the morning your honour's may please the court my name is andre clarke on behalf of the petitioner mrs nations sampson of like the reserve three minutes for rebuttal yawners the issue before the court today is as follows whether the district court erred and dismissing mrs sampson's constitutional claims under the st and th amendment to the united states constitutional qualified immunity grounds where government social worker  out a government social worker sexually harassed her and retaliated against her when she complained about him and then engaged in judicial deception in violation of the equal protection clause of the st amendment as well as t process clause of the united states constitution because this case deals with retaliation i would like to discuss the constitutional violations in chronological order well actually it would be more helpful to me let's assume there w lesions the district judge didn't reach that with the district judge said was at least was it back to the st in forty amendment claims i'm forced by the supreme court to do this qualified immunity analysis so even if i assume there were constitutional violations but i've got to find a case somewhere that would have told the defendants that their conduct violated the constitution and i've got to find a relatively specific case i can't just find a general principle so tell me what cases specific cases demonstrate the constitutional violation and i'm thinking about cases that were in existence at the time of the tells us we must do it is that case specific enough yes your honor in that case the court did not look at the context to look at the conduct of a government actor sexually arousing a private individual the question a private individual was a government employee was it was a government employee you know and so she wasn't a private individual she was an employee of the government yes your honor in that case the court looked at various applications of equal protection with respect to purpose purposeful discrimination by state actors be it in the workplace or elsewhere directed at individual soley because of the individual's membership in a protected class in quote why isn't that the again silly exercise why isn't that the general principle and doesn't the supreme court require us to find a case closer on to facts before we can find it that it reasonable officer would have known about this no your honor with respect to qualified immunity this is the supreme court held an ass crawford's is all a kid that the law does not require a case directly on point but the existence of a president must be placed the constitutional question beyond debate has acknowledged equality bottom unity may be night made to be denied and novel circumstances the constitutional question of whether a government actor can discriminate against someone based on a protected class is beyond debate so just because we don't have a case on point with respect to a social worker sexually harassing a private individual that does not mean that mrs sampson's claims are not well established that there are a lot of similarities between relationship in this case and an employer employee relationship they meet on a regular basis they talk on a regular basis they're working toward presumably the same goal that is the welfare of the child case in order to get custody of her niece mrs stanton had to deal with this government social worker she had she was afraid of complaining about the sexual harassment until she actually got legal guardianship of her n so in that way with the government social worker having so much control over her activities is just like a government employer i think this i'm going to i think we're all concerned about the same issue here because i was unable to find any prior decision of this circuit or any of our sister circuits for that matter explicitly holding that social workers are liable for sexual harassment under the equal protection clause and so trying to figure out what's the best way to show that this law was clearly established and it would you know would be enough here and so years you're at sounds like you're saying well we can look to the cases involving workplace school prison or law enforcement context to draw enough similarity to satisfy that concern well yes your honor when you look at the authority of social workers a similar to law enforcement they have the authority to get warrants they have the authority to remove our or get warrants to conduct illegal seizures which is what happened in this case so it can be compared to law enforcement activity in that sense however the equal protection claim i take it the class the protected class is women yes based on sex you're based on gender  so on the other quale on the st amendment claim what's your best case your honor i reviewed the case called cap versus the japanese after that's my pursue my that's my problem with cap i think cap is probably correct it's only correct for our purposes but it's no one could have known of cap at the time of the activity so tell us what case at the time of the activity was is your best case will the activity  engaging in a protected speech and whether there was retaliatory atomised and i think i think you've got enough evidence here to establish that constitutional violation i'm still struggling with the notion of where's the where's the case that would have told a reasonable social worker in this circumstance what for example in cap even though that decision just came out last month they hope that it was well established in august of two thousand and fifteen when these actions actually took place it wasn't an end in two thousand and fifteen with respect to ms and they said sampson they held that it was well established that government cannot retaliate against people who speak out against the government so even know the decision out of this circuit  just came out last month that decision does recognize that that that type of conduct violates the constitution and i was well established law way back in two thousand and fifteen when this happened we got