Salmeron v. U.S.

Decision Date28 December 1983
Docket NumberNo. 83-1596,83-1596
PartiesRobert J. SALMERON, individually and as Guardian Ad Litem for Robert J. Salmeron and Melissa Ann Salmeron, Plaintiffs-Appellants, v. UNITED STATES of America; G. William Hunter, individually and as United States Attorney for the Nothern District of California, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Herbert F. Kaiser, San Francisco, Cal., for plaintiffs-appellants.

John F. Barg, Chief Asst. U.S. Atty., San Francisco, Cal., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before WALLACE, SCHROEDER, and FERGUSON, Circuit Judges.

WALLACE, Circuit Judge:

Salmeron filed this action based upon tort and violation of his civil and constitutional rights, claiming that government agents wrongfully deprived him of his children. The district court granted summary judgment, holding that Salmeron's claims were barred by a release he signed in settling an earlier action. Salmeron appealed, and we reverse and remand because we find genuine issues of material fact as to whether the release was voluntarily signed, supported by consideration, and binding on the children.

I

In reviewing a summary judgment, we must view the evidence and draw inferences in the manner most favorable to the nonmoving party. Retail Clerks Union Local 648, AFL-CIO v. Hub Pharmacy, Inc., 707 F.2d 1030, 1033 (9th Cir.1983). We therefore accept as true the following version of the facts.

In October 1978 Salmeron petitioned the Superior Court of Contra Costa County, California for dissolution of his marriage to his wife, Susan, and for legal custody of their two minor children. Salmeron had been separated from his wife since August 1978 and had physical custody of the children during this entire period. In June 1979, Salmeron's attorney located Susan while she was incarcerated at the Contra Costa County jail and served her with the dissolution Summons and Petition. In a telephone conversation with Salmeron's attorney, Susan was informed that a final hearing for dissolution of the marriage had been set for August 29, 1979.

On August 24, without notice to Salmeron or any court order, United States Marshals physically took Salmeron's children from his mother's residence, where he had been living with them. On the same date, the United States Attorney arranged for the release from jail of Susan and her boyfriend, Jennings. Later that day, Susan called Salmeron and told him that she had the children. On August 29, the state court granted Salmeron's dissolution request and awarded him custody of the children. The court ordered the District Attorney of Contra Costa County to locate and return the children to Salmeron. Three weeks later, Jennings, Susan, and the two children were accepted into the federal Witness Protection Program 1 and relocated outside California in exchange for Jennings's testimony against members of the Hell's Angel Motorcycle Club, a group with which Jennings was apparently associated.

After his children were taken, Salmeron, with his attorney's assistance, vigorously attempted to locate and recover them. He reported the children's abduction to the local police on the day they were taken. Salmeron also asked the Contra Costa District Attorney to institute civil and criminal proceedings against Susan to secure the return of the children. Through the district attorney's assistance, Salmeron's attorney was referred to a United States Treasury Department agent who supposedly "knew something" about the children. The agent disclaimed any specific knowledge about the children, but further referred the lawyer to a Special Assistant United States Attorney. On October 5, 1979, Salmeron's attorney informed that government attorney of the court order awarding Salmeron legal custody of the children. The government attorney did not admit any knowledge of the children, but agreed to respond with information shortly. She failed to do so.

More than six months later, the same Special Assistant United States Attorney finally revealed to Salmeron's attorney that the children had been relocated under the Witness Protection Program. The government attorney agreed to produce Susan and the children in California for a custody hearing. When Salmeron's attorney tried to arrange the hearing, however, he received a letter saying that the government could not bring Susan to California for the hearing because of the risks and expense involved. Salmeron's subsequent attempts to arrange for a hearing were similarly frustrated.

In January of 1981, the American Civil Liberties Union (ACLU), acting on Salmeron's behalf, filed a habeas corpus action in the United States District Court for the Northern District of California seeking the return of the children. In an ex parte communication with the district court judge, an Assistant United States Attorney disclosed that the children were not located in California. Acting apparently on this information and without any notice to Salmeron's attorney, the district court transferred Salmeron's habeas corpus action to the District Court for the District of Columbia "as the head of the U.S. Marshals Service is located in that jurisdiction." Once the action was transferred, however, the United States Attorney for the District of Columbia moved to dismiss the case for lack of jurisdiction because the Director of the United States Marshals Service was actually located in McLean, Virginia.

While this motion to dismiss was pending, an Assistant United States Attorney for the District of Columbia contacted Salmeron's attorney. The government attorney informed Salmeron's attorney that the children would be returned to Salmeron if he would agree to release the government from any liability for their relocation. Advised by his attorney that he might not otherwise regain custody of the children without extensive litigation and long delay, Salmeron signed the release. The release was also signed by the United States Attorney and two of his assistants. The release was included in an "Order" signed by a district court judge for the District of Columbia. On June 3, 1981, approximately twenty-one months after they were taken from him, the children were returned to Salmeron.

Salmeron subsequently filed the present action against the federal government and various government officials (the government) seeking damages for himself and, as guardian ad litem, for the children based upon claims under the Federal Tort Claims Act, 28 U.S.C. Secs. 2671, et seq., and for violation of their civil and constitutional rights. The government moved for summary judgment on the ground that the action was barred by the prior release. The district court agreed and granted the motion.

II

At the outset, the government contends that the district court should not have accepted jurisdiction to entertain a request for relief from the order of another district court. The result of this argument is that the district court did not have jurisdiction to enter the summary judgment. Because the release executed by the parties was included in an order of the United States District Court for the District of Columbia, the government asserts that relief from that order under rule 60(b) of the Federal Rules of Civil Procedure must be sought from the court that issued the order.

We need not reach the issue presented by the government. From careful reading of the document in question, 2 we conclude that relief from the order is not necessary in this action. The preamble to the order recites five agreed "facts." Number four is the alleged release and number five is an agreement to dismiss the habeas corpus action with prejudice upon return of the children. The court order which follows only commands the United States Marshals Service "to assist ... in returning" the children. No one attacks that order. In no part of the ordering language does the district court approve or even comment upon the release. Therefore, there is no need for relief under rule 60(b). The district judge did not err in accepting jurisdiction to hear the motion for summary judgment.

III

We turn now to the release executed by Salmeron. The validity and interpretation of a release of significant federal rights is governed by federal law. Jones v. Taber, 648 F.2d 1201, 1203 (9th Cir.1981). A release of claims for violations of civil and constitutional rights must be voluntary, deliberate and informed. Id. Viewing the record in the light most favorable to Salmeron, we conclude that whether Salmeron voluntarily signed the release is a triable issue of fact.

According to the affidavit of Salmeron's attorney, he received a telephone call from a United States Attorney for the District of Columbia in May 1981 offering to return the children. He testified:

The United States Attorney then inquired whether I would be willing to sign the stipulation that Mr. Salmeron, the father, would not sue if the children were returned to his custody. I responded that I would do anything to get the children back immediately. Before saying that I added: "Do you mean that you will not release the children otherwise" or words to that effect. He repeated again, "Well, do you want the children back?"

Reviewing the record in a light most favorable to Salmeron, an inference may properly be drawn from this conversation that Salmeron's children were being concealed from him as virtual hostages against his signing the release. At the time of this conversation, approximately twenty months had elapsed since the United States Marshals had taken Salmeron's children. For more than a year and a half of that time, the government was aware that Salmeron had a valid state court order awarding him legal custody of the children.

The district judge relied primarily on Salmeron's representation by counsel in reaching his conclusion that Salmeron...

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