dissenting from the denial of rehearing en banc:
A social worker removed a fifteen-year-old child from the custody of her mother following allegations that the child was being abused. While in the custody of the state, the child became pregnant by her eighteen-*959year-old boyfriend, whom she then married. The child’s mother brought suit against the social worker and her immediate superior, alleging that they violated her own rights under the substantive and procedural components of the Due Process Clause of the Fourteenth Amendment. The two social workers moved for summary judgment on the ground that the constitutional rights asserted by the mother were not clearly established when they took custody of the child, and, therefore, that they were entitled to qualified immunity. The district court denied their motion for summary judgment, and, on interlocutory appeal, a panel of this court affirmed that denial without an opinion.
After trial, a jury found for the mother and against the social workers in the amount of $600,000. On appeal, a divided panel of this court affirmed the district court’s judgment in full. The panel held, inter alia, that the social workers deprived the mother of her rights under the substantive component of the Due Process Clause by failing to allow the mother to visit her child and by failing to prevent the child from becoming pregnant. The panel’s creation of these new rights conflicts with circuit and Supreme Court precedent. The panel also held that the doctrine of law of the case prevented it from reconsidering the social workers’ defense of qualified immunity. This holding also conflicts with circuit and Supreme Court precedent.
I asked that the court be polled for rehearing en banc, not only because the panel’s decision is “in direct conflict with precedent of the Supreme Court [and] this Circuit,” 11th Cir. R. 35-3, but also because the case involves “a question of exceptional importance,” Fed. R. App. P. 35(a). The new rights the panel has created in this case will chill the investigation of child abuse in this circuit. Moreover, the panel’s novel application of the doctrine of law of the ease drastically undermines the important defense of qualified immunity, which shields many public employees, including social workers, from the expense of unwarranted litigation. Today the court refuses to rehear the case en banc. Because the court’s decision not to rehear this case carries grave implications for the law of this circuit, I dissent.
I.
A.
On March 15, 1988, Rena Landress, then fifteen years old, was living with her mother, plaintiff Sandra D. Riley, in Shady Dale, Georgia. On the evening of March 15, unbeknownst to the plaintiff and contrary to her instructions, Rena went on a date with Billy Westbrook, her eighteen-year-old boyfriend. When Rena returned home, the plaintiff punished her by hitting her on her buttocks and legs four to six times with a one-inch-wide, doubled-over leather belt.
Six days later, on March 21, defendant Lori Winkler, a case worker at the Jasper County Department of Family and Child Services (“DFACS”) in Monticello, received an anonymous phone call suggesting that the plaintiff was abusing Rena. Winkler investigated the allegations by speaking with Billy’s mother, Louise Westbrook, by interviewing Rena at school, and by attempting unsuccessfully to contact the plaintiff.
On the following morning, March 22, Rena and Billy came to see Winkler. Rena said that she did not want to remain in the plaintiffs home. Winkler decided to take Rena into the custody of DFACS for the time being.1 First, however, Winkler sent Rena and Billy back to school. Later that day, Winkler went with a sheriffs deputy to collect Rena’s belongings from the plaintiffs home. Then, after school, a DFACS worker drove Rena to the home of Mr. and Mrs. Lewis, whose daughter was a close friend of Rena.
On March 24, less than two days later, a detention hearing regarding Rena was held before a Georgia Superior Court Judge, sitting pursuant to his power to hear juvenile matters under O.C.G.A. § 15-11-21 (c)(3) (1994). The plaintiff attended this hearing *960and was represented by counsel, who briefly cross-examined Winkler, the only witness called to testify. At the conclusion of the hearing, the presiding judge signed a detention order continuing DFACS’ detention of Rena. See generally O.C.G.A. § 15-11-18(4) (1994) (authorizing such orders).
On March 29, DFACS petitioned the Jasper County Juvenile Court for permanent custody of Rena. The same day, a hearing on the petition was scheduled for April 12. The hearing was subsequently continued to April 26, apparently to enable the plaintiff to obtain substitute counsel. At the April 26 hearing, the judge again continued the proceedings until an unspecified date so that the plaintiff could undergo a psychiatric evaluation, to which she had consented.
On June 6, before a hearing on DFACS’ petition for permanent custody could be rescheduled, Rena and Billy told Winkler that Rena was pregnant and that they planned to marry. They in fact married four days later. Marriage emancipated Rena from the custody of both the plaintiff and DFACS. See generally McGregor v. McGregor, 237 Ga. 57, 226 S.E.2d 591, 592 (1976). Therefore, on June 13, 1988, DFACS moved the court to dismiss its petition for custody, and the court granted the motion on June 15. On March 21, 1990, the plaintiff brought this action.2
The complaint named as defendants Wink-ler and her immediate superior at DFACS, Larue T. Camp. The plaintiff sought, in three counts, compensatory and punitive damages. The first two counts sought recovery under 42 U.S.C. § 1983 (1994) for constitutional violations based on the substantive and procedural components of the Due Process Clause of the Fourteenth Amendment; the third count was based on Georgia tort law.
The defendants’ answer denied the plaintiffs allegations of wrongdoing and asserted, as an affirmative defense, that they were entitled to qualified immunity. Following some discovery, the defendants moved for summary judgment on their qualified immunity defense. The district court, however, denied the motion simply because “genuine issues of material fact remain in the case.”
The defendants appealed, contending inter alia that the district court erred in concluding that they were not entitled to qualified immunity. The court affirmed the district court’s denial of summary judgment without an opinion under 11th Circuit Rule 36-1.3 See Riley v. Camp, 990 F.2d 1268 (11th Cir.1993) (unpublished table decision) [hereinafter Riley I ].
Following this decision, the case went to trial before a jury. At the close of the evidence, the defendants moved for judgment as a matter of law. The district court reserved ruling on this motion pending the return of the jury’s verdict. The district court then submitted all three of the plaintiffs claims to the jury using special interrogatories instead of instructions. The jury answered the interrogatories in favor of the plaintiff and awarded her compensatory damages against both defendants, jointly and *961severally, in the amount of $100,000, and punitive damages against each defendant severally in the amount of $250,000 — for a grand total of $600,000. The jury did not differentiate among the three claims, nor did the court’s judgment. Hence, the judgment awarded the plaintiff $600,000 on each of her claims. After the court denied the defendants’ renewed motion for judgment as a matter of law, the defendants took the current appeal.4
B.
The Riley II panel affirmed the judgment of the district court.5 After briefly summarizing the facts, the Riley II panel examined the substantive due process rights asserted by the plaintiff. The panel described these rights using the jury’s answers to the special interrogatories. According to the panel, the jury found that Winkler, through “gross negligence, deliberate indifference, or specific intent,” denied Riley her right to visit Rena, “even though [Riley’s] residual parental rights had not been terminated by a court of competent jurisdiction.” Post at 978. In addition, the panel noted, the jury found that both Winkler and Camp
by deliberate indifference, gross negligence, or intentional misconduct failed in their duty to supervise or care for ... Rena ... while she was in [their] custody, which resulted in the child becoming pregnant and marrying while in [their] care, thus permanently depriving [Riley] of her liberty interest in the care, custody, control, society and services of her child.
Id. Although the panel opinion did not discuss the finding in its opinion, the jury also found that the defendants’ conduct, both in denying visitation to the plaintiff and in allowing Rena to become pregnant, “shock[ed] the conscience or offend[ed] the standards of decency and fairness which express the notions of justice of English speaking peoples.” Based solely on the jury’s findings — and without any citation of legal authority — the Riley II panel concluded that Riley had stated two claims under the substantive component of the Due Process Clause. The Riley II panel found that the plaintiff stated a claim under the procedural component of the Clause as well.6
Turning to the defendants’ claim of qualified immunity, the Riley II panel held that the law of the case doctrine barred reconsideration of this defense. See id. at 968. As noted above, the defendants originally moved for summary judgment based on qualified immunity. The district court denied this motion, and the Riley I panel affirmed without opinion. The Riley II panel concluded from this procedural history that the Riley I panel must have already decided that the defen*962dants were not entitled to qualified immunity. See post, at 979 & n. 6.
Consequently, the Riley II panel applied the doctrine of law of the case to the Riley I decision and rejected the defendants’ second assertion of qualified immunity. The Riley II panel quoted the definition of the law of the case doctrine contained in United States v. Robinson, 690 F.2d 869 (11th Cir.1982): “Under the law of the case doctrine, both the district court and the court of appeals generally are bound by findings of fact and conclusions of law made by the court of appeals in a prior appeal of the same ease.” Id. at 872. The Riley II panel then applied this doctrine to the defendants’ appeal of the qualified immunity issue and affirmed the judgment of the district court in full.
Judge Kravitch concurred in the majority’s discussion of substantive due process and the law of the case doctrine. See post at 980 (Kravitch, J., concurring in part and dissenting in part). According to Judge Kravitch, “[iff the facts presented by [a] plaintiff[ ] at the summary judgment stage become, without notable exception, the actual facts as developed at trial,” then there is no need to review a prior denial of qualified immunity. Id. at 982. She found that several recent opinions of this court had expressed the view that “qualified immunity can be raised at trial even if [it is] initially denied at the summary judgment stage.” Id. at 980 (citing Swint v. City of Wadley, 51 F.3d 988, 992 (11th Cir.1995); Kelly v. Curtis, 21 F.3d 1544, 1546 (11th Cir.1994); Sims v. Metropolitan Dade County, 972 F.2d 1230, 1233 (11th Cir.1992); Adams v. St. Lucie County Sheriffs Dep’t, 962 F.2d 1563, 1579 n. 8 (11th Cir.1992) (Edmondson, J., dissenting), vacated, 982 F.2d 472, dissenting opinion adopted, 998 F.2d 923, 923 (1993) (en banc)). Judge Kravitch, however, characterized this discussion as non-binding dicta. See post at 980.
