decided: August 28, 1980.
THOMAS 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,
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
Appeal from orders of the United States District Court for the Western District of New York, Harold P. Burke, Judge, dismissing complaint for damages resulting from separation and concealment of the three infant plaintiffs from their father. Affirmed.
Before Friendly, Mansfield and Kearse, Circuit Judges.
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.
I. THE FACTUAL BACKGROUND
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.*fn1 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 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.
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.
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 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.
Id. at 713-14 (footnote omitted). The Court concluded as follows:
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."*fn2 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.*fn3
The complaint alleges that by separating and concealing the children from Leonhard from 1967 to 1975 and refusing Leonhard's repeated requests to be informed of their whereabouts, Kennelly and other agents of the Organized Crime Strike Force deprived the plaintiffs of their constitutional rights; Kennelly and the agents are said to have had "actual or constructive knowledge" that their acts violated plaintiffs' constitutional rights.*fn4 The complaint alleges that defendant Giambrone participated in the removal and concealment, that he "knew or should have known" that his conduct was in violation of the plaintiffs' constitutional rights, and that he acted "intentionally and under and by the full authority" of the City of Buffalo. These claims are asserted under 42 U.S.C. § 1983 (1976) and the First, Fourth, Fifth, Ninth and Fourteenth Amendments to the Constitution.
In addition to these constitutional claims, asserted on behalf of both Leonhard and the children, the complaint asserts several non-constitutional claims on behalf of the children alone. It alleges that Calabrese committed torts against the children, and alleges that the United States, by arranging Calabrese's release and furnishing support and new identities for him, Rochelle and the children, undertook a duty, which it breached, to protect the children from mental and physical harm.*fn5
In addition to the above defendants, several New York state agencies and officials were made defendants: the New York State Department of Correctional Services and Benjamin Ward, a former Commissioner of that Department, together with all of his predecessors in office; and the New York State Board of Parole and Eugene Hammock as an agent of that Board, together with all of his predecessors in office. None of the complaint's twelve separately stated claims is asserted against the state defendants. These defendants are simply listed in the section of the complaint denominated "Parties," and are alleged to have acted in concert with the federal defendants in releasing Calabrese from a correctional facility in the State of New York in contravention of state law.
C. The Decisions Below and the Appeals to This Court
All defendants, except Calabrese (who was never served and made no appearance) and Giambrone, moved to dismiss the complaint on the grounds, inter alia, that it failed to state a claim and that all claims asserted were barred by the applicable statutes of limitations. In addition, the federal defendants asserted that the decision in Leonhard I barred the plaintiffs from litigating the issues raised in the present complaint under principles of res judicata and collateral estoppel; the state defendants asserted that the state agencies and officials were immune from suit under the Eleventh Amendment; and the City of Buffalo asserted that it was immune from suit under the doctrines of Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961), and Monell v. Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). In opposition to the motions to dismiss, following a modicum of discovery of the state defendants, plaintiffs filed a detailed memorandum, several exhibits and two affidavits. The exhibits included copies of administrative claim forms that had been filed by Leonhard and each of the children with the government on June 27, 1977, claiming physical, mental and emotional injury as a result of the removal and concealment of the children. One of the affidavits submitted by plaintiffs was a copy of the affidavit that Kennelly had submitted in Leonhard I ;*fn6 the other was an affidavit apparently executed by Rochelle for the purposes of the present action.*fn7
Eventually, the claims against all defendants except Calabrese were dismissed. The procession of dismissals and appeals, however, was somewhat unorthodox. On September 21, 1979, Judge Burke ordered the complaint against the federal defendants dismissed on grounds of res judicata, collateral estoppel, statute of limitations, and failure to file timely administrative claims, and ordered the complaint against the City of Buffalo dismissed on the authority of Monroe v. Pape, supra. Despite the absence of a certification pursuant to Fed.R.Civ.P. 54(b), judgment for the federal defendants and the City of Buffalo was entered on September 24.*fn8 Neither the September 21 order nor the September 24 judgment dealt with the state defendants, Giambrone or Calabrese. On October 17, plaintiffs filed notice of appeal from the September 21 order, and the appeal was docketed in this Court on October 22. On October 25, notwithstanding plaintiffs' October 17 attempt to appeal to this Court, Judge Burke entered a second order, this time dismissing the state defendants on grounds of failure to state a claim under § 1983, immunity under the Eleventh Amendment, and expiration of the statute of limitations. On October 30, plaintiffs filed an amended notice of appeal, seeking review of both of Judge Burke's orders (dated September 21 and October 25). Judgment in favor of the state defendants was entered in the district court on October 30, after plaintiffs' notice of appeal had been filed. Plaintiffs' amended appeal was added to this Court's docket on November 5, at which time there still had been no adjudication of the claims against Giambrone and Calabrese. On November 19, however, Judge Burke sent a letter to the Clerk of the district court, authorizing him to correct a "typographical error" in the September 21 order, by adding Giambrone to the defendants dismissed. The Clerk received this letter on November 20, but since the district court record had already been sent to this Court, no change was actually made on the order itself. No judgment was entered in favor of Giambrone nor did plaintiffs file any additional notice of appeal. Judge Burke's letter of November 19 was eventually entered on the district court docket on February 4, 1980, subsequent to argument of the appeal in this Court; on February 5, the letter was transmitted to this Court as a supplement to the original record. Finally, on February 15, 1980, Judge Burke ordered that his previous decisions of dismissal "be certified and considered as a final appealable Order."
II. APPELLATE JURISDICTION
The federal defendants point out that neither of the judgments appealed from adjudicated the claims against Calabrese and Giambrone. They argue that since the judgments adjudicated the rights of fewer than all the parties and contained no certification pursuant to Fed.R.Civ.P. 54(b), they are not final, and therefore not appealable under 28 U.S.C. § 1291 (1976). For the reasons below we disagree.
