Miller v. Gammie

Citation335 F.3d 889
Decision Date09 July 2003
Docket NumberNo. 01-15491.,01-15491.
PartiesChristine 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.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

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).


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

SCHROEDER, Chief Judge.


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 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.


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 and admitted to sodomizing Joe three to five times.


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.


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 deferring a ruling on immunity for a limited time to...

To continue reading

Request your trial
1574 cases
  • Chamber of Commerce of U.S. v. Lockyer, 03-55166.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 20 Abril 2004
    ...the NLRA. Therefore to the extent that City of Seward states otherwise, we hold that it has been overruled. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.2003) (en banc) (holding that we may overrule prior circuit precedent without taking a case en banc when the Supreme Court has "underc......
  • Earth Island Inst. v. Crystal Geyser Water Co.
    • United States
    • U.S. District Court — Northern District of California
    • 23 Febrero 2021
    ...Court need not go so far as to conclude that these Supreme Court cases are "clearly irreconcilable" with New SD. See Miller v. Gammie , 335 F.3d 889, 900 (9th Cir. 2003) (explaining that when Ninth Circuit and subsequent Supreme Court precedent conflict, "district courts should consider the......
  • Atkins v. Davison
    • United States
    • U.S. District Court — Central District of California
    • 1 Diciembre 2009 where the case at bar is factually distinguishable from the Supreme Court case. (See Answer at 15-16 (citing Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.2003) (en banc) ("We hold that the issues decided by the higher court need not be identical in order to be controlling. Rather, the r......
  • Agua Caliente Band of Indians v. Riverside Cnty.
    • United States
    • U.S. District Court — Central District of California
    • 8 Febrero 2016
    ...since Agua Caliente and Fort Mojave were decided, and therefore this Court is not bound by those decisions.4 See Miller v. Gammie , 335 F.3d 889, 899 (9th Cir.2003) (en banc ) ("[C]ircuit precedent, authoritative at the time that it issued, can be effectively overruled by subsequent Supreme......
  • Request a trial to view additional results
1 firm's commentaries
  • How And When To Ask A Court To Overturn Intermediate Appellate Precedents
    • United States
    • Mondaq United States
    • 3 Octubre 2022
    ...with an intervening decision by the U.S. Supreme Court or by the entire circuit sitting en banc. Id. (citing Miller v. Gammie, 335 F.3d 889, 899, 900 (9th Cir. 2003), and Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir. 2001)). To a lawyer, trained to argue that almost any given case is cle......
4 books & journal articles
    • United States
    • William and Mary Law Review Vol. 63 No. 3, February 2022
    • 1 Febrero 2022
    ...from a showing of likely success on the merits of copyright infringement claims. Id. at 979. (321.) Id. at 981 (quoting Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en (322.) Id. at 981-82; see also Sony Comput. Ent, Inc. v. Connectix Corp., 203 F.3d 596, 608 n.l 1 (9th Cir. 2000) (......
  • Permitting After-Acquired Evidence of Employee Qualifications Perpetuating a McKennon Distinction Without a Difference.
    • United States
    • Suffolk University Law Review Vol. 55 No. 1, January 2022
    • 1 Enero 2022
    ...part) (criticizing majority for failing to afford Auer deference to EEOC interpretation of two-part qualification test); Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc) (explaining how circuit rules allow overturning prior circuit opinion due to intervening higher authority). ......
  • The Officer Has No Robes: a Formalist Solution to the Expansion of Quasi-judicial Immunity
    • United States
    • Emory University School of Law Emory Law Journal No. 66-1, 2016
    • Invalid date
    ...a duty functionally comparable to one for which officials were rendered immune at common law . . . .'" (quoting Miller v. Gammie, 335 F.3d 889, 897 (9th Cir. 2003))).330. Although this Comment is directed at what the Supreme Court should do, Congress remains free to weigh in. There is prece......
  • Summers v. Earth Island Institute: Its Implications for Future Standing Decisions
    • United States
    • Environmental Law Reporter No. 40-10, October 2010
    • 1 Octubre 2010
    ...remand. Id. at 972, 982 n.1. 170. Id. at 974, 978. 171. Id. at 974-76. 172. Id. at 975. 173. Id. at 975-76 (quoting Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003)). the Ninth Circuit’s Citizens I decision was distinguishable from and hence not clearly irreconcilable with Summers : he C......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT