Miller v. Gammie, No. 01-15491.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Schroeder
• Citation: 335 F.3d 889
• Parties: Christine L. MILLER, Guardian Ad Litem; Tonnie Savage, Guardian Ad Litem, Plaintiffs-Appellees, v. Nancy GAMMIE; Fran Zito, Defendants-Appellants, and Nevada Child And Family Services Department; Nevada Child Welfare Division; State of Nevada; Volunteers of America of Nevada, Defendants.
• Docket Number: No. 01-15491.
• Decision Date: 09 July 2003

335 F.3d 889 Christine L. MILLER, Guardian Ad Litem; Tonnie Savage, Guardian Ad Litem, Plaintiffs-Appellees,
v.
Nancy GAMMIE; Fran Zito, Defendants-Appellants, and
Nevada Child And Family Services Department; Nevada Child Welfare Division; State of Nevada; Volunteers of America of Nevada, Defendants. No. 01-15491. United States Court of Appeals, Ninth Circuit. Argued and Submitted December 9, 2002. Filed July 9, 2003.

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Stephen D. Quinn, Carson City, Nevada, for the defendants-appellants.

Calvin R.X. Dunlap and Carolyn Kubitschek, Lansner & Kubitschek, New York, New York, for the plaintiffs-appellees.

Appeal from the United States District Court for the District of Nevada; Howard D. McKibben, District Judge, Presiding. D.C. No. CV-99-00275-HDM(PHA).

Before: SCHROEDER, Chief Judge, KOZINSKI, O'SCANNLAIN, RYMER, T.G. NELSON, TASHIMA, McKEOWN, FISHER, PAEZ, TALLMAN, and CLIFTON, Circuit Judges.

Opinion by Chief Judge SCHROEDER; Concurrence by Judge KOZINSKI, Concurrence by Judge O'SCANNLAIN, Concurrence by Judge TASHIMA.

SCHROEDER, Chief Judge.

I. OVERVIEW

We took this case en banc to clarify the narrow scope of absolute immunity after Supreme Court decisions have taken an approach that is fundamentally inconsistent with the reasoning of our earlier circuit authority involving immunity for family-service social workers. Compare Babcock v. Tyler, 884 F.2d 497, 502-03 (9th Cir.1989), with Kalina v. Fletcher, 522 U.S. 118, 127-29, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997), and Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 432-37, 113 S.Ct. 2167, 124 L.Ed.2d 391 (1993).

The three-judge panel felt itself bound by Babcock and therefore held that the social worker and the therapist in this case enjoyed absolute rather than qualified immunity for all their actions "taken in connection with, and incident to, ongoing child dependency proceedings." Miller v. Gammie, 292 F.3d 982, 989 (9th Cir.2002) (emphasis omitted) (quoting Babcock, 884 F.2d at 503). The Supreme Court adopted a different analysis in Antoine and Kalina, however, that makes absolute immunity depend on the particular function performed rather than on whether the state officer's position had a general relationship to a judicial proceeding.

We are asked to review a district court order that deferred a ruling, pending limited discovery, on the defendants' motion to dismiss on grounds of absolute immunity. Because we conclude that the order is not appealable, we construe this notice of appeal as a petition for a writ of mandamus. See Cordoza v. Pac. States Steel Corp., 320 F.3d 989, 996-98 (9th Cir.2003). We review the merits of the district court's order on the scope of absolute immunity within the framework of the five factors set out in Bauman v. United States District Court, 557 F.2d 650, 654-55 (9th Cir.1977), which include whether the district court clearly erred.

The three-judge panel, in reversing the district court, felt itself bound by our prior circuit law and held that the district court should have dismissed the case on immunity grounds. We now clarify our law concerning the sometimes very difficult question of when a three-judge panel may reexamine normally controlling circuit precedent in the face of an intervening United States Supreme Court decision, or an

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intervening decision on controlling state law by a state court of last resort. We hold that in circumstances like those presented here, where the reasoning or theory of our prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher authority, a three-judge panel should consider itself bound by the later and controlling authority, and should reject the prior circuit opinion as having been effectively overruled. We hold that Antoine and Kalina effectively overruled Babcock to the extent its reasoning is inconsistent with them and that the district court did not err in ordering limited discovery as to the functions performed by the defendants. We remand to the district court to apply the appropriate analysis to the facts developed after further discovery.

II. FACTUAL BACKGROUND

The facts are not complex. At this stage of the litigation, we must accept them as they were set forth in the complaint. See Mitchell v. Forsyth, 472 U.S. 511, 528 & n. 9, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). They are recited in more detail in the panel opinion. See Miller, 292 F.3d at 983-86.

