Mueller v. Rogers

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERIC MUELLER; CORISSA D. 

MUELLER, husband and wife

individually and on behalf of

Taige L. Mueller, a minor, and on

behalf of themselves and those

similarly situated,

Plaintiffs-Appellees,

v.

APRIL K. AUKER; BARBARA No. 07-35554

HARMON; JANET A. FLETCHER;

KIMBERLY A. OSADCHUK; LINDA

RODENBAUGH; KARL B. KURTZ; KEN

 D.C. No.

CV-04-00399-BLW

DIEBERT; CITY OF BOISE, OPINION

Defendants,

TED SNYDER; TIM GREEN; RICHARD

K. MACDONALD; SAINT LUKE’S

REGIONAL MEDICAL CENTER, LTD.,

Defendants,

and

DALE ROGERS,

Defendant-Appellant.



Appeal from the United States District Court

for the District of Idaho

B. Lynn Winmill, District Judge, Presiding

Argued and Submitted

September 15, 2008—Moscow, Idaho

Filed August 10, 2009

10791

10792 MUELLER v. ROGERS

Before: J. Clifford Wallace, Stephen S. Trott, and

N. Randy Smith, Circuit Judges.

Opinion by Judge Trott;

Partial Concurrence and Partial Dissent by Judge Wallace

10796 MUELLER v. ROGERS

COUNSEL

Michael E. Rosman, Center for Individual Rights, Washing-

ton, D.C., for the plaintiffs-appellees.

Kirtlan G. Naylor, Naylor & Hales, P.C., Boise, Idaho, for the

defendant-appellant.

OPINION

TROTT, Circuit Judge:

Detective Dale Rogers made a decision permitted by Idaho

law to remove temporarily a sick infant from the custody of

her parents in order to secure a medical diagnostic test and

prophylactic treatment, procedures which pediatric doctors

advised Rogers were both necessary and within the standard

of care for the infant’s situation. At the time, the child had

been taken to St. Luke’s hospital in Boise, Idaho, by her

mother, while her father, Eric Mueller, remained at home to

care for the couple’s other child. Detective Rogers intervened

at the behest of hospital doctors after the child’s mother,

Corissa Mueller, refused to consent to the recommended pro-

cedures. Eric Mueller was not given pre-deprivation notice of

the detective’s intentions or post-deprivation notice by Detec-

tive Rogers, and the Muellers’s child received a medical test

and treatment in Eric Mueller’s absence.

Eric Mueller sued Detective Rogers, claiming that he was

deprived of (1) his substantive due process rights, and also (2)

his individual procedural due process rights to both pre- and

post-deprivation notice in connection with the detective’s

decision. Corissa Mueller’s causes of action are not part of

this appeal.

As a defense, Detective Rogers timely asserted qualified

immunity. The district court (1) ruled with respect to both

MUELLER v. ROGERS 10797

parties’ competing motions for summary judgment on the

Muellers’s substantive due process claims that a genuine issue

of material fact existed as to whether the child was in immi-

nent danger when Detective Rogers made his decision, (2)

granted nonetheless Rogers’s request for qualified immunity

on those substantive due process claims, (3) denied Rogers’s

request for qualified immunity on Eric Mueller’s procedural

due process claims, and (4) granted summary judgment to

Eric Mueller on his procedural due process claims on the

ground that Rogers’s failure timely to notify him both before

and immediately after the deprivation of custody violated his

constitutional rights as a matter of law.

In this appeal, Rogers asks us (1) to reverse the district

court’s grant of summary judgment in favor of Eric Mueller’s

procedural pre-deprivation and post-deprivation notice due

process claims, and (2) to rule in his favor on those claims on

the ground of qualified immunity.

We have jurisdiction over this timely appeal, and we con-

clude (1) that the district court erred in granting summary

judgment to Eric Mueller on his procedural due process

claims as a matter of law, and (2) that Detective Rogers is

shielded by qualified immunity from those same claims.

Accordingly, we reverse and remand for further proceedings

consistent with this opinion.

I

BACKGROUND

The facts that accompany this appeal are largely undis-

puted. They are as follows.

On August 12, 2002, Corissa Mueller’s five-week-old

infant, Taige Mueller, developed a fever. Throughout the

course of the evening, Corissa Mueller consulted with the

child’s naturopathic physician, Dr. Karen Erickson, via tele-

10798 MUELLER v. ROGERS

phone. Mother and physician grew concerned when the

child’s fever rose from roughly 99 degrees at 8:00 p.m. to

100.8 degrees by around 9:00 p.m. In light of Taige’s age,

elevated temperature, and poor appetite, Dr. Erickson recom-

mended that Corissa Mueller have the infant examined to rule

out such conditions as an ear infection, a urinary tract infec-

tion, or possibly meningitis. Dr. Erickson, who had no hospi-

tal privileges, informed Corissa Mueller that, if she took

Taige to an emergency room, doctors would likely want to

conduct a chest x-ray, urinalysis, and blood tests as well as

“automatically” begin an antibiotic regimen and perform a

spinal tap, which is a diagnostic test used to determine if a

patient has meningitis.

Corissa Mueller discussed the possibility of a spinal tap and

the administration of antibiotics with her husband, Eric Muel-

ler. The Muellers believed they would have the authority to

withhold consent or at least obtain a second opinion if an

emergency room doctor suggested a course of treatment with

which they were uncomfortable. In response to Corissa Muel-

ler’s expression of concern regarding a spinal tap and admin-

istration of antibiotics, Dr. Erickson suggested that, should the

situation arise, Corissa Mueller could consent to a chest x-ray,

urinalysis, and blood tests right away, but wait until the

results of these initial tests were returned before consenting to

the spinal tap and antibiotics. In his deposition, Eric Mueller

explained that he and his wife weighed their options and

determined that taking Taige to the emergency room “would

be the safe thing to do.”

At around 10:00 p.m., while Eric Mueller remained at

home with the couple’s young son, Corissa Mueller took

Taige to the emergency room at St. Luke’s Hospital in Boise,

Idaho. Upon admitting Taige, Corissa Mueller provided the

hospital with her husband’s name, stated that he was Taige’s

father, and gave the hospital the address and telephone num-

ber where she and her husband lived. In her deposition,

Corissa Mueller explained that she remained in telephone

MUELLER v. ROGERS 10799

contact with Dr. Erickson and called her “a handful of times”

throughout the night.

In the emergency room, Dr. Richard MacDonald examined

the infant, observing that she had a temperature of 101.3,

appeared ill, and was slightly lethargic and fussy with a

delayed capillary refill and a slight rash. Concerned Taige

may have meningitis or another serious bacterial infection,

Dr. MacDonald recommended Taige undergo a full septic

work-up, including various lab tests and a spinal tap and

begin an antibiotic regimen. Dr. MacDonald emphasized that

time was of the essence to perform the spinal tap and adminis-

ter antibiotics because “these babies can go from bad to worse

very quickly.”

Despite Dr. MacDonald’s warning that there was a five per-

cent chance Taige had contracted meningitis, Corissa Mueller,

though not a medical professional, believed through her own

research that the risk was likely less than one percent. She fur-

ther believed the risks associated with administering antibiot-

ics and performing a spinal tap outweighed the probability

that Taige had meningitis. Although Corissa Mueller con-

sented to the performance of a chest x-ray and to the blood

work, urinalysis, and stool sample, she withheld consent for

the spinal tap and antibiotics, expressing her preference to

“wait until the initial lab results got back, or at least until . . .

[Taige] got worse . . . . “

At around 11:00 p.m. the results of Taige’s lab tests

became available. The results ruled out a urinary tract infec-

tion and ear infection, but no test had been administered

which could rule out meningitis. Corissa Mueller understood

the only way to rule out meningitis was to perform a spinal

tap. By that time, Taige had received intravenous fluids, her

temperature had fallen to 98.9 degrees, and she began to nurse

again. Corissa Mueller could find no reason to consent to fur-

ther treatment. She rejected Dr. MacDonald’s offer to obtain

a second medical opinion. Without consulting her husband,

10800 MUELLER v. ROGERS

she denied permission to the doctors to take any further diag-

nostic steps.

In response to Corissa Mueller’s refusal to consent to the

recommended procedures, Dr. MacDonald consulted with

board-certified pediatrician Dr. Noreen Womack, who agreed

that for five-week-old infants with Taige’s symptoms the

standard of care was to perform a spinal tap and administer

antibiotics. Dr. Womack recommended that Dr. MacDonald

contact a social worker if Corissa Mueller continued to with-

hold her consent. Dr. MacDonald contacted hospital social

worker Bob Condon. Citing the hospital’s policy regarding

the duties of a social worker, Condon decided to contact both

Child Protective Services (CPS), a division of the Idaho

Department of Health and Welfare, and law enforcement.

Though the policy upon which Condon relied did not forbid

contacting a magistrate judge, neither did it require it. At

11:39 p.m., Condon called April Auker, the on-call Risk

Assessment Worker for CPS. Also, Condon contacted police

officers Ted Snyder and Tim Green, who were present in the

hospital.

At around 12:00 a.m. on August 13, Auker arrived at the

hospital emergency room. Dr. MacDonald spoke with Auker,

Officer Snyder, and Officer Green about Taige Mueller’s con-

dition. A transcript of the conversation recorded on Officer

Snyder’s belt recorder reveals Dr. MacDonald explaining:

[I]f I took a hundred kids with the same presentation

probably 95 percent of them would end up having

just some viral illness; will get better in a couple of

days; would be fine. I know that about 5 out of those

100 if I let them go home will die. Will die of men-

ingitis . . . if I practice medicine the way she [Corissa

Mueller] is wanting me to practice it, I would . . . I’d

lose five out of a hundred kids. See what I’m saying?

Dr. MacDonald explained to Auker that it was important that

Taige Mueller be treated within a three-hour time frame.

MUELLER v. ROGERS 10801

Following the conversation with Dr. MacDonald, Officer

Snyder contacted the police station, and Detective Dale Rog-

ers was dispatched to the scene. Detective Rogers arrived in

the emergency room at approximately 1:00 a.m. Officer Sny-

der briefed Detective Rogers on the situation. Under former

Idaho Code § 16-1612, Detective Rogers as a “peace officer”

had the responsibility to determine whether an endangered

child should be placed in “shelter care” under temporary con-

trol of the State pending a court hearing.

Detective Rogers then spoke with Dr. MacDonald. Dr.

MacDonald informed Detective Rogers that “[t]here could be

a three to five percent chance this child could have a serious

bacterial infection; meningitis or sepsis” and that treatment

should begin “as soon as possible to prevent deleterious out-

come such as death or brain damage.” Dr. MacDonald further

explained that “[a]s many as 5 out of 100 kids, if they had

meningitis and went home untreated, could potentially die.”

