue
McCannell and Malmborg in their individual and official
capacities. Plaintiffs also name the Office of Legal Adviser
for Consular Affairs, of the U.S. Department of State, as a

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defendant. (Compl. SI 21.) The only specific factual
allegations made with regard to these defendants are that
McCannell and Malmborg responded to Rodriguez's alleged
FOIA request "only in response to express concerns" of the
Fairfax Family Court, released to Rodriguez Hazbun's
Hague Convention application only in Spanish, and "in
violation of Rodriguez's right to petition the government.,.
. . refused to meet with Rodriguez." (Compl. SIS! 98-100,
102.) Rodriguez also asserts, apparently on the basis of the
above alleged facts, that these defendants “conspired to
conceal documents and provide falsely dated official
documents." (Compl. S1101.) Finally, plaintiffs claim that
McCannell and Malmborg acted negligently by improperly
authorizing the alleged conspiracy, allowing interference in
Rodriguez's family court action, failing to train and properly
supervise employees, and failing to assure access and
communication between Rodriguez and Isidoro. (See Compl.
SI 123.)

II]. PRIVATE DEFENDANTS

With regard to the following private defendants, plaintiffs
allege that each “ha[{s] and continues to engage in a custom,
policy, or practice [of disregarding] and thereby violating the
fundamental rights of United States citizens vis-a-vis their
application and administration of the [Hague] Convention.”
(Compl. SI 69; see Compl. SIS! 84, 96, 116.) Plaintiffs also claim
generally that these defendants, or their employees and agents,
"intentionally conspired to deprive Rodriguez and Isidoro to their
rights to equal protection and due process in whole or in part
because of their being Hispanic.” (Compl. SIS! 70, 97, 117; see
Compl. SI 85. )

A. National Center for Missing and Exploited Children, Guillenno

Galarza, Nancy Hammer, Emie Alien

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The National Center for Missing and Exploited Children
("NCMEC’) is a nonprofit corporation which plaintiff alleges acts
as an instrumentality or agency of the United States. (Compl. SI
10.) Defendants Guillermo Galarza and Nancy Hammer are
employees of the NCMEC. (Compl. 1 12, 13.) Plaintiffs allege
that "[u]pon information and belief during the months of
August and September 2001. . . Galarza, and other unnamed
and unknown employees of Defendant NCMEC began conspir-
ing to act as fiduciary and/or attorneys for Hazbun."
(Compl. SI 64.) Specifically, plaintiffs appear to claim that
Galarza, on or about August 6, 2001, left a telephone message
with Hazbun and Isidoro regarding Hazbun seeking the return
of Isidoro to Colombia. (Compl. ] 61.) Additionally, Galarza
and other unknown employees of NCMEC sent e-mails and
telefaxes "advising and exerting influence on the Colombian
Central Authority to quickly submit the Convention applica-
tion" in an attempt to stop the suit in the Fairfax Family Court
“and to restrict consideration under the more limited review of
the Convention in the Federal Court. . .." (Compl. 1 65.)

Plaintiffs also appear to allege that the NCMEC took
some unspecified action that resulted in Hazbun's application
"falsely alleg{ing] that Rodriguez had retained Isidoro against
his will, and failed to advise of the dangers of the “zone of war’
throughowt Colembia" and that the NCMEC, Malmborg and
McConnell #/ssfied a document, apparently a supplement to
Hazbun's Ceswention application. (See Compl. 66, 68.)
Plaintiffs alse claim that these defendants rejected Rodriguez's
request to meet with them. (Compl. SI 67.) Finally, plaintiffs
contend that NCMEC employees and unnamed individuals
"talked with and sat behind Hazbun[] expressing obvious
support to the Court of her action. . ..". (Compl. SI 107.)

Plaintiffs name Emie Alien, President and Chief
Executive Officer of the NCMEC, as a defendant, but do not

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allege any specific facts with regard to him. (See Compl. SI
11.) Plaintiffs only state that Alien, along with Hammer and
Galarza, acted negligently by improperly authorizing the
alleged conspiracy, allowing interference in Rodriguez's family
court action, failing to train and properly supervise employees,
and failing to assure access and communication between
Rodriguez and Isidoro. (See Compl. SI 123.)

B. Patrick H. Stiehm

Defendant Patrick Stiehm is an attorney who provides
volunteer legal services for the NCMEC. (Compl. SI 19.)
Plaintiff specifically alleges that Stiehm made statements in
open court at a Fairfax Family Court status hearing that he
was there on behalf of NCMEC and would be filing a com-
plaint in federal court to enforce the Hague Convention.
(Compl. SI 80.) Plaintiffs also claim that Stiehm filed the
federal district court action to enforce the Convention “as part
of a conspiracy with NCMEC to develop a legal strategy based
on sophistry and to use every ~ gaming’ and sharp attorney
practice to block and assume away the arguinents presented
regarding Isidoro and Rodriguez's fundamental rights. . . as
well as to prevent information being placed into the court
record regarding the dangerous situation in Colombia for U.S.
citizens.” (Compl. SI 83.) Finally, plaintiffs claim that Stiehm
"filed various motions with both the Fourth Circuit and the
District Court, to seek the immediate arrest of Isidoro by law
enforcement. . .." (Compl. SI 110.)

C. Proskauer Rose, LLP; Warren L. Dennis; Susan Brinkerhott

These defendants are outside legal counsel for the
NCMEC. (Compl. SI 86.) Plaintiffs generally assert that these
defendants "intentionally conspired to develop a legal strategy.
.. to block and prevent information" from being placed on the

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court record regarding the dangerous situation in Colombia,
and conspired with the NCMEC to avoid his family court suit.
(Comp. 87,92). They appear to claim thai specific acts that
are evidence of the conspiracy are that Dennis and Proskauer
Rose wrote a letter to Rodriguez making “false, defamatory,
and libelous statements" regarding Rodriguez's attempts to
meet with various other defendants; that Dennis wrote a letter
to Rodriguez that did not address a notice Rodriguez sent to
NCMEC regarding the alleged violations of his constitutional
rights and his request for a meeting; that Dennis, Brinkerhoff,
and Proskauer Rose referred to Rodriguez's family court
action, in some unspecified forum or document, as "Lad was
petitioning for custody of the minor child,’ so to obfuscate
consideration" of plaintiffs' fundamental rights; and that they
in some manner “assisted Defendant Stiehm in the conspiracy
to file" the action in federal district court. (Compi. ]7 88, 90,
93, 94.)

D. Miles & Stockbridge, Stephen John Cullen

Plaintiffs allege that defendant Miles & Stockbridge,
LLP is a law partnership, that defendant Stephen Cullen is an
attorney with Miles & Stockbridge, and that each provides
volunteer legal services for the NCMEC. (Compl. 1! 17-18.)
Plaintiffs claim that "throughout the Federal Convention
Action, in furtherance of the conspiracy to apply the legal
sophistry that the Convention effectively amend the fundamen-
tal rights of Rodriguez and Isidoro under the Constitution,
Defendants. . . intentionally conspired with Defendant
NCMEC." (Compl. SI 106.) Specifically, plainuffs allege that
these defendants entered a pro hac vice appearance on behalf
of Hazbun on April 10, 2002, that Cullen made a statement in
open court regarding plaintiffs’ fundamental rights, that Cullen
received a volunteer of the year award from the NCMEC, and
that these defendants filed various motions with the Fourth

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Circuit and the district court. (Compl. 11 105, 108, 109, 110.)

Before a court may address the merits of a complaint,
it must assure that it has jurisdiction to entertain the claims.
See Scott v. England, 264 F. Supp. 2d 5, 8 (D.D.C. 2002)
(citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-
95 (1998)). Under Federal Rule of Civil Procedure 12 (b) (1),
a defendant may move to dismiss a claim based on the court's
lack of jurisdiction over the subject matter, and the plaintiff
bears the burden of establishing that the court has subject
matter jurisdiction. See Forrester v. United States Parole
Comm'n, 310 F. Supp. 2d 162, 167 (D.D.C. 2004); see also
McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189
(1936) (noting that the plaintiff “must carry throughout the
litigation the burden of showing that he is properly in the
court"). Because subject matter jurisdiction focuses on the
court's authority to hear the claim, a court must "conduct a
careful inquiry and make a conclusive determination whether
it has subject matter jurisdiction or not,” 5A Charles A. Wright
& Arthur R. Miller, Federal Practice & Procedure: Civil 2d §
1350 (1990), by examining the complaint and, “where
necessary, ... [by] consider[{ing) the complaint supplemented
by undisputed facts evidenced in the record, or the complaint
supplemented by undisputed facts plus the court's resolution
of disputed facts." Coalition for Underground Expansion v.
Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (internal quotation
omittec ) . If a defendant facially challenges the basis for subject
matter jurisdiction, the plaintiffs’ factual allegations are assumed
to be true, though a defendant's challenge to the jurisdictional
facts requires a resolution of those disputed facts. See Wright &
Miller, supra, § 1350; see also Artis v. Greenspan, 223 F. Supp. 2d
149, 154 (D.D.C. 2002). If the jurisdictional ground pled in the
complaint is “insufficient or entirely lacking but there are facts

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pleaded in the complaint from which jurisdiction may be inferred,
then the [Rule 12 (b) (1)] motion must be denied.” Minebea Co.,
Ltd, v. Papst, 13 F. Supp. 2d 35, 38 n.2 (D.D.C. 1998) (quoting
Wright & Miller, supra § 1350) .

A motion to dismiss for failure to state a claim upon which
relief may be granted under Federal Rule of Civil Procedure
12(b)(6) should be granted only where it appears that there is no
set of facts in support of the claims which would entitle a plaintiff
to relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957). "To
that end, the complaint is construed liberally in the plaintiffs
favor, and . . . plaintiff{] [receives] the benefit of all inferences
that can be derived from the facts alleged." Kowal v. MCI
Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994) .
"However, the court need not accept inferences drawn by plaintiff
if such inferences are unsupported by the facts set out in the
complaint. Nor must the court accept legal conclusions cast in
the form of factual allegations.” Id. Thus, if plaintiff fails
to allege sufficient facts to support a claim, that claim must
be dismissed.

I. CONSTITUTIONAL CLAIMS

In Counts One and Two, Rodriguez charges that
each of the defendants conspired to deprive him and his son
of their rights to due process, equal protection, and access
to the courts, and their right te petition the government
under the First, Fifth, and Ninth Amendments. The grava-
men of the complaint is that the defendants took actions in
furtherance of an alleged cons;¢racy which allegedly
resulted in the frustration of his custody suit in Juvenile and
Jomestic Court in Virginia. Specifically, plaintiffs claim
that "due to Defendants bad motive’ and conspiracy,"
plaintiffs have been deprived of "the fundamental rights of
both Rodriguez as Father, and Isidoro as a Son in their

A-30

respective society and companionship, and their rights as
U.S. citizens to be safe and remain in the United States
without government interference pursuant to the Constitu-
tion. . .." (Compl. SI 128.) Rodriguez asserts that he has
stated a Bivens claim. (Compl. SI 2.) Under Bivens, the
federal courts may recognize a cause of action for damages
against an individual personally for unconstitutional
conduct committed by the individual as a federal official
acting under color of law. Bivens, 403 U.S. at 392-97. See
Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001);
Browning v. Clinton, 292 F.3d 235, 250 (D.C. Cir. 2002) .

