*1 Shaw, Peter shall they might because sioner L. who conduct appeals, in vailed these hourly rate on remand. proceedings appropri- the same whatever he deems receive that petitioners’ argument ate, overlooks authority This and who shall have enter primary argument Christensen/Price awarding an order fees. See 9th Cir. R. Skike, petitioner’s and one of two and Van subject 39-1.9. order is reconsidera- Dyer, was that arguments main panel. tion See id. artificially the rea
agency depressing rate for the bar hourly LHWCA
sonable exclusively past on fee
by relying LHWCA to look market refusing
awards and determining a reasonable
evidence when unquestionably rate. Petitioners hourly MUELLER; Mueller, D. Corissa issue, we invali prevailed on this because individually and husband and wife methodology. On re agency’s dated Mueller, minor, behalf L. mand, decision makers will agency and on behalf of themselves and those requested hourly rate petitioners’ evaluate similarly situated, Plaintiffs-Appel- rather market considerations based on lees, awards, fee is LHWCA which past than petitioners sought relief primary & See Buckhannon Bd. appeals. these AUKER; April Harmon; K. Barbara Home, Dep’t Health Inc. v. W. Va. Care Kimberly Fletcher; A. Janet A. Osad- Res., 598, 603, 121 & Human chuk; Rodenbaugh; Karl Linda B. 1835, 149 (holding L.Ed.2d 855 Kurtz; Diebert; City Boise, Ken one party’ “a is who has been ‘prevailing Defendants, court”). by the Be relief awarded some prevailed ap these petitioners cause Green; Snyder; Ted Tim Richard K. agency whether peals, regardless of MacDonald; Regional Luke’s Saint hourly rate on the reasonable increases Defendants, Center, Ltd., Medical remand, for at applications appellate their torney’s premature. fees are not Rogers, Defendant-Appellant. Co., Dale v. Continental Grain Richardson (9th Cir.2003), which upon 336 F.3d No. 07-35554. rely, inapposite. The issue respondents Appeals, United States Court whether the that case was LHWCA’s Ninth Circuit. 928(a), § had been fee-shifting provision, opinion only on triggered, so our focused Argued Sept. 2008. and Submitted successfully prose- had petitioner whether Aug. 2009. Filed for benefits under the cuted his claim Here, at 1105-06. it is See id. LHWCA. successfully
undisputed petitioners underlying claims for
prosecuted their
benefits, employer- so their entitlement to 928(a) § attorney’s under is al-
paid fees
ready settled. of an appropriate The determination attorney’s fees is referred to the
amount of master, Appellate special Commis-
court’s *3 Rosman, Individ-
Michael E. Center for WA, D.C., Rights, for plaintiffs- ual appellees. (1) Hales, P.C., Naylor, Naylor
Kirtlan respect G. & court ruled with parties’ to both Boise, ID, defendant-appellant. for the competing for summary judgment motions
on the Muellers’s substantive due process genuine claims issue of fact material existed as to whether the child was imminent when Detective (2) decision, made his granted nonetheless WALLACE, Rogers’s Before J. request qualified immunity CLIFFORD for TROTT, and RANDY STEPHEN S. N. claims, those substantive due SMITH, Judges. Circuit Rogers’s request denied for im- *4 munity on Eric procedural Mueller’s due TROTT; Opinion by Judge Partial (4) claims, process granted summary and by Concurrence and Partial Judge Dissent procedur- to Eric Mueller on his WALLACE. process al due ground claims on the TROTT, Judge: Circuit Rogers’s timely notify failure him both immediately before and depriva- Detective after the Rogers Dale made a decision permitted by tion of custody Idaho law to remove violated his tempo- constitutional rarily a sick infant custody from the rights her as a matter of law.
parents in order to secure a diag- medical (1) appeal, In this Rogers asks us treatment, nostic test and prophylactic reverse grant the district court’s of sum- procedures pediatric which doctors advised mary judgment in favor of Eric Mueller’s Rogers necessary were both and within procedural pre-deprivation post-depri- and the standard of care for the infant’s situa- (2) claims, vation notice due process and time, tion. At the the child had been rule in favor his on those claims on the Boise, taken to St. hospital Luke’s Ida- ground immunity. ho, mother, by father, her while her have We over timely this Mueller, remained home to care for the (1) appeal, and we conclude that the dis- couple’s other child. Detective in- trict court erred in granting summary tervened the behest of hospital doctors mother, judgment to Eric Mueller, procedur- after the child’s Mueller on his Corissa refused to process law, consent to the al due recommended claims as a matter of procedures. (2) Eric Mueller not given was and Detective is shielded pre-deprivation notice of the in- detective’s by qualified immunity from those same post-deprivation tentions or notice De- Accordingly, claims. we reverse and re- Rogers, tective and the Muellers’s child mand for proceedings further consistent received a medical test and treatment opinion. with this Eric Mueller’s absence. I Eric Mueller sued Rogers, Detective (1) claiming that he deprived his BACKGROUND substantive process rights, due and also accompany facts that appeal his individual largely are undisputed. They are as fol- rights pre- to both post-deprivation and lows. notice in connection with the detective’s decision. Corissa Mueller’s causes of ac- August On Corissa Mueller’s part
tion are not appeal. of this infant, Mueller, five-week-old devel- defense, oped
As a a Rogers timely Throughout Detective fever. the course of asserted immunity. The district the evening, Corissa Mueller consulted name, Taige’s Dr. husband’s stated that he was naturopathic physician, the child’s with father, Erickson, hospital Mother the address telephone. gave via and Karen when the grew telephone concerned number where she and her physician degrees roughly rose from deposition, child’s fever lived. In her Corissa husband degrees by around to 100.8 p.m. at 8:00 explained that she remained Mueller Taige’s age, light elevated p.m. 9:00 with Dr. Erickson and telephone contact appetite, Dr. Erick- poor temperature, throughout “a handful of times” called her that Corissa Mueller recommended son night. infant examined to rule out such have room, emergency In the Dr. Richard infection, urinary as an ear conditions infant, observing MacDonald examined the infection, meningitis. Dr. possibly or tract 101.3, temperature ap- had a that she Erickson, hospital privileges, no who had ill, slightly lethargic and was peared that, if Mueller she took informed Corissa delayed refill fussy capillary with room, emergency an doctors Taige to Taige may have slight rash. Concerned x-ray, a chest likely want to conduct
