Nos: 02-1284/2035/2066/2133 OSCAR W. EGERVARY v. Virginia Young

1
PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
Nos: 02-1284/2035/2066/2133
_______________
OSCAR W. EGERVARY
v.
VIRGINIA YOUNG; JAMES
SCHULER;
FREDERICK P. ROONEY, ESQUIRE;
JAMES J. BURKE, ESQUIRE;
JEFFREY C. NALLIN, ESQUIRE;
JOHN DOES ONE-TEN
Virginia Young,
James Schuler,
Appellants in No. 02-1284 & 02-2066
OSCAR W. EGERVARY,
Appellant in No. 02-2035
v.
VIRGINIA YOUNG; JAMES
SCHULER;
FREDERICK P. ROONEY, ESQUIRE;
JAMES J. BURKE, ESQUIRE;
JEFFREY C. NALLIN, ESQUIRE;
JOHN DOES ONE-TEN
OSCAR W. EGERVARY
v.
VIRGINIA YOUNG; JAMES
SCHULER;
FREDERICK P. ROONEY, ESQUIRE;
JAMES J. BURKE, ESQUIRE;
JEFFREY C. NALLIN, ESQUIRE;
JOHN DOES ONE-TEN
Frederick P. Rooney, Esquire,
James J. Burke, Esquire,
Appellants in No.
02-2133
_______________
Appeal from the United States District
Court
for the Eastern District of Pennsylvania
(D.C. Civil Action Nos.96-cv-03039)
District Judge: Honorable Thomas N.
O’Neill, Jr.,
Argued on January 16, 2003
Before: ROTH, FUENTES and
ALDISERT, Circuit Judges
(Opinion filed: April 30, 2004)
Matthew M. Collette, Esquire (Argued)
Barbara L. Herwig, Esquire
Robert D. McCallum, Jr.,
Assistant Attorney General

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Patrick L. Meehan
United States Attorney
United States Department Of Justice
Civil Division, Appellate Staff, Room
9008
601 D. Street, N.W.
Washington, DC 20530
James W. Gicking, Esquire (Argued)
Richard A. Kraemer, Esquire
Marshall, Dennehey & Warner, Coleman
& Goggin
1845 Walnut Street, 16th Floor
Philadelphia, PA 19103
Deborah R. Popky, Esquire
Robert S. Tintner, Esquire
Fox Rothschild
2000 Market Street, 10th Floor
Philadelphia, PA 19103
Counsel for Appellants/Cross
Appellees
Gary L. Azorsky, Esquire (Argued)
Casey Preston, Esquire
Berger & Montague
1622 Locust Street
Philadelphia, PA 19103
Counsel for Appellee/Cross-
Appellant
O P I N I O N
ROTH, Circuit Judge:
This appeal in a Bivens1 action
arose out of an international child custody
dispute. Aniko Kovacs, a citizen and
resident of Hungary, wanted to regain
custody of her son, Oscar Jonathan
Egervary (Oscar). The father, Oscar W.
Egervary (Egervary), had taken Oscar
from Hungary to Pennsylvania without
Kovacs’ permission. Frederick Rooney, a
private attorney acting at the request and
with the assistance of U.S. State
Department officials, agreed to represent
Kovacs in a proceeding to regain custody
of Oscar. Pursuant to the International
Child Abduction Remedies Act (ICARA),
42 U.S.C. § 11601, et seq., Rooney
presented a petition to a United States
District Judge at an ex parte hearing.
During this hearing, Rooney argued
successfully for the issuance of an order
permitting him to enlist the aid of local
law enforcement officials and U.S.
Marshals in seizing and removing Oscar
from the United States without notice to
Egervary. It is now clear that minimal due
process required notice and an opportunity
to be heard. For that reason, the ex parte
order was unconstitutional insofar as it
permitted Oscar’s removal from the
United States without providing Egervary
with either a pre- or post-deprivation
hearing.
As a result of his son’s removal,
1Bivens v. Six Unknown Named
Agents of the Federal Bureau of
Narcotics, 403 U.S. 388 (1971)

