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A federal judge must give his deposition in a lawsuit brought by a man who claims his child was taken to a foreign country and given to his mother after two lawyers conspired with U.S. State Department officials to persuade the judge to sign an order without holding a hearing. In his 12-page opinion in Egervary v. Young, senior federal Judge Thomas N. O’Neill Jr. of the U.S. District Court for the Eastern District of Pennsylvania rejected an argument by government lawyers who objected to the deposition of U.S. District Judge William J. Nealon before O’Neill decides whether the federal defendants in the case are entitled to qualified immunity. O’Neill stressed that the federal defendants weren’t asking the court to stop discovery against themselves, but against a “third party,” since Nealon has not been named as a defendant. “Qualified immunity … is a shield against broad-reaching discovery. 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,” O’Neill wrote. O’Neill said he recognized that the doctrine of qualified immunity is premised on the “social costs” of subjecting government officials to suit and that “there is also a social cost to asking a federal judge to appear for two depositions.” But O’Neill noted that “Judge Nealon has agreed to appear for his deposition,” and that his testimony could be relevant to the plaintiffs’ claims. So far, the Egervary case has forced O’Neill to tackle a series of complex legal questions. In a previous opinion, O’Neill said two private lawyers can be held liable for violating a father’s due process rights for allegedly persuading a judge to order the removal of a child without a hearing and then assisting in the execution of that order by taking the child to a foreign country to join the mother. Such a claim, O’Neill said, does not require proof that the father would have been awarded custody since the right to due process is an “absolute” right. “Even when an imminent threat of harm justifies removing a child from their parent’s custody without prior process, there must be a prompt, state-initiated post-deprivation hearing to ratify the removal,” O’Neill wrote. In the opinion, O’Neill had to decide several questions of first impression involving the Hague Convention on International Child Abduction and the federal statute designed to implement the treaty, the International Child Abduction Remedies Act, or ICARA. The plaintiff in the suit, Oscar Egervary, was born in Hungary in 1955 but emigrated to the United States in 1980, claiming he suffered political oppression at the hands of the then-communist government because his father was a church official. He became a citizen of the United States in 1987. In 1990, Egervary became romantically involved with Aniko Kovacs, a Hungarian national who came to the United States to study music. They briefly returned to Hungary in 1991 to be wed by Egervary’s father and then established their marital residence in Hackensack, N.J., where their son, Oscar Jonathan Egervary, was born on Independence Day, July 4, 1992. In February 1993, Kovacs, a concert violinist, traveled to Hungary with Oscar to perform in a concert in Budapest. They were scheduled to return to the United States in early April, and Egervary had purchased a ticket to fly to Hungary and escort them back. But just days before the scheduled reunion, Kovacs called Egervary and said she needed to stay until the beginning of May to perform in another concert. Once again, shortly before she and Oscar were to return in May, Kovacs called Egervary and said that she would be staying in Hungary because she had an opportunity to take a teaching position until the end of the year. Soon after, Kovacs told Egervary that she would not return to the United States and would not return Oscar to this country. Egervary traveled to Hungary in an attempt to reconcile with his wife, and she returned to the United States with him for a short time, but she insisted on leaving Oscar in Hungary with her parents. Later that year, Egervary returned to Hungary and took a job teaching English for several months. But Kovacs left him and took their son, saying in a note that she was bidding him farewell and taking the child to an unknown location. Egervary searched for his son for three months and claims he was told by the American Embassy in Budapest that if he could find Oscar he was free to take him back to the United States. In December 1993, Egervary found Kovacs and his son leaving her parents’ apartment, and he took the child and returned to the United States. But just six months after father and son set up residence in Monroe County, Pa., a group of U.S. Marshals arrived with an order signed by Judge Nealon and removed the child. Attorney Frederick P. Rooney, who had accompanied the marshals, took the child to the airport and flew with him to Europe where he returned him to Kovacs’ custody. Egervary filed suit in federal court against the three lawyers who had participated in securing the court order — Rooney, James C. Burke and Jeffrey C. Nallin — as well as two officials at the U.S. State Department. His lawyer, Gary L. Azorsky of Schnader Harrison Segal & Lewis, filed the suit as a Bivens action, named after the 1971 decision by the U.S. Supreme Court, Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, that allows claims for damages against federal agents who violate a plaintiff’s constitutional rights. Although the claims against the State Department officials were dismissed, the case proceeded against the lawyers because attorneys who assist in executing a federal court order are considered federal agents acting under the color of authority and can be held liable in a Bivens suit. O’Neill later ruled that the State Department officials could be brought back into the case as defendants after Rooney testified that they had personal knowledge of the proceedings before Nealon. Last week, the lawyers informed O’Neill that Nealon’s deposition had been scheduled. Assistant U.S. Attorney Richard Mentzinger Jr. objected to the deposition because he had recently filed a motion to have the State Department officials dismissed on qualified immunity grounds. In a letter brief to O’Neill, Mentzinger wrote: “It is well established that, as a matter of law, the federal defendants are entitled to protection from any discovery until there has been a decision on their motion to dismiss on the basis of qualified immunity and that any discovery taken by other parties in the case may not be used against them.” Mentzinger noted that the U.S. Supreme Court has said that qualified immunity issues should be decided “at the earliest possible stage of litigation.” But O’Neill found that the argument was “not persuasive” since the federal defendants themselves were responsible for the delay. The State Department officials were dismissed from the case by another judge, O’Neill noted, after they argued that the proceedings before Nealon were not “in any way directed by, approved of, or even within the knowledge of the [federal defendants].” But since then, O’Neill said, one of the private lawyers has said that the federal defendants did have personal knowledge of the Nealon proceedings. As a result, O’Neill said, it is “fair to infer” that the federal defendants asked to be dismissed for lack of personal involvement “when they in fact knew they had been personally involved.” O’Neill concluded that “if there has been a delay in consideration of the qualified immunity issue, the federal defendants are the cause.” Finally, O’Neill concluded that “the burden of allowing a single deposition to go forward is slight,” and that the only burden on the federal defendants will be attending Judge Nealon’s deposition.

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