Carla Doe v. DC , 796 F.3d 96 ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 14, 2014 Decided August 11, 2015
No. 13-7140
CARLA DOE, ET AL.,
APPELLANTS
v.
DISTRICT OF COLUMBIA, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:05-cv-01060)
Mick G. Harrison argued the cause and filed the briefs for
appellants. John M. Clifford entered an appearance.
Stacy L. Anderson, Senior Assistant Attorney General,
Office of the Attorney General for the District of Columbia,
argued the cause for appellees. With her on the brief were Irvin
B. Nathan, Attorney General, Todd S. Kim, Solicitor General,
and Loren L. AliKhan, Deputy Solicitor General.
Before: GARLAND, Chief Judge, WILKINS, Circuit Judge,
and RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
RANDOLPH.
Concurring opinion filed by Circuit Judge WILKINS.
2
RANDOLPH, Senior Circuit Judge: The District of
Columbia’s Child and Family Services Agency temporarily
removed two adopted children from their home. These two
children and another child living there had endured sexual abuse
for years. The children resided with their parents, Robert and
Carla Doe. After the government acted, the Does brought a
multi-count complaint seeking damages from the District of
Columbia, the Family Services Agency, and District employees.
The district judge, Hogan, J., ruled against them on all claims.
The Does appeal.
For the reasons that follow, we vacate the dismissal of the
Does’ Fourth and Fifth Amendment claims against the District.
We remand those claims to the district court to determine
whether there is municipal liability under Monell v. Department
of Social Services of the City of New York, 436 U.S. 658 (1978).
We affirm the district court on the remaining claims.
I.
The evidence developed in discovery tended to show the
following. Robert and Carla Doe are the adoptive parents of
Oliver and Ann and the biological parents of Emma.1 Oliver
(born 1995) and Ann (born 1997) became part of the family
when they were infants. In 2000, twins Wayne and Sara joined
the family. At the time, Emma was 10, the twins were 9, Oliver
was 5, Ann 3. The Does finalized their adoption of the twins in
2001.
Before the twins came to the Does, Mrs. Doe knew that
Wayne and Sara had not lived “in a stable home, were hungry
1
The names of the parents and the children are pseudonyms.
Much of the record, but not the parties’ briefs and the district court’s
opinion, is sealed.
3
and homeless for some time, did not receive appropriate medical
care, had a drug-abusing mother, had been in weekly therapy for
years, and were put by their mother in inappropriate situations,
unsafe and unhealthy environments for children, including drug
environments.” Doe v. District of Columbia, 958 F. Supp. 2d
178, 183 (D.D.C. 2013) (internal quotation marks and citation
omitted). When the twins arrived, the Does began receiving
monthly adoption stipends, funds for therapy from the Crime
Victims’ Compensation Fund, therapy services from a court
clinic, and funds for a therapeutic summer camp for Wayne. See
id. at 198.
The twins began sexually abusing Ann and Oliver shortly
after they moved into the Doe household. See id. at 183. Four
years later, in 2004, Carla and Robert Doe learned of the abuse.
See id. On September 27th of that year, the Does wrote to
Family Services Agency employees (Acting Director Brenda
Donald Walker and Adoption Services Program Manager
Sharon Knight) notifying them that the twins had been abusing
Ann and Oliver “for years.” The Does sought “emergency
support to try and prevent the disruption of the adoption of two
of [their] children” and requested “funding or other resources,”
because “[w]e have no funds of our own to even attempt to
undertake what is necessary to determine if our family can be
preserved.” The Does reiterated that they had “fallen behind
financially” and stated: “We are no longer able to continue
parenting now four children with such significant needs.” The
Does’ letter also stated that Wayne had moved to an “out-of-
home, therapeutic respite home” with provider Deborah Bobbitt
and that Sara remained at the Doe home. See Doe, 958 F. Supp.
2d at 183. On October 1, 2004, Robert met with defendant
Sandra Jackson, the Administrator of Permanency and Family
Resources Administration, several other Agency employees, and
two therapists who had provided therapy to the Doe family. See
id. Robert explained that Sara and Wayne “couldn’t safely
4
reside in our home” and that he “had to have some other
temporary place for them to reside while they were getting
treatment.”
Four days later, on October 5, the Agency received a
follow-up letter from Robert. See Doe, 958 F. Supp. 2d at 183.
In it, he reemphasized that if the Agency could not provide
further financial assistance to support Wayne’s out-of-home
care, “immediate plans will need to be made to transition him
into a new residential placement.” By then, Sara had moved to
Carla Doe’s mother’s home. See Doe, 958 F. Supp. 2d at 183.
Carla Doe’s mother, Robert wrote, would not be able to keep
Sara “much longer” and “[a]s soon as possible this week, [Sara]
needs to be transitioned into a residential placement.”