Also, Dr. MacDonald assured Detective Rogers that any risk

associated with treatment was less than the risk associated

with foregoing treatment. Dr. MacDonald added that “he had

a three-hour window of opportunity, and that we were already

into that window of opportunity by over two hours, two hours

and 15 minutes, and we needed to make a decision.”

Detective Rogers considered declaring Taige in “imminent

danger” to allow Dr. MacDonald to perform the recom-

mended procedures. Under former I.C. § 16-1612, when a law

officer declared a child in imminent danger and turned the

child over to the State Department of Health and Welfare, the

State assumed custody of that child, and could consent to

medical treatment. Detective Rogers spoke with April Auker

and asked whether Child Protective Services was prepared to

take custody of Taige and, if it did, whether it would consent

to the treatment Dr. MacDonald was suggesting. April Auker

replied that CPS was prepared to take custody, and would

consent to the treatment.

10802 MUELLER v. ROGERS

Dr. MacDonald introduced Detective Rogers to Corissa

Mueller. On three different occasions, Detective Rogers spoke

with Corissa Mueller about Dr. MacDonald’s desire to per-

form the spinal tap and administer antibiotics. Each time

Detective Rogers attempted to convince Corissa Mueller to

consent to the treatment, and each time Corissa Mueller

refused to consent, without consulting her husband. On at

least one occasion, Detective Rogers mentioned the possibil-

ity of declaring Taige in imminent danger and explained that

if he did so, the procedures could be performed without

Corissa Mueller’s consent. In response, Corissa Mueller

recalled “asking him point-blank, are you going to do that?

Because if you are, then I have two phone calls I want to

make.” However, Detective Rogers did not directly respond.

After her third conversation with Detective Rogers, Corissa

Mueller requested a nurse take Taige’s temperature again and

told the nurse that if her child’s temperature was still down,

she wanted to begin discharge procedures. Around this time,

Corissa Mueller called her husband Eric to inform him that

“Taige was doing better and that she was going to check out.”

At no time did Corissa Mueller ask that anyone consult with

her husband.

Corissa Mueller did not return home with Taige. Instead, at

around 1:40 a.m., a reexamination revealed Taige’s tempera-

ture had risen to 101 degrees. Upon learning this, Corissa

Mueller stepped from the examining room into the hall

toward the phone with the intention of calling Dr. Erickson.

However, Detective Rogers intervened and informed her

based upon Taige’s downturn that he was declaring the child

in imminent danger and turning custody of her over to the

State. This decision had the immediate effect of placing Taige

in shelter care, i.e., temporary foster care.

Fearful, Corissa Mueller turned back toward the examining

table and her baby, but was halted by Officers Snyder and

Green and Detective Rogers. With a police officer at each

MUELLER v. ROGERS 10803

side, an emotional Corissa Mueller was physically escorted

down the hallway to a small conference room. According to

Officer Snyder, she was “screaming and yelling” and resisting

their requests. Officers Snyder and Green remained in the

room with Corissa Mueller. Officer Snyder refused to allow

Corissa Mueller to make any phone calls, despite her plea to

call her husband. Officer Snyder told her she could use the

telephone after she had talked with Detective Rogers. The

officers’s intent was to maintain order in the hospital and to

prevent any interruption of patient care. Their conduct is not

an issue in this appeal.

Soon thereafter, Detective Rogers entered the room and

presented Corissa Mueller with written notice of a post-

deprivation hearing in state court. April Auker from CPS tried

once again to secure her consent to the recommended proce-

dures, but she refused. Detective Rogers told her that before

he would allow her to use the phone she had to get herself

“under control.” At around 3:00 a.m., Officers Snyder and

Green escorted Corissa Mueller to the hospital lobby and

directed her to a telephone, which she used to call her hus-

band. Eric Mueller recalls his wife “hysterically crying that

they had taken our baby.”

Meanwhile, Auker secured consent through her supervisor

Barbara Hamon from Linda Rodenbach, the State’s Program

Director, authorizing Auker to permit Dr. MacDonald to treat

Taige. This included Auker’s written and signed consent on

behalf of Child Protective Services to perform a spinal tap,

and what Dr. MacDonald recalls as a verbal consent to treat

the infant in whatever method he deemed appropriate. At

approximately 3:00 a.m., Dr. MacDonald performed the spi-

nal tap and authorized the administration of antibiotics and

steroids to Taige. After calling her husband, Corissa Mueller

attempted to enter the exam room where Dr. MacDonald was

treating Taige, but was once again escorted away. The spinal

tap showed that Taige’s spinal fluid was clear, indicating that

10804 MUELLER v. ROGERS

meningitis was not present. Any possible medical emergency

was over.

Sometime later that morning, after Taige’s treatment,

Corissa Mueller was reunited with her daughter, and Eric

Mueller arrived at the hospital. On August 14, 2002, at a stat-

utory post-deprivation hearing called by the Ada County,

Idaho, Prosecuting Attorney, the Muellers regained custody of

Taige. As the state district court noted: “The evidence shows

that Corissa and Eric Mueller are loving parents who at all

times had the best interests of Taige in mind. There is abso-

lutely no evidence of abuse or neglect, and no allegation that

either parent was in any way unfit.”

On August 4, 2004, the Muellers filed a Complaint in

United States District Court for the District of Idaho seeking

relief for the events of August 12 and August 13, 2002. The

Muellers filed a Second Amended Complaint on April 27,

2006, alleging claims against Detective Rogers for violation

of their substantive and procedural constitutional rights pursu-

ant to 42 U.S.C. § 1983. The Muellers filed a Motion for

Summary Judgment along with a statement of undisputed

facts and supporting affidavits on April 20, 2006 and May 2,

2006.

Detective Rogers denied all claims against him in the Sec-

ond Amended Complaint. He filed a motion for summary

judgment against the Muellers, and included supporting affi-

davits, on May 15, 2006.

The district court heard arguments on the motions. On Feb-

ruary 26, 2007, the court granted partial summary judgment

to Detective Rogers on the ground that he was shielded by

qualified immunity against the Muellers’s claims that pro-

ceeding as he did violated their substantive due process paren-

tal rights. Notwithstanding questions of fact as to whether

Rogers (1) had time to contact a judge, and (2) was con-

fronted with a child in imminent danger, the court concluded

MUELLER v. ROGERS 10805

(1) that “no clearly established law existed” to guide him

under these circumstances, and (2) that his decision and con-

duct were reasonable “in light of the specific context of the

case . . . .”

On Eric Mueller’s claims of a violation of his procedural

due process rights to pre- and post-deprivation notice, how-

ever, the court held that these rights were both clearly estab-

lished and violated on the facts as a matter of law, and thus

not only denied qualified immunity to Detective Rogers, but

finally and conclusively granted summary judgment to Eric

Mueller on the merits.1 Detective Rogers thereafter timely

filed a Motion for Reconsideration.

On June 7, 2007, the district court entered an order denying

Detective Rogers’s Motion for Reconsideration. Pursuant to

Rule 4 of the Federal Rules of Appellate Procedure, Detective

Rogers timely filed a Notice of Appeal.

1

In its analysis, and in its response to Eric Mueller’s motion for sum-

mary judgment on the merits with respect to his claims of violations of his

constitutional rights, the court said that it would (1) identify first the core

constitutional rights at issue, (2) then determine “whether those rights

were violated (or whether questions of fact remain),” and then turned to

the issue of qualified immunity.

We note that summary judgment with respect to the first prong of the

test for qualified immunity under Saucier v. Katz, 533 U.S. 194, 206

(2001), on one hand, and summary judgment on the merits of whether an

officer actually violated a plaintiff’s rights, on the other, are quite differ-

ent. It does not follow that a denial of summary judgment to an officer on

Saucier’s first prong of qualified immunity — looking at the facts favor-

ably to the plaintiff — necessarily determines that the plaintiff must pre-

vail at summary judgment on this issue on the merits of the claim —

looking at the facts favorably to the officer. The difference is subtle, but

exquisitely important.

10806 MUELLER v. ROGERS

II

JURISDICTION

A. Mitchell v. Forsyth

Ordinarily, we have jurisdiction only over “final decisions”

of the district court. 28 U.S.C. § 1291. However, the Supreme

Court has in effect created an exception to this rule for mat-

ters involving claims by a public official of qualified immu-

nity from suit. Mitchell v. Forsyth, 472 U.S. 511, 525-30

(1985). This exception whereby non-final decisions become

“final orders” for the purpose of § 1291 stems from the

policy-driven nature and substance of the defense of qualified

immunity, which is more than a “mere defense to liability,”

but is actually a complete immunity from suit, and from all the

risks, distractions and “inhibitions of discretionary action, and

deterrence of able people from public service,” that go along

with being a defendant in a civil lawsuit. Id. at 526 (emphasis

in original). Recognizing that this unique entitlement to avoid

court altogether is “effectively lost if a case is erroneously

permitted to go to trial, the Court held in Mitchell that a dis-

trict court’s “denial of a claim of qualified immunity, to the

extent that it turns on an issue of law, is an appealable ‘final

decision’ within the meaning of 28 U.S.C. § 1291 notwith-

standing the absence of a final judgment.” Id. at 530.

The Court in Mitchell also addressed the appealability of a

defendant’s failed motion for summary judgment on the

ground of qualified immunity, holding that both the denial of

a defendant’s motion as well as a ruling by the trial judge that

“if the facts are as asserted by the plaintiff, the defendant is

not immune” qualify for the purposes of § 1291 as “final

orders.” Id. at 527.

The three attributes of such an immediately appealable

“final order” are (1) “they ‘finally determine claims of right

[such as qualified immunity] separable from, and collateral to,

MUELLER v. ROGERS 10807

rights asserted in the action’ ”; (2) are “ ‘too important to be

denied review’ ”; and (3) are “ ‘too independent of the cause

itself to require that appellate consideration be deferred until

the whole case is adjudicated.’ ” Ashcroft v. Iqbal, 556 U.S.

___ (2009) (quoting Behrens v. Pelletier, 516 U.S. 299, 305

(1996); quoting in turn Cohen v. Beneficial Industrial Loan

Corp., 337 U.S. 541, 546 (1949)).

It is useful in understanding the scope and limits of Mitch-

ell’s jurisdictional holding to examine the posture of Mitch-

ell’s case before the Supreme Court. In response to cross-

motions for summary judgment — such as we have here —

the district court “found that there was no genuine dispute as

to the facts,” and that Mitchell’s conduct as alleged “was a

clear violation of the Fourth Amendment . . . .” Id. at 515.