We begin with the effect of the non-dismissal as to Calabrese, who was not served with process and did not appear. It is clear, under Rule 54(b), that when there are two or more defendants who have been served and the district court dismisses the action as to fewer than all of them, a final judgment may not be entered reflecting that dismissal unless the court so instructs and makes an "express determination" that there is no just reason to delay entry of the judgment. E. g., New York v. Nuclear Regulatory Comm'n, 550 F.2d 745, 761 (2d Cir. 1977); Independent Investor Protective League v. Touche Ross & Co., 542 F.2d 156, 157 (2d Cir. 1976); Robert Stigwood Group Ltd. v. Hurwitz, 462 F.2d 910, 913 (2d Cir. 1972). In such a situation the early dismissal remains subject to revision until the liabilities of all defendants have been adjudicated; thus an immediate appeal should not be available. When, however, the action is dismissed as to all defendants who have been served and only unserved defendants "remain," the circumstances are materially different. Now there is no reason for Rule 54(b) to preclude the immediate and automatic entry of a final judgment since there is no basis for believing there will be any further adjudications in the action, or, therefore, for holding the dismissals subject to revision.*fn9 Thus, at least two circuits have held that a defendant who has not been served is not a party for purposes of Rule 54(b). See United States v. Studivant, 529 F.2d 673, 674 n. 2 (3d Cir. 1976); Siegmund v. General Commodities Corp., 175 F.2d 952, 953 (9th Cir. 1949).
This reading of Rule 54(b) is consistent with the practice which prevailed prior to the adoption of the Rule in its present form (prior to 1963 the Rule dealt with multiple claims but was silent as to multiple parties) and indeed prior to the adoption of the original Federal Rules in 1938. In Ferguson v. Bartels Brewing Co., 284 F.2d 855, 857 (2d Cir. 1960), this Court dismissed an appeal because the order appealed from had not dealt with one of the defendants who had been served, but recognized the distinction in question here:
(O)ne of the individuals named as codefendant . . . has apparently not been served. Thus he is not a party to the case, and his designation as a codefendant would not bar entry of a final judgment against the other defendants who have been actually made parties.*fn10
Compare Hohorst v. Hamburg-American Packet Co., 148 U.S. 262, 13 S. Ct. 590, 37 L. Ed. 443 (1893) (the absence of a dismissal as to some served defendants prevented entry of a final, appealable order of dismissal as to one defendant), with Hooven, Owens & Rentschler Co. v. John Featherstone's Sons, 111 F. 81, 84-85 (8th Cir. 1901), and Bradshaw v. Miners' Bank, 81 F. 902, 904 (7th Cir. 1897) ("The right of appeal from the decree in favor of the Miners' Bank is not affected by the fact that there has been no decree against the Illinois & Missouri Lead & Zinc Company. That company, though named in the bill as a respondent, was not served with process, and therefore is not a party to the record . . . .").
Hence we conclude that the absence of a dismissal as to Calabrese is no impediment to the present appeal.
The treatment of Giambrone is somewhat more complex. The federal defendants argue that the appeals taken before Giambrone was dismissed gave this Court no jurisdiction, but that the docketing of those attempted appeals made ineffective the district court's November 19 attempt to amend its September 21 order to reflect the dismissal of Giambrone. In addition they contend that even if the September 21 order were deemed amended by Judge Burke's November 19 letter, no appeal would lie because the dismissal of Giambrone was never embodied in a judgment.*fn11 We are not persuaded.
As originally entered, the orders of September 21 and October 25 were not appealable because neither of them dealt with the claims against Giambrone. We agree that in those circumstances the attempted appeals did not give us jurisdiction. Judge Burke's letter of November 19, however, authorized the Clerk of the district court to correct a "typographical error" in the order of September 21, to include the dismissal of the complaint as against Giambrone. The question is whether the district court had retained jurisdiction to make the correction.
Normally the filing of a timely and sufficient notice of appeal immediately transfers jurisdiction, as to any matters involved in the appeal, from the district court to the court of appeals. Once a proper appeal is taken, the district court may generally take action only in aid of the appeal or to correct clerical errors as allowed by the Federal Rules of Civil (or Criminal) Procedure.*fn12 See 9 Moore's Federal Practice P 203.11 (2d ed. 1980). Whether or not the filing of a notice of appeal from a non-appealable order also immediately divests the district court of jurisdiction to proceed as to the matters involved in the purported appeal is not answered by the Rules themselves, and the courts which have considered the question have divided.*fn13 Compare United States v. Hitchmon, 602 F.2d 689 (5th Cir. 1979) (en banc); Hodgson v. Mahoney, 460 F.2d 326, 328 (1st Cir.), cert. denied, 409 U.S. 1039, 93 S. Ct. 519, 34 L. Ed. 2d 488 (1972); Ruby v. Secretary of the United States Navy, 365 F.2d 385, 388-89 (9th Cir. 1966) (en banc), cert. denied, 386 U.S. 1011, 87 S. Ct. 1358, 18 L. Ed. 2d 442 (1967); Euziere v. United States, 266 F.2d 88, 91 (10th Cir. 1959), vacated on other grounds, 364 U.S. 282, 80 S. Ct. 1615, 4 L. Ed. 2d 1720 (1960), holding that the district courts retained jurisdiction, with Williams v. Bernhardt Bros. Tugboat Serv., Inc., 357 F.2d 883 (7th Cir. 1966); District 65, Distributive, Processing & Office Workers Union v. McKague, 216 F.2d 153 (3d Cir. 1954), holding to the contrary. District courts in this circuit have taken the position that such an attempted appeal does not deprive them of the power to proceed, Browning Debenture Holders' Committee v. DASA Corp., 454 F. Supp. 88 (S.D.N.Y.1978); Weisman v. Darneille, 79 F.R.D. 389 (S.D.N.Y.1978); Lowenschuss v. Kane, 392 F. Supp. 59 (S.D.N.Y.1974),*fn14 and we find this to be the preferable view. While greater certainty as to district court power results from the more rigid rule that any filing of a notice of appeal divests the district court of jurisdiction as to the matters covered by the notice, we see no efficiency to be gained by allowing a party arbitrarily to halt the district court proceedings by filing a plainly unauthorized notice which confers on this Court the power to do nothing but dismiss the appeal. Hence we conclude that the district court retained power to correct the judgment of September 24 to reflect its dismissal of the action against Giambrone.
