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Demaree v. Pederson

United States Court of Appeals, Ninth Circuit

January 23, 2018

Lisa Demaree, wife; Anthony ("A.J.") Demaree, husband; on behalf of themselves and as the natural guardians and guardians ad litem for their three minor children, T.D., J.D., and L.D., Plaintiffs-Appellants,
Laura Pederson; Amy Van Ness, Defendants-Appellees.

          Argued and Submitted July 6, 2016 San Francisco, California

         Appeal from the United States District Court for the District of Arizona Roslyn O. Silver, Senior District Judge, Presiding D.C. No. 2:11-cv-00046-ROS

          Richard R. Treon (argued), Treon & Aguirre PLLC, Phoenix, Arizona, for Plaintiffs-Appellants.

          Michael G. Gaughan (argued), Assistant Attorney General; Mark Brnovich, United States Attorney; United States Attorney's Office, Phoenix, Arizona; for Defendants-Appellees.

          Before: Marsha S. Berzon, and N. Randy Smith, Circuit Judges, and Jack Zouhary, [*] District Judge.


         Civil Rights

         The panel affirmed the district court's order denying plaintiffs' motion to seal the district court's summary judgment order, reversed the district court's order granting summary judgment in favor of social workers on the basis of qualified immunity, and remanded for further proceedings.

         Plaintiffs alleged that Child Protective Services socials workers violated their and their children's constitutional rights to family unity and companionship by temporarily removing the children from their home without a warrant or court order. The social workers removed the children during a possible sexual abuse investigation after a Wal-Mart employee contacted police that while printing family photos dropped off by plaintiffs, they noticed several pictures portraying child nudity.

         The panel first rejected defendants' contention that plaintiffs' appeal was not timely filed because plaintiffs' "lodged" motion to alter or amend the judgment under Federal Rule Civil Procedure 59 could not toll the deadline for appeal under Federal Rule Civil Procedure 4(a)(4). Applying Hamer v. Neighborhood Hous. Servs. of Chi., 138 S.Ct. 13, 16-17 (2017) the panel held that Rule 4(a)(4) is not jurisdictional but rather is a mandatory claim-processing rule. The panel then held that the appeal was timely because the Rule 59 motion was actually physically delivered to the clerk when it was timely lodged in conjunction with the request to file under seal, and the district court treated the motion as filed when it ruled on the merits of the motion.

         The panel held that the social workers were not entitled to qualified immunity. Viewing the facts in the light most favorable to the plaintiffs, the social workers did not have reasonable cause to believe the children were at risk of serious bodily harm or molestation when they removed the children from their home without judicial authorization. The panel further held that plaintiffs' constitutional right was clearly established at the time. The panel held that specific judicial precedent clearly gave notice to the social workers that children could not be removed from their homes without a court order or warrant absent cogent, fact-focused reasonable cause to believe the children would be imminently subject to physical injury or physical sexual abuse.

         The panel affirmed the district court order denying plaintiffs' motion to seal the summary judgment order. The panel held that: (1) the district court properly protected the privacy of the children by maintaining under seal any motions or exhibits containing their full names or identifying information; (2) Arizona law prohibited the release of files related to investigations conducted by child protective services; and (3) the district court order employed clinical, anatomically correct language to briefly describe the nudity depicted in the photographs at issue.

         Concurring, Judge Berzon wrote separately to emphasize why it is essential that the courts scrupulously guard a child's constitutional right to remain at home absent a court order or true exigency.

         Concurring and dissenting in part, Judge Zouhary agreed with the per curiam opinion as it pertained to the timeliness of the appeal and the district court denial of the motion to seal the summary judgment opinion. He respectfully dissented from the majority view on the merits of the case. He would have affirmed the district court order granting summary judgment based on qualified immunity.

         Dissenting on jurisdiction and timeliness grounds, Judge N.R. Smith stated that because plaintiffs failed to file their notice of appeal within thirty days of the judgment, the court had no jurisdiction or authority over their appeal.


          PER CURIAM [1]

         As this court has stated repeatedly, families have a "well-elaborated constitutional right to live together without governmental interference." Wallis v. Spencer, 202 F.3d 1126, 1136 (9th Cir. 2000); accord Kirkpatrick v. Cty. of Washoe, 843 F.3d 784, 789 (9th Cir. 2016) (en banc); Burke v. Cty. of Alameda, 586 F.3d 725, 731 (9th Cir. 2009); Rogers v. Cty. of San Joaquin, 487 F.3d 1288, 1294 (9th Cir. 2007); Mabe v. San Bernardino Cty., 237 F.3d 1101, 1107 (9th Cir. 2001); Ram v. Rubin, 118 F.3d 1306, 1310 (9th Cir. 1997). We consider here Lisa and Anthony ("A.J.") Demaree's contention that social workers Laura Pederson and Amy Van Ness violated their constitutional rights to family unity and companionship, and their small children's as well, by removing the children from home without a warrant or court order.

