Leonhard v. Mitchell

Citation473 F.2d 709
Decision Date07 February 1973
Docket NumberNo. 263,Docket 72-1828.,263
PartiesThomas S. LEONHARD, Appellant, v. John MITCHELL, Attorney General of the United States, et al., Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Salvatore R. Martoche, Buffalo, N.Y. (Martoche & Collesano, Buffalo, N. Y., on the brief), for appellant.

David E. Flieri, Asst. U. S. Atty. (John T. Elfvin, U. S. Atty. for Western District of New York, on the brief), for appellees.

Before FRIENDLY, Chief Judge, KAUFMAN, Circuit Judge, and HOLDEN,* District Judge.

IRVING R. KAUFMAN, Circuit Judge.

This appeal from an order granting summary judgment against the plaintiff, Thomas Leonhard, in an action seeking a writ of mandamus, is set in a factual context so extraordinary as to require somewhat extended discussion.

In essence, Leonhard has asked a federal court to compel officials in the United States Department of Justice to tell him where he may find his children —Michael, age eleven; Karen, age ten; and Stephan, age eight—whose current location and identity are known only to a handful of people. These are Rochelle Calabrese (whom we refer to, for convenience, as Rochelle), Leonhard's former wife and the mother of his children; Pascal Calabrese, Rochelle's present husband; the children; and Thomas Kennelly, a former assistant in the Department of Justice who was then in charge of its Buffalo Strike Force for Organized Crime, and is now in private practice as an attorney in Washington, D. C. Although Leonhard has been granted custody of his children by virtue of an order of the New York State Supreme Court, he has been unable to secure enforcement of that right. Since the Calabreses are unwilling to reveal their present identity, Leonhard, in understandable frustration, has turned to the courts for assistance. The rather bizarre chain of events which has led to the current impasse we describe below.

I.

In December, 1965, Rochelle Leonhard instituted divorce proceedings against Thomas Leonhard in New York State Supreme Court. The court entered a decree of divorce on December 27, 1966, awarding custody of the Leonhards's three children to Rochelle with visitation rights to Thomas.

Early in 1967, Rochelle married Pascal Calabrese and she and the children thereafter resided with him in Buffalo. Shortly after their marriage, however, Pascal, having been convicted of robbery, began serving a five year term of imprisonment in a New York state prison. Pascal's background apparently included more than routine criminal involvements, for in June, 1967, Detective Salvatore Giambrone of the Buffalo Police Department told members of the Buffalo Strike Force that Pascal might have information concerning organized crime activities in the Buffalo area. Members of the Strike Force, after interviewing Pascal, concluded that his knowledge would be most useful in their efforts to prosecute underworld mobsters.

Pascal, however, feared that his life and the lives of his new wife and her children would be endangered if he testified. In fact, according to reliable information later received from unidentified sources by the Buffalo Strike Force, a "contract" had gone out for the murder of Calabrese and his family. Justifiably apprehensive, Pascal decided to condition his willingness to testify on a promise by Strike Force officials to protect him and his family, and ultimately to relocate them in a new community with new identities. The Strike Force officials agreed, and immediately arranged Pascal's transfer from a state to a federal prison and moved Rochelle and the three children to a military reservation.

After these interim precautions had been taken, federal officials obtained indictments against Frederico Randaccio and other members of the organized crime syndicate in Buffalo. Pascal testified as a government witness at that trial, which led to a conviction in November, 1967, for conspiracy to obstruct commerce by robbery and to transport stolen property in interstate commerce. The defendants were sentenced to prison for terms ranging between ten and twenty years.

In February, 1968, as a result of his cooperation with the Strike Force, Pascal was paroled by the New York State Parole Board. Thomas Kennelly, whom we have already identified as the Attorney in Charge of the Buffalo Strike Force, arranged for Pascal, Rochelle, and the children to be moved to a new and secret residence. Under Kennelly's direction, the government provided new identities and supporting credentials for the entire family and secured employment for Pascal. On their own initiative, the family later relocated a second time, leaving Kennelly, who left his government position in August, 1971, as the only individual with knowledge of the Calabrese family's present identity and location. Kennelly continues to act as an intermediary for the Calabreses, forwarding correspondence to and from them from time to time.