A related question is whether we are deprived of jurisdiction to hear the appeal from the now final order below on the ground that the notice of appeal was premature. Some courts have taken a strict view that the court of appeals must have jurisdiction of the appeal, if at all, at the time the notice is filed. See, e. g., Williams v. Bernhardt Bros. Tugboat Serv., Inc., supra. Others have deemed premature appeals to be validated by subsequent events. See, e. g., Lemke v. United States, 346 U.S. 325, 74 S. Ct. 1, 98 L. Ed. 3 (1953); Richerson v. Jones, 551 F.2d 918, 922 (3d Cir. 1977); Tilden Financial Corp. v. Palo Tire Serv. Inc., 596 F.2d 604, 606-07 (3d Cir. 1979); Plummer v. United States, 580 F.2d 72 (3d Cir. 1978); Morris v. Uhl & Lopez Eng'rs, Inc., 442 F.2d 1247, 1250-51 (10th Cir. 1971); Markham v. Holt, 369 F.2d 940 (5th Cir. 1966); Ruby v. Secretary of the United States Navy, 365 F.2d 385 (9th Cir. 1966) (en banc), cert. denied, 386 U.S. 1011, 87 S. Ct. 1358, 18 L. Ed. 2d 442 (1967). See also 9 Moore's Federal Practice P 204.14 (2d ed. 1980); 15 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3915 at 599-600 (1976).*fn15 In the absence of prejudice to the nonappealing party, this Court too has declined to dismiss premature notices of appeal where subsequent actions of the district court have imbued the order appealed from with finality. See, e. g., Sanchez v. Maher, 560 F.2d 1105, 1107 n. 2 (2d Cir. 1977) (appeal allowed where notice of appeal filed after the decision but before entry of judgment; judgment not entered until after argument of the appeal); Gumer v. Shearson, Hammill & Co., 516 F.2d 283 (2d Cir. 1974) (appeal allowed where, after notice of appeal had been filed, district court entered Rule 54(b) certification nunc pro tunc ); Kaufman & Ruderman, Inc. v. Cohn & Rosenberger, 177 F.2d 849 (2d Cir. 1949) (appeal decided on merits, with permission granted to seek Rule 54(b) certification, nunc pro tunc ). The defendants in the present case have not indicated any respect in which they would be better off if the appeal had been taken after the November 19 correction, rather than before. We therefore treat the premature notice of appeal as having been timely filed after the dismissals by the district court became final orders.
Finally, we do not find the absence of an actual judgment embodying the dismissal of Giambrone fatal to our jurisdiction. Although Fed.R.Civ.P. 58 requires that a judgment be set forth on a separate document,*fn16 this requirement is intended merely to pinpoint, principally for the benefit of the appellant, the commencement of time for filing a notice of appeal. Thus, in Bankers Trust Co. v. Mallis, 435 U.S. 381, 98 S. Ct. 1117, 55 L. Ed. 2d 357 (1978), the Supreme Court held that appellate jurisdiction could properly be assumed even though the separate document requirement had not been met:
Certainty as to timeliness, however, is not advanced by holding that appellate jurisdiction does not exist absent a separate judgment. If, by error, a separate judgment is not filed before a party appeals, nothing but delay would flow from requiring the court of appeals to dismiss the appeal. Upon dismissal, the district court would simply file and enter the separate judgment, from which a timely appeal would then be taken. Wheels would spin for no practical purpose.
Id. at 385, 98 S. Ct. at 1120 (footnote omitted). The Court in Bankers Trust noted that the district court had clearly intended that its opinion and order be the final decision in the case, "(a) judgment of dismissal" was recorded in the district clerk's docket, and the appellee did not object to the taking of the appeal in the absence of a separate judgment. In those circumstances, the Court held, the parties "should be deemed to have waived" the separate document requirement and a court of appeals can properly take jurisdiction. Id. at 387-88, 98 S. Ct. at 1121. See Elfenbein v. Gulf & Western Industries, Inc., 590 F.2d 445, 449 (2d Cir. 1978); Turner v. Air Transport Lodge 1894, 585 F.2d 1180 (2d Cir. 1978).
While the facts of the present case are somewhat different, the rationale of Bankers Trust requires that we not spin our wheels here by dismissing for lack of a judgment. Judge Burke clearly intended the September 21 order, as corrected by the November 19 letter, and as supplemented by the October 25 order, to be his final decision in the case, and separate judgments were actually entered prior to his correction of the "typographical" omission of Giambrone from the September order. All that remained was the ministerial task of making the mandated correction of the September judgment already entered, instruction for which has itself now been entered in the docket.
We do not believe the interests of any party will be harmed by our refusal to dismiss at this stage. Giambrone has not objected to the taking of this appeal in the absence of a judgment in his favor. It is true that the federal defendants have objected, but they have not shown any respect in which they have been prejudiced; since final dismissals have been ordered as to all served defendants, it is difficult to see how the temporary technical defect as to Giambrone could prejudice any defendant. We therefore will instruct the Clerk of the district court to make the appropriate correction upon receipt of our mandate, and for present purposes we treat such correction as having been made. We now turn to the merits of the appeal.
III. LEONHARD'S CLAIMS
We deal first with the claims on behalf of Leonhard, which assert that each group of defendants violated Leonhard's constitutional rights. Among the defenses interposed was the bar of the statute of limitations. For the reasons below we agree that Leonhard's claims are time-barred.*fn17
A. The Federal Defendants
The gist of Leonhard's claims against the federal defendants is that, commencing on or about August 15, 1967, various federal officials violated his constitutional rights by removing and concealing his children from him until July 1975. Leonhard's claims are apparently based directly on the United States Constitution, under the principles of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). Since this action was not commenced until June 30, 1978, more than ten years after removal of the children, the defendants contend that it is time-barred. The merit of their contention depends on when Leonhard's causes of action accrued and what period of limitations is applied.
Leonhard contends that the statute did not begin to run until July 1975. He argues that his claim accrued anew each time he wished to visit his children and was unable to do so: "Each time he was deprived of these rights, a new cause of action accrued and continued to accrue until July 11, 1975, when Appellant and his children were reunited." (Brief at 57). There are a variety of possible dates on which Leonhard's claim may be deemed to have ripened for statute of limitations purposes, but none of them as late as that he urges.
