Opposition Brief — Rippy ex rel. Rippy v. Hattaway

oo

ae Supreme Court Ua

No. 01.1506 ——o

JUN 12 2002

Ju The

Supreme Court of the Anisereseratess _|

e- .

TRAVIS RIPPY, by next friend Aaron and Janet Rippy,

AARON RIPPY, and JANET RIPPY,

Petitioners,

Vv.

GEORGE HATTAWAY, individually and in his official

capacity as Commissioner, Tennessee Department of

Children’s Services, ANNE MARIE BRYANT, individually

and in her official capacity as social counselor of the

Tennessee Department ofChildren’s Services, and

SHIRLEY BARTLETT, individually and in her official

capacity as field supervisor of the Tennessee

Departmen’ of Children’s Services,

Respondents.

¢

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

¢

RESPONDENTS’ BRIEF IN OPPOSITION

*

PAUL G. SUMMERS

Attorney General and Reporter

MICHAEL E. MOORE

Solicitor General

DOUGLAS EARL DIMOND*

Assistant Attorney General

General Civil Division

P.O. Box 20207

Nashville, TN 37202

(615) 532-7913

Counsel For Respondents

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

DID THE COURT OF APPEALS CORRECTLY GRANT

TO SOCIAL WORKERS ABSOLUTE QUASI-JUDICIAL

IMMUNITY FOR THEIR ACTIONS OR OMISSIONS IN

FORMULATING RECOMMENDATIONS TO A JUVE-

NILE COURT IN ITS DECISIONS WHETHER TO

RETURN A CHILD IN CUSTODY TO THE CHILD’S

PARENTS AND WHICH ELEMENTS SHOULD BE

INCLUDED IN A PLAN OF CARE FOR THE FAMILY?

+

TABLE OF CONTENTS

Page

QUESTION PRESENTED..........-:sssssssssssesssseennesneens i

TABLE OF CONTENTS ........:ssssssssseesessesceesseensensenens ii

TABLE OF AUTHORITIES .........s:sssssessessssseeeseseeseees iii

STATEMENT OF THE CASE........:s:esesssseeseseseeesesees 1

ARGUMENT. ......0<<0-ccsccccsccssossssoresccscsocsecsssssssscosooscees 4

ili

TABLE OF AUTHORITIES

Page

CASES

Achterhof v. Selvaggio, 886 F.2d 826 (6th Cir. 1989)......... 12

Brokaw v. Mercer County, 235 F.3d 1000 (7th Cir.

DOOD) ...ccccccceecsccrcceoscccscovessscscccccencceassnssscssecsosssnssessesssssesses 8

Buckley v. Fitzsimmons, 509 U.S. 259 (1993).........-.++++ 6, 11

Burns v. Reed, 500 U.S. 478 (1991) .......ssceeseeerresenesereeres 6

Ernst v. Child & Youth Services of Chester County,

108 F.3d 486 (3d Cir. 1997) ...........-.-ereeees 8, 11, 12, 13, 14

Gobel v. Maricopa County, 867 F.2d 1201 (9th Cir.

BOD) vi cnncesccoveceesssnscssssasennnessnnsnsansesenncgnaciecssncacooscsonsconenene 11

Gray v. Poole, 275 F.3d 1113 (D.C. Cir. 2002)..........-+-+s-0+0+ 9

Hili v. Sciarrotta, 140 F.3d 210 (2d Cir. 1998) .........-.-.++++ 10

Hill v. City of New York, 45 F.3d 653 (2d Cir. 1906) ...2<00000 7

Hodorowski v. Ray, 844 F.2d 1210 (5th Cir. 1988) ............. 8

Holloway v. Brush, 220 F.3d 767 (6th Cir.

I cccnassuctuasnennnnsennneiosansatbinasintciaaisonanieneasnens 8, 12, 13, 14

Holloway v. Ohio, 179 F.3d 431 (6th Cir. an 12

Imbler v. Pachtman, 424 U.S. 409 (1976).........-:eeeeeeeees 5,6

Kurzawa v. Mueller, 732 F.2d 1456 (6th Cir. 1984)........... 12

Maynard v. Havenstrite, 727 F.2d 439 (5th Cir.