The federal defendants have moved to dismiss these
claims arguing, inter alia, that plaintiffs’ claims against the
individual federal defendants in their personal capacities
must be dismissed for lack of service of process, and that
claims against the federal organizations and individual
defendants in their official capacities must be dismissed
because there has been no waiver of sovereign immunity for
such claims. (Mem. Supp. Fed. Def.'s Mot. to Dismiss at 14,
25.) The private defendants have noved to dismiss these
claims, arguing, inter alia, that the complaint fails to state
a claim because it asserts only conclusory allegations,
unsupported by alleged facts, of a conspiracy to deprive
plaintiffs of their constitutional rights, that none of the
private defendants are proper Bivens defendants, and even
if the individual defendants were proper Bivens defendants,
they would be entitled to qualified immunity from such
claims. (Private Def.'s Mot. at 16-18.)

A. Service of Process on Defendants Marshall, McCannell,
and Malmborg

In a Bivens action against a federal official in his or
her individual capacity, the defendant must be sesved

A-31

pursuant to rules that apply to individual defendants. See
Simpkins v. District of Columbia Gov't, 108 F.3d 366, 369
(D.C. Cir. 1997); Delqado v. Fed. Bureau of Prisons, 727 F.
Supp. 24, 26 (D.D.C. 1989); Lawrence v. Acree, 79 F.R.D.
669, 670 (D.D.C. 1978). It is a plaintiff s responsibility to
establish personal jurisdiction, and the plaintiff must ensure
that service is properly effectuated by remedying any
known defect in service. See Reuber v. United States, 750
F.2d 1039, 1049, 1052 (D.C. Cir. 1984), abrogated on other
grounds by Kauffman v. Anglo-American School of Sophia,
28 F.3d 1223 (D.C. Cir. 1994); Rochon v. Dawson, 828 F.2d
1107, 1110 (Sth Cir. 1987).

Defendants contend in their motion to dismiss that
plaintiffs failed to personally serve process on Marshall,
McCannell, and Malmborg. (Mem. Supp. Fed. Def.'s Mot. to
Dismiss at 14.) Plaintiffs moved for a declaratory judgment as to
service of process on these defendants, alleging that service was
accomplished by delivery of a summons and complaint to an
employee from the Department of State's Office of Legal Advisor.
(See Docket Entry #26.) In ruling on plaintiffs motion, the court
noted that plaintiff's belief during the first month of litigation that
personal service on these three defendants was effective in their
personal capacities was not wholly unwarranted, and that plaintiff
had moved promptly to resolve the status of this service issue after
the effectiveness of the service was challenged. The court's Order
gave plaintiff 85 days from March 10, 2004 to serve process upon
Marshall, McCannell, and Malmborg in their individual capacities.
(See Docket Entry #116.) To date, plaintiff has not provided
notice that these defendants have been served in their individ-
ual capacities. As such, the plaintiffs’ Bivens claims against
Marshall, McCannell, and Malmborg in their individual
capacities will be dismissed.

B. Sovereign Immunity for Bivens Claims Against Federal

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Organizations and Individuals in their Official Capacities

Plaintiffs, in Counts One and Two, also appear to be
seeking recovery against the United States, the United States
Department of State and its offices -- The Office of Children's
Issues and The Office of Legal Adviser for Consular Affairs -- as
well as the individual federal defendants -Marshall, McCannell,
and Malmborg-in their official capacities.

Sovereign immunity bars all suits against the United
States, including suits against federal officers in their
official capacities, except when there has been a statutory
waiver of such immunity. See United States v. Mitchell,
445 U.S. 535, 538 (1980) (explaining that the United
States, as sovereign, is immune from suit except where it
consents to be sued, and that a waiver of sovereign immu-
nity cannot be implied but must be expressed with clear
congressional intent); Kentucky v. Graham, 473 U.S. 159,
166 (1985) (an official-capacity suit is to be treated as a
suit against the government entity itself). The United States
has not waived its sovereign immunity with respect to
constitutional tort claims. Clark v. Library of Congress, 750
F.2d 89, 103 n.31, 104 (D.C. Cir. 1984) (in suit against Library
and Librarian of Congress for violation of First Amendment
rights, court held that sovereign immunity barred suit for
money damages against Library and Librarian acting in his
official capacity); Laswell v. Brown, 683 F.2d 261, 268 (8th
Cir. 1982)(helding that, as to constitutional tort claim, the
United States and its agencies were not proper defendants
because of sovereign immunity, and explaining that Bivens
does not waive sovereign immunity for actions against the
United States). Furthermore, even where sovereign immunity
has been waived, Bivens has not been extended to permit suit
against a federal agency. See FDIC v. Meyer, 510 U.S. 471,
484-86 (1994). [T]he purpose of Bivens is to deter the

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officer,’ not the agency." Corr. Servs. Corp., 534 U.S. at 69
(quoting FDIC v. Meyer, 510 '/.S. at 485) .

Accordingly, any Bivens claims asserted against the
United States, federal agencies, and individual defendants in
their official capacities are barred by the doctrine of sovereign
immunity and will be dismissed pursuant to Federal Rule of
Civil Procedure 12 (b) (1).

C. Private Entities Engaged in Alleged Constitutional Depriva-
tion

The Supreme Court has held that there is no private
right of action, pursuant to Bivens, for damages against private
entities acting under color of federal law. See Corr. Servs.
Corp. v. Malesko, 534 U.S. 61 (2001) (in action alleging
constitutional deprivation against private operator of halfway
house, Supreme Court rejected the request to extend Bivens
liability to new category of defendants); see also Kauffman v.
Anglo-American School of Sofia, 28 F.3d 1223, 1224 (D.C. Cir.
1994) (holding that an entity that is not a federal agency, but
that is constrained by the Constitution in some or all of its acts
solely because of lesser links to the federal government, is
equally exempt from Bivens liability); Meuse v. Pane, 322 F.
Supp. 2d 36, 38-39 (D. Mass. 2004) (holding that plaintiff
could not sustain a Bivens action against broadcast network
because "a Bivens claim is simply not available against a
private entity even if that entity is acting under the color of
federal law").

Plaintiffs assert that NCMEC "is a nonprofit corporation
operating in all the States acting as an instrumentality or
agency of the United States." (Compl. 1 10.) Plaintiffs thus
seem to be asserting inconsistently that the NCMEC is both a
nonprofit corporation, which NCMEC claims to be, and a

A-34

government agency. Assuming that NCMEC is a nonprofit
corporation, whether or not NCMEC was acting under the
color of federal law, plaintiffs have no right of action for
damages against it, and thus the constitutional claims for
damages against NCMEC must be dismissod. Alternatively,
construing the complaint to allege that the NCMEC is a
government agency and accepting such a claim as true, the
NCMEC has sovereign immunity from such claims as is
explained above.

Plaintiffs also assert that defendants Proskauer Rose,
LLP and Miles & Steckbridge, LLP are law partnerships, each
of which provides legal counsel or legal service to NCMEC.
(Compl. 11 14, 17.) As to these private entities as well,
whether or not they were acting under the color of federal law,
plaintiffs have no private right of action for damages for
alleged constitutional violations.

D. Alleged Constitutional Violations by Alien, Hammer,
Galary a, Stiehm, Dennis, Brinkerhoff, and Cullen

Several defendants argue that the Bivens claims against
them should be dismissed because they are private actors not
acting under the color of federal law, and thus are not proper
Bivens defendants. (Private Def.'s Mot. to Dismws at 32.)
"Critical to a successful Bivens claim" is that defendants "must
have acted ‘under color of [federal] authority.” Browning v.

403 U.S. at 389). "To be * under color of authority,’ the conduct
must be’ cloaked with official power [and the official must]
purport to be acting under color of official right." Id. (quoting
Lopez v. Vanderwater, 620 F.2d 1229, 1236 (7th Cir.1980)).

Proskauer Rose attorneys Warren Dennis and Susan
Brinkerhoff, Miles & Stockbridge attorney Stephen Cullen, and

A-35

solo practitioner Patrick Stiehm, are private attorneys. Plain-
tiffs’ complaint does not allege that any of these individuals or
their firms are employees or officers of the United States, that
they are government actors, or that they acted under the color
of federal law. As such, they are not proper Bivens defendants.
See Van Leeuwen v. United States, 868 F.2d 300, 301-02 (8th
Cir. 1989) (affirming district court's ruling that plaintiffs did not
state Bivens claim or § 1983 claim against certain defendants,
because none was a government actor or in conspiracy with a
government actor). Cf. Polk County v. Dodson, 454 U.S. 312,
318 (1981)(noting that "the Courts of Appeals are agreed that
a lawyer representing a client is not, by virtue of being an
officer of the court, a state actor ‘under color of state law’
within the meaning of § 1983"); McCord v. Bailey, 636 F.2d
606, 613 (D.C. Cir. 1980) ("In their capacities as representa-
tives of a client in court, private counsel do not act under color
of state law.")..'

Defendants Alien, Hammer, and Galarza are employees
of the NCMEC, a nonprofit corporation. (See Compl. 1] 10-
13.) The defendants argue that "[a]lthough the NCMEC
carries out certain Hague Convention and ICARA functions on
behalf of the State Department, the NCMEC is simply a private
non-profit corporation that has centracted with the Depart

‘Although plaintiffs appear to allege that these private
attorneys conspired with government actors, plaintiffs’
conclusory allegations of a conspiracy, unsupported by the
alleged facts, are insufficient to recognize a cause of action
against these private individuals under Bivens. See Ostrer
v.Aronwald, 567 F.2d 551, 553 (2d Cir. 1977); Meyer v. Reno,
911 F. Supp. 11, 15 (D.D.C. 1996) (dismissing plaintiff's claims
for failure to state a claim upon which relief can be granted, as
plaintiff failed to assert any factual basis to support the
conclusion that a conspiracy existed) (citing Martin v. Malhoyt,
830 F.2d 237, 258 (D.C. Cir. 1987)).

A-36

ment of Justice and the State Department via a Cooperative
Agreement to perform those functions." (Private Def.'s Mot. to
Dismiss at 33).

