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
A. Mr. Egervary's Marriage to Ms. Kovacs and Oscar's Alleged
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.
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,
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.
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
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
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
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 ...