Demaree v. Pederson, No. 14-16207 (9th Cir. 2018)
Annotate this Case
The Ninth Circuit issued an order amending Judge N.R. Smith's separate opinion, denying a petition for rehearing en banc on behalf of the court, and ordering that no petitions for panel rehearing or further petitions for rehearing en banc shall be entertained.
In his amended separate opinion, Judge Smith explained that the court had neither jurisdiction nor authority to hear this case because plaintiffs failed to file their notice of appeal within thirty days of the judgment. The majority of the panel, however, believed that there was jurisdiction and authority to hear the case, and Judge Smith agreed with the per curiam opinion's resolution of the merits.
Court Description: Civil Rights. The panel issued an order amending Judge N.R. Smith’s separate opinion, denying a petition for rehearing en banc on behalf of the court, and ordering that no petitions for panel rehearing or further petitions for rehearing en banc shall be entertained. The panel affirmed the district court’s order denying plaintiffs’ motion to seal the district court’s summary judgment order, reversed the district court’s order granting summary judgment in favor of social workers on the basis of qualified immunity, and remanded for further proceedings. Plaintiffs alleged that Child Protective Services socials workers violated their and their children’s constitutional rights to family unity and companionship by temporarily removing the children from their home without a warrant or court order. The social workers removed the children during a possible sexual abuse investigation after a Wal-Mart employee contacted police that while printing family photos DEMAREE V. PEDERSON 3 dropped off by plaintiffs, they noticed several pictures portraying child nudity. The panel first rejected defendants’ contention that plaintiffs’ appeal was not timely filed because plaintiffs’ “lodged” motion to alter or amend the judgment under Federal Rule Civil Procedure 59 could not toll the deadline for appeal under Federal Rule Civil Procedure 4(a)(4). Applying Hamer v. Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 16–17 (2017) the panel held that Rule 4(a)(4) is not jurisdictional but rather is a mandatory claim- processing rule. The panel then held that the appeal was timely because the Rule 59 motion was actually physically delivered to the clerk when it was timely lodged in conjunction with the request to file under seal, and the district court treated the motion as filed when it ruled on the merits of the motion. The panel held that the social workers were not entitled to qualified immunity. Viewing the facts in the light most favorable to the plaintiffs, the social workers did not have reasonable cause to believe the children were at risk of serious bodily harm or molestation when they removed the children from their home without judicial authorization. The panel further held that plaintiffs’ constitutional right was clearly established at the time. The panel held that specific judicial precedent clearly gave notice to the social workers that children could not be removed from their homes without a court order or warrant absent cogent, fact-focused reasonable cause to believe the children would be imminently subject to physical injury or physical sexual abuse. The panel affirmed the district court order denying plaintiffs’ motion to seal the summary judgment order. The 4 DEMAREE V. PEDERSON panel held that: (1) the district court properly protected the privacy of the children by maintaining under seal any motions or exhibits containing their full names or identifying information; (2) Arizona law prohibited the release of files related to investigations conducted by child protective services; and (3) the district court order employed clinical, anatomically correct language to briefly describe the nudity depicted in the photographs at issue. In his amended separate opinion, Judge N.R. Smith explained that in his view the court had neither jurisdiction nor authority to hear this case because the plaintiffs failed to file their notice of appeal within thirty days of the judgment. However, because a majority of the panel believed there was jurisdiction and authority to hear the case, and Judge Smith agreed with the per curiam opinion’s resolution of the merits, he joined all but Part II(A)(ii) of the opinion and concurred in the judgment. Concurring, Judge Berzon wrote separately to emphasize why it is essential that the courts scrupulously guard a child’s constitutional right to remain at home absent a court order or true exigency. Concurring and dissenting in part, Judge Zouhary agreed with the per curiam opinion as it pertained to the timeliness of the appeal and the district court denial of the motion to seal the summary judgment opinion. He respectfully dissented from the majority view on the merits of the case. He would have affirmed the district court order granting summary judgment based on qualified immunity. DEMAREE V. PEDERSON 5
This opinion or order relates to an opinion or order originally issued on January 23, 2018.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.