Ruffalo by Ruffalo v. Civiletti, s. 82-1779

• Decision Date: 08 June 1983
• Docket Number: Nos. 82-1779,82-1893,s. 82-1779
• Citation: 702 F.2d 710
• Parties: Michael RUFFALO, Jr., by his mother and next friend, Donna RUFFALO; and Donna Ruffalo, Appellants, v. Benjamin CIVILETTI; William E. Hall; Emmitt Fairfax; Michael Ruffalo, Sr.; the United States Department of Justice; the United States Marshals Service; and the United States of America, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 710

702 F.2d 710

Michael RUFFALO, Jr., by his mother and next friend, Donna

RUFFALO; and Donna Ruffalo, Appellants, v. Benjamin CIVILETTI; William E. Hall; Emmitt Fairfax;

Michael Ruffalo, Sr.; the United States Department of

Justice; the United States Marshals Service; and the

United States of America, Appellees.

Nos. 82-1779, 82-1893.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 12, 1983.

Decided March 17, 1983.

Rehearing and Rehearing En Banc Denied June 8, 1983.

Robert G. Ulrich, U.S. Atty., Mark J. Zimmermann, Asst. U.S. Atty., Kansas City, Mo., for appellees.

George E. Kapke, Cochran, Kramer, Kapke & Willerth, Independence, Mo., for Michael Ruffalo, Sr. George Kannar, Jack Novik, Marcia Robinson Lowry, American Civil Liberties Union, New York City, Sanford P. Krigel, Krigel & Krigel, Kansas City, Mo., for appellants.

Before BRIGHT, ARNOLD and JOHN R. GIBSON, Circuit Judges.

ARNOLD, Circuit Judge.

Donna Ruffalo appeals from the denial of her motion for partial summary judgment, by which she sought the return of her child, who has been relocated by the federal government under the federal Witness Protection Program. The District Court ¹ held that Donna's relationship with her child is constitutionally protected but denied her motion for summary judgment largely because it felt that genuine issues of fact remained to be tried with respect to the government's responsibility for the continued separation of mother and child. We agree with the District Court that the parent-child relationship, in the circumstances of this case, is part of the "liberty" protected by the Due Process Clause of the Fifth Amendment. We disagree with the grounds stated for the denial of the motion for summary judgment, but we nevertheless conclude, for other reasons shortly to be explained, that it was not error to refuse immediate injunctive relief commanding the return of the child. The orders denying summary judgment will therefore be affirmed. We hold, however, that Donna has made out a strong prima facie entitlement to some form of equitable relief, and we remand for further proceedings to determine what relief, if any, to grant.

I.

Michael Ruffalo, Jr. (Mike), was born on September 7, 1969, to Donna and Michael Ruffalo, Sr. Donna obtained a divorce by default in the Circuit Court of Jackson County, Missouri, from Michael on March 20, 1972, and she was awarded custody of Mike. ² Three years later, Donna and Michael entered into an "Informal Letter Agreement Re Possession of Child," which provided that Donna would have "custody" of Mike, while Michael would have "possession." ³ The terms of this agreement were incorporated into a second custody order, which was entered on March 19, 1975. Thereafter, Mike lived with his father, and although the parties disagree about how much time Mike spent with his mother, she saw him at least occasionally, and she exercised some degree of parental control by enrolling him in school.

During this time, Michael was a secret informer for the FBI, which was investigating organized crime in Kansas City, Missouri. In late October and early November 1978 federal officials received information that Michael's life was in danger. Michael asked the FBI for protection, and on November 16, 1978, both Michael and the nine-year-old Mike were taken into the federal Witness Protection Program. ⁴ Donna has not seen or talked with her son, who is now thirteen years old, since. She learned of her son's relocation only after the fact.

At government expense, new identities were created for father and son. Federal officials moved them to a secret location and gave them new names, new social security numbers, and a temporary residence. In addition, they provided Mike with new school records so that he could be admitted to school without having to produce records from his former school which would reveal his true identity. At no time did the government provide Donna with notice or an opportunity to be heard in opposition to the separation.

At the time that Michael and Mike went into the Witness Protection Program, the federal authorities knew that Mike was living with his father and thought that Michael had legal custody. Shortly thereafter, however, the officials learned that custody had been awarded to Donna. Donna contacted federal officials in Kansas City, seeking information about her child, and requested that Mike be returned to her. The authorities told her that her son and ex-husband were under the Witness Protection Program and that their new identities and location would not be revealed to her because disclosure would endanger Michael. The officials offered to relay messages to Michael, and on at least two occasions the federal Marshals Service, which runs the Witness Protection Program, told Michael that Donna wanted to speak on the phone with her son, but Michael refused to allow this.