Sometime during mid-1969, Thomas Leonhard's attorney contacted Kennelly and informed him of his client's desire to see the three Leonhard children. Kennelly refused to reveal their whereabouts and offered only to forward letters from the appellant to his former wife. Some correspondence was exchanged by them in this manner, but Rochelle unequivocally stated that under no circumstances would she permit Leonhard to see the children, even at a neutral location, for fear they might reveal their present identities.

Unsuccessful in his correspondence with Rochelle, Leonhard commenced an action in the New York Supreme Court seeking to modify the December, 1966, divorce decree by granting him exclusive custody of the children. Since he had no knowledge of Rochelle's address, Leonhard's attorney served a copy of the pleadings on Kennelly. Kennelly promptly returned the pleadings to Martoche, specifically advising him that he did not act as Rochelle's attorney and that he could not accept service of legal process for her. The Calabreses soon learned of the pending action and promptly informed Kennelly that if he disclosed their present residence, they would move again, this time, however, without advising him of their new location. Not unexpectedly, an order was entered on June 18, 1971 in the Supreme Court, noting Rochelle's failure to appear to contest the custody action and awarding custody of the three children to Thomas Leonhard.

Approximately one month later, on July 29, 1971, appellant began the instant action in the United States District Court. His complaint, as amended on January 12, 1972, alleged the foregoing facts and requested mandamus relief to compel disclosure of the location and new identities of his children. Leonhard asserted that the secretive relocation of his children violated his constitutional rights as well as the New York Supreme Court's custody order. The defendants,1 claiming the action was barred by sovereign immunity, moved to dismiss the complaint for lack of subject matter jurisdiction, Rule 12(b) (1), F.R. Civ.P. In the alternative, they moved to dismiss for failure to state a claim upon which relief could be granted, Rule 12(b)(6), F.R.Civ.P., and for summary judgment, Rule 56, F.R.Civ.P. Judge Henderson, after concluding that the doctrine of sovereign immunity did not bar the action,2 held that only "when a clear-cut duty is imposed by law" does a district court have the power under 28 U.S.C. § 1361 to compel an officer or employee of the United States to perform that duty. Since he determined that on the facts presented to him, none of the defendants owed such a duty to Leonhard, the district judge granted the defendants' motion for summary judgment. This appeal followed.

II.

Our sole task on this appeal is to gauge the scope of authority granted to district courts under 28 U.S.C. § 1361. This section, enacted in 1962, provides that "The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff."3 Traditional teaching views a writ of mandamus as appropriate solely "to compel officials to comply with the law when no judgment or discretion is involved in that compliance." Note, Developments in the Law: Remedies Against the United States and its Officials, 70 Harv.L.Rev. 827, 849 (1957). Thus, a writ of mandamus properly is issued when a government official fails to comply with a specific statutory or regulatory direction. See, e. g., Feliciano v. Laird, 426 F.2d 424 (2d Cir. 1970) (Army failed to process application for hardship discharge in accordance with regulations). Additionally, decisions construing § 1361 have held that "official conduct may have gone so far beyond any rational exercise of discretion as to call for mandamus even when the action is within the letter of the authority granted." United States ex rel. Schonbrun v. Commanding Officer, Armed Forces, 403 F.2d 371, 374 (2d Cir. 1968), cert. denied, 394 U.S. 929, 89 S.Ct. 1195, 22 L.Ed.2d 460 (1969). See Casarino v. United States, 431 F.2d 775 (2d Cir. 1970); Safir v. Gibson, 417 F.2d 972 (2d Cir. 1969), cert. denied, 400 U.S. 850, 91 S.Ct. 57, 27 L.Ed.2d 88 (1970); Ashe v. McNamara, 355 F.2d 277 (1st Cir. 1965). Accordingly, a request for relief under § 1361 requires "the court to utilize all relevant legislative and other materials to determine the scope of discretion or power delegated to the officer." Byse & Fiocca, Section 1361 of the Mandamus and Venue Act of...

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