On October 7, Agency officials, including Jackson and
Agency General Counsel Terri Thompson Mallet, had a
telephone conversation with Robert to discuss placement options
for the twins. Doe, 958 F. Supp. 2d at 183-84. The officials
said the Agency would cover the cost of therapeutic foster care
but would not provide transportation or pay for Wayne’s therapy
with Bobbitt, since she was not an approved provider. Id. at
184.
On the same day, October 7, the Agency began an
investigation. The investigator, Delores Williams, looked into
the “sexual abuse allegations as it relate[d] to sibling on sibling,
whether the adoptive parents failed to provide adequate
supervision and if there was failure to protect by the adoptive
parents.” Williams spoke with Robert and Carla Doe and Ann
and Oliver at their home on the evening of October 7. In a
“safety decision” dated the same day, Williams reported that
while “[o]ne or more signs of present danger were identified,”
the children were not “in immediate danger of serious harm,” in
light of “the existence of protective capacities [that] offset the
5
threat of serious harm for the children.” She noted that Wayne
had been placed in a therapeutic home in Virginia and that the
Does had sent Sara to the grandmother’s house. Williams also
explained that, as part of Does’ “safety plan,” a portable
monitoring system had been attached to the bedroom doors of
the children who remained at home and that adult supervision
had increased.
A day later, on October 8, Williams participated in an
interview with Ann and Oliver at a child advocacy center. See
Doe, 958 F. Supp. 2d at 184. During the interview, Ann and
Oliver said they were both abused by Wayne and Sara, and, for
the first time, Williams learned that Oliver participated in
victimizing Ann. Id. At the time, Oliver was living in the Doe
home with Ann.
On October 14, the Does sent another letter to the Agency.
They raised several concerns about the Agency’s offer to have
them agree to place the twins temporarily in therapeutic foster
care but not pay for Wayne’s continued therapy with Bobbitt or
the twins’ transportation to and from therapy. See id. The Does
criticized the Agency for not investigating the extent of the
abuse the twins had endured with their birth mother and for
placing them with an abusive foster family before they were
placed with the Does. The Does also objected to keeping the
twins together during a temporary placement. The Does
proposed that the Agency pay for Sara to attend a private school
in Virginia and for her therapy; pay for Wayne’s therapy with
Bobbitt; pay for both twins’ transportation; and pay for family
therapy. See id.
On October 19, after an internal meeting, the Agency called
Robert and “informed him that they had safety concerns
regarding Ann, Oliver, Sara, and Wayne and that he needed to
cooperate in placing the children into voluntary care pending
6
further investigation.” See id. In a follow-up call to Agency
General Counsel Mallet, the Does’ attorney proposed alternative
plans for Ann and Oliver and a voluntary placement
arrangement for the twins, and he told the Agency it needed a
court order to remove the children. See id.
On October 20, 2004, Agency officials, specifically Agency
Director Brenda Donald Walker, concluded that Ann and Oliver
were in immediate danger and needed to be removed from the
Doe home. See id.; id. at 188 n.7. The same day, the Does’
attorney negotiated with the Agency about the placement of
Oliver and Ann with the Agency. See id. at 184. The Does
agreed that Agency social workers, not the police, would
remove Ann and Oliver from the Doe home to temporary
placements elsewhere. See id. at 185.2 That evening – a school
night – defendants Daphne King and Rebekah Philippart, both
of whom were social workers, were assigned to pick up Ann and
Oliver and notify the Does of a court hearing the next day;
neither King nor Philippart had previously been involved in the
case. See id. King and Philippart went to the Does’ residence
and, over the objections of Robert and Carla, removed Ann and
Oliver. See id. They also provided the Does a notice of a
hearing in District of Columbia Superior Family Court
scheduled for October 21 to respond to unspecified child neglect
allegations. See id. The notice stated that the children were
2
The Does’ amended complaint alleged that on October 19 and
20 they negotiated with the Agency but “negotiation broke down when
[the Agency] insisted that Oliver be placed in an undisclosed foster
home overnight”; that the Does’ attorney advised the Agency that it
would need “a court order to immediately remove any of” the
children; and that “[u]nder duress and the threat of arrest, and after
speaking with the children’s therapists, Robert and Carla Doe
reluctantly agreed to allow [the Agency] to remove Ann and Oliver on
October 20, 2004 at 9 p.m.” J.A. 59 ¶¶ 89-91.
7
seized pursuant to D.C. Code § 4-1301.07, which provides that
if, in cases of alleged child neglect, “in the opinion of the
Agency the available services or resources are insufficient to
protect the child and there is insufficient time to petition for
removal, the Agency shall request the police to remove the
child.” D.C. CODE § 4-1301.07.
