Doe v. District of Columbia

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 14, 2014 Decided August 11, 2015

No. 13-7140

CARLA DOE, ET AL.,

APPELLANTS

v.

DISTRICT OF COLUMBIA, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:05-cv-01060)

Mick G. Harrison argued the cause and filed the briefs for

appellants. John M. Clifford entered an appearance.

Stacy L. Anderson, Senior Assistant Attorney General,

Office of the Attorney General for the District of Columbia,

argued the cause for appellees. With her on the brief were Irvin

B. Nathan, Attorney General, Todd S. Kim, Solicitor General,

and Loren L. AliKhan, Deputy Solicitor General.

Before: GARLAND, Chief Judge, WILKINS, Circuit Judge,

and RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

RANDOLPH.

Concurring opinion filed by Circuit Judge WILKINS.

2

RANDOLPH, Senior Circuit Judge: The District of

Columbia’s Child and Family Services Agency temporarily

removed two adopted children from their home. These two

children and another child living there had endured sexual abuse

for years. The children resided with their parents, Robert and

Carla Doe. After the government acted, the Does brought a

multi-count complaint seeking damages from the District of

Columbia, the Family Services Agency, and District employees.

The district judge, Hogan, J., ruled against them on all claims.

The Does appeal.

For the reasons that follow, we vacate the dismissal of the

Does’ Fourth and Fifth Amendment claims against the District.

We remand those claims to the district court to determine

whether there is municipal liability under Monell v. Department

of Social Services of the City of New York, 436 U.S. 658 (1978).

We affirm the district court on the remaining claims.

I.

The evidence developed in discovery tended to show the

following. Robert and Carla Doe are the adoptive parents of

Oliver and Ann and the biological parents of Emma.1 Oliver

(born 1995) and Ann (born 1997) became part of the family

when they were infants. In 2000, twins Wayne and Sara joined

the family. At the time, Emma was 10, the twins were 9, Oliver

was 5, Ann 3. The Does finalized their adoption of the twins in

2001.

Before the twins came to the Does, Mrs. Doe knew that

Wayne and Sara had not lived “in a stable home, were hungry

1

The names of the parents and the children are pseudonyms.

Much of the record, but not the parties’ briefs and the district court’s

opinion, is sealed.

3

and homeless for some time, did not receive appropriate medical

care, had a drug-abusing mother, had been in weekly therapy for

years, and were put by their mother in inappropriate situations,

unsafe and unhealthy environments for children, including drug

environments.” Doe v. District of Columbia, 958 F. Supp. 2d

178, 183 (D.D.C. 2013) (internal quotation marks and citation

omitted). When the twins arrived, the Does began receiving

monthly adoption stipends, funds for therapy from the Crime

Victims’ Compensation Fund, therapy services from a court

clinic, and funds for a therapeutic summer camp for Wayne. See

id. at 198.

The twins began sexually abusing Ann and Oliver shortly

after they moved into the Doe household. See id. at 183. Four

years later, in 2004, Carla and Robert Doe learned of the abuse.

See id. On September 27th of that year, the Does wrote to

Family Services Agency employees (Acting Director Brenda

Donald Walker and Adoption Services Program Manager

Sharon Knight) notifying them that the twins had been abusing

Ann and Oliver “for years.” The Does sought “emergency

support to try and prevent the disruption of the adoption of two

of [their] children” and requested “funding or other resources,”

because “[w]e have no funds of our own to even attempt to

undertake what is necessary to determine if our family can be

preserved.” The Does reiterated that they had “fallen behind

financially” and stated: “We are no longer able to continue

parenting now four children with such significant needs.” The

Does’ letter also stated that Wayne had moved to an “out-of-

home, therapeutic respite home” with provider Deborah Bobbitt

and that Sara remained at the Doe home. See Doe, 958 F. Supp.

2d at 183. On October 1, 2004, Robert met with defendant

Sandra Jackson, the Administrator of Permanency and Family

Resources Administration, several other Agency employees, and

two therapists who had provided therapy to the Doe family. See

id. Robert explained that Sara and Wayne “couldn’t safely

4

reside in our home” and that he “had to have some other

temporary place for them to reside while they were getting

treatment.”

Four days later, on October 5, the Agency received a

follow-up letter from Robert. See Doe, 958 F. Supp. 2d at 183.

In it, he reemphasized that if the Agency could not provide

further financial assistance to support Wayne’s out-of-home

care, “immediate plans will need to be made to transition him

into a new residential placement.” By then, Sara had moved to

Carla Doe’s mother’s home. See Doe, 958 F. Supp. 2d at 183.

Carla Doe’s mother, Robert wrote, would not be able to keep

Sara “much longer” and “[a]s soon as possible this week, [Sara]

needs to be transitioned into a residential placement.”