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Oscar W. Egervary brought a Bivens
action to recover monetary damages from
Rooney as well as from his associate,
James Burke, his local counsel, Jeffrey
Nallin, and the two State Department
officials, Virginia Young and James
Schuler, who assisted Rooney in this
matter.2 The District Court granted
summary judgment to Nallin but found
triable issues as to the other four
defendants. We granted permission to
appeal. Because the order entered by the
District Judge in the underlying ICARA
proceeding was a superseding cause of
Egervary’s injury, we conclude that
Egervary is unable to establish in this
Bivens suit that the actions of the
defendants in the custody proceeding
proximately caused his harm. Thus, we
will reverse the District Court’s denial of
summary judgment to Rooney, Burke,
Young, and Schuler, and we will affirm on
alternative grounds its grant of summary
judgment to Nallin.
I. Facts
Plaintiff Oscar W. Egervary is a
native of Hungary, who emigrated to the
United States in 1980 and became a
citizen in 1987. He became romantically
involved with fellow Hungarian Aniko
Kovacs in 1990 while she was studying in
the United States. They were married in
Hungary in 1991 and established their
residence in New Jersey. Their son,
Oscar, was born in New Jersey in July
1992.
In February 1993, Kovacs took
Oscar with her on a trip to Hungary.
Although they were scheduled to return to
the United States in early April, Kovacs
twice delayed the return trip and then
informed Egervary that neither she nor
Oscar would return at all. After attempts
to reconcile the relationship had failed,
Kovacs sent a “farewell” letter to Egervary
in September 1993, stating that she and
Oscar were moving to an undisclosed
location within Hungary. In December of
that year, Egervary went to Budapest and
located Kovacs and Oscar. He took Oscar
from Kovacs, against her will, and
returned with him to Monroe County,
Pennsylvania.
Kovacs instituted legal proceedings
in Hungary seeking Oscar’s return. As a
result, the Hungarian government
contacted the U.S. State Department in
order to obtain its assistance. On or about
May 10, 1994, Young, a member of the
State Department’s Bureau of Consular
Affairs, asked Rooney to file an ICARA
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.
During the course of this representation,
Rooney was in regular contact with
officials at the State Department and
routinely received assistance from them.
The assistance provided by the Federal
2Adopting the terminology used by the
District Court, we will refer to Rooney,
Burke, and Nallin collectively as the
“Attorney Defendants,” and will identify
Young and Schuler as the “Federal
Defendants.”

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Defendants included, inter alia, providing
the Attorney Defendants with (1) copies of
Hungarian governmental and court
documents related to the case, as well as
model ICARA pleadings published by the
American Bar Association; (2)
information regarding Oscar’s location;
and (3) advice on the proper preparation
of the ICARA pleadings. Rooney did not
have any direct contact with his client,
Kovacs.
The model pleadings Rooney
received from the Federal Defendants
contained three separate proposed orders,
all of which provided for an ex parte
proceeding prior to the seizure of the
child, followed by a post-deprivation
hearing at which the alleged parent-
kidnapper could be heard. Although
Rooney used the model pleadings as the
basis for his ICARA petition, he added a
fourth option that would permit law
enforcement officials to take Oscar “into
protective custody . . . and deliver him to
[Rooney] for immediate return to the
physical custody of [Kovacs].” Thus, the
fourth option did not provide for a post-
deprivation hearing.
The Attorney Defendants filed the
ICARA petition in the United States
District Court for the Middle District of
Pennsylvania on May 13, 1994. The
petition contained all four proposed
orders. In presenting the petition to the
District Court during the ex parte
proceeding, Rooney argued for the fourth
option, the one he had drafted himself and
the only one that did not call for a hearing
prior to Oscar’s removal from the United
States.
No court reporter was present
during the ex parte proceedings so that no
transcript exists. However, both Rooney
and the judge were deposed in connection
with the Bivens action, and both discussed
their recollection of what transpired.
Although Rooney and the judge agree on
most points, some discrepancies exist.
Specifically, both generally agree
that the judge expressed reservations as to
whether he had the authority to grant the
fourth option (i.e., whether he could order
that the child be removed from the United
States without providing at least a post-
deprivation hearing for the father). In
view of this doubt, Rooney then called the
State Department from the judge’s
chambers during a break in the
proceedings. Rooney spoke to Schuler
and asked him whether the judge had the
authority to issue such an order.
According to Rooney’s deposition
testimony, Schuler said something to the
effect, “He’s the judge. He can do
whatever he feels is appropriate.” Based
on this representation from Schuler,
Rooney apparently told the judge that
Rooney believed the judge did in fact have
the legal authority to enter such an order.
The discrepancies between
Rooney’s and the judge’s accounts do not
involve any factual aspect of the custody
matter but only the legal limits of the
judge’s ability to act on the undisputed
facts. The discrepancies center around the
discussion of the ICARA pleadings and
the representations made by Rooney