DIBA) occceccaceserncconscsnccnsesscrssonsescnsecocennssstsssenssscsqnosonssescnnesos 10

Miller v. City of Philadelphia, 174 F.3d 368 (3d Cir.

1999) .....ecccecccccssccccccccsscssncsssoscoccssnssescasenseasconsonsseccsonssenscess 8

O01) .............ccccccrrcrcccccccccccccccessseseccscoccrecccessseees 3, 4, 10, 14

iv

TABLE OF AUTHORITIES -— Continued

Page

Snell v. Tunnell, 920 F.2d 673 (10th Cir. 1990)............. 9,11

Tripati v. INS, 784 F.2d 345 (10th Cir. 1986) .....ssseeesesee 10

Vosburg v. Department of Soc. Servs., 884 F.2d 133

(Ath Cir. 1989) ........sccscccssssereesensensensesssssssenssnsnssnsesennsens 8

Whisman v. Rinehart, 119 F.3d 1303 (8th Cir. 1997)......... g

Wilkinson v. Russell, 182 F.3d 89 (2d Cir. 1998) ...........+++. 7

STATUTES

Tenn. Code Ann. § 37-1-130(e)(1).........csseseeerrreeeeserreeeeneeees 5

Tenn. Code Ann. § 37-2-403(a&)(2)(A)......scseersrceeerreesseeneees 5

AD U.S.C. § 19838.......ccccccessccssscsseesressseseseressrssensennsensennenes 2, 5

OTHER AUTHORITIES

Fed. R. Civ. P. 12(b)(6)...........csssccssreeeseeenerereeesennseennessnsrerens 2

4 SRT

1

STATEMENT OF THE CASE

The petitioners in this case are Aaron and Janet

Rippy and their minor son, Travis Rippy. On May 23, 1995,

and without a hearing, the Juvenile Court of Robertson

County, Tennessee, issued an order placing Travis in the

custody of the Tennessee Department of Children’s Ser-

vices (DCS) pursuant to a petition for temporary custody

filed by DCS social worker Anne Marie Bryant. In the

petition, Bryant erroneously alleged that Aaron and Janet

Rippy had been indicted for sexually abusing Travis’ older

brother, Brandon. She also alleged that the Rippys’ paren-

tal rights to Brandon had been terminated and that the

Rippys had refused to give DCS an address to find Bran-

don.

On May 25, 1995, the Juvenile Court held a hearing in

the Rippys’ absence, but did not then issue another order.

Bryant and her supervisor, Shirley Bartlett, did not ensure

that Travis was represented by a guardian ad litem or that

the Rippys were aware of their right to counsel under

Tennessee law. Travis remained in the Rippys’ custody in

Kentucky, where no one from DCS observed, interviewed

or examined him, until February 9, 1996, when DCS took

him into custody. Travis bore no signs of abuse or neglect

when he entered custody on February 9, 1996.

On February 15, 1996, without further hearing, the

Juvenile Court issued an order of disposition finding

Travis dependent and neglected on the basis of the original

petition and awarding custody of Travis to DCS.

In May 1996, social workers documented the absence

of signs of sexual abuse. Kentucky's state agency for child

protection approved the Rippys’ home as safe for Travis,

2

but Bryant and Bartlett refused to return Travis to the

Rippys.

Bryant prepared plans of care pursuant to Tennessee

law that required the Rippys to attend sexual perpetrator

classes that in turn required the Rippys to admit that they

were sexual perpetrators, despite the absence of evidence

that Travis had been sexually abused or that the Rippys

had been indicted and convicted of sexual crimes. The

Rippys refused to attend the classes, and Bryant and

Bartlett refused to return Travis to the Rippys’ custody.

On August 22, 1997, the Fourth Circuit Court for

Davidson County, Tennessee, issued a writ of habeas

corpus requiring DCS to return Travis to the Rippys.

Petitioners filed a 42 U.S.C. § 1983 lawsuit in the

United States District Court for the Middle District of

Tennessee alleging due process violations and pendent

state law claims. Respondents filed a Fed. R. Civ. P.