However, the district court ruled that Mitchell could prevail

on the ground of qualified immunity if he had acted “in good

faith,” and thus denied both parties’ motions for summary

judgment on this isolated issue. Then the plot thickened.

On remand from the Third Circuit Court of Appeals, the

district court reconsidered its previous ruling on qualified

immunity in light of Harlow v. Fitzgerald, 457 U.S. 800

(1982), in which the Court “purged qualified immunity doc-

trine of its subjective components.” Mitchell, 472 U.S. at 517.

Nevertheless, the district court denied again Mitchell’s motion

for summary judgment and “granted Forsyth’s motion for

summary judgment on the issue of liability, and scheduled

further proceedings on the issue of damages.” Id. The Court

of Appeals then held with respect to the district court’s order

that it was not appealable under the collateral order doctrine

of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541

(1949). Forsyth v. Kleindienst, 729 F.2d 267 (3d Cir. 1984).

Significantly, the Supreme Court granted certiorari to

examine inter alia (1) “the issue of the appealability before

final judgment of orders denying [qualified] immunity”, and

(2) “the District Court’s decision — left standing by the Court

10808 MUELLER v. ROGERS

of Appeals — that Mitchell’s actions violated clearly estab-

lished law . . . .” Mitchell, 472 U.S. at 519.

After concluding that matters involving denials of qualified

immunity were immediately appealable, the Court then turned

to the issue not addressed by the Court of Appeals, i.e., the

district court’s summary judgment holding that Mitchell’s

actions violated clearly established law, which the court

regarded as “appropriate for our immediate resolution.”

Finally, the Supreme Court held that the Court of Appeals

erred in declining to accept jurisdiction over the question of

qualified immunity, and it reversed that court’s merits deci-

sion that Mitchell was not entitled to qualified immunity.

B. Qualified Immunity: Jurisdictional Considerations

The interest protected by the qualified immunity doctrine is

so singularly and sufficiently important that it justifies more

than one pretrial appeal by a defendant asserting the same. In

Behrens v. Pelletier, 516 U.S. 299 (1996), the Supreme Court

opened our jurisdictional door to pretrial appeals in the same

case from first, a failed motion by a defendant to dismiss, and

then, a failed motion for summary judgment. In so doing, the

Court waived aside the concerns that would ordinarily limit to

one the number of pretrial appeals available to a defendant,

such as costs, delays, waste of appellate court time, litigation

coherence etc. Id. at 308-13. Not one of these worries is

implicated in accepting a pretrial appeal or district court’s

grant of summary judgment to Eric Mueller on the merits. In

fact, the contrary is true. By reviewing it now, we efficiently

eliminate the possible need to review it later. An answer now

to the propriety of the denial of summary judgment will allow

both sides better to assess the status of their case, and not

cause Rogers to appeal later on to cleanse the record and his

name. The collateral personal and professional consequences

for an officer of the law to have on his record a pending judg-

ment such as this — even though uncollectable — are mani-

MUELLER v. ROGERS 10809

fest. A lawyer, for example, might well find his interest in

becoming a judge foreclosed. One needs only to watch federal

judicial confirmation hearings in the United States Senate to

appreciate this reality.

Furthermore, we have in mind the Supreme Court’s admo-

nition in Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per

curiam) “we repeatedly have stressed the importance of

resolving immunity questions at the earliest possible stage in

litigation.”

Finally, the erroneous judgment our colleague would leave

standing has the potential to function as precedent in the dis-

trict of Idaho; yet another reason to examine it now.

C. Analysis

[1] “[D]etermining whether there is a genuine issue of

material fact at summary judgment is a question of law . . . .”

Ashcroft v. Iqbal, 556 U.S. ___ (2009). However, because it

is a “legal question that sits near the law-fact divide,” id. the

Supreme Court held in Johnson v. Jones, 515 U.S. 304 (1995)

that a denial of qualified immunity defense on the ground that

there was a genuine issue of material fact yet to be decided

deprived that denial of the attributes of an immediately

appealable final order. Underlying the Court’s decision was a

recognition that the denial of a motion for summary judgment

on the ground of the existence of genuine issues of material

facts does not conclusively and finally determine the claim of

right involved. In fact, such a ruling leaves the issue yet to be

decided. Our colleague in dissent has written an excellent dis-

quisition on appellate jurisdiction in this context. He relies in

large measure on Johnson to support his views. However,

because Johnson involved a denial of a defendant’s motion,

and our case involves a grant of summary judgment to a

plaintiff resisting the same, we believe Johnson to be distin-

guishable.

10810 MUELLER v. ROGERS

[2] Thus, recognizing that we plow new ground because of

the unusual posture of Rogers’s situation, we conclude that

the grant of summary judgment to Eric Mueller as a matter of

law on the merits of a constitutional claim, and against a

defendant asserting qualified immunity, is the equivalent of a

denial of such an assertion. Such denial where the district

court has held that no cognizable factual disputes exist vests

us with jurisdiction under the collateral order doctrine.

There can be no doubt that the district court’s order at issue

finally and conclusively determined all liability issues against

Rogers. To hold otherwise would be not only unwisely to

exalt form over substance, but to ignore the fact that, accord-

ing to the Supreme Court, it is the substance of the entitle-

ment not to stand trial that demands the exception from the

usual rule. The proof of the pudding once again is in the eat-

ing, and here the result is unpalatable when measured against

the entitlement under consideration. Here, not only did the

district court’s summary judgment in favor of Eric Mueller

conclusively and finally decide the issue of liability and

impose the continuing burdens of litigation on Rogers, but it

effectively foreclosed his potential entitlement not to stand

trial on damages and left outstanding a judgment against him

that he violated Eric Mueller’s constitutional rights. Such a

result — if wrong — would simply “deny[ ] justice by delay.”

Eisen v. Charlisle and Jacquelin, 417 U.S. 156, 171 (1974)

(quoting Dickinson v. Petroleum Conversion Corp., 338 U.S.

507, 511 (1950)).

In effect, the denial in this case and the grant on the merits,

even though it was not “independent of the cause itself,”

Iqbal, 556 U.S. at ___, are “inextricably intertwined,” open-

ing the door to the doctrine of “pendent Jurisdiction.” See

Swint v. Chambers County Commission, 514 U.S. 35 (1995).2

2

Our colleague dismisses this discussion by the Supreme Court as

“dicta.” Dicta it may be, but it suggests that the Supreme Court and the

law on the subject may be open to this principle. We believe it fits the

facts and legal circumstances of this case, so we use it.

MUELLER v. ROGERS 10811

As we held in Duran v. City of Douglas, Ariz., 904 F.2d 1372,

1376 (9th Cir. 1990),

Likewise, [Officer] Aguilar may appeal the dis-

trict court’s grant of summary judgment in favor of

the [plaintiffs] Durans on the issue of section 1983

liability. The legal issues involved in that appeal-

whether Aguilar violated clearly established consti-

tutional protections — are identical to those govern-

ing the question of Aguilar’s qualified immunity. As

the relevant facts are not disputed, the resolution of

the qualified immunity question will also decide the

question of Aguilar’s liability. Delaying our consid-

eration of the liability issue until after the trial on

damages would thus serve no purpose.

We draw support for our decision from the Sixth Circuit.

In Brennan v. Township of Northville, 78 F.3d 1152 (6th Cir.

1996), our sister circuit confronted on interlocutory appeal a

district court’s denial of qualified immunity to two police

officers. As in our case, the district court had also granted par-

tial summary judgment to the plaintiff on liability. After rul-

ing in favor of the officers on qualified immunity, the circuit

court reached out and disposed of the rest of the case. Their

convincing analysis — rendered in the “interest of judicial

economy” — was as follows:

We would not normally have jurisdiction over the

rest of the case-the summary judgment in favor of

Brennan-because a partial summary judgment on the

issue of liability alone is not a “final decision” under

28 U.S.C. § 1291. This case presents a special situa-

tion, however, in which the issues of liability and

qualified immunity are so related to each other that

we can dispose of them together under the doctrine

of pendent appellate jurisdiction. We do so, revers-

ing plaintiff’s summary judgment against the two

police officers.

10812 MUELLER v. ROGERS

Our discretionary exercise of pendent appellate

jurisdiction in this case is consistent with that of

other courts of appeals, which have interpreted dic-

tum in Swint v. Chambers County Comm’n., as

allowing pendent appellate jurisdiction where the

appealable and non-appealable issues are “inextrica-

bly intertwined.” See Moore v. Wynnewood, 57 F.3d

924, 928-31 (10th Cir. 1995) . . . . In a carefully rea-

soned opinion, the Tenth Circuit [in Moore] deter-

mined that because the plaintiff had failed to show

a constitutional violation in his § 1983 action, not

only should the police officer defendant prevail on

qualified immunity grounds, but also the city defen-

dant should prevail on its normally unappealable

interlocutory claim. Moore, 57 F.3d at 927, 929-30.

The two claims were “inextricably intertwined”

because the finding of nonexistence of a constitu-

tional claim for immunity purposes necessarily

decided the whole case not only in favor of the offi-

cer, but also in favor of the city as well.

...

The situation in Moore closely mirrors our own.

In the instant case, our reversal of the district court’s

qualified immunity determination on the ground that

Brennan has not alleged a constitutional violation is

indisputably “coterminous with, or subsumed in” the

second issue: whether Brennan is entitled to sum-

mary judgment on the basis of a constitutional viola-

tion. Our finding on the first issue necessarily and

unavoidably decides the second. Because we find

that Brennan’s rights were not violated for immunity

purposes, we must find that Brennan’s rights were

not violated for purposes of obtaining affirmative

relief.

(citations omitted). See also Dolihite v. Maughon, 74 F.3d

1027, 1035 n. 3 (11th Cir. 1996) (exercising pendent jurisdic-

MUELLER v. ROGERS 10813

tion over issues “inextricably intertwined” with core qualified

immunity issues); Kincade v. City of Blue Springs, 64 F.3d

389, 394-95 (8th Cir. 1995), cert. denied, 517 U.S. 1166

(1996) (exercising appellate jurisdiction over closely related

issues of law, i.e., pending appellate claims); Kaluczky v. City

of White Plains, 57 F.3d 202, 206-07 (2d Cir. 1995) (“[T]he

[Supreme] Court [in Swint] did not otherwise narrow the

scope of pendent jurisdiction, and appeared to contemplate

pendent appellate jurisdiction over an independent but related

question that is ‘inextricably intertwined’ with the issue of

qualified immunity or is ‘necessary to ensure meaningful

review’ of that issue.”).