Whether Alien, Hammer, and Galarza acted under
color of federal authority need not be resolved, however,
because even if they did, the claims of constitutional violations
against these defendants do not withstand the defense of
qualified immunity. Under Bivens, the federal courts may
recognize a cause of action for damages for unconstitutional
conduct committed by a federal official acting under color of
law. 403 U.S. at 392-97. Government officials performing
discretionary functions, however, generally have “qualified
immunity” from civil damages liability unless their conduct
violated "clearly established statutory or constitutional rights
of which a reasonable person would have known." Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity
"focuses on the objective legal reasonableness" of the action as
measured by legal rules that were "clearly established" at the

“Supreme Court decisions have recognized two kinds of
immunity defenses. "For officials whose special functions or
constitutional status requires complete protection from suit,
{the Supreme Court has] recognized the defense of ‘absolute
immunity.” Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982).
For example, absolute immunity applies to legislators in their
legislative functions, judges in their judicial functions, and
cenain officials of the Executive Branch. Id. "For executive
officials in general, however, . . . qualified immunity represents
the norm. . .. [H]igh officials require greater protection than
those with less complex discretionary responsibilities.” Id.
Furthermore, the Supreme Court has recognized that while
judicial and legislative functions, for example, require absolute
immunity, this protection extends only to acts legislative or
judicial in nature, and not to other acts of judges and legislators,
even when taken in their official capacities. Id. at 811.

A-37
time the action was taken. Id. at 819.

Whether an official has qualified immunity is resolved
by a two-step inquiry. See Saucier v. Katz, 533 U.S. 194, 201
(2001); Maye v. Reno, 231 F. Supp. 2d 332, 336 (D.D.C.
2002). The threshold question is whether, "[t}aken in the light
most favorable to the party asserting the injury,. . . the facts
alleged show the officer's conduct violated a constitutional
right[.]" Saucier, 533 U.S. at 201 (citing Siegert v. Gilley, 500
U.S. 226, 232 (1991)). "If no constitutional right would have
been violated were the allegations established, there is no
necessity for further inquiries concerning qualified immunity.’
Id. If a violation could be made out, the second inquiry is
"whether the [constitutional] right was clearly established." Id.

In assuming the truth of the facts plaintiffs have
alleged, construing the complaint liberally in the plaintiffs’
favor, and giving the plaintiffs the benefit of all inferences that
can be derived from the facts alleged, "the court need not
accept inferences drawn by plaintiffs if such inferences are
unsupportea by the facts set out in the complaint [or] accept
legal conclusions cast in the form of factual allegations."
Kowal, 16 F.3d at 1276. Furthermore, “complaints containing
only ‘conclusory,’ ‘vague,’ or ‘general allegations’ of a
conspiracy to deprive a person of constitutional rights will be
dismissed." Ostrer v. Aronwald, 567 F.2d 551i, 553 (2d Cir.
1977) (holding that plaintiffs’ unsupported allegations did not
suffice to state a claim of governmental conspiracy to deprive
plaintiffs of their constitutional rights, explaining that the
complaint failed to show a nexus between an alleged pattern
of harassment and acts of defendants). "Diffuse and expansive
allegations are insufficient, unless amplified by specific
instances of misconduct." Id. Cf. Contemporary Mission, Inc.
v. United States Postal Serv., 648 F.2d 97, 106-08 (2d Cir.

1981) (where plaintiff sued Postal Service and its officials for

A-38

interference with constitutional rights, court affirmed grant of
summary judgment, without discovery, to defendants where
plaintiff merely "colored its complaint with conclusory allega
tions of a wide-ranging conspiracy to deprive it of its constitu-
tional right to due process and free exercise of religion" and
when required to furnish affidavits demonstrating existence of
genuine issue of material fact, “plaintiff responded by present-
ing immaterial factual inconsistencies and by reiterating its
conclusory allegations of conspiracy’).

Here, plaintiffs' complaint contains merely conclusory
allegations that employees of the NCMEC were engaged in a
conspiracy to deprive plaintiffs of their fundamental rights. For
example, plaintiffs allege that these defendants “have and
continue[] to engage in a custom, policy, or practice of a
conspiracy to disregard and thereby violat[e] the fundamental
rights of United States citizens," and that "in furtherance of its
unlawful custom, policy or practice. . . Defendants employees
and agents intentionally conspired to deprive [plaintiffs’ to
their rights. . .." (See Compl. 11 69, 70.) Plaintiffs make many
other broad-brush allegations, including that defendants
“surreptitiously through legal sophistry use[d]} the Convention
to supercede the fundamental rights” of plaintiffs, that "[i}t is
presumptively unconstitutional and violative of due process
and access to the courts by a broad conspiracy to use politcal!
clout with the federal courts and to systematically take official
action design[ed] to frustrate Isidoro suit in the Fairfax Family
Court. . .." (See Compl. SI 129) . However, plaintiffs allege no
specific facts which would be evidence of the existence of any
such alleged conspiracy, or upon which an inference that such
a conspiracy existed could be drawn.

To the extent that plaintiffs do make specific fact
allegations regarding Galarza, Hammer, and Alien, they
merely claim that Galarza left a telephone message with

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Hazbun regarding Isidoro, that Galarza sent e-mails and faxes
to the Colombian Central Authority allegedly advising it to
quickly submit Hazbun's Convention application, and that
Hammer refused to meet with Rodriguez. They also claim that
these defendants allowed interference in Rodriguez's family
court action, failed to train and properly supervise employees
regarding plaintiffs’ rights, and failed to assure access and
communication between Ro¢riguez and Isidoro. These alleged
facts do not allege either a conspiracy to deprive plaintiffs of
their rights or the deprivation of any constitutional right at all.
Nor do the results of these alleged actions support an inference
that they were undertaken as part of an actionable conspiracy.
Plaintiffs were not deprived of due process, access to the
courts, a right to petition the government, or a father/son
relationship. Rodriguez was heard by both the U.S. District
Court for the Eastern District of Virginia and the U.S. Court of
Appeals for the Fourth Circuit. See Hazbun Escaf v. Rodriguez,
200 F. Supp. 603 (E.D. Va. 2002); Escaf v. Rodriguez, 52 Fed.
Appx. 207, 2002 WL 31760202 (4th Cir. 2002) (unpublished),
cert, denied, 538 U.S. 1000 (2003). Judge Ellis and the
Fourth Circuit fully considered plaintiffs’ custody claims and
decided them. The Fourth Circuit also decided that the district
court proceedings did not violate Rodriguez's parental rights or
Isidoro's due process rights. Escaf v. Rodriguez, 52 Fed. Appx.
207 at 209. To the extent that plaintiffs are seeking relitigat-
ion of those issues, . heir claims are barred by the doctrine of
collateral estoppel. See Parklane Hosiery Co. v. Shore, 439
U.S. 322, 327-33 (1979)(holding that petitioners were
collaterally estopped from relitigating question of whether
proxy statement was false and misleading, because petitioners
had "full and fair” opportunity to litigate their claims in a prior
action brought by the SFC); Otherson v. Dep't of Justice, 711
F.2d 267, 273 (D.C. Cir. 1983) (collateral estoppel, or issue
preclusion, is established when an issue was actually litigated
and submitted for judicial determination in

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an earlier case, the issue was “actually and necessarily deter-
mined by a court of competent jurisdicticn" in the first case,
and preclusion in the second case does not cause any unfair-
ness).

Il. CLAIMS UNDER FEDERAL TORT CLAIMS ACT

Plaintiffs allege in Count Three that the acts of defen-
dants Marshall, McCannell, Malmborq, Alien, Hammer,
Galarza and other unknown individuals violated the Federal
Tort Claims Act ("FTCA"), in that their actions violated plain-
tiffs' rights to the society and companionship of the father-son
relationship and access to the courts, and constituted an
"illegal shanghaiing of Isidoro from the United States,” negli-
gent supervision, intentional infliction of emotional distress,
violation of freedom to petition the government, falsification
of official documents, and invasion of privacy. (Compl. n 139-
142.) The federal defendants contend that the FTCA claims
against them should be dismissed for failure to exhaust
administrative remedies and for failure to state a valid claim
under the FTCA. (Mem. in Support of Fed. Def.'s Mot. to
Dismiss at 27-29.) The private defendants contend that only
the United States is a proper defendant to an FTCA claim, and
that the claim is foreclosed in any event by failure to file an
administrative complaint against these defendants. (Private
Def.'s Mot. to Dismiss at 35-37.)

The federal government, its agencies, and federal
officials when sued in their official capacities, are shielded
from tort actions for damages unless sovereign immunity has
been waived. United States v. Testan, 424 U.S. 392, 399
(1976); United States v. Mitchell, 445 U.S. 535, 538 (1980).
The FTCA provides for a limited waiver of sovereign immunity
for common law torts when the government's employees act
negligently within the scope wf their employment.

A-41

However, the FTCA does not waive sovereign immu-
nity with respect to constitutional torts. See FDIC v. Meyer,
510 U.S. 471, 477-78 (1994) ("the United States simply has
not rendered itself liable under [28 U.S.C.] § 1346 (b) for
constitutional tort claims"); Laswell v. Brown, 683 F.2d 261,
267-68 (8th Cir. 1982); Birnbaum v. United States, 588 F.2d
319, 327-28 (2d Cir. 1978); Zakiya v. United States, 267 F.
Supp. 2d 47, 56 (D.D.C. 2003); Meyer v. Fed. Bureau_of
Prisons, 929 F. Supp. 10, 13-14 (D.D.C. 1996); Kline v.
Republic of El Salvador, 603 F. Supp. 1313, 1317 (D.D.C.
1985). Thus, plaintiffs' constitutional claims for access to the
courts, to petition the government, violation of their rights to
society and companionship of the father-son relationship,’ and
any other of these charges which could be construed as
constitutional torts, must be dismissed as there is no applicable
waiver of sovereign immunity.

A prerequisite to filing a civil tort action under the
FTCA is the requirement of presentment pursuant to 28 U.S.C.
§ 2675 (a). Aclaimant must present his claim to the appropri-
ate administrative agency, and the claim must be denied by the
agency, before the claimant may institute an action for that
claim under the FTCA. 28 U.S.C. § 2675 (a) ; see GAF Corp.
v. United States, 818 F.2d 901, 917-18 (D.C. Cir. 1987).
Section 2675 (a) requires a claimant to file with the agency:
"(1) a written statement sufficiently describing the injury to

*Plaintiffs claim a right to society and companionship in
the father-son relationship under the Fifth Amendment.
Plaintiffs’ articulation of this right is vague at best. The private
defendants’ motion speculates that plaintiffs allege a
fundamental Due Process Clause right of parents in the care and
custody of their children. However, whether this right of
companionship that plaintiffs claim is an established
constitutional right need not be decided.

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enable the agency to begin its own investigation, and (2) a
sum-certain damages claim." GAF Corp., 818 F.2d at 919.
This notice requirement enables the agency “to investigate and
ascertain the strength of a claim" and “to determine whether
settlement or negotiations to that end are desirable." Id. at
920.