would meningitis or another serious bacterial in- as well as “auto- urinalysis, and blood tests fection, Dr. MacDonald recommended *5 regimen and matically” begin an antibiotic a full in- Taige undergo septic work-up, diagnostic is a tap, a which perform spinal a cluding spinal tap various lab tests and patient if a has to determine test used regimen. an antibiotic Dr. Mac- begin and meningitis. emphasized Donald that time was of the the possibility Mueller discussed Corissa spinal perform tap essence to and ad- tap and the administration spinal of a minister antibiotics because “these babies husband, Eric Mueller. her antibiotics with very quickly.” can from bad to worse go they would have the The Muellers believed Despite warning Dr. MacDonald’s that authority withhold consent or least percent Taige there was a five chance had if opinion emergency an obtain a second Mueller, meningitis, contracted Corissa a course of treat- suggested room doctor though professional, not a medical believed were uncomfortable. they ment with which through her own research that the risk expres- Mueller’s response In to Corissa likely percent. was less than one She spinal a regarding tap of concern sion further believed the risks associated with antibiotics, Dr. Erickson administration administering performing antibiotics and arise, that, should the situation suggested tap outweighed probability spinal could consent to a chest x- Corissa Mueller Taige meningitis. Although had Corissa right away, ray, urinalysis, and blood tests performance consented to the of a Mueller results of these initial but wait until the work, x-ray urinaly- chest and to the blood consenting were returned before tests sis, sample, and stool she withheld consent depo- In his spinal tap antibiotics. antibiotics, spinal tap express- for sition, explained that he and Eric Mueller her to “wait until the initial preference and deter- weighed options his wife their back, got or at least until ... lab results emergency taking Taige mined that ” [Taige] got worse.... thing room “would be the safe to do.” p.m. At around 11:00 the results of p.m., 10:00 while Eric Mueller At around Taige’s lab tests became available. The couple’s young with the remained home urinary tract results ruled out infection son, Taige Mueller took Corissa infection, ear but no test had been Hospital room at St. Luke’s emergency meningi- which could rule out administered Boise, Upon admitting Taige, Cor- Idaho. Mueller understood the hospital with her tis. Corissa provided issa Mueller illness; way meningitis perform get out was to viral will better in a couple to rule time, By Taige had spinal tap. days; would be fine. I know that fluids, tempera- intravenous her received 5 out of those 100 if I go about let them degrees, fallen to 98.9 and she ture had meningitis home will die. Will die of began again. to nurse Corissa Mueller practice ... if I way medicine the to consent to further could find no reason wanting she[Corissa Mueller] is me to rejected treatment. She Dr. MacDonald’s it, practice I would ... I’d lose five out opinion. offer to obtain a second medical of a say- hundred kids. See what I’m husband, she de- consulting Without her ing? permission any nied to the doctors to take explained Dr. MacDonald to Auker that it diagnostic steps. further important was Mueller be treat- response Mueller’s refusal to Corissa within a three-hour time ed frame. proce- to consent to the recommended Following the Dr. conversation with dures, with Dr. MacDonald consulted MacDonald, Snyder Officer contacted the pediatrician board-certified Dr. Noreen station, police Rogers Detective Dale Womack, agreed who that for five-week- dispatched to the scene. Detective Taige’s symptoms old infants with Rogers emergency arrived room at perform standard of care was to a spinal approximately Snyder 1:00 a.m. Officer tap and administer antibiotics. Dr. Wom- briefed Detective on the situation. ack recommended Dr. MacDonald 16-1612, § Under former Idaho Code De- contact a social worker if Corissa Mueller “peace tective as a officer” had the continued to withhold her consent. Dr. responsibility to determine an whether en- *6 hospital MacDonald contacted social work- dangered child placed should be in “shelter Citing hospital’s er Bob poli- Condon. temporary care” under control of the State cy worker, a regarding the duties of social a pending hearing. court Condon to contact decided both Child Pro- (CPS), Rogers Detective then spoke tective with Dr. Services division of the Department Welfare, Idaho MacDonald. Dr. of Health and MacDonald informed De- Though and law enforcement. policy Rogers tective that “[t]here could be a upon which Condon relied did not forbid percent three five chance this child contacting magistrate judge, neither did infection; could have serious bacterial a. require it. At p.m., 11:39 Condon called meningitis sepsis” or and that treatment Auker, April the on-call Risk Assessment begin possible should “as soon as pre- Also, Worker for CPS. Condon contacted vent deleterious outcome such as death or police Snyder Green, officers Ted Tim and damage.” brain Dr. MacDonald further present who were hospital. explained many that “[a]s as 5 out of 100 kids, they if meningitis had and went home At a.m. August around 12:00 Auk- untreated, Also, could potentially die.” hospital er arrived at the emergency room. Auker, Dr. MacDonald spoke Dr. MacDonald assured Detective with Officer Snyder, any risk Taige Officer Green about associated with treatment Mueller’s A transcript condition. of the was less than the risk associated with fore- Snyder’s conversation recorded on Officer going treatment. Dr. MacDonald added belt recorder reveals Dr. MacDonald ex- that “he had a three-hour op- window of plaining: portunity, already and that we were into I took a that window of opportunity by
[I]f hundred kids with the same over two presentation hours, minutes, probably percent two hours and 15 and we them up having just would end some needed to make a decision.” any- declaring no time did Corissa Mueller ask Rogers considered Detective with her husband. “Imminent Dr. one consult danger” to allow Taige in recommended perform MacDonald Mueller did not return home Corissa § former I.C. 16- Under procedures. Instead, a.m., at around 1:40 Taige. with officer declared child when a law Taige’s tempera- a reexamination revealed child over danger and turned the imminent degrees. Upon ture had risen to 101 Health and Department of to the State this, learning stepped Corissa Mueller Welfare, custody of that assumed State examining room into the hall child, medical treat- and could consent to phone toward the with the intention of Rogers spoke April with ment. Detective However, calling Dr. Erickson. Detective Protective Auker and asked whether Child Rogers intervened and informed her based custody to take prepared was Services that he declar- upon Taige’s downturn was did, and, if it whether it would con- and turn- the child imminent Dr. MacDonald sent to the treatment was ing custody of her over to the State. This suggesting. April replied Auker CPS plac- decision had the immediate effect of custody, prepared to take and would i.e., care, ing Taige temporary shelter consent to the treatment. foster care. Detective