A holding that Rogers must wait to appeal the adverse rul-

ing about him not only makes no sense, but it flies right in the

face of efficient judicial administration. It is not a satisfactory

answer in the context of qualified immunity to tell Rogers that

the judgment stands, but that it is uncollectible, and if he finds

this unsatisfactory, he can appeal later.

III

STANDARD OF REVIEW

This court reviews de novo a district court’s denial of sum-

mary judgment on the basis of qualified immunity. Blanken-

horn v. City of Orange, 485 F.3d 463, 470 (9th Cir. 2007).

“The grant of ‘partial’ summary judgment is also reviewed de

novo.” Delta Savings Bank v. U.S., 265 F.3d 1017, 1021 (9th

Cir. 2001). This court “may not affirm a grant of summary

judgment if there is any genuine issue of material fact or the

district court incorrectly applied the substantive law.” Id.

With respect to Eric Mueller’s motion for summary judgment

against Rogers, we must view the evidence “in the light most

favorable” to Rogers as the non-moving party to determine if

there was no genuine issue as to any material fact and that

Mueller was entitled to judgment as a matter of law. Rene v.

MGM Grand Hotel, Inc., 305 F.3d 1061, 1064 (9th Cir. 2002)

10814 MUELLER v. ROGERS

(en banc) (quoting Delta Savings Bank, 265 F.3d at 1021);

Fed. R. Civ. Pro. 56(c). All justifiable inferences are to be

drawn in favor of Rogers, and his evidence is to be believed.

Blankenhorn, 485 F.3d at 470. With respect to Rogers’s

motion for summary judgment on Mueller’s procedural due

process claims, we review the evidence in the light most

favorable to the Muellers.

IV

DISCUSSION

A. Eric Mueller’s Motion for Summary Judgment

Against Rogers

[3] The first question we must answer is whether the dis-

trict court erred in granting summary judgment to Eric Muel-

ler on the merits of his procedural due process pre-deprivation

notice claim. We cannot affirm a grant of summary judgment

if a genuine issue of material fact exists. Delta, 265 F.3d at

1021. Whether a child is in imminent danger when she is

removed from her parents’ custody is a material fact, because

it is unlawful to take a child into state custody without notice

and a hearing unless that child is in imminent danger. See

Ram v. Rubin, 118 F.3d 1306, 1310 (9th Cir. 1997). Because

we conclude after reviewing the evidence on this issue in the

light most favorable to Rogers that there was a genuine issue

of material fact as to whether Rogers was confronted with

imminent danger to Taige at the time in question, we reverse

the district court’s ruling.

[4] As the historical facts clearly indicate, qualified medical

doctors told Rogers (1) that there was a 5% chance that Taige

had a “serious bacterial infection; meningitis or sepsis,” (2)

that she was potentially in danger of dying, (3) that they had

only 45 minutes to act to save her, (4) that the risk of treat-

ment was less than the risk of foregoing treatment, (5) that if

Taige left the hospital without treatment, “she could become

MUELLER v. ROGERS 10815

increasingly ill and die before Mrs. Mueller could return to

the hospital,” and (6) Eric Mueller was not there, having dele-

gated the care of his daughter to Corissa. Corissa was uncoop-

erative and becoming hysterical. She had to be removed from

the area by police officers. Rogers considered calling Eric but

decided against it because:

Corissa Mueller was quite adamant in her refusal,

and I believe Taige was running out of time to

receive needed treatment and did not want to waste

valuable time by having Eric or Corissa argue over

Dr. MacDonald’s recommendations. Furthermore, I

was concerned that even if Eric Mueller consented

and Corissa did not, that I would be faced with a tug-

of-war with Corissa to enforce Eric Mueller’s treat-

ment decision.

Moreover, the hospital’s social worker opined that “even if

. . . he had provided consent, we had Corissa in the hospital

not providing consent. We would have had to follow her

wishes. She was there. She was holding the child.”

[5] This set of facts and circumstances creates without

doubt a classic genuine issue of material fact on the central

issue of whether Rogers reasonably perceived imminent dan-

ger to Taige. See Ram v. Rubin, 118 F.3d at 1310 (“taking

Ram’s children into custody without notice and a hearing was

unlawful unless there was imminent danger to the children”).

In this respect, our conclusion is fully consistent with the dis-

trict court’s denial of the Muellers’s substantive due process

right-to-a-judicial-hearing-claim on the ground that “[t]hese

circumstances create issues of fact over whether Detective

Rogers had sufficient time to call a judge.” Having so con-

cluded, we move to the next issue: whether Rogers is entitled

to qualified immunity on Mueller’s notice claims.

10816 MUELLER v. ROGERS

B. Qualified Immunity

1. The Doctrine

Qualified immunity shields public officials from civil dam-

ages for performance of discretionary functions. It is “an

immunity from suit rather than a mere defense to liability; and

like an absolute immunity, it is effectively lost if a case is

erroneously permitted to go to trial.” Mitchell, 472 U.S. at

526. Under qualified immunity, an officer will be protected

from suit when he or she “makes a decision that, even if con-

stitutionally deficient, reasonably misapprehends the law gov-

erning the circumstances.” Brosseau v. Haugen, 543 U.S. 194,

198 (2004); see also Saucier, 533 U.S. at 206 (2001). Quali-

fied immunity protects “all but the plainly incompetent or

those who knowingly violate the law.” Malley v. Briggs, 475

U.S. 335, 341 (1986). The standard is an objective one that

leaves “ample room for mistaken judgments.” Id. at 343.

Moreover, the court has “repeatedly . . . stressed the impor-

tance of resolving immunity questions at the earliest possible

stage in litigation.” Hunter v. Bryant, 502 U.S. at 227.

The purpose of this doctrine is to recognize that holding

officials liable for reasonable mistakes might unnecessarily

paralyze their ability to make difficult decisions in challeng-

ing situations, thus disrupting the effective performance of

their public duties. The Supreme Court has reminded us to

recognize the demands of the real world in evaluating acts by

members of the executive branch of government:

Nor is it always fair, or sound policy, to demand

official compliance with statute and regulation on

pain of money damages. Such officials as police

officers or prison wardens, to say nothing of higher

level executives . . . who enjoy only qualified immu-

nity, routinely make close decisions in the exercise

of the broad authority that necessarily is delegated to

them. These officials are subject to a plethora of

MUELLER v. ROGERS 10817

rules, “often so voluminous, ambiguous, and contra-

dictory, and in such flux that officials can only com-

ply with or enforce them selectively.” See P. Schuck,

Suing Government 66 (1983). In these circum-

stances, officials should not err always on the side of

caution. “[O]fficials with a broad range of duties and

authority must often act swiftly and firmly at the risk

that action deferred will be futile or constitute virtual

abdication of office.”

Davis v. Scherer, 468 U.S. 183, 196 (1984) (quoting Scheuer

v. Rhodes, 416 U.S. 232, 246 (1974)).

2. Analytical Methodology

To determine whether a public official is protected by qual-

ified immunity, the Supreme Court required until recently that

we first consider whether the official’s conduct violated a

constitutional right, and if so, then whether that right was

clearly established at the time of the event in question. Sau-

cier, 533 U.S. at 201. Only after deciding the first step were

we authorized to go to the second step. Under the second step,

to attach liability “[t]he contours of the right must be suffi-

ciently clear that a reasonable official would understand what

he is doing violates that right.” Anderson v. Creighton, 483

U.S. 635, 640 (1987). This framework means that “the right

allegedly violated must be defined at the appropriate level of

specificity before a court can determine if it was clearly estab-

lished.” Wilson v. Layne, 526 U.S. 603, 615 (1999). In other

words, the second-step question in this case is, was the law

such that it should have been clear to Detective Rogers that

he was required in the situation he confronted to give pre-

deprivation and post-deprivation notice to an absent father.

See id.

3. Pearson v. Callahan Discretion

In Pearson v. Callahan, 129 S. Ct. 808, 555 U.S. ____

(2009), the Court abandoned Saucier’s rigid two-step protocol

10818 MUELLER v. ROGERS

as an inflexible mandate, concluding that, “while the sequence

set forth there is often appropriate, it should no longer be

regarded as mandatory.” Pearson, 129 S. Ct. at 818. The court

further held that the “judges of the district courts and the

courts of appeals should be permitted to exercise their sound

discretion in deciding which of the two prongs of the qualified

immunity analysis should be addressed first in light of the cir-

cumstances in the particular case at hand.” Id.

As guidance to us with respect to deciding in a given case

whether a constitutional decision on Saucier’s first prong is

appropriate, the Court said,

Although the first prong of the Saucier procedure is

intended to further the development of constitutional

precedent, opinions following that procedure often

fail to make a meaningful contribution to such devel-

opment. For one thing, there are cases in which the

constitutional question is so fact-bound that the deci-

sion provides little guidance for future cases.

Pearson, 129 S. Ct. at 819. The Court added that the law elab-

oration purpose is not well served where the constitutional

inquiry “involves a . . . question which is highly idiosyncratic

and heavily dependent on the facts.” Id. (quoting Buchanan v.

Maine, 469 F.3d 158, 168 (1st Cir. 2006)).

The Court held, therefore, that a court may proceed to the

second prong of the Saucier analysis without addressing the

first, where “a court will rather quickly and easily decide that

there was no violation of clearly established law before turn-

ing to the more difficult question whether the relevant facts

make out a constitutional question at all.” Pearson, 129 S. Ct.

at 820.3

3

At our request, both parties have supplied us with their views as to the

application of Pearson to this case. We thank them for their input.

MUELLER v. ROGERS 10819

4. Saucier’s First Prong

[6] The first question normally is whether on this record it

is appropriate to render a decision on Saucier’s first prong

with respect to Eric Mueller’s procedural due process pre-

deprivation notice claim and whether such a violation

occurred. Because we have concluded after reviewing the fac-

tual evidence on this issue in the light most favorable to Rog-

ers — or for that matter to Eric Mueller — that there was a

genuine issue of material fact as to whether Rogers was con-

fronted with imminent danger to Taige at the time in question,

we see no useful purpose in pursuing this fact-bound inquiry.

[7] With all respect to the district court’s conclusion to the

contrary, this kaleidoscopic set of facts and circumstances

creates without doubt a classic genuine issue of material fact

on the central issue of whether Rogers reasonably perceived

imminent danger to Taige. Ram v. Rubin, 118 F.3d at 1310

(“taking Ram’s children into custody without notice and a

hearing was unlawful unless there was imminent danger to the

children.”). Thus, if a factfinder were to decide that Rogers

was indeed confronted with exigent circumstances, his failure

to contact Eric would not have violated Eric’s rights. On the

other hand, a factual decision to the contrary would produce

an opposite constitutional result. This case, therefore, presents

the type of situation as contemplated by the Supreme Court

where a constitutional decision is inappropriate and unwise.

