Filed: Mar. 27, 2007
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 3-27-2007 Tucker v. County of Bucks Precedential or Non-Precedential: Non-Precedential Docket No. 06-2215 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "Tucker v. County of Bucks" (2007). 2007 Decisions. Paper 1425. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1425 This decision is brought to you for free and open access by the Opi
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 3-27-2007 Tucker v. County of Bucks Precedential or Non-Precedential: Non-Precedential Docket No. 06-2215 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "Tucker v. County of Bucks" (2007). 2007 Decisions. Paper 1425. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1425 This decision is brought to you for free and open access by the Opin..
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Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
3-27-2007
Tucker v. County of Bucks
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2215
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"Tucker v. County of Bucks" (2007). 2007 Decisions. Paper 1425.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1425
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-2215
JAMES A. TUCKER, INDIVIDUALLY
AND ON BEHALF OF ALL OTHER
PERSONS SIMILARLY SITUATED
v.
THE COUNTY OF BUCKS;
THE DOMESTIC RELATIONS
SECTION OF BUCKS COUNTY;
THE BOARD OF COMMISSIONERS
OF BUCKS COUNTY;
THE COURT OF COMMON PLEAS
OF BUCKS COUNTY
James A. Tucker,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 05-cv-02881)
Honorable Timothy J. Savage, District Judge
Submitted under Third Circuit LAR 34.1(a)
March 15, 2007
BEFORE: FUENTES, GREENBERG, and LOURIE,* Circuit Judges
*Honorable Alan D. Lourie, United States Circuit Judge for the Federal Circuit, sitting by
designation.
(Filed: March 27, 2007)
OPINION OF THE COURT
GREENBERG, Circuit Judge.
This matter comes on before the court on an appeal from an order of the district
court entered March 7, 2006, dismissing this case on the grounds that it is moot. Even
though the order dismissing the action succinctly described why the case was moot, after
the plaintiff appealed the court filed a memorandum opinion dated April 20, 2006,
explaining the reasons for its decision at greater length. See Tucker v. County of Bucks,
No. 05-2881, 2006 WL 1071571 (E.D. Pa. Apr. 20, 2006).
The facts of the complaint are not complex and are well known to the parties. The
plaintiff James A. Tucker brought this action against the County of Bucks, Pennsylvania,
and certain other defendants associated with the county. We refer collectively to the
defendants as Bucks County. The case arose out of an underlying child custody action
Tucker brought in the Court of Common Pleas of Bucks County against his wife in which
Tucker sought custody of their three minor children. In the course of proceedings in the
common pleas court a master recommended that the parents obtain a professional custody
evaluation. As it happened the Tuckers were indigent for purposes of obtaining the
evaluation but they each qualified for a county subsidy to help pay for its cost. An
organization called the Court Conciliation and Evaluation Service (“CCES”) was to
perform the evaluation as it regularly performed that service for the courts in Bucks
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County and the court denied Tucker’s application to obtain a private evaluation with the
public subsidy.
Tucker did not appeal from the order denying his application to seek a private
evaluation but rather was willing to have CCES make the evaluation. But he objected to
a requirement that he waive the right to call CCES professionals as witnesses in the
custody proceeding as a condition for the evaluation. The court, however, overruled his
objection and required him to sign a consent and waiver by which he consented to CCES
making the evaluation and “waive[d] the right to subpoena the person who prepares the
report to a deposition or testify in court.” App. at 154. Tucker signed the consent and
waiver over objection and CCES made the evaluation. Subsequently, Tucker and his wife
settled the custody case which has been terminated, though perhaps not formally
dismissed. Consequently, Tucker had no occasion to attempt to call a CCES professional
as a witness.
As the state proceedings were going forward, and before the Tuckers settled their
custody case, Tucker brought this 42 U.S.C. § 1983 district court action challenging the
Bucks County requirement for the waiver of examination rights on Fourteenth
Amendment due process grounds. But when the Tuckers settled the state case, Bucks
County moved to dismiss the section 1983 action on the grounds that the case was moot.
The district court granted the motion and this appeal followed. We have jurisdiction
under 28 U.S.C. § 1291 and exercise plenary review as the question of whether a case is
moot is resolved as a matter of law. See United States v. Sczubelek, 402 F.3d 175, 178
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(3d Cir. 2005); Artway v. Attorney General, 81 F.3d 1235, 1245 (3d Cir. 1996).
The district court said it all when it wrote that “[t]his case is moot because the
plaintiff’s custody action has been resolved.” Tucker, 2006 WL 1071571, at *2. It is true
that Tucker brought the action as a class action, but the district court held that the class
action character of the action did not matter because Tucker never moved for class
certification. Tucker does not challenge that determination either as a matter of fact or of
law and, in any event, it was correct. Lusardi v. Xerox Corp.,
975 F.2d 964, 974 n.16 (3d
Cir. 1992).
As the district court noted, federal courts have jurisdiction only in actual “cases
and controversies.” See Sczubelek, 402 F.3d at 178. Here, whatever Tucker may think,
the controversy in a legal sense is over and the case is moot. While he contends “that his
claims are not moot because defendants’ policy and practice is continuing and is likely to
impact him in the future,” appellant’s br. at 4, that assertion is a complete speculation.
Clearly, the issue cannot arise again unless there is a confluence of several circumstances:
(1) there is further custody litigation between the Tuckers; (2) the litigation is in Bucks
County; (3) the Bucks County custody evaluation policy remains in effect; and (4) Tucker
is indigent at the time of the hypothetical litigation. No one possibly can know that those
circumstances will come together.
We also point out that if there is renewed custody litigation between the Tuckers
and all the contingencies that we have mentioned are met, Tucker may make an objection
to being required to sign the waiver at that time. But in the meantime, there is no case or
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controversy and this case is moot. The district court correctly dismissed it.
For the foregoing reasons the order of dismissal entered March 7, 2006, will be
affirmed.
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