Egervary v. Young

Opinions of the United

2004 Decisions States Court of Appeals

for the Third Circuit

4-30-2004

Egervary v. Young

Precedential or Non-Precedential: Precedential

Docket No. 02-1284

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PRECEDENTIAL OSCAR W. EGERVARY

UNITED STATES COURT OF

APPEALS v.

FOR THE THIRD CIRCUIT

VIRGINIA YOUNG; JAMES

SCHULER;

Nos: 02-1284/2035/2066/2133 FREDERICK P. ROONEY, ESQUIRE;

_______________ JAMES J. BURKE, ESQUIRE;

JEFFREY C. NALLIN, ESQUIRE;

OSCAR W. EGERVARY JOHN DOES ONE-TEN

v.

Frederick P. Rooney, Esquire,

VIRGINIA YOUNG; JAMES James J. Burke, Esquire,

SCHULER; Appellants in No.

FREDERICK P. ROONEY, ESQUIRE; 02-2133

JAMES J. BURKE, ESQUIRE;

JEFFREY C. NALLIN, ESQUIRE;

JOHN DOES ONE-TEN _______________

Appeal from the United States District

Virginia Young, Court

James Schuler, for the Eastern District of Pennsylvania

Appellants in No. 02-1284 & 02-2066 (D.C. Civil Action Nos.96-cv-03039)

District Judge: Honorable Thomas N.

O’Neill, Jr.,

OSCAR W. EGERVARY,

Appellant in No. 02-2035

Argued on January 16, 2003

v.

Before: ROTH, FUENTES and

VIRGINIA YOUNG; JAMES ALDISERT, Circuit Judges

SCHULER;

FREDERICK P. ROONEY, ESQUIRE;

JAMES J. BURKE, ESQUIRE; (Opinion filed: April 30, 2004)

JEFFREY C. NALLIN, ESQUIRE;

JOHN DOES ONE-TEN Matthew M. Collette, Esquire (Argued)

Barbara L. Herwig, Esquire

Robert D. McCallum, Jr.,

Assistant Attorney General

1

Patrick L. Meehan ROTH, Circuit Judge:

United States Attorney

United States Department Of Justice This appeal in a Bivens1 action

Civil Division, Appellate Staff, Room arose out of an international child custody

9008 dispute. Aniko Kovacs, a citizen and

601 D. Street, N.W. resident of Hungary, wanted to regain

Washington, DC 20530 custody of her son, Oscar Jonathan

Egervary (Oscar). The father, Oscar W.

James W. Gicking, Esquire (Argued) Egervary (Egervary), had taken Oscar

Richard A. Kraemer, Esquire from Hungary to Pennsylvania without

Marshall, Dennehey & Warner, Coleman Kovacs’ permission. Frederick Rooney, a

& Goggin private attorney acting at the request and

1845 Walnut Street, 16th Floor with the assistance of U.S. State

Philadelphia, PA 19103 Department officials, agreed to represent

Kovacs in a proceeding to regain custody

Deborah R. Popky, Esquire of Oscar. Pursuant to the International

Robert S. Tintner, Esquire Child Abduction Remedies Act (ICARA),

Fox Rothschild 42 U.S.C. § 11601, et seq., Rooney

2000 Market Street, 10th Floor presented a petition to a United States

Philadelphia, PA 19103 District Judge at an ex parte hearing.

During this hearing, Rooney argued

Counsel for Appellants/Cross successfully for the issuance of an order

Appellees permitting him to enlist the aid of local

law enforcement officials and U.S.

Gary L. Azorsky, Esquire (Argued) Marshals in seizing and removing Oscar

Casey Preston, Esquire from the United States without notice to

Berger & Montague Egervary. It is now clear that minimal due

1622 Locust Street process required notice and an opportunity

Philadelphia, PA 19103 to be heard. For that reason, the ex parte

order was unconstitutional insofar as it

Counsel for Appellee/Cross- permitted Oscar’s removal from the

Appellant United States without providing Egervary

with either a pre- or post-deprivation

hearing.

As a result of his son’s removal,

OPINION

1

Bivens v. Six Unknown Named

Agents of the Federal Bureau of

Narcotics, 403 U.S. 388 (1971)

2

Oscar W. Egervary brought a Bivens the United States. They were married in

action to recover monetary damages from Hungary in 1991 and established their

Rooney as well as from his associate, residence in New Jersey. Their son,

James Burke, his local counsel, Jeffrey Oscar, was born in New Jersey in July

Nallin, and the two State Department 1992.

officials, Virginia Young and James

In February 1993, Kovacs took

Schuler, who assisted Rooney in this

Oscar with her on a trip to Hungary.