Dr. MacDonald introduced Fearful, Corissa Mueller turned back Mueller. On three dif- Rogers to Corissa examining baby, toward the and her table occasions, Rogers spoke Detective ferent Snyder was halted but Officers Mueller about Dr. Mac- with Corissa Rogers. and Detective a po- Green With perform spinal tap Donald’s desire side, lice officer at each an emotional Cor- Each time De- and administer antibiotics. physically issa Mueller was escorted down to convince Rogers attempted tective Cor- hallway to a small сonference room. treatment, Mueller to consent to the issa Snyder, According to Officer she was each time Corissa Mueller refused “screaming yelling” resisting their consent, consulting her husband. without requests. Snyder Officers and Green re- occasion, Detective On at least one mained the room with Corissa Mueller. declaring *7 possibility mentioned the Snyder Officer refused to allow Corissa explained in imminent calls, any phone despite Mueller to make so, procedures if could be that he did Sny- call her plea her husband. Officer performed without Corissa Mueller’s con- telephone der told her she could use the In response, sent. Corissa Mueller re- Rog- after she had talked with Detective you him “asking point-blank, called are ers. The officers’s intent was to maintain are, you if going to do that? Because then hospital prevent any in the order I phone I have two calls want to make.” interruption patient care. Their con- However, Rogers did not direct- Detective appeal. duct is not an issue in this ly respond. thereafter, Rogers Detective en- Soon her third conversation with Detec-
After presented tered the room and Corissa Rogers, requested tive Corissa Mueller a Mueller written notice of a post-depri- with Taige’s temperature again nurse take hearing April vation in state court. Auker if tempera- told the nurse that her child’s again once to secure CPS tried her down, begin toe was still she wanted to procedures, consent to recommended time, discharge procedures. Rogers Around this Detective but she refused. told Mueller called her husband Eric to her that before he would allow her to use Corissa doing get had to “under “Taige phone inform him that was better she herself a.m., out.” At control.” At around 3:00 Officers going and that she was to check seeking the District of Idaho relief for escorted Corissa Muel- for Snyder and Green 13, August August 12 and lobby and directed her the events hospital ler to the to call her 2002. The Muellers filed Second telephone, to a which she used 27, 2006, Complaint April Amended on al- Eric Mueller recalls his wife husband. leging against Rogers taken claims Detective for “hysterically crying they had procedur- of their substantive and violation baby.” our rights pursuant al constitutional Meanwhile, Auker secured consent § 1983. The Muellers filed a Mo- U.S.C. supervisor her Barbara Hamon through Summary Judgment along with a tion for Rodenbach, the Pro- from Linda State’s undisputed support- statement of facts and Director, authorizing per- Auker to gram ing April May affidavits on 2006 and Taige. to treat This mit Dr. MacDonald 2006. signed written and con- included Auker’s all claims on Protective Services Detective denied sent behalf Child Dr. him in the Second Amended perform spinal tap, against and what Com- He filed a motion for plaint. MacDonald recalls as verbal consent Muellers, judgment against and includ- treat the infant whatever method he affidavits, May At on appropriate. approximately supporting deemed ed a.m., performed Dr. MacDonald 3:00 arguments The district court heard tap and authorized the spinal administra- February the motions. On Taige. tion of antibiotics and steroids to granted partial summary judgment court husband, calling After her Corissa Mueller ground to Detective on the that he attempted to enter the exam room where by qualified immunity against was shielded treating Taige, Dr. was MacDonald but proceeding the Muellers’s claims that as away. again spinal was once escorted pro- he did violated their substantive due Taige’s spinal showed that fluid was tap rights. рarental Notwithstanding cess clear, indicating meningitis was not (1) questions of fact as to whether Rogers Any possible present. emergency medical (2) judge, had time to contact a was over. confronted with a child in imminent dan- (1) morning, ger, Sometime later after the court concluded “no clear- treatment, Taige’s ly guide Corissa Mueller was re- established law existed” to him circumstances, daughter, united with her and Eric Muel- under these that his hospital. at the August ler arrived On decision and conduct were reasonable “in statutory post-deprivation light specific at a hear- context of Idaho, County, called the Ada Pros- case....” Attorney, ecuting regained the Muellers On Mueller’s claims of a violation of *8 custody Taige. of As the state district pre- rights his to court noted: “The evidence shows that notice, however, post-deprivation loving par- Corissa and Mueller are rights court held that these were both at all ents who times had the best interests clearly established and violated on the in absolutely of mind. There is no law, facts as matter of and thus not neglect, evidence of or no alle- abuse qualified immunity denied to Detective that in gation parent any way either finally conclusively Rogers, grant- but unfit.” summary judgment ed to Eric Mueller on 4, 2004, August On the Muellers filed a the merits.1 Detective thereafter Complaint timely in United States District filed a Motion for Reconsideration. Court analysis, response respect 1. In its and in its to Eric the merits with to his claims of viola- summary judgment Mueller’s motion for on
987
law,
an
of
is an
2007,
that
it turns on
7,
court en-
the district
On June
‘final decision’ within the mean
denying
Rogers’s
appealable
Detective
an order
tered
notwithstanding
§
Pursuant
1291
ing
for Reconsideration.
of 28 U.S.C.
Motion
Appellate
Rules of
judgment.”
