                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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




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Recommended Citation
"Tucker v. County of Bucks" (2007). 2007 Decisions. Paper 1425.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1425


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                                                              NOT PRECEDENTIAL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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