In Egervary v. Rooney, 80 F.Supp.2d 491 (E. D. Pa. 2000), the
father brought a Bivens action against the mothers' attorneys, State
Department officials and judge who granted the mother's ICARA petition
for unconstitutionally infringing on his due process rights by seizing
his son and returning him to Hungary without notice or an opportunity to
be heard. Upon defendants' motion for summary judgment, the District
Court held that defendants unconstitutionally infringed on the father's
due process rights and defendants were not entitled to blanket immunity.
The mother's attorneys, State Department officials and judge who
granted her petition unconstitutionally infringed on the rights by
seizing his son and returning him to Hungary without notice or
opportunity to be heard. Even if an imminent threat of harm justified
removing the child without prior process, the father's motion for
reconsideration and custody proceedings in Hungary did not satisfy the
due process requirement of post-deprivation process because neither was
state-initiated and neither was sufficiently prompt. 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.
The Court had to 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 had to decide whether the claim survived various
defenses, including waiver and immunity. Defendants' motion for summary
judgment was denied and defendants directed to submit further briefing
as to whether summary judgment should be entered against them on the
question of liability