matter.2 The District Court granted

Although they were scheduled to return to

summary judgment to Nallin but found

the United States in early April, Kovacs

triable issues as to the other four

twice delayed the return trip and then

defendants. We granted permission to

informed Egervary that neither she nor

appeal. Because the order entered by the

Oscar would return at all. After attempts

District Judge in the underlying ICARA

to reconcile the relationship had failed,

proceeding was a superseding cause of

Kovacs sent a “farewell” letter to Egervary

Egervary’s injury, we conclude that

in September 1993, stating that she and

Egervary is unable to establish in this

Oscar were moving to an undisclosed

Bivens suit that the actions of the

location within Hungary. In December of

defendants in the custody proceeding

that year, Egervary went to Budapest and

proximately caused his harm. Thus, we

located Kovacs and Oscar. He took Oscar

will reverse the District Court’s denial of

from Kovacs, against her will, and

summary judgment to Rooney, Burke,

returned with him to Monroe County,

Young, and Schuler, and we will affirm on

Pennsylvania.

alternative grounds its grant of summary

judgment to Nallin. Kovacs instituted legal proceedings

in Hungary seeking Oscar’s return. As a

I. Facts

result, the Hungarian government

Plaintiff Oscar W. Egervary is a contacted the U.S. State Department in

native of Hungary, who emigrated to the order to obtain its assistance. On or about

United States in 1980 and became a May 10, 1994, Young, a member of the

citizen in 1987. He became romantically State Department’s Bureau of Consular

involved with fellow Hungarian Aniko Affairs, asked Rooney to file an ICARA

Kovacs in 1990 while she was studying in petition on behalf of Kovacs. By his own

admission, Rooney “was not extremely

well-versed on the Hague.” Nevertheless,

2

Adopting the terminology used by the

he agreed to represent Kovacs pro bono.

District Court, we will refer to Rooney,

During the course of this representation,

Burke, and Nallin collectively as the

Rooney was in regular contact with

“Attorney Defendants,” and will identify

officials at the State Department and

Young and Schuler as the “Federal

routinely received assistance from them.

Defendants.”

The assistance provided by the Federal

3

Defendants included, inter alia, providing States.

the Attorney Defendants with (1) copies of

No court reporter was present

Hungarian governmental and court

during the ex parte proceedings so that no

documents related to the case, as well as

transcript exists. However, both Rooney

model ICARA pleadings published by the

and the judge were deposed in connection

American Bar Association; (2)

with the Bivens action, and both discussed

information regarding Oscar’s location;

their recollection of what transpired.

and (3) advice on the proper preparation

Although Rooney and the judge agree on

of the ICARA pleadings. Rooney did not

most points, some discrepancies exist.

have any direct contact with his client,

Kovacs. Specifically, both generally agree

that the judge expressed reservations as to

The model pleadings Rooney

whether he had the authority to grant the

received from the Federal Defendants

fourth option (i.e., whether he could order

contained three separate proposed orders,

that the child be removed from the United

all of which provided for an ex parte

States without providing at least a post-

proceeding prior to the seizure of the

deprivation hearing for the father). In

child, followed by a post-deprivation

view of this doubt, Rooney then called the

hearing at which the alleged parent-

State Department from the judge’s

kidnapper could be heard. Although

chambers during a break in the

Rooney used the model pleadings as the

proceedings. Rooney spoke to Schuler

basis for his ICARA petition, he added a

and asked him whether the judge had the

fourth option that would permit law

authority to issue such an order.

enforcement officials to take Oscar “into

According to Rooney’s deposition

protective custody . . . and deliver him to

testimony, Schuler said something to the

[Rooney] for immediate return to the

effect, “He’s the judge. He can do

physical custody of [Kovacs].” Thus, the

whatever he feels is appropriate.” Based

fourth option did not provide for a post-

on this representation from Schuler,

deprivation hearing.

Rooney apparently told the judge that

The Attorney Defendants filed the Rooney believed the judge did in fact have

ICARA petition in the United States the legal authority to enter such an order.

District Court for the Middle District of

The discrepancies between

Pennsylvania on May 13, 1994. The

Rooney’s and the judge’s accounts do not

petition contained all four proposed

involve any factual aspect of the custody

orders. In presenting the petition to the

matter but only the legal limits of the

District Court during the ex parte

judge’s ability to act on the undisputed

proceeding, Rooney argued for the fourth

facts. The discrepancies center around the

option, the one he had drafted himself and

discussion of the ICARA pleadings and

the only one that did not call for a hearing

the representations made by Rooney

prior to Oscar’s removal from the United

4

regarding his relationship and contacts department that purportedly

with the State Department. With respect has expertise in that area.

to the ICARA pleadings, Rooney states But I did have qualms about

that he and the judge discussed all four it. I mean, I just didn’t sit

alternatives and that the judge mentioned down and sign it. I said I

that it was Friday and it might be difficult want you to get an

to contact anyone from child protective assurance that this is the

services to take custody of Oscar. Rooney appropriate thing to do.

also states that he told the judge that, if the

fourth option was granted, Rooney would

personally take Oscar to Hungary. Despite these concerns, the judge

However, the District Court in this Bivens eventually entered an order selecting the

action has summarized the judge’s Fourth Option, directing law enforcement

testimony as follows: “Rooney: 1) officers to “take into protective custody

portrayed himself as representing the State OSCAR JONATHAN EGERVARY and

Department; 2) stated that he was seeking deliver him to Petitioner’s agent for

to have the Judge enforce a Hungarian immediate return to the physical custody

court order; 3) had already made of Petitioner” (hereinafter “the Order”).

