Leonhard v. U.S., 658

Citation633 F.2d 599
Decision Date28 August 1980
Docket NumberD,No. 658,658
PartiesThomas S. LEONHARD, Individually, and Thomas S. Leonhard, as Natural Parent and Legal Guardian of: Michael Leonhard, an Infant, Stephan Leonhard, an Infant, and Karen Leonhard, an Infant, Plaintiffs-Appellants, v. The UNITED STATES of America; United States Department of Justice; Hon. Griffin Bell, and His Predecessors in Office, to and Including Hon. John Mitchell, Individually and in Their Official Capacity; Thomas A. Kennelly, Individually and in His Official Capacity; Gerald Shur, Individually and in His Official Capacity; Benjamin R. Civiletti, Individually and in His Official Capacity; The United States Marshal's Service; Wayne B. Colburn, Individually and in His Official Capacity; Five Unknown Agents of the United States Department of Justice, Individually and in Their Official Capacity; John Cameron, Individually and in His Official Capacity; The New York State Department of Correctional Services; Benjamin Ward, and His Predecessors in Office from 1967, Individually and in Their Official Capacity; The New York State Board of Parole; Eugene Hammock, and His Predecessors in Office from 1967, Individually and in Their Official Capacity; The City of Buffalo; Samuel Giambrone, Individually and in His Official Capacity, Defendants-Appellees, and Pascal Calabrese, Individually and in His Official Capacity, Defendant. ocket 79-6218.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Alan R. Feuerstein, Buffalo, N.Y. (Martoche and Feuerstein, Buffalo, N.Y., on brief), for plaintiffs-appellants.

Anthony J. Steinmeyer, Atty., Dept. of Justice, Washington, D.C. (Richard J. Arcara, U.S. Atty., W.D. New York, Alice Daniel, Asst. Atty. Gen., Washington, D.C., on brief), for the United States and other federal defendants-appellees.

Gerald Ryan, Asst. Atty. Gen., New York City (Robert Abrams, Atty. Gen. of the State of New York, Cobby J. Shereff and Deborah L. Wolikow, New York City, Law Apprentices, on brief), for the New York State Dept. of Correctional Services and other state defendants-appellees.

Anthony C. Vaccaro, Asst. Corp. Counsel, Buffalo, N.Y. (Joseph P. McNamara, Corp. Counsel, Buffalo, N.Y., on brief), for defendants-appellees City of Buffalo and Samuel Giambrone.

Before FRIENDLY, MANSFIELD and KEARSE, Circuit Judges.

KEARSE, Circuit Judge:

Thomas Leonhard ("Leonhard"), suing in his own behalf and as legal guardian of his three children Michael, Stephan, and Karen Leonhard, appeal from the summary dismissal of their action, commenced in 1978 in the United States District Court for the Western District of New York, seeking money damages for the violation of his and his children's constitutional rights and for torts committed against the children resulting from the separation and concealment of the children from Leonhard in 1967. Named as defendants were the United States and various federal agencies and officials (the "federal defendants"), certain New York State agencies and officials (the "state defendants"), the City of Buffalo and Samuel Giambrone, a former Buffalo police officer (the "city defendants"), and one Pascal Calabrese. The three groups of defendants moved to dismiss on various grounds including collateral estoppel, statute of limitations, governmental immunity, and failure to state a claim upon which relief can be granted.

After hearing argument, the district court, Harold P. Burke, Judge, entered orders dismissing the complaint against all of the defendants, except Calabrese who had not been served with process. Plaintiffs appeal from those orders. The federal defendants argue that the appeal should be dismissed for lack of jurisdiction because the claims against Calabrese were never dismissed and because no judgment was actually entered in favor of Giambrone.

For the reasons set forth below, we hold that we have jurisdiction and that all claims were properly dismissed.


In 1966, Leonhard and his wife Rochelle were divorced. The decree, entered by the State Supreme Court for Erie County, New York, awarded custody of their three children to Rochelle; Leonhard was given visitation rights. 1 Early in 1967, Rochelle married defendant Calabrese and she and the children lived with him in Buffalo. Shortly thereafter, however, Calabrese began serving a five-year term of imprisonment in a New York state prison. In early 1967, members of the Buffalo Strike Force for In the fall of 1967 Calabrese testified as a government witness in a successful prosecution of organized crime members. As a result of this cooperation, the New York State Parole Board granted him parole in February 1968. Defendant Kennelly, a Justice Department attorney working with the Buffalo Strike Force, arranged for Calabrese, 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 Calabrese. The family later relocated again on its own initiative; at that point only Kennelly knew their identities and location.