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regarding his relationship and contacts
with the State Department. With respect
to the ICARA pleadings, Rooney states
that he and the judge discussed all four
alternatives and that the judge mentioned
that it was Friday and it might be difficult
to contact anyone from child protective
services to take custody of Oscar. Rooney
also states that he told the judge that, if the
fourth option was granted, Rooney would
personally take Oscar to Hungary.
However, the District Court in this Bivens
action has summarized the judge’s
testimony as follows: “Rooney: 1)
portrayed himself as representing the State
Department; 2) stated that he was seeking
to have the Judge enforce a Hungarian
court order; 3) had already made
arrangements to return the child to
Hungary that day; and 4) never suggested
any remedy that would require [the] Judge
. . . to conduct a hearing on the matter.”
In addition, the judge has stated
that, although the other three options (all
of which provided for an ex parte
proceeding before the seizure of the child
and then a post-deprivation hearing) were
contained in the papers, they were not
discussed by Rooney, who argued only for
the fourth option. The judge also stated
that he selected the fourth option based on
what he believed to be the State
Department’s representation, made
through Rooney, that he had the legal
authority to do so:
And as I say – maybe it’s
too much trust, but you’re
inclined to rely on the
expertise of a federal
department that purportedly
has expertise in that area.
But I did have qualms about
it. I mean, I just didn’t sit
down and sign it. I said I
want you to get an
assurance that this is the
appropriate thing to do.
Despite these concerns, the judge
eventually entered an order selecting the
Fourth Option, directing law enforcement
officers to “take into protective custody
OSCAR JONATHAN EGERVARY and
deliver him to Petitioner’s agent for
immediate return to the physical custody
of Petitioner” (hereinafter “the Order”).
Once the Order had been signed by
the judge, Rooney and Burke sought out
U.S. Marshals to execute it. Upon
arriving at the District Marshal’s office,
Rooney placed a call to the State
Department to notify them of what had
transpired. Rooney and Burke then
followed the Deputy Marshals to
Egervary’s residence but did not enter the
home with them. When Oscar had been
removed from the residence, he was
placed in Rooney’s car and driven to
Newark International Airport. According
to Burke’s testimony, Rooney was in
constant contact with the State Department
both during the trip to the airport and
throughout the rest of the day.
During the trip to the airport,
Rooney also contacted Lori Mannicci, an
associate in his office, and asked her to
arrange for Oscar’s return to Hungary.

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This not only involved making the
necessary travel arrangements, but also
obtaining permission from the State
Department to remove Oscar from the
United States without a passport.
According to Mannicci’s testimony, she
does not remember either the name of the
person with whom she spoke or the
content of their conversation. However,
she does have handwritten notes from the
conversation that include Young’s home
phone number. Once the passport waiver
was obtained, Rooney flew with Oscar to
Frankfurt, Germany. Kovacs met them
there, and Rooney turned over custody of
Oscar to her at that time.
Following Oscar’s removal from
the United States, Egervary filed a motion
for reconsideration of the Order. Egervary
subsequently withdrew this motion and
filed the Bivens action.
II. Procedural History
Egervary filed his original
complaint in the United States District
Court for Eastern District of Pennsylvania
on April 17, 1996. Pursuant to Bivens, he
seeks compensatory and punitive
damages, together with interest, attorney’s
fees, and costs from defendants Young,
Schuler, Rooney, Burke, Nallin, and John
Does One through Ten (the John Does are
alleged to be agents or representatives of
the State Department). The complaint
contained both (1) a substantive Bivens
claim alleging that the defendants violated
Egervary’s Fifth Amendment Due Process
rights by taking custody of his son without
a hearing, and (2) a conspiracy count.
The Federal Defendants filed a
motion to dismiss and to stay discovery.
On January 7, 1997, the District Court
stayed discovery but declined to rule on
the motion to dismiss because of concerns
as to whether venue was appropriate in the
Eastern District of Pennsylvania. The
court therefore granted Egervary leave to
file a motion to transfer the case to the
Middle District of Pennsylvania pursuant
to 28 U.S.C. § 1406(a) within 30 days,
noting that the court would grant the
Federal Defendants’ motion to dismiss if
Egervary failed do so.
Egervary timely moved to transfer.
On April 28, 1997, the case was
transferred to the Middle District and
assigned to the judge who had issued the
Order in the ICARA matter. However, it
soon became clear that that judge might be
called as witness. Thus, all of the judges
in the Middle District recused themselves,
and a District Judge from the District of
Delaware was designated to hear the case.
The Federal Defendants again
moved to dismiss the claims asserted
against them, and this motion was granted
by the new judge on August 17, 1998.
Following the dismissal of these
defendants, Egervary filed an unopposed
motion to have the case transferred back to
the Eastern District of Pennsylvania
pursuant to 28 U.S.C. § 1404. This
motion was granted and a new District
Judge was assigned to the case.
Once back in the Eastern District of
Pennsylvania, the Attorney Defendants