Ann and Oliver were taken to a hospital for physical
examinations, after which Ann was taken to the grandmother’s
home, and Oliver was taken to a temporary foster home. See
Doe, 958 F. Supp. 2d at 185. Wayne remained at his placement
in Virginia.3
The next day, on October 21, 2004, the District “no
papered” the neglect charges against Robert and Carla Doe,
declining to file a petition against them, and the hearing was
canceled. Id. Oliver returned home later that day; Ann was not
required to stay in her foster placement, and the Does agreed to
a voluntary placement with the Agency for Sara. Id. at 185 &
n.4. On October 22, 2004, the District issued an affidavit and
request for custody order for Sara and Wayne and charged them
with second degree child sex abuse against their younger
siblings. See J.A. 146. They were later taken into custody and
placed on probation and in therapeutic foster homes. See Doe,
958 F. Supp. 2d at 185-86. From roughly November 2005 to
April 2007, the twins were under the care of the Department of
Youth Rehabilitation Services. Id. at 186. In May 2007, the
District closed its cases against the twins, and the Does
relinquished parental rights to Wayne and Sara. Id.
3
As noted, Sara had been staying at Carla’s mother’s home. She
was transported by District officials to a temporary foster home as
well, Doe, 958 F. Supp. 2d at 185, although she is not part of this suit,
and we do not examine any claims regarding her.
8
In December 2007, Carla and Robert Doe and the children
other than the twins filed a twenty-four-count amended
complaint against the District of Columbia, the mayor and
Agency employees Brenda Donald Walker, Sarah Maxwell,
Sandra Jackson, Heather Stowe, Terri Thompson Mallet,
Rebekah Philippart, and Daphne King. The Does alleged
violations of District of Columbia law and the U.S. Constitution.
After proceedings unnecessary to recount, the district court
granted the District’s motion for judgment on the pleadings and
summary judgment, denied the Does’ motion for summary
judgment, and denied as moot the District’s motion to strike
portions of the record. Doe, 958 F. Supp. 2d at 206.
On appeal, the Does claim that the district court erred when
it dismissed their Fourth Amendment, Fifth Amendment, and
First Amendment claims, erred when it granted qualified
immunity to the individual defendants, erred when it dismissed
the Does’ tort claims, and erred when it dismissed their claims
for post-adoption services under LaShawn A. v. Kelly, 887 F.
Supp. 297 (D.D.C. 1995), aff’d sub nom., La Shawn A. v. Barry,
107 F.3d 923 (D.C. Cir. 1996) (per curiam) (unpublished).
II.
1. Fourth Amendment and Fifth Amendment Claims
According to the Does, the District, and its officials,
violated their Fourth Amendment and Fifth Amendment rights
when they removed Ann and Oliver from the Does’ home
without court authorization. The Doe children were taken from
their home by Agency employees. This was a seizure within the
meaning of the Fourth Amendment. See, e.g., Tenenbaum v.
Williams, 193 F.3d 581, 593-94 (2d Cir. 1999). Under the
Fourth Amendment a warrant or a pre-removal hearing is not
required when the government acts in response to an
9
“exigency.” See Doe v. Kearney, 329 F.3d 1286, 1293-95 &
1294 n.10 (11th Cir. 2003); Brokaw v. Mercer Cnty., 235 F.3d
1000, 1010-11 (7th Cir. 2000). Under the Fifth Amendment,
before parents may be deprived of the custody “of their children
without their consent, due process – ordinarily a court
proceeding resulting in an order permitting removal – must be
accorded to them.” Tenenbaum, 193 F.3d at 593; see also
Stanley v. Illinois, 405 U.S. 645, 649-51 (1972). However,
“‘extraordinary situations where some valid governmental
interest is at stake,’” such as the health and welfare of children,
may justify “‘postponing the hearing until after the event.’”
Smith v. Org. of Foster Families for Equal. & Reform, 431 U.S.
816, 848 (1977) (quoting Bd. of Regents of State Colleges v.
Roth, 408 U.S. 564, 570 n.7 (1972)); see Hollingsworth v. Hill,
110 F.3d 733, 739 (10th Cir. 1997) (the state has a valid
“interest in the health and welfare of its children”).
The district court held that neither the individual defendants
nor the District violated the Does’ Fourth or Fifth Amendment
rights because there were “exigent” circumstances that justified
the warrantless seizure of the children without a pre-deprivation
hearing. See Doe, 958 F. Supp. 2d at 188-93.
The parties agree that exigent circumstances excuse a
seizure of endangered children without a warrant or a pre-
removal hearing. Decisions of several circuits have used various
formulations to determine whether exigent circumstances
existed to justify such a seizure.