arrangements to return the child to

Once the Order had been signed by

Hungary that day; and 4) never suggested

the judge, Rooney and Burke sought out

any remedy that would require [the] Judge

U.S. Marshals to execute it. Upon

. . . to conduct a hearing on the matter.”

arriving at the District Marshal’s office,

In addition, the judge has stated Rooney placed a call to the State

that, although the other three options (all Department to notify them of what had

of which provided for an ex parte transpired. Rooney and Burke then

proceeding before the seizure of the child followed the Deputy Marshals to

and then a post-deprivation hearing) were Egervary’s residence but did not enter the

contained in the papers, they were not home with them. When Oscar had been

discussed by Rooney, who argued only for removed from the residence, he was

the fourth option. The judge also stated placed in Rooney’s car and driven to

that he selected the fourth option based on Newark International Airport. According

what he believed to be the State to Burke’s testimony, Rooney was in

Department’s representation, made constant contact with the State Department

through Rooney, that he had the legal both during the trip to the airport and

authority to do so: throughout the rest of the day.

And as I say – maybe it’s During the trip to the airport,

too much trust, but you’re Rooney also contacted Lori Mannicci, an

inclined to rely on the associate in his office, and asked her to

expertise of a federal arrange for Oscar’s return to Hungary.

5

This not only involved making the The Federal Defendants filed a

necessary travel arrangements, but also motion to dismiss and to stay discovery.

obtaining permission from the State On January 7, 1997, the District Court

Department to remove Oscar from the stayed discovery but declined to rule on

United States without a passport. the motion to dismiss because of concerns

According to Mannicci’s testimony, she as to whether venue was appropriate in the

does not remember either the name of the Eastern District of Pennsylvania. The

person with whom she spoke or the court therefore granted Egervary leave to

content of their conversation. However, file a motion to transfer the case to the

she does have handwritten notes from the Middle District of Pennsylvania pursuant

conversation that include Young’s home to 28 U.S.C. § 1406(a) within 30 days,

phone number. Once the passport waiver noting that the court would grant the

was obtained, Rooney flew with Oscar to Federal Defendants’ motion to dismiss if

Frankfurt, Germany. Kovacs met them Egervary failed do so.

there, and Rooney turned over custody of

Egervary timely moved to transfer.

Oscar to her at that time.

On April 28, 1997, the case was

Following Oscar’s removal from transferred to the Middle District and

the United States, Egervary filed a motion assigned to the judge who had issued the

for reconsideration of the Order. Egervary Order in the ICARA matter. However, it

subsequently withdrew this motion and soon became clear that that judge might be

filed the Bivens action. called as witness. Thus, all of the judges

in the Middle District recused themselves,

II. Procedural History

and a District Judge from the District of

Egervary filed his original Delaware was designated to hear the case.

complaint in the United States District

Court for Eastern District of Pennsylvania

The Federal Defendants again

on April 17, 1996. Pursuant to Bivens, he

moved to dismiss the claims asserted

seeks compensatory and punitive

against them, and this motion was granted

damages, together with interest, attorney’s

by the new judge on August 17, 1998.

fees, and costs from defendants Young,

Following the dismissal of these

Schuler, Rooney, Burke, Nallin, and John

defendants, Egervary filed an unopposed

Does One through Ten (the John Does are

motion to have the case transferred back to

alleged to be agents or representatives of

the Eastern District of Pennsylvania

the State Department). The complaint

pursuant to 28 U.S.C. § 1404. This

contained both (1) a substantive Bivens

motion was granted and a new District

claim alleging that the defendants violated

Judge was assigned to the case.

Egervary’s Fifth Amendment Due Process

rights by taking custody of his son without Once back in the Eastern District of

a hearing, and (2) a conspiracy count. Pennsylvania, the Attorney Defendants

6

moved for summary judgment. They by Egervary. The court further held that,

asserted that there was no violation of pursuant to Jordan, Rooney and Burke

Egervary’s due process rights and that, could assert a good faith defense to the

even if such a violation had occurred, his claims asserted by Egervary. Finally, the

Bivens claim against them failed on court concluded that the issue of good

grounds of waiver, collateral attack, lack faith presented a jury question so that the

of damages, and immunity. issue of liability could not be resolved at

the summary judgment stage.