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moved for summary judgment. They
asserted that there was no violation of
Egervary’s due process rights and that,
even if such a violation had occurred, his
Bivens claim against them failed on
grounds of waiver, collateral attack, lack
of damages, and immunity.
The District Court denied the
motion on January 21, 2000, concluding
that minimal due process required that
Egervary be given either a pre- or post-
deprivation hearing. In the order
accompanying the January 21 Opinion, the
court gave the Attorney Defendants
twenty days to submit briefs explaining
why the court should not enter summary
judgment in favor of Egervary with
respect to the issue of liability. In reply,
the Attorney Defendants asserted that they
were not acting as federal agents and, in
the alternative, that their defense of good
faith precluded summary judgment.
Relying upon our decision in
Jordan v. Fox, Rothschild, O’Brien &
Frankel, 20 F.3d 1250 (3d Cir. 1994), the
District Court’s August 15, 2000, opinion
focused on the Attorney Defendants’
participation in the execution of the Order.
The court concluded that Nallin was not
acting as a federal agent because he did
not participate in the execution of the
Order. However, because Rooney and
Burke did participate in the Order’s
execution, the District Court ruled that
there was sufficient evidence for a jury to
find that they were acting as agents of the
federal government during th e
commission of the acts which were at the
heart of the due process violation suffered
by Egervary. The court further held that,
pursuant to Jordan, Rooney and Burke
could assert a good faith defense to the
claims asserted by Egervary. Finally, the
court concluded that the issue of good
faith presented a jury question so that the
issue of liability could not be resolved at
the summary judgment stage.
Discovery continued and Rooney
and Burke were both deposed, with
Rooney’s testimony revealing a number of
facts not previously known to either
Egervary or the court. Specifically,
Rooney testified that:
1) defendant Young asked
Rooney to represent Kovacs
and sent him Hungarian
government documents
regarding the alleged
abduction and model
ICARA pleadings; 2) while
he was preparing the
I C A R A p e t i t io n h e
consulted with the State
Department “a bunch of
times”; 3) someone from the
State Department had called
[the] Judge [’s] . . . office
that morning to inform the
Court that a petition was
going to be filed; 4) he
spoke with Schuler while he
was in [the] Judge[‘s] . . .
chambers in order to
confirm that the child could
b e r e m o v e d f r o m
Egervary’s custody and
returned to Hungary without
a hearing; and 5) the State

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Department arranged for a
waiver of the child’s
passport so that he could be
removed immediately from
the country.
Based on this new evidence,
Egervary moved for leave to amend his
complaint to again include the Federal
Defendants, asserting that there was no
longer any basis for their dismissal from
the case. The District Court granted this
motion on March 6, 2001.
Egervary filed his amended
complaint on March 23, 2001. The
Federal Defendants again moved to
dismiss and, prior to receiving a ruling on
this motion, also moved for summary
judgment based on their lack of personal
involvement in the actions giving rise to
Egervary’s claim.
The District Court’s September 6,
2001, opinion rejected the Federal
Defendants’ arguments and denied their
motion for summary judgment. A
subsequent order issued on January 17,
2002, denied the Federal Defendants’
motions to dismiss and for summary
judgment for the reasons stated in the
September 6, 2001, Opinion
The District Court then certified the
following orders for immediate appeal
pursuant to 28 U.S.C. § 1292(b): (1) the
January 17, 2002, Order denying the
Federal Defendants’ motions to dismiss
and for summary judgment; (2) the
January 21, 2000, Order denying the
Attorney Defendants’ motions for
summary judgment; (3) the August 15,
2000, Order granting summary judgment
as to Nallin and denying Egervary’s
motion for summary judgment with
respect to the issue of liability; (4) the
March 6, 2001, Order granting Egervary
leave to file an amended complaint
reasserting his claims against the Federal
Defendants; and (5) the March 23, 2001,
Order denying the Federal Defendants’
motion for reconsideration of the March 6,
2001, Order.
On January 25, 2002, the Federal
Defendants appealed the District Court’s
January 17, 2002, Order denying their
motions to dismiss and for summary
judgment with respect to the issue of
qualified immunity. Subsequently, on
January 28, they filed a petition for
permission to present additional issues on
appeal pursuant to 28 U.S.C. § 1292(b).
Egervary filed a similar petition the same
day, and the Attorney Defendants filed a
petition for permission to appeal three
days later. On March 6, 2002, the Clerk’s
Office consolidated the three petitions for
permission to appeal and submitted them
for our review. On April 5, 2002, we
granted the petitions and each appeal was
then transferred to the General Docket.3
3Upon being transferred to the General
Docket, the Federal Defendants’ petition
for permission to appeal (C.A. No. 02-
8055) became C.A. No. 02-2066,
Egervary’s petition for permission to
appeal (C.A. No. 02-8006) became C.A.
No. 02-2035, and the Attorney

