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January 21, 2000


The opinion of the court was delivered by: O'neill, District Judge.



Defendants' motion for summary judgment raises questions of first impression involving the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act ("ICARA"). The Court must decide whether removing an allegedly-kidnaped child from his father's custody and returning the child to his mother in a foreign country without notice and opportunity to be heard gives rise to a due process claim under Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). If so, the Court must decide whether the claim survives various defenses, Including waiver and immunity. For the reasons stated below, defendants' motion for summary judgment will be DENIED and defendants will be ORDERED to submit further briefing as to whether summary judgment should be entered against them on the question of liability.


A. Mr. Egervary's Marriage to Ms. Kovacs and Oscar's Alleged Abduction*fn1

Oscar Egervary ("plaintiff" or "Mr. Egervary") was born in 1955 in Hungary, where he suffered political oppression at the hands of the then-communist government because his father was a church official. See Egervary Aff. ¶¶ 1-2. In 1980, he emigrated to the United States as a political refugee. Id. He became a citizen of the United States in 1987. Id. ¶ 3.

In 1990, Mr. Egervary became romantically involved with Aniko Kovacs ("Ms. Kovacs"), a Hungarian national who came to the United States to study music. Id. ¶ 4. They briefly returned to Hungary in 1991 to be wed by Mr. Egervary's father. Id. Thereafter, they established their martial residence in Hackensack, New Jersey. Id. ¶ 5. Their son, Oscar Jonathan Egervary ("Oscar"), was born on Independence Day, July 4, 1992. Id. ¶ 6.

In February 1993, Ms. Kovacs, a concert violinist, traveled to Hungary with Oscar to perform in a concert to be held in Budapest that March. Id. ¶ 7. They were scheduled to return to the United States on April 6, 1993, and Mr. Egervary had purchased a ticket to fly to Hungary and escort them back to the United States. Egervary Supplemental Aff. ¶ 2. A few days before, however, Ms. Kovacs called Mr. Egervary and said she needed to stay until the beginning of May to perform in another concert. Id. Once again, shortly before she and Oscar were to return in May, Ms. Kovacs called Mr. Egervary and said that she would be staying in Hungary because she had an opportunity to take a teaching position in Budapest until the end of the year. Id. Shortly thereafter, she informed Mr. Egervary that she would not return to the United States and would not return Oscar to this country. Id.

In June and July of that year, Mr. Egervary traveled to Hungary in an attempt to reconcile with his wife and bring Oscar home. Id. In July, Ms. Kovacs returned to the United States with Mr. Egervary for a short time, but she insisted on leaving Oscar in Hungary with her parents. Id.

In August, Mr. Egervary returned to Hungary and stayed there for three months in an another attempt to reconcile with his wife. Id. During that stay, Mr. Egervary took a job teaching English in order to support himself. Id. He worked there from approximately August to November of 1993. Id. He moved some of his personal belongings from the United States, but he did not plan on establishing residence there and did not register with the Hungarian government as a resident. Id.

In September, Ms. Kovacs took Oscar to an undisclosed location within Hungary in an apparent attempt to hide the child from his father. Egervary Aff. ¶ 8. At that time, she left Mr. Egervary a letter that, in part, stated: "I'd like to notify you in this farewell letter that I've moved out from you, together with Ossika [Oscar] . . . I moved to a location unknown to others deliberately and I didn't move to my parents on purpose." Egervary Supplemental Aff. ¶ 3. Mr. Egervary searched for his son for approximately three months. Id. During that time, he consulted with the American Embassy in Budapest and was told that if he could find Oscar he was free to take him back to the United States. Id.

On December 18, 1993, Mr. Egervary found Ms. Kovacs and Oscar leaving her parents' apartment house in Budapest. Id. According to Mr. Egervary, Oscar's clothing was "dirty and ragged" and he appeared undernourished. Egervary Aff. ¶ 9. Mr. Egervary took Oscar from Ms. Kovacs and left Hungary with him the next day. Id. Upon their return to the United States, Mr. Egervary and Oscar set up residence in Monroe County, Pennsylvania. Id.