12(b\(6) motion to dismiss the complaint, claiming abso-

lute and qualified immunity. The District Court held that

Respondents were entitled to absolute immunity for filing

the initial custody petition and for the execution of the

initial custody order but otherwise held that Respondents

were not entitled to absolute or qualified immunity for

what it characterized as administrative or investigative

acts. Respondents appealed to the United States Court of

Appeals for the Sixth Circuit.

In its opinion, filed on November 2, 2001, the Court of

Appeals found that Petitioners alleged that Respondents

omitted to take four acts. Specifically, Petitioners alleged

that Bryant and Bartlett: (1) failed to ensure appointment

of a guardian ad litem for Travis in the May 1995 hearing;

(2) failed to inform the Rippys of their right to counsel at

OP ree

3

the same hearing; (3) failed to observe, interview or

examine Travis between the May 1995 hearing and his

February 1996 entry into state custody; and (4) failed to

return Travis to the Rippys until August 1997 despite lack

of evidence of risk of harm. Rippy v. Hattaway, 270 F.3d

416, 422 (6th Cir. 2001). Petitioners do not appear to

dispute the Court of Appeals’ grant of absolute immunity

as to the first two allegations.

As to the third and fourth allegations, the Court of

Appeals observed that Petitioners implied that Respon-

dents could have effected Travis’ return if they had con-

ducted an adequate investigation at any time after the

Juvenile Court ordered Travis removed in May 1995.

However, Tennessee law vested in the Juvenile Court

alone the authority to return Travis and assigned Respon-

dents only an advisory role in the Juvenile Court’s deci-

sion. Citing cases from other circuits, the Court of Appeals

analogized Respondents’ advisory role to the advisory role

played by probation officers, who also have absolute

immunity for their sentencing recommendations to crimi-

nal courts, and granted absolute immunity to Respondents

for their adjunct advisory role to the Juvenile Court. Jd. at

422-23.

The Court of Appeals noted that Petitioners also

contended that Respondents were not entitled to absolute

immunity for devising and implementing a plan of care

that required the Rippys to admit that they were sexual

perpetrators. Again, however, under Tennessee law the

Juvenile Court was charged with approving the plan of

care, and again Respondents functioned as an arm of the

Juvenile Court when they devised and submitted elements

of the plan for the Juvenile Court’s approval. Accordingly,

the Court of Appeals found that Respondents were entitled

4

to absolute immunity for their quasi-judicial role in

devising the plan of care, including their inclusion in the

plan submitted to the Juvenile Court of a requirement

that the Rippys attend a class for sexual perpetrators. Id.

at 423.

Petitioners filed a petition for rehearing en banc on

November 16, 2001, which the Court of Appeals denied in

an order filed on January 8, 2002.

4

v

ARGUMENT

The opinion below stands for the unremarkable

proposition that social workers who function as integral

parts of the judicial process are entitled to absolute immu-

nity for such functions, regardless of how those functions

are labeled. Petitioners alleged in their complaint only

that Respondents’ omitted to take actions that Tennessee

law ultimately entrusts to Tennessee’s juvenile courts, not

to social workers such as Respondents. Contrary to Peti-

tioners’ assertions, the opinion is consistent with the

general rule in the Sixth Circuit and other circuits that

social workers and other officials enjoy absolute immunity

for actions intimately related to the judicial process, but

only qualified immunity for other administrative or

investigative actions.

‘ Because the Petitioners dispute only the absolute immunity

granted to respondent social workers Anne Marie Bryant and Shirley

Bartlett, and not the qualified immunity granted to respondent

Commissioner Hattaway, the term “Respondents” will refer only to the

social workers.

5

The Court’s decision in the instant case is simply an

application of the generally accepted principles of absolute

immunity. The alleged omissions by Respondents were

functions intimately related to the Juvenile Court, namely,

formulating recommendations to the Juvenile Court to

inform its decisions as to whether to return Travis to the

Rippys and recommending elements to be included in the

plan of care. As the Court of Appeals noted, Tennessee law

entrusts to the Juvenile Court, not to DCS workers, the

decision whether to return a child in custody to his par-

ents. Tenn. Code Ann. § 37-1-130(e)(1) (providing that

before DCS may return a child home, it must notify the

Juvenile Court that it intends to do so, and that the

Juvenile Court may set a hearing on the matter). Tennes-

see law also entrusts to the Juvenile Court the final

review and approval of plans of care for custodial children

and any requirements contained therein. Tenn. Code Ann.