Judge Kravitch also noted that the Supreme Court had recently held that “defendants can appeal from a denial of qualified immunity at both the motion to dismiss stage as well as the summary judgment stage because ‘resolution of the immunity question may require more than one judiciously timed appeal.’ ” Post at 981 n. 2 (quoting Behrens v. Pelletier, 516 U.S. 299, -, 116 S.Ct. 834, 840, 133 L.Ed.2d 773 (1996) (internal quotation marks omitted)). According to Judge Kravitch, Behrens held that “the law of the case doctrine would not normally bar revisiting the qualified immunity issue at summary judgment where an appellate court previously had ruled on an appeal from the motion to dismiss.” Id. In spite of this language, however, she concurred in the application of the law of the case doctrine because it would “promot[e] finality” and “avoid waste of judicial resources.” Id. at 981.
Judge Kravitch then considered whether an intervening change in the law between the Riley I decision and the Riley II appeal prevented the application of the law of the ease doctrine. She cited two intervening en banc decisions of this court dealing with the creation of rights under the substantive component of the due process clause, McKinney v. Pate, 20 F.3d 1550 (11th Cir.1994) (en banc), cert. denied, 513 U.S. 1110, 115 S.Ct. 898, 130 L.Ed.2d 783 (1995), and Lassiter v. Alabama A & M Univ., Bd. of Trustees, 28 F.3d 1146 (11th Cir.1994) (en banc). See id. at 982 n.4. She stated, however, that “neither of these developments ... can be described as ‘a contrary decision of law applicable to this case.’ ” Id.
Finally, Judge Kravitch called attention to our prior panel rule: “This circuit follows a strict policy of following prior panel opinions unless such are overruled by the court sitting en banc.” Id. at 982. Based on this rule, she concluded that a panel must follow a prior panel’s denial of qualified immunity, “except in the rarest cases” — except where obedience to a clearly erroneous prior panel ruling would work a manifest injustice. Id. Judge Kravitch therefore concurred in the panel’s application of the law of the case doctrine to foreclose the defendants’ claim of qualified immunity.7
*963II.
Riley II broke with circuit and Supreme Court precedent in two main respects. First, Riley II created two new substantive due process rights. These two new rights conflicted with our precedent in their scope and in the method of their creation. Second, Riley II wrongly applied the doctrine of law of the case to foreclose the defendants’ second appeal from the denial of qualified immunity. The court’s misapplication of this doctrine conflicts with a prior panel decision and will undercut the defense of qualified immunity in this circuit. I examine Riley IPs mistakes to demonstrate why this ease merits rehearing en bane.
A.
Riley II’s creation of two new substantive due process rights conflicts with established circuit and Supreme Court precedent. “As a general matter, the [Supreme] Court has always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this un-chartered area are scarce and open-ended.” Collins v. City of Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 1068, 117 L.Ed.2d 261 (1992). Not only did the Riley II panel “break new ground in this field” without the “utmost care” required by “judicial self-restraint,” id., but it also did so without a careful examination of the allegations to determine exactly how the plaintiff described the substantive constitutional right at stake. See Washington v. Glucksberg, — U.S. -, -, 117 S.Ct. 2258, 2268, 138 L.Ed.2d 772 (1997); Reno v. Flores, 507 U.S. 292, 301-02, 113 S.Ct. 1439, 1447, 123 L.Ed.2d 1 (1993).
In his opinion concurring in the court’s decision to deny rehearing, Judge Birch asserts that the right at issue in this case is the “long-acknowledged right to family integrity.” Post, at 986. Both the method used by the district court and a close analysis of the rights asserted by the plaintiff reveal, however, that the rights created were new and contravened Supreme Court and circuit precedent.
The method utilized by the district court, and subsequently endorsed in Riley II, to determine whether the plaintiffs substantive due process rights had been violated by the defendants demonstrates that the rights created were both new and not reflective of the type of principled extension of due process that “judicial self-restraint” envisions. In its special interrogatories to the jury, the district court improperly submitted legal questions to the jury.8 The court asked:
[D]o you find by a preponderance of the evidence that the conduct of the defendants who denied plaintiff visitation with her child shocks the conscience or offends those standards of decency and fairness which express the notions of justice of English speaking peoples?
and:
Do you find by a preponderance of the evidence that the conduct of the defendants who demonstrated deliberate indifference, gross negligence, or intentional misconduct in caring for and supervising plaintiffs child while in the defendants’ custody and control shocks the conscience or offends the standards of decency and fairness which express the notions of justice of English speaking peoples?
The term “shocks the conscience” comes from Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). In Rochin, the Supreme Court held that the use of a stomach pump by police to extract evidence from an unwilling defendant was so shocking that the Due Process Clause of the Fourteenth Amendment barred a criminal conviction based on such evidence. See id. at 172, 72 S.Ct. at 209-10. Because the Fourth and Fifth Amendments had not yet been incorporated into Fourteenth Amendment jurispru*964dence,9 and so were not yet enforceable against the states, the Court could not point to a specific constitutional provision violated by the forced extraction of evidence from the defendant’s stomach. See Mapp v. Ohio, 367 U.S. 643, 663-65, 81 S.Ct. 1684, 1696-97, 6 L.Ed.2d 1081 (1961)(Black, J., concurring). Therefore, the Court created a new right under the substantive component of the Due Process Clause, delineating a practice in which the states could not engage. In effect, the Court interpreted the Due Process Clause to contain a new provision proscribing the forced extraction of evidence from a defendant’s stomach.
By allowing the jury in this case to determine whether the defendants’ conduct “shocked the conscience,” the district court allowed the jury to create and define new due process rights under the Fourteenth Amendment. The appellants raised this issue on appeal, but the Riley II panel ignored their argument and did not address the issue of whether the defendants’ conduct shocked the conscience. Instead, the panel simply found that the jury’s findings were “supported by substantial evidence,” and so affirmed the district court’s ruling. Ante at 960. The panel did not even question whether the rights as defined by the jury were rights actually guaranteed by the substantive component of the due process clause. The panel’s oversight is even more egregious considering that this circuit, sitting en banc, has specifically stated that “Rochin in no way created a substantive right on which claimants might claim civil damages,” and therefore, “[t]he Rochin standard has no place in a civil ease for money damages.” McKinney, 20 F.3d at 1556 n. 7.10
Notwithstanding the fact that the Riley II panel accepted without question the jury’s definition of the plaintiffs substantive due process rights, Judge Birch maintains that the right at stake is a parent’s established fundamental right to custody and control of her children. The right of parents to custody of their children and the right to raise them as they see fit are firmly established fundamental liberty interests. See M.L.B. v. S.L.J., — U.S. -, -, 117 S.Ct. 555, 564-65, 136 L.Ed.2d 473 (1996); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). Equally firmly established, however, is the proposition that states may, in the exercise of their police power, remove children from the custody of their parents when the children’s health, safety, or emotional welfare demands it. See Stanley v. Illinois, 405 U.S. 645, 652, 92 S.Ct. 1208, 1213, 31 L.Ed.2d 551 (1972) (“We do not question the assertion that neglectful parents may be separated from their children.”); Prince v. Massachusetts, 321 U.S. 158, 166-67, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944); Bendiburg v. Dempsey, 909 F.2d 463, 468 (11th Cir.1990); cf. M.L.B. v. S.L.J., — U.S. at -, 117 S.Ct. at 570 (holding that Mississippi may not block indigent parent’s access to appeal of parental termination when access is granted to those who can pay). In particular, a state may restrict an alleged child abuser’s access to her child without breaching the requirements of substantive due process. See Weller v. Depart*965ment of Soc. Servs., 901 F.2d 387, 391-92 (4th Cir.1990); Fitzgerald v. Williamson, 787 F.2d 403, 407-08 (8th Cir.1986). Review of the plaintiffs allegations demonstrates that the right of a parent to custody and control of her child was neither at issue nor violated in this case.
First, the plaintiff did not allege that DFACS’ initial removal of Rena from her custody constituted a violation of substantive due process.11 Plaintiff'alleged, and the jury and Riley II panel found, that the defendants’ subsequent unilateral denial of visitation, through gross negligence, reckless indifference, or specific intent, constituted a violation of her right to substantive due process. The substantive component of the due process clause “forbids the government to infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.” Reno, 507 U.S. at 302, 113 S.Ct. at 1447.
The right created by the jury and sanctioned by the Riley II panel is subject to two interpretations. It could be that a person has a fundamental liberty interest in visitation (as opposed to custody), until custody has been terminated by a court of competent jurisdiction. If plaintiff in fact had such a right — and it would still be a new right— then her claim would be that the defendants, through gross negligence, reckless indifference, or specific intent, exceeded the state’s police power in denying plaintiff the fundamental right to visitation.12 If the plaintiff actually had a substantive right to visitation, it could not have been violated here. The uncontroverted evidence that plaintiff hit Rena with a belt on the buttocks, coupled with the superior court judge’s ruling at the March 24 detention hearing continuing DFACS’ custody of Rena, sufficiently demonstrate that defendants acted within the state’s broad power to protect children from abuse. Cf. Baker v. McCollan, 443 U.S. 137, 145-46, 99 S.Ct. 2689, 2695, 61 L.Ed.2d 433 (1979) (stating that “[t]he Fourteenth Amendment does not protect against all deprivations of liberty” and noting that the distribution of duties in the criminal justice system does not require a sheriff holding a suspect in custody to “perform an error-free investigation,” because ultimate determinations of innocence are left to judge and jury).