On May 13, 1994, members of the Pennsylvania State Police and the U.S. Marshals arrived at Mr. Egervary's home with an Order signed by the Honorable William J. Nealon of the United States District Court for the Middle District of Pennsylvania. Id. ¶ 10. Pursuant to the Order, Oscar was forcibly removed from Mr. Egervary's custody and delivered to defendant Frederick P. Rooney, Esq. See Complaint ¶ 15; Mem. of Defendants Frederick P. Rooney, Esq. and James C. Burke, Esq. at ¶ ("Rooney Mem."); Mem. of Defendant Jeffrey C. Nallin, Esq. at 3 ("Nallin Mem."). Defendant Rooney then took Oscar to the airport, flew him to Europe and delivered him to Ms. Kovacs. Id. All parties concede that Mr. Egervary had no notice or opportunity to be heard in the proceedings that led to the May 13th Order.

B. The Hague Convention/ICARA Proceedings

The Hague Convention is a multilateral international treaty on parental kidnaping adopted by the United States and other nations in 1980. The goal of the Convention is to "protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence." See Hague Convention, Preamble. The Convention reflects "a universal concern about the harm done to children by parental kidnaping and a strong desire among the Contracting States to implement an effective deterrent to such behavior." Feder v. Evans-Feder, 63 F.3d 217, 221 (3d Cir. 1995). The Convention is "designed to restore the `factual' status quo which is unilaterally altered when a parent abducts a child." Id. The Hague Convention has been implemented by the International Child Abduction Remedies Act, 42 U.S.C. § 11601 et seq. ICARA vests state and district courts with concurrent jurisdiction over claims arising under the Convention and empowers those courts to order the return of kidnaped children. See 42 U.S.C. § 11603. An ICARA hearing is not a custody hearing. See Blondin v. Dubois, 189 F.3d 240, 243 (2d Cir. 1999) (under ICARA, a district court has "the authority to determine the merits of an abduction claim, but not the merits of the underlying custody claim"), quoting Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir. 1993); Hague Convention, Article 19 ("A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue."). Rather, an ICARA proceeding merely determines which nation should hear the underlying custody claim. Blondin, 189 F.3d at 246.

An ICARA petitioner bears the burden of proving by a preponderance of the evidence that the child in question has been wrongfully removed (or retained) from the nation of his or her "habitual residence" immediately before the removal. See 42 U.S.C. § 11603(e)(1)(A); Hague Convention, Articles 3 and 4. If the petitioner establishes that the removal was wrongful, the child must be returned unless the respondent can establish one of four different defenses: 1) the ICARA proceedings were not commenced within one year of the child's abduction; 2) the petitioner was not actually exercising custody rights at the time of the removal; 3) there is a grave risk that return would expose the child to "physical or psychological harm or otherwise place the child in an intolerable situation"; or 4) return of the child "would not be permitted by the fundamental principles . . . relating to the protection of human rights and fundamental freedoms." Id.; Hague Convention, Articles 12, 13 and 20. The first two defenses can be established by a preponderance of the evidence; the last two must be established by clear and convincing evidence. Id.; 42 U.S.C. § 11603(e)(2).

ICARA also provides that notice "be given in accordance with the applicable law governing notice in interstate child custody proceedings." 42 U.S.C. § 11603(c). However, because there is an inherent risk of flight during the pendency of a petition, courts "may take or cause to be taken measures under Federal or State law, as appropriate, to protect the well-being of the child involved or to prevent the child's further removal or concealment before the final disposition of the petition." See 42 U.S.C. § 11604(a) (emphasis added).

Sometime after Oscar was taken from his custody, Mr. Egervary learned that on that same day defendants (all attorneys) had filed an ICARA petition on behalf of his estranged wife. The petition alleged that Mr. Egervary's removal of Oscar from Hungary in December 1993 was a "wrongful removal" within the meaning of the Convention. See ICARA Petition of Aniko Kovacs dated May 13, 1994 at 2. It further requested that Oscar be "returned to the Petitioner [Ms. Kovacs] or to Petitioner's agent, Federick P. Rooney, Esquire, who will temporarily care for the child until the child is turned over, through agent, Frederick P. Rooney, Esquire, to the custody of the Petitioner." Id. at 3. However, the events surrounding consideration of the petition are in dispute.*fn2

According to the defendants, they presented Judge Nealon with "several alternatives, including holding a hearing." Rooney Mem. at 6. Defendants further claim that Judge Nealon chose to forego a hearing and ordered the immediate seizure and return of Oscar to Ms. Kovacs because Judge Nealon feared Mr. Egervary would go into hiding if he had notice. Id.