§ 37-2-403(a)(2)(A) (providing that DCS should prepare for

Juvenile Court review and approval a reunification plan of

care that includes parental responsibilities). Social work-

ers make recommendations to the Juvenile Court regard-

ing both the return of the child and requirements of the

plan of care. Tenn. Code Ann. §§ 37-1-130(e)(1) and 37-2-

403(a)(2)(A). As the Court of Appeals correctly found, those

recommendations are intimately related to Tennessee’s

judicial process, entitling social workers who make those

recommendations to absolute immunity for their actions or

omissions.

Contrary to Petitioners’ assertions, the Court of

Appeals’ decision in this case is consistent with the pre-

vailing view of absolute prosecutorial or quasi-judicial

immunity in cases against state officials under 42 U.S.C.

§ 1988, and with its own prior decisions. In Jmbler v.

6

Pachtman, 424 U.S. 409, 424-31 (1976), this Court ex-

tended absolute quasi-judicial immunity to a prosecutor

based on a functional analysis of whether the prosecutor’s

activities were “intimately associated with the judicial

phase of the criminal process.” Jd. at 430. In Burns v.

Reed, 500 U.S. 478, 492-96 (1991), this Court declined to

extend absolute immunity to a prosecutor for giving legal

advice to police because giving legal advice is not associ-

ated closely enough to the judicial process. The Court

noted that a key factor supporting the grant of absolute

immunity — the check on abuse provided by the judicial

process and court oversight — is absent when a prosecutor

gives pretrial advice to police, particularly when a suspect

is not later prosecuted. Id. at 496. In Buckley uv.

Fitzsimmons, the Court clarified its holding in Burns,

writing:

A prosecuter’s administrative duties and those

investigatory functions that do not relate to

an advocate’s preparation for the initiation

of a prosecution or for judicial proceedings

are not entitled to absolute immunity....

We have not retreated, however, from the princi-

ple that acts undertaken by a prosecutor in pre-

paring for the initiation of judicial proceedings or

for trial, and which occur in the course of his role

as an advocate for the State, are entitled to the

protections of absolute immunity. Those acts

must include the professional evaluation of evi-

dence assembled by the police and appropriate

preparation for its presentation at trial or before

a grand jury after a decision to seek indictment

has been made.

509 U.S. 259, 273 (1993) (emphasis added). The emphasized

language clarifies that labeling a function as “investigatory”

7

does not automatically mean that it is entitled to only

qualified immunity. Those “investigatory functions” that

relate to judicial proceedings are entitled to absolute

immunity regardless of the label.

Following this Court’s lead, the circuits have adopted

a functional approach to determine the level of immunity

accorded social workers. Social workers are entitled to

absolute immunity when they perform functions related to

the judicial process, but -only qualified immunity when

they perform administrative or investigative functions

that are not related to the judicial process. The cases cited

by Petitioners do not stand for the overly simplistic posi-

tion that “absolute immunity is not available to social

workers except when they are serving as advocates in a

court proceeding or when drafting a petition to remove a

child from his or her parents’ custody.” (Petition at 5.)

Rather, the Courts of Apreals have engaged in a more

nuanced and fact-driven inquiry into the relationship of a

worker’s actions to the judicial process. None of the deci-

sions cited by Petitioners denied absolute immunity to

social workers for functions of devising and presenting

recommendations for court review in decisions ultimately

entrusted to the court. See, e.g., Wilkinson v. Russell, 182

F.3d 89, 98 (2d Cir. 1998) (denying absolute immunity to a

Vermont social worker for communicating with a Con-

necticut social worker whom a Connecticut court had

ordered to ask the Vermont agency “what's going on,”

because the Vermont social worker was not under the

order or engaged in communication with the Connecticut

court); Hill v. City of New York, 45 F.3d 653, 660-62 (2d

Cir. 1995) (denying absolute immunity for acts performed

before the initiation of a criminal child abuse proceeding,

including removal of a child and direction to police to

AS ERSTE ART OCTETS, UB TD ANGE ESS yao

ee

8

arrest a parent, but granting absolute immunity for acts

performed subsequently, including malicious prosecution,

conspiring to present false evidence, and suppressing

Brady material); Miller v. City of Philadelphia, 174 F.3d

368, 376 n.6 (3d Cir. 1999) (denying absolute immunity to

a social worker for investigative actions and communica-

tions to an agency attorney prior to the judicial phase, at

which point the attorney, not the social worker, communi-

cated evidence to the court; but recognizing, citing Ernst v.