Under general principles of law, a cause of action accrues when conduct that invades the rights of another has caused injury. When the injury occurs, the injured party has the right to bring suit for all of the damages, past, present and future, caused by the defendant's acts. See Restatement (Second) of Torts §§ 899, 910 (1977). The earliest allegedly wrongful act which resulted in Leonhard's loss of his children occurred sometime in 1967, when Leonhard's children were removed from New York and first concealed from him.*fn18
At common law this general principle is subject to the modification that a claim to redress a continuing wrong will be deemed to have accrued on the date of the last wrongful act. Thus, in New York, "despite the general principle that a cause of action accrues when the wrong is done, regardless of when it is discovered, certain wrongs are considered to be continuing wrongs, and the statute of limitations, therefore, runs from the commission of the last wrongful act." N.Y.Civ.Prac. Law (hereinafter "CPLR") § 203 note (McKinney 1972) (McLaughlin, Practice Commentaries C203:1). See also Restatement (Second) of Torts § 899, comment c ("For false imprisonment, the statute begins to run only when the imprisonment ends, since the period of imprisonment is treated as a unit.") This rule is well illustrated by the decision in Montgomery v. Crum, 199 Ind. 660, 161 N.E. 251, 257-59 (1928). There a mother, who had been awarded custody of her daughter following a divorce, sought damages for the abduction of the daughter by her estranged husband and his parents, which had resulted in a nine-year separation of mother from daughter. In response to an assertion that the two-year statute of limitations barred the mother's claim, the court observed that if the abduction consisted of an unbroken chain of wrongful acts at least some of which occurred during the two years immediately preceding suit, the statute would not bar the action, stating that "the statute of limitations will not begin to run until there is a cessation of the overt acts constituting the wrong." 161 N.E. at 259. But if all of the overt acts preceded that two-year period, the statute would have run. Id. Accord: Restatement (Second) of Torts § 899, comment c: "When there has been a loss of services over a considerable period of time by a continuous series of acts, as when a child is withheld from the custody of his parents, the injured party recovers only for that to which he was entitled within the statutory period before suit." (Emphasis added.) Thus if we are to apply the common law modification to determine when Leonhard's causes of action arose, we will have to determine the date of the defendants' last overt act. A preliminary question is whether common law rules should be applied.
Although we must look to state law to determine what period of limitations applies, see text following note 21 infra, the issue as to when Leonhard's cause of action accrued remains a question of federal law, Kaiser v. Cahn, 510 F.2d 282, 285 (2d Cir. 1974), and there are persuasive reasons in the present case for eschewing application of the common law accrual principles appropriate for torts such as abduction. First, the defendants at all times dealt with the children's mother, who had custody of them and who joined in and consented to their relocation and concealment. A claim for abduction or false imprisonment would thus be untenable. See part V. C. infra. Moreover, there were reasons for the defendants' actions which strongly implicate federal interests. Their actions were concededly part of "their efforts to deal with a very serious problem, organized crime, and to make an agreement, a deal, with a government informant." (Statement of plaintiffs' counsel at hearing in district court.) The procurement of testimony against alleged members of organized crime will normally require appropriate protection of both the informant and his family. Relocation and concealment will commonly be part of this protection. To prevent intimidation, we would think the protection would begin prior to any disclosure to the putative criminals that the informant will testify. Thereafter the protection would continue in order to prevent reprisals: after the government has obtained the testimony of the informant, it would hardly seem prudent or conscionable for the government officials to turn and disclose the whereabouts of the informant's family. It appears, therefore, that once the family of an informant is concealed, the federal officials are virtually committed to continue that concealment for some period of time. Thus, it is the initial concealment which would give rise to a right of action, and subsequent acts in furtherance and continuation of the concealment should not give rise to new or renewed causes of action. If we apply this principle, Leonhard's cause of action accrued in 1967.
Even if common law accrual rules applied, however, Leonhard would not be able to justify his preferred 1975 date, since he does not allege that any of the defendants' acts occurred as late as 1975.*fn19 While the complaint alleges conclusorily that the federal defendants concealed the children until 1975 and refused his "repeated requests to be informed of (their) whereabouts," no overt acts are alleged. And the affidavit of Rochelle, submitted to the district court by plaintiffs, shows only that the government concealed and supported Rochelle and the children until July 1970.*fn20 Thus, even applying common law rules, on the basis of the evidence presented by plaintiffs we conclude that Leonhard's claims accrued not later than July 1970.*fn21
The remaining question is within what period Leonhard was required to bring suit. Since Congress has not provided a statute of limitations for Bivens actions, we must use the most nearly analogous state statute of limitations. See Board of Regents v. Tomanio, 446 U.S. 478, 100 S. Ct. 1790, 64 L. Ed. 2d 440 (1980); Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S. Ct. 1716, 44 L. Ed. 2d 295 (1975).
In Regan v. Sullivan, 557 F.2d 300 (2d Cir. 1977), this Court held that the most appropriate statute for a Bivens action accruing in New York is either the three-year limitation provided by CPLR § 214(2) for an action to recover upon a liability imposed by statute, or the six-year limitation provided by CPLR § 213(1) for actions for which no limitation is specifically prescribed. In Regan we had no need to determine which of the two periods was the more appropriate because the action was barred under either statute. The same is true here. Since Leonhard's causes of action accrued no later than 1970, i. e., more than six years before the June 1978 commencement of this suit, the suit is barred.
B. The State Defendants
Leonhard's complaint challenges only a single act by the state defendants: that they released Pascal Calabrese from custody prior to the date authorized by law. While the complaint is far from clear in this respect, it may be construed to allege that the release of Calabrese in 1968 violated Leonhard's constitutional rights and to seek relief under § 1983.*fn22
As to § 1983 actions, like Bivens -type actions, Congress has not specified a statute of limitations, and again we must look to state law. With respect to § 1983 actions brought in federal district courts in New York, this Court has repeatedly held that the appropriate period is the three-year limitation of CPLR § 214(2). Taylor v. Mayone, 626 F.2d 247 (2d Cir. 1980); Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 449 (2d Cir. 1980);*fn23 Leigh v. McGuire, 613 F.2d 380 (2d Cir. 1979), vacated and remanded for further consideration, 446 U.S. 962, 100 S. Ct. 2935, 64 L. Ed. 2d 820 (1980); Meyer v. Frank, 550 F.2d 726 (2d Cir.), cert. denied, 434 U.S. 830, 98 S. Ct. 112, 54 L. Ed. 2d 90 (1977); Kaiser v. Cahn, 510 F.2d 282 (2d Cir. 1974); Ortiz v. LaVallee, 442 F.2d 912 (2d Cir. 1971); Swan v. Board of Higher Education, 319 F.2d 56 (2d Cir. 1963); Bomar v. Keyes, 162 F.2d 136, 140 (2d Cir.) (L. Hand, J.) (predecessor statute of § 214(2)), cert. denied, 332 U.S. 825, 68 S. Ct. 166, 92 L. Ed. 400 (1947).
