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FRANZ v. UNITED STATES

October 27, 1981

William FRANZ, et al., Plaintiffs,
v.
UNITED STATES of America, et al., Defendants



The opinion of the court was delivered by: PARKER

ORDER OF DISMISSAL

William Franz, a resident and citizen of Pennsylvania, filed this action on behalf of himself and three minor children born during his marriage to Catherine Mary Franz Allen, from whom he is now divorced. Named as defendants are the United States of America, the Department of Justice, the Marshals Service, together with the Attorney General of the United States* and the Director of the Marshals Service. The last two are sued in both their individual and official capacities.

 Franz seeks declaratory and injunctive relief as well as money damages arising from alleged constitutional violations by the defendants in connection with and stemming from the defendants' actions leading to the entry of his children into the Federal Witness Protection Program (Program).** The children entered the Program with their mother when she remarried and her new husband received protection and security from the Marshals Service because of his cooperation in the prosecution of an organized crime proceeding. The government has moved to dismiss this case on jurisdictional and substantive grounds. For the reasons discussed below the Court concludes that dismissal of the complaint is warranted.

 Background

 During their eight years of marriage, the plaintiff and Catherine Mary Franz, his former wife, were the parents of three children. In 1976 the couple was divorced in Pennsylvania. Plaintiff was granted visitation rights but permanent custody of the children was awarded to Catherine their mother. She later married Charles Allen who, because of his assistance to law enforcement authorities and possible danger to his life, became a participant in the Witness Protection Program. The children and their mother resided in Pennsylvania when they entered the Program. Allen and his newly acquired family were assigned completely new identities and relocated to an area unknown to William Franz. Since then he has had no contact with his children. Prior to their involvement in the Program plaintiff Franz had exercised his visitation privileges.

 The Franz complaint asserts jurisdiction under 28 U.S.C. § 1331 (federal question) and the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. He claims that his and the childrens' constitutional rights were violated; that the relocation deprived him of the opportunity to raise the children and deprived them of their rights of visitation by him; that the defendants' actions caused him emotional distress and that the childrens' relocation violated their rights to privacy, causing them emotional distress; and that the defendants acted arbitrarily and capriciously in violation of Title V of the Organized Crime Control Act of 1970.

 Analysis

 Defendants have moved to dismiss this proceeding under Rule 12, Fed.R.Civ.P., on several grounds: that venue is improper in the District of Columbia; that the Court lacks subject matter jurisdiction; that no personal jurisdiction exists as to the defendants in their individual capacities; that service of process on the individual defendants was insufficient; and finally, that the complaint fails to state a claim upon which relief can be granted.

 A.

 B.

 As to the merits of plaintiff's claim, it is noted that in certain instances, due process considerations impose limits upon the government's authority to pursue a course of action which significantly disrupts the parent-child relationship. In Quilloin v. Walcott, 434 U.S. 246, 255, 98 S. Ct. 549, 554, 54 L. Ed. 2d 511 (1978), the Supreme Court noted:

 
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."

 (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)). Under this due process rationale, for example, the Court has imposed the preconditions of notice and a hearing upon the subsequent adoption of a divorced father's ...


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