“[I]f a rational trier of fact might resolve the issue in favor of

the nonmoving party, summary judgment must be denied.”

T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n., 809

F.2d 626, 631 (9th Cir. 1987) (citing Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). Thus

we proceed to the next prong.

5. Saucier’s Second Prong

[8] This inquiry “must be undertaken in light of the specific

context of the case, not as a broad general proposition.” Sau-

10820 MUELLER v. ROGERS

cier, 533 U.S. at 201. See also Brosseau, 543 U.S. at 198.

Thus, viewing here the facts in the light most favorable to the

Muellers, and assuming without deciding that Eric Mueller in

the circumstances presented, had constitutional rights to both

pre- and post-deprivation notice which were not honored, we

determine whether those rights were clearly established. Spe-

cifically, was it clearly established that Detective Rogers had

to give pre-deprivation notice not only to the parent in the

hospital present with and exercising judgment with respect to

her child’s medical situation, but also to a parent absent from

the scene of his decision? Further, was it clearly established

that Eric Mueller had a constitutional right to post-deprivation

notice, which Detective Rogers had the responsibility to

deliver?

C. Analysis

1. Pre-Deprivation Notice

[9] Parents generally have a procedural right to a judicial

hearing if the State seeks to compel their minor child to

undergo a medical treatment over their objection. See Stanley

v. Illinois, 405 U.S. 645, 651 (1972); Wallis v. Spencer, 202

F.3d 1126, 1138 (9th Cir. 2000). This right, however, is not

absolute. As previously explained, when the State has “rea-

sonable cause to believe that the child is in imminent danger

of serious bodily injury and . . . the scope of the intrusion is

reasonably necessary to avert that specific injury,” a State has

the authority without prior judicial authorization to compel a

minor child to undergo specific medical treatment over paren-

tal objections. Wallis, 202 F.3d at 1138. We have said also

that the taking by officials of endangered children into cus-

tody may be accomplished “without notice.” Ram, 118 F.3d

at 1310.

In ruling that Eric Mueller was entitled to summary judg-

ment on the claim that Detective Rogers violated his constitu-

tional right to pre-deprivation notice, and that Detective

MUELLER v. ROGERS 10821

Rogers was not entitled to qualified immunity, the district

court relied upon our holding in Wallis to conclude that both

parents are unconditionally entitled to pre-deprivation notice.

We respectfully disagree with the district court’s conclusion

that Wallis stands clearly for the constitutional proposition

that both parents necessarily have a clearly established right

to pre-deprivation notice.

First, the facts and circumstances in Wallis are not only dif-

ferent, but manifestly distinguishable from those in the instant

case. In Wallis, police officers received a tip from an institu-

tionalized and previously discredited mental patient with a

long history of delusional disorders that her brother, Wallis,

intended to sacrifice his son to Satan on the full moon. 202

F.3d at 1131. Without a court order, the officers seized the

child and his sister from their home and the custody of their

parents, and placed them in a county-run institution. Id. at

1134. We stated:

Three days after the children were removed from

their home, Detective Pitcher picked them up from

the county institution and took them to Palomar Hos-

pital, where she ordered, on behalf of the Escondido

Police Department, an evidentiary physical examina-

tion of both children. No court order was obtained

prior to this examination, which was performed in

order to determine whether either child had been

sexually abused. Nor were the parents notified in

advance that the examinations would be conducted.

They were not given any opportunity to object to the

intrusive examinations, to suggest conditions under

which they might take place, or to be present when

they occurred.

Id. at 1134-35. The children were not returned to their parents

for approximately two and one-half months. Id. at 1131. In

reversing the grant of summary judgment to the city, we held

the state’s failure to provide notice to a child’s parents prior

10822 MUELLER v. ROGERS

to such physical examinations, undertaken solely for an inves-

tigative purpose, violates the parents’ procedural due process

rights. Id. at 1141.

[10] However, neither Wallis nor any of the authorities

upon which it relies clearly establish a constitutional rule that

both parents must be given pre-deprivation notice before med-

ical intervention in the context and setting of our present case.

In Wallis, neither parent was given any notice whatsoever of

the decision by the police to subject the children to investiga-

tory exams. Consequently, the question of whether notice to

one parent and not to the other would or would not suffice to

satisfy procedural due process was not present in that case. It

simply was not an issue.

[11] In contrast to Wallis, both Muellers made the decision

voluntarily to have their child taken by the child’s mother to

a hospital for medical evaluation. Both parents knew from the

child’s own naturopathic physician that it was probable that

the hospital doctors would resort to the administration of anti-

biotics and a spinal tap to evaluate the precise medical situa-

tion which occasioned their concern. Understandably and

appropriately, Eric Mueller chose to stay at home and entrust

the medical care of his daughter to his wife. It was eminently

reasonable for Detective Rogers to believe that Corissa Muel-

ler was speaking for her husband. Moreover, unlike what hap-

pened to Mrs. Wallis or her husband, Taige’s mother was

fully notified and aware of the doctors’s and the detective’s

concerns, her input and reservations were solicited and evalu-

ated before any decision was made, and she was permitted to

be in “a waiting room or other nearby area” while the medical

procedures were being undertaken. Id. at 1142.

This context is a far cry from what happened to the Wallis

family. Wallis was about protecting children from parents’

possible criminal behavior, not treating a sick child taken to

a hospital by her mother. The references to “parents” in Wal-

lis must be viewed in this light, and it is not clear from that

MUELLER v. ROGERS 10823

opinion that an absent parent in an intact family such as Eric

Mueller, must at all times be notified of what is about to hap-

pen to his child where the child’s other parent is present with

the child.

When asked at oral argument for counsel’s best authority

that it was clearly established at the time Detective Rogers

declared Taige in imminent danger that both parents needed

to be notified, the answer was “footnote 14 in Wallis.” Foot-

note 14 reads as follows:

We note that the claims of each family member

must be assessed separately. Here, nothing in the

record before us suggests that Becky Wallis was

anything other than a fit and loving mother. As the

Third Circuit recently held, a state has no interest

whatever in protecting children from parents unless

it has some reasonable evidence that the parent is

unfit and the child is in imminent danger. The gov-

ernment may not, consistent with the Constitution,

interpose itself between a fit parent and her children

simply because of the conduct — real or imagined

— of the other parent.

Id. at 1142 n.14. (internal citation omitted). This footnote

does no more than address the government’s contention that

because the Wallis children’s father was a suspected danger

to the children, their mother did not have a substantive due

process right to be present. Footnote 14 falls far short of creat-

ing a clearly established right of both parents to pre-

deprivation notice in a setting presented by the case before us

on appeal. There is nothing in Wallis that would give Detec-

tive Rogers fair notice either that in this context he had to call

an absent parent, or that failing to do so was constitutionally

unlawful.

[12] During oral argument, counsel for Eric Mueller was

asked about the consequences of Eric Mueller’s possible tele-

10824 MUELLER v. ROGERS

phonic consent over his wife’s objections to the disputed pro-

cedures. Ironically, his answer was, “[o]ne parent is all that is

needed to go ahead over the other’s objection.” If this is true,

a peace officer in Detective Rogers’s situation could ratio-

nally assume that talking to the one parent present would also

suffice. There is no practical purpose in seeking consent from

Eric Mueller when Corissa Mueller had already objected and

would need to be restrained regardless of whether Eric Muel-

ler consented. Furthermore, had Corissa Mueller consented,

there would have been no need to notify or to consult her hus-

band.

2. Post-Deprivation Notice

[13] The Muellers further assert, and the district court

ruled, that Detective Rogers violated Eric Mueller’s constitu-

tional procedural due process right to post-deprivation notice.

This court has recognized “that a parent may have a cogniza-

ble due process right to a post-deprivation hearing when the

state removes a child from the parent’s custody on an emer-

gency basis and places the child with an individual who does

not enjoy legal custody.” Caldwell v. LeFaver, 928 F.2d 331,

334 (9th Cir. 1991). See also Campbell v. Burt, 141 F.3d 927,

929 (9th Cir. 1998). To accord with procedural due process,

parents must be given notice of a post-deprivation hearing.

See Campbell,141 F.3d at 929; Caldwell, 928 F.2d at 334.

[14] In this case, Detective Rogers gave Corissa Mueller

explicit notice of his decision to transfer custody of Taige to

the State. He did so prior to the medical procedures in ques-

tion. He then gave her written notice of the post-deprivation

hearing sometime between 1:40 a.m. and 3:00 a.m. on August

13, 2002. The written notice included details about the hear-

ing date, time, and location. Around 3:00 a.m. Idaho Depart-

ment of Health and Welfare employee Barbara Hamon called

Eric Mueller at his home. Hamon informed Eric Mueller that

Taige had been declared in imminent danger, why his daugh-

ter had been declared in imminent danger, that Taige would

MUELLER v. ROGERS 10825

remain at the hospital for further care, and that a court hearing

would take place. Both husband and wife attended the hearing

the next day.

[15] The Muellers contend that the notice given by Detec-

tive Rogers to Corissa Mueller was insufficient to satisfy Eric

Mueller’s right to post-deprivation notice. For the reasons

given earlier in this Opinion, we disagree. Moreover, the pre-

cise question here is not whether Eric Mueller was entitled to

post-deprivation notice of the pending hearing, but whether

the Constitution clearly mandated that Detective Rogers be

the one to deliver such notice. We answer this question in the

negative. Detective Rogers had a central role in this matter,

but one that was confined to making the decision that would

transfer temporary custody of Taige to the State. At the point

he made that decision, the State took over in the person of

April Auker from Child Protective Services. From that

moment, Detective Rogers had no say whatsoever in what

would happen to Taige. All medical and custodial decisions

were to be made by April Auker and doctors at St. Luke’s

Hospital, and eventually the state court, as the district court

recognized:

When an officer finds imminent danger, and invokes

Idaho Code § 16-1612, the officer turns the child

over to the State Department of Health and Welfare.

The State has the duty to “secure adequate care” for

the child, see I.C. § 16-1601, and thus is authorized

to consent to medical treatment for the child.

If any agency had the constitutional responsibility to give

post-deprivation notice to Eric Mueller regarding treatment or

what the State had in store for Taige, it was the Idaho Depart-

ment of Health and Welfare and Child Protective Services,

not Detective Rogers, the peace officer.