a factual record question that maybe you can help me with can you run through what happened with respect to there was a warrant the war was either set aside or not enforced by a juvenile court judge then reinstated by an appell truth or not can you just run through the procedure yes your honor after mrs sanson had obtained legal guardianship of heard nice she began to complain about the sexual or rather no i know that i'm trying to get to the actual sensor went to a family event and the father was present at the event at that time she was under the understanding per the social worker that the father enjoyed unmonitored visits it was at that event that back from vegas and it was executed they went to her house and seized the child and then dead and dead what happened ok after a minor a c is similar to a planetary hearing a criminal case you must have a detention hearing that a detention hearing within so many hours and the juvenile court found against the government social worker found that there was serious in accuracies with the information used to get the warrant ok then and then the the state goes up to a when i was having trouble if the juvenile court judge didn't enforce the warrant what what how why was the appellate court setting it aside well once you fall in appeal it puts an automatic stay on the juvenile court order so in effect the client i guess with respect to the government social worker game told her that the father enjoyed unmonitored visits but when he submitted the allegations he made a thing that she did not enjoy unmonitored visits they also made it seem like she went to vegas to try the social the social worker sorry your honor the social worker made it appear like she went to vegas to avoid the warrant execution when she had a pre planned trip in vegas was here to eventually finding at the end of this proceeding by the juvenile judge that i assume you must have been that your your client remained an appropriate guardian yes he she maintains legal guardianship to this day i understand it was a warrant to take the child away and you told us what happened with the word but was there an actual proceeding it which the truth of the allegations was adjudicated yes john with respect to the a pill the pill it court which found against the social worker that whole issue was even how a court held that that the trial judge didn't abuse his or her discretion in not enforcing based on abuse and neglect and by finding against the warning that since it was a finding that there was no abuse and neglect that's helpful thank you your honor i would like to reserve your time but can i ask one question is your place thank you under california law tell me what difference if any there is between the custodial guardianship in this case and a permanent adoption is there a difference under california law not really on or under the welfare and institutions code in order to remove a child it's the same standard for a legal guardian as there is for parent or for a permanent adoption and in this case we have a th amendment violation with respect to caesar of the child i would like to make a brief due process argument in a case called constance in two thousand and nine disc court held that one as deliberate fabrication that causes the deprivation of the liberty interest there  you're freestanding due process claim depends i think on the deprivation of liberty interest so we're trying to figure out whether california law gives you a liberty interest in gives your client a liberty interest in her in the guardianship and i liberty interest it's being deprived by the absence of due process before we can find a cause of action yes and i submit that she does have it at liberty interest and the custody the legal custody of the child she had a legitimate entitle me to the custody of her child because this government social worker in order to carry out his misconduct he had to get a warrant i didn't have authority just to take the job i guess i need to clarify are you appealing the due process claim because  i read your briefs and i didn't see any arguments pertain to your client's procedural due process substantive due process or the mill claims and i think also you state in your reply brief that your opponent's discussion of procedural substantive process runs far afield of the issues that you know actually she your client actually argues on appeal before the honorable court so  understanding that you're not appealing that in my correct no your honor i did not write debris i was put in on this case at the debrief was already submitted but because opposing counsel raised the issue of due process i think are also important and relevant to the equal protection claim made by appellant in the cap case appellant and his children were not parties to an act of dependency proceeding at the time of the activities that involve social workers in this case not here sampson was given custody of the minor h s in the midst of dependency proceedings that were active h s was removed from her parents for abuse and a matter so if i'm turning under st amendment claim the argument is you retaliated against me you did things that would chill an ordinary person from speaking  because i spoke and does it really matter the different context in which the the retaliation occurred i do think so your honor and that's because when a child is still a party to dependency proceedings they're still a ward of the department of child and family services and the dependency court so st and foremost the department and the court is tasked with the safety and supervision of the child and  the right to remove the child is completely different than it would be if the child was in jail i understand that how that argument works with respect to liberty interest but my question is this let's assume where it exist exactly these facts purposes of my question that the social worker is engaging in all the conduct it's alleged here and he says oh i know what i'll do to retaliate against her for not for speaking out about me and telling my boss i'm a bad person to