Rule 4 of the Federal
final
Id. at
the absence of a
timely filed a
Procedure,
Detective
530,
Notice of in also addressed The Court Mitchell of a defendant’s failed appealability
II on the summary judgment motion for JURISDICTION immunity, holding that ground qualified of Forsyth motion as A. Mitchell v. the denial of a defendant’s both judge trial “if ruling by well as a jurisdiction only Ordinarily, we have plaintiff, the facts are as asserted court. “final decisions” of district over qualify the defendant is not immune” for However, § 1291. 28 U.S.C. § purposes 1291 as “final orders.” exception created an has effect 527, 105 at Id. S.Ct. by a involving matters claims this rule for immunity from qualified official of public im The three attributes of such an 472 Forsyth, Mitchell v. U.S. suit. (1) mediately appealable “final order” are 525-30, L.Ed.2d 411 105 S.Ct. 86 “they ‘finally determine claims of (1985). whereby non-final exception This qualified immunity] separable as [such “final orders” for the decisions become from, to, rights collateral asserted policy- § from the 1291 stems purpose “ (2) important action’ are ‘too to be of the defense nature and substance driven “ (3) are ‘too inde denied review’ immunity, which is more than itself to pendent require of the cause liability,” actually but is a “mere defense appellate consideration be deferred until suit, and from complete immunity from ” adjudicated.’ the whole case Ashcroft risks, distractions and “inhibitions all the --, Iqbal, 556 U.S. S.Ct. action, discretionary and deterrence of (2009) (quoting L.Ed.2d Behrens v. service,” that public go people able Pelletier, in a being a defendant civil along with (1996); quoting L.Ed.2d 773 turn 526, 105 (empha lawsuit. Id. Corp., Industrial Loan Cohen v. Beneficial original). Recognizing sis 541, 546, 69 S.Ct. 93 L.Ed. altogeth court unique entitlement to avoid (1949)). “effectively if a erroneous er is lost case is understanding scope trial”, It is useful ly permitted go the Court held jurisdictional and limits of Mitchell’s hold- court’s “denial of in Mitchell that a district immunity, posture to the extent to examine the of Mitchell’s a claim of rights, rights, actually plaintiff’s the court cer violated tions of his constitutional other, identify core quite it would first the said are different. It does not issue, (2) rights then constitutional deter- summary judgment that a denial of follow (or rights were violated mine "whether those prong to an officer on Saucier's first remain),” questions and then whether of fact *9 qualified immunity looking at the facts fa- — immunity. turned to the issue of vorably plaintiff-necessarily deter- judgment summary with re- We note that prevail plaintiff must at sum- mines that the quali- prong the test for spect to the first of judgment mary on this issue on the merits Katz, immunity 533 fied under Saucier favorably looking at the facts claim — 2151, S.Ct. 150 L.Ed.2d U.S. 121 subtle, The difference is but to the officer. hand, (2001), summary one and 272 on exquisitely important. judgment the merits of whether an offi- on 988 by In not addressed the Court of re- the issue Supreme Court.
case before
summary judg-
i.e.,
for
summary
to cross-motions
the district court’s
sponse
Appeals,
have here —the district
ment —such as we
judgment holding that Mitchell’s actions
genuine
there was no
court “found that
law,
clearly established
which the
violated
facts,” and that Mitchell’s
dispute as to the
for our
regarded
“appropriate
court
as
violation of
alleged
conduct as
“was clear
immediate resolution.”
515,
at
Amendment....”
Id.
the Fourth
Finally,
Supreme
Court held
However,
2806.
the district
105 S.Ct.
Appeals
declining
of
erred in
Court
could
on
prevail
ruled that Mitchell
court
accept jurisdiction
over the
qualified immunity
if he had
ground
immunity,
it
reversed
faith,”
thus denied both
good
acted “in
court’s merits decision that Mitchell was
summary judgment
for
on
parties’ motions
qualified immunity.
not entitled to
thick-
plot
isolated issue. Then the
ened.
Qualified Immunity:
B.
Jurisdictional
remand from the Third Circuit Court
On
Considerations
court reconsidered
Appeals,
the district
protected by
quali
The intеrest
ruling
qualified immunity in
previous
its
singularly
is so
fied
doctrine
800,
Fitzgerald,
Harlow v.
light of
sufficiently
justifies
that it
important
more
(1982),
2727,
102
After personal professional consequences for qualified immunity denials of were immedi- ately appealable, the Court then turned to an officer of the law to have on his record
989 motion, such as this—even nial of a defendant’s and our pending judgment a case A manifest. though grant summary uncollectable —are involves a of judgment to example, might well find his lawyer, for same, plaintiff resisting a we believe becoming judge in a foreclosed. interest be distinguishable. Johnson to judicial only needs to watch federal One in hearings the United States
confirmation
Thus, recognizing
plow
that we
new
reality.
appreciate
Senate
ground
posture
because of the unusual
of
situation,
Rogers’s
we conclude that
Furthermore,
in
we have mind the Su-
grant
summary judgment
to Eric Muel
admonition
Hunter v.
preme Court’s
a matter of law on the
of a
224, 227, 112
ler as
merits
S.Ct.
Bryant, 502 U.S.
(1991)
curiam)
claim,
against
a defen
(per
L.Ed.2d 589
“we
constitutional
importance
repeatedly
asserting qualified immunity,
have stressed
dant
is the
immunity questions at the earli-
resolving
equivalent of a denial of such an assertion.
litigation.”
possible stage
est
denial where the district court
Such
has
cognizable
no
factual disputes
held that
col-
Finally,
judgment
the erroneous
our
exist vests us with
under the
poten-
standing
would leave
has
league
collateral order doctrine.
in the district
precedent
tial to function as
Idaho; yet another reason to examine it
There can be no
that the district
doubt
now.
finally
court’s order
and conclu
all
sively
liability
determined
issues
Analysis
C.
against Rogers. To hold otherwise would
“[Determining
genu
whether there is a
only unwisely
be not
to exalt form over
summary
fact at
ine issue of material
substance,
that,
ignore
but to
the fact
ac
is a
of law....” Ash
Court,
cording
Supreme
it is the
-,
Iqbal,
v.
556 U.S.
129 S.Ct.
croft
substance of the entitlement not to stand
(2009). However, because it is a
exception
trial that demands the
from the
near the law-fact
“legal question
sits
proof
pudding
usual rule. The
once
divide,”
id.
Court held
eating,
in the
again is
and here the result
Jones,
115 S.Ct.
Johnson
unpalatable
against
when measured
(1995)
L.Ed.2d 238
that a denial
Here,
entitlement under consideration.
defense on the
did the district court’s
ground
genuine
that there was a
issue of
judgment in favor of Eric Mueller conclu
yet
deprived
material fact
decided
be
sively
finally
decide the issue of liabili
of an immedi
that denial of the attributes
ty
impose
continuing
burdens
ately
Underlying
final order.
appealable
litigation
Rogers,
effectively
on
but
fore
a recognition
the Court’s decision was
potential
closed his
entitlement not
summary judg
the denial of a motion for
trial on damages
stand
and left outstand
ground
ment on the
of the existence of
ing judgment against
him that he violat
genuine issues of material facts does not
rights.
ed
Mueller’s constitutional
conclusively
finally determine the
wrong
simply
Such
result—-if
fact,
claim of
involved.
such
—would
“deny[
justice by delay.” Eisen v. Car
]
yet to be decided.
ruling leaves the issue
156, 171,
Jacquelin,
lisle and
U.S.