On October 7, Agency officials, including Jackson and

Agency General Counsel Terri Thompson Mallet, had a

telephone conversation with Robert to discuss placement options

for the twins. Doe, 958 F. Supp. 2d at 183-84. The officials

said the Agency would cover the cost of therapeutic foster care

but would not provide transportation or pay for Wayne’s therapy

with Bobbitt, since she was not an approved provider. Id. at

184.

On the same day, October 7, the Agency began an

investigation. The investigator, Delores Williams, looked into

the “sexual abuse allegations as it relate[d] to sibling on sibling,

whether the adoptive parents failed to provide adequate

supervision and if there was failure to protect by the adoptive

parents.” Williams spoke with Robert and Carla Doe and Ann

and Oliver at their home on the evening of October 7. In a

“safety decision” dated the same day, Williams reported that

while “[o]ne or more signs of present danger were identified,”

the children were not “in immediate danger of serious harm,” in

light of “the existence of protective capacities [that] offset the

5

threat of serious harm for the children.” She noted that Wayne

had been placed in a therapeutic home in Virginia and that the

Does had sent Sara to the grandmother’s house. Williams also

explained that, as part of Does’ “safety plan,” a portable

monitoring system had been attached to the bedroom doors of

the children who remained at home and that adult supervision

had increased.

A day later, on October 8, Williams participated in an

interview with Ann and Oliver at a child advocacy center. See

Doe, 958 F. Supp. 2d at 184. During the interview, Ann and

Oliver said they were both abused by Wayne and Sara, and, for

the first time, Williams learned that Oliver participated in

victimizing Ann. Id. At the time, Oliver was living in the Doe

home with Ann.

On October 14, the Does sent another letter to the Agency.

They raised several concerns about the Agency’s offer to have

them agree to place the twins temporarily in therapeutic foster

care but not pay for Wayne’s continued therapy with Bobbitt or

the twins’ transportation to and from therapy. See id. The Does

criticized the Agency for not investigating the extent of the

abuse the twins had endured with their birth mother and for

placing them with an abusive foster family before they were

placed with the Does. The Does also objected to keeping the

twins together during a temporary placement. The Does

proposed that the Agency pay for Sara to attend a private school

in Virginia and for her therapy; pay for Wayne’s therapy with

Bobbitt; pay for both twins’ transportation; and pay for family

therapy. See id.

On October 19, after an internal meeting, the Agency called

Robert and “informed him that they had safety concerns

regarding Ann, Oliver, Sara, and Wayne and that he needed to

cooperate in placing the children into voluntary care pending

6

further investigation.” See id. In a follow-up call to Agency

General Counsel Mallet, the Does’ attorney proposed alternative

plans for Ann and Oliver and a voluntary placement

arrangement for the twins, and he told the Agency it needed a

court order to remove the children. See id.

On October 20, 2004, Agency officials, specifically Agency

Director Brenda Donald Walker, concluded that Ann and Oliver

were in immediate danger and needed to be removed from the

Doe home. See id.; id. at 188 n.7. The same day, the Does’

attorney negotiated with the Agency about the placement of

Oliver and Ann with the Agency. See id. at 184. The Does

agreed that Agency social workers, not the police, would

remove Ann and Oliver from the Doe home to temporary

placements elsewhere. See id. at 185.2 That evening – a school

night – defendants Daphne King and Rebekah Philippart, both

of whom were social workers, were assigned to pick up Ann and

Oliver and notify the Does of a court hearing the next day;

neither King nor Philippart had previously been involved in the

case. See id. King and Philippart went to the Does’ residence

and, over the objections of Robert and Carla, removed Ann and

Oliver. See id. They also provided the Does a notice of a

hearing in District of Columbia Superior Family Court

scheduled for October 21 to respond to unspecified child neglect

allegations. See id. The notice stated that the children were

2

The Does’ amended complaint alleged that on October 19 and

20 they negotiated with the Agency but “negotiation broke down when

[the Agency] insisted that Oliver be placed in an undisclosed foster

home overnight”; that the Does’ attorney advised the Agency that it

would need “a court order to immediately remove any of” the

children; and that “[u]nder duress and the threat of arrest, and after

speaking with the children’s therapists, Robert and Carla Doe

reluctantly agreed to allow [the Agency] to remove Ann and Oliver on

October 20, 2004 at 9 p.m.” J.A. 59 ¶¶ 89-91.

7

seized pursuant to D.C. Code § 4-1301.07, which provides that

if, in cases of alleged child neglect, “in the opinion of the

Agency the available services or resources are insufficient to

protect the child and there is insufficient time to petition for

removal, the Agency shall request the police to remove the

child.” D.C. CODE § 4-1301.07.

