The federal defendants initially did not discuss the passport
waiver, except to dismiss it as irrelevant to the case. See,
e.g., Federal Defendants' Reply Br. (July 9, 2001) at 5-6 n. 3
(arguing that the passport waiver did not have "anything of
significance to do with the alleged deprivation of plaintiffs
due process rights"). I disagree with this assessment. As I have
stated previously, the immediate removal of the child from this
country consummated the due process violation by effectively
eliminating the possibility of a postdeprivation hearing. See
Egervary II, 80 F. Supp.2d at 502 n. 7, citing Weller, 901
F.2d at 396, and Hooks, 771 F.2d at 942-43. Simply put, a jury
could conclude that the passport waiver was an overt act taken
in furtherance of the alleged conspiracy.
The federal defendants address the substance of the passport
waiver evidence for the first time in their reply brief. See
Federal Defendants' Br. (August 17, 2001) at 16-17. They now
argue that the waiver was granted by the duty officer in the
State Department's Passport Services office and that they had no
involvement in issuing the waiver. Id. They claim, without any
citation to the record or State Department regulations, that
they "were not employed by Passport Services and could not
themselves have granted the passport waiver." Id. at 17 n. 3.
For the purposes of a summary judgment motion, I cannot consider
these unsworn assertions.
I therefore find that a jury could reasonably conclude that
Young had some involvement in seeking and/or granting the
g. Schuler's Follow Up Letter
The federal defendants also discuss Schuler's follow-up letter
to Rooney for the first time in their reply brief. See Federal
Defendants' Br. (August 17, 2001) at 16. They argue that the
letter could not have "encouraged" Rooney's actions because it
was sent a few weeks after he had returned from Europe. Id.
That statement is literally true but does not address the real
relevance of the Schuler letter to plaintiffs claim.
The federal defendants have suggested — though, again, have
not provided any affidavits asserting — that Schuler's only
contact with the Egervary case was the "minute or two" telephone
conversation from Rooney in Judge Nealon's chambers on May 13,
1994. See, e.g., Federal Defendants' Br. (July 9, 2001) at 9,
12. Schuler's follow-up letter, however, shows far more
familiarity with the matter than possibly could have been
gleamed from that single phone conversation, and, more
importantly, shows Schuler's willingness to vouch for the facts,
legal conclusions, and tactics Rooney used in the proceedings
before Judge Nealon.
Schuler begins by stating that he will "briefly review the
background of the case." See Schuler Ltr. (June 1, 1994) at 1.
He then provides a six-paragraph factual narrative that is for
all practical purposes identical to what Rooney had presented to
Judge Nealon.*fn38 Id. at 1-2. He then opines on two of the
key legal questions that were at issue in the ICARA proceedings.
He asserts that Oscar was a habitual resident of Hungary and
that Egervary's retrieval of the child was an "unlawful removal"
under Article 3 of the Hague Convention. Id. at 2. He then
states that: "Article 2 of the Convention asks that `the most
expeditious procedures available' be utilized in effecting
implementation of Convention precepts." Id.
Though the reason for this quotation is not explicit, it can
reasonably be inferred that Schuler's emphasis on the "the most
expeditious procedures available" was an allusion to Rooney's
immediate return of the child without a hearing.*fn39
Finally, Schuler concludes by thanking Rooney for his "prompt,
humane and professional assistance" in handling the case. Id.
Rooney testified that he had sought the letter as
"reassurance" because Egervary had filed a motion for
reconsideration before Judge Nealon. See Rooney Dep. at 194.
The federal defendants offer no explanation for why Schuler, who
supposedly knew almost nothing about the case, was willing to
vouch for Rooney on many of the points disputed in the motion
for reconsideration. For the purposes of this motion, plaintiff
is entitled to the inference that Schuler vouched for Rooney
because they had acted in concert pursuant to a common design.
Based on the forgoing analysis of the record, I conclude that
there is sufficient evidence from which a reasonable jury could
conclude that the federal defendants conspired with, gave
substantial assistance or encouragement to, and/or ordered or
induced Rooney to take plaintiffs son from his custody in a
manner that violated plaintiffs due process rights.*fn40
I conclude by noting that before the motion to dismiss was
filed the federal defendants stated their intention to seek an
interlocutory appeal if I reject their qualified immunity
defense. See Federal Defendants' Br. (March 20, 2001) at 8-9
("It is well established that a federal official is entitled to
an immediate interlocutory appeal if the Court denies the
defense of qualified immunity . . . 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.").
Given the arguments presented to me since then, it is unclear
whether the federal defendants are entitled to an interlocutory
appeal. The Supreme Court has held that "a district court's
denial of a claim of qualified immunity, to the extent it turns
on an issue of law, is an appealable `final decision' within
the meaning of 28 U.S.C. § 1291." Mitchell v. Forsyth,
472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (emphasis
added). As I noted above, the federal defendants have not cited,
discussed, or attempted to distinguish any of the cases upon
which I have based the qualified immunity decision. Instead,
they have argued that plaintiffs factual claim "is limited to
the allegation that the
Federal Defendants offered inaccurate legal advice to counsel
for the plaintiff's former wife concerning the type of relief
she, as a litigant, could request from the court." See Federal
Defendants' Br. (May 11, 2001) at 26. This situation is similar
to Hurlman v. Rice, 927 F.2d 74, 81 (2d Cir. 1991), wherein
the court found that a district court's order denying qualified
immunity was not a final judgment subject to interlocutory
appeal because there were "questions of fact to be answered in
order to determine whether appellants [were] entitled . . . to a
defense of qualified immunity." It is not my role to determine
whether the Hurlman analysis precludes an interlocutory appeal
by the federal defendants, but I realize that it may present a
problem for them.
I will proceed as follows. The accompanying Order stays
discovery*fn41 and permits plaintiff to perfect service
pursuant to 22 C.F.R. § 172.2 within 30 days and promptly notify
me in writing when service has been effected. When I receive
that notification, I will enter an additional Order denying the
federal defendants' motions to dismiss and motions for summary
judgment for the reasons contained in this Memorandum. I will
then certify for immediate appeal pursuant to
28 U.S.C. § 1292(b): 1) the Order denying the federal defendants' motions to
dismiss and motions for summary judgment; 2) the Order in
Egervary II (denying the attorney defendants' motions for
summary judgment); 3) the Order in Egervary III (denying in
part and granting in part the attorney defendants' motions for
summary judgment); and 4) the Orders of March 6, 2001 and March
23, 2001 (granting plaintiff leave to amend the complaint to
re-assert claims against the federal defendants).
If accepted by the Court of Appeals, the certification will
eliminate any potential "Hurlman" problem, allow the parties
to avoid multiple appeals, and permit the Court to address all
of the intricate and intertwined issues in this action at the
same time. In my view, these Orders involve controlling
questions of law as to which there is substantial ground for
differences of opinion and immediate appeal from them may
materially advance the ultimate termination of the litigation.
AND NOW, ____ this day of September, 2001, for the reasons
contained in the accompanying memorandum, it is ORDERED that:
1) Discovery is stayed until further Order; and
2) Plaintiff may within 30 days of this Order perfect service
pursuant to 22 C.F.R. § 172.2; and
3) Plaintiff shall promptly notify the Court in writing when
service has been perfected by filing a certificate of service
with the Clerk of Court.