colleague in dissent has written an
Our
(quoting
In
merits,
though
liability
even
it was
not a “final
grant on the
alone is
decision”
itself,”
“independent
Iq
§
of the cause
pres-
not
1291. This case
under 28 U.S.C.
bal,
at -,
are
situation, however,
special
ents a
intеrtwined,”
“inextricably
opening
liability
qualified
which the issues of
“pendent
door to the doctrine of
Jurisdic
immunity are so related to each other
County
v. Chambers
tion.” See Swint
dispose
together
that we can
of them
Commission,
of pendent appellate
under the doctrine
(1995).2 As we held in
rendered in the “interest of The situation in Moore econo- mirrors my”- case, as follows: our own. the instant our rever- —-was sal of the district immu- court’s normally
We would not have nity ground determination on the over the rest of the case-the judgment in favor of alleged Brennan-because a Brennan has not a constitutional colleague subject may open 2. Our dismisses this discussion and the law on the be Supreme may principle. Court as “dicta.'' Dicta it We believe it fits the facts and be, case, suggests legal but it that the circumstances of this so we use it.
991
(9th
463,
indisputably
City Orange,
violation is
“coterminous v.
485 F.3d
470
of
with,
Cir.2007).
in” the second issue:
or subsumed
grant
‘partial’ summary
“The
of
summary
whether Brennan is entitled to
judgment is also reviewed de novo.” Delta
judgment on the basis of a constitutional
U.S.,
Savings
1017,
Bank v.
265 F.3d
1021
finding
violation. Our
on the first issue
(9th Cir.2001).
“may
This court
not affirm
necessarily
unavoidably
decides the
grant
a
summary judgment
of
if there is
we
second. Because
find
Brennan’s
any genuine issue of material fact or the
rights
immunity
were not violated for
incorrectly
district court
applied the sub
purposes, we must find that Brennan’s
stantive law.” Id.
respect
With
to Eric
rights
purposes
were not violated for
of
summary
Mueller’s motion for
judgment
obtaining affirmative relief.
against Rogers, we must view the evidence
(citations omitted). See also Dolihite v.
“in the light
Rogers
most favorable” to
as
(11th
1027,
Maughon, 74
n.
F.3d
1035
3
non-moving party
if
determine
there
Cir.1996) (exercising pendent
jurisdiction
genuine
was no
any
as to
material
“inextricably
over issues
intertwined” with fact and that Mueller
judg
was entitled to
issues);
immunity
core qualified
Kincade ment as a matter of law. Rene v. MGM
389,
City
Springs,
v.
Blue
64 F.3d
394-
Hotel, Inc.,
Grand
305 F.3d
(8th Cir.1995),
denied,
cert.
(9th Cir.2002)
(en banc) (quoting
issue of or is meaningful to ensure review’ of that is DISCUSSION sue.”). Summary A. Eric Rogers
A
wait
Mueller’s Motion for
holding
ap-
must
peal
ruling
Judgment Against Rogers
the adverse
him not only
about
sense,
makes no
but it
flies
in the
The first
we must answer
judicial
face of efficient
administration.
It
is whether
the district court erred in
satisfactory
is not a
answer
the context
granting summary judgment to Eric Muel
to tell
ler on the merits of his
stands,
but that it is uncol-
process pre-deprivation notice claim. We
lectible, and if he finds this unsatisfactory,
grant
cannot affirm a
of summary judg
appeal
he can
later.
if
genuine
ment
issue of material fact
Delta,
exists.
Ill
is in imminent danger
child
when she is
STANDARD OF REVIEW
custody
removed from her parents’
is a
fact,
material
because
is unlawful to takе
This court reviews de novo a district
custody
court’s denial of
child into state
without notice
judgment on the
of qualified immunity.
hearing
basis
Blankenhorn
and a
unless
child is
immi-
Rubin,
fact on the central issue of
of material
118 F.3d
danger. See Ram
nent
(9th Cir.1997).
im-
reasonably perceived
we
Because
whether
reviewing
Taige.
the evidence
Ram v.
conclude after
minent
See
favorable to
light
Rubin,
in the
most
(“taking
this issue
Ram’s
118 F.3d
*13
genuine
a
issue
Rogers that there was
a
custody
into
without notice and
children
Rogers was
fact as to whether
material
there was im-
hearing was unlawful unless
Taige
to
danger
imminent
confronted with
children”).
In this
minent
question,
in
we reverse
at the time
fully
our conclusion is
consistent
respect,
ruling.
district court’s
denial of the Muel-
with the district court’s
process right-to-a-
indicate,
lers’s substantive
facts
As the historical
(1)
judicial-hearing-claim
ground
on the
that
Rogers
medical doctors told
qualified
“[tjhese
Taige
that
had
create issues of fact
a
chance
circumstances
that there was 5%
infection; meningitis
Rogers
bacterial
had
“serious
whether Detective
suffi-
over
(2)
potentially
that she was
sepsis,”
or
judge.” Having
time to call a
so
cient
(3)
they
only 45
dying,
had
danger of
concluded,
move to the next
issue:
we
(4)
her,
act to
that the risk
minutes to
save
im-
is entitled to
whether
was less than the risk
of treatment
munity Mueller’s notice claims.
(5)
treatment,
Taige
if
left
foregoing
treatment,
Qualified Immunity
“she could
hospital
without
B.
increasingly ill and die before Mrs.
become
1. The Doctrine
hospital,”
Mueller could return
Qualified immunity
public
shields
there, having
Eric Mueller was not
perform
damages
officials from civil
for
delegated
daughter
the care of his
Cor-
“an
discretionary
ance of
functions.
It is
and be-
uncooperative
issa. Corissa was
suit rather than mere
hysterical. She had to be removеd
coming
liability;
like an absolute
defense
by
police
from the area
officers.
immunity,
effectively
it is
lost if a case is
calling
against
Eric but decided
considered
erroneously
go
to trial.”
permitted
it because:
Mitchell,
526,
472
at
105
U.S.
S.Ct.
quite
Mueller was
adamant
Corissa
immunity, an officer
Under
will
refusal,
I
was
her
believe
he
protected
be
from suit when
or she
time
receive needed
running out of
that,
if constitu
“makes
decision
even
treatment and did not want
to waste
deficient,
tionally
reasonably misappre
Eric or
having
valuable time
Corissa
argue over Dr. MacDonald’s recommen-
governing
hends the law
the circum
Furthermore, I
dations.
was concerned
Haugen,
stances.” Brosseau v.