In some circuits, reasonable suspicion of past abuse can
justify warrantless seizure of a child. This is a very low
standard, and could allow for the removal of a child without
court order based on a single suspected incident. See Hatch v.
Dep’t for Children, Youth and Their Families, 274 F.3d 12, 21
(1st Cir. 2001); see also Berman v. Young, 291 F.3d 976, 983-84
10
(7th Cir. 2002); Croft v. Westmoreland Cnty. Children & Youth
Servs., 103 F.3d 1123, 1126 (3d Cir. 1997); White by White v.
Chambliss, 112 F.3d 731, 736 (4th Cir. 1997); Manzano v. S.D.
Dep’t of Social Servs., 60 F.3d 505, 511 (8th Cir. 1995). In
other circuits, there must be reasonable suspicion of imminent
abuse. These courts consider several factors, including whether
abuse was ongoing and whether there was time to obtain a
warrant. See Kovacic v. Cuyahoga Cnty. Dep’t of Children &
Family Servs., 724 F.3d 687, 695 (6th Cir. 2013); Gates v. Tx.
Dep’t of Protective & Regulatory Servs., 537 F.3d 404, 429 (5th
Cir. 2008); Arredondo v. Locklear, 462 F.3d 1292, 1298 (10th
Cir. 2006) (citing Gomes v. Wood, 451 F.3d 1122, 1129 (10th
Cir. 2006)); Roska ex rel. Roska v. Peterson, 328 F.3d 1230,
1240 (10th Cir. 2003); Wallis v. Spencer, 202 F.3d 1126, 1138
(9th Cir. 1999). In the Eleventh Circuit, the “reasonable
suspicion” standard gives way to the higher “probable cause”
standard, with consideration of many of the same factors. Doe
v. Kearney, 329 F.3d at 1295. And in the Second Circuit, “it is
unconstitutional for state officials to effect a child’s removal on
an ‘emergency’ basis where there is reasonable time safely to
obtain judicial authorization consistent with the child’s safety.”
Tenenbaum, 193 F.3d at 596.
We have not enunciated our own formulation and do not do
so here because we do not reach the question whether exigent
circumstances existed in this case.
A. Individual Defendants
We address first the claims against the individual
defendants. The district court held that the individual
defendants were entitled to qualified immunity. “Qualified
immunity shields government officials from civil damages
liability unless the official violated a statutory or constitutional
11
right that was clearly established at the time of the challenged
conduct.” Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012).
“To overcome a claim of qualified immunity, plaintiffs
must show both [1] that an official ‘violated a constitutional
right’ and [2] that ‘the right was clearly established’ at the time
of the violation.” Johnson v. Gov’t of the District of Columbia,
734 F.3d 1194, 1201-02 (D.C. Cir. 2013) (quoting Saucier v.
Katz, 533 U.S. 194, 200-01 (2001)). We may address either
prong of the qualified immunity analysis first. See Pearson v.
Callahan, 555 U.S. 223, 236 (2009).
“Ordinarily, in order for the law to be clearly established,
there must be a Supreme Court or [ ]Circuit decision on point,
or the clearly established weight of authority from other courts
must have found the law to be as the plaintiff maintains.”
Currier v. Doran, 242 F.3d 905, 923 (10th Cir. 2001) (internal
quotation marks and citation omitted); see also Reichle, 132 S.
Ct. at 2093. “To be clearly established, the precedent must give
officials clear warning of unconstitutional conduct.” Merricks
v. Adkisson, 785 F.3d 553, 559 (11th Cir. 2015).
The parties do not dispute that in an exigency the state may,
consistent with the Constitution, seize children without a court
order or a pre-deprivation hearing. But the precise contours of
when an exigency exists to justify removal without a warrant or
pre-deprivation hearing are not settled, as the other Circuits’
varied formulations demonstrate. Given the uncertainty
regarding when exactly an exigency exists and the lack of our
own controlling precedent, the law in question was not “clearly
established” at the time of the seizure. The individual
defendants are thus entitled to qualified immunity as the district
court held. See Pearson, 555 U.S. at 244-45; Johnson, 734 F.3d
at 1201-02.
12
B. Municipal Liability
“A municipality or other local government may be liable
under [42 U.S.C. § 1983] if the governmental body itself
‘subjects’ a person to a deprivation of rights or ‘causes’ a person
‘to be subjected’ to such deprivation.” Connick v. Thompson,
131 S. Ct. 1350, 1359 (2011) (quoting Monell, 436 U.S. at 692).
“But, under § 1983, local governments are responsible only for
‘their own illegal acts.’ They are not vicariously liable under
§ 1983 for their employees’ actions.” Id. (quoting Pembaur v.
Cincinnati, 475 U.S. 469, 479 (1986) (citation omitted)); see
also Singletary v. District of Columbia, 766 F.3d 66, 72 (D.C.