The District Court denied the

motion on January 21, 2000, concluding Discovery continued and Rooney

that minimal due process required that and Burke were both deposed, with

Egervary be given either a pre- or post- Rooney’s testimony revealing a number of

deprivation hearing. In the order facts not previously known to either

accompanying the January 21 Opinion, the Egervary or the court. Specifically,

court gave the Attorney Defendants Rooney testified that:

twenty days to submit briefs explaining

1) defendant Young asked

why the court should not enter summary

Rooney to represent Kovacs

judgment in favor of Egervary with

and sent him Hungarian

respect to the issue of liability. In reply,

government documents

the Attorney Defendants asserted that they

regarding the alleged

were not acting as federal agents and, in

abduction and model

the alternative, that their defense of good

ICARA pleadings; 2) while

faith precluded summary judgment.

he was preparing the

Relying upon our decision in I C A R A p e t i t io n h e

Jordan v. Fox, Rothschild, O’Brien & consulted with the State

Frankel, 20 F.3d 1250 (3d Cir. 1994), the Department “a bunch of

District Court’s August 15, 2000, opinion times”; 3) someone from the

focused on the Attorney Defendants’ State Department had called

participation in the execution of the Order. [the] Judge [’s] . . . office

The court concluded that Nallin was not that morning to inform the

acting as a federal agent because he did Court that a petition was

not participate in the execution of the going to be filed; 4) he

Order. However, because Rooney and spoke with Schuler while he

Burke did participate in the Order’s was in [the] Judge[‘s] . . .

execution, the District Court ruled that chambers in order to

there was sufficient evidence for a jury to confirm that the child could

find that they were acting as agents of the be removed from

federal government during th e Egervary’s custody and

commission of the acts which were at the returned to Hungary without

heart of the due process violation suffered a hearing; and 5) the State

7

Department arranged for a Attorney Defendants’ motions for

waiver of the child’s summary judgment; (3) the August 15,

passport so that he could be 2000, Order granting summary judgment

removed immediately from as to Nallin and denying Egervary’s

the country. motion for summary judgment with

respect to the issue of liability; (4) the

March 6, 2001, Order granting Egervary

Based on this new evidence, leave to file an amended complaint

Egervary moved for leave to amend his reasserting his claims against the Federal

complaint to again include the Federal Defendants; and (5) the March 23, 2001,

Defendants, asserting that there was no Order denying the Federal Defendants’

longer any basis for their dismissal from motion for reconsideration of the March 6,

the case. The District Court granted this 2001, Order.

motion on March 6, 2001.

On January 25, 2002, the Federal

Egervary filed his amended Defendants appealed the District Court’s

complaint on March 23, 2001. The January 17, 2002, Order denying their

Federal Defendants again moved to motions to dismiss and for summary

dismiss and, prior to receiving a ruling on judgment with respect to the issue of

this motion, also moved for summary qualified immunity. Subsequently, on

judgment based on their lack of personal January 28, they filed a petition for

involvement in the actions giving rise to permission to present additional issues on

Egervary’s claim. appeal pursuant to 28 U.S.C. § 1292(b).

Egervary filed a similar petition the same

The District Court’s September 6,

day, and the Attorney Defendants filed a

2001, opinion rejected the Federal

petition for permission to appeal three

Defendants’ arguments and denied their

days later. On March 6, 2002, the Clerk’s

motion for summary judgment. A

Office consolidated the three petitions for

subsequent order issued on January 17,

permission to appeal and submitted them

2002, denied the Federal Defendants’

for our review. On April 5, 2002, we

motions to dismiss and for summary

granted the petitions and each appeal was

judgment for the reasons stated in the

then transferred to the General Docket.3

September 6, 2001, Opinion

The District Court then certified the

3

following orders for immediate appeal Upon being transferred to the General

pursuant to 28 U.S.C. § 1292(b): (1) the Docket, the Federal Defendants’ petition

January 17, 2002, Order denying the for permission to appeal (C.A. No. 02-

Federal Defendants’ motions to dismiss 8055) became C.A. No. 02-2066,

and for summary judgment; (2) the Egervary’s petition for permission to

January 21, 2000, Order denying the appeal (C.A. No. 02-8006) became C.A.

No. 02-2035, and the Attorney

8

These three appeals were then includes the threshold question of whether

consolidated and submitted to us for Egervary has established a prima facie

decision on the merits. case under Bivens.

III. Jurisdiction IV. Standard of Review

These consolidated appeals involve Where, as here, “we have

a cause of action brought to remedy jurisdiction to review an order rejecting

alleged constitutional violations pursuant qualified immunity at the summary

to the Supreme Court’s decision in judgment stage, our review of the order is

Bivens. As such, the District Court plenary.” Eddy v. Virgin Islands Water &

exercised subject matter jurisdiction over Power Auth., 256 F.3d 204, 208 (3d Cir.

this case pursuant to 28 U.S.C. § 1331. 2001). We similarly exercise plenary

We have jurisdiction over the Federal review over all other issues decided on

Defendants’ appeal of the District Court’s summary judgment. Chisolm v.

decision regarding qualified immunity McManimon, 275 F.3d 315, 321 (3d Cir.

pursuant to 28 U.S.C. § 1291. Our 2001). In so doing, we apply the same test

jurisdiction over the remainder of the applied by the District Court. Id. Thus,

issues certified for appeal is premised on “[s]ummary judgment is appropriate ‘if

28 U.S.C. § 1292(b). the pleadings, depositions, answers to

interrogatories, and admissions on file,

“As the text of § 1292(b) indicates,

together with the affidavits, if any, show

appellate jurisdiction applies to the order

that there is no genuine issue as to any

certified to the court of appeals, and is not

material fact and that the moving party is

tied to the particular question formulated

entitled to judgment as a matter of law.’”

by the district court.” Pollice v. National

Id. (quoting Fed. R. Civ. P. 56(c)).