Rodriguez filed an administrative claim for relief with
the United States Department of State on January 7, 2002.
(Corapl. SI 142; see Compl. Ex. 13, 22.) The complaint was
denied on August 1, 2002.* (Complaint SI 142; Ex. 21.) (See
Compl. Ex. 23.) Plaintiff's administrative claim, in the form of
a letter to Marshall, complains of actions violating his and his
son's "fundamental Constitutional rights" and specifically
alleges the following injuries: 1) that a letter from Marshall to
Judge Valentine (of the Virginia Juvenile Domestic Court)
misstated facts regarding Rodriguez's family court action and
was "designed to obfuscate" Rodriguez's and Isidoro's funda-
mental rights "to modify the custody agreement"; 2) that
Patrick Stiehm entered an appearance on behalf of the NCMEC
in Rodriguez's family court action and stated that he would be
filing a complaint in U.S. District Court under the Hague
Convention and would be seeking a dismissal of the family
court action, also allegedly "designed [to] obfuscate” Isidoro's
fundamental rights; and 3) chat Rodriguez "could only obtain
telephone contact" with the NCMEC staff and Ms. Espie of
Marshall's staff. (Compl. Ex. 13.) Plaintiff s letter also states

“After this denial, on September 15, 2002, plaintiff filed an
amendment to his administrative complaint (see Compl. SI 1-42,
Ex. 22), which was not considered by the Department of State
as it was deemed untimely. (See Compl. Ex. 23.) Under the
regulations to the FTCA, 28 C.F.R. § 14.2 ©), an administrative
claim "may be amended by the claimant at any time prior to
final agency action. . .."

A-43

that these acts “have caused emotional distress and apprehen-
sion of the possible forced return and detention of [Isidoro] in
Colombia." (Compl. Ex. 13.) This administrative complaint
fails to present to the administrative agency all of the putative
tort claims plaintiffs currently raise before the Court in Count
Three of their complaint. Rodriguez's administrative complaint
does not, and cannot reasonably be construed to, raise claims
of "illegal shanghaiing of Isidoro from the United States,"
negligent supervision, falsification of official documents, or
invasion of privacy. Thus, these claims must be dismissed as
plaintiffs have failed to comply with the requirement of 28
U.S.C. § 2675. See Kline, 603 F. Supp. at 1317 (because
plaintiffs failed to comply with 28 U.S.C. § 2675(a), their suit
was barred).

The only of plaintiffs’ common law tort claims in Count
Three arguably raised at the agency level is intentional
infliction of emotional distress. Intentional infliction of
emotional distress "requires conduct so “outrageous in charac-
ter, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and
witerly intolerable in a civilized community."" Browning v.
Clinton, 292 F.3d 235, 248 (D.C. Cir. 2002) (quoting Bernstein
v. Fernandez, 649 A.2d 1064, 1075 (D.C. 1991) (quoting
Restatement (Second) of Torts § 46 cmt. d (1965))). How-
ever, none of the factual allegations in the complaint that
arguably were presented to the agency -- which include
misstating facts, entering an appearance in court, and declining
to meet with Rodriguez -- is so outrageous in character or so
extreme in degree as to go beyond all possible bounds of
decency. Thus, appellant can prove no set of facts in support
of the intentional infliction of emotional distress claim. See
Browning, 292 F.3d at 241, 248 (holding that where plaintiff
made intentional infliction of emotional distress claim, relying
upon threats and statements made which included terms such

A-44

as "scurrilous" and "garbage," situation could have been
disturbing to plaintiff but did not go beyond all possible
bounds of decency or qualify as "utterly intolerable in a
civilized community"); Rogala v. District of Columbia, 161 F.3d
44, 57-58 (D.C. C*~. 1998) (where plaintiff alleged emotional
distress based on police officer's actions of threatening to arrest
her, yelling at her, laughing at her, and detaining her for an
unnecessarily length of time at a police station, the court found
that the officer's “conduct did not approach the level of
egregiousness necessary to sustain a claim for intentional
infliction of emotional distress").”

Ili. CLAIM OF CONSPIRACY TO VIOLATE CIVIL RIGHTS
UNDER 42 U.S.C. § 1985(3) AND ACTION FOR NEGLECT TO
PREVENT UNDER § 1986

In Count Four, plaintiffs allege that "some or all of the

{defendants and others" conspired to violate their constitu-
tional rights based on a discriminatory animus towards United
States Hispanic men, in violation of 42 U.S.C. §§ 1985(3) and
1986. Specifically, plaintiffs claim that "there was a Meeting
of the Minds arong [the defendants] regarding their desire to

*Plaintiffs appear to concede that they are not raising any
common law tort claims in Count-Three. In their opposition to
the defendants’ motions to dismiss, plaintiffs state that the
defendants “are confused -- the FTCA claim was [] based on...
the negligent actions to violate the rights under the Treaty and
ICARA of the right of Isidoro to have the Fairfax Family Court
hear the Treaty claim" and that the defendants’ actions were
“designed to deprive Rodriguez and Isidoro of their fundamertai
rights -- so to prevent a determination that the Treaty was
unconstitutional as to efforts to take Isidoro out of the United
States." (Pl.'s Omnibus Resp. in Opp. to Def.'s Motions to
Dismiss at 29-30.)

A-45

violate and deprive Rodriguez and Isidoro based on being
Hispanic United States citizens of the equal privileges and
immunities under fundamental constitutional civil rights in the
society and companionship in the father/son relationship,
access to the Courts, and for Isidoro to stay in the United
States." (Compl. S1 144.) Plaintiffs incorporate by reference all
other facts alleged in their complaint in support of their
conspiracy claim. (See Compl. SI 143.)

Section 1985(3) prohibits conspiracies to deprive any
person of the equal protection of the law. 42 U.S.C. § 1985(3).
Plaintiffs’ §§ 1985 (3) claim against the federal defendants
must be dismissed because it is barred by the doctrine of
sovereign immunity. See Hohri v. United States, 782 F.2d
227, 245 n. 43 (D.C. Cir. 1986) (holding that § 1985, by its
terms, does not apply to actions against the United States),
vacated on other grounds, 482 U.S. 64 (1987); Brug v. Nat'l
Coalition for the Homeless, 45 F. Supp. 2d 33, 40 (D.D.C.
1999); Graves v. United States, 961 F. Supp. 314, 318 (D.D.C.
1997).

The private defendants argue for dismissal on the
ground that plaintiffs failed to allege facts that would demon-
strate that the defendants acted out of racial animus. Plaintiffs
"suing under § 1985(3) must allege: (1) a conspiracy; (2) for
the purpose of depriving any person or class of persons of the
equal protection of the laws, or of privileges and immunities
under the law; (3) motivated by some class-based, invidiously
discriminatory animus; (4) whereby a person is either injured
in his person or property, or is deprived of any right or
privilege of a citizen of the United States." Bruq, 45 F. Supp.
2d at 40 (citing Graves, 961 F. Supp. at 320.) Moreover, "[t]o
sufficiently state a cause of action thc plaintiff must allege
some facts that demonstrate that his race [or other class-based
animus] was the reason for the defendant[s'] [actions]. [A]

A-46

failure to allege such facts render{s] [a] discrimination claim
under. . . § 1985 incomplete." Jatfree v. Barber, 689 F.2d 640,
643 (7th Cir. 1982)(where plaintiff samended petition seeking
writ of mandamus alleged that defendant had not investigated
plaintiffs charges because of his race, and the only facts
underlying that claim were that "the plaintiff is “ Brown" and
"that his charges have not been investigated,” court affirmed
dismissal of the claim on the basis that allegations were
conclusory); see Beran v. United States, 759 F. Supp. 886, 893
(D.D.C. 1991) (dismissing plaintiffs § 1985 claim in light of
fact that plaintiff presented no facts to indicate that alleged
conspiracy was prompted by racial or class-based animus);
Maye v. Reno, 231 F. Supp. 2d 332, 339 (D.D.C. 2002)(hold-
ing that plaintiff failed to allege the requisite elements of a
claim under any section of § 1985, for, among other reasons,
plaintiff "provided insufficient ailegations that he was treated
differently from other similarly situated individuals"); Thomas
v. News World Communications, 681 F. Supp. 55, 69 (D.D.C.
1988) (where plaintiffs claimed that alleged torts were
motivated by religious animus, court held that plaintiffs failed
to allege with sufficient specificity that defendants were
motivated by discriminatory animus; where plaintiffs did
expressly allege that defendants were motivated by religious
animus, they also alleged other, non-actionable motivation,
and “fail{ed] to specify any evidence that would support any of
these allegations"). Here, plaintiffs claim that defendants
conspired against them "in whole or in part because of their
being Hispanic," and that they neglected to prevent violations
of plaintiffs’ fundamental rights “based on invidious discrimina-
tory animus against Rodriguez and Isidoro as U.S. citizens
Hispanic men," but plaintiffs allege no facts, which if taken as
true, would support such a claim.

Section 1986 provides a right of action for damages
against a person who, “having knowledge that any of the

A-47

wrongs conspired to be done, and mentioned in section 1985
of this Title, are about to be committed, and having power to
prevent or aid in preventing the commission of the same,
neglects or refuses so to do, if such wrongful act be committed.
.." 42 U.S.C. § 1986. "The language of this provision estab-
lishes unambiguously that a colorable claim under § 1985 is a
prerequisite to stating an adequate claim for neglect to prevent
under § 1986." Thomas, 681 F. Supp. at 72 (citing Mollnow v.
Carlton, 716 F.2d 627, 632 (9th Cir. 1983)); see Dowsey v.
Wilkins, 467 F.2d 1022, 1026 (Sth Cir. 1972). Here, since
plaintiffs have failed to state a claim under § 1985, plaintiffs’
claims under 42 U.S.C. § 1986 will be dismissed.

IV. WRIT OF MANDAMUS

Plaintiffs also request a writ of mandamus directing the
U.S. Department of State to "keep [Isidoro] safe while in
Colombia, assure access and unhindered communication with
Isidoro, and to seek [Isidoro's]. . . immediate return to the
United States." (Compl. at 38-39.)

A writ of mandamus is "an extraordinary remedy, to
be reserved for extraordinary situations.” Nat'l Ass'n of
Criminal Defense Lawyers, Inc. v. United States Dep't of
Justice, 182 F.3d 981, 986 (D.C. Cir. 1999). For a writ of
mandamus to issue, “the party seeking issuance of the writ
{must} have no other adequate means to attain the relief he
desires." Kerr v. United States Dist. Court for Northern Dist.
of California, 426 U.S. 394, 403 (1976). In addition, the

party seeking the writ must satisfy "the burden of showing
that [his] right to issuance of the writ is “clear and
indisputable.” Id. (internal quotations omitted). Further-
more, "issuance of the writ is in large part a matter of
discretion with the court to which the petition is addressed.”
Id.

A-48

Here, plaintiffs cannot establish that their right to
issuance of the writ is “clear and indisputable.” Indeed, the writ
of mandamus that plaintiffs seek in this district would circum-
vent the order issued by the court in the Eastern District of
Virginia requiring that Isidoro return to Colombia. Plaintiffs
have neither presented any authority supporting the power of a
district court to aid petitioners in achieving such judicial
manipulation, nor established that the judicial process he
invoked in Virginia was unavailable to adjudicate his case. The
writ will be denied.

V. MOTION TO DISQUALIFY AND AMENDED COMPLAINT

Plaintiff Rodriguez filed a motion to disqualify me from
this matter and to appoint a judge outside of the District of

Columbia and the Fourth Circuit. Rodriguez claims that since
plaintiffs have filed an amended complaint naming me as a
defendant, | am required to disqualify myself pursuant to 28
U.S.C. § 455 (b) (5) (1).