Cir. 2014); Warren v. District of Columbia, 353 F.3d 36, 38
(D.C. Cir. 2004).
To impose liability on a local government for the torts of an
employee, a plaintiff must prove that “action pursuant to official
municipal policy” caused his or her injury. Monell, 436 U.S. at
691. “Official municipal policy includes the decisions of a
government’s lawmakers, the acts of its policymaking officials,
and practices so persistent and widespread as to practically have
the force of law.” Connick, 131 S. Ct. at 1359; see Pembaur,
475 U.S. at 480-81.
Under Supreme Court precedent, even if the seizure of the
Doe children amounted to a constitutional violation, “[p]roof of
a single incident of unconstitutional activity is not sufficient to
impose liability under Monell, unless proof of the incident
includes proof that it was caused by an existing, unconstitutional
municipal policy.” City of Okla. City v. Tuttle, 471 U.S. 808,
823-24 (1985). The Supreme Court has held that “municipal
liability may be imposed for a single decision by municipal
policymakers under appropriate circumstances,” Pembaur, 475
U.S. at 480.
13
To hold the District liable, the Does must show (1) a
Constitutional violation, and (2) that the District was responsible
for that violation. See Collins v. City of Harker Heights, Tx.,
503 U.S. 115, 120 (1992); see also Baker v. District of
Columbia, 326 F.3d 1302, 1306-07 (D.C. Cir. 2003). On the
first prong, there is a serious constitutional question regarding
whether an exigency existed here, and we do not reach it. On
the second prong, if District policy allows for the warrantless
removal of children when there is no bona fide emergency, then
the District would be responsible for any constitutional violation
that may have occurred here. But if the Doe children were not
removed pursuant to a custom or policy of the District, then the
§ 1983 claim fails.
District Code allows for the warrantless removal of children
only when there is such an emergency. See D.C. CODE § 16-
2309(a)(3) (“A child may be taken into custody . . . by any
employee of the Agency . . . when he or she has reasonable
grounds to believe that the child is in immediate danger from his
or her surroundings and that the removal of the child from his or
her surroundings is necessary.”); id. § 4-1301.07(a) (“If in the
opinion of the Agency . . . there is insufficient time to petition
for removal, the Agency shall request the police to remove the
child pursuant to § 16-2309(a)(3) or (a)(4).”). The Does argue
that the District violated this statute because the children were
not in “immediate danger” at the time of their seizure. See
Appellants’ Br. at 23 (emphasis in original). Furthermore, they
point to an Agency policy, “Procedure U: Removal and
Placement,” that states that “[w]hen the child is in immediate or
imminent danger, the Investigations Worker shall consider a
broad range of safety-oriented responses, including those that
protect a child without taking custody of the child.” J.A. 230
(emphasis added); see Appellants’ Br. at 23-24. But a different
District procedure in the record, Procedure V, seems to specify
that the only time the Agency is required to obtain a court order
14
prior to removing a child from his or her home is when the
Agency investigator “is unable to locate and/or remove the child
whom he/she believes requires removal.” J.A. 235.
On this record, we do not know if the District has a
municipal policy, practice, or custom, see Singletary, 766 F.3d
at 72-73 – regardless of the relevant statute – of seizing children
absent an exigency. We also do not know the progeny, role, or
relevance of Procedures U and V, whether these procedures
allowed removal without a court order even in the absence of
exigency, and if so, whether Procedures U and V are consistent
with the applicable statutes. Further, we do not know whether
Brenda Donald Walker, the Agency director who made the
decision to remove the Doe children, relied on these procedures
when she ordered the removal or was a final policymaker with
the authority “to establish municipal policy with respect to the
action ordered.” Pembaur, 475 U.S. at 481; see also Singletary,
766 F.3d at 73. The district court did not address these
questions because it concluded its analysis when it found that an
exigency existed. See Doe, 958 F. Supp. 2d at 190.
Because the constitutional question is a difficult one, and
there is a question whether the District is liable under § 1983,
the district court should address the question of municipal
liability in the first instance. Similarly, because the D.C. Code
appears to authorize taking a child into custody without a court
order only if there are “reasonable grounds to believe that the
child is in immediate danger,” D.C. CODE § 16-2309(a)(3), and
it is not clear if Procedures U and V are municipal “practices so
persistent and widespread as to practically have the force of
law,” Connick, 131 S. Ct. at 1359, or if they were adopted in
accordance with required notice-and-comment rulemaking, see
D.C. CODE §§ 2-505(a), 4-1303.03(a-1)(12); cf. Singletary, 766
F.3d at 74, we remand to the district court the question of what
relevance, if any, this policy has on the District’s liability.