         I. Background

         A.J. Demaree dropped off some family photos to be printed at a Wal-Mart in Arizona on Friday, August 29, 2008. While developing the pictures, an employee noticed that several pictures portrayed nude children. Wal-Mart called the police. Detective John Krause came and collected the pictures. On Saturday, he photocopied the ones that concerned the Wal-Mart employee and went to the Demarees' home.

         Once there, he and his partner separately interviewed parents Lisa and A.J. Demaree. Both parents looked at the pictures, identified their daughters-five-year-old T.D., four-year-old J.D., and one-and-a-half-year-old L.D.-and said the pictures had been taken "in the last couple of months" by one or both parents. When asked what he would do with one photo, which portrayed his three children lying down on a towel nude, focusing on their exposed buttocks but with some genitalia showing, he responded, "I'm not going to do anything with that one. That's not going in a photo album; that's just one we have." Krause said, "Obviously you're not going to share it with somebody, I would hope, " to which A.J. responded, "No, absolutely not!" Krause then asked why he would take the photo in the first place, and A.J. responded, "So when we look back on em years later, look at their cute little butts."

         None of the photographs portrayed children engaged in sexual activity. None portrayed the children's genitalia frontally.

         After the interviews, the detectives took T.D., J.D., and L.D. to forensic and medical exams to investigate possible sexual abuse. The physical exams came back normal for all three children. After the interviews were finished, Krause's partner dropped the children back off with their parents. Krause wrote in his report, "[a]pparently after the forensic interviews and medical exams were completed, [Child Protective Services] declined to remove the children from the parent's custody, and had directed [his partner] to return the girls to Lisa and A.J."[2]

         While the exams were in progress, the police department requested and received a warrant to search the Demarees' home. Executing the warrant, the department seized all the evidence that might be relevant to a child pornography investigation: computers, printers, photographs, cell phones, undeveloped film, floppy discs, DVDs, CDs, VHS tapes, and cameras.

         As the home search was nearing its end, and after the children had been returned to their parents, Child Protective Services ("CPS") investigating officer Laura Pederson called one of the police officers to discuss the case. After the conversation, she decided to drive over to the house. There, Pederson discussed with Krause the evidence seized, the content of the pictures, and Krause's expectation that felony child sexual exploitation charges would be brought against both parents.

         After reviewing the evidence Krause showed her, Pederson decided to take the children into emergency temporary custody, without obtaining a court order or a warrant. She later said, "I was relying on the fact that . . . at the time there was a pending criminal investigation with both parents named as suspects. I was relying on information that Krause obtained during the investigation . . . his opinion of the criminal acts that were committed, my viewing of the pictures and the fact that the-all of this suggested these children were at risk of further exploitation." She discussed her recommendation with her supervisor, Amy Van Ness, who agreed.

         Pederson gave the parents a "Temporary Custody Notice." In that notice, in the space provided for investigators to "[c]heck the circumstances (imminent risk factor) that most clearly describes the reason temporary custody was necessary, " Pederson checked "[o]ther, " and wrote, "mother & father have taken sexually explicit pictures of all three children." She did not check the box for situations where "[t]he child's caregiver has engaged in sexual conduct with a child, or has allowed the child to participate in sexual activity with others." On the next page, in the space provided for investigators to inform parents of the "complaint or allegation concerning [their] family [that] is currently under investigation, " she wrote, "Sexual Abuse-child pornography/exploitation."

         Pederson then drove T.D. and J.D. to one foster home and L.D. to another. Two days later, Pederson brought the children to their grandparents' home, where all three stayed for about a month, after which they were returned to their parents. The juvenile court never adjudicated the children abused or neglected, and neither A.J. nor Lisa were arrested or charged with any crime.

         A.J. and Lisa later filed the instant action on behalf of themselves and their children, alleging violations of various constitutional rights. The district court dismissed the claims against all defendants except Krause, Pederson, and Van Ness. The Demarees later settled their claims against Krause.