Section 455 (b) (5) (I) states that a judge "shall. . .
disqualify himself" when he "[i]s a party to the proceeding. . .."
28 U.S.C. § 455 (b) (5) (1) . However, courts have construed
this section as not requiring automatic disqualification. Ander-
son v. Roszkowski, 681 F. Supp. 1284, 1289 (N.D. 111. 1988)
(citations omitted), aff'd, 894 F.2d 1338 (7th Cir. 1990). See,
185 F.3d 8, 10 (2d Cir.
1999) (holding that where appellant indiscriminately named all
then-current Second Circuit judges as defendants, under the
“rule of necessity" the court was not disqualified from resolving
the appeal, 4 »..‘te § 455(b)(5)(1)). For example, "courts have
refused to « %« ualify themselves under Section 455 (b) (5) (1)
unless ther: ., a legitimate basis for suing the judge" in order to
prevent plaintiffs from "judge-shopping.” Anderson, 681 F. Supp.

A-49

at 1289 (citing In re Martin-Trigona, 573 F. Supp. 1237, 1243
(D. Conn. 1983)). As one commentator has explained:

A judge who is named as a defendant in a plaintiffs
amended complaint is not required to disqualify himself
or herself under 28 U.S.C.A. § 455 (b) (5) (I) unless
there is a legitimate basis for suing the judge. For a
judge to be disqualified simply because the plaintiff has
sued the judge would be to allow the plaintiff to manip-
ulate the identity of the decision-maker and thus to
engage in judge-shopping.

32 Am. Jur. 2d Federal Courts § 149. In Anderson, the plaintiffs
filed an amended complaint naming the current judge sitting in
the case as a defendant, and renewed a previously filed motion
to disqualify all of the judges in the Seventh Circuit and to

transfer the case to a judge out of the Seventh Circuit. 681 F.
Supp. at 1287-88. The court held that it was not required to
disqualify itself under Section 455(b)(5)(1), explaining:

It is apparent to the Court that plaintiffs do not have a
legitimate basis for suing me, my secretary, and my
minute clerk. None of us were sued in plaintiffs’ initial
complaint; we were added as defendants only 2° er I
dismissed plaintiffs' Complaint. . .. To disqualify myself
simply because plaintiffs have sued me would be to
allow plaintiffs to manipulate the identity of the deci-
sion maker and to engage in "judge-shopping". ... If this
Court were to disqualify itself. . . plaintiffs would sue
the new district judge and so on and so on. The Court
will not allow plaintiffs to impede the administration of
justice by suing every district judge. . . until their case is
transferred out of the Seventh Circuit.

Id. at 1289.

A-50

Plaintiffs here have filed an amended complaint naming
me, the United States District Court for the District of Columbia,
the United States Courts of Appeals for the District of Columbia
and Fourth Circuits and some of their judges, the Supreme
Court of the United States, the Chief Justice of the United States,
as well as other judges, organizations, and individuals. Plaintiffs’
amended complaint appears to mirror in substance the criginal
complaint, with a few additional defendants and causes of
action. As in Anderson, it is apparent that plaintiffs do not have
a legitimate basis for suing me or these other newly-named
defendants. Rather, plaintiffs’ amended complaint and motion
to disqualify are merely transparent attempts to judge-shop and
forum-shop. This is all the more evident given plaintiffs’
previous motion requesting my recusal in this case pursuant to
28 U.S.C. §§ 144 and 455 (a) (see Docket Entry #73), which
was denied. (See Docket Entry #1:4.) Because the thrust of

plaintiffs’ amended complaint clearly appears to be an effort to
forum-shop and judge-shop, it will be stricken it its entirety.

CONCLUSION

Plaintiffs cannot proceed with their claims of constitu-
tional violations under Bivens as to any of the defendants.
Plaintiffs failed to serve process on the federal individual
defendants in their individual capacities, and these individuals
are entitled to sovereign immunity from suits for money
damages against them in their official capacities. Additionally,
the federal organizations have sovereign immunity from suits for
money damages. The court thus does not have subject matter
jurisdiction over these claims. As to the private organizations
and some of the private individuals, they are . .t proper Bivens
defendants. As to the other individual private defendants, even
if they are proper Bivens defendants, plaintiffs have not stated
a claim against them that would withstand qualified immunity.

A-51

The court also lacks subject matter jurisdiction over the
plaintiffs’ claims of constitutional torts under the Federal Tort
Claims Act, as the United States has not waived sovereign
immunity with respect to constitutional torts. Additionally,
plaintiffs failed to present certain of their alleged non-constitu-
tional tort violations at the agency level, and, with regard to the
alleged tort violation they did present at the agency level, they
fail to state a claim upon which relief can be granted.

Plaintiffs have also failed to allege facts supporting the
existence of a conspiracy based on racial or other class-based
animus sufficient to state a claim under § 1985(3). As such,
they have also failed to state a claim under § 1986. Further-
more, plaintiffs have failed to show that their right to a writ of
mandamus is clear and indisputable.

Finally, plaintiffs’ recent motion to disqualify and their
amended complaint are nothing more than a transparent
attempt at judge-shopping and forum-shopping.

Accordingly, plaintiffs’ motion to disqualify will be
denied, the amended complaint will be stricken in its entirety,
and plaintiffs' original complaint will be dismissed pursuant to
Rules 12 (b) (1) and 12 (b) (6). An Ordr~ accompanies this
Memorandum Opinion.

SIGNED this 31st day of March, 2005.

/s/
RICHARD W. ROBERTS
United States District Judge

A-52

Fairfax County Juvenile and
Domestic Relations District Court

To: Judge Mann Case No(s): JJ347050-01-03
From: Clerk’s Office

Date: Jan. 21,2005 Case Name: Rodriguez-Hazbun,
Isidoro

Isidoro Rodriguez (Father) is appealing the following:
o Visitation

/s/
Isidoro Rodrig»2z

Bond Information

Juvenile Cases Only

Other: This is not an appealable order.

Date: Jan. 21, 2002 ek /s/
Judge Thomas Mann

A-53

VIRGINIA:

In the Supreme Court of Virginia held at the Supreme
Court Building inthe City of Richmond on Wednesday the 18"
day of August, 2004.

ISIDORO RODRIGUEZ-HAZBUN
Appellant.

v. Record No. 041702
Court of Appeals No3247-03-4

AMALIN HAZBUN ESCAF
Appellee.

From the Court of Appeals of Virginia

Upon consideration of the record and pleadings filed

herein, the Court is of opinion that Isidoro Rodriguez lacks
standing in this matter because he has no authority to sue in his
son’s name. Accordingly, the petition for appeal filed in this
case is dismissed.

A Copy

Teste:
/s/
Clerk

A-54
United States Court of Appeals for the District of Columbia
Circuit
No-03-5092
Dated: July 1, 2003
In re Master Isidoro Rodriguez-Hazbun, fourteen-year-old son of
Isidoro Rodriguez, Esq., and Isidoro Rodriguez, Esq. Father of

Isidoro Rodriguez-Hazbun, a minor,

Petitioners
Ginsburg, Chief Judge, and Edwards, Sentelle,
Henderson, Randolph, Rogers, Tatel, Garland,
and Roberts, Circuit Judges

ORDER

Upon consideration of petitioners’ petition for rehearing
en banc, it is

ORDERED that the petition be denied.

Per Curiam

For the Court

Mark J. Lagger, Clerk
co ft ii eR OS
Michael c. MicGrail
Deputy Clerk

A-55
United States Court of Appeals for the District of Columbia
Circuit
No-03-5092
Dated: May 28, 2003
Inre Master Isidoro Rodriguez-Hazbun, fourteen-year-old son of
Isidoro Rodriguez, Esq., and Isidoro Rodriguez, Esq. Father of
Isidoro Rodriguez-Hazbun, a minor,

Petitioners

BEFORE: Ginsburg, Chief Judge, and Edwards and Ran-
dolph, Circuit Judges

ORDER

Upon consideration of the petition for a writ of manda-
mus, and the motion to expedite consideration of the petition,
it is

ORDERED that the petition be denied. To the extent
petitioner seeks a writ of ma1damus to be issued by the district
court, petitioner has not demonstrated a “clear and indisput-
able” right to relief and that “no other adequate means to attain
the relief’ exist. In re Sealed Case No. 98-3077, 151 F.3c. 1059,
1062-63-& n. 4 (D.C. Cir. 1998) (citations omitted). In deed, to
attain the relief he seeks from the district court to amend the
docket to reflect pending civil action, petitioner may move the
district court to amend the docket to reflect that such action was
brought my petitioner both individually and on behalf of his
minor son. To the extent petitioner seeks a writ of mandamus
to be issued to the Department of State, it is well-settled that
such request be brought before the district court in the first
instance. See Telecommunication Research & Action Ctr. v. FCC,

A-56

750 F.2d 70, 77 (D.C. Cir. 1984). It is

FURTHER ORDERED that the motion to expedite be
dismissed as moot.

Per Curiam
S/

A-57

Ref No. 23.833(CUSTODY AND VISIT REGULATION)
FIRST FAMILY COURT ROOM, BARRANQUILLA, COLOMBIA,
August 26, 1997

Mrs. Mabel Castro-Palacio-Defendant’s Attorney in the -

process for custody and visit regulations initiated by Mrs.
Amalin Hazbun, against Mr. Isidoro Rodriguez Cruz, in favor of
minor Isidoro Rodriguez Hazbun, requests this Court to add the
present document to the record of the hearing attended on
August 1“, 1997, raised with basis on the conciliation that the
parties arrived at, in order to determine clearly and expressly,
that the custody of the above mentioned minor will be shared
by the parents, since this was the basic point for the conciliation.

The Court, in order to resolve the petition of the Defen-
dant’s Attorney, refers to the statement of the Defendant, which
was literally written down and is hereby transcribed in its
relevant portion, so that this Court may take the corresponding
decision. Mr. Rodriguez-Cruz states in the aforementioned
document: !

“fI propose Joint Custody of my son ISIDORO RODRI-
GUEZ HAZBUN in the following manner:] That his mother Mrs.
Amalin Hazbun Escaf keep him under her personal care but that
both parents share the right for the education, and the moral
and intellectual up-bringing of our son. As for the visits, I
propose to take my son Isidoro Rodriguez-Hazbun on Fridays
every fortnight at school’s exit hour, in order to spend the
weekend together, and to take him back to his mother on
Sunday at seven p.m. or on Monday if it is a holiday, with his
home work done, and with his complete luggage. On week-
days, that is, form Monday to Friday, I commit myself to take
my son ISIDORO to his additional lessons, then take him and
stay with him until seven o'clock p.m., at weeks when he will
spend the night over, this is to say, once a week. At weeks

A-58

when he will nut spend the night, apart from taking him from
the above menticned additional lessons, I will take him to his
soccer lessons once a week until seven p.m., meaning that week
there will be two visiting days on working days.”