In the alternative, it may be that the jury felt that the right to visitation prior to a final determination on custody could not be denied “unilaterally.” A claim that the process itself was deficient or unfair, however, would be brought under the procedural component of the Due Process Clause rather than the substantive component. A violation of procedural due process occurs “only when the state refuses to provide a process sufficient to remedy the procedural deprivation.” McKinney, 20 F.3d at 1557. Georgia state law, however, provides a mechanism for enforcing a parent’s right to visit her child — a mechanism which the plaintiff in fact eventually used to broaden her access to Rena.
Before the March 24 detention hearing, the superior court, pursuant to its power to hear juvenile matters, had jurisdiction to order the defendants to grant visitation rights to the plaintiff. See O.C.G.A. § 15 — 11— 57(a)(2) (1994). The plaintiff did not ask the court to exercise this jurisdiction. When the superior court assumed jurisdiction over the matter at the March 24 hearing, it clearly had the authority, which the plaintiff again did not ask it to exercise, to alter the defendants’ visitation decisions. See O.C.G.A. § 15-ll-34(a) (1994). Even after the court gave DFACS temporary custody of Rena, *966the plaintiff was entitled under state law to a hearing on visitation. See In re K.B., 188 Ga.App. 199, 201-02, 372 S.E.2d 476, 479 (1988). She did not ask for such a hearing, presumably because, according to the record, DFACS was allowing her to visit Rena on a weekly basis. Finally, at the April 26 permanent custody hearing, the court, at the plaintiffs request, instructed DFACS to schedule increased visitation between the plaintiff and Rena. Because the plaintiff could and eventually did obtain the relief she sought from the Georgia courts, she stated no claim under the procedural component of the Due Process Clause.
In addition, the Riley II panel found that the defendants infringed a second substantive due process right of the plaintiffs when they failed, by gross negligence, deliberate indifference, or specific intent, to prevent Billy Westbrook from impregnating and marrying Rena, the acts that resulted in the termination of the plaintiffs residual parental rights. The Riley II panel cited no legal authority for this substantive due process right, and I find no support for it in the case law.13
Parents have a fundamental liberty interest in the custody of their children. Santosky v. Kramer, 455 U.S. 745, 753-54, 102 S.Ct. 1388, 1394-95, 71 L.Ed.2d 599 (1982). However, “nothing in the language of the Due Process Clause itself requires the State to protect the ... liberty ... of its citizens against invasion by private actors.” DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 195, 109 S.Ct. 998, 1003, 103 L.Ed.2d 249 (1989). For example, social workers do not violate the substantive component of the Due Process Clause when they know of repeated instances of child abuse but fail to intervene, even when this failure results in permanent injury to the child. See id. at 197-98, 109 S.Ct. at 1004.
In the present case, Billy was a private actor. But for the participation of Billy, the alleged violation of the plaintiff’s purported substantive due process right would not have occurred. In other words, a private, non-state actor caused the termination of plaintiff’s custody over her child. Therefore, the plaintiff has no cognizable right under the substantive component of .the Due Process Clause. See, e.g., Powell v. Georgia Dep’t of Human Resources, 114 F.3d 1074, 1079 (11th Cir.1997) (holding that social workers did not violate a noncustodial parent’s clearly established substantive due process rights when they allowed his child to be returned to the custodial parent’s household, where the child was abused and killed); Wooten v. Campbell, 49 F.3d 696, 700 (11th Cir.1995) (holding that social workers did not violate the substantive due process rights of a custodial parent and her child when they granted visitation privileges to the noncustodial parent, who subsequently abducted and murdered the child), cert. denied, — U.S. -, 116 S.Ct. 379, 133 L.Ed.2d 302 (1995).
One might argue that the state, by virtue of its custodial authority over Rena, had a constitutional duty to protect Rena from Billy’s violation of Georgia’s statutory rape law. See generally O.C.G.A. § 16-6-3 (1996) (proscribing “sexual intercourse with any person under the age of 16 years and not his or her spouse”). The Supreme Court has suggested that “when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being.” DeShaney, 489 U.S. at 199-200, 109 S.Ct. at 1005. Along similar lines, in Cornelius v. Town of Highland Lake, 880 F.2d 348 (11th Cir.1989), cert. denied, 494 U.S. 1066, 110 S.Ct. 1784, 108 L.Ed.2d 785 (1990), this court stated that “the existence of a special relationship between an individual and the state may trigger a constitutional duty on the state’s part to provide protective services.” Id. at 352 (citation omitted). Because DFACS had a special, custodial relationship with Rena, the plaintiff could potentially argue that DFACS violated the substantive component of the Due Process Clause when it failed to protect Rena from Billy’s unlawful activities.
*967In this case, however, the “special relationship” theory suffers from two fatal defects. First, the special relationship theory centers on a child’s assertion of her own substantive due process rights — not a parent’s assertion of some derivative entitlement based upon her residual custodial rights. See Youngberg v. Romeo, 457 U.S. 307, 324, 102 S.Ct. 2452, 2462, 73 L.Ed.2d 28 (1982) (holding that a minor involuntarily committed to a state mental hospital “enjoys constitutionally protected interests in conditions of reasonable care and safety, reasonably nonrestrietive confinement conditions, and such training as may be required by these interests”); Cornelius, 880 F.2d at 352-53 (“Under the [special relationship] analysis, government officials may be held liable for the deprivation by a third party of a private citizen’s due process rights when a special relationship is found to exist between the victim and the third party or between the victim and the government officials.” (emphasis added) (citation omitted)). Even assuming that the special relationship theory applies, therefore, the plaintiff herself would not be entitled to sue on the basis of any alleged dereliction of that relationship.
Second, the special relationship theory only applies where a state limits the individual’s freedom to act on his own behalf and then fails to provide for his basic human needs. See DeShaney, 489 U.S. at 199-200, 109 S.Ct. at 1005-06; see, e.g., Wright v. Lovin, 32 F.3d 538, 541 (11th Cir.1994) (stating that there can be no special relationship between the state and the victim if the state did not create the dangerous situation or render the victim more vulnerable to it). In this case, the state placed no restrictions on Rena’s freedom to act on her own behalf. Not only did Rena engage in sexual intercourse voluntarily; she also did so outside the supervision and physical control of her foster parents. The Riley II panel erred in creating a substantive due process right that would allow noncustodial parents to sue the state whenever their child, while in foster care, becomes pregnant and marries without their blessing.
“The substantive component of the Due Process Clause protects only those rights which are fundamental.” Wooten, 49 F.3d at 699 (citing McKinney, 20 F.3d at 1556). The rights created by the Riley II panel were not “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Michael H. v. Gerald D., 491 U.S. 110, 122, 109 S.Ct. 2333, 2342, 105 L.Ed.2d 91 (1989) (Sealia, J.) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934)) (internal quotation marks omitted). In sum, the Riley II panel ignored circuit and Supreme Court precedent by creating two new substantive due process rights that were not justified in law.14
B.
The Riley II panel applied the doctrine of law of the case to foreclose the defendants’ second appeal from the denial of qualified immunity. Under the doctrine of law of the case, “the trial court and appellate courts are bound by any findings of fact or conclusions of law made by the appellate court in a prior appeal of the case at issue.” United States v. Burns, 662 F.2d 1378, 1384 (11th Cir.1981). This doctrine does not apply, however, when “(1) new and substantially different evidence material to the issue has been presented; (2) controlling authority has been rendered which is contrary to the law of the previous decision; or (3) the earlier ruling was clearly erroneous and would work a manifest injustice if implemented.” Flint Elec. Membership Corp. v. Whitworth, 68 F.3d 1309, 1312 (11th Cir.1995) (per curiam), modified, 77 F.3d 1321 (1996). The Riley II panel erred in applying the doctrine of law of the case because all three of the foregoing exceptions apply here.
*968First, the Riley II panel should have heard the defendants’ appeal on its merits because the evidence at trial differed substantially from the evidence at summary judgment. Supreme Court and circuit precedent specifically envision this type of successive appeal in eases involving qualified immunity. Second, the Riley II panel could not apply the doctrine of law of the case to foreclose this appeal because an intervening decision, McKinney v. Pate, eliminated the due process claims asserted by the plaintiff. Third, the Riley II panel could not create law of the case out of Riley I because the Riley I panel erred as a matter of law, and the application of law of the case to the defendants’ second appeal would work a manifest injustice. The rights allegedly infringed by the defendants in 1988 were first articulated by the jury at the trial of this ease, and only thereafter endorsed by the Riley II panel in 1996. For these reasons, I believe that Riley II erred in holding that the law of the ease doctrine foreclosed the defendants’ second appeal from the denial of qualified immunity.15
1.
“[Qualified immunity seeks to ensure that defendants reasonably can anticipate when their conduct may give rise to liability by attaching liability only if the contours of the right violated are sufficiently clear that a reasonable official would understand that what he is doing violates that right.” United States v. Lanier, - U.S. -, -, 117 S.Ct. 1219, 1227, 137 L.Ed.2d 432 (1997) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987) (citations and internal quotation marks omitted)). To assert qualified immunity from civil damages, defendants must show that their conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have known. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Accordingly, when defendants move for summary judgment based on qualified immunity, a district court must determine whether the operative facts, viewed in a light favorable to the plaintiff, demonstrate that the defendants violated a legal right that was clearly established at the time of their conduct. See Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 2816, 86 L.Ed.2d 411 (1985).