[16] In any event, the Idaho Department of Health and

Welfare — which assumed temporary custody over Taige —

10826 MUELLER v. ROGERS

did timely provide Eric Mueller with post-deprivation notice.

It is an uncontested fact that Barbara Hamon advised Eric

Mueller “around 3:00 a.m.,” on August 13, 2002, (1) that

Taige had been taken into shelter care, (2) of the reason for

that decision, (3) that Taige would remain in the care of the

Department of Health and Welfare, and that “a shelter care

hearing would be taking place to determine whether Taige

would remain in the care of the Department or be returned to

the care of her parents.”

[17] Any state, of course, is free by statute or otherwise to

mandate a different approach to these issues. See I.C. § 16-

1613 (2001) (requiring post-deprivation notice by the respon-

sible peace officer to “each of the parents.”). As a general

rule, however, “a violation of state law does not lead to liabil-

ity under § 1983.” Campbell, 141 F.3d at 930. See also Davis

v. Scherer, 468 U.S. at 194 n.12 (stating officials may lose

immunity only if a statute or regulation provides the basis for

the right). Here, the controlling state laws regarding notice did

not clearly establish a federal right on the night in question.

Campbell, 141 F.3d 930 (noting the doctrine is limited to a

certain core of prisoners’ rights). Thus, while Eric Mueller did

have a constitutionally protected procedural due process right

to post-deprivation notice, this right was satisfied.

To reiterate, it has not been clearly established that a peace

officer in this complex context would have understood that it

was his constitutional responsibility personally to advise Eric

Mueller post-deprivation of the situation with his daughter.

Unlike the facts and particulars in Wallis, here Detective Rog-

ers was no longer in the decision making process once CPS

— a different agency — assumed responsibility for Taige. All

medical decisions were to be made by CPS. In Wallis, it was

the detective in charge of the investigation of possible abuse

who, without a court order, picked the children up from the

county institution where they were housed and took them to

a hospital where she ordered an evidentiary physical examina-

tion of both children. Wallis, 202 F.3d at 1134-35. Time was

MUELLER v. ROGERS 10827

not of the essence, the children were not sick, and doctors

were not breathing down the necks of the police with con-

cerns about their mortality. It comes as no surprise that under

those circumstances, we held that police exercising control

over the children and making decisions regarding their medi-

cal and physical situation, were required by the Constitution

to give notice to the parents, as well as to seek judicial

approval of their plan. Id. at 1141. Eric Mueller has not dem-

onstrated that either Wallis or any other precedent makes it

apparent in light of pre-existing law that Detective Rogers’s

non-involvement in the post-deprivation notice to Eric Muel-

ler was unlawful.

V

POSTSCRIPT

There was a time in our legal history when this analysis

would have been different, a regrettable time when married

women like Corissa Mueller literally had no rights of their

own. Nowhere was this made more clear than in the Supreme

Court’s decision in 1872 denying Myra Bradwell’s request to

overturn the Supreme Court of Illinois’s refusal — on the

ground that she was a woman — to allow her to practice law.

Bradwell v. The People of the State of Illinois, 83 U.S. 130

(1872). The Supreme Court of Illinois said, “[t]hat God

designed the sexes to occupy different spheres of action, and

that it belonged to men to make, apply, and execute the laws,

was regarded as an almost axiomatic truth.” In re Bradwell,

55 Ill. 535, 1896 WL 5503 at *3 (Ill. 1869).

The United States Supreme Court decision treated Myra

Bradwell no better, ruling against her and upholding Illinois’s

judgment. In a concurring opinion, Justice Bradley articulated

the commonly held dogma of the day:

[T]he civil law, as well as nature herself, has always

recognized a wide difference in the respective

10828 MUELLER v. ROGERS

spheres and destinies of man and woman. Man is, or

should be, woman’s protector and defender. The nat-

ural and proper timidity and delicacy which belongs

to the female sex evidently unfits it for many of the

occupations of civil life. The constitution of the fam-

ily organization, which is founded in the divine ordi-

nance, as well as in the nature of things, indicates the

domestic sphere as that which properly belongs to

the domain and functions of womanhood. The har-

mony, not to say identity, of interest and views

which belong, or should belong, to the family institu-

tion is repugnant to the idea of a woman adopting a

distinct and independent career from that of her hus-

band. So firmly fixed was this sentiment in the

founders of the common law that it became a maxim

of that system of jurisprudence that a woman had no

legal existence separate from her husband, who was

regarded as her head and representative in the social

state; and, notwithstanding some recent modifica-

tions of this civil status, many of the special rules of

law flowing from and dependent upon this cardinal

principle still exist in full force in most States. One

of these is, that a married woman is incapable, with-

out her husband’s consent, of making contracts

which shall be binding on her or him. This very inca-

pacity was one circumstance which the Supreme

Court of Illinois deemed important in rendering a

married woman incompetent fully to perform the

duties and trusts that belong to the office of an attor-

ney and counsellor [sic].

It is true that many women are unmarried and not

affected by any of the duties, complications, and

incapacities arising out of the married state, but these

are exceptions to the general rule. The paramount

destiny and mission of woman are to fulfil the noble

and benign offices of wife and mother. This is the

law of the Creator. And the rules of civil society

MUELLER v. ROGERS 10829

must be adapted to the general constitution of things,

and cannot be based upon exceptional cases.

Bradwell v. The People of the State of Illinois, 83 U.S. 130,

141-42 (1872). See also Minor v. Happersett, 88 U.S. 162

(1874) (confining the right to vote to men).

Fortunately, we emerged long ago from Justice Bradley’s

legal dark ages. The transition was slow, culminating finally

in Reed v. Reed, 404 U.S. 71 (1971), which embraced women

within the Fourteenth Amendment’s guarantee of equal pro-

tection of the laws. Finally, the law had shed its pretense of

“romantic paternalism,” which put women “not on a pedestal,

but in a cage.” Frontiero v. Richardson, 411 U.S. 677, 684

(1973).

[18] Thus, the right of an absent parent to pre-deprivation

notice in this context was not clearly established when Detec-

tive Rogers declared Taige in imminent danger and placed her

in state custody. Therefore, Detective Rogers is entitled to

qualified immunity on the claim he violated Eric Mueller’s

due process right to pre-deprivation notice.

VI

CONCLUSION

This case illustrates the wisdom of the doctrine of qualified

immunity. On one hand, we find loving, caring, and con-

cerned parents doing their best to make considered and appro-

priate decisions for their sick infant daughter. On the other,

we find qualified doctors doing their best to provide the

proper medical care for the child, who very well might have

been in dire and deadly circumstances. An understandable

irreconcilable difference of opinion arose between mother and

doctor, which Idaho law expected a peace officer promptly to

navigate and to resolve. One side would prevail, in which case

the other could not.

10830 MUELLER v. ROGERS

There is not a scintilla of evidence in this record to suggest

that Detective Rogers made his decision for any reason other

than his informed perception of the best welfare of both the

mother and the child. Idaho’s Child Protective Act specifies

that “[a]t all times the health and safety of the child shall be

the primary concern,” while preserving “the privacy and unity

of the family whenever possible.” I.C. § 16-1601 (2001).

Detective Rogers, the person in the middle, took concrete

steps to accommodate both interests.

No one is surprised that Corissa Mueller and her husband

have taken umbrage at the State’s decision to override their

parental concerns. For them, this was a terrible and distressing

event. But, to render Detective Rogers accountable in this

lawsuit for a difficult discretionary decision would only deter

other officers similarly situated in the future from making any

decision at all, a situation which would be unacceptable and

which is precisely what qualified immunity is designed to

avoid. In no way can Detective Rogers be said to have been

either “plainly incompetent,” to have acted in bad faith, or to

have “knowingly violate[d] the law.” Malley, 475 U.S. at 34l.

Our conclusion regrettably will come as no consolation to

the Mueller family, but it is required by law based upon the

need to allow government officials to make reasonable deci-

sions, even when the concerns driving those decisions turn out

— happily in this case — to be unsubstantiated. Fortunately

for all concerned, Taige has emerged from this episode in

good health.

Detective Rogers has successfully shown he is entitled to

qualified immunity on the claim that he violated Eric Muel-

ler’s constitutional right to pre-deprivation notice. It was not

clearly established at the time that he removed Taige from her

parents’ custody that he was required to give Eric Mueller

notice of his decision. Thus, we reverse both the district

court’s denial of summary judgment on Rogers’s claim and

the district court’s grant of summary judgment to Eric Muel-

MUELLER v. ROGERS 10831

ler on the underlying issue. In addition, Detective Rogers has

successfully shown he is entitled to qualified immunity on the

claim that he violated Eric Mueller’s constitutional right to

post-deprivation notice. Accordingly, we remand for further

proceedings consistent with this opinion.

Reversed and Remanded.

WALLACE, Senior Circuit Judge, concurring in part, and dis-

senting in part:

I agree with the majority’s conclusion that Detective Rog-

ers is entitled to qualified immunity from Eric Mueller’s pro-

cedural due process claims. However, I part with the majority

opinion in two significant respects. First, I believe the major-

ity improperly exercises appellate jurisdiction over the district

court’s partial summary judgment to Eric on his procedural

due process claims. This decision is plainly not final, so it

cannot be appealed. Second, I disagree with the majority’s

articulated reasons for foregoing the first step of the Saucier

qualified immunity analysis. The majority’s approach on this

issue misapprehends Supreme Court precedent, and abuses

the discretion we retain in addressing qualified immunity

claims on appeal.

I therefore concur only in the majority’s conclusion that

Detective Rogers is entitled to qualified immunity from Eric’s

procedural due process claims because there was no clearly

established law guiding Detective Rogers’ conduct on the

night in question. I respectfully dissent from the majority’s

decision to exercise jurisdiction over the district court’s par-

tial summary judgment to Eric on those same claims. With

respect to the jurisdictional issue, I believe that the majority’s

disposition deviates from important binding Supreme Court

and Ninth Circuit precedent, resulting in an unacceptable con-

flict of law in our circuit.

10832 MUELLER v. ROGERS

I

“[T]he right to a judgment from more than one court is a

matter of grace and not a necessary ingredient of justice . . . .”

Cobbledick v. United States, 309 U.S. 323, 325 (1940); see

also Abney v. United States, 431 U.S. 651, 656 (1977) (hold-

ing that “it is well settled that there is no constitutional right

to an appeal”). Thus, “[i]t must be remembered that the

United States Court of Appeals is a creature of statute, and is

vested with only statutory appellate jurisdiction as an appel-

late court, and not as a court of original jurisdiction as a trial

court.” Henry v. Clarksdale Mun. Separate Sch. Dist., 409

F.2d 682, 691 (5th Cir. 1969); see also United States v. Dior,

671 F.2d 351, 354 (9th Cir. 1982) (“To prosecute its appeal

before this court, appellant must show that it has the right to

appeal and that the order appealed from comes within the

terms of a statutory grant of appellate jurisdiction”).