Tax Funding, L.P., 225 F.3d 379, 388 (3d

Cir. 2000) (citation and internal quotations

omitted). Thus, “[w]e may address ‘any V. Discussion

issue fairly included within the certified

Defendants raise a number of

order because it is the order that is

defenses to the claims asserted against

appealable, and not the controlling

them, including lack of venue, waiver,

question identified by the district court.’”

absolute immunity, qualified immunity,

Id. (quoting Abdullah v. American

and good faith. However, we need not

Airlines, Inc., 181 F.3d 363, 366 (3d Cir.

reach any of these issues, as we conclude

1999)); see also Ivy Club v. Edwards, 943

that Egervary, by failing to demonstrate

F.2d 270, 275 (3d Cir. 1991). This plainly

proximate cause with respect to any

defendant, has failed to establish an

Defendants’ petition for permission to

appeal (C.A. No. 02-8007) became C.A.

No. 02-2133.

9

essential element of his claim.4 bringing about. See Restatement (Second)

of Torts § 440-441 (1965).

We begin our analysis with the self-

evident principle that, because Bivens This concept has been recognized

actions are simply the federal counterpart in cases such as the one before us. Courts

to § 1983 claims brought against state have held that, under certain

officials, see Brown v. Philip Morris, Inc., circumstances, the actions of a judicial

250 F.3d 789, 800 (3d Cir. 2001), and officer may sever the chain of causation.

because tort law causation analysis serves For example in Hoffman v. Halden, 268

as the basis for determining causation in § F.2d 280 (9th Cir. 1959), overruled in part

1983 actions, see Hector v. Watt, 235 F.3d on other grounds, Cohen v. Norris, 300

154, 160 (3d Cir. 2001) (citing Hedges v. F.2d 24 (9th Cir. 1962), the plaintiff

Musco, 204 F.3d 109, 121 (3d Cir. 2000)), alleged that the defendants had violated

tort law causation must govern our his civil rights by wrongfully committing

analysis of this Bivens claim. Thus, as in him to a state mental institution. In

any tort case, Egervary must demonstrate examining the proximate cause issue, the

that defendants’ actions were the court held that it was the order of the

proximate cause of the harm he suffered. court, not the preliminary steps taken to

obtain it, that was the proximate cause of

the injury:

Traditionally, in tort law,

“proximate cause” has been defined as a In a Civil Rights conspiracy

person’s wrongful conduct which is a case, the injury and damage

substantial factor in bringing about harm must flow from the overt

to another. See Restatement (Second) of acts. Where the gravamen

Torts § 431 (1965). However, an of the injury complained of

intervening act of a third party, which is commitment to an

actively operates to produce harm after the institution by court order,

first person’s wrongful act has been this order of the court, right

committed, is a superseding cause which or wrong, is ordinarily the

prevents the first person from being liable proximate cause of the

for the harm which his antecedent injury. Various preliminary

wrongful act was a substantial factor in steps occur before the order

is made. These preliminary

steps may range from such

4

Because the merits of the underlying

matters as filing of petitions

custody dispute are not before us, we

to the various clerical and

also need not address the complex

procedural activities which

residency issues we have discussed in

lead to the order. In the

Delvoye v. Lee, 329 F.3d 330 (3d Cir.

ordinary case, the order is

2003).

made after a hearing in

10

court or after consideration F.3d at 155. The troopers asserted several

by the court of the defenses to these claims, including the

supporting documents and argument that the independent decisions

evidence. Therefore, the of the prosecutor and grand jury to indict

various preliminary steps the plaintiff “were superceding or

would not cause damage intervening causes that broke the causal

unless they could be said to connecti on between the Fourth

be the proximate cause of Amendment violation and Hector’s

the injury. In the usual subsequent expenses in mounting a legal

case, the order of the court defense.” Id. at 160.

would be the proximate

Although Judge Nygaard would

cause and the various

have reached the proximate cause issue in

preliminary steps would be

Hector, see id. at 161-65 (Nygaard, J.,

remote causes of any injury

concurring), the majority found it

from imprisonment or

unnecessary to do so in view of its

restraint under the court

resolution of the other arguments raised by

order.

the defendants, electing instead to leave a

more thorough analysis of our stance with

respect to the relevant proximate cause

268 F.2d at 296-97 (emphasis added).

question for another day. See id. at 161.