As litigation proceeds, the record grows and changes occur in the factual predicates for the legal determination of qualified immunity. We have therefore specifically held that defendants can raise the qualified immunity defense both before trial on a motion for summary judgment and then after trial on a motion for judgment as a matter of law. See Cottrell v. Caldwell, 85 F.3d 1480, 1487-88 (11th Cir.1996). On appeal, this court determines whether the operative facts- — as developed at each stage — indicate that the defendants violated a clearly established constitutional right. In short, defendants can raise the defense of qualified immunity at successive stages during litigation. See Behrens, 516 U.S. at -, 116 S.Ct. at 839; see also Johnson v. Fankell, — U.S. -, -, 117 S.Ct. 1800, 1803, 138 L.Ed.2d 108 (1997) (“[I]f [qualified immunity] is found applicable at any stage of the proceedings, it determines the outcome of the litigation by shielding the official from damages liability.” (emphasis added)).
The Riley II panel decided that the district court and the Riley I panel must have held that the operative facts, viewed in a light favorable to the plaintiff, raised the possibility of a violation of clearly established constitutional law. Even if the district court and the Riley I panel made this determination at summary judgment, however, our precedent requires that the Riley II panel reconsider *969the issue after trial. Our precedent requires this review because the record in this case changed between the time the district court considered the defendant’s motion for summary judgment and the entry of final judgment, which means that the factual predicate for the legal determination of qualified immunity changed as well.
The trial in this ease produced six volumes of testimony — some 1,384 pages of additional evidence — which the Riley I panel did not have before it. This trial testimony covered such issues as the existence vel non of an emergency which might have justified the defendants’ actions in taking custody over Rena. The parties disputed this issue throughout the litigation. Moreover, even if the subject matter of this additional testimony coincided with that of the testimony before the Riley I panel, it differed in its essential nature. Lawyers usually depose witnesses before trial for discovery purposes. For example, unlike a lawyer engaging in direct examination at trial, a lawyer representing the party whose witnesses are called to the deposition rarely questions those witnesses (except perhaps to correct a misstatement by the witness). Thus, at trial, witnesses rarely repeat their deposition testimony verbatim. In addition, they often testify about matters not fully explored in their pretrial depositions. Sometimes they even retract pretrial testimony, even in the face of extensive cross-examination regarding their prior inconsistent statement. In short, trial testimony is inherently different from pretrial testimony.
The law of the case doctrine does not bar reconsideration of an issue when a subsequent trial produces substantially different evidence. See United States v. Robinson, 690 F.2d 869, 872-73 (11th Cir.1982). We should be particularly mindful of this exception in cases involving the issue of qualified immunity, because our precedent affords defendants multiple opportunities to raise this particular matter on appeal. Therefore, I believe that Riley II should have addressed the denial of qualified immunity a second time.
Judge Kraviteh suggests in her separate Riley II opinion that the facts after trial must not have differed substantially from the operative facts at the summary judgment stage because the jury found for the plaintiff. See post at 981-82. If law of the case bars reconsideration of the qualified immunity defense whenever the plaintiff wins at trial, however, then courts of appeals would never need to reconsider the qualified immunity defense as directed by the Supreme Court in Behrens and our own court in Cottrell. We would only have occasion to reconsider the qualified immunity defense when the jury found for the defendants — meaning never. The question is not whether the jury believed the plaintiffs allegations. Rather, the question is whether the evidence at summary judgment, viewed by the court in a light favorable to the plaintiff, was different from the evidence presented at trial, viewed in a light favorable to the plaintiff. Substantial differences between the record on appeal in Riley I and the record on appeal in Riley II precluded the application of the law of the case doctrine.
2.
The law of the case doctrine does not apply where an intervening change in the controlling law dictates a different result. See Piambino v. Bailey, 757 F.2d 1112, 1120 (11th Cir.1985). According to Riley II, Riley I created law of the case when it implicitly found that the operative facts, viewed in a light favorable to the plaintiff, demonstrated that the defendants’ conduct violated clearly established constitutional rights. The Riley I panel issued its affirmance in 1993. The Riley II panel rendered its decision in 1996.
In 1994, however, between Riley I and Riley II, this court decided McKinney v. Pate, 20 F.3d 1550 (11th Cir.1994) (en banc), cert. denied, 513 U.S. 1110, 115 S.Ct. 898, 130 L.Ed.2d 783 (1995). McKinney held that “[a] violation of a substantive due process right ... is complete when it occurs---Because the right is ‘fundamental,’ no amount of process can justify its infringement.” Id. at 1556-57. As I discuss above, neither the plaintiffs alleged substantive due process right to visitation nor her alleged substantive due process right to the prevention of pregnancy and marriage can be char*970acterized as fundamental. At the least, McKinney precluded the use of the “shock the conscience” test to establish new fundamental rights in an action for damages. Similarly, McKinney eliminated the plaintiffs procedural due process claim because Georgia law afforded the plaintiff redress for her alleged procedural deprivation. See id. at 1558-59. Hence, regardless of what rights were clearly established in 1993, by 1994 the plaintiffs alleged due process rights no longer existed.
Judge Kravitch recognized that McKinney intervened between Riley I and Riley II, but she decided that McKinney could not be described as “a contrary decision of law applicable to this ease.” Post at 982 n. 4. She appears to have reached this conclusion for two reasons. She first noted that Bendiburg v. Dempsey, 909 F.2d 463 (11th Cir.1990), cert. denied, 500 U.S. 932, 111 S.Ct. 2053, 114 L.Ed.2d 459 (1991), held in 1990 that “ ‘[substantive due process prohibits the government from engaging in certain activities regardless of [the] procedure’ used to implement that activity.” Post at 982 n. 4 (quoting Bendiburg, 909 F.2d at 468). Because this court decided Bendiburg three years before Riley I, Judge Kravitch suggested that the Riley I panel was already aware of the limitations McKinney placed on the assertion of due process claims when it denied the defendants’ claim of qualified immunity. See post at 982 n. 4.
Second, Judge Kravitch cited Taylor By and Through Walker v. Ledbetter, 818 F.2d 791 (11th Cir.1987) (en banc). I do not fully understand why she cited this particular case. I believe that Judge Kravitch thought that Ledbetter gave rise to a substantive due process claim similar enough to the plaintiff’s claim to have given defendants Winkler and Camp notice that what they were doing violated the plaintiffs constitutional rights. See generally post at 982 n. 4 (paraphrasing Led-better as establishing “[a] substantive due process claim in [a] child’s liberty interest in safety in his environment and [a] procedural due process claim based on Georgians] statutory foster care scheme”). Based on her reading of Bendiburg and Ledbetter, Judge Kravitch apparently concluded that the Riley I panel took into account the reasoning of McKinney and decided that the plaintiff nevertheless had alleged the violation of clearly established constitutional rights.
There are problems with each aspect of this argument. First, unlike the Riley II panel, the Bendiburg court rejected the plaintiffs substantive due process claims. Right after the sentence quoted by Judge Kravitch in her opinion, the Bendiburg court wrote, “Since the government may intervene in the family relationship when following proper procedures upon appropriate facts, [the plaintiff] has no constitutional right which can survive procedural due process.” Id. at 468. The same reasoning bars Riley’s substantive due process claim for the defendants’ denial of visitation. Thus, even if the Riley I panel knew of Bendiburg — as it should have — it certainly did not follow it. See supra, note 11.
Second, Ledbetter did not give the plaintiff a clearly established substantive due process right to the prevention of her child’s pregnancy and marriage while in foster care. In Ledbetter, a child’s guardian brought suit on her behalf against the state when the child’s foster mother beat her into a coma. See Ledbetter, 818 F.2d at 792. The court held that a child involuntarily placed in a foster home may bring a section 1983 action for violations of her own due process rights if the child alleges that state officials in charge of the foster care program were deliberately indifferent to her welfare. See Ledbetter, 818 F.2d at 797. In the present case, by contrast, the mother of a child who voluntarily sought foster-care placement has brought a section 1983 action for the mother’s own supposed due process right to have the state prevent her child from secretly becoming pregnant and marrying without the mother’s consent. Regardless of whether the rights announced in Ledbetter were clearly established in 1988, the rights asserted by the plaintiff in this case were not.
Third, and most importantly, a prior panel of this court rejected the very type of argument made by Judge Kravitch. In Flint Elec. Membership Corp. v. Whitworth, 68 *971F.3d 1309 (11th Cir.1995) (per curiam), modified, 77 F.3d 1321 (1996), two private electricity providers brought suit under section 1983 against the Georgia Department of Corrections (the “DOC”) and a rival electricity provider. Id. at 1311. The plaintiffs alleged, inter alia, that the DOC violated their substantive and procedural due process rights when it awarded electrical services contracts to the rival provider in violation of a state law that required such contracts to go to the “lowest responsible bidder.” See id.
The district court initially dismissed the plaintiff’s claims on the ground that they failed to state a claim for relief, but a panel of this court reversed. See Pataula Elec. Membership Corp. v. Whitworth, 951 F.2d 1238, 1241-42 (11th Cir.). This first panel found that the plaintiffs had stated a cognizable due process claim. See id. at 1243-44. The first panel also found that the rights underlying the plaintiffs claims were clearly established at the time the DOC awarded the contracts in question; as such, the first panel found that the defendants were not entitled to qualified immunity. See id. at 1244.
On remand, the district court proceeded with discovery, at the completion of which the defendants moved for summary judgment based on qualified immunity. The district court denied their motion, and they appealed. A second panel of this court considered their claim in the Whitworth opinion cited above. After concluding that it had jurisdiction over the issue of qualified immunity, the Whitworth panel stated, “This court’s prior decision that the DOC defendants were not entitled to qualified immunity from § 1983 damages is binding here as law of the case unless ... controlling authority has been rendered which is contrary to the law of the previous decision.” Whitworth, 68 F.3d at 1312. The Whitworth panel, however, found that a controlling, intervening decision did contradict the prior panel’s holding — none other than McKinney v. Pate. See Whitworth, 68 F.3d at 1313.
