CLAY, Circuit Judge, dissenting.

I dissent in this case because, unlike the majority, I refuse to turn a blind eye to the simple truth of the matter. This case is nothing more than an improper attempt by Plaintiff to use the heavy hand of the federal court to usurp the state court's authority in a child custody case. In its judicial activism, the majority has ignored the truth of this matter in order to set an unwarranted precedent in this circuit regarding the level of immunity to be afforded social workers.

The original decision in this case held that summary judgment was appropriately granted to Ms. Brush on immunity grounds because Plaintiff limited her argument regarding Ms. Brush's immunity to whether the juvenile court acted without jurisdiction. See Holloway v. Ohio, 179 F.3d 431, 439 n. 4, reh'g en banc granted, vacated by 197 F.3d 236 (6th Cir. 1999). The opinion only addressed the issue of Ms. Brush and absolute immunity in dicta. Id. Therefore, no precedent was set regarding social workers and the level of immunity they are afforded.

After the original panel issued its decision affirming the district court's dismissal of Plaintiff's case, she did not petition for rehearing. Rather, Plaintiff filed another petition for a writ of habeas corpus with the Ohio Supreme Court seeking the return of her children, which the Ohio Supreme Court subsequently denied. Indeed, it was only upon the suggestion of the author of the majority opinion herein that this case was brought before the en banc court. Interestingly, this case was heard en banc on the issue of whether Ms. Brush should be afforded absolute immunity for her actions as complained of by Plaintiff, despite the fact that the majority opinion of the original panel did not base its holding on this premise.

By hearing this case en banc, the majority accomplished its goal of creating precedent on the issue of absolute immunity and social workers. However, in the course of doing so, the majority has ignored fundamental principles of law such as the law of the case doctrine and subject matter jurisdiction, and has engaged in judicial activism of the worst kind. Because I choose not to engage in this kind of overreaching, and because I also disagree with the majority's outcome, I respectfully dissent.

I. BACKGROUND

This is a meritless § 1983 action involving an embroiled child custody dispute that was dismissed by the United States District Court in Kansas; that was on going in the Ohio state courts at the time the Ohio District Court rendered its decision; that is still on going in the Ohio state court at the current time; and that was actually filed in the federal district courts by Plaintiff in an effort to seek a custody decree and the return of her children. Under these facts, I believe that the case was properly dismissed by the Ohio District Court below. However, in my opinion, the district court should have dismissed the matter under the doctrine of the law of case or for lack of subject matter jurisdiction. Plaintiff's source of relief was with the Ohio state courts and ultimately in a petition for a writ of certiorari to the United States Supreme Court, not in federal district court.

Indeed, Defendants brought a motion to dismiss for lack of subject matter jurisdiction in the Ohio District Court. The fact that Defendants' motion and these jurisdictional bars were not addressed in the Holloway panel's decision is of no moment to their consideration now, because "federal courts, being of limited jurisdiction, must examine their subject-matter jurisdiction 'throughout the pendency of every matter before them.'" See Children's Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1412, 1419 n. 2 (6th Cir. 1996) (emphasis in original) (quoting In re Wolverine Radio Co., 930 F.2d 1132, 1137 (6th Cir. 1991)). As this Court has observed, it is "beyond question" that we have a duty to inquire into the basis for subject matter jurisdiction and to dismiss the case if jurisdiction is lacking. See Campanella v. Commerce Exch. Bank, 137 F.3d 885, 890 (6th Cir. 1998). The United States Supreme Court has expressly instructed that "every federal appellate court has a special obligation to satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review." See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). Therefore, in light of these express commands, we must consider the issue of subject matter jurisdiction as it relates to the matter at hand. In doing so, it is clear that neither the district court below nor this Court has subject matter jurisdiction over this cause. The majority's attempt to minimize or balk at my concern regarding the jurisdictional issue flies in the face of the overwhelming authority directing an appellate court to "satisfy itself" that subject matter jurisdiction over a cause exists. See id.