15
Accordingly, we vacate the grant of summary judgment on
the Fourth and Fifth Amendment claims against the District and
remand for the district court to determine whether municipal
liability is permissible under Monell.
2. First Amendment Claim
To establish a claim for retaliation under the First
Amendment, an individual must prove (1) that he engaged in
protected conduct, (2) that the government “took some
retaliatory action sufficient to deter a person of ordinary
firmness in plaintiff’s position from speaking again;” and (3)
that there exists “a causal link between the exercise of a
constitutional right and the adverse action taken against him.”
Aref v. Holder, 774 F. Supp. 2d 147, 169 (D.D.C. 2011) (internal
quotation marks and citation omitted); see Toolasprashad v.
Bureau of Prisons, 286 F.3d 576, 584-85 (D.C. Cir. 2002). “To
satisfy the causation link, a plaintiff must allege that his or her
constitutional speech was the ‘but for’ cause of the defendants’
retaliatory action.” Aref, 774 F. Supp. 2d at 169 (citing
Hartman v. Moore, 547 U.S. 250, 256 (2006)).
Unlike the Fourth and Fifth Amendment analysis, the First
Amendment retaliation inquiry is a subjective one. See Smith v.
Mosley, 532 F.3d 1270, 1278 (11th Cir. 2008); Thaddeus-X v.
Blatter, 175 F.3d 378, 399 (6th Cir. 1999).
The District concedes that the Does presented sufficient
evidence to meet the first two elements of a First Amendment
claim; only the third element remains in dispute. The Does
contend that the District retaliated against them in violation of
the First Amendment when it threatened to remove, and then
removed the children on October 20, when it charged Robert and
Carla with child abuse, when it initiated juvenile charges against
the twins, when it discontinued services, and when it “forced”
16
the Does to relinquish parental rights over the twins. See
Appellants’ Br. at 32.
It is indisputable from the record that the Agency’s
decision-makers, at the least, thought that there was a reasonable
basis for believing that the Doe children were in imminent
danger. Although close temporal proximity between the
plaintiff’s protected action and the defendant’s allegedly
retaliatory action may be sufficient to allow a claim to survive
summary judgment, see Singletary, 351 F.3d at 525, where, as
here, there is substantial unrebutted evidence that the defendants
acted with subjective good faith, summary judgment is
appropriate on the First Amendment claims.
3. Tort Claims
The district court granted summary judgment to the District
on all of the Does’ tort claims. See Doe, 958 F. Supp. 2d at 194
n.13. The Does appeal that ruling with respect to only four
claims.
The Does alleged that all defendants assaulted and battered
Ann and Oliver. “An assault is an intentional attempt or threat
to do physical harm to another. A battery is an intentional act
that causes harmful or offensive bodily contact.” Harris v. U.S.
Dep’t of Veterans Affairs, 776 F.3d 907, 913 (D.C. Cir. 2015).
As an initial matter, there is no evidence that any defendant
other than Philippart and King, the social workers who removed
Ann and Oliver, interacted with the children. District law
provides a government actor with a privilege defense to such tort
claims when “(1) he or she believed, in good faith, that his or
her conduct was lawful, and (2) this belief was reasonable.”
Bradshaw v. District of Columbia, 43 A.3d 318, 323 (D.C.
2012) (citations and alterations omitted); see also Marshall v.
District of Columbia, 391 A.2d 1374, 1380-81 (D.C. 1978).
17
Given the social workers’ good faith belief and the uncertainty
surrounding what constitutes exigent circumstances – as
discussed in our qualified immunity analysis above – the two
social workers’ actions were privileged. Nor do the Does claim
the social workers employed excessive force. See Arrington v.
United States, 473 F.3d 329, 335-36 (D.C. Cir. 2006). Thus,
they are not entitled to relief on this claim.
Second, the Does claim the defendants invaded their
privacy by entering into their home and personal lives in a
manner not authorized by law. See Wolf v. Regardie, 553 A.2d
1213, 1216-17 (D.C. 1989). The defendants’ duty to investigate
claims of child abuse, their arrival – announced and coordinated
with the Does’ attorney hours earlier – and their subjective
belief that the children were in immediate danger provided them
with a good faith, reasonable belief that they acted lawfully in
entering the Does’ home. See D.C. CODE § 4-1301.04(a)-(b);
Pearson v. Dodd, 410 F.2d 701, 704 (D.C. Cir. 1969). As with
the assault and battery claims, the invasion of privacy claim
therefore fails because the defendants’ actions were privileged.
Third, the Does claim they suffered from intentional
infliction of emotional distress. To make out a claim for
intentional infliction of emotional distress, a “plaintiff must
show that the defendant acted in an (1) extreme and outrageous
manner (2) which was intentionally or recklessly calculated to
cause plaintiff (3) severe emotional distress.” Joyce v. United
States, 795 F. Supp. 1, 5 (D.D.C. 1992), aff’d, 986 F.2d 546,
(D.C. Cir. 1993) (per curiam) (unpublished). “Generally,
‘[l]iability has been found only where the conduct has been so
outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.’”