In that regard, Congress has provided the courts of appeals

jurisdiction to review all “final decisions of the district

courts.” 28 U.S.C. § 1291. A “final decision” is one that “ends

the litigation on the merits and leaves nothing for the court to

do but execute the judgment.” Coopers & Lybrand v. Livesay,

437 U.S. 463, 467 (1978) (internal quotations and citation

omitted). Given this statutory limit on our appellate jurisdic-

tion, “interlocutory appeals — appeals before the end of dis-

trict court proceedings — are the exception, not the rule.”

Johnson v. Jones, 515 U.S. 304, 309 (1995). The Supreme

Court has explained that this “final judgment rule promotes

efficient judicial administration while at the same time

emphasiz[es] the deference appellate courts owe to the district

judge’s decisions on the many questions of law and fact that

arise before judgment.” Richardson-Merrell Inc. v. Koller,

472 U.S. 424, 430 (1985); see also Di Bella v. United States,

369 U.S. 121, 124 (1962) (“This insistence on finality and

prohibition of piecemeal review discourage undue litigious-

ness and leaden-foot administration of justice”).

MUELLER v. ROGERS 10833

Against this doctrinal backdrop, our court has consistently

held that “[o]rders granting partial summary judgment are,

absent special circumstances, not appealable final orders

under [section] 1291 because partial summary judgment

orders do not dispose of all claims and do not end the litiga-

tion on the merits.” Williamson v. UNUM Life Ins. Co. of Am.,

160 F.3d 1247, 1250 (9th Cir. 1998), citing Serv. Employees

Int’l Union, Local 102 v. County of San Diego, 60 F.3d 1346,

1349 (9th Cir. 1995) and Cheng v. Comm’r Internal Revenue

Serv., 878 F.2d 306, 309 (9th Cir. 1989); see also Way v.

County of Ventura, 348 F.3d 808, 809-10 (9th Cir. 2003)

(holding that the court lacked appellate jurisdiction over a

partial summary judgment on liability in a qualified immunity

case).

In this case, however, the majority casts aside this binding

authority, and exercises jurisdiction over the district court’s

non-final, interlocutory decision: a partial summary judgment

to Eric on the merits of his procedural due process claims.

Although the majority presents a number of novel legal theo-

ries to justify this departure from precedent, none survives

serious scrutiny.

A.

I begin, as does the majority, with Mitchell v. Forsyth,

where the Supreme Court held that a district court’s order,

denying a claim of qualified immunity is “an appealable ‘final

decision’ within the meaning of 28 U.S.C. § 1291 notwith-

standing the absence of a final judgment.” 472 U.S. 511, 530

(1985). To reach this conclusion, the Court invoked the collat-

eral order doctrine established in Cohen v. Beneficial Indus.

Loan Corp., 337 U.S. 541 (1949). Id. at 524-25. This judi-

cially crafted convention “recognizes that a limited class of

prejudgment orders is sufficiently important and sufficiently

separate from the underlying dispute that immediate appeal

should be available.” Stringfellow v. Concerned Neighbors in

Action, 480 U.S. 370, 375 (1987). Applying this rule, the

10834 MUELLER v. ROGERS

Court in Mitchell carefully analyzed the nature of qualified

immunity claims, and concluded that a district court’s denial

of such claims, “to the extent that it turns on an issue of law,”

falls within this narrow class of prejudgment orders. 472 U.S.

at 524-30, 530.

In this case, the majority erroneously equates the district

court’s partial summary judgment with the qualified immu-

nity order in Mitchell. The majority holds that “a grant of

summary judgment to Eric Mueller as a matter of law on the

merits of a constitutional claim, and against a defendant

asserting qualified immunity, is the equivalent of a denial of

such an assertion. Such denial where the district court has

held that no cognizable factual dispute exists vests us with

jurisdiction under the collateral order doctrine.” The majority

reasons that the district court’s partial summary judgment to

Eric “impose[s] the continuing burdens of litigation on Rog-

ers, [and] effectively foreclose[s] his potential entitlement not

to stand trial on damages and left outstanding a judgment

against him that he violated Eric Mueller’s constitutional

rights.” On this basis, the majority concludes that the “sub-

stance of the entitlement not to stand trial . . . demands the

exception from the usual rule” that only final decisions are

appealable pursuant to § 1291.

The majority’s attempt to expand Mitchell’s jurisdictional

holding is squarely foreclosed by the Supreme Court’s deci-

sion in Johnson. In that case, the plaintiff charged the defen-

dants with using excessive force during arrest. 515 U.S. at

307-08. The defendants filed a motion for summary judgment

on qualified immunity grounds, arguing that there were no

facts showing the defendants had participated in the alleged

beating. Id. at 308. The district court denied the motion, hold-

ing that there was a genuine issue of material fact for trial

regarding the defendants’ roles in the arrest. Id. The defen-

dants pursued an interlocutory appeal of this decision, citing

Mitchell’s rule that orders denying qualified immunity are

immediately appealable absent a final judgment. Id.

MUELLER v. ROGERS 10835

The Supreme Court dismissed the defendants’ appeal for

lack of appellate jurisdiction. In so ruling, the Court clarified

that Mitchell was “explicitly limited . . . to appeals challeng-

ing, not a district court’s determination about what factual

issues are ‘genuine,’ but the purely legal issue [of] what law

was ‘clearly established.’ ” Johnson, 515 U.S. at 313 (internal

citation omitted). The Court held that although summary

judgment in that case also involved a question of law —

whether there was a genuine issue of material fact for trial —

that question also presented a “fact-related” legal inquiry. Id.

at 314, 316. Indeed, reviewing a summary judgment may

require a reviewing court to consult a “vast pretrial record,

with numerous conflicting affidavits, depositions, and other

discovery materials.” Id. at 316. The Court held that because

the defendants’ appeal involved this sort of “fact-based” issue

of law, Mitchell did not supply jurisdiction over the appeal.

Id. at 317-18.

Johnson’s reasoning controls here. Like the judgment from

which the defendants appealed in Johnson, the district court’s

partial summary judgment presents without a doubt the sort of

fact-based issue of law outside the scope of Mitchell’s juris-

dictional holding. Reviewing the district court’s partial sum-

mary judgment requires this court to canvass the “vast pretrial

record” and rule on the sufficiency of Eric’s evidence to

establish his claims. Johnson, 515 U.S. at 316-17. Indeed, in

reversing the district court’s partial summary judgment, the

majority reviews a number of “historical facts” purportedly

militating in favor of reversal. Thus, as with the order John-

son, the district court’s partial summary judgment does not

present the sort of purely abstract issue of law that is immedi-

ately appealable under Mitchell.

This conclusion makes sense given the jurisdictional princi-

ples underlying the Mitchell decision. As described above,

Mitchell relied on the collateral order doctrine established in

Cohen. This judicially created rule is but “a narrow exception

to the normal application of the final judgment rule.” Midland

10836 MUELLER v. ROGERS

Asphalt Corp. v. United States, 489 U.S. 794, 798 (1989). To

qualify for immediate appeal under this doctrine, an otherwise

non-final order must “involve[ ] issues significantly different

from those that underlie the plaintiff’s basic case.” Johnson,

515 U.S. at 314; see also Cohen, 337 U.S. at 546 (holding that

a non-final order is immediately appealable where it “finally

determine[s] claims of right separable from, and collateral to,

rights asserted in the action” (emphasis added)). In this case,

the district court’s partial summary judgment to Eric involves

an issue that is central to the merits of this lawsuit — whether

Detective Rogers violated Eric’s procedural due process

rights. Thus, the majority’s exercise of jurisdiction over this

ruling, by expanding the collateral order doctrine beyond its

properly narrow confines, contravenes important principles of

finality, judicial modesty, and efficient case management. See

Johnson, 515 U.S. at 311 (explaining that the separateness

requirement of the collateral order doctrine means to save

judicial resources and promote the efficient and timely dispo-

sition of cases).

The majority believes that none of the “worries” flowing

from premature review of interlocutory orders is implicated

by its exercise of jurisdiction. But by reviewing the partial

summary judgment order now, the majority realizes the risk

described by Johnson of “additional, and unnecessary, appel-

late court work either when [the interlocutory appeal] presents

appellate courts with less developed record or when it brings

them appeal that, had the trial simply proceeded, would have

turned out to be unnecessary.” 515 U.S. at 309. Indeed, in this

case, because we already conclude that Detective Rogers is

entitled to immunity from Eric’s procedural due process

claims, there is absolutely no need to rule on the merits of

those claims.

The majority suggests that we should disregard the “form”

of the final judgment rule, to vindicate the “substance” of the

qualified immunity doctrine — to protect public officials from

the burdens of litigation. But it is not at all clear in our case

MUELLER v. ROGERS 10837

that Detective Rogers would be subject to any further “bur-

dens of litigation” after we reverse the district court’s denial

of qualified immunity. We all agree that Detective Rogers

deserves immunity from suit. Therefore, although the district

court has granted partial summary judgment to Eric, that judg-

ment would no longer be enforceable.

However, if even after the protection of our opinion giving

him qualified immunity, Detective Rogers chose to pursue

further court action to expunge the district court’s liability rul-

ing, the Supreme Court has held that this potential exposure

alone is insufficient to abrogate the final judgment rule. In

Johnson, the Court acknowledged that its ruling may result in

forcing some public officials to trial. 515 U.S. at 317. Still,

the Court held that the many “countervailing considerations”

animating the final judgment rule “are too strong to permit the

extension of Mitchell to encompass appeals from orders of the

sort before us.” Id. at 317-18. The Court explicitly rejected

the notion that Mitchell justifies a relaxation of the collateral

order doctrine’s requirements in order to protect officials

against the burdens of trial. Id. at 315. We should follow that

Supreme Court precedent here. See also Ashcroft v. Iqbal, 129

S. Ct. 1937, 1946 (2009) (stating that “[a]s a general matter,

the collateral-order doctrine may have expanded beyond the

limits dictated by its internal logic and the strict application

of the criteria set out in Cohen“).