According to Whitworth, McKinney eliminated the plaintiffs substantive and procedural due process claims. See id. The Whitworth panel found that McKinney had eliminated the Whitworth plaintiffs section 1983 substantive due process claims.16 See id. Similarly, the panel reasoned that, under McKinney, a plaintiff cannot suffer a deprivation of procedural due process “unless and until the State ... refuses to make available a means to remedy the deprivation.” Id. (quoting McKinney, 20 F.3d at 1563) (internal quotation marks omitted). Because Georgia state law provided a remedy for the procedural deprivation alleged by the plaintiffs, McKinney foreclosed their procedural due process claim.17 See id. at 1314. In short, the court concluded that the defendants were entitled to qualified immunity, notwithstanding the doctrine of law of the case, because McKinney undermined the rights asserted by the plaintiffs. See id.
I believe that McKinney itself provided controlling authority which contradicted Riley 7’s supposed denial of the defendants’ claim of qualified immunity. Regardless of the applicability of McKinney, however, the reasoning of Whitworth, a decision handed down before Riley II, bound the panel in this case. Both decisions point to the same conclusion: even assuming that the due process rights asserted by the plaintiff were clearly established when the Riley I panel affirmed in 1993, this court had eliminated those rights by 1996. Therefore, the law of the case doctrine does not control here.
3.
Even if the evidence at summary judgment was not substantially different from the evidence after trial and no intervening authority contradicted the holding of Riley I, I still believe that the Riley I panel clearly erred as a matter of law. The Riley I panel either affirmed an erroneous decision or heard an *972appeal over which it had no jurisdiction. The error of Riley I, if applied as law of the case to the present appeal, would cause a manifest injustice because the defendants would be held liable for $600,000 in money damages for the violation of rights that have never been clearly established. The law of the case doctrine cannot apply where “the appellate decision is clearly erroneous and, if implemented, would work a manifest injustice.” Piambino, 757 F.2d at 1120. Therefore, it should not apply here.
When this court cites 11th Circuit Rule 36-1 in an order, the court issues the order for one or more of the reasons stated in the rule. A Rule 36-1 affirmance is appropriate when an opinion would have no precedential value and
(a) the judgment of the district court is based on findings of fact that are not clearly erroneous;
(b) the evidence in support of a jury verdict is sufficient;
(e) the order of an administrative agency is supported by substantial evidence on the record as a whole;
(d) a summary judgment, directed verdict, or judgment on the pleadings is supported by the record; [or]
(e) the judgment has been entered without a reversible error of law.
11th Cir. R. 36-1.
Only subpart (e) of Rule 36-1 could possibly justify the Riley I panel’s citation of the rule. Subpart (a) did not apply to this case because the district court made no findings of fact; rather, it denied summary judgment on the ground that “genuine issues of material fact remain in the case.” Subpart (b) did not apply because there was no jury verdict at that stage of the litigation. Subpart (c) did not apply because this litigation involved no administrative orders. Finally, subpart (d) did not apply because the district court denied summary judgment. Therefore, by citing 11th Circuit Rule 36-1, the Riley I panel affirmed the district court’s denial of qualified immunity on the ground that “the judgment has been entered without a reversible error of law.”18
As noted above, “the judgment” in this particular appeal was the district court’s ruling that “genuine issues of material fact remain in the case.” The district court’s order could have one of two meanings, both of which would have rendered inappropriate the Riley I panel’s citation of Rule 36-1 (e). First, the district court could have denied summary judgment based on qualified immunity because the pleadings were too vague for the court to frame the legal question of qualified immunity.19 The district court could have “simply deferred final decision on the immunity question until the plaintiffs pleadings were sufficiently ‘developed’ for the court to identify the factual contentions and to assess the merits of the qualified immunity defense in light of the facts presented.” Bennett v. Parker, 898 F.2d 1530, 1537 (11th Cir.1990) (Tjoflat, J., concurring).
Under then-existing precedent, however, this court would have had no jurisdiction *973over an appeal from such a decision. See, e.g., Riley v. Wainwright, 810 F.2d 1006, 1007 (11th Cir.1987) (dismissing the defendants’ appeal because the district court denied qualified immunity solely on the ground that “the ease required substantial factual development before it could be determined with finality whether [the plaintiff] had been subjected to constitutional deprivation and, if so, whether some or all of the defendants were entitled to the benefit of qualified immunity”); see also Bennett, 898 F.2d at 1537 (explaining that the court of appeals has no jurisdiction over the denial of qualified immunity where “the plaintiffs pleadings were not sufficiently developed to permit the district court to identify, and then to assume as true, a particular set of facts”). If the district court denied the defendants’ motion for summary judgment on this ground, then Riley I erred by taking jurisdiction over the appeal.
Second, the district court could have denied summary judgment based on qualified immunity because it wrongly believed that the mere existence of factual issues precluded the issuance of summary judgment on this ground. As noted above, when defendants move for summary judgment based on qualified immunity, a district court must determine whether the operative facts, viewed in a light favorable to the plaintiff, demonstrate that the defendants violated a legal right that was clearly established at the time of their conduct. See Mitchell, 472 U.S. at 528, 105 S.Ct. at 2816. Provided that the pleadings are sufficiently clear, the existence of factual issues never prevents a district court from ruling on the legal issue of qualified immunity: the district court eliminates all factual issues by viewing the existing evidence in a light favorable to the plaintiff. See Bennett, 898 F.2d at 1535 n. 2. In this ease, the district court’s denial of qualified immunity based on the existence of factual issues cotild very well indicate that the district court erred in its approach to the issue of qualified immunity. If so, then Riley I erred in affirming the district court’s ruling under Rule 36-l(e).20
The error of Riley I would work a manifest injustice if Riley II applies that decision, as law of the case, to the current appeal. If defendants Winkler and Camp can show that their conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have known, then they are entitled to qualified immunity from civil damages. In other words, these defendants are immune from damages unless the law had “developed in such a concrete and factually defined context to make it obvious to all reasonable government actors, in the defendants’ place,” that what they were doing violated the plaintiffs constitutional rights. Lassiter v. Alabama A & M Univ. Bd. of Trustees, 28 F.3d 1146, 1149 (11th Cir.1994) (en banc).
Assuming arguendo that the new substantive due process rights announced by Riley II are supported in law — which they are not — the Riley II panel created these rights in 1996. No reasonable social worker could have known eight years earlier that the conduct engaged in by these defendants would violate the substantive component of the Due Process Clause, especially given the unique facts of this case. No reasonable social worker could have possibly imagined that a two-day delay in affording an alleged child-abuser a custody hearing, at which she was represented by counsel, would give rise to over half-a-milhon dollars in compensatory and punitive damages.21 Therefore, Riley II would work a manifest injustice by applying *974the erroneous Riley I decision to foreclose the defendants’ second appeal of the issue of qualified immunity.
In sum, the Riley II panel erred when it created two new rights under the substantive component of the Due Process Clause. It further erred in holding that the law of the ease foreclosed the defendants’ second appeal of the issue of qualified immunity. The Riley II panel should have considered the merits of the appellants’ defense. Instead, its decision simultaneously stakes out new frontiers of due process liability and curtails the defense of qualified immunity. Riley II will clearly cause all manner of government officials to “err on the side of caution” in the daily conduct of their duties. I need not dwell on the particular effect this decision will have on those who administer social services to victims of child abuse — an award of damages in excess of ten times the annual income of Winkler and Camp speaks for itself.
III.
The district court’s handling and resolution of this case was fraught with errors. These errors, moreover, were magnified and compounded by the errors of the panel in Riley II. The panel summarily approved of the unjustified expansion of substantive and procedural due process and misapplied the law of the ease doctrine, severely limiting the defense of qualified immunity.
Judge Birch suggests that the members of the jury were sending a message with their verdict, a message that “busybodies in government can go too far and in this case they crossed the line.” Post, at 990. Although that message may be fine, the method by which Riley II allowed the district court— and the jury — to send it decidedly is not. Riley II has said that a jury may determine the parameters of the Due Process Clause of the Fourteenth Amendment. This reduces the Due Process Clause to nothing more than a catch-all provision that creates a cause of action for any abuse of government power. This is not a principled rule; this is not a workable rule of law.
The Riley II panel’s opinion is now the law of the circuit. As such, it “clearly establishes” that social workers may be liable to parents and guardians for money damages under 42 U.S.C. § 1983 for their discretionary decisions regarding visitation rights, as well as for injuries inflicted by third parties on children in foster care. The practical effects of the panel’s decision will be far-reaching. Hundreds, if not thousands, of social services case workers within our circuit, and many thousands of abused and neglected children, will be palpably affected. Facing liability for any perceived error in judgment and with little expectation of qualified immunity, case workers may be expected to hesitate before taking children out of abusive situations. When they do remove a child from her guardian’s custody, they must then monitor the child in her new environment, so closely as to protect the child both from herself and from the evil intentions of third parties.
The Riley II opinion also will substantially limit interlocutory appeals of denials of qualified immunity by all officials accused of violations of the Constitution or federal law, not just those officials who provide child protective services. The purpose of qualified immunity is “to prevent public officials from being intimidated — by the threat of lawsuits which jeopardize the official and his family’s welfare personally — from doing their jobs.” Foy v. Holston, 94 F.3d 1528, 1534 (11th Cir.1996). Interlocutory appeals of denials of qualified immunity cut the costs of such suits and allow the judicial system to dispense with claims against officials entitled to immunity without the expense of a full trial. The Riley II panel’s rule powerfully discourages such appeals. Under the panel’s rule, a public official taking such an appeal runs the risk of forever being foreclosed on the issue by the law of the ease doctrine. Such an official may now be well-advised to suffer a trial before expending his one appeal. This result will not serve the purpose of qualified immunity, and the Constitution does not require this result.