Ann and Oliver were taken to a hospital for physical

examinations, after which Ann was taken to the grandmother’s

home, and Oliver was taken to a temporary foster home. See

Doe, 958 F. Supp. 2d at 185. Wayne remained at his placement

in Virginia.3

The next day, on October 21, 2004, the District “no

papered” the neglect charges against Robert and Carla Doe,

declining to file a petition against them, and the hearing was

canceled. Id. Oliver returned home later that day; Ann was not

required to stay in her foster placement, and the Does agreed to

a voluntary placement with the Agency for Sara. Id. at 185 &

n.4. On October 22, 2004, the District issued an affidavit and

request for custody order for Sara and Wayne and charged them

with second degree child sex abuse against their younger

siblings. See J.A. 146. They were later taken into custody and

placed on probation and in therapeutic foster homes. See Doe,

958 F. Supp. 2d at 185-86. From roughly November 2005 to

April 2007, the twins were under the care of the Department of

Youth Rehabilitation Services. Id. at 186. In May 2007, the

District closed its cases against the twins, and the Does

relinquished parental rights to Wayne and Sara. Id.

3

As noted, Sara had been staying at Carla’s mother’s home. She

was transported by District officials to a temporary foster home as

well, Doe, 958 F. Supp. 2d at 185, although she is not part of this suit,

and we do not examine any claims regarding her.

8

In December 2007, Carla and Robert Doe and the children

other than the twins filed a twenty-four-count amended

complaint against the District of Columbia, the mayor and

Agency employees Brenda Donald Walker, Sarah Maxwell,

Sandra Jackson, Heather Stowe, Terri Thompson Mallet,

Rebekah Philippart, and Daphne King. The Does alleged

violations of District of Columbia law and the U.S. Constitution.

After proceedings unnecessary to recount, the district court

granted the District’s motion for judgment on the pleadings and

summary judgment, denied the Does’ motion for summary

judgment, and denied as moot the District’s motion to strike

portions of the record. Doe, 958 F. Supp. 2d at 206.

On appeal, the Does claim that the district court erred when

it dismissed their Fourth Amendment, Fifth Amendment, and

First Amendment claims, erred when it granted qualified

immunity to the individual defendants, erred when it dismissed

the Does’ tort claims, and erred when it dismissed their claims

for post-adoption services under LaShawn A. v. Kelly, 887 F.

Supp. 297 (D.D.C. 1995), aff’d sub nom., La Shawn A. v. Barry,

107 F.3d 923 (D.C. Cir. 1996) (per curiam) (unpublished).

II.

1. Fourth Amendment and Fifth Amendment Claims

According to the Does, the District, and its officials,

violated their Fourth Amendment and Fifth Amendment rights

when they removed Ann and Oliver from the Does’ home

without court authorization. The Doe children were taken from

their home by Agency employees. This was a seizure within the

meaning of the Fourth Amendment. See, e.g., Tenenbaum v.

Williams, 193 F.3d 581, 593-94 (2d Cir. 1999). Under the

Fourth Amendment a warrant or a pre-removal hearing is not

required when the government acts in response to an

9

“exigency.” See Doe v. Kearney, 329 F.3d 1286, 1293-95 &

1294 n.10 (11th Cir. 2003); Brokaw v. Mercer Cnty., 235 F.3d

1000, 1010-11 (7th Cir. 2000). Under the Fifth Amendment,

before parents may be deprived of the custody “of their children

without their consent, due process – ordinarily a court

proceeding resulting in an order permitting removal – must be

accorded to them.” Tenenbaum, 193 F.3d at 593; see also

Stanley v. Illinois, 405 U.S. 645, 649-51 (1972). However,

“‘extraordinary situations where some valid governmental

interest is at stake,’” such as the health and welfare of children,

may justify “‘postponing the hearing until after the event.’”

Smith v. Org. of Foster Families for Equal. & Reform, 431 U.S.

816, 848 (1977) (quoting Bd. of Regents of State Colleges v.

Roth, 408 U.S. 564, 570 n.7 (1972)); see Hollingsworth v. Hill,

110 F.3d 733, 739 (10th Cir. 1997) (the state has a valid

“interest in the health and welfare of its children”).

The district court held that neither the individual defendants

nor the District violated the Does’ Fourth or Fifth Amendment

rights because there were “exigent” circumstances that justified

the warrantless seizure of the children without a pre-deprivation

hearing. See Doe, 958 F. Supp. 2d at 188-93.

The parties agree that exigent circumstances excuse a

seizure of endangered children without a warrant or a pre-

removal hearing. Decisions of several circuits have used various

formulations to determine whether exigent circumstances

existed to justify such a seizure.

In some circuits, reasonable suspicion of past abuse can

justify warrantless seizure of a child. This is a very low

standard, and could allow for the removal of a child without

court order based on a single suspected incident. See Hatch v.