In December 1996, the Nevada Division of Child and Family Services (DCFS) removed twelve-year-old Earl Doe and his older brother from their home to protect them from the horrific physical and sexual abuse they had suffered, and to prevent them from inflicting abuse on other children. DCFS placed them in an emergency foster-care facility. Defendant-Appellant Nancy Gammie, a DCFS social worker, was responsible for Earl's case, and Defendant-Appellant Fran Zito, a DCFS social therapist, provided therapy to Earl.

Soon after removing Earl from his home, DCFS petitioned the Nevada Juvenile Court to declare Earl a ward of the State and to grant DCFS custody. The juvenile court approved the removal and placed Earl into the custody of DCFS. A clearly troubled youth, Earl stumbled through foster care and eventually came to live in a Volunteers of America (VOA) emergency shelter.

In her six-month report to the juvenile court, Gammie elaborated on the extent of Earl's sexual-abuse history, informed the court of his current placement, and of her plan to place Earl "into a more homelike setting within the next few weeks." The juvenile court approved Gammie's recommendations.

On December 2, 1997, Gammie placed Earl into John and Jane Roe's home as a foster child. John and Jane were the parents of two young children, but Gammie did not tell the Roes about Earl's abusiveness. The next day, Gammie submitted her second six-month report to the juvenile court. In it, she reported Earl's placement in the Roes' home; however, she did not mention the Roes' young children. Gammie noted that Earl still required extensive therapy in order to deal with his past sexual abuse "and to reach the point of being safe with other children."

Zito treated Earl during his placement with John and Jane, who accompanied him to therapy sessions. It was revealed to Zito that Earl had both suffered sexual abuse in prior placements and had sexually abused others. Jane asked Zito if her natural children were safe with Earl in their home. Zito assured Jane that she had nothing to worry about.

According to the complaint, Earl's placement with John and Jane Roe was tragically unsuccessful. Only two months after Earl's placement, the Roes' son, Joe, informed his parents that Earl had molested him. Two days later, Earl was arrested

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and admitted to sodomizing Joe three to five times.

III. PROCEDURAL BACKGROUND

On June 16, 1999, Tonnie Savage, as guardian ad litem for Earl Doe, the real party in interest, filed a complaint in Nevada state court alleging civil-rights violations under 42 U.S.C. § 1983 and various state-law claims in connection with Earl's placement in John and Jane Roe's home. The defendants included DCFS, Gammie, Zito, and VOA. Joe Roe, through his guardian ad litem, Christine Miller, also filed suit against the defendants but has since settled. The claims against VOA were settled as well.

After removal to federal district court, DCFS, Gammie, and Zito moved for dismissal on the pleadings. The district court dismissed the claims against DCFS and the claims against Gammie and Zito in their official capacities on Eleventh Amendment grounds. The court remanded the state-law claims to Nevada state court. Those rulings have not been appealed.

With respect to the claims against Gammie and Zito in their individual capacities, the district court declined to grant or deny the motion to dismiss insofar as it requested dismissal upon the basis of absolute immunity. Explaining that not enough information was available to determine whether absolute immunity applied, the court granted leave to raise absolute immunity as a defense at the completion of limited discovery. Because an outright denial of the motion to dismiss on absolute immunity grounds clearly would have been an appealable order under Mitchell v. Forsyth, and the district judge wanted to avoid a time-consuming appeal if possible, the judge did not expressly deny the motion to dismiss on the pleadings. Rather, the court entered an order lifting the stay of discovery for 120 days to permit discovery on the narrow and limited issue of absolute immunity. It deferred ruling on immunity pending such discovery. The defendants filed a timely notice of appeal from that procedural order.

IV. APPELLATE JURISDICTION

This is an appeal from the deferral, pending limited discovery, of a ruling on a motion to dismiss on grounds of absolute immunity. Orders denying immunity are generally appealable. Mitchell, 472 U.S. at 525, 105 S.Ct. 2806. The district court in this case, however, did not enter an order that categorically denied the motion to dismiss on the ground of absolute immunity. Rather, it deferred ruling on Gammie and Zito's absolute immunity claim until completion of limited discovery. The three-judge panel treated that deferral as an effective denial of the motion, and it assumed appellate jurisdiction under the collateral-order doctrine stemming from the Supreme Court's decision in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Miller, 292 F.3d at 987; see also Mitchell, 472 U.S. at 527, 105 S.Ct. 2806. The panel pointed out that the Supreme Court has held that absolute immunity, where applicable, is a protection not only from liability but also from being answerable in any way for one's actions. Miller, 292 F.3d at 987 (citing Mitchell, 472 U.S. at 525-26, 105 S.Ct. 2806).

District court orders...