366 F.3d 238 | 3rd Cir. | 2004
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
Patrick L. Meehan ROTH, Circuit Judge: United States Attorney United States Department Of Justice This appeal in a Bivens [1] 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. Egervary (Egervary), had taken Oscar James W. Gicking, Esquire (Argued) 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, 16 th Floor with the assistance of U.S. State Department officials, agreed to represent Philadelphia, PA 19103
Kovacs in a proceeding to regain custody Deborah R. Popky, Esquire of Oscar. Pursuant to the International Child Abduction Remedies Act (ICARA), Robert S. Tintner, Esquire Fox Rothschild 42 U.S.C. § 11601, et seq., Rooney 2000 Market Street, 10 th Floor presented a petition to a United States District Judge at an ex parte hearing. Philadelphia, PA 19103
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. Marshals in seizing and removing Oscar Gary L. Azorsky, Esquire (Argued) Casey Preston, Esquire from the United States without notice to Berger & Montague Egervary. It is now clear that minimal due process required notice and an opportunity 1622 Locust Street Philadelphia, PA 19103 to be heard. For that reason, the ex parte
order was unconstitutional insofar as it permitted Oscar’s removal from the Counsel for Appellee/Cross- Appellant United States without providing Egervary with either a pre- or post-deprivation hearing.
As a result of his son’s removal,
O P I N I O N
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, he agreed to represent Kovacs pro bono. [2] Adopting the terminology used by the During the course of this representation, District Court, we will refer to Rooney, Rooney was in regular contact with Burke, and Nallin collectively as the officials at the State Department and “Attorney Defendants,” and will identify routinely received assistance from them. Young and Schuler as the “Federal The assistance provided by the Federal Defendants.” 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 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.
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 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 b e r e m o v e d f r o m 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
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] Upon being transferred to the General following orders for immediate appeal Docket, the Federal Defendants’ petition pursuant to 28 U.S.C. § 1292(b): (1) the for permission to appeal (C.A. No. 02- January 17, 2002, Order denying the Federal Defendants’ motions to dismiss 8055) became C.A. No. 02-2066, Egervary’s petition for permission to and for summary judgment; (2) the appeal (C.A. No. 02-8006) became C.A. January 21, 2000, Order denying the
No. 02-2035, and the Attorney 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. 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 matters as filing of petitions [4] Because the merits of the underlying to the various clerical and custody dispute are not before us, we procedural activities which also need not address the complex lead to the order. In the residency issues we have discussed in ordinary case, the order is Delvoye v. Lee, 329 F.3d 330 (3d Cir. made after a hearing in 2003). 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 ‘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 subsequent deprivation of his rights. [5]
of a complaint and an 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 attention after the party’s brief has been Egervary also cites case law from other circuits to argue that, because each filed — or after oral argument but before decision — a party may promptly advise of the defendants allegedly participated in the circuit clerk by letter, with a copy to one way or another in making all other parties, setting forth the representations to the District Judge prior citations.” Because Egervary’s to the execution of the Order, all of the 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.
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 orders or warrants as a result of being [6] We note that the District Judge misled in some way as to the relevant testified during his deposition that he facts [7] – are inapplicable if, as here, the believes Rooney acted in good faith and judge fails in the primary judicial duty of did not purposely mislead him: identifying the legal principles and procedures which govern the dispute.
[Counsel]: Your Honor, was it your belief that M r. Rooney was acting in the 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 e n d a n t s v i o l a t e d of Appeals in Townes. There, the plaintiff T o w n e s ’ s c l e a r l y filed a § 1983 claim against New York e s t a b l i s h e d F o u r t h 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 c o u r t ’ s e x e r c i s e o f 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 o f f e n s e s u n d e r t h e s e p r e c i s e 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
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 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
NOTES
[1] Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971)
[7] The one exception to this statement is good faith belief that no 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.