Dep’t for Children, Youth and Their Families, 274 F.3d 12, 21

(1st Cir. 2001); see also Berman v. Young, 291 F.3d 976, 983-84

10

(7th Cir. 2002); Croft v. Westmoreland Cnty. Children & Youth

Servs., 103 F.3d 1123, 1126 (3d Cir. 1997); White by White v.

Chambliss, 112 F.3d 731, 736 (4th Cir. 1997); Manzano v. S.D.

Dep’t of Social Servs., 60 F.3d 505, 511 (8th Cir. 1995). In

other circuits, there must be reasonable suspicion of imminent

abuse. These courts consider several factors, including whether

abuse was ongoing and whether there was time to obtain a

warrant. See Kovacic v. Cuyahoga Cnty. Dep’t of Children &

Family Servs., 724 F.3d 687, 695 (6th Cir. 2013); Gates v. Tx.

Dep’t of Protective & Regulatory Servs., 537 F.3d 404, 429 (5th

Cir. 2008); Arredondo v. Locklear, 462 F.3d 1292, 1298 (10th

Cir. 2006) (citing Gomes v. Wood, 451 F.3d 1122, 1129 (10th

Cir. 2006)); Roska ex rel. Roska v. Peterson, 328 F.3d 1230,

1240 (10th Cir. 2003); Wallis v. Spencer, 202 F.3d 1126, 1138

(9th Cir. 1999). In the Eleventh Circuit, the “reasonable

suspicion” standard gives way to the higher “probable cause”

standard, with consideration of many of the same factors. Doe

v. Kearney, 329 F.3d at 1295. And in the Second Circuit, “it is

unconstitutional for state officials to effect a child’s removal on

an ‘emergency’ basis where there is reasonable time safely to

obtain judicial authorization consistent with the child’s safety.”

Tenenbaum, 193 F.3d at 596.

We have not enunciated our own formulation and do not do

so here because we do not reach the question whether exigent

circumstances existed in this case.

A. Individual Defendants

We address first the claims against the individual

defendants. The district court held that the individual

defendants were entitled to qualified immunity. “Qualified

immunity shields government officials from civil damages

liability unless the official violated a statutory or constitutional

11

right that was clearly established at the time of the challenged

conduct.” Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012).

“To overcome a claim of qualified immunity, plaintiffs

must show both [1] that an official ‘violated a constitutional

right’ and [2] that ‘the right was clearly established’ at the time

of the violation.” Johnson v. Gov’t of the District of Columbia,

734 F.3d 1194, 1201-02 (D.C. Cir. 2013) (quoting Saucier v.

Katz, 533 U.S. 194, 200-01 (2001)). We may address either

prong of the qualified immunity analysis first. See Pearson v.

Callahan, 555 U.S. 223, 236 (2009).

“Ordinarily, in order for the law to be clearly established,

there must be a Supreme Court or [ ]Circuit decision on point,

or the clearly established weight of authority from other courts

must have found the law to be as the plaintiff maintains.”

Currier v. Doran, 242 F.3d 905, 923 (10th Cir. 2001) (internal

quotation marks and citation omitted); see also Reichle, 132 S.

Ct. at 2093. “To be clearly established, the precedent must give

officials clear warning of unconstitutional conduct.” Merricks

v. Adkisson, 785 F.3d 553, 559 (11th Cir. 2015).

The parties do not dispute that in an exigency the state may,

consistent with the Constitution, seize children without a court

order or a pre-deprivation hearing. But the precise contours of

when an exigency exists to justify removal without a warrant or

pre-deprivation hearing are not settled, as the other Circuits’

varied formulations demonstrate. Given the uncertainty

regarding when exactly an exigency exists and the lack of our

own controlling precedent, the law in question was not “clearly

established” at the time of the seizure. The individual

defendants are thus entitled to qualified immunity as the district

court held. See Pearson, 555 U.S. at 244-45; Johnson, 734 F.3d

at 1201-02.

12

B. Municipal Liability

“A municipality or other local government may be liable

under [42 U.S.C. § 1983] if the governmental body itself

‘subjects’ a person to a deprivation of rights or ‘causes’ a person

‘to be subjected’ to such deprivation.” Connick v. Thompson,

131 S. Ct. 1350, 1359 (2011) (quoting Monell, 436 U.S. at 692).

“But, under § 1983, local governments are responsible only for

‘their own illegal acts.’ They are not vicariously liable under

§ 1983 for their employees’ actions.” Id. (quoting Pembaur v.

Cincinnati, 475 U.S. 469, 479 (1986) (citation omitted)); see

also Singletary v. District of Columbia, 766 F.3d 66, 72 (D.C.

Cir. 2014); Warren v. District of Columbia, 353 F.3d 36, 38

(D.C. Cir. 2004).