543 U.S.
if Eric
consented and
even
Mueller
198,
596,
194,
reminded us to
the demands
(1987).
L.Ed.2d 523
This framework
acts mem
evaluating
the real world
right allegedly
means that “the
violated
govern
of
bers of the executive branch
at
appropriate
must be defined
level of
ment:
specificity before a court can
if
determine
fair,
to
always
policy,
Nor is it
or sound
was
established.”
v.
Wilson
compliance
demand official
with statute
603, 615,
Layne, 526 U.S.
119 S.Ct.
money
regulation
pain
and
on
of
dam-
(1999).
words,
ambiguous,
contradictory,
and in
only comply
such flux that officials can
Callahan,
U.S. -,
In Pearson v.
555
selectively.”
with or enforce them
See
(2009),
S.Ct.
L.Ed.2d 565
(1983).
Schuck, Suing
P.
Government 66
rigid two-step
Court abandoned SauciePs
circumstances,
In these
officials should
mandate,
protocol 10817 as an inflexible
always
not err
on the side of caution.
that,
concluding
the sequence
“while
set
a
range
with broad
of duties
“[0]fficials
forth there is often
it should
appropriate,
authority
swiftly
must often act
longer
regarded
mandatory.”
no
as
be
firmly at the risk that action deferred
Pearson, 129
S.Ct.
818. The court fur
will be futile or constitute virtual abdica-
“judges
ther held that the
of the district
tion of office.”
courts and the
appeals
courts of
should be
Scherer,
183, 196,
v.
Davis
permitted to exercise their sound discre
(quoting
S.Ct.
Although the
Saucier
contrary,
to further the de-
conclusion
this kaleido
procedure is intended
precedent,
constitutional
set
velopment
scopic
of facts
circumstances cre
procedure
often
opinions following
genuine
ates without
a classic
doubt
issue
meaningful
fail
to make a
contribution
of material fact on the central
For one
there
development.
thing,
reasonably
such
perceived
whether
im
Rubin,
are cases
which
constitutional
Taige.
minent
Ram v.
danger
question is so fact-bound that the deci-
(“taking
In ruling that Eric Mueller was returned to parents their for approximate- summary judgment entitled to on the ly two and one-half months. Id. claim that Detective Rogers violated his In reversing grant the judg- pre-deprivation constitutional to no ment city, to the we held the state’s failure tice, and that Detective was not provide to parents prior notice to a child’s qualified immunity, entitled to the district examinations, physical to suсh undertaken upon holding court relied our in Wallis to solely for an investigative purpose, violates parents conclude that both are uncondi parents’ the tionally pre-deprivation process entitled to due rights. notice. respectfully disagree We with the district Id. at 1141. light, viewed and it is not
However, any of the must be neither Wallis nor clearly es- opinion which it relies from that that an absent upon authorities clear par- rule that both family a constitutional in an intact as Eric parent tablish such notice given pre-deprivation must be Mueller, ents must at all be notified of times in the context medical intervention before to child happen is about to his where what In Wal- setting present of our case. parent present child’s other with the any notice lis, given parent neither was child. by police whatsoever of decision argument asked oral for coun- When investigatory ex- subject the children to authority best that was es- sel’s Consequently, ams. at the de- tablished time Detective parent to one and not whether notice that both clared imminent or would would not suffice the other notified, needed to be the answer parents was not satisfy procedural 14 in “footnote Footnote 14 was Wallis.” an in that case. It was not present simply follows: reads as issue. that the each family note claims of We Wallis, In contrast both Muellers separately. must be member assessed their voluntarily to have made the decision Here, nothing in the record before us taken mother to child child’s any- suggests Becky Wallis par- for medical evaluation. Both hospital loving than thing other a fit and mother. naturo- knew from the child’s own ents held, recently As the Third Circuit pathic physician probable it was pro- has no state interest whatever hospital doctors would resort tecting parents children from unless it spinal of antibiotics and a administration has some reasonable evidence precise situa- tap to evaluate medical is unfit parent and the child is immi- occasioned their concern. Un- tion which not, danger. government may nent derstandably appropriately, Constitution, with inter- consistent stay at home and entrust Mueller chose pose parent itself between a fit and her daughter medical care of to his his simply children because con- eminently De-
wife. It was reasonable for *17 or imagined duct—real the other —of Rogers to believe that Corissa tective parent. speaking Mueller was for her husband. Moreover, (internal n. 14. happened unlike what to Mrs. Id. at 1142 citation omit- husband, ted). was Taige’s or her mother more Wallis This footnote does no than fully notified aware of the doctors’s government’s contention address that concerns, input her and the detective’s because the Wallis children’s father was a were and evaluated reservations solicited children, suspected to the their made, any before decision and she was mother did not have a substantive due permitted or waiting to be “a room right to be process present. Footnote 14 nearby pro- area” other while the medical clearly far short of creating falls estab- being Id. at cedures were undertaken. right parents pre-depriva- lished of both 1142. by in a setting presented tion notice before us on There is noth- appeal. case cry context is a far from what
This give ing Wallis would Detective happened family. Wallis was Wallis fair notice that in this con- Rogers either parents’ protecting about children call parent, he had to an absent or behavior, treating a text possible criminal failing constitutionally to do so was child taken to a her moth- hospital sick er. The references to in Wallis unlawful. “parents” date, time,
During
argument,
oral
counsel for Eric
and location. Around 3:00 a.m.
consequences
Mueller was asked about the
Department
Idaho
of Health and Welfare
possible telephonic
of Eric Mueller’s
con-
employee Barbara Hamon called Eric
objections
sent over his wife’s
to the dis- Mueller at his home. Hamon informed
Ironically,
puted procedures.
his answer Eric
Mueller that
had been declared
was,
parent
all that
is
is needed to
“[o]ne
in imminent danger, why
daughter
his
had
go
objection.”
ahead over the other’s
If
been declared
imminent danger,
true,
peace
this is
officer in Detective Taige would remain at the hospital for
Rogers’s
rationally
situation could
assume
care,
further
and that a court hearing
talking
parent present
to the one
place.
would take
Both husband and wife
also
There
no practical
would
suffice.
hearing
attended the
day.
next
purpose
seeking consent
from Eric
The Muellers contend that
the notice
already
Mueller when Corissa Mueller had
given by Detective Rogers to Corissa
objected and would need to be restrained
Mueller
satisfy
was insufficient to
regardless of whether Eric Mueller con-
right
Mueller’s
to post-deprivation notice.