Organized Crime, a part of the United States Department of Justice, learned from defendant Giambrone, a detective in the Buffalo Police Department, that Calabrese might have useful information on organized crime. It developed that Calabrese was willing to testify against certain members of organized crime, but only if the Strike Force agreed to protect him, Rochelle and the children, and to relocate them with new identities. The Strike Force officials agreed to this and later in 1967 arranged Calabrese's transfer to a federal prison and moved Rochelle and the children to a military reservation. Leonhard was not consulted.

The effect of all of this was that Leonhard was left without any knowledge of his children's whereabouts. He first tried to locate his children in August 1967. In mid-1969 Leonhard's attorney contacted Kennelly to attempt to locate the children. Kennelly refused to reveal the whereabouts of Rochelle and the children, but agreed to forward correspondence between Rochelle and Leonhard. Rochelle refused to permit Leonhard to see the children even at a neutral location, for fear they would reveal their new identities. Leonhard finally commenced an action in New York Supreme Court to modify the divorce decree and award him custody. He attempted to serve process on Rochelle via Kennelly, but Kennelly, who was not Rochelle's attorney, refused to accept service or to forward the papers. When Rochelle learned of the suit, from sources undisclosed, she warned Kennelly that if he in any way revealed her whereabouts she and the children would disappear without informing even Kennelly of their new identities and location. In June 1971, by default, the New York court granted Leonhard custody of the three children.

A. The Prior Action ("Leonhard I")

In July 1971, Leonhard commenced an action in the United States District Court for the Western District of New York against Kennelly, John Mitchell (then Attorney General), and other officials of the Department of Justice. Alleging that the defendants had secreted his three children and given them new identities, and that he now had custody, Leonhard sought relief in the nature of mandamus, pursuant to 28 U.S.C. § 1361 (1970), to compel the defendants to disclose the whereabouts and new identities of the children. No damages were sought, and Leonhard sued only on his own behalf; his children were not parties to the action.

The district court denied mandamus and the judgment was affirmed in Leonhard v. Mitchell ("Leonhard I"), 473 F.2d 709 (2d Cir.), cert. denied, 412 U.S. 949, 93 S.Ct. 3011, 37 L.Ed.2d 1002 (1973). This Court held that Leonhard had no "clear constitutional right to custody or visitation rights," 473 F.2d at 713, and that Kennelly's refusal to disclose the whereabouts of the children was a rational exercise of his discretion, making mandamus inappropriate:

Kennelly arranged to secrete Rochelle and the children at the specific request of Pascal Calabrese. At that time-February, 1968-Rochelle had legal custody of the children and believed that their safety from threatened violence required that they no longer be visited by their natural father. Information received by Strike Force officials concerning a "murder contract" placed on the heads of the Calabreses confirmed their initial fears. Kennelly's present refusal to disclose the location Id. at 713-14 (footnote omitted). The Court concluded as follows:

of Calabrese family is grounded in his sense of obligation to them, both because of his agreement never to disclose their location and of his continued belief that the lives of the children and Rochelle and Pascal would be endangered if this information should become known. In view of the circumstances, we could hardly dismiss this latter fear as groundless or irrational.

In sum, the extraordinary factual posture of this case indicates that Kennelly, rather than having abused a discretionary power which he held, acted in good faith in attempting to balance two competing interests: Thomas Leonhard's natural wish to be reunited with his children, and Rochelle Calabrese's equally natural desire to protect the children from serious harm or even death.

Id. at 714 (footnote omitted).

B. The Present Complaint

On July 4, 1975, according to plaintiffs' counsel, Rochelle "decided that she had done a grave injustice to her children and to Thomas Leonhard and decided to put the children in contact with their father." 2 On July 11, 1975, Leonhard was reunited with his children. On June 30, 1978, Leonhard filed the present action, asserting twelve separately stated claims, three on his own behalf and nine on behalf of one or all of the children; on these claims each named plaintiff seeks damages ranging from $10,000 to $500,000. 3

The complaint alleges that by separating and concealing the children...

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