On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civ. No. 85-6739.
Gibbons, Chief Judge, Mansmann and Cowen, Circuit Judges.
This is an appeal pursuant to 28 U.S.C. § 1291 (1982) by Edwin Meese, Attorney General, William French Smith, former Attorney General, and Stanley Morris, Director of the United States Marshals Service, from an order denying their motion for summary judgment. The suit is by Anthony J. Prisco, Jr., the father of Lauren Prisco, a minor. It seeks declaratory and injunctive relief, and money damages, against Meese, Smith, and Morris, and against other defendants including the United States. The action arises from the placement and maintenance of Lauren in the Federal Witness Protection Program, along with her mother and stepfather, without notice to Prisco.
The United States moved for summary judgment on Prisco's Federal Tort Claims Act claim on the ground that he had not filed an administrative claim. That motion was denied, and the order is not presently appealable. Prisco's claim for injunctive relief has not been ruled upon. Thus there is no order appealable under 28 U.S.C. § 1292(a) (1982). No order has been certified for an interlocutory appeal pursuant to 28 U.S.C. § 1292(b) (Supp. III 1985). Meese, Smith and Morris moved for summary judgment on two grounds: 1) qualified official immunity, and 2) failure to allege acts by them which violated Prisco's rights. They contend that because the district court rejected their qualified immunity defense they may appeal at this time because the order appealed from is collaterally final. They contend, as well, that the court erred in failing to dismiss on qualified immunity grounds.
We conclude that the appeals of Meese and Morris should be dismissed, and that the order denying Smith's motion, while appealable, should be affirmed.
Anthony Prisco married Maria Prisco in 1977. On February 14, 1980 they had a daughter, Lauren. Shortly after Lauren's birth the Priscos separated and on March 18, 1983 they were divorced. In December of 1982 they had entered into an agreement granting custody of Lauren to Maria and reasonable visitation rights to Anthony. Both before and after the divorce Anthony exercised those visitation rights regularly. On August 7, 1983 Maria married Michael Morris. This stepfather of Lauren had been cooperating, prior to the marriage, with a Federal Bureau of Investigation inquiry into an organized crime group involved in the drug trade. The investigation resulted, on September 19, 1983, in a federal grand jury indictment of fourteen members of the group. Prior to the return of the indictment the Federal Bureau of Investigation removed Michael Morris, Maria and Lauren from the Philadelphia area to a secure location. Anthony Prisco was not informed of the move. In October the Morrises were admitted to the Federal Witness Protection Program authorized by 18 U.S.C. §§ 3521-28 (Supp. IV 1986). The United States Marshals Service moved them to a new home and gave them new identities.
Prisco was not informed that Lauren was in the Witness Protection Program. He retained a lawyer and a private investigator in an effort to locate his daughter. On December 5, 1983 the efforts of the investigator resulted in the disclosure by Michael Morris that Prisco's daughter was with the Morrises in the Witness Protection Program. Anthony Prisco then filed a petition in the Court of Common Pleas of Philadelphia county seeking full custody of Lauren. The Marshals Service made Michael Morris, Maria, Lauren, and various federal employee witnesses available for hearings in the Court of Common Pleas, and permitted a court social worker to make a home visitation in the secret relocation area. The Marshals Service also offered to permit Anthony Prisco to make visits with his daughter at government expense at a neutral site selected and secured by it. Prisco participated in two such visits, but alleges that they were of poor quality from the standpoint of a parent, because of the distance traveled, the tight security, and the limits on what he and Lauren could discuss.
The Court of Common Pleas on June 29, 1987 awarded primary custody to Anthony Prisco. On October 2, 1987 the Superior Court of Pennsylvania vacated that order and remanded for further proceedings. At that point Anthony and Maria agreed to share primary custody, and an order was entered to that effect by the Court of Common Pleas on October 16, 1987.
Meanwhile, on November 21, 1985 Anthony Prisco had filed the instant action in the United States District Court, alleging that the action of the defendants in placing Lauren in the Witness Protection Program without notice to him violated rights secured by Pennsylvania law and by the due process clause of the fifth amendment. The United States Attorney, appearing for the United States and the federal officer defendants, moved for summary judgment of July 24, 1986. The court granted an extension of Anthony Prisco's time to respond to that motion, and on October 15, 1987 denied it. As noted above, the motion was predicated both on the adequacy of the factual allegations, and on the defense of qualified official immunity.
The order denying a motion for summary judgment is interlocutory, and thus not ordinarily appealable on the authority of 28 U.S.C. § 1291. The United States Attorney concedes, therefore, that the United States may not appeal at this time. It is contended, however, that Edwin Meese, William French Smith, and Stanley Morris may appeal at this time from the order denying their summary judgment motion because it rejects their claim for qualified official immunity. They rely on Mitchell v. Forsyth, 472 U.S. 511, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985) and Harlow v. Fitzgerald, 457 U.S. 800, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982) for the proposition ...