Filed: Apr. 30, 2004
Latest Update: Mar. 02, 2020
Summary: 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of the United 2004 Decisions States Court of Appeals for the Third Circuit 4-30-2004 Egervary v. Young Precedential or Non-Precedential: Precedential Docket No. 02-1284 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Egervary v. Young" (2004). 2004 Decisions. Paper 733. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/733 This decision is brought to you for free and open access by the Opinions of the United St
Summary: 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of the United 2004 Decisions States Court of Appeals for the Third Circuit 4-30-2004 Egervary v. Young Precedential or Non-Precedential: Precedential Docket No. 02-1284 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Egervary v. Young" (2004). 2004 Decisions. Paper 733. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/733 This decision is brought to you for free and open access by the Opinions of the United Sta..
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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Precedential or Non-Precedential: Precedential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
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Egervary v. Young" (2004). 2004 Decisions. Paper 733.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/733
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
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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