To impose liability on a local government for the torts of an

employee, a plaintiff must prove that “action pursuant to official

municipal policy” caused his or her injury. Monell, 436 U.S. at

691. “Official municipal policy includes the decisions of a

government’s lawmakers, the acts of its policymaking officials,

and practices so persistent and widespread as to practically have

the force of law.” Connick, 131 S. Ct. at 1359; see Pembaur,

475 U.S. at 480-81.

Under Supreme Court precedent, even if the seizure of the

Doe children amounted to a constitutional violation, “[p]roof of

a single incident of unconstitutional activity is not sufficient to

impose liability under Monell, unless proof of the incident

includes proof that it was caused by an existing, unconstitutional

municipal policy.” City of Okla. City v. Tuttle, 471 U.S. 808,

823-24 (1985). The Supreme Court has held that “municipal

liability may be imposed for a single decision by municipal

policymakers under appropriate circumstances,” Pembaur, 475

U.S. at 480.

13

To hold the District liable, the Does must show (1) a

Constitutional violation, and (2) that the District was responsible

for that violation. See Collins v. City of Harker Heights, Tx.,

503 U.S. 115, 120 (1992); see also Baker v. District of

Columbia, 326 F.3d 1302, 1306-07 (D.C. Cir. 2003). On the

first prong, there is a serious constitutional question regarding

whether an exigency existed here, and we do not reach it. On

the second prong, if District policy allows for the warrantless

removal of children when there is no bona fide emergency, then

the District would be responsible for any constitutional violation

that may have occurred here. But if the Doe children were not

removed pursuant to a custom or policy of the District, then the

§ 1983 claim fails.

District Code allows for the warrantless removal of children

only when there is such an emergency. See D.C. CODE § 16-

2309(a)(3) (“A child may be taken into custody . . . by any

employee of the Agency . . . when he or she has reasonable

grounds to believe that the child is in immediate danger from his

or her surroundings and that the removal of the child from his or

her surroundings is necessary.”); id. § 4-1301.07(a) (“If in the

opinion of the Agency . . . there is insufficient time to petition

for removal, the Agency shall request the police to remove the

child pursuant to § 16-2309(a)(3) or (a)(4).”). The Does argue

that the District violated this statute because the children were

not in “immediate danger” at the time of their seizure. See

Appellants’ Br. at 23 (emphasis in original). Furthermore, they

point to an Agency policy, “Procedure U: Removal and

Placement,” that states that “[w]hen the child is in immediate or

imminent danger, the Investigations Worker shall consider a

broad range of safety-oriented responses, including those that

protect a child without taking custody of the child.” J.A. 230

(emphasis added); see Appellants’ Br. at 23-24. But a different

District procedure in the record, Procedure V, seems to specify

that the only time the Agency is required to obtain a court order

14

prior to removing a child from his or her home is when the

Agency investigator “is unable to locate and/or remove the child

whom he/she believes requires removal.” J.A. 235.

On this record, we do not know if the District has a

municipal policy, practice, or custom, see Singletary, 766 F.3d

at 72-73 – regardless of the relevant statute – of seizing children

absent an exigency. We also do not know the progeny, role, or

relevance of Procedures U and V, whether these procedures

allowed removal without a court order even in the absence of

exigency, and if so, whether Procedures U and V are consistent

with the applicable statutes. Further, we do not know whether

Brenda Donald Walker, the Agency director who made the

decision to remove the Doe children, relied on these procedures

when she ordered the removal or was a final policymaker with

the authority “to establish municipal policy with respect to the

action ordered.” Pembaur, 475 U.S. at 481; see also Singletary,

766 F.3d at 73. The district court did not address these

questions because it concluded its analysis when it found that an

exigency existed. See Doe, 958 F. Supp. 2d at 190.

Because the constitutional question is a difficult one, and

there is a question whether the District is liable under § 1983,

the district court should address the question of municipal

liability in the first instance. Similarly, because the D.C. Code

appears to authorize taking a child into custody without a court

order only if there are “reasonable grounds to believe that the

child is in immediate danger,” D.C. CODE § 16-2309(a)(3), and

it is not clear if Procedures U and V are municipal “practices so

persistent and widespread as to practically have the force of

law,” Connick, 131 S. Ct. at 1359, or if they were adopted in

accordance with required notice-and-comment rulemaking, see

D.C. CODE §§ 2-505(a), 4-1303.03(a-1)(12); cf. Singletary, 766

F.3d at 74, we remand to the district court the question of what

relevance, if any, this policy has on the District’s liability.

15

Accordingly, we vacate the grant of summary judgment on

the Fourth and Fifth Amendment claims against the District and

remand for the district court to determine whether municipal

liability is permissible under Monell.