Because the court today has refused to correct a clear violation of circuit and Supreme Court precedent, and because the *975court’s inaction may be expected to have grave effects on the well-being of children in distress and on the availability of qualified immunity in this circuit, I respectfully dissent.
APPENDIX
DO NOT PUBLISH
SANDRA D. RILEY, Plaintiff-Appellee, versus LARUE T. CAMP, LORI WINKLER, f/k/a Lori Webb, Defendant-Appellants.
No. 94-9118.
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
April 26, 1996.
Appeal from the United States District Court for the Northern District of Georgia.
Before KRAVITCH and BIRCH, Circuit Judges, and GOODWIN*, Senior Circuit Judge.
BIRCH, Circuit Judge:
This appeal concerns whether a parent can recover a substantial monetary jury award from social workers employed by a county department of family and children services, based on the removal of a minor child from the parent’s home, in violation of the parent’s substantive and procedural due process rights. The jury awarded the parent $600,-000. The district court denied the defendants’ motion for judgment as a matter of law and for a new trial. We AFFIRM.
I. BACKGROUND
On March 22, 1988, Regina Rena Lan-dress1 (“Rena”), then a fifteen-year-old ninth-grade student who lived with her mother, plaintiff-appellee Sandra D. Riley (“Riley”), who was her permanent legal custodian, was taken into protective custody by the Jasper County Department of Family and Children Services (“DFACS”), a county division of the Georgia Department of Human Resources. While there is some dispute concerning the events prior to March 22, 1988, certain facts are undisputed. In March of 1988, Rena was dating Billy Westbrook (“Billy”), then an eighteen-year-old high school senior and son of James Westbrook, a Jasper County Commissioner, and Louise West-brook, his wife. Concerned that Rena was seeing Billy too often and that the relationship might become too intimate, Riley had forbidden Rena from going on dates with Billy on school nights. On Tuesday, March 15, 1988, Rena and Billy disregarded Riley’s rule and went out on a date. When Rena returned home that night, Riley spanked her four to six times on her buttocks with a belt, in the presence of Riley’s husband and Rena’s stepfather, H. Curtis Riley.
Rena did not seem to be injured by the spanking, and did not cry when it was administered. She went to school the next day, lived at home, and attended school that entire week without incident. On Monday, March 21, 1988, defendant-appellant Lori Winkler (nee Webb), a DFACS Senior Caseworker, received an anonymous telephone call, informing her that Rena had been “beaten” and referring Winkler to Louise West-brook. Although Louise Westbrook had no firsthand knowledge of the incident, she related to Winkler what Billy and Rena had told her about the spanking. Winkler and another caseworker went to Jasper County High School thereafter, and interviewed Rena while she was in gym class. Rena told them about the spanking and allegedly showed them several bruises on her upper thighs.2 Rena later told Billy that the case*976workers had come to take photographs, although Winkler and her associate testified that no photographs were ever taken.3
While talking with Rena, Winkler told her about foster care, and explained that the Juvenile Complaint process required the caseworkers to talk with the parent in such a situation. Rena told them that she did not want to be placed in foster care, and that she was not sure how her mother would react to such a visit. Immediately after interviewing Rena, the caseworkers went to Riley’s home, but she was not there. They then called Rena and told her not to mention their visit to her mother, since they had not yet spoken with her. Later in the afternoon on March 21, Billy came into the Jasper County DFACS office and spoke with defendant-appellant Larue T. Camp, then the director of Jasper County DFACS, and Winkler. Billy told them that he wanted to talk to Rena before anything was done, and promised to bring her to the Jasper County DFACS office in the morning.
Rena spent the evening of March 21,1988, at home without incident. Billy and Rena went to the Jasper County DFACS office the next morning; Rena told Winkler that she wanted to go into foster care because she was unsure of how her mother would react to a visit by the Jasper County DFACS caseworkers.4 After discussing Rena’s request, Camp and Winkler decided to take her into foster care at that time, which was approximately 10:00 A.M. on March 22,1988; at this point, Camp and Winkler had not spoken with Riley, Rena’s stepfather, Rena’s sister, or any of Rena’s friends. Furthermore, Camp and Winkler did not have Rena examined by a physician for signs of abuse before taking her into protective custody. The caseworkers then allowed Rena to return to school with Billy on March 22. They also permitted her to stay at the home of her friend, Julie Lewis. Winkler admitted at trial that the Lewis home was not a state-approved foster home, nor was it a court-approved foster home. R7-385. On March 22, Winkler also visited Riley, who testified at trial that she specifically asked Winkler if she had an order, and Winkler said “no, but we can get one.”5 R6-132.
Two days after placing Rena in the care of the Lewises, a shelter care order was signed by Judge William Prior, dated March 24, 1988. Joint Ex. 7. Judge Prior also held a detention hearing on March 24, 1988, which was attended by Riley, her husband, and their attorney. Both the DFACS attorney and Winkler testified for DFACS. Based on their testimony, Judge Prior entered a formal detention order, dated March 24, 1988.
While in foster care, Rena spent most of her time with Billy. Billy testified at trial that Camp and Winkler encouraged him to spend time with Rena and told him that she needed to talk to someone whom she could trust. R8-642-643. Billy also testified that, while Rena was in foster care, they had sexual intercourse “pretty often,” including many times on his parents’ property. R8-646-647. After approximately two weeks of living with the Lewises, Rena requested that she be moved to the home of another friend, Susan Bell. Camp and Winkler approved of this request, although the Bell home was not a state-approved foster home, nor was it a court-approved foster care home.
While Rena was in foster care, Riley was permitted limited visitation with her daughter. On April 14, 1988, Winkler discontinued Riley’s visitation, upon Rena’s request, until after a hearing scheduled for April 26, 1988. Rena became pregnant in May or June of *9771988. Consequently, Rena was authorized under Georgia law to marry Billy without her mother’s permission. On June 11, 1988, Rena and Billy were married, while Rena was still in the protective custody of the Jasper County DFACS. Shortly thereafter, the Jasper County DFACS dismissed its petition for temporary custody of Rena.
Riley then filed this 42 U.S.C. § 1983 claim against Camp and Winkler, alleging violations of her substantive and procedural due process rights. The procedural due process claim alleged that Camp and Winkler took Rena into protective custody prior to affording Riley notice and a hearing, when there was no emergency situation. The substantive due process claim alleged that, by acting with gross negligence and deliberate indifference in supervising Rena in foster care, Camp and Winkler permitted Rena to become pregnant and to marry without her mother’s permission, thereby destroying the parent-child relationship. Riley also alleged a pendent state law claim for loss of custody and control of her daughter. After summary judgment was denied, and the denial of qualified immunity was affirmed without opinion by this court, Riley v. Camp, 990 F.2d 1268 (11th Cir.1993), the case proceeded to trial. The jury found that the Jasper County DFACS had not obtained a court order prior to taking Rena into protective custody and placing her in foster care, and also that Camp and Winkler violated Riley’s substantive due process rights. The jury awarded Riley $600,000, $500,000 of which was punitive damages. After the verdict, Camp and Winkler filed a motion for judgment as a matter of law, or, alternatively, moved for a new trial. Their motion was denied, and this appeal followed.
II. DISCUSSION
On appeal, Camp and Winkler argue that the district court erred in (1) not granting judgment as a matter of law to them on the substantive due process issue; (2) not granting judgment as a matter of law to them on the procedural due process issue; (3) failing to find that qualified immunity protects Camp and Winkler in this case; (4) not granting judgment as a matter of law or a new trial to Camp and Winkler because the evidence was insufficient to support the jury finding that there was no initial verbal order authorizing custody; (5) not granting judgment as a matter of law or a new trial to Camp and Winkler because the evidence was insufficient to find a violation of substantive due process; (6) not granting a new trial or remittitur because the evidence was insufficient to find elements necessary for punitive damages; and (7) not granting a new trial or remittitur because the verdict was excessive. Although these issues were briefed separately by the parties, many of them involve different aspects of the same motion, and therefore we discuss those related issues together.
A. Judgment as a Matter of Law
Camp and Winkler argue that the district court erred in fading to grant them judgment as a matter of law as to the issues of substantive due process, procedural due process, and whether or not there was an initial verbal order authorizing the Jasper County DFACS to take Rena into protective custody. Prior to the verdict, Camp and Winkler moved for judgment as a matter of law, pursuant to Federal Rule of Civil Procedure 50, at both the close of the plaintiffs evidence and at the close of all the evidence. The district court denied those motions. Camp and Winkler then filed a post-judgment Rule 50 motion, which the district court also denied.
