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.
and Submitted July 6, 2016 San Francisco, California
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
Before: Marsha S. Berzon, and N. Randy Smith, Circuit Judges,
and Jack Zouhary, [*] District Judge.
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
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
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.
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.
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.
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.
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.
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.
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.
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.
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."
the photographs portrayed children engaged in sexual
activity. None portrayed the children's genitalia
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."
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.
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.
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.
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."
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.
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
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.
Timeliness of the Appeal
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.
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).
Jurisdiction versus mandatory claim-processing
parties describe the timeliness issue as jurisdictional.
Under a recent Supreme Court case, it is not.
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).
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. 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.
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).
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.
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
This appeal was timely
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.
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.
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
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
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. 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.
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.
therefore hold that this appeal is timely.