Donna tried to get relief from the state court which had awarded her custody of Mike. On January 15, 1979, the Marshals Service served Michael with an Order to Show Cause and Application for Contempt Citation from the Missouri state court. Michael refused to appear. After two more orders to show cause were served, the state court, on February 14, 1979, found Michael in civil contempt of the March 19, 1975, custody order. On March 20, 1979, the state court issued a warrant of commitment, ordering that Michael be committed to the Jackson County, Missouri, jail for ninety days or until he obeyed the court's custody order. Donna then moved to modify the custody decree, and on July 24, 1979, after Michael had received notice through the Marshals Service and failed to appear, the state court modified its March 19, 1975, order, awarded "the full care, control and custody of her son" to Donna, and cancelled all Michael's visitation rights or privileges. D.R. 27. Neither the contempt citation, the warrant, nor the 1979 custody order has ever been enforced, since Michael has refused to comply, and the government has refused to divulge his whereabouts or otherwise to help enforce the state-court orders. The government employed private counsel at government expense to represent Michael in the custody dispute.

On July 23, 1980, Donna, on behalf of herself and her son, commenced this action for injunctive relief and damages by filing a complaint in the United States District Court for the Western District of Missouri against Michael and the federal officials responsible for concealing him through the Witness Protection Program. She alleged that the defendants had

violated the Due Process Clause of the Fifth Amendment to the United States Constitution by unreasonably intruding upon Donna Ruffalo's right to family integrity and to a relationship with her son, by failing to provide Donna Ruffalo with a hearing before infringing upon her constitutionally protected liberty interests, and by interfering with and destroying Donna Ruffalo's right to enforce the order of the Circuit Court of Jackson County, Missouri. ⁵

D.R. 15. Jurisdiction of this claim was alleged to be based on the existence of a federal question. ⁶

The District Court severed the injunctive aspect of the suit from the damages aspect. Donna then moved for partial summary judgment, seeking an injunction for the return of Mike. Before hearing the motion, the District Court ordered a stay of proceedings so that Michael could seek a custody hearing in state court. Ruffalo v. Civiletti, 522 F.Supp. 778 (W.D.Mo.1981). This action was taken at Michael's own request. However, Michael then refused to appear personally in the state court and sought merely to have service of that court's previous orders quashed. When the state court ruled against Michael, the District Court once again took up Donna's motion for partial summary judgment, as well as the federal defendants' motion to dismiss or for summary judgment. Ruffalo v. Civiletti, 539 F.Supp. 949 (W.D.Mo.1982).

Although the District Court held that the complaint stated a claim for violation of Donna's constitutional rights, ⁷ it declined to grant her relief, reasoning that the domestic-relations exception to federal jurisdiction barred an injunction against Michael, and that summary judgment against the federal defendants was inappropriate because there was a question of fact as to whether Mike was in federal custody. The federal defendants' cross-motion to dismiss was denied. ⁸ Donna then filed a Motion for Partial Reconsideration of the April 30 order, this time seeking certain alternative forms of equitable relief against the federal defendants only. The District Court denied this motion on July 1, 1982, in an unreported order. Donna appeals from the denial of both her motions. We have jurisdiction because the orders appealed from are orders denying injunctions. 28 U.S.C. Sec. 1292(a)(1).

II.

The District Court held, and we agree, that Donna's relationship with her son is part of the "liberty" protected by the Due Process Clause of the Fifth Amendment. The defendants rely on Leonhard v. Mitchell, 473 F.2d 709 (2d Cir.), cert. denied, 412 U.S. 949, 93 S.Ct. 3011, 37 L.Ed.2d 1002 (1973). In Leonhard the state court had awarded custody of the children of a divorced couple to the mother and visitation rights to the father. The mother remarried, and when her new husband decided to testify for the government in a case concerning organized crime, the entire family was relocated and given new identities by federal officials. After obtaining a second state decree awarding custody to him, the father sued in federal court seeking a writ of mandamus to compel the government to divulge the whereabouts and new identities of his children. The Second Circuit held that summary judgment against the father was appropriate. The court said that there was no "clear constitutional right to custody or visitation rights," id. at 713, and that mandamus was inappropriate because the government official's ⁹ refusal...