         As relevant here, the district court granted summary judgment in favor of Pederson and Van Ness based on qualified immunity. It ordered the parties to propose appropriate redactions to the summary judgment order, which was temporarily filed under seal on April 23, 2014. On May 21, the Demarees requested leave to file under seal a motion to alter or amend the judgment under Federal Civil Rule 59. Six days later, the district court denied the motion for leave to file under seal, and also denied the Demarees' request to seal the summary judgment order in its entirety. The Demarees filed this appeal on June 23.

         II. Discussion

         A. Timeliness of the Appeal

         Before we address the merits, we consider whether this appeal is timely. Three court rules are pertinent to our inquiry here: First, Federal Rule of Appellate Procedure 4(a)(4)(A) tolls the deadline to file a notice of appeal upon the timely filing of certain motions, including a motion to alter or amend the judgment under Federal Rule of Civil Procedure 59, such that the time to appeal-here, 30 days-runs "from the entry of the order disposing of the last such remaining motion." Second, Federal Rule of Civil Procedure 5(d)(2) provides that "[a] paper is filed by delivering it . . . to the clerk." And third, Arizona Local Rule 5.6(c) requires a document meant to be filed under seal first to "be lodged with the Court in electronic form" using the electronic filing system.

         The Demarees accordingly "lodged" a copy of their Rule 59 motion and requested leave to file it under seal. The district court denied the request. But its order, although in form a denial of the request to file the motion under seal, did not refer to or discuss any of the factors relevant to filing documents under seal. Cf. Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003). Instead, the order addressed only the merits of the Rule 59 motion, denying the request to file under seal because the underlying motion was "unnecessary" and "a repeat of arguments previously made, at great length, in Plaintiffs' filings." The Demarees filed their Notice of Appeal twenty-seven days after the issuance of the order denying leave to file their Rule 59 motion under seal, and fifty-five days after the summary judgment order. Pederson and Van Ness contend that the Demarees' appeal was not timely because the Rule 59 motion was never actually filed and therefore could not toll the deadline for appeal under Rule 4(a)(4).

         (i) Jurisdiction versus mandatory claim-processing

         The parties describe the timeliness issue as jurisdictional. Under a recent Supreme Court case, it is not.

         "[A]n appeal filing deadline prescribed by statute will be regarded as 'jurisdictional'. . . . But a time limit prescribed only in a court-made rule . . . is not jurisdictional; it is, instead, a mandatory claim-processing rule. . . ." Hamer v. Neighborhood Hous. Servs. of Chi., 138 S.Ct. 13, 16-17 (2017). In other words, "[i]f a time prescription governing the transfer of adjudicatory authority from one Article III court to another appears in a statute, the limitation is jurisdictional; otherwise, the time specification fits within the claim-processing category." Id. at 20 (internal citations and footnote omitted).

         Before Hamer, we held the timeliness rule at issue here jurisdictional. See United States v. Comprehensive Drug Testing, Inc., 513 F.3d 1085, 1100 (9th Cir. 2008), aff'd and adopted en banc, United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1167 (9th Cir. 2010) (en banc). Comprehensive Drug Testing recognized that "Fed. R. App. P. 4(a)(4) does not contain language from 28 U.S.C. § 2107, " or any other relevant statute.[3] But Comprehensive Drug Testing regarded Bowles v. Russell, 551 U.S. 205, 214 (2007) as indicating that all timeliness problems in notices of appeal were jurisdictional, whether directly traceable to a statutory requirement or not. Comprehensive Drug Testing, 513 F.3d at 1100.

         Hamer, 138 S.Ct. at 21, squarely rejected Comprehensive Drug Testing's reading of Bowles in the context of another provision of Fed. R. App. P. 4, Rule 4(a)(5)(C). That Rule also established a "time prescription . . . absent from the U.S. Code." Id. Hamer noted that "[s]everal Courts of Appeal . . . ha[d] tripped over [its] statement in Bowles that 'the taking of an appeal within the prescribed time is "mandatory and jurisdictional, "'" even though that statement was "a characterization left over from days when [the Supreme Court] w[as] 'less than meticulous' in [its] use of the term 'jurisdictional.'" Id. (internal citations and footnotes omitted).

         Comprehensive Drug Testing recognized the absence of a statutory basis for Rule 4(a)(4) but-understandably, as Hamer recognizes-tripped over the very language in Bowles that Hamer disavows. Comprehensive Drug Testing's holding that all timeliness issues in notices of appeal are jurisdictional, even where, as here, the Rule's provision is not statutorily mandated, is thus flatly irreconcilable with Hamer. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). Under Hamer, Rule 4(a)(4) is not jurisdictional; instead, Rule 4(a)(4) is a mandatory claim-processing rule.