There is no reason to apply a different limitations period here. Since Calabrese was paroled in 1968, and Leonhard's complaint was filed in 1978, Leonhard's action against the state defendants is time-barred.
C. The City Defendants
Leonhard's claim against the city defendants also is asserted under § 1983. The claim is that Giambrone, acting under color of law as an employee of the Buffalo police department and acting with the authority of the City, participated in the removal and concealment of Leonhard's children from him.*fn24 Although the complaint contains conclusory assertions that Giambrone and the City refused to reveal the children's whereabouts to Leonhard and impeded Leonhard's efforts to find them, it does not allege any overt acts on the part of Giambrone or the City after 1967. We conclude, therefore, that Leonhard's claims against Giambrone and the City accrued in 1967 when the children were removed, or in any event no later than 1970 when the last overt acts to conceal the children occurred. See part A above. Since a three-year period of limitations applies to these claims, see part B above, Leonhard's claims against the city defendants were properly dismissed.
IV. THE CHILDREN'S CONSTITUTIONAL CLAIMS
As outlined in part I, the children, like Leonhard, assert that the acts of the defendants violated their constitutional rights. The district court drew no distinction between the claims of Leonhard and those of the children. The children's constitutional claims against each group of defendants were held barred by the statute of limitations; in addition their claims against the federal defendants were held barred by principles of collateral estoppel, their claims against the state defendants were held barred by the Eleventh Amendment and dismissed for failure to state a claim, and their claims against the city defendants were held barred by the principle of Monroe v. Pape, supra. We disagree with certain of these rationales, although not with the results.
While the claims of Leonhard himself are barred by the applicable statutes of limitations, the constitutional claims of the children are not. As noted above, for both Bivens -type actions and § 1983 actions we must borrow the most appropriate state statutes of limitations. In addition, however, to the extent not inconsistent with the policies underlying the federal claims, we must borrow any restrictions placed by the state on the running of the statutes. See Board of Regents v. Tomanio, supra; Johnson v. Railway Express, supra. New York CPLR § 208 provides that the running of the statute of limitations is tolled if the person possessing the cause of action is under a disability because of infancy. A three-year or longer statute of limitations is tolled until three years after the disability ends. Since the record indicates that the oldest of the Leonhard children did not reach the age of 18 until six months before this suit was commenced,*fn25 we conclude that the assertion of their claims is timely.
Nor should the children's claims have been dismissed on grounds of collateral estoppel. The district court felt that the denial of mandamus in Leonard I presupposed a finding that the defendants owed no duty to the children. While there may be ground for differing views as to whether the claims of Leonhard himself are barred by the decision in Leonhard I,*fn26 there is no question that the claims of the children are not so barred. The children were not parties to Leonhard I, and the duties in issue there were those allegedly owed to Leonhard and not to the children. "Some litigants-those who never appeared in a prior action-may not be collaterally estopped without litigating the issue. They have never had a chance to present their evidence and arguments on the claim. Due process prohibits estopping them despite one or more existing adjudications of the identical issue which stand squarely against their position." Blonder-Tongue Laboratories, Inc. v. University of Ill. Foundation, 402 U.S. 313, 329, 91 S. Ct. 1434, 1443, 28 L. Ed. 2d 788 (1971); see Parklane Hosiery Co. v. Shore, 439 U.S. 322, 329, 99 S. Ct. 645, 650, 58 L. Ed. 2d 552 (1979).
This leaves for analysis the contentions that the children have failed to state a constitutional claim upon which relief can be granted. We consider this contention with respect to each group of defendants in turn.
A. The Federal Defendants
The complaint alleges that the acts of Kennelly and other agents of the Department of Justice in removing the children in 1967 and concealing them from Leonhard deprived the children of their constitutional rights to visitation, companionship and rearing by their natural father, without due process of law.*fn27 Our analysis of the interests and status of the children and of the governmental functions involved persuades us that the children have failed to state a constitutional claim.
It has long been recognized that the relationship between parent and child is constitutionally protected. E. g., Quilloin v. Walcott, 434 U.S. 246, 255, 98 S. Ct. 549, 554, 54 L. Ed. 2d 511 (1978); Wisconsin v. Yoder, 406 U.S. 205, 231-33, 92 S. Ct. 1526, 1541-42, 32 L. Ed. 2d 15 (1972); Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972); Meyer v. Nebraska, 262 U.S. 390, 399-401, 43 S. Ct. 625, 626-627, 67 L. Ed. 1042 (1923); cf. Prince v. Massachusetts, 321 U.S. 158, 64 S. Ct. 438, 88 L. Ed. 645 (1944). The Due Process Clause limits the power of the state to take action which ruptures or impinges upon the parent-child relationship. As the Supreme Court stated in Quilloin v. Wolcott, supra :
We have little doubt that the Due Process Clause would be offended "if a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children's best interest."
434 U.S. at 255, 98 S. Ct. at 555 (quoting Smith v. Organization of Foster Families, 431 U.S. 816, 862-63, 97 S. Ct. 2094, 2119, 53 L. Ed. 2d 14 (1977) (Stewart, J., concurring in judgment)). Cf. Moore v. City of East Cleveland, 431 U.S. 494, 503-06, 97 S. Ct. 1932, 1937-39, 52 L. Ed. 2d 531 (1977) (plurality opinion) (state may not arbitrarily prevent members of an extended family from living together). Thus, the state may not constitutionally withhold children, properly taken into temporary custody by the state in an emergency, from their mother without her consent and without judicial authorization. Duchesne v. Sugarman, 566 F.2d 817, 828 (2d Cir. 1977); see Morrison v. Jones, 607 F.2d 1269, 1276 (9th Cir. 1979), cert. denied, 445 U.S. 962, 100 S. Ct. 1648, 64 L. Ed. 2d 237 (1980). Nor may it deprive a divorced father of notice and an opportunity to be heard before his child is adopted by his marital successor. Armstrong v. Manzo, 380 U.S. 545, 85 S. Ct. 1187, 14 L. Ed. 2d 62 (1964). Even in cases of child neglect, the Due Process Clause places limits on the state's power to terminate the parent-child relationship. See generally Note, Constitutional Limitations on the Scope of State Child Neglect Statutes, 79 Colum.L.Rev. 719 (1979).