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These three appeals were then
consolidated and submitted to us for
decision on the merits.
III. Jurisdiction
These consolidated appeals involve
a cause of action brought to remedy
alleged constitutional violations pursuant
to the Supreme Court’s decision in
Bivens. As such, the District Court
exercised subject matter jurisdiction over
this case pursuant to 28 U.S.C. § 1331.
We have jurisdiction over the Federal
Defendants’ appeal of the District Court’s
decision regarding qualified immunity
pursuant to 28 U.S.C. § 1291. Our
jurisdiction over the remainder of the
issues certified for appeal is premised on
28 U.S.C. § 1292(b).
“As the text of § 1292(b) indicates,
appellate jurisdiction applies to the order
certified to the court of appeals, and is not
tied to the particular question formulated
by the district court.” Pollice v. National
Tax Funding, L.P., 225 F.3d 379, 388 (3d
Cir. 2000) (citation and internal quotations
omitted). Thus, “[w]e may address ‘any
issue fairly included within the certified
order because it is the order that is
appealable, and not the controlling
question identified by the district court.’”
Id. (quoting Abdullah v. American
Airlines, Inc., 181 F.3d 363, 366 (3d Cir.
1999)); see also Ivy Club v. Edwards, 943
F.2d 270, 275 (3d Cir. 1991). This plainly
includes the threshold question of whether
Egervary has established a prima facie
case under Bivens.
IV. Standard of Review
Where, as here, “we have
jurisdiction to review an order rejecting
qualified immunity at the summary
judgment stage, our review of the order is
plenary.” Eddy v. Virgin Islands Water &
Power Auth., 256 F.3d 204, 208 (3d Cir.
2001). We similarly exercise plenary
review over all other issues decided on
summary judgment. Chisolm v.
McManimon, 275 F.3d 315, 321 (3d Cir.
2001). In so doing, we apply the same test
applied by the District Court. Id. Thus,
“[s]ummary judgment is appropriate ‘if
the pleadings, depositions, answers to
interrogatories, and admissions on file,
together with the affidavits, if any, show
that there is no genuine issue as to any
material fact and that the moving party is
entitled to judgment as a matter of law.’”
Id. (quoting Fed. R. Civ. P. 56(c)).
V. Discussion
Defendants raise a number of
defenses to the claims asserted against
them, including lack of venue, waiver,
absolute immunity, qualified immunity,
and good faith. However, we need not
reach any of these issues, as we conclude
that Egervary, by failing to demonstrate
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.

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essential element of his claim.4
We begin our analysis with the self-
evident principle that, because Bivens
actions are simply the federal counterpart
to § 1983 claims brought against state
officials, see Brown v. Philip Morris, Inc.,
250 F.3d 789, 800 (3d Cir. 2001), and
because tort law causation analysis serves
as the basis for determining causation in §
1983 actions, see Hector v. Watt, 235 F.3d
154, 160 (3d Cir. 2001) (citing Hedges v.
Musco, 204 F.3d 109, 121 (3d Cir. 2000)),
tort law causation must govern our
analysis of this Bivens claim. Thus, as in
any tort case, Egervary must demonstrate
that defendants’ actions were the
proximate cause of the harm he suffered.
Traditionally, in tort law,
“proximate cause” has been defined as a
person’s wrongful conduct which is a
substantial factor in bringing about harm
to another. See Restatement (Second) of
Torts § 431 (1965). However, an
intervening act of a third party, which
actively operates to produce harm after the
first person’s wrongful act has been
committed, is a superseding cause which
prevents the first person from being liable
for the harm which his antecedent
wrongful act was a substantial factor in
bringing about. See Restatement (Second)
of Torts § 440-441 (1965).
This concept has been recognized
in cases such as the one before us. Courts
have held that, under certain
circumstances, the actions of a judicial
officer may sever the chain of causation.
For example in Hoffman v. Halden, 268
F.2d 280 (9th Cir. 1959), overruled in part
on other grounds, Cohen v. Norris, 300
F.2d 24 (9th Cir. 1962), the plaintiff
alleged that the defendants had violated
his civil rights by wrongfully committing
him to a state mental institution. In
examining the proximate cause issue, the
court held that it was the order of the
court, not the preliminary steps taken to
obtain it, that was the proximate cause of
the injury:
In a Civil Rights conspiracy
case, the injury and damage
must flow from the overt
acts. Where the gravamen
of the injury complained of
is commitment to an
institution by court order,
this order of the court, right
or wrong, is ordinarily the
proximate cause of the
injury. Various preliminary
steps occur before the order
is made. These preliminary
steps may range from such
matters as filing of petitions
to the various clerical and
procedural activities which
lead to the order. In the
ordinary case, the order is
made after a hearing in
4Because the merits of the underlying
custody dispute are not before us, we
also need not address the complex
residency issues we have discussed in
Delvoye v. Lee, 329 F.3d 330 (3d Cir.
2003).