Over time, the law in this area has Because the threshold inquiry into

developed around the general principle proximate cause is outcome determinative

that the decision of an independent in this case, we now accept the invitation

intermediary “will only constitute an to delve deeper into this issue. In so

intervening cause if the decision is doing, we begin, as Judge Nygaard did in

genuinely free from deception or Hector, with the Fifth Circuit Court of

coercion.” Hector, 235 F.3d at 164 (citing Appeals’ decision in Hand v. Gary, 838

cases from the Second, Fifth, Seventh, F.2d 1420 (5th Cir. 1988).

Eleventh, and D.C. Circuits) (Nygaard, J.,

Hand involved allegations of

concurring).

malicious prosecution against a deputy

We had an opportunity to consider sheriff. The Fifth Circuit Court of

this issue, albeit in a somewhat different Appeals, rejecting the plaintiff’s claim,

context, in Hector. There, the plaintiff, held that “‘even an officer who acted with

following the suppression of evidence malice in procuring the warrant or the

seized by Pennsylvania state troopers and indictment will not be liable if the facts

the dismissal of charges against him, supporting the warrant or indictment are

brought a § 1983 action against the put before an impartial intermediary such

troopers based on their alleged violation of as a magistrate or grand jury, for that

his Fourth Amendment rights. See 235 intermediary’s ‘independent’ decision

11

‘breaks the causal chain’ and insulates the (1982). The First Circuit Court of

initiating party.’” Id. at 1427 (quoting Appeals reversed, holding that an officer

Smith v. Gonzales, 670 F.2d 522, 526 (5th who seeks an arrest warrant by submitting

Cir. 1982)). However, as the Ninth a complaint and affidavit is not entitled to

Circuit did in Hoffman, the Fifth Circuit in immunity unless the officer has an

Hand cautioned that, in order for the chain objectively reasonable basis for believing

of causation to be broken, the independent that the facts alleged in the affidavit are

intermediary must be presented with all of sufficient to establish probable cause.

the facts; “[a]ny misdirection . . . by Briggs v. Malley, 748 F.2d 715 (1 st Cir.1

omission or commission perpetuates the 1984). The Supreme Court granted

taint of the original official behavior.” Id. certiorari to review the First Circuit’s

at 1427-28. Applying this ruling to the a p p l i c a ti o n o f t h e “ o b j e c t i v e

facts presented in Hector, Judge Nygaard reasonableness” standard in the context of

concluded that the chain of causation had the entitlement to immunity. Malley, 475

been broken and that the officers should U.S. at 339. The causation issue was not

not be held liable for damages incurred included in the grant of certiorari. After

following the initial detention. See determining that a policeman is not

Hector, 235 F.3d at 165 (Nygaard, J., entitled to absolute immunity for causing

concurring). an arrest warrant to be issued, Id. at 341-

42, the Court then concluded that qualified

Egervary contends, however, that if

im mu ni ty, with it s “ o b j e c tiv e

we rule that the ex parte Order constituted

reasonableness” standard, was sufficient

a superseding cause, our decision would

protection for an officer applying for a

run counter to the Supreme Court’s

warrant. Id. at 343-44. At this point, the

decision in Malley v. Briggs, 475 U.S. 335

Court added a footnote, commenting in

(1986). Malley was a § 1983 action in

dictum that Malley had not pressed the

which plaintiffs claimed that a state

break in the causal chain argument, which

trooper, in applying for warrants to arrest

the Court found to be “inconsistent with

them, had violated their rights under the

our interpretation of § 1983,” adding:

Fourth and Fourteenth Amendments

because the complaint and supporting As we stated in Monroe v.

affidavit failed to establish probable cause. Pape, 365 U.S. 167, 187 . . .

The District Court directed a verdict for (1961), § 1983 “should be

the trooper because the act of the judge in read against the background

issuing the arrest warrants had broken the of tort liability that makes a

causal chain between the filing of the man responsible for the

complaint and the arrests and because the natural consequences of his

trooper was entitled to immunity under the actions.” Since the common

“objective reasonableness” standard of law recognized the causal

Harlow v. Fitzgerald, 457 U.S. 800 link between the submission

12

of a complaint and an subsequent deprivation of his rights.5

ensuing arrest, we read § These cited cases, however, are not

1983 as recognizing the inconsistent with the conclusion we reach

same causal link. above. The cited cases include Zahrey v.

Coffey, 221 F.3d 342, 353-54 (2d Cir.

2000) (holding that the chain of causation

Id. at 345 fn 7. This comment brings us was not broken where the prosecutor

around full circle to traditional tort allegedly fabricated evidence); Warner v.

concepts of independent, intervening Orange County Dep’t of Probation, 115

cause. To the extent that the common law F.3d 1068, 1072-73 (2d Cir. 1997)

recognized the causal link between a (concluding that the neutral, advisory role

complaint and the ensuing arrest, it was in played by probation officers prevented the

the situation where “misdirection” by chain of causation from being broken

omission or commission perpetuated the where the sentencing judge adopted a

original wrongful behavior. See, e.g., recommended sentence which violated a

Hand, 838 F.2d at 1428-29. If, however, criminal defendant’s constitutional rights);

there had been an independent exercise of Lanier v. Sallas, 777 F.2d 321, 324-25

judicial review, that judicial action was a (5th Cir. 1985) (holding that a judge’s

superseding cause that by its intervention decision to commit plaintiff to a mental

prevented the original actor from being health facility did not sever the chain of

liable for the harm. See Restatement of causation where that decision was based in

Torts (Second) § 440 (1965) ; Hoffman, part on a misrepresentation made by

268 F.2d at 296-97; Townes v. City of defendants).

New York, 176 F.3d 138, 147 (2d Cir.