whether his conduct which would be in this case just as the facts are alleged whether his reporting of abuse or neglect which kind of sets off this course of events where a warrant is ultimately obtained whether that is the as stated in the the but for cause for the chilling of free speech and that's what it's about it doesn't matter that they can take the child away the question is whether or not a reasonable person under these circumstances would be chilled from speaking  future cases if they realized that that people would bring false charges against well and what was analyzed in the cap case as far as the but for causes of  however in this case there is an obvious explanation for the conduct that's implied which is judge in this case didn't say i find there was no constitutional violation correct correct so you're asking us to decide a case the case on the basis different than the those with you does it matter there's a matter that matter and then in the cap case there's a reference in the cap case that says this was clearly established and so try to figure out why wouldn't the cap case control exactly into bats why i am grappling with the factors that the cap case and look into as far as how it is a plausible to our case so your point is that even if what ever the cap case says was clearly established in two thousand fifteen the facts are sufficiently different that a reasonable social worker wouldn't have known that his craft but it seems like i'm trying to figure out what the differences really are here and here you know a biological aunt who's seeking legal custody of her of her or her niece i mean what is the meaningful difference between that and a parrot i mean she's guardian or you know the guard i think it's completely different in that the cap case concerned a parent and child who were living independent of any government interference and came across this investigation that led conduct are in the scope of the dependency proceedings so we're already we're already there so you're recap is saying everybody should have known in two thousand and fifteen that you can't interfere with the relationship of a parent in a child i think  that that didn't tell your client that he couldn't interfere that he couldn't retaliate in the context of this pursuit well i think that cap certainly reads it reads that the facts specific to cap would indicate don't know that a government official would have seen my problem with this and i'm not sure it's your fault but do you really contending that a government official wouldn't have known in two thousand and fifteen that it was unconstitutional to lie in a pending in a pending proceeding that's not what my contention is i think that's one of their arguments their argument is that that you retaliated against me by lying in the in the removal proceedings why wouldn't a government official have known that my my contention is that those facts do not do not give rise to a st amendment afterward not at a stage here where the facts have actually been found but assuming the facts the light most favorable to them why wouldn't your client be aware that it was unconstitutional to lie and in a court proceeding of course in certain context it would be unconstitutional to present false information to the court and not is something that was addressed specifically and appellants due process claims for subsidy of due process procedural due process which i don't know what you know that's not at issue right and so that's the problem i'm having with it it's not something that in the context of a st amendment violation would be contemplated and really if we're going to analyze the facts and whether they claim of st amendment retaliation has been shown pursuant to the analysis and cap i think that there are significant problems with plaintiff's facts as pled one being that the warrant itself the application for it the judicial proceedings where the alleged false information was presented have nothing to do with the individual defendants named by appellant the individual defendants named by appellant were social workers who were active in providing social welfare services and there is an entirely other social worker worker who's the social worker who investigated that but that's another issue the district court didn't rule right so this is just of course i don't have to get to any of this because there's qualified immunity sure if there's not qualified immunity the district court can sort that stuff out so that's where we're that's why i'm focused at least on the qualified immunity question i asked her go ahead and i ask you a little different question is it your position that the defendant and i can't pronounce his name well i'm sure there was a defendant oh right the jury social worker here is your position that he was in notice at that time that subjecting a legal guardian to unwanted sexual advances in exchange for whatever  that was unlawful you're not taking that position or you know your honor i'm not taking that position however i don't think that the two claims that are at issue here which is the st amendment retaliation or the equal protection clause are really something that would address that issue i think that that issue is better served by many of the state law claims that plaintiffs actually are opponent actually referenced in his brief and those on an issue here so the th amendment claim that your friend describes goes like well i think if the court is addressed there is really a complete lack of any case law establishing such a fact but i say is that because it's obvious well i think that it's obvious in a in a different context in terms of a violation of civil let me change the facts for you a little bit let's assume she goes to apply for legal guardianship and the social worker says i will oppose that unless you have sex with would that be an and i agree she's not entitle you to google but if the government discriminates against someone in the provision of services because they're a woman why doesn't that give the wasn't just clearly an well i think that the