In analyzing the applicability of such precepts to the children's claims in the present case it is important at the outset to identify certain contentions that are not pertinent here. First, the visitation rights of Leonhard are not involved. Even assuming that Leonhard had a constitutionally protected interest in visiting his children, a question we have not reached because Leonhard's claims are time-barred, the children do not have standing to complain of abridgement of Leonhard's rights. Second, the theory that the removal and concealment of the children "consigned" them to the company of a convicted criminal has no factual basis. The children were committed to Calabrese's company when Rochelle married him, and they lived with him before he commenced to serve his prison term. Rochelle had custody of them when she separated from Leonhard, and her custody was not altered when she married Calabrese. While the early release of Calabrese accelerated the return of the children to the company of Calabrese, plaintiffs cite no authority, and, we know of none, to suggest that this violated any right guaranteed them by the Constitution. Finally, we are not dealing with a governmental rupture of a family unit. The family unit that once was comprised of Leonhard, Rochelle and their children, had already been ruptured by Leonhard and Rochelle. Upon their divorce, Leonhard was deprived of custodial rights and was awarded only visitation rights. All of this occurred well in advance of the involvement of the federal defendants in the lives of the children.
The crux of the children's claim is simply that they were placed beyond the reach of their father. The fact that this occurred without a hearing did not implicate the children's constitutional rights because it was done in the course of the defendants' official duties, was done for the protection of the children, and was done with Rochelle's consent.
The most critical fact in determining whether the rights of the children were violated is the fact that Rochelle had sole custody of them. She was the parent who had been entrusted with their care, their education, their health and safety. There is no question that Rochelle consented to the removal and concealment of the children, nor that they remained in her custody for the entire time that they were concealed from their father. It is to be presumed that she was properly concerned for their welfare. See Parham v. J.R., 442 U.S. 584, 602-03, 99 S. Ct. 2493, 2504-05, 61 L. Ed. 2d 101 (1979). There is no indication in her affidavit, nor any suggestion by the plaintiffs, that this was not so. And surely the presumption is reinforced by the circumstances, which were instinct with the risk of harm to the children the minute Calabrese became a potential witness against organized crime figures; the risk would increase substantially when the fact that Calabrese might testify became known to the accused criminals, as the children could become targets of premonitory or retaliatory acts, or could be the incidental victims of acts directly against Calabrese. It was Rochelle's right and her duty to weigh the interest of the children in being available for periodic visits from their father against their exposure to possible kidnapping or bodily harm. Her decision appears to be unassailable.
It is also important to note that the officials involved were attempting to carry out two official functions: first, to stamp out organized crime, and second, to protect witnesses, and the families of witnesses, who would testify or had testified against members of organized crime. There is no question that the officials' decision to remove and conceal Rochelle and the children was made in pursuit of these functions. The plaintiffs' attorney described the decision as part of "their efforts to deal with a very serious problem, organized crime, and to make an agreement, a deal, with a government informant." In deciding to protect the family of such an informant the officials must be entitled to rely on the consents of the family members to be removed and concealed. The Leonhard children, of course, were not old enough to make such decisions for themselves; their ages ranged from three to seven. Had they been old enough to make their own decisions, the officials could have relied on their consents and the children would obviously have no claim against those officials. Given their actual infancy, their mother made the decision. The fact that the decision was made by only one parent rather than both*fn28 is of no legal consequence since custody resided solely with the consenting parent. See Parham v. J.R., supra, 442 U.S. at 589, 99 S. Ct. at 2497 and passim; Boone v. Wyman, 295 F. Supp. 1143 (S.D.N.Y.) (Mansfield, J.), aff'd, 412 F.2d 857 (2d Cir. 1969), cert. denied, 396 U.S. 1024, 90 S. Ct. 600, 24 L. Ed. 2d 518 (1970). See also Duchesne v. Sugarman, supra. Thus we conclude that the federal officials' removal and concealment of the children on the consent of their mother and sole custodian, did not violate the children's constitutional rights; given the fact of Rochelle's consent, no hearing as to the rights of the children was required.
Indeed, considering the uncivilized nature of the risks against which the removal and concealment of the children sought to forfend, it is difficult to envision the possibility of a hearing, either before or after the fact, which would be "useful ( ) . . . in the given circumstances," and which would not entail "adverse consequences." See Friendly, "Some Kind of Hearing", 123 U.Pa.L.Rev. 1267, 1278 (1975). If a hearing had been held prior to the removal and concealment of the children, and Calabrese either remained willing to testify or the alleged criminals believed, even erroneously, that there remained any possibility that he would testify, the children would be exposed to the danger of abduction or other harm as leverage against Calabrese to prevent his testimony. A hearing after Calabrese testified could hardly be more meaningful since it would expose the children to the danger of retaliatory acts, undoubtedly designed in part to discourage other potential witnesses against organized crime. And, as we have discussed above, for the government officials to reveal the whereabouts of the children after testimony has been given and before the officials feel the dangers have abated would be the very essence of bad faith. We are thus compelled to conclude that due process did not require a hearing on the decision by Rochelle and the government officials to remove and conceal the children.
This conclusion finds support in the recent decision of the Supreme Court in Parham v. J.R., supra. Involved there was the question whether the state could constitutionally rely on a decision by a child's parent or guardian to commit the child to a mental institution without a hearing before or after the commitment. The Court held that despite the child's substantial liberty interest in not being confined, he has no constitutional claim when his parent or guardian has decided that he should be placed in a mental hospital and the hospital psychiatrists have determined that he needs treatment. Id. at 606-13, 99 S. Ct. at 2506-2510. The liberty interest in Parham was clearly more substantial than the interest of the children here in the possibility of periodic visits from their father. And the effect of the parents' decision in Parham, i. e., the complete removal of the child from any family environment, was far more drastic than the effect here of the children's relocation accompanied by their mother. Since, as was held in Parham, a child has no right to a hearing when his parent decides to obtain needed medical treatment for him by transferring him from the family to the confinement of a mental institution, a fortiori children have no cause to complain when their custodial parent and the government officials charged with such functions decide to protect their safety by relocating and concealing them, with their parent.*fn29 If the more drastic intrusion does not require a hearing, surely the less drastic intrusion does not.