Furthermore,
sented.
had Corissa Muel-
For the
given
reasons
earlier in
Opin-
consented,
ler
there would have been no
ion,
disagree. Moreover,
we
precise
notify
need to
or to consult her husband.
question here is not whether Eric Mueller
was entitled
post-deprivation
notice of
Post-Deprivation
Notice
the pending hearing, but whether the Con-
assert,
The Muellers further
stitution
mаndated that Detective
ruled,
the district court
that Detective
Rogers be the one to deliver such notice.
Rogers violated Eric Mueller’s constitu
We answer this
negative.
procedural
process right
post-
tional
due
Detective
had a central role in this
deprivation notice. This court has recog
matter, but one that was confined to mak-
parent may
nized “that a
a cognizable
have
ing the decision that would transfer tempo-
due
post-deprivation
to a
rary custody of Taige to the State. At the
hearing when the state removes a child
point
decision,
he made that
the State took
from the parent’s custody
emergen
on an
over in the person
April
Auker from
cy
places
basis
the child with an indi
Child Protective Services. From that mo-
enjoy legal
vidual who does not
custody.”
ment,
say
Detective
had no
what-
LeFaver,
Caldwell v.
928 F.2d
soever in what would
(9th
happen
Taige.
All
Cir.1991).
Burt,
Campbell
See also
medical and
(9th Cir.1998).
custodial decisions were
to be
141 F.3d
To ac
by April
made
Auker and
doctors
St.
cord with
process, parents
*18
Hospital,
eventually
Luke’s
and
the state
given
post-deprivation
must be
notice of a
court, as the
hearing.
929;
recognized:
district court
Campbell,
See
141 F.3d at
Caldwell,
VI 341, 106 at S.Ct. 1092. ley, 475 U.S. CONCLUSION come as regrettably will Our conclusion the wisdom of the case illustrates This family, Mueller but it no consolation to the immunity. On one qualified doctrine of to upon law the need required is based hand, caring, and concerned loving, we find officials to make reason- govеrnment allow consid- doing their best to make parents decisions, even when the concerns able for their appropriate decisions ered happily turn driving those decisions out— other, we daughter. infant On sick For- in this case—to be unsubstantiated. doing their best to qualified doctors find concerned, Taige has tunately for all care for the proper medical provide episode good in health. emerged from child, have been in very might who well successfully Rogers has shown Detective An under- deadly circumstances. dire and immunity is entitled to he opin- difference of irreconcilable standable con- claim that he violated Eric Mueller’s doctor, ion arose between mother pre-deprivation notice. right stitutional officer expected peace Idaho law which at the time It was not established to resolve. One promptly navigate parents’ her that he removed the other in which case prevail, side would Eric custody required give that he was not. could Thus, Mueller notice of his decision. we in is not a scintilla of evidence There the district court’s denial of reverse both Rog- that Detective suggest this record to Rogers’s claim and summary judgment on any reason other ers made his decision for grant summary judg- court’s the district the best perception than his informed underlying to Eric on the ment Mueller mother and the child. welfare of both the addition, Rogers Detective has issue. specifies Protective Act Idaho’s Child successfully quali- shown he is entitled to safety all the health and times “[a]t immunity claim that he violated fied on the concern,” primary be the while child shall post- constitutional Mueller’s unity of the privacy “the preserving Accordingly, re- deprivation notice. we § 16-1601 family possible.” whenever I.C. proceedings further consistent mand for (2001). Rogers, person in Detective opinion. with this middle, steps to accom- took concrete Reversed and Remanded. modate both interests. Mueller surprised No one is that Corissa WALLACE, Judge, Senior Circuit umbrage taken and her husband have dissenting part: concurring part, and their pa- decision to override State’s majority’s agree I with the conclusion them, rental concerns. For this was Rogers quali- that Detective is entitled to But, distressing event. terrible and immunity proce- from Eric fied Mueller’s render Detective accountable However, I part dural due claims. discretionary for a difficult this lawsuit majority significant opinion with the two other officers
decision would deter First, majority im- respects. I believe in the future from mak- similarly situated appellate exercises properly all, a situation which ing any decision partial over the court’s district pre- which is unacceptable would be to Eric on his designed cisely what is plainly process claims. This decision way In no can Detective to avoid. final, appealed. so it cannot be Sec- “plainly to have either incom- be said been faith, ond, majority’s I articu- disagree or to with the to have acted bad petent,”
1001
In that
step
regard, Congress
provided
the first
of
has
foregoing
reasons for
lated
jurisdiction
immunity analysis.
appeals
the courts of
review
the Saucier
all “final decisions of the district
majority’s approach on this issue mis-
courts.”
The
§ 1291. A “final
precedent, and 28 U.S.C.
decision” is one
apprehends Supreme Court
litigation
in address-
that “ends the
on the merits and
the discretion we retain
abuses
appeal.
nothing
on
leaves
for the court
qualified immunity claims
do but
ing
the judgment.” Coopers
Lyb
execute
&
majority’s
in the
I therefore concur
463, 467,
Livеsay,
rand v.
437 U.S.
98
that Detective
is enti-
conclusion
(1978) (internal
2454,
S.Ct.
that the court summary judgment liabil- summary judgment grant on that “a partial a over case). immunity ity qualified in a as a matter of law on the Eric Mueller claim, of a constitutional merits however, case, majority the casts In this im- asserting qualified against defendant authority, and exercises binding aside this of a denial of munity, equivalent is the court’s non- over the district denial where the such an assertion. Such sum- final, interlocutory partial decision: a cognizable that no court has held district Eric on the merits of his mary judgment to juris- dispute factual exists vests us with Although process claims. procedural due order doc- diction under the collateral a number of novel majority presents the the dis- majority trine.” The reasons that justify departure this legal theories to partial summary judgment none survives serious trict court’s precedent, scrutiny. continuing “impose[s] burdens Rogers, effectively fore- litigation on [and]
A.
not to
potential
his
entitlement
close[s]
majority, with
begin,
I
as does the
left outstand-
damages
stand trial on
Supreme
Forsyth,
v.
where the
Mitchell
him that
violat-
ing judgment against
he
order,
held that a district court’s
Court
rights.”
ed Eric Mueller’s constitutional
immunity is
denying
qualified
a claim of
basis,
majority
concludes that
On this
within the
appealable
“an
‘final decision’
of the entitlement not to
the “substance
§ 1291 notwithstand-
meaning of 28 U.S.C.
exception
...
stand trial
demands
472
judgment.”
of a final
absence
final deci-
from the usual rule”
511, 530,
2806, 86 L.Ed.2d
U.S.