Child & Youth Services of Chester County, 108 F.3d 486,

494 (8d Cir. 1997), that social workers enjoy absolute

immunity for formulating and presenting recommenda-

tions to the court in the course of proceedings); Vosburg uv.

Department of Soc. Servs., 884 F.2d 133, 137-38 (4th Cir.

1989) (granting absolute immunity to social workers for

filing a removal petition, because the petition is “in es-

sence, the start of judicial proceedings ... and the duties

of a social worker at that point are those of an advocate in

that process,” but indicating in dicta that actions prior to

the initiation of judicial proceedings are entitled to only

qualified immunity); Hodorowski v. Ray, 844 F.2d 1210,

1215-16 (5th Cir. 1988) (denying absolute immunity for

social workers who unilaterally removed a child when they

“never obtained a court order authorizing the removal” Jd.

at 1212); Holloway v. Brush, 220 F.3d 767, 774-77 (6th Cir. |

2000) (denying absolute immunity to a social worker who

falsely told a previously unlocated and absent mother that

her parental rights had been terminated and withheld from

the court knowledge of the mother’s appearance); Brokaw v.

Mercer County, 235 F.3d 1000, 1014 n.10 (7th Cir. 2000)

(writing in dicta that a social worker was not entitled to

absolute immunity for gathering evidence and initiating

removal when the social worker, acting with grandparents

and the grandparents’ relative and friends on a police force,

I eR RE

9

removed children without a court order); Whisman uv.

Rinehart, 119 F.3d 1303, 1308-09 (8th Cir. 1997) (denying

social workers absolute immunity when they took custody

of a child absent a court order and subsequently avoided or

delayed filing court proceedings); Snell v. Tunnell, 920 F.2d

673, 686-96 (10th Cir. 1990) (denying absolute immunity

to a social worker for filing an application for a pre-

adjudicatory order that was functionally similar to an

arrest warrant sought by a police officer, particularly

when agency policy required the social worker to report

findings of abuse or neglect to other authorities whose

responsibility it was to undertake further investigation or

advocacy in the form of initiation of court proceedings);

Gray v. Poole, 275 F.3d 1113, 1116-19 (D.C. Cir. 2002)

(denying absolute immunity for social worker’s actions as

investigator and adviser to city attorney as analogous to

the role a police officer plays in assembling evidence for a

prosecutor, but granting absolute immunity for social

worker’s actions in making and signing a statement in the

removal petition because she then acted as a witness in a

judicial proceeding).

Three key factors seem to guide the decisions just

cited: whether @ social worker’s actions occurred before or

after the initiation of judicial proceedings, whether a social

worker’s relationship with the court was direct or through

an intermediary, and whether a social worker’s actions

prevented or delayed a parent’s access to the judicial

system. Social workers were denied absolute immunity

when their actions occurred before the initiation of judicial!

proceedings, when their responsibilities, actions or com-

munications vis-a-vis the court were indirect, and when

they delayed or prevented court proceedings. Conversely,

as is true in this case, social workers were accorded

absolute immunity when their actions occurred after the

10

initiation of judicial proceedings, in connection with duties

directly owed the court, and without any allegation that

the workers deliberately denied or delayed judicial pro-

ceedings.

Moreover, the Court of Appeals decision does not, as

Petitioners claim, “put[] it nearly alone among the circuit

courts on the issue as to whether social workers enjoy

absolute immunity for their investigatory and administra-

tive actions.” (Petition at 4.) First, the Court of Appeals did

not extend blanket immunity to social workers for admin-

istrative and investigative actions, but only for such

actions as might be characterized as intimately related to

the judicial process, namely, only those specific actions

that Petitioners complained about. Rippy, 270 F.3d at 422-

23 (holding that the function of making recommendations

to the Juvenile Court as to whether it should return a

child home, including the underlying investigation, is

intimately related to the judicial process, and that the

function of acting as an arm of the court in devising a plan

of care for the court’s review and approval were both

entitled to absolute immunity).

