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.