                                                                                                                           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Precedential or Non-Precedential: Precedential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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"Egervary v. Young" (2004). 2004 Decisions. Paper 733.
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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