Second, the Court of Appeals was consistent with

other circuits in granting absolute immunity to social

workers for investigative actions that social workers took

as part of their statutory duty to formulate and make

recommendations to Juvenile Court as to the return home

of children, analogizing such investigative actions to those

taken by probation officers when they prepare presentenc-

ing reports to criminal courts. 270 F.3d at 422-23 (citing

Hili v. Sciarotta, 140 F.3d 210, 213 (2d Cir. 1998); Tripati

v. INS, 784 F.2d 345, 348 (10th Cir. 1986); Maynard

v. Havenstrite, 727 F.2d 439, 441 (5th Cir. 1984)). When

the issue has been addressed, the circuits have in fact

11

recognized, as has this Court, that some “investigatory

functions” might “relate to an advocate’s preparation for

... judicial proceedings,” Buckley, 509 U.S. at 273, and

that child welfare officials are absolutely immune from

suit in performing those functions. Thus, the Tenth Circuit

accorded absolute immunity to an attorney for a state

child welfare agency for her investigation incident to filing

an application for a removal order. Snell v. Tunnell, 920

F.2d 673, 692-94 (10th Cir. 1990). The court cautioned that

“the rule concerning absolute immunity for prosecutorial

functions and not for investigative or administrative

functions is easier to state than apply.” Jd. at 693. The

court held that “actions undertaken as part of the prepara-

tion of a prosecutor’s [child welfare] case are absolutely

immune, even if such actions could be characterized as

‘investigative’ or ‘administrative.” Id. (citing Gobel v.

Maricopa County, 867 F.2d 1201, 1204 (9th Cir. 1989)).

The court denied absolute immunity to social workers who

investigated the case before judicial proceedings were

initiated and who gave an attorney false information to

put before the court. Snell, 920 F.2d at 691-92. Still, the

court recognized that social workers in other cases could

be absolutely immune for actions in preparing reports to a

court analogous to probation officers’ presentencing

reports. Id. at 692 n.18. Similarly, the Third Circuit

accorded absolute immunity to social workers “preparing

for, initiating and prosecuting dependency proceedings,”

adding that their “immunity is broad enough to include

the formulation and presentation of recommendations to

the court in the course of such proceedings.” Ernst v. Child

& Youth Servs. of Chester County, 108 F.3d 486, 495 (3d

Cir. 1997). In so holding, the court wrote, “we join the

courts of appeals of the Fourth, Sixth, Seventh, Eighth,

and Ninth Circuits.” Id.

12

As the Ernst court noted, the Sixth Circuit, like the

other cited circuits, has adopted a functional approach to

deciding whether officials’ actions are entitled to absolute

immunity. Achterhof v. Selvaggio, 886 F.2d 826, 829-31(6th

Cir. 1989); Kurzawa v. Mueller, 732 F.2d 1456, 1458 (6th

Cir. 1984). In Kurzawa, the court held that when social

workers perform a prosecutorial function, in that case the

prosecution of child neglect and dependency petitions,

social workers are entitled to absolute immunity. 732 F.2d

at 1458. In Achterhof, the court declined to extend abso-

lute immunity to social workers for an investigative or

administrative function unrelated to the judicial process,

in that case the decision to open an investigation into a

child abuse case, and limited social workers to qualified

immunity for such a function. 886 F.2d at 829-31.

Kurzawa and Achterhof established that when social

workers function as “integral parts of the judicial process,”

Kurzawa, 732 F.2d at 1458, they are entitled to absolute

quasi-prosecutorial immunity, but did not elaborate the

range of immunized functions beyond the filing of court

- petitions.