1999). Thus, the cryptic reference to the

common law in Malley’s footnote 7 would 5

Egervary makes this argument in his

appear to preclude judicial action as a Rule 28(j) submission. Federal Rule of

superseding cause only in the situation in Appellate Procedure 28(j) states, in

which the information, submitted to the relevant part, that “[i]f pertinent and

judge, was deceptive. significant authorities come to a party’s

Egervary also cites case law from attention after the party’s brief has been

other circuits to argue that, because each filed — or after oral argument but before

of the defendants allegedly participated in decision — a party may promptly advise

one way or another in making the circuit clerk by letter, with a copy to

representations to the District Judge prior all other parties, setting forth the

to the execution of the Order, all of the citations.” Because Egervary’s

defendants should be held liable for the submission complies with the

requirements of this Rule, Rooney and

Burke’s motion to strike it will be

denied.

13

The purported misrepresentation also included the three constitutionally

here, however, is a legal one and not an valid forms of order in the petition they

inadequate or false representation of the presented. Moreover, it is axiomatic that,

factual basis upon which the legal ruling in any given case, the responsibility for

depended. In addition, although Rooney determining the governing law and

and the other defendants urged the District procedures lies with the judge. Indeed,

Judge to conclude that he had the legal this is a judge’s primary responsibility.

authority under ICARA to enter the Thus, the cases cited by Egervary – most

requested order on an ex parte basis,6 they of which involve instances in which

judicial officers applied the correct law

but nevertheless issued unconstitutional

6

We note that the District Judge

orders or warrants as a result of being

testified during his deposition that he

misled in some way as to the relevant

believes Rooney acted in good faith and

facts7 – are inapplicable if, as here, the

did not purposely mislead him:

judge fails in the primary judicial duty of

identifying the legal principles and

[Counsel]: Your Honor,

procedures which govern the dispute.

was it your belief that Mr.

Rooney was acting in the

7

good faith belief that no The one exception to this statement is

hearing was required in this the Second Circuit’s decision in Warner,

situation to enforce that where the court concluded that, “[g]iven

order? the neutral advisory role of the probation

officer toward the court, it [wa]s an

[Judge]: Yes. I wouldn’t entirely natural consequence for a judge

expect him to trick me or to adopt the [Probation Department’s]

lie to me, you know, I recommendations as to a therapy

mean, he’s responsible – he provider without making an independent

made a great impression, investigation of the qualifications and

he’s a responsible person. procedures of the recommended

provider. Such action by a judge is

[Counsel]: And you neither abnormal nor unforeseen.” 115

believe that he had a good F.3d at 1073 (citations and internal

faith belief in what he was quotations omitted). However, Warner is

telling you? readily distinguishable on this basis.

Although appearing in a partisan capacity

[Judge]: That would be my clearly does not relieve attorneys of their

conclusion, yes. ethical and professional obligations,

judges should “know[] that scrutiny is

Nealon Dep. at 67-68. warranted.” Id. at 1072.

14

The issue presented here of a That court should have

legally erroneous court ruling is analogous r e c o gn i z e d t h a t t h e

to that faced by the Second Circuit Court d e f endants violate d

of Appeals in Townes. There, the plaintiff Townes’s clearly

filed a § 1983 claim against New York established Fourth

City and several of its police officers after Amendment rights, and

having been convicted of weapons- and should have suppressed the

drug-related charges on the basis of evidence under the fruit of

evidence obtained in violation of the the poisonous tree doctrine,

Fourth Amendment. In analyzing the as the Appellate Division

proximate cause issue on appeal, the court later ruled. The state trial

concluded that, “as a matter of law, the court’s exercise of

unconstitutional seizure and search of independent judgment in

Townes’s person was not a proximate deciding not to suppress the

cause of his conviction because of (at evidence, though later ruled

least) one critical circumstance: the trial to be erroneous, broke the

court’s refusal to suppress the evidence, chain of causation for

which is an intervening and superseding purposes of § 1983 liability

cause of Townes’s conviction.” 176 F. 3d for the plaintiff’s conviction

at 146. Although it was clear to the court and incarceration.

that, “but for the defendants’ unreasonable

seizure and search, Townes’s handguns

and cocaine would have gone undetected Id. See also Duncan v. Nelson, 466 F.2d

(at least for the time being), and he would 939, 942 (7th Cir. 1972) (affirming the

not have been convicted of the precise District Court’s ruling that a plaintiff may

offenses under these precise not pursue a cause of action against police

circumstances,” it nevertheless concluded officers for unconstitutional conduct in

that “the trial court’s failure to suppress extracting his confession because the trial

the evidence concerning Townes’s own court’s failure to suppress the confession

criminal acts constituted a superseding amounted to a superseding cause of the

cause of Townes’s conviction and harm they suffered).