Harris, 776 F.3d at 916 (alteration in original) (quoting
Abourezk v. N.Y. Airlines, Inc., 895 F.2d 1456, 1459 (D.C. Cir.
18
1990)). The Does describe the offending conduct as trying to
disrupt their legal representation, advising the Does of possible
police involvement, determining that the children were in
imminent danger, referring neglect allegations to the
prosecutor’s office, prosecuting the twins, and declining post-
adoption services. The Does’ allegations hardly rise to the level
of atrocious and utterly intolerable behavior. This conclusion is
especially so here where the District was obliged to investigate
serious reports of prolonged sexual abuse, see D.C. CODE § 4-
1301.04(a)(1), and acted to protect children it believed, rightly
or wrongly, were in imminent harm. A reasonable jury could
not conclude otherwise.
Fourth, the Does claim that the defendants committed an
abuse of process by maliciously planning and initiating a child
abuse and neglect proceeding against Robert and Carla. “The
essence of the tort of abuse of process is the use of the legal
system ‘to accomplish some end which is without the regular
purview of the process, or which compels the party against
whom it is used to do some collateral thing which he could not
legally and regularly be required to do.’” Scott v. District of
Columbia, 101 F.3d 748, 755 (D.C. Cir. 1996) (quoting Bown v.
Hamilton, 601 A.2d 1074, 1079 (D.C. 1992)). “‘For abuse of
process to occur there must be use of the process for an
immediate purpose other than that for which it was designed and
intended.’” Id. (quoting RESTATEMENT (SECOND) OF TORTS §
682 cmt. b (1977)). But something quite nearly the opposite is
what occurred here. The legal system was employed to
safeguard children who had been the victims of awful crimes.
Aside from conclusory allegations that they were targeted in an
otherwise reasonable investigation, the Does offer no proof that
the legal system was used to accomplish anything but this
worthy end.
19
For these reasons, we affirm the grant of summary
judgment on all tort claims.
4. Post-Adoption Services
In the lengthy LaShawn A. litigation, a class action was
brought against the mayor and District officials on behalf of
children who depended on the District’s child welfare and foster
care systems. See LaShawn A. ex rel. Moore v. Fenty, 701 F.
Supp. 2d 84, 86-87 (D.D.C. 2010), aff’d sub nom., LaShawn A.
ex rel. Moore v. Gray, 412 F. App’x 315 (D.C. Cir. 2011) (per
curiam) (unpublished). The district court found widespread
problems in the child welfare system and finalized a consent
decree to correct “myriad deficiencies” in it. Id. at 87. After an
appeal, the district court entered a Modified Final Order
(“MFO”) based on District law and, in 2003, the court approved
an implementation plan developed by a Court Monitor to bring
the District into compliance with the MFO. Id. at 87-88.
The Does argue that the District “failed to properly
respond” to their “post-adoption needs” as required by LaShawn
A.’s MFO. J.A. 81 ¶ 214. In particular, they claim the District
is liable for not providing suitable residential and foster family
placements for the twins, appropriate therapy to the family, and
transportation assistance, among other services.
As the district judge – who is the judge who issued the
LaShawn A. MFO – held, 958 F. Supp. 2d at 203, the central
problem with the Does’ theory is their failure to show that they
are among the intended beneficiaries of the LaShawn A. consent
decree. “Third parties to a consent decree, involving the
government or not, must demonstrate that they are intended
beneficiaries in order to have enforcement rights . . ..” SEC v.
Prudential Sec. Inc., 136 F.3d 153, 159 (D.C. Cir. 1998). The
Does’ theory seems to be that “if the parties to the consent
20
decree had any intent to benefit that third party,” see id.—in this
case, adopted children—then they are an “intended beneficiary,”
but that is not the case. See also RESTATEMENT (SECOND) OF
CONTRACTS § 302(1). “To the contrary: a third party to a
consent decree is not an ‘intended beneficiary’ unless the parties
‘intended that a third party should receive a benefit which might
be enforced in the courts.’” Prudential Sec., 136 F.3d at 159
(emphasis removed) (quoting Corrugated Paper Prods. v.
Longview Fibre Co., 868 F.2d 908, 911 (7th Cir. 1989)). “The
test is not, as appellants appear to suggest, only whether the
contracting parties intended to confer a benefit directly on the
third parties, but also whether the parties intended the third party
to be able to sue to protect that benefit.” Id.; see also Blue Chip
Stamps v. Manor Drug Stores, 421 U.S. 723, 750 (1975).4
The Does have not shown that they can sue to protect such
a benefit. They point to the phrase from the MFO that “[a]ll
provisions of the Implementation Plan . . . shall be enforceable
by the court,” Appellants’ Br. at 45. But the Does do not show
how the Order expresses any intent to provide them with
enforcement rights. See Terrell v. District of Columbia, 703 F.