2. First Amendment Claim

To establish a claim for retaliation under the First

Amendment, an individual must prove (1) that he engaged in

protected conduct, (2) that the government “took some

retaliatory action sufficient to deter a person of ordinary

firmness in plaintiff’s position from speaking again;” and (3)

that there exists “a causal link between the exercise of a

constitutional right and the adverse action taken against him.”

Aref v. Holder, 774 F. Supp. 2d 147, 169 (D.D.C. 2011) (internal

quotation marks and citation omitted); see Toolasprashad v.

Bureau of Prisons, 286 F.3d 576, 584-85 (D.C. Cir. 2002). “To

satisfy the causation link, a plaintiff must allege that his or her

constitutional speech was the ‘but for’ cause of the defendants’

retaliatory action.” Aref, 774 F. Supp. 2d at 169 (citing

Hartman v. Moore, 547 U.S. 250, 256 (2006)).

Unlike the Fourth and Fifth Amendment analysis, the First

Amendment retaliation inquiry is a subjective one. See Smith v.

Mosley, 532 F.3d 1270, 1278 (11th Cir. 2008); Thaddeus-X v.

Blatter, 175 F.3d 378, 399 (6th Cir. 1999).

The District concedes that the Does presented sufficient

evidence to meet the first two elements of a First Amendment

claim; only the third element remains in dispute. The Does

contend that the District retaliated against them in violation of

the First Amendment when it threatened to remove, and then

removed the children on October 20, when it charged Robert and

Carla with child abuse, when it initiated juvenile charges against

the twins, when it discontinued services, and when it “forced”

16

the Does to relinquish parental rights over the twins. See

Appellants’ Br. at 32.

It is indisputable from the record that the Agency’s

decision-makers, at the least, thought that there was a reasonable

basis for believing that the Doe children were in imminent

danger. Although close temporal proximity between the

plaintiff’s protected action and the defendant’s allegedly

retaliatory action may be sufficient to allow a claim to survive

summary judgment, see Singletary, 351 F.3d at 525, where, as

here, there is substantial unrebutted evidence that the defendants

acted with subjective good faith, summary judgment is

appropriate on the First Amendment claims.

3. Tort Claims

The district court granted summary judgment to the District

on all of the Does’ tort claims. See Doe, 958 F. Supp. 2d at 194

n.13. The Does appeal that ruling with respect to only four

claims.

The Does alleged that all defendants assaulted and battered

Ann and Oliver. “An assault is an intentional attempt or threat

to do physical harm to another. A battery is an intentional act

that causes harmful or offensive bodily contact.” Harris v. U.S.

Dep’t of Veterans Affairs, 776 F.3d 907, 913 (D.C. Cir. 2015).

As an initial matter, there is no evidence that any defendant

other than Philippart and King, the social workers who removed

Ann and Oliver, interacted with the children. District law

provides a government actor with a privilege defense to such tort

claims when “(1) he or she believed, in good faith, that his or

her conduct was lawful, and (2) this belief was reasonable.”

Bradshaw v. District of Columbia, 43 A.3d 318, 323 (D.C.

2012) (citations and alterations omitted); see also Marshall v.

District of Columbia, 391 A.2d 1374, 1380-81 (D.C. 1978).

17

Given the social workers’ good faith belief and the uncertainty

surrounding what constitutes exigent circumstances – as

discussed in our qualified immunity analysis above – the two

social workers’ actions were privileged. Nor do the Does claim

the social workers employed excessive force. See Arrington v.

United States, 473 F.3d 329, 335-36 (D.C. Cir. 2006). Thus,

they are not entitled to relief on this claim.

Second, the Does claim the defendants invaded their

privacy by entering into their home and personal lives in a

manner not authorized by law. See Wolf v. Regardie, 553 A.2d

1213, 1216-17 (D.C. 1989). The defendants’ duty to investigate

claims of child abuse, their arrival – announced and coordinated

with the Does’ attorney hours earlier – and their subjective

belief that the children were in immediate danger provided them

with a good faith, reasonable belief that they acted lawfully in

entering the Does’ home. See D.C. CODE § 4-1301.04(a)-(b);

Pearson v. Dodd, 410 F.2d 701, 704 (D.C. Cir. 1969). As with

the assault and battery claims, the invasion of privacy claim

therefore fails because the defendants’ actions were privileged.

Third, the Does claim they suffered from intentional

infliction of emotional distress. To make out a claim for

intentional infliction of emotional distress, a “plaintiff must

show that the defendant acted in an (1) extreme and outrageous

manner (2) which was intentionally or recklessly calculated to

cause plaintiff (3) severe emotional distress.” Joyce v. United

States, 795 F. Supp. 1, 5 (D.D.C. 1992), aff’d, 986 F.2d 546,

(D.C. Cir. 1993) (per curiam) (unpublished). “Generally,

‘[l]iability has been found only where the conduct has been so

outrageous in character, and so extreme in degree, as to go

beyond all possible bounds of decency, and to be regarded as

atrocious, and utterly intolerable in a civilized community.’”