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court or after consideration
by the court of the
supporting documents and
evidence. Therefore, the
various preliminary steps
would not cause damage
unless they could be said to
be the proximate cause of
the injury. In the usual
case, the order of the court
would be the proximate
cause and the various
preliminary steps would be
remote causes of any injury
from imprisonment or
restraint under the court
order.
268 F.2d at 296-97 (emphasis added).
Over time, the law in this area has
developed around the general principle
that the decision of an independent
intermediary “will only constitute an
intervening cause if the decision is
genuinely free from deception or
coercion.” Hector, 235 F.3d at 164 (citing
cases from the Second, Fifth, Seventh,
Eleventh, and D.C. Circuits) (Nygaard, J.,
concurring).
We had an opportunity to consider
this issue, albeit in a somewhat different
context, in Hector. There, the plaintiff,
following the suppression of evidence
seized by Pennsylvania state troopers and
the dismissal of charges against him,
brought a § 1983 action against the
troopers based on their alleged violation of
his Fourth Amendment rights. See 235
F.3d at 155. The troopers asserted several
defenses to these claims, including the
argument that the independent decisions
of the prosecutor and grand jury to indict
the plaintiff “were superceding or
intervening causes that broke the causal
connecti on between the Fourth
Amendment violation and Hector’s
subsequent expenses in mounting a legal
defense.” Id. at 160.
Although Judge Nygaard would
have reached the proximate cause issue in
Hector, see id. at 161-65 (Nygaard, J.,
concurring), the majority found it
unnecessary to do so in view of its
resolution of the other arguments raised by
the defendants, electing instead to leave a
more thorough analysis of our stance with
respect to the relevant proximate cause
question for another day. See id. at 161.
Because the threshold inquiry into
proximate cause is outcome determinative
in this case, we now accept the invitation
to delve deeper into this issue. In so
doing, we begin, as Judge Nygaard did in
Hector, with the Fifth Circuit Court of
Appeals’ decision in Hand v. Gary, 838
F.2d 1420 (5th Cir. 1988).
Hand involved allegations of
malicious prosecution against a deputy
sheriff. The Fifth Circuit Court of
Appeals, rejecting the plaintiff’s claim,
held that “‘even an officer who acted with
malice in procuring the warrant or the
indictment will not be liable if the facts
supporting the warrant or indictment are
put before an impartial intermediary such
as a magistrate or grand jury, for that
intermediary’s ‘independent’ decision

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‘breaks the causal chain’ and insulates the
initiating party.’” Id. at 1427 (quoting
Smith v. Gonzales, 670 F.2d 522, 526 (5th
Cir. 1982)). However, as the Ninth
Circuit did in Hoffman, the Fifth Circuit in
Hand cautioned that, in order for the chain
of causation to be broken, the independent
intermediary must be presented with all of
the facts; “[a]ny misdirection . . . by
omission or commission perpetuates the
taint of the original official behavior.” Id.
at 1427-28. Applying this ruling to the
facts presented in Hector, Judge Nygaard
concluded that the chain of causation had
been broken and that the officers should
not be held liable for damages incurred
following the initial detention. See
Hector, 235 F.3d at 165 (Nygaard, J.,
concurring).
Egervary contends, however, that if
we rule that the ex parte Order constituted
a superseding cause, our decision would
run counter to the Supreme Court’s
decision in Malley v. Briggs, 475 U.S. 335
(1986). Malley was a § 1983 action in
which plaintiffs claimed that a state
trooper, in applying for warrants to arrest
them, had violated their rights under the
Fourth and Fourteenth Amendments
because the complaint and supporting
affidavit failed to establish probable cause.
The District Court directed a verdict for
the trooper because the act of the judge in
issuing the arrest warrants had broken the
causal chain between the filing of the
complaint and the arrests and because the
trooper was entitled to immunity under the
“objective reasonableness” standard of
Harlow v. Fitzgerald, 457 U.S. 800
(1982). The First Circuit Court of
Appeals reversed, holding that an officer
who seeks an arrest warrant by submitting
a complaint and affidavit is not entitled to
immunity unless the officer has an
objectively reasonable basis for believing
that the facts alleged in the affidavit are
sufficient to establish probable cause.
Briggs v. Malley, 748 F.2d 715 (1st Cir.1
1984). The Supreme Court granted
certiorari to review the First Circuit’s
a p p l i c a ti o n o f t h e “ o b j e c t i v e
reasonableness” standard in the context of
the entitlement to immunity. Malley, 475
U.S. at 339. The causation issue was not
included in the grant of certiorari. After
determining that a policeman is not
entitled to absolute immunity for causing
an arrest warrant to be issued, Id. at 341-
42, the Court then concluded that qualified
im mu ni ty, with it s “ o b j e c tive
reasonableness” standard, was sufficient
protection for an officer applying for a
warrant. Id. at 343-44. At this point, the
Court added a footnote, commenting in
dictum that Malley had not pressed the
break in the causal chain argument, which
the Court found to be “inconsistent with
our interpretation of § 1983,” adding:
As we stated in Monroe v.
Pape, 365 U.S. 167, 187 . . .
(1961), § 1983 “should be
read against the background
of tort liability that makes a
man responsible for the
natural consequences of his
actions.” Since the common
law recognized the causal
link between the submission