         The defendants challenged the timeliness of this appeal in their brief before us, so we must address that question, even though not jurisdictional. See, e.g., Amalgamated Transit Union Local 1309 v. Laidlaw Transit Servs., Inc., 435 F.3d 1140, 1145 (9th Cir. 2006); Kwai Fun Wong v. Beebe, 732 F.3d 1030, 1035-36, 1047 (9th Cir. 2013) (en banc).

         (ii) This appeal was timely

         Turning to the particular application of Rule 4(a)(4) before us: We recently addressed a similar issue in Escobedo v. Applebees, a sex discrimination case. There, Escobedo delivered her complaint to the clerk's office sixty-nine days after receiving her right-to-sue letter from the EEOC. 787 F.3d at 1227. She also filed an in forma pauperis application, which was later denied, and she paid her filing fee by the deadline imposed by the court, which fell 133 days after she received the right-to-sue letter. Id. at 1230. The defendant argued that the complaint was time-barred because it was "filed" after the ninety-day statutory deadline, even though it was originally submitted to the clerk within the time limit.

         The district court dismissed the lawsuit, and we reversed, holding that "[a]s with other pleadings and papers, a complaint is filed 'by delivering it . . . to the clerk.'" Id. at 1232-33 (quoting Fed.R.Civ.P. 5(d)(2)). Though Escobedo advanced "constructive filing" and equitable tolling theories, we based our decision on other grounds. We noted that "scant justification exists to invoke" the "legal fiction" inherent in those theories because "[i]t is undisputed that the complaint was actually, physically delivered to the clerk . . . ." Id. at 1231-32.

         Similarly, in Ordonez v. Johnson, 254 F.3d 814, 816 (9th Cir. 2001) (per curiam), we held that a pro se prisoner complaint was timely filed when delivered to the clerk, even though the clerk rejected the complaint for noncompliance with a local rule requiring submission of a courtesy copy. We reasoned that "elevat[ing] a local rule . . . to the status of a jurisdictional requirement would conflict with the mandate of Federal Rule of Civil Procedure 1 to provide a just and speedy determination of every action." Id. (internal quotation marks and citations omitted).

         Likewise, in Klemm v. Astrue, 543 F.3d 1139 (9th Cir. 2008), Klemm mailed his notice of appeal to the clerk's office, along with a post-dated check for the filing fee. The clerk rejected the notice and instructed Klemm to file electronically, as required by local rule. He did so, but his electronic filing fell three days after the relevant deadline. We held the notice of appeal "was deemed filed when it 'arrived in the hands of the Clerk within the statutory period.'" Id. at 1143 (quoting Loya v. Desert Sands Unified Sch. Dist., 721 F.2d 279, 280 (9th Cir. 1983)). We reasoned that "filing requirements dictated by local rules are not jurisdictional. . . . Local rules govern local practice, but a violation of local rules cannot divest this court of the jurisdiction afforded to it by Congress." Id. (citation omitted).

         In this case, the Demarees' Rule 59 motion was "actually, physically" delivered to the clerk when it was timely lodged in conjunction with the request to file under seal. Escobedo, 787 F.3d at 1232. And the district court treated the motion as filed, as it ruled on the merits of the motion.[4] Accordingly, the time to file an appeal began running from May 27, 2014, the date of the district court's final order, and the Demarees timely filed their Notice of Appeal, on June 23, 2014.

         Judge N.R. Smith's dissent cites to several cases that distinguish between lodged and filed documents for purposes of determining whether a document is included in the record under Federal Rule of Appellate Procedure 10(a). Dissenting Opn. of Smith, N.R., C.J., at 42-44 (citing Nicholson v. Hyannis Air Serv., Inc., 580 F.3d 1116, 1127 n.5 (9th Cir. 2009); Barcamerica Int'l USA Trust. v. Tyfield Imps., Inc., 289 F.3d 589, 594-95 (9th Cir. 2002); Levald v. City of Palm Desert, 998 F.2d 680, 684 n.1 (9th Cir. 1993)). Those cases are not relevant here, both because we are addressing a question of timeliness concerning when a pleading was filed, not determining the content of the evidentiary record on appeal, and because the district court resolved the motion on its merits, thereby treating it as if it were filed.

         We therefore hold that this appeal is timely.

         B. ...

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