From the foregoing transaction, it is clearly observed
that the mother of the minor Isidoro, retains the child’s custody,
and therefore there is no need to make any clarification thereto.

It would be otherwise if Mrs. Amalin Emilia Hazbun-
Escaf had not complied with the conciliation terms stated in the
document alluded by Mrs. Mabel Castro, in which case strict
compliance would be requested to the Court, and Mrs. Hazbun-
Escaf penalized accordingly.

Notify and comply
s/

LUZ MYRIAM REYES CASAS, Judge
s/
Serra Newman, Certified Translator, Lic. Ministry of Justice,
Bogota Colombia, March 25, 1988 (23/0701).

A-59

HEARING BEFORE FIRST FAMILY COURT OF BARRANQUILLA,
COLOMBIA

PROCESS: CUSTODY AND PERSONAL CARES

PLAINTIFF: AMALIN HAZBUN ESCAF

DEFENDANT: ISIDORO RODRIGUEZ CRUZ

MINOR: 1

In Barranquilla, on August first (1") of Nineteen Ninety
Seven (1997), during public hearing at the First Family Court,
the Honorable Judge declares open the hearing in this process
of CUSTODY AND PERSONAL CARES of AMALIN HAZBUN
ESCAF vs. ISIDORO RODRIGUEZ CRUZ, on behalf of minor
ISIDORO RODRIGUEZ HAZBUN. It is confirmed that both
parties are present and their attorneys. At this stage of the
hearing the Honorable Judge advice the parties to present an
agreement or conciliation ‘ormula.

Defendant Mr. ISIDORO RODRIGUEZ speaks and says:

I propose the Joint Custody of my son ISIDORO
RODRIGUEZ HAZBUN in the following manner:

That the mother AMALIN EMILIA HAZBUN ESCAF
have him her personal cares but both parents share the rights of
correction, moral and intellectual education of our minor child.

Regarding visitations: I propose to pick up my son
ISIDORO RODRIGUEZ HAZBUN every fifteen days at the end of
school day on Friday for him to stay with me all that weekend,
taking him back on Sunday at 7 pm to the house of his mother
or on Monday if it is holiday, with his homework done and his
complete luggage. During the week days, this is Monday
through Friday, I will pick up my son ISIDORO to take him to
classes with the additional teacher assigned, and will pick him
up at the class and continue with him until 7 pm, this when in

A-60

that week it correspond to me his visitation spending the night
with me, this is once a week. When there is no visitation
spending night with me besides picking him up on the day of
the above noted classes | will pick him up on the day he has
football classes once a week until the same hour, that means
that in that week there will be two visitation days on week days.
I want to add that in the case that for any circumstances there
is not football class or writing class with the teacher, he will be
with me anyway two working days in the week and in the other
week one working day and will spend the weekend with me.

Vacations will be shared as follows: The child will spend
one year Carnivals with a parent and Holy Week with the other,
mid year vacation since are longer jointly parents agree (......)
fifteen days with the mother. The end of year vacation this year
the first fifteen days will be with the father permitting that if the
minor is still with him for December 31“ spend that date with
his mother and go back with him to finish the vacation and this
situation of the end of year vacation will alternate annually
keeping always the spirit of sharing one of the two special dates
of December 24 and 31“ of each year. No discussion fathers’
day he will spend it with his father and mothers’ day with his
mother. Regarding birthday of the child ISIDORO we will
celebrate it jointly the parents with our son, making it clear that
next celebration will be made by me.

Ms. AMALIN HAZBUN takes the word and states: I am
totally in agreement with the formula offered by the defendant.
The Honorable Judge takes the word to say. Since the parties
have arrived to an agreement about the totality of the litigation,
being such agreement in accordance with the law, it is approved
and this process finished.

It is just confirmed that at the non-compliance with the
agreed hereby it will be applied by express statement of num. 4

A-61

of art. 350 of the Minor Code the sanctions provided on article
72 ibicem.

No costs in this process. It is signed by all those who
have intervened. The parties wish to clarify that just for year
1988 the mother will have the minor during Carnivals as well as
Holy Week.

The Judge:
S/

LUZ MYRIAM REYES CASAS, Judge
Plaintiff:
s/

AMALIN HAZBUN ESCAF
Defendant:
s/

ISIDORO RODRIGUEZ CRUZ
Attorney for Plaintiff
S/

LUZ MYRIAM SANCHEZ DE CARVAJAL
Attorney for Defendant

s/

MABEL CASTRO PALACIO
The Court Clerk
S/ oa

ELVIA MAZA DE CANTILLO
s/

Serra Newman, Certified Translator, Lic. Ministry of Justice,
Bogota Colombia, March 25, 1988-23/07/01

B--1

U.S. CONSTITUTION, TREATY, FEDERAL STATUTES/
REGULATION AND CODE OF VIRGINIA, INVOLVED

The Supremacy Clause of the United States Constitu-
tion, article VI, clause 2, provides:

This Constitution, and the Laws of the United States
which shall be made in Pursuance thereof; and all
Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme
Law of the Land; and the Judges in every States shall be
bound thereby, any Thing in the Constitution or Laws of
any State to the Contrary notwithstanding.

Fifth Amendment of the United States Constitution
provides:

No person shall . . . be deprived of life, liberty, or
property, without due process of law; ....

Ninth Amendment of the United States Constitution
provides:

The enumeration in the Constitution, of certain rights,

shall not be construed to deny or disparage others

retained by the people.

The Due Process Clause of Section 1 of the Fourteenth

Amendment to the United States Constitution provides:
No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of
life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal
protection of the laws.

18 U.S.C. § 4 - Misprision of felony.

Whoever, having knowledge of the actual commission
of a felony cognizable by a court of the United States, conceals
and does not as soon as possible make known the same to some
judge or other person in civil . . . authority under the United
States, shall be fined under this title or imprisoned not more
than three years, or both.

18 U.S.C. § 1001 - Statements or entries generally.

(a) [W]hoever, in any matter within the jurisdiction of
the executive, legislative, and judicial branch of the Government
of the United States, knowingly and willfully: (1) falsifies,
conceals, . . . a material fact; (2) makes any materially false,
fictitious, or fraudulent statement or representation; . . . shall be
fined . . . or imprisoned not more than 5 years, or both.

18 U.S.C. § 1204 - International parental kidnapping.
(a) Whoever. . . retains a child (who has been in the
United States) outside the United States with intent to obstruct
the lawful exercise of parental rights shall be fined under this
title or imprisoned not more than 3 years, or both.
(b) As used in this section -
(1) the term "child" means a person who has not
attained the age of 16 years; and
(2) the term "parental rights", with respect to a
child, means the right to physical custody of the child -
(A) whether joint or sole (and includes visiting rights); and,
(B) whether arising by operation of law, court order, or legally
binding agreement of the parties.

28 U.S.C. § 3- Vacancy in office of Chief Justice; disability
Whenever the Chief Justice is unable to perform the
duties of his office . . .. his powers and duties shall devolve upon

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the associate justice next in precedence who is able to act

28 U.S.C. § 291(a)-Circuit judges

(a) The Chief Justice of the United States may, in the
public interest, designate and assiy 1 temporaril, —/ circuit
judge to act as circuit judge in another circuit upon the request
by the chief judge or circuit justice of such circuit.

28 U.S.C. § 292(d)-District judges

(d) The Chief Justice of the United States may designate
and assign temporarily a district judge of one circuit for service
in another circuit, either in a district court or court of appeals,
upon presentation of a certificate of necessity by the chief judge
or circuit justice of the circuit wherein the need arises.

28 U.S.C. § 455-Disqualification of Justice, Judge... .

(a) Any justice, judge, or magistrate of the United States shall
disqualify himself in any proceeding in which his impartiality
might reasonably be questioned.

(b) He shall also disqualify himself in the following circum-
stances:

(1) Where he has a personal bias or prejudice concern-
ing a party, or personal knowledge of disputed evidentiary facts
concerning the proceeding; . . .;

(5) He...

(I) Is a party to the proceeding, .... ;
(iv) Is to the judge's knowledge likely to be a
material witness in the proceeding.

Virginia Uniform Child Custody Jurisdiction and Enforce-
ment Act

VA Code § 20-146.4. International application. —
A. A court of this Commonwealth shall treat a foreign country

B--4

as if it were a state of the United States for purposes of applying
this article and Article 2 (§ 20-146.12 et seq.)

B. Except as otherwise provided in subsection C, a child custody
determination made in a foreign country under factual
circumstances in substantial conformity with the jurisdictional
standards of this act must be recognized and enforced under
Article 3 (§ 20-146.22 et seq.) of this chapter.

C. A Court of this Commonwealth need not apply this act if the
child custody law of a foreign country violates fundamental
principles of human rights.

VA Code § 20-146.23. Enforcement under Hague Convention
Under this article a court of this Commonwealth may enforce an
order for the return of the child made under the Hague Convent-
ion on the Civil Aspects of International Child Abduction.

VA Code § 20-146.25. Temporary visitation. —

A. A court of this Commonwealth that does not have
jurisdiction to modify a child custody determination may issue
a temporary order enforcing: 1. A visitation schedule made by
a court of another state . . . .;

VA Code § 20-146.29. Expedited enforcement of child custody;
determination. —C. Upon the filing of a petition, the court shall
issue an order directing the respondent to appear in person with
or without the child at a hearing and may enter any order
necessary to ensure the safety of the parties and the child. The
hearing must be held on the next judicial day after service of the
order unless that date is impossible. In that event, the court shall
hold the hearing on the first judicial day possible. The court may
extend the date of hearing at the request of the petitioner.

VA Code § 20-146.35. Appeals. — An appeal may be taken

B--S

from a final order in a proceeding under this article in accor-
dance with expedited appellate procedures in other civil cases.

The Hague Convention on the Civil Aspects of Interna-
tional Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, 19
I.L.M. 1501

Article 1

The object of the present Convention are-.... b) to
ensure that rights . . . of access under the law of one Contracting
State are effectively respected in the other Contracting States.

Article 2

Contracting State shall take all appropriate measures to
secure within their territories the implementation of the object
of the Convention. For this purpose they shall use the most

expeditious procedures available.

Article 5

For the purpose of this Convention-. .. . b)”right of
access” shall include the right to take a child for a limited period
of time to a place other then the child’s habitual residence.

Article 11
The judicial or administrative authorities of Contracting
States shall act expeditiously for the return of children. . . .

Article 19

A decision under the Convention concerning the return
of the child shall not be taken to be a determination on the
merits of any custody issue.

Chapter IV-Right of Access, Article 21
An application to make arrangement for organizing or,

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securing the effective exercise of the rights of access may be
presented to the Central Authority of the Contracting States in
the same way as an application for the return of a child.

The Central Authorities are bound by the obligations of
co-operation which are set forth in Article 7 to promote the
peaceful enjoyment of access rights and the fulfillment of any
conditions to which the exercise of those rights are subject. The
Central Authorities shall take steps to remove, as far as possible,
all obstacles to the exercise of such rights.

