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FRANZ v. UNITED STATES

July 6, 1984

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



The opinion of the court was delivered by: PARKER

 BARRINGTON D. PARKER, District Judge:

 INTRODUCTION

 This litigation presents problems arising from the operation of the Witness Protection Program ("Program"). *fn1" Specifically, it involves the efforts of a parent, William Franz, to exercise visitation rights with his three minor children of a prior marriage to Catherine Mary Franz. The three children, along with their mother, became participants in the Program. Thereafter, the United States Marshals Service relocated the children and their mother, together with her new husband, a Program participant.

 BACKGROUND

 William Franz married Catherine Mary Franz in 1966. Three children were born of the marriage: William Michael Franz, Christine Catherine Franz and Donna Marie Franz. Several years after the marriage, William and Catherine separated, and in 1974, the Court of Common Pleas, Philadelphia, Pennsylvania, awarded Catherine custody of the minor children, with visitation rights reserved to William. On July 9, 1976, a final divorce decree was entered by the Court of Common Pleas of Bucks County, Pennsylvania. The custody and visitation rights previously granted to Catherine were incorporated in the divorce decree.

 After her divorce, Catherine Mary Franz married Charles Allen, a participant in the Witness Protection Program. Allen had previously cooperated with and testified for the government in various criminal prosecutions. In early 1979, in furtherance of the agreement between Charles Allen and the government, Catherine Mary Franz Allen and the three minor children entered the Program. Thereafter, the mother and the three children were given new identities and relocated elsewhere with Charles Allen. Mr. Franz had no prior notice of this action and was not advised of or consulted about his children's participation by anyone.

 In January, 1981 William Franz filed his first complaint, C.A. 81-173, on behalf of himself and as parent and natural guardian of his children, seeking injunctive and declaratory relief and damages for the unlawful deprivation of rights guaranteed by the Constitution and federal statutes, including the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq.2 Named as defendants were the United States of America, the United States Department of Justice, the United States Marshals Service and four officials, Benjamin Civiletti, former Attorney General, and William E. Hall, former Director of the Marshals Service, William French Smith, present Attorney General, and Stanley E. Morris, present Director of the Marshals Service. *fn3" The four officials were sued in both their individual and official capacities. However, the complaint against these officials in their individual capacities was subsequently dismissed with prejudice by stipulation after they filed affidavits stating that they did not participate, personally or otherwise, in the decision to place the Franz children in the Program or to deny Mr. Franz any visitation rights. Later, in early 1984, Mr. Franz filed a second complaint, C.A. 84-304, which paralleled and tracked the first, but named additional government officials as defendants.

 The first complaint was dismissed for failure to state a claim, Franz v. United States, 526 F. Supp. 126 (D.D.C.1981), relying principally upon a Second Circuit opinion, Leonhard v. United States, 633 F.2d 599 (2d Cir.1980), cert. denied, 451 U.S. 908, 101 S. Ct. 1975, 68 L. Ed. 2d 295 (1981). On appeal, our Circuit Court reversed the dismissal and remanded the proceeding for further consideration. Franz v. United States, 227 U.S. App. D.C. 385, 707 F.2d 582 (1983) addendum by 712 F.2d 1428.

 In the second complaint, C.A. No. 84-304, Mr. Franz, on behalf of himself and his minor children, has sued the United States of America and two government agencies -- the Department of Justice and the Marshals Service. Two government officials were added as defendants: Gerald Shur, an official of the Criminal Division, Department of Justice, and Howard Safir, an official of the Marshals Service. Shur and Safir are sued in their individual and official capacities. Punitive and compensatory damages are sought against them. The causes of action asserted are grounded in constitutional claims and common law claims under the Federal Tort Claims Act. The factual assertions of the complaint and the relief sought are essentially those set out in the original 1981 complaint.

 PENDING MOTIONS

 The government has moved to transfer the first complaint to the Eastern District of Pennsylvania, where the Franz divorce decree was entered and the children were admitted into the Witness Protection Program, or alternatively, to the Eastern District of Virginia, where the Marshals Service is headquartered. This motion focuses on venue problems as they relate to the plaintiff's claims for injunctive and declaratory relief and for relief under the Federal Tort Claims Act. The parties were allowed full discovery for the purpose of ascertaining facts relevant to the venue issue.

 For the reasons set out below, the Court determines that venue is proper in the District of Columbia and denies the motion to transfer in C.A. No. 81-173. The claims for damages asserted against Mr. Safir and Mr. Shur are dismissed. Because the remaining causes of action asserted in C.A. No. 84-304 are identical to those ...


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