United States District Court, Eastern District of Pennsylvania
May 22, 2001
OSCAR W. EGERVARY
VIRGINIA YOUNG, ET AL.
The opinion of the court was delivered by: O'Neill, J.
The federal defendants' motion for a protective order requests that I
decide whether the scheduled deposition of a third-party witness should
go forward after newly-named federal defendants have claimed qualified
immunity. For the reasons stated below, the motion will be denied.
This case derives from an international child custody dispute.*fn1 In
February 1993, Ms. Aniko Kovacs, plaintiff's wife, took their son Oscar
to Hungary, ostensibly to perform in a concert. Plaintiff alleges that
sometime thereafter his wife informed him that she was ending their
marriage and would remain in Hungary with Oscar. Plaintiff made a number
of attempts to reconcile with his wife and/or convince her to allow Oscar
to return to this country. She refused and eventually hid Oscar from his
father in Hungary. Plaintiff went to Hungary to attempt to retrieve his
son and allegedly was told by the U.S. Embassy in Budapest that he was
free to take Oscar (who was a U.S. citizen and had spent his entire life
in this country) back to the U.S. if the child could be located. On
December 18, 1993, plaintiff found his wife and son leaving her parents'
apartment in Budapest. He retrieved the child and they returned to the
On May 13, 1994, members of the Pennsylvania State Police and the U.S.
Marshals arrived at Mr. Egervary's home with an order that had been
signed by the Honorable William J. Nealon of the U.S. District Court for
the Middle District of Pennsylvania. Pursuant to the order, the law
enforcement officials removed Oscar from plaintiff's custody and
delivered him to defendant Frederick P. Rooney, Esq., Ms. Kovacs'
attorney. Defendant Rooney then immediately returned the child to his
mother in Hungary.
Plaintiff subsequently learned that his wife had, with the assistance
of State Department officials and private attorneys, filed a petition
under the Hague Convention on the Civil Aspects of International Child
Abduction and the International Child Abduction Remedies Act ("ICARA"),
42 U.S.C. § 11601 et seq. That petition was presented to Judge Nealon
in an ex parte hearing of which plaintiff was afforded no notice and in
which he had no opportunity to be heard.
Plaintiff filed his first complaint in this action in this District on
April 17, 1996. The complaint alleged that plaintiff's due process rights
had been violated and named Virginia Young and James Schuler of the State
Department (the "federal defendants") as well Frederick P. Rooney, Esq.,
James J. Burke, Esq., and Jeffrey C. Nallin, Esq. (the "attorney
defendants") who had represented Ms. Kovacs in the ICARA hearing before
The case was originally assigned to the Honorable E. Mac Troutman. On
January 7, 1997, Judge Troutman concluded that venue was improper in this
District and transferred it to the Middle District where it was assigned
to Judge Nealon.*fn2 Subsequently,
Judge Nealon recused himself.
Thereafter, all of the other judges in the Middle District also recused
themselves, and 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 dismissed the federal defendants
from the case, concluding that plaintiff had failed to allege adequately
that the proceedings before Judge Nealon were "in anyway directed by,
approved of, or even within the knowledge of the [federal defendants]."
Thereafter, upon unopposed motion by plaintiff Judge Robinson transferred
the case back to the Eastern District pursuant to 28 U.S.C. § 1404,
and it was reassigned to me.
In Egervary I, I denied the attorney defendants' motion for summary
judgment because I concluded that plaintiff's due process rights had been
violated when he was afforded no notice of or opportunity to be heard in
the ICARA proceedings.*fn3 See Egervary, 80 F. Supp.2d at 497-504. At
that time, I ordered the attorney defendants to submit briefs on why
summary judgment should not be entered against them on the issue of
liability. Id. at 509-10. After consideration of those briefs, in
Egervary II I concluded that defendant Nallin could not be held liable as
a federal actor and therefore entered summary judgment in his favor. See
Egervary II, 2000 WL 1160720, at *6. I also concluded that defendants
Rooney and Burke could assert a good faith defense at trial and therefore
declined to enter summary judgment against them. Id.