Harris, 776 F.3d at 916 (alteration in original) (quoting

Abourezk v. N.Y. Airlines, Inc., 895 F.2d 1456, 1459 (D.C. Cir.

18

1990)). The Does describe the offending conduct as trying to

disrupt their legal representation, advising the Does of possible

police involvement, determining that the children were in

imminent danger, referring neglect allegations to the

prosecutor’s office, prosecuting the twins, and declining post-

adoption services. The Does’ allegations hardly rise to the level

of atrocious and utterly intolerable behavior. This conclusion is

especially so here where the District was obliged to investigate

serious reports of prolonged sexual abuse, see D.C. CODE § 4-

1301.04(a)(1), and acted to protect children it believed, rightly

or wrongly, were in imminent harm. A reasonable jury could

not conclude otherwise.

Fourth, the Does claim that the defendants committed an

abuse of process by maliciously planning and initiating a child

abuse and neglect proceeding against Robert and Carla. “The

essence of the tort of abuse of process is the use of the legal

system ‘to accomplish some end which is without the regular

purview of the process, or which compels the party against

whom it is used to do some collateral thing which he could not

legally and regularly be required to do.’” Scott v. District of

Columbia, 101 F.3d 748, 755 (D.C. Cir. 1996) (quoting Bown v.

Hamilton, 601 A.2d 1074, 1079 (D.C. 1992)). “‘For abuse of

process to occur there must be use of the process for an

immediate purpose other than that for which it was designed and

intended.’” Id. (quoting RESTATEMENT (SECOND) OF TORTS §

682 cmt. b (1977)). But something quite nearly the opposite is

what occurred here. The legal system was employed to

safeguard children who had been the victims of awful crimes.

Aside from conclusory allegations that they were targeted in an

otherwise reasonable investigation, the Does offer no proof that

the legal system was used to accomplish anything but this

worthy end.

19

For these reasons, we affirm the grant of summary

judgment on all tort claims.

4. Post-Adoption Services

In the lengthy LaShawn A. litigation, a class action was

brought against the mayor and District officials on behalf of

children who depended on the District’s child welfare and foster

care systems. See LaShawn A. ex rel. Moore v. Fenty, 701 F.

Supp. 2d 84, 86-87 (D.D.C. 2010), aff’d sub nom., LaShawn A.

ex rel. Moore v. Gray, 412 F. App’x 315 (D.C. Cir. 2011) (per

curiam) (unpublished). The district court found widespread

problems in the child welfare system and finalized a consent

decree to correct “myriad deficiencies” in it. Id. at 87. After an

appeal, the district court entered a Modified Final Order

(“MFO”) based on District law and, in 2003, the court approved

an implementation plan developed by a Court Monitor to bring

the District into compliance with the MFO. Id. at 87-88.

The Does argue that the District “failed to properly

respond” to their “post-adoption needs” as required by LaShawn

A.’s MFO. J.A. 81 ¶ 214. In particular, they claim the District

is liable for not providing suitable residential and foster family

placements for the twins, appropriate therapy to the family, and

transportation assistance, among other services.

As the district judge – who is the judge who issued the

LaShawn A. MFO – held, 958 F. Supp. 2d at 203, the central

problem with the Does’ theory is their failure to show that they

are among the intended beneficiaries of the LaShawn A. consent

decree. “Third parties to a consent decree, involving the

government or not, must demonstrate that they are intended

beneficiaries in order to have enforcement rights . . ..” SEC v.

Prudential Sec. Inc., 136 F.3d 153, 159 (D.C. Cir. 1998). The

Does’ theory seems to be that “if the parties to the consent

20

decree had any intent to benefit that third party,” see id.—in this

case, adopted children—then they are an “intended beneficiary,”

but that is not the case. See also RESTATEMENT (SECOND) OF

CONTRACTS § 302(1). “To the contrary: a third party to a

consent decree is not an ‘intended beneficiary’ unless the parties

‘intended that a third party should receive a benefit which might

be enforced in the courts.’” Prudential Sec., 136 F.3d at 159

(emphasis removed) (quoting Corrugated Paper Prods. v.