key issue is that the services aren't being provided to appellant the services are being provided to the minor minors on the part here that dependency court is about serving a minor and their biological or you know custodial parents who are in the midst of dependency proceedings and determining what's in the best interest of the child so the services that were being provided to to miss sampson throughout these dependency proceedings were not from a she has no remedy that's absolutely not what i'm saying i want you want to understand you know i you're wanting us to focus on the fact that the services provided to the dependent here and saw and so i understand that but i'm trying to figure out how that makes a but i think as plaintiff appellant appropriately referenced in her brief there are state law claims and other remedies she could have sought to address this issue such as such as a tort claim for harassment  tort claim for negligence there are lots of claims that could have been proceeded on that or not and because their purse proceeding here in federal court under civil rights you think that's  qualified to this is has there been a constitutional violation and the district court as i assume there was what you're saying too is we shouldn't assume there was we should go back independently and find that there wasn't because the only things that were taken away that by the by your client's actions are legit actions were benefits to the kid right well i'm only raising the issue of analyzing whether it was properly planned because that was something that was going well one problem of the district court is very specific the district court says i soon as it comes to show violation but i'm not going to go through the nd step of this analysis and find a case that's close enough so that i can say your clients were on reasonable notice and that's you know so tell me why tell me why again a case that basically says you can't discriminate in the provision of services the government can't discriminate on the basis of gender and discrimination against somebody in the workplace on the basis of genders is violated why isn't that enough to put your your client on notice well i think there are significant marked differences between the relationship of an employer and employee and a social welfare agency and a foster placement and there is significant case law in the th circuit that addresses that specific issue and establishes that there is not an employment relationship between an agency and a foster care placement do you view this case of legal dependency different from foster care no i believe it is the same as foster care although there so it looks like from the point pleading that this was in the process of closing out the case where she would not be monitored anymore however it had not closed at that point in time where these events happened with that make a difference do you see here yes that would make a significant difference if the court if the dependency agency was no longer in this family's life and answer that itself in this way yes so i guess i used saying there's a difference between you know these two scenarios but if we frame it just a little bit differently and because i'm wondering if that's still true because the person seeking legal guardianship age as here sampson was requesting a benefit of the department the benefit being the legal guardianship so it seems that all nine hundred and eighty three requires is for the person to act under the color of state law which the social worker here is acting under the color of state law so isn't that enough well i think that the guardianship and obtaining guardianship is something that the court or it's not something that that dependency agency has any involvement in that's something separate the dependency agency is going to treat missy absent as a guardian the same way that they're going to treat any other foster parent and the same requirements are in place as far as they're monitoring the case and monitoring the child making sure they're safe  and certainly let me point out that if something had happened to h s when she was taken for two days by her father and then found unclothed in a room where people were using illegal substances i can guarantee you that it would be the department who would be responsible for that issue thank you very much in a bit over time i'll give you two minutes thank you your honor i would like to address a cat with respect to the conduct that killed an ordinary person and cat cat was faced with the threat of losing custody of his child and it but he kept it was a parental right and the court seems to put a lot of red a lot of weight on the notion that anybody should know that lying to take a child away from his parent violates the constitution so could you address why in this circumstance anybody should know that to yes this case involves false allegations of child abuse which not only could lead to criminal implications but also could lead be a grounds for the child protective services to take mrs sampson's own biological children from herself from her  and with respect to the government social worker only providing benefits to the child under the welfare nesta to simcoe social workers have a duty to seek out blood relatives before a child is going into the foster care system before parental rights are going to be terminated in fact this social worker was the one that reached out to mrs sampson she didn't even want legal guardianship at st because she doesn't get along with the biological father so much she she she went on and took on at that duty  with respect to not knowing our having no knowledge that this was a constitutional violation as this court pointed out in hardwick in two thousand and seventeen the government california government code states that social workers who engage in fabrication of evidence lose qualified immunity when they do that under the well fairness to cisco so it was clearly established that judicial deception is a violation of law for those reasons x but his court reversed the district cour