As discovery proceeded against defendants Rooney and Burke, plaintiff
uncovered evidence that arguably shows that the federal defendants had
personal involvement in the deprivation of plaintiff's due process
rights. For this reason, on March 6, 2001 I granted plaintiff leave to
amend his complaint to re-assert claims against the federal defendants.
On May 11, 2001, the federal defendants filed a motion to dismiss the
amended complaint arguing, inter alia, that plaintiff's claims are barred
by the doctrine of qualified immunity.
On Monday, May 14, 2001, I conducted a telephone conference with
counsel, who informed me that the deposition of Judge Nealon is scheduled
to take place later this month. Counsel for the federal defendants
objected to the deposition going forward because they have asserted
qualified immunity. Because the federal defendants' motion to dismiss was
recently filed, plaintiff has not yet responded to it and it is unlikely
the motion will be decided before Judge Nealon's deposition is to take
place. I therefore asked the federal defendants to provide a letter brief
in support of their oral motion for a protective order. I received that
brief on Thursday, May 17, 2001.
Because it affects my analysis of the issues involved in the federal
defendants' motion, I will describe my understanding of why Judge
Nealon's deposition is being taken and some of the issues that the
deposition may touch upon.
One of plaintiff's claims in this case is that the attorney
defendants, acting in concert with the federal defendants, made
misleading representations to Judge Nealon during the ex parte ICARA
hearing. The basis for this claim appears in an affidavit by plaintiff's
counsel that was submitted as part of the record in Egervary I:
At a case management conference in this action
before The Honorable William J. Nealon, Jr. on
December 11, 1997, defendants' counsel presented Judge
Nealon with [their clients rendition of the facts
surrounding the ex parte hearing]. Judge Nealon
advised counsel that his recollection significantly
differed from defendants' stated position. His Honor
stated that it was not true that defendants presented
him with several options from which to choose, and
that he decided upon one option following careful
review and consideration of all options. His Honor
advised that it was his recollection that Mr. Rooney
stated that he 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 His Honor signs the
order permitting them to move forward.
Id. at 496 n. 3 (quoting the Affidavit of Gary L. Azorsky, Esq.).
At some time thereafter, Judge Nealon apparently realized that he
could be a witness in this case and recused himself. Id.
In addition, during his deposition defendant Rooney testified that
the federal defendants had both direct and indirect contact with
Judge Nealon's chambers on the day of the ex parte hearing:
• In your Answers to Interrogatories I believe
you said, and I don't have them in front of me but I
will get them if there's a question about this, I
believe that you said that the State Department had
contacted the court to arrange for you to appear
before Judge Nealon.
• I don't know if they called to arrange. They
called to inform the court that a petition would be
presented involving a Hague matter. I don't know who
called, I don't know with whom they spoke; I just knew
that by the time we got there that the judge was aware
or the judge's chambers was aware of someone coming in
with a petition. I also think that we may have
called, someone from my office may have called, to
advise the judge that we were on our way to Scranton.
• Did you speak to [defendant Shuler] about [the
petition presented to Judge Nealon] before it was
presented to the court or after?
• In between.
• Meaning what?
• I went in and I saw Judge Nealon. I spoke to
him about the situation, presented him with the
petitions and the order, and to the best of my
recollection he then had a status conference or had to
do something, and so he adjourned our meeting. I
waited and during that time I spoke to Jim Shuler
because the judge was specifically concerned about
whether or not he had the authority to allow the child
to be returned. While it was my impression that he
did, in order to assure the judge that, in fact, my
interpretation of his authority was correct, I called
Shuler from the judge's chambers and I said, Jim,
Judge Nealon appears to be willing to sign an order
for the child to be returned, but he wants to just be
sure that that's
within his authority and Shuler said
to me he's the judge. He's got the authority to make
whatever decision he wants.