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of a complaint and an
ensuing arrest, we read §
1983 as recognizing the
same causal link.
Id. at 345 fn 7. This comment brings us
around full circle to traditional tort
concepts of independent, intervening
cause. To the extent that the common law
recognized the causal link between a
complaint and the ensuing arrest, it was in
the situation where “misdirection” by
omission or commission perpetuated the
original wrongful behavior. See, e.g.,
Hand, 838 F.2d at 1428-29. If, however,
there had been an independent exercise of
judicial review, that judicial action was a
superseding cause that by its intervention
prevented the original actor from being
liable for the harm. See Restatement of
Torts (Second) § 440 (1965) ; Hoffman,
268 F.2d at 296-97; Townes v. City of
New York, 176 F.3d 138, 147 (2d Cir.
1999). Thus, the cryptic reference to the
common law in Malley’s footnote 7 would
appear to preclude judicial action as a
superseding cause only in the situation in
which the information, submitted to the
judge, was deceptive.
Egervary also cites case law from
other circuits to argue that, because each
of the defendants allegedly participated in
one way or another in making
representations to the District Judge prior
to the execution of the Order, all of the
defendants should be held liable for the
subsequent deprivation of his rights.5
These cited cases, however, are not
inconsistent with the conclusion we reach
above. The cited cases include Zahrey v.
Coffey, 221 F.3d 342, 353-54 (2d Cir.
2000) (holding that the chain of causation
was not broken where the prosecutor
allegedly fabricated evidence); Warner v.
Orange County Dep’t of Probation, 115
F.3d 1068, 1072-73 (2d Cir. 1997)
(concluding that the neutral, advisory role
played by probation officers prevented the
chain of causation from being broken
where the sentencing judge adopted a
recommended sentence which violated a
criminal defendant’s constitutional rights);
Lanier v. Sallas, 777 F.2d 321, 324-25
(5th Cir. 1985) (holding that a judge’s
decision to commit plaintiff to a mental
health facility did not sever the chain of
causation where that decision was based in
part on a misrepresentation made by
defendants).
5Egervary makes this argument in his
Rule 28(j) submission. Federal Rule of
Appellate Procedure 28(j) states, in
relevant part, that “[i]f pertinent and
significant authorities come to a party’s
attention after the party’s brief has been
filed — or after oral argument but before
decision — a party may promptly advise
the circuit clerk by letter, with a copy to
all other parties, setting forth the
citations.” Because Egervary’s
submission complies with the
requirements of this Rule, Rooney and
Burke’s motion to strike it will be
denied.

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The purported misrepresentation
here, however, is a legal one and not an
inadequate or false representation of the
factual basis upon which the legal ruling
depended. In addition, although Rooney
and the other defendants urged the District
Judge to conclude that he had the legal
authority under ICARA to enter the
requested order on an ex parte basis,6 they
also included the three constitutionally
valid forms of order in the petition they
presented. Moreover, it is axiomatic that,
in any given case, the responsibility for
determining the governing law and
procedures lies with the judge. Indeed,
this is a judge’s primary responsibility.
Thus, the cases cited by Egervary – most
of which involve instances in which
judicial officers applied the correct law
but nevertheless issued unconstitutional
orders or warrants as a result of being
misled in some way as to the relevant
facts7 – are inapplicable if, as here, the
judge fails in the primary judicial duty of
identifying the legal principles and
procedures which govern the dispute.
6We note that the District Judge
testified during his deposition that he
believes Rooney acted in good faith and
did not purposely mislead him:
[Counsel]: Your Honor,
was it your belief that Mr.
Rooney was acting in the
good faith belief that no
hearing was required in this
situation to enforce that
order?
[Judge]: Yes. I wouldn’t
expect him to trick me or
lie to me, you know, I
mean, he’s responsible – he
made a great impression,
he’s a responsible person.
[Counsel]: And you
believe that he had a good
faith belief in what he was
telling you?
[Judge]: That would be my
conclusion, yes.
Nealon Dep. at 67-68.
7The one exception to this statement is
the Second Circuit’s decision in Warner,
where the court concluded that, “[g]iven
the neutral advisory role of the probation
officer toward the court, it [wa]s an
entirely natural consequence for a judge
to adopt the [Probation Department’s]
recommendations as to a therapy
provider without making an independent
investigation of the qualifications and
procedures of the recommended
provider. Such action by a judge is
neither abnormal nor unforeseen.” 115
F.3d at 1073 (citations and internal
quotations omitted). However, Warner is
readily distinguishable on this basis.
Although appearing in a partisan capacity
clearly does not relieve attorneys of their
ethical and professional obligations,
judges should “know[] that scrutiny is
warranted.” Id. at 1072.