In sum, since "(w)hat process is constitutionally due cannot be divorced from the nature of the ultimate decision that is being made," id. at 608, 99 at 2507, we conclude that the officials' exercise of their discretion and their reliance on Rochelle's consent to the removal and concealment of the children to protect them from organized crime, did not deny the children due process of law.*fn30 The children's constitutional claims were properly dismissed.
B. The State Defendants
The single assertion against the state defendants is that two state agencies, the Department of Correctional Services and the Parole Board, and certain of their officials, released Calabrese from custody in violation of the law. The children's complaint against these defendants under 42 U.S.C. § 1983 was properly dismissed on grounds of immunity and failure to state a claim.
To the extent that the children assert claims for damages against agencies of the state,*fn31 they run squarely into the barrier of the Eleventh Amendment. It is well established that that Amendment bars a suit for damages absent the state's consent. Alabama v. Pugh, 438 U.S. 781, 98 S. Ct. 3057, 57 L. Ed. 2d 1114 (1978); Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974); Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S. Ct. 347, 350, 89 L. Ed. 389 (1945); see Monell v. Department of Social Services, 436 U.S. 658, 690 n.54, 98 S. Ct. 2018, 2035, n.54, 56 L. Ed. 2d 611 (1978). While the Eleventh Amendment may permit certain types of prospective injunctive relief, Ex Parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908), we find no demand for injunctive relief against the state defendants in this action.
Moreover, even assuming that the release of Calabrese violated state law and that the removal of the children violated their constitutional rights, no claim upon which relief can be granted has been stated against either the state agencies or the state officials. Although the complaint asserts that in releasing Calabrese the state defendants acted "in concert with" the federal defendants, it is not alleged that any of these defendants participated in the removal or concealment of the children from Leonhard. Any connection between the mere release of Calabrese and the injuries alleged would be far too tenuous to support a claim against these defendants. See Martinez v. California, 444 U.S. 277, 100 S. Ct. 553, 62 L. Ed. 2d 481 (1980); Sostre v. McGinnis 442 F.2d 178, 189-90 (2d Cir. 1971) (en banc), cert. denied, 404 U.S. 1049, 92 S. Ct. 719, 30 L. Ed. 2d 740, 405 U.S. 978, 92 S. Ct. 1190, 31 L. Ed. 2d 254 (1972).
C. Giambrone and the City of Buffalo
Giambrone, unlike the state defendants, is alleged to have participated in the removal and concealment of the children. He is alleged to have done so "under and by the full authority of" the City of Buffalo. For the reasons stated in part A above, however, the complaint fails to state a claim against Giambrone and the City for violation of the children's constitutional rights.
Moreover, even if a viable constitutional claim had been asserted against Giambrone, the dismissal of the action against the City would have been proper because the complaint does not allege that Giambrone acted pursuant to any official policy, regulation or custom of the city. A municipality cannot be held liable on a § 1983 claim under a respondeat superior theory; it is liable only if federal rights are violated pursuant to its official policy or custom. Monell v. Department of Social Services, supra, 436 U.S. at 663 n.7, 98 S. Ct. at 2022; Monroe v. Pape, supra. The assertion that Giambrone acted on the "authority" of the City is merely an allegation of agency, and is insufficient to support a claim against the City.
V. THE CHILDREN'S OTHER CLAIMS
In addition to their constitutional claims, the children assert certain non-constitutional claims under the Tucker Act, the Federal Tort Claims Act*fn32 and common law.*fn33
A. Tucker Act Claim
The children's Tucker Act claims are that the Attorney General of the United States, knowing that Calabrese was a convicted felon, consigned the children to the company and association of Calabrese, who caused them mental and physical harm. The children claim that the Attorney General thereby violated the Organized Crime Control Act, and each child seeks damages from the United States under the Tucker Act in the amount of $10,000. Their claim is fatally flawed in several respects.
The United States, of course, "is immune from suit save as it consents to be sued." E. g., United States v. Sherwood, 312 U.S. 584, 586, 61 S. Ct. 767, 769, 85 L. Ed. 1058 (1941). The Tucker Act, 28 U.S.C. § 1346(a)(2) (1976), gives the district courts jurisdiction over civil actions "against the United States, not exceeding $10,000 in amount, founded . . . upon . . . any Act of Congress." This section, however, is merely a jurisdictional provision; "it does not create any substantive right enforceable against the United States for money damages." United States v. Testan, 424 U.S. 392, 398, 96, 948, 953, 47 L. Ed. 2d 114 (1976). In order to determine whether any substantive right exists, we must look to the Act of Congress relied on, to find a clear waiver of sovereign immunity. "And it has been said, in a Court of Claims context, that a waiver of the traditional sovereign immunity "cannot be implied but must be unequivocally expressed.' United States v. King, 395 U.S. (1, 4, 89 S. Ct. 1501, 23 L. Ed. 2d 52 (1969)); Soriano v. United States, 352 U.S. 270, 276 (, 77 S. Ct. 269, 1 L. Ed. 2d 306) (1957)." United States v. Testan, supra, 424 U.S. at 399, 96 S. Ct. at 954-55.
The substantive statute relied on by the children is the Organized Crime Control Act (the "Act"). This Act authorizes the Attorney General to provide for the health, safety and welfare of prospective witnesses, and their families, expected to be called to testify against alleged members of organized crime, whenever in the Attorney General's judgment, such testimony or willingness to testify would place in jeopardy the life or person of the prospective witness or his family. Pub.L. 91-452, Title V, §§ 501-504, 84 Stat. 933 (Oct. 15, 1970).*fn34 The initial problem with the children's claim is that the Act contains no suggestion that Congress intended to waive the government's immunity to a suit for failure to provide protection against reprisals or to create any private right of action for such a failure.*fn35 Moreover, even if some right of action were inferable, it could not be presumed that Congress intended to permit members of the family of the witness to sue the United States for injuries inflicted upon them by the witness. The risk that the witness may thereafter abuse members of his family is simply not one of the dangers sought to be eliminated by the Act. Finally, the Act was not in effect at the pertinent times. The children were removed and first given new identities in 1967; and according to Rochelle's affidavit, the government's participation in their concealment ended in July 1970. The Organized Crime Control Act was not passed until October 15, 1970. There is no indication that Congress intended to create any rights in favor of the family of a witness who had already testified in the past and had been shielded from organized crime for as long as the government felt necessary.