See Rooney Dep. at 114-16 and 120-21.*fn4
On this basis, I conclude that Judge Nealon's testimony could be
relevant to plaintiff's case against the attorney defendants (i.e., the
question of good faith) and also to the issue of qualified immunity
raised in the federal defendants' motion to dismiss. Specifically, in
their motion, the federal defendants have argued that: "Plaintiff's claim
against the Federal Defendants boils down to the contention that they
offered legal advice that prompted the plaintiff's former wife, a
litigant in court proceedings, to seek and obtain relief from Judge
Nealon that violated plaintiff's due process rights under the Fifth
Amendment." See Federal Defendants' Br. (May 11, 2001) at 25. However,
based on the affidavit and testimony quoted above, it could be argued
that the federal defendants did more than merely offer legal advice.
Therefore, to the extent that Judge Nealon testifies about the conduct of
the federal defendants, his deposition could be relevant to the qualified
Initially, I note that it is unclear what relief the federal defendants
are seeking. Plaintiff has not noticed a deposition of the federal
defendants. Nor has plaintiff sought any other form of discovery from
them. Rather, plaintiff seeks to conduct the deposition of a third-party
witness who is likely to have relevant testimony whether or not the
federal defendants remain in this case.
The federal defendants have stated that they "have a right not to be
involved in discovery" at this time. See Federal Defendants' Br. (May
17, 2001) at 1. I agree that I have no power to compel any defendant to
appear at the deposition of third-party witness, anymore than I have the
power to compel a defendant to answer a complaint, oppose a motion, or
appear at trial so as to avoid a default judgment.
The federal defendants also state, however, that they are "entitled to
protection from any discovery" so that "any discovery taken by other
parties in the case may not be used against them." Id. at 4. This
assertion raises two possibilities.
First, conceivably I could order that: 1) any testimony provided by
Judge Nealon will not be admissible against the federal defendants; and
2) Judge Nealon will be required to give an additional deposition after
the qualified immunity issue has been resolved, if necessary. I reject
this option. I do not think I should rule on the admissibility of
testimony that has not yet been given. In addition, I question whether I
have the power to compel Judge Nealon to testify about events that
occurred in his chambers during official proceedings.*fn6
Second, I could order that the deposition be continued until after the
qualified immunity issue is resolved, an option I will now consider.
Neither the federal defendants' brief nor my independent research
has yielded a case that is directly on point.
The cases that come closest are Harlow v. Fitzgerald, 457 U.S. 800
(1982), and its progeny. In Harlow, the Court held that qualified
immunity shields government officials from suit for actions taken within
the scope of their employment unless they have violated "clearly
established [federal] statutory or constitutional rights of which a
reasonable person would have known." Id. at 818. The Court further stated
that subjecting public officials to suit entails significant "social
costs" including "the expense of litigation, the diversion of official
energy from pressing public issues, and the deterrence of able citizens
from acceptance of public office." Id. at 814. The Court therefore found
that qualified immunity should protect public officials from both "the
costs of trial" and "the burdens of broad-reaching discovery." Id. at
817-818. The Court reaffirmed this principle in later cases. See, e.g.,
Anderson v. Creighton, 483 U.S. 635, 638 (1987) (suits against government
officials involve "substantial social costs, including the risk that fear
of personal monetary liability and harassing litigation will unduly
inhibit officials in the discharge of their duties.").