Plaintiff, on the other hand, claims that defendant Rooney told Judge Nealon that the defendants "represented the State Department, that no notice to Mr. Egervary was required, that the State Department `does this all the time,' and that all arrangements had been made to take plaintiff's son to Hungary that afternoon as soon as Judge Nealon sign[ed] the order permitting them to move forward."*fn3 Plaintiff s Mem. at 11.

Regardless of which version is accurate, the petition was granted, and Oscar was returned to Hungary that same day without any notice or opportunity to be heard having been afforded to Mr. Egervary.

C. The Motion for Reconsideration

On May 27, 1994, Mr. Egervary filed a motion for reconsideration of the May 13th Order. See Docket for In re Oscar Jonathan Egervary, No. 94-707, M.D. Pa. 1994. Oral arguments on the motion were heard on July 25, 1994. Id. By December, the motion had been fully briefed, but had not been decided.

On December 19, 1994, plaintiff's counsel responded to an inquiry regarding the status of the motion and the then-pending custody proceedings in Hungary. See Letter from Gary L. Azorsky, Esq. to Judge Nealon dated December 19, 1994 at 1. Plaintiff's counsel first acknowledged that the custody proceedings might moot the motion for reconsideration. Id. Plaintiff's counsel then presented Judge Nealon with two options:

I recommend, and respectfully request, that Your Honor place this action in the civil suspense docket until such time as the parties can better ascertain whether the Hungarian action is likely to be resolved in a timely fashion. If the Hungarian action continues to drag on without a discernable endpoint after several months, then I will contact Your Honor and request that this matter be returned to the active docket so that we may proceed with a hearing.
In the alternative, since the issues regarding the propriety of Mrs. Kovacs' initial petition have now been fully briefed, I dutifully and respectfully invite Your Honor to grant Mr. Egervary's motion for reconsideration and order the immediate return of his child.

Id. at 2.

In response to that letter, Judge Nealon entered the following Order a few days later:

ORDER by Judge William J. Nealon; the Court having been previously advised that the above action cannot proceed to trial and disposition because of the following reason: Matter pending resolution in Hungarian courts; IT IS ORDERED that the Clerk of Court mark this action closed for statistical purposes; and IT IS FURTHER ORDERED that the Court shall retain jurisdiction; and that the case be restored to the trial docket when the action is in a status so that it may proceed to final disposition; this Order shall not prejudice the rights of the parties to this litigation.

See Order by Judge Nealon dated December 23, 1994 (emphasis added).

After a lengthy custody dispute, the Hungarian court awarded custody of Oscar to Ms. Kovacs in April 1996. See Deposition Tr. of Oscar Egervary dated March 11, 1999 at 18-19 ("Egervary Dep.").

D. Procedural History of this Case

After the Hungarian court awarded custody to Ms. Kovacs, plaintiff filed this action in the Eastern District of Pennsylvania (the "Eastern District") on April 17, 1996 and the case was assigned to the Honorable E. Mac Troutman. The complaint named Frederick P. Rooney, Esq., James C. Burke, Esq. and Jeffrey C. Nallin, Esq., the three attorneys who represented Ms. Kovacs in the ICARA hearing before Judge Nealon, as well as two officials of the U.S. State Department. Count I one of the complaint alleges that defendants violated plaintiff's due process rights under the Fifth Amendment.*fn4 Count II alleges that defendants conspired to violate those rights.*fn5

On February 4, 1997, Judge Troutman transferred the case to the Middle District of Pennsylvania (the "Middle District") pursuant to 28 U.S.C. § 1406, finding that venue was improper in this district.*fn6 There the case was assigned to Judge Nealon, who later recused himself when it became clear that he might be a witness in these proceedings. After the remaining judges in the Middle District also recused themselves, the Honorable Sue L. Robinson of the U.S. District Court for the District of Delaware was designated to preside over the case in the Middle District. On August 17, 1998, Judge Robinson granted summary judgment in favor of the State Department defendants. Thereafter, upon unopposed motion by plaintiff, Judge Robinson transferred the case back to the Eastern District pursuant to 28 U.S.C. § 1404.


A. Standard for Summary Judgment

Rule 56 empowers a court to enter summary judgment if "there is no genuine issue as to any material fact" and "the moving party is entitled to a judgment as a matter of law." See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. at 249, 106 S.Ct. 2505. In considering a motion for summary judgment, "all inferences to be drawn from the evidence ...

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