imprisonment.” Id. at 147. In so holding,

Thus, we see that the chain of

the court reasoned:

causation was broken in Townes when the

The state trial court, which trial court committed an error of law

alone had the power to unrelated to the conduct of the defendant

suppress the improperly police officers. We conclude that the

obtained evidence, had same general principle applies in this case.

control over the ultimate Simply stated, because minimal due

outcome of Townes’s case. process required providing Egervary with

15

an opportunity to be heard prior to Oscar’s because of the intervention of independent

removal from the United States, there is no judicial review, a superseding cause. We

set of facts under which the Order issued conclude that where, as here, the judicial

by the District Judge was proper. Indeed, officer is provided with the appropriate

because the judge failed to properly facts to adjudicate the proceeding but fails

ascertain the relevant law and procedures to properly apply the governing law and

prior to issuing the Order – a procedures, such error must be held to be

responsibility which was his and his alone a superseding cause, breaking the chain of

– defendants’ arguments on the form of causation for purposes of § 1983 and

order the judge should adopt are Bivens liability. Cf. Sheppard v. E.W.

insufficient to establish proximate Scripps Co., 421 F.2d 555, 558 (6th Cir.

causation. No statement or omission by 1970) (concluding that any deprivation of

defendants could possibly have made the a criminal defendant’s rights in a high

issuance of such an order appropriate. profile murder case was a result of the

Rather, the judge’s execution of an order manner in which the judge conducted the

permitting Oscar’s removal from the trial, thus breaking the chain of causation);

United States without either a pre- or post- Whittington v. Johnston, 201 F.2d 810,

deprivation hearing amounted to an error 811-12 (5th Cir. 1953) (holding that

of law for which the judge alone was attorney-defendant’s role in instituting

responsible. commitment proceedings was not the

proximate cause of the due process

To sum up, we adhere to the well-

violation suffered by the plaintiff where

settled principle that, in situations in

the presiding judge elected not to provide

which a judicial officer or other

the plaintiff with notice and an

independent intermediary applies the

opportunity to be heard).

correct governing law and procedures but

reaches an erroneous conclusion because Moreover, we reject Egervary’s

he or she is misled in some manner as to argument that our decision in Jordan

the relevant facts, the causal chain is not requires that liability be imposed on

broken and liability may be imposed upon defendants for their alleged participation

those involved in making the in the execution of the Order after it had

misrepresentations or omissions. See, e.g., been entered by the District Judge. Jordan

Hand, 838 F.2d at 1427-28; Hector, 235 involved the execution of a confessed

F.3d at 164 (citing cases) (Nygaard, J., judgment by private attorneys, without a

concurring). However, we draw a pre-deprivation hearing. See Jordan, 20

distinction between that situation and the F.3d at 1264-67. In the case before us,

facts as presented both here and in to the contrary, the defendants obtained an

Townes, where the actions of the order from an independent judicial officer.

defendants, while clearly a cause of the Jordan is clearly distinguishable. Here, as

plaintiff’s harm, do not create liability Egervary conceded at oral argument, none

16

of the post-hearing actions taken by that decision.

defendants violated the terms of the

VI. Conclusion

District Judge’s Order and none would

have been possible without the issuance For the reasons stated above, we

thereof. Thus, because the judge’s will reverse the District Court’s denial of

execution of the ex parte Order superseded summary judgment to Rooney, Burke,

any prior tortious conduct by defendants Young, and Schuler, and remand this case

and shrouded any subsequent actions with to the District Court with directions to

a cloak of legitimacy, we find no basis for enter summary judgment in their favor.

imposing Bivens liability on any of the The District Court’s grant of summary

defendants. judgment to Nallin will be affirmed on the

alternative grounds discussed above.

This is not to say that we condone

Rooney and Burke’s motion to strike

behavior in which an attorney urges the

Egervary’s Rule 28(j) submission will be

court to make an erroneous decision or

denied.

fails to properly investigate the facts or

governing law before presenting them to

the court. However, such actions or

omissions would neither excuse judges

from their responsibility to correctly

ascertain the relevant law and procedures

nor would they create civil liability on the

part of others for errors of law committed

by judges.

Finally, we note that neither the

District Judge’s error in granting the Order

nor the defendants’ actions in seeking and

executing it left Egervary without a

remedy in the underlying case. Egervary

initially filed a motion for reconsideration

of the ex parte Order. He could have

pursued this motion, and, if it were denied,

appealed the ruling. A reversal by this

Court then would have permitted Egervary

to enlist the aid of the State Department in

obtaining Oscar’s return. He instead

chose to withdraw his motion for

reconsideration and pursue the Bivens

claim. While it was clearly his right to do

so, he is now left with the consequences of

17