105 S.Ct.
§
appealable pursuant
are
1291.
sions
(1985).
conclusion,
411
reach this
To
majority’s attempt
expand
The
Mitch
invoked the collateral order doctrine
Court
jurisdictional holding
squarely fore
ell’s
is
Indus.
established
Cohen Beneficial
Supreme
closed
Court’s decision
Corp.,
93
Loan
S.Ct.
case,
In
plaintiff
Johnson.
(1949).
524-25,
L.Ed.
Id. at
105 S.Ct.
charged
using
the defendants with
exces
judicially
2806. This
crafted convention
at 307-
during
sive force
arrest. 515 U.S.
prejudg-
that a limited class of
“recognizes
The defendants filed a
Johnson’s
ruling, by expanding the collateral order
judgment
the
from which the defen-
Like
beyond
properly
doctrine
con-
Johnson,
its
narrow
appealed in
the district
dants
fines,
important principles
contravenes
of
partial summary judgment pres-
court’s
judicial
finality,
modesty, and efficient case
without a doubt the sort of fact-based
ents
Johnson,
management. See
515 U.S. at
scope
of law outside the
of Mitchell’s
(explaining
jority reviews a number of “historical jurisdiction. by exercise of But reviewing purportedly militating facts” favor of now, partial summary judgment order Thus, order reversal. as with the John- majority realizes the risk described son, partial summary the district court’s “additional, unnecessary, Johnson does not the sort of judgment present court work either when in- appellate [the abstract issue of law that is immedi- purely terlocutory appeal] presents appellate ately appealable under Mitchell. developed with record or courts less when that, had trial brings appeal them given
This conclusion makes sense
underlying
simply proceeded,
would have turned out
jurisdictional principles
above,
unnecessary.”
described
to be
Mitchell decision. As
case,
application
the strict
Indeed,
logic
internal
in this
because
”).
out in Cohen
that Detective
the criteria set
alreаdy conclude
we
proce-
Eric’s
immunity from
is entitled to
majority
suggests
sig-
there is
The
also
claims, there is absolute-
dural
of Mitchell’s case
“posture
nificance
of those
to rule on the merits
ly no need
Court,” implying
before
claims.
appellate
the Court did
fact exercise
that we should
majority suggests
over not
the denial
judgment
final
of the
disregard the “form”
immunity,
but also
rule,
the “substance”
to vindicate
reading
A
liability.
close
protect pub-
doctrine-to
disproves
majority’s implica-
Mitchell
*24
litigation.
burdens of
lic
from the
officials
True, the district court in that case
tion.
in our case 10836
it
not at all clear
But
is
summary
defendants’
both denied the
subject to
Rogers would be
that Detective
immunity
judgment
qualified
grounds,
on
after we
litigation”
any further “burdens
summary judg-
the
granted
plaintiffs
quali-
court’s denial of
reverse the district
However,
liability.
made clear
ment on
as
immunity.
agree
all
that Detec-
fied
We
beginning
opinion,
at
of its
the Court
the
immunity from suit.
Rogers deserves
tive
jurisdiction
quali-
the
exercised
over
Therefore, although the district court has
immunity portion of
the district
fied
summary
to
partial
judgment
granted
Mitchell,
513,
at
court’s order.
U.S.
Eric,
judgment
longer
that
would no
be
(describing the
on
B.
Thus,
proceed
step
primary
with
two.
whether,
appeal
assuming
issue in this
is
majority
theory
also advances the
rights
pre
Eric has constitutional
appellate jurisdiction over
that we have
notice,
post-deprivation
rights
those
were
summary judgment ruling be
partial
at the time in question.
established
“inextricably
ruling
cause the
is
inter
inquiry
entirely
That
different from the
with the district court’s denial
twined”
inquiry
an
required
appeal
to resolve
majority
qualified immunity. The
cites
Commission,
partial summary judg-
the district court’s
County
Swint v. Chambers
II.
those facts establish a constitutional viola-
I turn
Rogers’ appeal
next to Detective
law”). Thus,
pure question
tion—“is a
the
quali-
from
district court’s denial of his
contrary
majority’s
reasoning, the
appeal
fied
claim. This
is un-
dispute
existence of
factual
as to the
doubtedly subject to immediate review un-
danger”
justify skip-
“imminent
does not
Mitchell,
der
I agree
that the district
ping
step
the first
of Saucier.
However,
court
I
should be reversed.
am
majority
concerned with how the
Unfortunately,
reaches
majority misappre-
the
that conclusion.
principle, stating
hends this
that “if a fact-
finder were to decide that
majority recounts,
As the
-
indeed
exigent
confronted with
circum-
Callahan,
in
Court
Pearson v.
U.S.
stances, his failure to contact Eric would
-,
129 S.Ct.
As an initial is unclear what precisely convey meant to with III. all, every constitutional rul- dicta-after reasons, For these I concur in the necessarily given “fact-bound” majority’s Rog- conclusion that Detective disputes, courts decide concrete not ab- *27 ers qualified immunity. is entitled to hypothetical But in questions. stract Bu- However, I respectfully dissent from the Maine, by chanan v. the case cited majority’s attempt to exercise appellate dicta, support in Pearson in of this jurisdiction partial over the district court’s skipped the First the first step Circuit summary judgment in favor of Eric on his not because of factual disputes Saucier procedural due process claims. We must record, because of the “complexity but jurisdiction remember our to hear faced], and since the[constitutional appeals strictly limited statute and perfectly it is clear that the officers are precedent. partial To hold that a sum- immunity.” entitled to 469 F.3d mary judgment on the merits is akin to a (1st Cir.2006). fact, court in Bu- qualified immunity pur- denial of for the expressly recognized chanan that when poses appellate of our is a performing step analysis, the first “the striking expansion and unwarranted of our threshold is whether all the un- jurisdiction. limited any contested facts and contested facts plaintiffs looked at in show a consti- favor added). (emphasis tutional violation.” Id.
Therefore, language in Pearson does support position that the existence