The Central Authorities, either directly or through
intermediaries, may initiate or assist in the institution of
proceedings with a view to organizing or protecting these rights
and securing respect for the conditions to which the exercise of
these rights may be subject.

Article 29
This Convention shall not preclude any person, . .. who claims

there has been a breach of . . . access within the meaning of . .
. Article 21 from applying directly to the judicial or administra-
tive authorities of a Contracting State, whether or not under the
provisions of this Convention.

The International Child Abduction Remedies Act

42 U.S.C. § 11601
(a) Findings. The Congress makes the following findings: . . . .
(4) The Convention on the Civil Aspects of International
Child Abduction, . . . establishes legal rights and procedures for
the prompt . . . securing the exercise of visitation rights. . . .
(b) Declarations
The Congress makes the following declarations:
(1) It is the purpose of this chapter to establish proce-
dures for the implementation of the Convention in the United
States.

B--7

(2) The provisions of this chapter are in addition to and
not in lieu of the provisions of the Convention. .. .

(4) The Convention and this chapter empower courts of
the United States to determine under the Convention and not
the merits of any underlying child custody claims.

42 U.S.C. § 11602. Definitions

For the purpose of this chapter-

(1) the term “applicant” means any person who, .. . , files an
application . . . for arrangements for organizing or securing the
effective exercise of rights of access pursuant to the Convention.
(4) the term “petitioner” means any person who, in accordance
with this chapter, files a petition in court seeking the relief under
the Convention;

(5) the term “person” includes any individual, institution. or
other legal entity or body;

(6) the term “respondent” means -any person against whose
interests a petition is filed in court, accordance with this chapter,
which seeks relief under the Convention;

(7) the term “rights of access” means visitation rights.

42 U.S.C. § 11603
(a) Jurisdiction of courts

The courts of the States and the United States district
courts shall have concurrent original jurisdiction or actions
arising under the Convention.
(b) Petitions

Any person seeking to initiate judicial proceedings
under the Convention . . . for arrangements for organizing or
securing the effective exercise of rights of access to a child may
do so by commencing a civil action by filing a petition for the
relief sought in any court which has jurisdiction of such action
and which is authorized to exercise its jurisdiction in the place
where the child is located at the time the petition is filed
(d) Determination of case

B--8

The court in which an action is brought under subsec-
tion (b) of this section shall decide the case in accordance with
the Convention .

(e) Burden of proof

(1) a petitioner in an action brought under subsection
(b) of this section shall establish by a preponderance of the
~ evidence-....

((B) in the case of an action for arrangements for
organizing or securing the effective exercise of
rights of access, that the petitioner has such nights.

42 U.S.C. § 11605. Admissibility of documents

With respect to any application to the United States
Central Authority, or any petition to a court under section
11603 of this title, which seeks relief under the Convention, or
any other documents or information included with such

application or petition or provided after such submission which
relates to the application or petition, as the case may be, no
authentication of such application, petition, document, or
information shall be required in order for the application,
petition, document, or information to be admissible in court.

Department of State, 51 Fed. Reg. 10,513 (1986), V. Access
Rights-Article 21.
C. Procedure for Obtaining Relief

Procedurally Article 21 authorizes a person
complaining of, or seeking to prevent a breach of access rights
to apply to the CA of a Contracting State in the same way as a
person seeking return of the child... .

Once the CA receives such application, it is to take all
appropriate measures pursuant to Article 7 to promote the
peaceful enjoyment of access rights and the fulfillment of any
conditions to which the exercise of those rights are subject. . . .

D. Alternative Remedies

In addition to or in lieu of invoking Article 21 to resolve
visitation-related problems, under Article 18, 29 and 34 an
aggrieved parent whose access rights have been violated may by
pass the CA and the Convention and apply directly to the
judicial authority of a Contracting State for relief under other
applicable laws.

INTERNATIONAL ABDUCTION CONCURRENT RESOLU-
TION 293 --PASSED BY HOUSE
WASHINGTON, D.C., May 23, 2000

House Concurrent Resolution 293, introduced by
Congressman Nick Lampson (D, Tx-9), Founder and Chairman
of the Congressional Missing and Exploited Children’s Caucus,

was passed 416-0 by the House on May 23", 2000. ‘The
concurrent resolution, which urges signatories of the Hague
Convention on the Civil Aspects of International Child Abduction
to uphold the agreement, was brought to the floor under
suspension.

Resolution 293

Whereas the Department of State reports that at any
given time there are 1,000 cases of American children either
abducted from the United States or wrongfully retained in a
foreign country;

Whereas many more cases of international child
abductions are not reported to the Department of State;

Whereas the situation has worsened since 1993, when
Congress estimated the number of American children abducted
from the United States and wrongfully retained in foreign

B--10
countries to be more than 10,000;

Whereas Congress has recognized the gravity of
international child abduction in enacting the International
Parental Kidnapping Crime Act of 1993 (18 U.S.C. § 1204), and
the Parental Kidnaping Prevention Act (28 U.S.C. § 1738a), and
substantial reform and reporting requirements for the Depart-
ment of State in the fiscal years 1998-1999 and 2000-2001
Foreign Relations Authorization Acts;

Whereas the United States became a contracting party
in 1988 to the Hague Convention on the Civil Aspects of
International Child Abduction (in this concurrent resolution
referred to as the ‘Hague Convention’) and adopted effective
implementing legislation in the International Child Abduction
Remedies Act (42 U.S.C. §§ 11601 et seq.);

Whereas the Hague Convention establishes mutual
rights and duties between and among its contracting states to
expedite the return of children to the state of their habitual
residence, as well as to ensure the rights of c-stody and of
access of the laws of one contracting state we effectively
respected in the other contracting states, without consideration
of the merits fo any underlying child custody dispute;

Whereas Article 13 of the Hague Convention provides
a narrow exception to the requirement for prompt return of
children, which exception releases the requested state from its
obligation to return a child to the country of the child’s habitual
residence if it is established that there is a ‘ grave risk’ that the
retum would expose the child to ‘physical or psychological
harm or otherwise place the child in an intolerable situation’ cr
‘if the child objects to being returned and has attainea ‘n age
and degree of maturity at which it is appropriate to take account
of [the child’s] views’;

B--11

Whereas the National Center for Missing and Exploited
Children (NCMEC), the only institution of its kind, was estab-
lished in the United States for the purpose of assisting parents
in recovering their missing children;

Whereas Article 21 of the Hague Convention provides
that the central authorities of all parties of the convention are
obligated to cooperate with each other in ors to promote the
peaceful enjoyment of parental access rights and fulfillment of
any conditions to which the exercise of such rights may be
subject, and to remove as far as possible, all obstacles to the
exercise of such rights;

Whereas some contracting states fail to order or enforce
normal visitation rights of parents of abducted or wrongfully
retained children who have not been returned under the terms
of the Hague Convention; an

Whereas the routine invocation of the Article 13
exception, denial of parental visitation of children, and the
failure by several contracting parties most notably Austria,
Germany, Honduras, Mexico, and Sweden, to fully implement
the Convention deprives the Hague Convention of the spirit of
mutual confidence upon which its success depends: Now,
therefore, be it Resolved by the House of Representative (the
Senate concurring), That Congress urges--

1) all contracting parties to the Hague Convention,
particularly European civil law countries that consistently
violate the Hague Convention such as Austria, Germany, and
Sweden, to comply fuily with
both the letter and spirit of their international legal obligations
under the Convention;

2) all contracting parties to the Hague

B--12

Convention to ensure their compliance with the Hague Conven-
tion by enacting effective implementing legislation and educat-
ing their judicial and law enforcement authorities;

3) all contracting parties to the Hague Convention to
honor their commitments and return abducted or wrongfully
retained children to their place of habitual residence without
reaching the merits of any underlying custody dispute and
ensure parental access rights by removing obstacles to the
exercise of such rights;

4) the Secretary of State to disseminate to all Federal
and State courts the Department of State’s annual report to
Congress on the Hague Convention compliance and related
matters; and

S) each contracting party to the Hague Convention to
further educate its central authority and law enforcement
authorities regarding the Hague Convention, the severity of the
problem of international abduction, and the need for immediate
action when a parent of an abducted child seeks their assistance.

U.S. Senate Judiciary Committee Confirmation Proceedings of
Nominee Justice John G. Roberts to position of Chief Justice
of the United States Supreme Court, August 1, 2005.

Question 20, Party to Civil Legal or Administrative Proceeding:
State whether you, or any business of which you are or
were an officer, have ever been a party or otherwise involved as
a party in any civil, legal or administrative proceeding, If so,
please describe in detail the nature of your participation in the
litigation and the final disposition of the case. Include all
proceedings in which you were a party in interest.

Response: | am a named party in Rodriguez, et al. v.

B--13

Nat'l Ctr. For Missing & Exploited Children, et al., 03-cv-00120
(D.D.C. filed Jan. 27,2002 appeal docketed, No. 055202 (D.C.
Cir. May 23, 2005). I was added as a named defendant-—along
with eight other judges on the D.C. Circuit, Chief Justice
Rehnquist, and several judges form other circuits—in plaintiffs
First Amended Complain, filed on March 8, 2005. On March
31, 2005, the District Court of the District of Columbia dismissed
the action with regard to the defendants in the original
complaint, and ordered the amended complaint stricken. A
notice of appeal was filed by Mr. Rodriguez on May 23, 2005.
According to published judicial opinions in the matter, Mr.
Rodriguez is a Virginia resident with ties to Colombia. He lived
in Colombia for mush of the period between 1987 and 1999 and
there fathered a child, Isidoro, in 1989. In 2001, Isidoro and his
mother visited Mr. Rodriguez in Virginia. Hear the end of the
visit, Mr. Rodriguez would not allow Isidoro to return to

Colombia and filed a petition to modify custody in Fairfax
County, Virginia court. Isidoro’s mother answered with a suit in
federal district court for the Eastern District of Virginia under the
Hague Convention on the Civil Aspects of International Child
Abduction; she won, and won again on appeal. Mr. Rodriguez
now alleges a conspiracy on the part of numerous federal and
private defendants to deprive him of his constitutional rights.

No.

IN THE
SUPREME COURT OF THE UNITED STATES

ISIDORO RODRIGUEZ, AND ISIDORO RODRIGUEZ-
HAZBUN,

Petitioners,
VS.

THE NATIONAL CENTER FOR MISSING AND
EXPLOITED CHILDREN, et a/.,

Respondents.

On Writ of Certiorari to the United States Court of
Appeals for the District of Columbia

SUPPLEMENTAL BRIEF

Isidoro Rodriguez, Esq.

Counsel for Petitioners

THE LAW OFFICES OF ISIDORO RODRIGUEZ
2304 Farrington Avenue

Alexandria, Virginia 22303-1520
(703)317-0526: F-mail: isidoror@carthliok.net

PETITION FOR CERTIORARI FILED FEBRUARY 20, 2006

TABLE OF CONTENTS

TABLE OF CITED AUTHORITIES
Cases:
Sarah Claudia Aragon Canter vs. Andrew Cohen, 4"" Cir.
No. 05-1609, March 21, 2006

Statute and Treaty:

Hague Convention on the Civil Aspects of International
Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, 19
I.L.M. 1501

International Child Abduction Remedies Act, 42 U.S.C.A.