‘We review rulings on motions for judgment as a matter of law by applying de novo the same legal standards used by the district court.” U.S. Anchor Mfg., Inc. v. Rule Indus., Inc., 7 F.3d 986, 993 (11th Cir.1993) (citing Miles v. Tennessee River Pulp & Paper Co., 862 F.2d 1525, 1528 (11th Cir. 1989)), cert. denied, 512 U.S. 1221, 114 S.Ct. 2710, 129 L.Ed.2d 837 (1994). Both the district court and the appellate court must consider all of the evidence, “but all reasonable inferences must be drawn in the nonmovant’s favor.” Id. “If the jury verdict is supported by substantial evidence — that is, enough evidence that reasonable minds could differ concerning material facts — the motion should be denied.” Id. Regarding the substantive due process issue, the jury found in its verdict on *978special interrogatories that Winkler unilaterally denied Riley the right to visit Rena, “even though her residual parental rights had not been terminated by a court of competent jurisdiction.” R3-69-3. In addition, the jury determined that Winkler acted with “gross negligence, deliberate indifference, or specific intent in doing so.” Id. The jury also concluded that both Camp and Winkler “by deliberate indifference, gross negligence, or intentional misconduct failed in their duty to supervise or care for Regina Rena Landress while she was in defendants’ custody, which resulted in the child becoming pregnant and marrying while in defendants’ care, thus permanently depriving plaintiff [Riley] of her liberty interest in the care, custody, control, society and services of her child.” Id. Because all of these findings of the jury are supported by substantial evidence, the Rule 50 motion properly was denied by the district court as to the substantive due process issue.
Concerning the procedural due process issue, the jury found in its special interrogatories that Camp and Winkler “had not obtained approval by a judge before taking Regina Rena Landress into custody,” and that, at the time that Rena was taken into custody, no emergency situation existed which threatened Rena’s health or welfare. R3-69-1-2. The jury also found that prede-privation notice and a hearing for Riley were feasible before the Jasper County DFACS took Rena into protective custody. R3-69-2. It is evident that these findings are supported by substantial evidence. Therefore the district court properly refused to grant judgment as a matter of law on the procedural due process issue.
Camp and Winkler also contend that the district court erred in failing to grant them judgment as a matter of law because the evidence was insufficient to support the jury’s finding that there was no initial verbal order authorizing custody. The evidence as to the existence of a verbal shelter care order on the morning of March 22, 1988, is less than clear. Even the Jasper County DFACS’s own documents reflect that the order was not received until later that afternoon. Joint Ex. 14. In reviewing the record on appeal, particularly the trial transcript, it is clear that there is enough evidence on this issue that reasonable minds could differ concerning this material fact; consequently, judgment as a matter of law properly was denied by the district court on this issue.
B. New Trial
Camp and Winkler argue that, even if they are not entitled to judgment as a matter of law, they are entitled to a new trial because the evidence was insufficient to support the jury’s finding that there was no initial verbal order authorizing custody, and the evidence was insufficient to find a violation of Riley’s substantive due process rights. The district court denied Camp and Winkler’s motion for a new trial. We review denial of a motion for a new trial under the abuse of discretion standard. Redd v. City of Phenix City, 934 F.2d 1211, 1214 (11th Cir.1991). “However, ‘to assure that the judge does not simply substitute his judgment for that of the jury, ... we have noted that new trials should not be granted on evidentiary grounds unless, at a minimum, the verdict is against the great, not merely the greater weight of the evidence.’ ” Id. (quoting Hewitt v. B.F. Goodrich Co., 732 F.2d 1554, 1556 (11th Cir.1984) (quoting Conway v. Chemical Leaman Tank Lines, Inc., 610 F.2d 360, 363 (5th Cir.1980) (per curiam))).
The evidence that Camp and Winkler argue is insufficient is set forth above in addressing their appeal of the district court’s denial of their motion for judgment as a matter of law, and we need not restate it. Reviewing the district court’s denial of the new trial motion under an abuse of discretion standard, it is evident that the court below did not abuse its discretion, for the verdict is not against the great weight of the evidence. Accordingly, we affirm the district court’s denial of Camp and Winkler’s motion for a new trial.
C. Qualified Immunity
Camp and Winkler argue that the district court erred in failing to find that qualified immunity protects them in this case. Riley argues that the doctrine of the law of the case prohibits us from reconsidering the is*979sue of qualified immunity, since a prior panel of this court already ruled on the issue. After Riley filed her complaint, Camp and Winkler moved for summary judgment on several grounds, including qualified immunity. The district court denied the motion, and Camp and Winkler appealed to this court. We affirmed the district court’s denial of summary judgment without opinion. Camp and Winkler now argue that the district court did not initially resolve the qualified immunity issue, and thus our prior affir-mance does not prohibit us from deciding the qualified immunity issue.
While Camp and Winkler are encouraged that the district court, in denying their summary judgment motion, never used the term “qualified immunity,” and only ruled that there were genuine issues of material fact that remained, thereby making summary judgment inappropriate, they ignore the obvious jurisdictional basis for the former appeal. If the district court did not rule on the qualified immunity issue in its order denying summary judgment, then that interlocutory denial of summary judgment would not have been appealable to us at that time. “The denial of a motion for summary judgment generally is not a final judgment for the purposes of appellate jurisdiction. However, an exception exists where the summary judgment motion is based on a claim of qualified immunity ‘to the extent that [the denial] turns on an issue of law....’ ”6 Swint v. City of Wadley, 51 F.3d 988, 1002 (11th Cir.1995) (quoting Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985)).
In their initial appeal to the denial of summary judgment, Camp and Winkler cited Mitchell in the jurisdictional statement in their brief, noting that this court had jurisdiction because the defendants [Camp and Winkler], whose summary judgment motion was denied, asserted qualified immunity. Because we had jurisdiction then to hear their initial appeal, based on denial of summary judgment on the ground of qualified immunity, Camp and Winkler cannot now argue that the district court did not rule on the qualified immunity issue in denying their summary judgment motion. “Under the law of the case doctrine, both the district court and the court of appeals generally are bound by findings of fact and conclusions of law made by the court of appeals in a prior appeal of the same case.” United States v. Robinson, 690 F.2d 869, 872 (11th Cir.1982) (citations omitted). Therefore, the law of the case doctrine bars our reconsideration of the qualified immunity issue.
D. Remittitur and Excessiveness of the Verdict
Camp and Winkler finally contend that the district court erred in not granting a new trial or remittitur because the verdict was excessive, and also because there was insufficient evidence to support a punitive damage award. In evaluating whether a verdict is excessive, we must determine whether the verdict is so excessive as to “shock the judicial conscience.” Woods v. Burlington Northern R.R. Co., 768 F.2d 1287, 1292 (11th Cir.1985) (per curiam) (citing Jackson v. Magnolia Brokerage Go., 742 F.2d 1305, 1306-07 (11th Cir.1984)), rev’d on other grounds, 480 U.S. 1, 107 S.Ct. 967, 94 L.Ed.2d 1 (1987). In this case, there was *980sufficient evidence to warrant the jury’s award, even though the amount was substantial. “A surprisingly large verdict; however, is not sufficient justification for an appellate court’s substitution of its evaluation of plaintiffs’ damages for that of the jury.” Id. Thus, we conclude that the district court did not abuse its discretion in failing to grant a new trial or remittitur on the ground that the verdict was excessive.
Regarding the punitive damages, it is well established that generally “before an award of punitive damages is authorized in a civil rights action the jury must find, and the evidence must support its decision, that the defendant was motivated by an evil motive or intent, or there must be reckless or callous indifference to federally protected rights.” Anderson v. City of Atlanta, 778 F.2d 678, 688 (11th Cir.1985) (citing Smith v. Wade, 461 U.S. 30, 103 S.Ct. 1626, 75 L.Ed.2d 632 (1983)). In this case, the jury made such a finding in its special interrogatories, noting that Camp and Winkler acted with “gross negligence, deliberate indifference, or specific intent,” and that this behavior “shocks the conscience or offends the standards of decency and fairness which express the notions of justice of English speaking peoples.” R3-69-3-4. In addition, the evidence offered by the plaintiff arguably supports an award of punitive damages. We review the district court’s determination as to the punitive damages issue for an abuse of discretion. American Employers Ins. Co. v. Southern Seeding Servs., Inc., 931 F.2d 1453, 1458 (11th Cir.1991) (quoting Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 109 S.Ct. 2909, 106 L.Ed.2d 219 (1989)). Under this standard, it is clear that the district court did not abuse its discretion is refusing to grant a new trial or remittitur on the ground that the evidence was insufficient to support the punitive damages award.
III. CONCLUSION
In this civil rights action, Riley alleged that Camp and Winkler of the Jasper County DFACS violated her substantive and procedural due process rights when they took her daughter into custody and placed her in foster care, where she became pregnant, married, and emancipated. The jury awarded Riley $600,000, and the district court denied Camp and Winkler’s motion for judgment as a matter of law or new trial. For the reasons discussed herein, we AFFIRM.
. The parties disputed whether Winkler obtained judicial authorization to take Rena into custody before an unidentified DFACS worker picked her up from school. The juiy found that Winkler did not, so I assume, for purposes of discussion, that the plaintiff did not receive a hearing before DFACS took custody of Rena.
. Judge Birch's recitation of the foregoing facts makes much of the possibility that Winkler and Camp might have removed Rena from the Riley home for improper purposes, perhaps at West-brook’s urging. That the officials might have acted in had faith is, however, irrelevant to the qualified immunity inquiry. See Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (expressly discarding subjective component of test for qualified immunity); Foy v. Holston, 94 F.3d 1528, 1536 (11th Cir.1996) ("[G]iven the circumstances and the state of the law, a reasonable child custody worker could have considered Defendants' conduct arguably proper even if Defendants were motivated in substantial part by unlawful motives.”). I also fail to see how the officials' bad faith alone could confer substantive due process rights upon Riley.
. This rule provides as follows:
When the court determines that any of the following circumstances exist:
(a) the judgment of the district court is based on findings of fact that are not clearly erroneous;
(b) the evidence in support of a jury verdict is sufficient;
(c) the order of an administrative agency is supported by substantial evidence on the record as a whole;
(d) a summary judgment, directed verdict, or judgment on the pleadings is supported by the record;
(e) the judgment has been entered without a reversible error of law;
and an opinion would have no precedential value, the judgment or order may be affirmed or enforced without opinion.