The Sixth Circuit explored the issue of absolute

immunity further in Holloway v. Brush, 220 F.3d 767 (6th

Cir. 2000) (“Holloway ITI”), in which, sitting en banc, the

court reversed its earlier decision in Holloway v. Ohio, 179

F.3d 431 (6th Cir. 1999) (“Holloway I”). In the Holloway

cases, a social worker falsely informed a mother whose

husband had absconded with her children that her paren-

tal rights had been terminated, when in fact the termina-

tion proceeding was still pending. Holloway IJ, 220 F.3d

at 771. Further, the social worker later withheld from

the trial court knowledge of the “long-sought appearance

of the children’s mother.” Id. In Holloway I, the court

13

analogized the social workers’ actions to those of a prose-

cutor controlling a witness’ testimony and granted the

social worker absolute immunity. However, in Holloway II,

the court reversed itself, noting that the mother was not

the social worker’s witness, but a party, and that the social

worker had not withheld evidence, but administrative

facts about the case and its posture from both the mother

and the trial court. 220 F.3d at 776. The court wrote that

the social worker’s out-of-court actions were not those of

an advocate and were inconsistent with her statutory role.

Id. at 777. Nor were they “analogous to recommendations

made by caseworkers to the court, or the ‘formulation of

professional judgments that served as the basis for’ such

recommendations.” Jd. (quoting Ernst, 108 F.3d 486, 498).

Rather than recommendations to the court, the social

workers’ actions were usurpations of the court’s authority.

Holloway II, 220 F.3d at 777.

Petitioners’ reliance on Holloway II is misplaced.

Holloway ITI did not hold, as Petitioners contend, that “the

preparation of a child’s ‘case plan’ is not protected by

absolute immunity,” (Petition at 8), but instead that a

social worker’s failure to follow her extra-judicial role in

Ohio’s statutory scheme regarding case plans was not

entitled to absolute immunity. The court observed that

Ohio statutes charged the Ohio child welfare agency to

prepare and maintain a case plan, and, in doing so, to

attempt to obtain agreement among the parties, including

the parent. 220 F.3d at 775. The court held that instead of

following the statutes’ mandate to obtain an agreement

with the parent, the social worker described herself to the

parent as an “adversary” and refused to obtain the par-

ent’s participation in the proceedings and agreement to

the plan. Jd. at 775-76. The court recognized that if the

14

social worker had followed the statute, it was possible that

her position could later have been adversarial to the

parent, but added that even then the advocate for the Ohio

agency would have been county prosecutors, not the social

worker. Jd. at 776. More importantly, and foreshadowing

its decision in this case, the court distinguished the social

workers’ actions from “recommendations made by case-

workers to the court” or “the ‘formulation of professional

judgment that served as the basis for’ such recommenda-

tions, which the Third Circuit has held are entitled to

immunity.” Id. at 777 (quoting Ernst, supra). Finally, it

should be noted that even the dissenting judge in the

present case, who authored Holloway IJ, found no analyti-

cal inconsistency between Rippy and Holloway II, but

instead based his dissent only upon his view that the

complaint could be read to allege that Respondents had

purposefully or maliciously interfered with or prevented a

hearing, 270 F.3d at 425 (Boggs, J., dissenting), a view

that the lead opinion rejected because Petitioners failed to

make such allegations. Jd. at 423 n.2.

Despite Petitioners’ attempts to manufacture dishar-

mony, the Court of Appeals’ decision in this case falls

squarely within the circuits’ absolute immunity jurispru-

dence regarding social workers and is a logical extension

of the Sixth Circuit’s rulings that typify the other circuits’

jurisprudence. The court extended absolute immunity for

social workers for actions intimately related to Tennessee’s

judicial process, namely, those that took place after the

initiation of judicial proceedings and in connection with

their statutorily-mandated duties to formulate and pro-

vide recommendations to the Juvenile Court. The social

workers functioned as arms of or advisers to the Juvenile

Court, absolutely immune from lawsuit. In sum, the

15

decision below does not present any important issue of

federal law as to which the lower courts are in conflict

and, accordingly, does not warrant further review by this

Court.

4

v

CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted,

PAUL G. SUMMERS

Attorney General and Reporter

MICHAEL E. MOORE

Solicitor General

DOUGLAS EARL DIMOND*

Assistant Attorney General

General Civil Division

P.O. Box 20207

Nashville, TN 37202

(615) 5382-7913

Counsel For Respondents

* Counsel of Record