Mammaro v. New Jersey Div. of Child Protection & Permanency, 814 F.3d 164 (3d Cir. 2016). In this case, plaintiff brought a civil rights case against the New Jersey Division of Child Protection and Permanency (“the Division”), supervisors and case workers from the Division, and others. Among other things, she asserted that the Division had denied her substantive due process rights as a parent by temporarily removing her child from her custody.
The Division moved to dismiss. The District Court granted that motion in most respects, but denied it as to the substantive due process claim, finding that the case workers and supervisors did not have qualified immunity from that claim because plaintiff had adequately alleged a substantive due process violation and because the right that she claimed was “clearly established.” On appeal under the collateral order doctrine, which permits immediate appeals of qualified immunity denials where the ruling turns solely on an issue of law, the Third Circuit today reversed. Judge Ambro wrote the panel’s opinion, in which Chief Judge McKee and Judge Hardiman joined.
After discussing the general principles applicable to qualified immunity, the court turned to what it said was “the only issue presented” on appeal: “whether the alleged violation of substantive due process was clearly established” at the time of the challenged conduct, one of two essential elements in the qualified immunity analysis. Judge Ambro ruled that the claimed right was not clearly established.
In order for a right to be “clearly established,” there must be “sufficient precedent at the time of the action, factually similar to the plaintiffs’ allegations, to put defendant on notice that his or her conduct is constitutionally prohibited.” Either a United States Supreme Court case or a “robust consensus of cases of persuasive authority” at the Circuit Court of Appeals level is required.
Plaintiff relied on a single Third Circuit case. Judge Ambro ruled that even if a lone case were sufficient to show a “clearly established” right, the cited case was factually distinguishable. Similarly unhelpful to plaintiff was an unpublished Western District of Pennsylvania case on which the District Court here had relied. That decision was rendered after the events of plaintiff’s case and could not have put defendants on notice that their conduct was allegedly prohibited.
Since there was no showing of a “clearly established” substantive due process right that had been violated, the Third Circuit found that defendants had qualified immunity. Therefore, the panel reversed the decision below and remanded for the entry of judgment in favor of defendants.
The decision on qualified immunity was not particularly novel and essentially did not announce any rule of law that had not been announced before. But the case had one unusual wrinkle. In a footnote that occupied over one full page of typescript in this relatively short opinion, Judge Ambro stated that Chief Judge McKee, who joined the panel opinion in full, “notes his concern with the misleading nature of the Division’s brief” on one point. That point related to the Division’s assertion that a hair follicle drug test on plaintiff came back “positive for cocaine and marijuana.” After being challenged on that point at oral argument, the Division conceded that, given the Division’s own guidelines for such a test, the testing laboratory’s threshold for a positive test, and the margin of error in the testing equipment, the test was in fact negative for the drugs.
“Chief Judge McKee believe[d] that it is (at best) unfortunate and (at most) disingenuous and intentionally misleading for the Division to have stated, without qualification or explanation, that [plaintiff] was using cocaine.” And because the drug test came after the removal of plaintiff’s child, it had nothing to do with the case. Chief Judge McKee, again according to Judge Ambro in that same lengthy footnote, was concerned that the misleading statement about the drug test might have been offered to “poison the [analytical] well.”
This gives rise to two observations. First, the Division, as a public agency, was obligated to “turn square corners” in dealing with the public, and the Division had the same duty of candor to the court that other litigants have. This was a disturbing breach of those duties by an agency whose goals are to serve the public, not to win lawsuits at all costs (though the Division did win anyway). Second, it is not clear why Chief Judge McKee was alone in expressing his concern about this issue. Yet, the panel opinion took pains to point out that these were Chief Judge McKee’s views only.