Supp. 2d 17, 21 (D.D.C. 2010). Accordingly, we affirm the
district court’s grant of summary judgment on this claim.
III.
For these reasons, we vacate the grant of summary
judgment on the Fourth and Fifth Amendment claims against the
District and remand for further proceedings consistent with this
4
For support, the Does cite Beckett v. Air Line Pilots Ass’n, 995
F.2d 280 (D.C. Cir. 1993). We there held that third parties to a
consent decree could sue to enforce its terms. But in that case the
consent decree established a trust and named the plaintiffs as
beneficiaries. See id. at 286-89. That is not the situation here.
21
opinion. We affirm the judgment of the district court on the
remaining claims.
So ordered.
WILKINS, Circuit Judge, concurring:
Because I agree that the Monell issue may be dispositive
and that we do not have a sufficient record to rule on it, I join
the Court’s opinion. I write separately to highlight a troubling
aspect of the approach taken by some courts when
considering the constitutional issues raised when the state
removes a child from her parents.
Although every circuit agrees that a child may be
removed from her home in order to protect her from abuse,
the circuits have not agreed on what burden the government is
under to justify such a removal in the absence of a court
order. Compare, e.g., Hatch v. Dep’t for Children, Youth and
Their Families, 274 F.3d 12, 21 (1st Cir. 2001) (reasonable
suspicion of past abuse can justify warrantless seizure of a
child), with Tenenbaum v. Williams, 193 F.3d 581, 594-95 (2d
Cir. 1999) (requiring reasonable suspicion of imminent
abuse). In my view, these decisions have sometimes given
inadequate weight to the Fourth Amendment rights of the
child.
Taking a child from her home without her consent or the
consent of her parents is a seizure. Maj. Op. 8. “It is a ‘basic
principle of Fourth Amendment law that searches and seizures
inside a home without a warrant are presumptively
unreasonable.’” Brigham City, Utah v. Stuart, 547 U.S. 398,
403 (2006) (quoting Groh v. Ramirez, 540 U.S. 551, 559
(2004)). Under well-established law, in order to justify a
warrantless search or seizure in the home “[t]he government
has to surmount two hurdles.” United States v. Dawkins, 17
F.3d 399, 403 (D.C. Cir. 1994). The first hurdle is probable
cause; the second hurdle is demonstrating that the “failure to
procure a warrant was justifiable in light of circumstantial
exigencies,” id., and we have directed courts to “weigh the
degree of intrusion against the exigency that is its rationale,”
United States v. Goree, 365 F.3d 1086, 1090 (D.C. Cir. 2004).
2
This two-part inquiry allows us to separate the question
whether there was sufficient evidence to justify removing the
child from whether there was sufficient evidence to justify
warrantless removal. Cf. Welsh v. Wisconsin, 466 U.S. 740,
749-50 (1984) (noting the “heavy burden” faced by the
government to justify warrantless searches or arrests). I see
no reason to abandon this two-part framework when
evaluating the removal of a child from her parents’ home.
The intrusion inherent in separating a child from her
parents cannot be overstated. In order to justify such an
intrusion without a court order, the need for immediate action
must be great. I would find that the Fourth Amendment does
not permit a government agency to remove a child from her
home without a court order unless the agency has a reasonable
basis to believe that the delay necessary to obtain the order
would endanger the life or health of a child. Cf., e.g.,
Missouri v. McNeely, 133 S. Ct. 1552, 1558-59 (2013) (listing
circumstances justifying warrantless entry, such as providing
emergency assistance, engaging in hot pursuit of a felon, or
putting out a fire); In re Sealed Case 96-3167, 153 F.3d 759,
766-67 (D.C. Cir. 1998) (warrantless entry appropriate where
burglary in progress); United States v. Johnson, 802 F.2d
1459, 1462 (D.C. Cir. 1986) (finding exigent circumstance
where evidence may be lost or destroyed if search is delayed).
The question is not whether a child may be in danger of future
harm in a generic sense; it is instead whether the delay
required for seeking even ex parte judicial review could be
catastrophic. Otherwise, we risk undermining the Fourth
Amendment rights of our children, as well as the “momentum
for respect,” Stanley v. Illinois, 405 U.S. 645, 651 (1972), of
the constitutional protection of the “strong tradition of
parental concern for the nurture and upbringing of their
children,” Wisconsin v. Yoder, 406 U.S. 205, 232 (1972).