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15
The issue presented here of a
legally erroneous court ruling is analogous
to that faced by the Second Circuit Court
of Appeals in Townes. There, the plaintiff
filed a § 1983 claim against New York
City and several of its police officers after
having been convicted of weapons- and
drug-related charges on the basis of
evidence obtained in violation of the
Fourth Amendment. In analyzing the
proximate cause issue on appeal, the court
concluded that, “as a matter of law, the
unconstitutional seizure and search of
Townes’s person was not a proximate
cause of his conviction because of (at
least) one critical circumstance: the trial
court’s refusal to suppress the evidence,
which is an intervening and superseding
cause of Townes’s conviction.” 176 F. 3d
at 146. Although it was clear to the court
that, “but for the defendants’ unreasonable
seizure and search, Townes’s handguns
and cocaine would have gone undetected
(at least for the time being), and he would
not have been convicted of the precise
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
circumstances,” it nevertheless concluded
that “the trial court’s failure to suppress
the evidence concerning Townes’s own
criminal acts constituted a superseding
cause of Townes’s conviction and
imprisonment.” Id. at 147. In so holding,
the court reasoned:
The state trial court, which
alone had the power to
suppress the improperly
obtained evidence, had
control over the ultimate
outcome of Townes’s case.
That court should have
r e c o gn i z e d t h a t t h e
d e f e n d a n t s v i o l a t e d
T o w n e s ’ s c l e a r l y
e s t a b l i s h e d F o u r t h
Amendment rights, and
should have suppressed the
evidence under the fruit of
the poisonous tree doctrine,
as the Appellate Division
later ruled. The state trial
c o u r t ’ s e x e r c i s e o f
independent judgment in
deciding not to suppress the
evidence, though later ruled
to be erroneous, broke the
chain of causation for
purposes of § 1983 liability
for the plaintiff’s conviction
and incarceration.
Id. See also Duncan v. Nelson, 466 F.2d
939, 942 (7th Cir. 1972) (affirming the
District Court’s ruling that a plaintiff may
not pursue a cause of action against police
officers for unconstitutional conduct in
extracting his confession because the trial
court’s failure to suppress the confession
amounted to a superseding cause of the
harm they suffered).
Thus, we see that the chain of
causation was broken in Townes when the
trial court committed an error of law
unrelated to the conduct of the defendant
police officers. We conclude that the
same general principle applies in this case.
Simply stated, because minimal due
process required providing Egervary with

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16
an opportunity to be heard prior to Oscar’s
removal from the United States, there is no
set of facts under which the Order issued
by the District Judge was proper. Indeed,
because the judge failed to properly
ascertain the relevant law and procedures
prior to issuing the Order – a
responsibility which was his and his alone
– defendants’ arguments on the form of
order the judge should adopt are
insufficient to establish proximate
causation. No statement or omission by
defendants could possibly have made the
issuance of such an order appropriate.
Rather, the judge’s execution of an order
permitting Oscar’s removal from the
United States without either a pre- or post-
deprivation hearing amounted to an error
of law for which the judge alone was
responsible.
To sum up, we adhere to the well-
settled principle that, in situations in
which a judicial officer or other
independent intermediary applies the
correct governing law and procedures but
reaches an erroneous conclusion because
he or she is misled in some manner as to
the relevant facts, the causal chain is not
broken and liability may be imposed upon
those involved in making the
misrepresentations or omissions. See, e.g.,
Hand, 838 F.2d at 1427-28; Hector, 235
F.3d at 164 (citing cases) (Nygaard, J.,
concurring). However, we draw a
distinction between that situation and the
facts as presented both here and in
Townes, where the actions of the
defendants, while clearly a cause of the
plaintiff’s harm, do not create liability
because of the intervention of independent
judicial review, a superseding cause. We
conclude that where, as here, the judicial
officer is provided with the appropriate
facts to adjudicate the proceeding but fails
to properly apply the governing law and
procedures, such error must be held to be
a superseding cause, breaking the chain of
causation for purposes of § 1983 and
Bivens liability. Cf. Sheppard v. E.W.
Scripps Co., 421 F.2d 555, 558 (6th Cir.
1970) (concluding that any deprivation of
a criminal defendant’s rights in a high
profile murder case was a result of the
manner in which the judge conducted the
trial, thus breaking the chain of causation);
Whittington v. Johnston, 201 F.2d 810,
811-12 (5th Cir. 1953) (holding that
attorney-defendant’s role in instituting
commitment proceedings was not the
proximate cause of the due process
violation suffered by the plaintiff where
the presiding judge elected not to provide
the plaintiff with notice and an
opportunity to be heard).
Moreover, we reject Egervary’s
argument that our decision in Jordan
requires that liability be imposed on
defendants for their alleged participation
in the execution of the Order after it had
been entered by the District Judge. Jordan
involved the execution of a confessed
judgment by private attorneys, without a
pre-deprivation hearing. See Jordan, 20
F.3d at 1264-67. In the case before us,
to the contrary, the defendants obtained an
order from an independent judicial officer.
Jordan is clearly distinguishable. Here, as
Egervary conceded at oral argument, none

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of the post-hearing actions taken by
defendants violated the terms of the
District Judge’s Order and none would
have been possible without the issuance
thereof. Thus, because the judge’s
execution of the ex parte Order superseded
any prior tortious conduct by defendants
and shrouded any subsequent actions with
a cloak of legitimacy, we find no basis for
imposing Bivens liability on any of the
defendants.
This is not to say that we condone
behavior in which an attorney urges the
court to make an erroneous decision or
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
that decision.
VI. Conclusion
For the reasons stated above, we
will reverse the District Court’s denial of
summary judgment to Rooney, Burke,
Young, and Schuler, and remand this case
to the District Court with directions to
enter summary judgment in their favor.
The District Court’s grant of summary
judgment to Nallin will be affirmed on the
alternative grounds discussed above.
Rooney and Burke’s motion to strike
Egervary’s Rule 28(j) submission will be
denied.

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