Longview Fibre Co., 868 F.2d 908, 911 (7th Cir. 1989)). “The

test is not, as appellants appear to suggest, only whether the

contracting parties intended to confer a benefit directly on the

third parties, but also whether the parties intended the third party

to be able to sue to protect that benefit.” Id.; see also Blue Chip

Stamps v. Manor Drug Stores, 421 U.S. 723, 750 (1975).4

The Does have not shown that they can sue to protect such

a benefit. They point to the phrase from the MFO that “[a]ll

provisions of the Implementation Plan . . . shall be enforceable

by the court,” Appellants’ Br. at 45. But the Does do not show

how the Order expresses any intent to provide them with

enforcement rights. See Terrell v. District of Columbia, 703 F.

Supp. 2d 17, 21 (D.D.C. 2010). Accordingly, we affirm the

district court’s grant of summary judgment on this claim.

III.

For these reasons, we vacate the grant of summary

judgment on the Fourth and Fifth Amendment claims against the

District and remand for further proceedings consistent with this

4

For support, the Does cite Beckett v. Air Line Pilots Ass’n, 995

F.2d 280 (D.C. Cir. 1993). We there held that third parties to a

consent decree could sue to enforce its terms. But in that case the

consent decree established a trust and named the plaintiffs as

beneficiaries. See id. at 286-89. That is not the situation here.

21

opinion. We affirm the judgment of the district court on the

remaining claims.

So ordered.

WILKINS, Circuit Judge, concurring:

Because I agree that the Monell issue may be dispositive

and that we do not have a sufficient record to rule on it, I join

the Court’s opinion. I write separately to highlight a troubling

aspect of the approach taken by some courts when

considering the constitutional issues raised when the state

removes a child from her parents.

Although every circuit agrees that a child may be

removed from her home in order to protect her from abuse,

the circuits have not agreed on what burden the government is

under to justify such a removal in the absence of a court

order. Compare, e.g., Hatch v. Dep’t for Children, Youth and

Their Families, 274 F.3d 12, 21 (1st Cir. 2001) (reasonable

suspicion of past abuse can justify warrantless seizure of a

child), with Tenenbaum v. Williams, 193 F.3d 581, 594-95 (2d

Cir. 1999) (requiring reasonable suspicion of imminent

abuse). In my view, these decisions have sometimes given

inadequate weight to the Fourth Amendment rights of the

child.

Taking a child from her home without her consent or the

consent of her parents is a seizure. Maj. Op. 8. “It is a ‘basic

principle of Fourth Amendment law that searches and seizures

inside a home without a warrant are presumptively

unreasonable.’” Brigham City, Utah v. Stuart, 547 U.S. 398,

403 (2006) (quoting Groh v. Ramirez, 540 U.S. 551, 559

(2004)). Under well-established law, in order to justify a

warrantless search or seizure in the home “[t]he government

has to surmount two hurdles.” United States v. Dawkins, 17

F.3d 399, 403 (D.C. Cir. 1994). The first hurdle is probable

cause; the second hurdle is demonstrating that the “failure to

procure a warrant was justifiable in light of circumstantial

exigencies,” id., and we have directed courts to “weigh the

degree of intrusion against the exigency that is its rationale,”

United States v. Goree, 365 F.3d 1086, 1090 (D.C. Cir. 2004).

2

This two-part inquiry allows us to separate the question

whether there was sufficient evidence to justify removing the

child from whether there was sufficient evidence to justify

warrantless removal. Cf. Welsh v. Wisconsin, 466 U.S. 740,

749-50 (1984) (noting the “heavy burden” faced by the

government to justify warrantless searches or arrests). I see

no reason to abandon this two-part framework when

evaluating the removal of a child from her parents’ home.

The intrusion inherent in separating a child from her

parents cannot be overstated. In order to justify such an

intrusion without a court order, the need for immediate action

must be great. I would find that the Fourth Amendment does

not permit a government agency to remove a child from her

home without a court order unless the agency has a reasonable

basis to believe that the delay necessary to obtain the order

would endanger the life or health of a child. Cf., e.g.,

Missouri v. McNeely, 133 S. Ct. 1552, 1558-59 (2013) (listing

circumstances justifying warrantless entry, such as providing

emergency assistance, engaging in hot pursuit of a felon, or

putting out a fire); In re Sealed Case 96-3167, 153 F.3d 759,

766-67 (D.C. Cir. 1998) (warrantless entry appropriate where

burglary in progress); United States v. Johnson, 802 F.2d

1459, 1462 (D.C. Cir. 1986) (finding exigent circumstance

where evidence may be lost or destroyed if search is delayed).

The question is not whether a child may be in danger of future

harm in a generic sense; it is instead whether the delay

required for seeking even ex parte judicial review could be

catastrophic. Otherwise, we risk undermining the Fourth

Amendment rights of our children, as well as the “momentum

for respect,” Stanley v. Illinois, 405 U.S. 645, 651 (1972), of

the constitutional protection of the “strong tradition of

parental concern for the nurture and upbringing of their

children,” Wisconsin v. Yoder, 406 U.S. 205, 232 (1972).