In order to minimize these "social costs," the Court has expressed a
preference for resolving the issue of qualified immunity before
discovery. See Harlow, 457 U.S. at 818; Mitchell v. Forsyth, 472 U.S. 511,
526-27 (1985); Anderson, 483 U.S. at 646 n. 6; Siegert v. Gilley,
500 U.S. 226, 232-33 (1991). However, in its most recent decision
addressing the issue, the Court stated, in a passage not referred to by
the federal defendants, that this is not an absolute right:
Discovery involving public officials is indeed one
of the evils that Harlow aimed to address, but neither
that opinion nor subsequent decisions create an
immunity from all discovery. Harlow sought to protect
officials from the costs of "broad-reaching"
discovery, 457 U.S., at 818, and we have since
recognized that limited discovery may sometimes be
necessary before the district court can resolve a
motion for summary judgment based on qualified
Crawford-El v. Britton, 523 U.S. 574
, 593 n. 14 (1998) (emphasis in
Therefore, even if the Harlow line of cases were dispositive of this
issue (and I conclude that they are not), Judge Nealon's deposition may
proceed to the extent that his testimony is relevant to the qualified
I conclude that Judge Nealon's deposition should proceed as scheduled
for the following reasons:
First, I find it significant that, unlike the
Harlow line of cases, the federal
defendants are not
seeking to stop discovery against themselves but
rather are seeking to postpone the deposition of a
third party. Qualified immunity, as described in
Harlow and its progeny, is a shield against
"broad-reaching" discovery. Harlow, 457 U.S. at 818.
In this case, however, the federal defendants are
attempting to use it to stop a deposition that will be
relevant to plaintiff's claims regardless of how the
qualified immunity issue is decided. Moreover, the
federal defendants state that they will take an
interlocutory appeal if the motion to dismiss is
denied. See Federal Defendants' Br. (Mar. 20, 2001) at
8-9 ("Thus, if the Federal Defendants' motion to
dismiss on the ground of qualified immunity is
denied, they would expect to file an immediate,
interlocutory appeal with the Third Circuit."). If
such an appeal were taken, Judge Nealon's deposition
would not take place (and probably no trial against
the attorney defendants would proceed)*fn7 until
after the Court of Appeals resolved the immunity
Second, the federal defendants' reliance on Supreme
Court precedent that says that qualified immunity
should be decided "at the earliest possible stage of a
litigation" (Anderson, 483 U.S. at 646 n. 6) is not
persuasive since they themselves are responsible for
the delay in reaching the issue. Judge Robinson
dismissed the federal defendants from the case because
she accepted their argument that the proceedings
before Judge Nealon were not "in anyway directed by,
approved of, or even within the knowledge of the
[federal defendants]." See Order dated August 17,
1998. Defendant Rooney has since testified that the
federal defendants had personal involvement in those
events, and in their pending motion to dismiss the
federal defendants have abandoned their claim that
they had no personal involvement. It is therefore fair
to infer that the federal defendants asked Judge
Robinson to dismiss them from the case for lack of
personal involvement when they in fact knew that they
had been personally involved. If they had not asserted
that defense, Judge Robinson likely would have ruled
on the qualified immunity issue three years ago. If
there has been a delay in consideration of the
qualified immunity issue, the federal defendants are
Third, the burden of allowing a single deposition to
go forward is slight. As the Supreme Court has
emphasized, qualified immunity protects government
officials from the costs of "broad-reaching"
discovery. See Harlow, 457 U.S. at 818; Crawford-El,
523 U.S. at 593 n. 14. Since even a strict application
of Harlow and its progeny would allow the deposition
to go forward to the extent it relates to the question
of qualified immunity, the true measure of the burden
on the federal defendants is that of attending a
deposition on all issues versus attending a deposition
limited to the issue of qualified immunity. In either
case, the burden is slight.
Finally, my consideration of this issue cannot
ignore the fact that the deponent is a federal judge.
As the federal defendants have been quick to point
out, the doctrine of qualified immunity is premised on
the "social costs" of subjecting government officials
to suit. See Harlow, 457 U.S. at 814. But there is
also a social cost to asking a federal judge to appear
for two depositions. Judge Nealon has agreed to appear
for his deposition at
this time, and I will allow the
deposition to go forward.
An appropriate Order follows.
AND NOW, this 22nd day of May, 2001, after consideration of the federal
defendants' motion for a protective order, and for the reasons contained
in the accompanying memorandum, it is ORDERED that the motion is DENIED.