NR rs

Joint Concurrent Congressional Resolution ......... 3

Untied States Supreme Court Rule 15.8

DISCUSSION

Petitioners Isidoro Rodriguez (“Rodriguez-
Father”), and Isidoro Rodriguez-Hazbun (Isidoro-Son),
pursuant to S. Ct. Rule 15.8, files this supplemental brief
in support of their pending petition for writ of certiorari.

Rodriguez-father and Isidoro-Son, brings to the
Court’s attention the decision issued this past Tuesday by
the United States Court of Appeals for the Fourth Circuit
in, Sarah Claudia Aragon Canter vs. Andrew Cohen, 4" Cir.
No. 05-1609, March 21, 2006, regarding the limiied
jurisdiction of the federal courts and the mandate of
securing visitation pursuant to the International Child
Abduction Remedies Act ("ICARA"), 42 U.S.C.A. §§
11601-11611 (West 2005), and the Hague Convention
on the Civil Aspects of International Child Abduction
("Treaty"), Oct. 25, 1980, T.I.A.S. No. 11,670, 19 I.L.M.
1501.

In Canter, a citizen of Israel filed an action in the
federal court in Maryland seeking the enforcement of
custody and visitation rights. The District Court
dismissed the visitation claim for lack of jurisdiction. | }1«
Fourth Circuit affirmed, holding that the federal courts
are of limited jurisdiction (A-12)[reference to the page of
the 4" Cir. decision in the Appendix], and neither had
jurisdiction under the Treaty or ICARA, to effect the
merits of parental rights [see also discussion by dissent .ut
(A-24)], nor did the federal courts have jurisdiction to
consider a petition by one parent to secure visitation
rights against another.

Directly on point to the issue before this Court,
the Fourth Circuit held that to securing of visitation rights
was the responsibility of the Central Authorities under the

Treaty. The Fourth Circuit stated,

We note that our decision does not leave the
Appellant without a remedy for the exercise of her
access rights. The Convention does not prevent
the Appellant from filing a claim for visitation
in state court under the state’s visitation law
[citation omitted. Additionally, as discussed
above, the Appellant may file a petition with ~
the [Department of State and the National
Center for Missing & Exploited Children
(“Executive Branch”)] pursuant to the
Convention in order to address her access
claims. (Emphasis added) (A-23)

As the record shows this was exactly what Isidoro-
Son and Rodriguez-Father have sought to do since
January 27, 2003:

first, by seeking the issuance of a writ of
mandamus to the Executive Branch to compel their
compliance with their ministerial duty under Article 2,
11, 19, 20, 21, and 29 of the Treaty, 42 U.S.C. §
11601(a) & § 11602(1) and (7) of ICARA; as well as the
Congress’s Joint Concurrent Resolution 293 of May 23,
2000; and,

second, pursuant to VA Code § 20-146.25, .29,
and .35 of the Uniform Child Custody Jurisdiction and
Enforcement Act (“UCCJEA”), as well as the Treaty and
ICARA, by filing petitions with the Virginia Courts to
secure visitations.

However, in response the Executive Branch, as
well as both the Federal and Virginia Courts, for the past

three years have denied that the mandates of Congress

2

and the General Assembly of Virgin'a to secure visitation
existed. For example;

o Respondent-Defendants Stephen John Cullen
and Miles & Stockbridge who argued in Canter that the
federal courts were to secure visitation, are the same
Defendants in this action who for three years have argued
to both the federal courts and the Virginia Court that the
right to secure visitation does not exist;

o Judge Richard Roberts held that the NCMEC
was only a non-profit, and not the independent contractor
“instrumentality of government,” responsible to secure
visitation. But See Cantor, {the Fourth Circuit noted this
relationship of the Executive Branch (A-9)].

o Judge Richard Roberts and the Virginia Courts
stripping that Rodriguez-Father of his rights based on
Judge T.S. Ellis III ordering Isidoro-Son returned to the
Republic of Colombia.

On this latter point, relevant to Rodriguez-Fathe1
and Isidoro-Son efforts for the past three years to secure
visitation subsequent to Judge Ellis III order, the Fourth
Circuit confirmed that it was the District Court duty to
“craft a remedy within the context of the Convention”
to ensure the exercising of visitation rights. (emphasis in
the order)(A-20).

Thus Isidoro-Son and Rodriguez-Father have been
repeatedly deprived for over three years of their rights to
visitation in violation of 18 U.S.C. §§ 4, 371, 1001, and
1204, these governmental entities, employees, agents.
attorneys, have obstructed with Rodriguez-Father’s
parental rights.

CONCLUSION AND RELIEF SOUGHT

Based on the analysis in Canter, it is clear that
since his being shanghaied to Colombia on June 11,
2002,for over three years Rodriguez-father and Isidoro-
son have been illegally denied their right to visitation
under a Joint Custody Settlement Agreement entered in
August 1997, in violation of the Treaty, ICARA, and VA
Code. Furthermore, based on the analysis in Canter the
Executive Branch and Judicial Branches of Federal
Government, and the Virginia Courts, have acted outside
of their jurisdiction, as well as judicial and ministerial
capacity.

in summary, because it is alleged that due to on
going malfeasance in office there have been violations of
18 U.S.C. § 4, § 371, and §1001, by the obstruction with
Rodriguez-father parental rights in violation of 18 U.S.C.
§ 1204, this Court must grant certiorari.

Dated: March 26, 2006

Respectfully submitted,

Isidoro Rodriguez, E&q.

Attorney of Record for Petitioner
Admission to the Bar of

The United States Supreme Court 1992

THE LAW OFFICES OF ISIDORO RODRIGUEZ
2304 Farrington Avenue

Alexandria, Virginia 22303-1520

Telephone: 703.960.0225

BEST AVAILABLE COPY

A-2

Patricia Emily Apy, PARAS, APY & REISS, Red Bank, New
Jersey, for Appellee. ON BRIEF: Darragh L. Inman, MILES
& STOCKBRIDGE, P.C., Baltimore, Maryland, for Appellant

OPINION
HARWELL, District Judge:

This appeal presents the question of whether the
International Child Abduction Remedies Act ("ICARA"), 42
U.S.C. §§ 11601-11610, confers jurisdiction upun tederal
courts to hear access claims.' Petitioner-Appellaiut, Sarah
Claudia Aragon Cantor, appeals the district court’s order of
April 18, 2005, dismissing her access claims. On May 23,
2005, the district court granted Ms. Cantor’s motion for
final judgment pursuant to Fed.R.Civ.P. 54(b) on the access
claims and for clarification of ruling on the alternative
access claim for one of her children referred to herein as
A.C. Specifically, when dismissing the acc« mr we
district court held that it did not have jurisdic! 0th
access claims under ICARA. For the following reasuis, we
affirm the decision of the district court.

Ms. Cantor and Mr. Cohen married in \
the time of the marriage, Ms. Cantor and M:
in Israel. During the marriage the couple had iv...
R.C., A.C. (the girls), 1.C., and Y.C. (the boy:

' Under ICARA, the term "rights of access" means visitation
rights. 42 U.S.C. § 11602(7).

A-3

three of whom are the subject of this appeal.* On July 16,
1998, the couple divorced in an Israeli Rabbinical Court
and a divorce decree was issued. The divorce decree
provided that Mr. Cohen would receive custody of A.C. and
1.C., the two oldest children, and Ms. Cantor would retain
custody of.Y.C. and R.C., the two younger children. The
divorce decree also granted visitation rights to Ms. Cantor.

Subsequent to the divorce decree, Ms. Cantor and
Mr. Cohen discussed the possibility of the girls being placed
with their mother and the boys with their father. Pursuant
to this discussion, on September 7, 1998, Ms. Cantor
relinquished custody of Y.C. to Mr. Cohen and took custody
of A.C. In June 1999, Ms. Cantor filed suit in the Israeli
Rabbinical Court, seeking changes to the first divorce
decree. In July 1999, Mr. Cohen was ordained as a Rabbi
and joined the United States Air Force Chaplaincy. Mr.
Cohen was scheduled to attend training school in the
United States. On January 2, 2000, a second divorce decree
was issued by the Rabbinical Court. The second divorce
decree formalized the living situation of the children that
Ms. Cantor and Mr. Cohen had earlier agreed upon by
granting Ms. Cantor custody of the girls, A.C. and R.C., and
granting Mr. Cohen custody of the boys, I.C. and Y.C. The
decree provided that Ms. Cantor would have temporary
custody of the two boys while Mr. Cohen attended training
school (from approximately January 2000 until September
2000).

On July 9, 2002, a third divorce decree was issued
by the Rabbinical Court. The third divorce decree provided

“A review of the background information in this matter
reveals no less than three orders issued by the Israeli
Rabbinical Court which involve the children.

A-4

that Ms. Cantor would retain custody over the two girls, and
that Mr. Cohen would retain custody over the two boys. The
third divorce decree also provided that the two boys and
A.C. would live with Mr. Cohen in Germany, where he was
stationed with the United States Air Force at the time. The
third divorce decree refers to A.C.’s stay in Germany as an
"extended visit." The third divorce decree also obligates Mr.
Cohen to finance half of the cost of Ms. Cantor’s visits to
Y.C., I.C., and A.C. in Germany, which were to occur every
two months. It also instructed Mr. Cohen to enable the
children to call Ms. Cantor three times a week, and to bring
the children to Israel to visit Ms. Cantor at least twice a
year. This divorce decree attributes the changed custody
situation to the security issues in Israel, the educational
needs of A.C., and the neurological and the psychological
needs of Y.C. However, the decree does not surrender
custody of A.C. to Mr. Cohen, nor does it provide a date for
A.C.’s permanent return to Israel.

In December 2002, Ms. Cantor and Mr. Cohen had
discussions about R.C.’s situation in Israel. Specifically, Ms.
Cantor told Mr. Cohen that R.C. missed her siblings and
that neither R.C. nor Ms. Cantor liked the school R.C. wa:
attending. As a result, Ms. Cantor and Mr. Cohen agreed
that R.C. would move to Germany to live with Mr. Cohen.
There is a disagreement among the parties as to when R.C.
was to return to Israel.

On March 2, 2004, Mr. Cohen was assigned a Drief
duty in Qatar and was told to report to the United Stites
upon completion of this duty. On April 17, 2004, Mr. Conen
completed his duty and reported to the United States. Mr.
Cohen initially resided with his four children in Pittsburgh,
Pennsylvania. On July 11, 2004, all four children moved
with Mr. Cohen to Silver Spring, Maryland. Ms. Cantor
continues to live in Israel.

A-5

On October 22, 2004, Ms. Cantor filed a verified
petition in the United States District Court for the District of
Maryland for return of the children and access to the
children. On November 12, 2004,

[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_IA40386016_0848%3A2. Public record. Not legal advice.