11th Cir. R. 36-1.
. I refer to the current appeal hereinafter as Riley II.
. The panel decided not to publish its opinion. See generally 11th Cir. R. 36-2 (“An opinion shall be unpublished unless a majority of the panel decides to publish it.”); 11th Cir. I.O.P. 36-5 ("Opinions that the panel believes to have no precedential value are not published.”). Nevertheless, I append a copy of the panel’s unpublished opinion for three reasons. First, the panel’s opinion is not secret: copies of the opinion are already available to the public at the Office of the Clerk of the Court of Appeals for the Eleventh Circuit in Atlanta, Georgia. In fact, I would imagine that the Georgia Attorney General, who wrote the briefs for the defendants in this case, has already informed the state agencies that deal with the juvenile justice system about this case. The plaintiffs’ bar cannot be far behind. Second, it is difficult to write a persuasive dissent when the reader cannot see the subject of the dissent. Third, and most importantly, unpublished opinions are “persuasive authority” in this circuit. See 11th Cir. R. 36-2. From the litigant's perspective, the only difference between a published opinion and an unpublished opinion is that a subsequent panel can overrule an unpublished opinion.
.The Riley II panel framed the plaintiff’s procedural due process claim as follows:
[T]he jury found in its special interrogatories that Camp and Winkler “had not obtained approval by a judge before taking ... Rena ... into custody,” and that, at the time that Rena was taken into custody, no emergency situation existed which threatened Rena’s health or welfare. The jury also found that deprivation notice and a hearing for Riley were feasible before ... DFACS took Rena into protective custody.
Post at 978 (citation omitted). The panel found that these jury findings stated a claim for a denial of procedural due process.
. Judge Kravitch dissented from the portion of the Riley II opinion that affirmed the damages award. She did not believe that the evidence supported a finding of reckless indifference or "evil motive” sufficient to justify the award of $500,000 in punitive damages. See post at 983.
. It is fundamental that questions of law are not to be decided by juries.
. The Fourth Amendment was made enforceable against the states in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), and the Fifth Amendment right to protection from compelled self-incrimination was made enforceable against the states in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964).
. Although the term “shock the conscience” continues to appear in Supreme Court cases— almost invariably in the Court’s recitation of the plaintiff’s claim — it has not been used by that Court to create any new substantive rights. See, e.g., Collins, 503 U.S. at 128, 112 S.Ct. at 1070 (holding that city’s failure to train or warn its employees about work hazards was not “conscience shocking, in a constitutional sense"). In fact, now that many of the protections of the Bill of Rights have been incorporated into Fourteenth Amendment jurisprudence, the Court has limited the use of the nebulous standards of substantive due process, steering constitutional claims to more specific amendments. See, e.g., Graham v. Connor, 490 U.S. 386, 393-95, 109 S.Ct. 1865, 1870-71, 104 L.Ed.2d 443 (1989) (holding that damages claim for injuries sustained when officers used physical force during a stop should be analyzed under Fourth Amendment rather than substantive due process); Whitley v. Albers, 475 U.S. 312, 327 106 S.Ct. 1078, 1088, 89 L.Ed.2d 251 (1986) (holding that substantive due process provides no greater protection to prisoner shot *965during a prison riot than does the Eighth Amendment).
. If she had alleged that she was denied her fundamental right to custody and control of her child, then the panel’s holding would have squarely conflicted with this court’s holding in Bendiburg, 909 F.2d at 468 ("Since the government may intervene in the family relationship when following proper procedures upon appropriate facts, Bendiburg has no constitutional right which can survive procedural due process.”). The panel did not distinguish Bendiburg in its decision. In fact, it did not even cite the case. Even assuming that there was a substantive due process right to visitation, Bendiburg would pose a serious, if not insurmountable, obstacle to the plaintiff’s first substantive due process claim.
. Clearly it would be within the state’s police power to deny visitation prior to the termination of custody if it were necessary to protect the health and well-being of the child.
. Again, I note that the Riley II panel’s holding on this point relied upon the jury’s conclusion that such rights exist.
. I draw a similar conclusion about the plaintiffs alleged procedural due process right, which I discuss supra, note 6. Whether the circumstances in this case required notice and a prede-privation hearing was, and is, a close question. Hindsight may have revealed to the jury the practicality of predeprivation notice and an adjudicatory hearing. However, "a court may not find that the right was established through the use of hindsight.” Frazier v. Bailey, 957 F.2d 920, 929 (1st Cir.1992) (citations omitted). I believe that, viewing the evidence in the light most favorable to the plaintiff, as of March 22, 1988, the law had not clearly established that the plaintiff was entitled to notice and a predeprivation hearing in this particular case.
. Riley II not only conflicts with our precedent; it also conflicts with itself. If the law of the case doctrine barred reconsideration of the defendants' claim of qualified immunity, as Riley II held, then the Riley II panel did not need to bother defining the due process rights described above in part II.A. Because qualified immunity was denied, the rights violated under the plaintiff's scenario must have been clearly established; thus the law of the case doctrine would preclude reconsideration of those issues as well. It is ironic that the Riley II panel struggled in vain to articulate the precise contours of the plaintiff's nonexistent substantive due process rights while devoting no attention whatsoever to the defendants' meritorious assertion of qualified immunity-
. Although the substantive due process claim alleged in Whitworth differs from those asserted by the plaintiff here, the same analysis applies. McKinney eliminates both.
. This holding confirms my view of the procedural due process claim discussed in notes 6 and 14, supra.
. Rule 36-1 was clearly designed to dispose of cases resolved by a final judgment. For example, subparts (a), (d), and (e) use the word "judgment.” The denial of qualified immunity does not create a final judgment, so it is questionable whether the Riley I panel should have applied Rule 36-1 at all. I assume for the sake of discussion that subpart (e) applies in this case. See generally Mitchell, 472 U.S. at 530, 105 S.Ct. at 2817 ("[A] district 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 notwithstanding the absence of a final judgment.").
. The district court might well have wondered exactly what the plaintiff was alleging. For example, the plaintiff characterized her substantive due process claim as follows:
The acts and omissions of the Defendants Camp and Winkler were governmental conduct that "shocks the conscience,” and were actions which offend the "canons of decency and fairness which express the notions of justice of English speaking peoples,” and were actions taken for the purposes of oppression in contravention of the rights guaranteed to Plaintiff by the substantive protections of the due process clause of the Fifth and Fourteenth Amendments....
The Fifth Amendment obviously does not apply here — the acts complained of were committed by state rather than federal officials.
. The Riley I panel could not have affirmed on the ground suggested by Riley II — that is, the operative facts, viewed in a light favorable to the plaintiff, demonstrated a violation of clearly established constitutional law — because the district court did not state this legal conclusion in its opinion. If Riley I could affirm under Rule 36-1(e) on a ground that was not stated in the district court’s opinion, then Rule 36-l(e) stands for the proposition that we need never write affirming opinions that do not have precedential value — even if the district court got everything wrong but the result! I believe that fairness to the litigants before us cautions against such an approach.
. As discussed supra, the plaintiff received all the process that she was due — and all the process which she actually requested at the time. Thus, to the extent that the judgment depends on the plaintiff's procedural due process claim, the plaintiff has received $600,000 for the two-day delay between taking Rena into custody on March 22 and the hearing on March 24.
Honorable Alfred T. Goodwin, Senior U.S. Circuit Judge for the Ninth Circuit, sitting by designation.
. Although her name is now Regina Landress Westbrook, we refer to Mrs. Westbrook by her maiden name because all of the events in this case occurred prior to her marriage to Billy Westbrook.
. There is substantial dispute as to whether Winkler and Williams observed any bruises on Rena. It is not clear that such bruises existed at that time.
. This fact is important because both caseworkers testified at trial that, in most cases, photographs were taken of the alleged physical abuse. R9-899; R7-494.
. Rena testified at trial that Billy wanted her to be placed in foster care, and that she wanted to please him. R9-867.
. The caseworkers claim that the DFACS attorney, Special Assistant Attorney General Phillip Spivey, told them that they had a verbal order authorizing them to take Rena into protective custody. The judge from whom it was allegedly obtained has no recollection of giving such an order, and the official "Juvenile Complaint Form,” which was completed by Winkler, indicates that such an order was received at 3:00 P.M. on March 22, five hours after Rena was taken into protective custody. Joint Ex. 14.
. In denying summary judgment, the district court simply stated that "genuine issues of material fact remain in the case and that therefore summary judgment is inappropriate.” R2-56-2. Implicit in its statement was the district court’s determination that the law was "clearly established,” but that the conduct alleged to have been violative of such law was subject to dispute, or genuine issues of material fact were present. Therefore, the district court concluded that qualified immunity was inappropriate. We note for edification that the Supreme Court has recently narrowed the issues that are reviewable under Mitchell. Johnson v. Jones, 515 U.S. 304, 312-14, 115 S.Ct. 2151, 2156, 132 L.Ed.2d 238 (1995). "Where ... a district court finds that there exists a genuine issue of material fact regarding the conduct claimed to violate clearly established law, there is no 'final decision' and no interlocutory appellate jurisdiction under Mitchell to review the denial.” Babb v. Lake City Community College, 66 F.3d 270, 272 (11th Cir.1995)(per curiam) (citing Johnson at 312-14, 115 S.Ct. at 2156). Thus, today if we were faced with the appeal that we heard in this case in 1993, we would dismiss for lack of jurisdiction, based on the Supreme Court's recent pronouncement.