For all of these reasons, the Tucker Act claims were properly dismissed.
B. Tort Claims Against the United States
The children's tort claims against the United States are somewhat similar to their Tucker Act claims. They allege that in arranging for the release of Calabrese and undertaking to conceal and support the children, the government undertook a duty to protect them from mental and physical harm. Reading the complaint in conjunction with the plaintiffs' administrative claim forms, it appears that the children claim that the United States negligently breached this duty by allowing them to be assaulted, battered, deprived of proper care and education, and mentally abused, by Calabrese. Each of the children seeks $500,000 in damages from the United States under the Tort Claims Act, 28 U.S.C. § 2674 (1976).
For tort claims, as for contract or statutory claims, the United States may be sued only to the extent that it has waived its sovereign immunity. The waiver for tort claims is limited both in substantive scope and in duration. The temporal constraints that Congress has placed on the government's vulnerability to tort suits are found in 28 U.S.C. § 2401(b) (1976). Section 2401(b) provides in pertinent part that "(a) tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues . . . ."*fn36 It is firmly established that the two-year period is not tolled by a claimant's minority. E. g., Smith v. United States, 588 F.2d 1209, 1211 (8th Cir. 1978); Simon v. United States, 244 F.2d 703 (5th Cir. 1957); United States v. Glenn, 231 F.2d 884 (9th Cir.), cert. denied, 352 U.S. 926, 77 S. Ct. 223, 1 L. Ed. 2d 161 (1956); Hoch v. Carter, 242 F. Supp. 863 (S.D.N.Y.1965).
The children's tort claims were filed with the government on June 27, 1977. The effect of the two-year limitation provided by § 2401(b) is thus to bar recovery by the children on any tort claim that accrued prior to June 27, 1975. To the extent that their tort claims against the United States accrued prior to that date, they were properly dismissed for lack of jurisdiction.
It is unclear whether this disposition leaves any tort claims for the children to prosecute against the United States.*fn37 Rochelle's affidavit states that the children lived with Calabrese only "until June 1975," and does not specify the date their cohabitation ceased. The complaint asserts that Calabrese unlawfully imprisoned the children until July 4, 1975. Even on the assumption that Calabrese may have falsely imprisoned the children at any time between June 27, 1975 and July 4, 1975, however, the Tort Claims Act bars the children's recovery on such a claim.
With certain exceptions, the United States has consented to be liable for its torts only "to the same extent as a private individual under like circumstances."*fn38 28 U.S.C. § 2674. Thus, it has not consented to be liable for injuries which its negligence has not proximately caused. See, e. g., Beesley v. United States, 364 F.2d 194 (10th Cir. 1966); United States v. Shively, 345 F.2d 294 (5th Cir.), cert. denied, 382 U.S. 883, 86 S. Ct. 177, 15 L. Ed. 2d 124 (1965); United States v. Hutchins, 268 F.2d 69 (6th Cir. 1959). Both the character and the timing of the events alleged require a dismissal of the children's claims. The government acts complained of are arranging the release of Calabrese and arranging for the children to live with him. The charge, of course, ignores the facts that Rochelle had custody of the children and that she was married to Calabrese. The government did not impose the requirement that the children live with Calabrese; they were already part of the same family unit and had lived together prior to Calabrese's imprisonment. Moreover, despite the reiteration by plaintiffs that Calabrese was a convicted felon, there is no evidence in the record to suggest that he had a history of child abuse or neglect; the crime for which he was imprisoned was robbery.*fn39 And in any event, the protection of family members from each other is not the kind of duty assumed in the program to protect government informers who testify against organized crime. Finally, although the acts of Calabrese which may form the basis for the tort claims against the government may have occurred between June 27, 1975 and July 4, 1975, the last overt act of the government occurred half a decade earlier: Rochelle's affidavit reveals that the government's last acts in supporting and concealing the children occurred in July 1970.
Thus we find the acts of the government in arranging Calabrese's release in 1968, and concealing him and the children through July 1970 to protect them from reprisals by organized crime, too remote from the claims that in 1975 Calabrese unlawfully imprisoned the children. See W. Prosser, Handbook of the Law of Torts § 51, at 322 (3d ed. 1964); cf. Martinez v. California, supra.
Finally, the United States cannot be held liable for failure to continue to support the children and Calabrese past 1970 or to conduct minute supervision over their daily lives. Such decisions are clearly matters of discretion, and the government has not consented to
any claim based upon . . . the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.
28 U.S.C. § 2680(a) (1976).
C. Tort Claims Against Others
The complaint contains one common law tort claim on behalf of the children against certain unidentified individuals. It is asserted that these individuals abducted the children from Leonhard in August 1967 and continued to harbor them from him until July 1975.*fn40 The claim does not appear to be sustainable.
It is clear that in 1967 Rochelle had lawful custody of the children; Leonhard did not have custody but only visitation rights. It is also clear that Rochelle consented to the removal and concealment of the children, along with the removal and concealment of herself, and that the children always resided with her. Her affidavit makes it clear beyond cavil that her, and the children's, removal and concealment were entirely voluntary. In these circumstances the children have no claim for abduction or false imprisonment.*fn41 See, e. g., Restatement (Second) of Torts § 700, comment c (1976); id. § 892A, comment b (1977); id. § 703, comments a, e (1976). Cf. Dale v. State, 44 A.D.2d 384, 355 N.Y.S.2d 485 (3d Dep't 1974), aff'd mem., 36 N.Y.2d 833, 331 N.E.2d 686, 370 N.Y.S.2d 906 (1975); Anonymous v. State, 17 A.D.2d 495, 236 N.Y.S.2d 88 (3d Dep't), leave to appeal denied, 13 N.Y.2d 598, 245 N.Y.S.2d 1025, 194 N.E.2d 836 (1963).
The dismissals of all claims are affirmed. We instruct the Clerk of the district court to correct the September 24, 1979, judgment nunc pro tunc in accordance with the November 19, 1979, instructions of the district judge.