The majority also suggests there is significance in the “pos-

ture of Mitchell’s case before the Supreme Court,” implying

that the Court did in fact exercise appellate jurisdiction over

not only the denial of qualified immunity, but also the sum-

mary judgment on liability. A close reading of Mitchell dis-

proves the majority’s implication. True, the district court in

that case both denied the defendants’ summary judgment on

qualified immunity grounds, and granted the plaintiff’s sum-

mary judgment on liability. However, as made clear at the

beginning of its opinion, the Court exercised jurisdiction over

only the qualified immunity portion of the district court’s

10838 MUELLER v. ROGERS

order. Mitchell, 472 U.S. at 513 (describing the issues on

appeal as including “whether the District Court’s finding that

petitioner is not immune from suit for his actions under the

qualified immunity standard . . . is appealable; and, if so,

whether the District Court’s ruling on qualified immunity was

correct”).

The majority misunderstands the Court’s statement that it

will also address “the District Court’s decision — left stand-

ing by the Court of Appeals — that Mitchell’s actions vio-

lated clearly established law.” This language refers to the

qualified immunity issue properly subject to the Court’s inter-

locutory appellate jurisdiction; it does not (as the majority

suggests) refer to the underlying merits of the plaintiff’s

claims. Id. at 530 (proceeding to analyze whether Mitchell’s

actions “violated clearly established law”), citing Harlow v.

Fitzgerald, 457 U.S. 800, 818-19 (1982). Therefore, Mitchell

does not support the exercise of appellate jurisdiction over the

district court’s partial summary judgment.

B.

The majority also advances the theory that we have appel-

late jurisdiction over the partial summary judgment ruling

because the ruling is “inextricably intertwined” with the dis-

trict court’s denial of qualified immunity. The majority cites

Swint v. Chambers County Commission, 514 U.S. 35 (1995)

to support this proposition. Notably, however, the “inextrica-

bly intertwined” language in that case was dicta, so its prece-

dential value is questionable. Id. at 51 (stating without

elaboration that “[t]he parties do not contend that the District

Court’s decision [denying the municipal defendant’s partial

summary judgment motion] was inextricably intertwined with

that court’s decision to deny the individual defendants’ quali-

fied immunity motions”).

In any event, the majority suggests that this “inextricably

intertwined” concept was adopted by our court in Duran v.

MUELLER v. ROGERS 10839

City of Douglas, 904 F.2d 1372 (9th Cir. 1990). In Duran,

this court without citation of authority exercised jurisdiction

over a partial summary judgment on the issue of section 1983

liability, reasoning that the legal issues involved in that appeal

were “identical” to those at play in the concurrently filed, and

jurisdictionally proper, appeal from a denial of qualified

immunity. I do not believe that this exercise of jurisdiction

was proper. But notwithstanding the merits of that decision,

Duran does not support the majority’s position.

As recited in the majority opinion, in Duran, the legal

issues on appeal in the qualified immunity appeal, on the one

hand, and the underlying section 1983 liability appeal, on the

other, were identical—whether the defendant had violated

clearly established constitutional protections. 904 F.2d at

1376. In this case, however, we have chosen to forgo the first

step of the Saucier qualified immunity analysis, and proceed

with step two. Thus, the primary issue in this appeal is

whether, assuming Eric has constitutional rights to pre- and

post-deprivation notice, those rights were clearly established

at the time in question. That inquiry is entirely different from

the inquiry required to resolve an appeal from the district

court’s partial summary judgment in favor of Eric on his pro-

cedural due process claims. That appeal asks whether, view-

ing the evidence in the light most favorable to Rogers, Eric

has established a constitutional violation. Thus, it cannot be

said that the issue to be addressed in the appeal from the dis-

trict court’s partial summary judgment is “identical” to the

issue involved in the qualified immunity appeal.

Duran is further distinguishable because in that case “the

relevant facts [were] not disputed.” Id. at 1376. But here, as

the majority recognizes, there are genuine issues of material

fact with respect to whether Taige was in imminent danger.

Thus, our determinations with respect to Eric’s partial sum-

mary judgment and Rogers’ claim to qualified immunity

depend on two different sets of facts. On the partial summary

judgment, we would have to view the evidence in the light

10840 MUELLER v. ROGERS

most favorable to Rogers, the nonmoving party. On the quali-

fied immunity claim, we would view the evidence in the light

most favorable to Eric, the allegedly injured party. This shift-

ing factual landscape is precisely the situation the Supreme

Court warned of in Johnson: one where the premature exer-

cise of appellate jurisdiction over an interlocutory decision

undermines the important values of the final judgment rule.

See Johnson, 515 U.S. at 316-17. Thus, I do not believe

Duran supplies appellate jurisdiction over the partial sum-

mary judgment in this case.

The majority’s reliance on the Sixth Circuit’s decision in

Brennan v. Township of Northville, 78 F.3d 1152 (6th Cir.

1996) is similarly misplaced. In that case, the court exercised

jurisdiction over a partial summary judgment reasoning that

“our reversal of the district court’s qualified immunity deter-

mination on the ground that [the plaintiff] has not alleged a

constitutional violation is indisputably ‘coterminous with, or

subsumed in’ the second issue: whether [the plaintiff] is enti-

tled to summary judgment on the basis of a constitutional vio-

lation.” Id. at 1158. But again, here, our reversal of the district

court’s qualified immunity determination is based on the sec-

ond prong of Saucier. So it cannot be said that our qualified

immunity ruling is “coterminous with, or subsumed in” the

issue of whether Eric is entitled to partial summary judgment.

C.

For these reasons, I disagree with the majority’s decision to

exercise appellate jurisdiction over the district court’s partial

summary judgment in favor of Eric on his procedural due pro-

cess claims. I would instead refrain from hearing the appeal

at this interlocutory stage of the proceedings.

II.

I turn next to Detective Rogers’ appeal from the district

court’s denial of his qualified immunity claim. This appeal is

MUELLER v. ROGERS 10841

undoubtedly subject to immediate review under Mitchell, and

I agree that the district court should be reversed. However, I

am concerned with how the majority reaches that conclusion.

As the majority recounts, the Supreme Court in Pearson v.

Callahan, 129 S. Ct. 808, 818 (2009) held that courts now

have discretion to determine “which of the two prongs of the

qualified immunity analysis [prescribed in Saucier v. Katz,

533 U.S. 194 (2001)] should be addressed first in light of the

circumstances in the particular case at hand.” In this case, the

majority reasons, “[b]ecause we have concluded after review-

ing the factual evidence on this issue in the light most favor-

able to Rogers — or for that matter to Eric Mueller — that

there was a genuine issue of material fact as to whether Rog-

ers was confronted with imminent danger to Taige at the time

in question, we see no useful purpose in pursuing [the first

step of Saucier].” The majority’s reasoning is deficient in the

context of qualified immunity.

The first step of Saucier asks whether, viewing the evi-

dence in the light most favorable to the allegedly injured

party, the record establishes a constitutional violation. 533

U.S. at 201. Nothing about this inquiry requires this court to

resolve factual disputes in the record. In fact, the Supreme

Court has clarified that the first step of the Saucier inquiry in

no way requires courts to assume a fact-finding capacity;

rather, a court generally just adopts the version of the facts set

forth by the party challenging immunity. Scott v. Harris, 550

U.S. 372, 381 n.8 (2007) (holding that the dispositive ques-

tion in the first step of Saucier — whether those facts estab-

lish a constitutional violation — “is a pure question of law”).

Thus, contrary to the majority’s reasoning, the existence of a

factual dispute as to the “imminent danger” does not justify

skipping the first step of Saucier.

Unfortunately, the majority misapprehends this principle,

stating that “if a factfinder were to decide that Rogers was

indeed confronted with exigent circumstances, his failure to

10842 MUELLER v. ROGERS

contact Eric would not have violated Eric’s rights. On the

other hand, a factual decision to the contrary would produce

an opposite constitutional result.” Again, however, the first

step of Saucier does not require this court to resolve this fac-

tual question. Rather, all we must do is view the facts in the

light most favorable to Eric, and then decide whether those

facts establish a constitutional violation. Therefore, it is irrele-

vant what a “factfinder” may or may not find based on the

evidence presented in this case. At this stage in the dispute,

we are required only to view the evidence in the light most

favorable to the injured party — no factual findings are

required. The majority’s reference to this factual dispute as

reason to skip step one of Saucier is therefore misplaced.

In addition, Pearson does not sanction departing from the

Saucier sequence simply because there are disputed issues of

fact in a given case. The majority cites a passage from Pear-

son where the Court observes that a court may depart from the

Saucier sequence where “the constitutional question is so

fact-bound that the decision provides little guidance for future

cases.” However, this example does not involve the existence

of a factual dispute in the record.

As an initial matter, it is unclear what precisely the Court

meant to convey with this dicta — after all, every constitu-

tional ruling is necessarily “fact-bound” given that courts

decide concrete disputes, not abstract hypothetical questions.

But in Buchanan v. Maine, the case cited by the Court in

Pearson in support of this dicta, the First Circuit skipped the

first step of Saucier not because of factual disputes in the

record, but because of the “complexity of the [constitutional

issue faced], and since it is perfectly clear that the officers are

entitled to immunity.” 469 F.3d 158, 168 (1st Cir. 2006). In

fact, the court in Buchanan expressly recognized that when

performing the first step analysis, “the threshold question is

whether all the uncontested facts and any contested facts

looked at in plaintiff’s favor show a constitutional violation.”

Id. (emphasis added). Therefore, this language in Pearson

MUELLER v. ROGERS 10843

does not support the position that the existence of an issue of

fact should preclude a court from engaging in step one of Sau-

cier.

Unlike the majority, I would hold that this is a case where

the court can “rather quickly and easily decide that there was

no violation of clearly established law,” while the question at

step one of Saucier is more difficult. Pearson, 129 S. Ct. at

820. Indeed, the first step inquiry asks us to determine

whether due process requires a state official to give an absent

parent notice of his decision to assume custody of a child for

emergency medical purposes. We need not resolve this com-

plicated constitutional issue, however, because both the

majority and the dissent agree that even if such rights existed,

they were not clearly established at the time of the relevant

conduct. Thus, this case presents a prime example of a case

where skipping the first step of Saucier is advisable because

“it is plain that a constitutional right is not clearly established

but far from obvious whether in fact there is such a right.”

Pearson, 129 S. Ct. at 818.

III.

For these reasons, I concur only in the majority’s conclu-

sion that Detective Rogers is entitled to qualified immunity.

However, I respectfully dissent from the majority’s attempt to

exercise appellate jurisdiction over the district court’s partial

summary judgment in favor of Eric on his procedural due pro-

cess claims. We must remember that our jurisdiction to hear

appeals is strictly limited by statute and precedent. To hold

that a partial summary judgment on the merits is akin to a

denial of qualified immunity for the purposes of our appellate

jurisdiction is a striking and unwarranted expansion of our

limited jurisdiction.