Furthermore, even if we chose to be derelict in our duty and ignore the jurisdictional issue, I believe that Plaintiff's case should be dismissed for failure to state a due process claim against Sally Brush. Finally, should the immunity issue be reached, I believe that Ms. Brush is clearly entitled to absolute immunity for her actions in this matter. To hold otherwise under these facts will have the adverse result of causing social workers — members of a profession that is greatly understaffed for the essential societal purpose that they serve — to second guess their actions relating to child custody matters for fear of reprisal by disgruntled parents who are not properly caring for their children. As espoused by the Supreme Court, "if litigation expenses mount, social workers . . . may well become less willing to seek placements for children over their parents' objections, whether rational or irrational, even though in their honest judgment the child's best interests demand it." Lehman v. Lycoming County Children's Servs. Agency, 458 U.S. 502, 514 n. 18 (1982). The majority's opinion ultimately puts our children — arguably the most vulnerable members of our society — at risk of neglect, harm, and physical abuse.

II.LAW OF THE CASE; LACK OF SUBJECT MATTER JURISDICTION UNDER THE DOMESTIC RELATIONS/CHILD CUSTODY EXCEPTION AND UNDER THE ROOKER/FELDMAN DOCTRINE

A. Time Line of State and Federal Court Proceedings

An examination of the procedural events, substantive nature of Plaintiff's claims made in these proceedings, and supporting case law clearly indicates that this case should not have proceeded in the district court on a number of grounds. First, the district court should have deferred to the judgment of the Kansas District Court under the law of the case and dismissed Plaintiff's claim; in the alternative, the district court should have dismissed the case for lack of subject matter jurisdiction under the domestic relations/child custody exception to federal court jurisdiction or under the Rooker/Feldman doctrine.

To begin, a time line juxtaposing the events occurring in the state and federal court cases is beneficial for a proper understanding of the matter.

Date

State Court

Date

Federal Court

6/16/93 Clermont County Juvenile Court ("CCJC") enters order terminating Plaintiff's parental rights. 6/18/93 Plaintiff files action in Kansas U.S. District Court seeking order for Ohio courts to stop desist all further proceedings involving her sons, to show cause why they should not be returned to her.

7/27/93 Kansas U.S. District Court dismisses Plaintiff's claim for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(h)(3) as frivolous under 28 U.S.C. § 1915(d). See Holloway v. State of Ohio, No. 93-4139, 1993 WL 302240 (D.Kan. July 27, 1993) (unpublished).

10/18/93 Kansas U.S. District Court denies Plaintiff's "Motion: For this courtto [sic] order fair hearing an [sic] suit for civil rights violations" under 14th Amendment for lack of subject matter jurisdiction. See Holloway v. State of Ohio, No. 93-4139-SAC, 1993 WL 463426 (D.Kan. Oct. 18, 1993) (unpublished).

3/17/94 4/4/95 Plaintiff files complaint in U.S. District Court for the Southern District of Ohio claiming violation of her rights under 42 U.S.C. § 1983 § 1981, as guaranteed by the Sixth, Eighth Fourteenth Amendments, naming the State of Ohio, the Ohio Dep't of Human Services, Sally Brush, Clermont County Ohio as defendants.

Plaintiff amends her complaint.

8/1 8/26/94 Defendants file motions to dismiss Plaintiff's complaint for lack of subject matter jurisdiction.

8/10/94 Plaintiff responds to Defendants' motion to dismiss claiming that Defendants "lied" during the custody hearing by claiming that Plaintiff abandoned her children; and seeking monetary damages as well as an order from the court for Defendants "TO RETURN MRS HOLLOWAYS [sic] CHILDREN TO HER . . . ."

1/18/95 Magistrate files a Report Recommendation finding that court has jurisdiction over the matter; recommending that claims against State of Ohio Ohio Dept. of Human Services be dismissed, but claims against Clermont County Sally Brush go forward.

1/27/95 Plaintiff files objections to Report Recommendation

2/15/95 Plaintiff files motion in CCJC seeking review of court's permanent custody determination reversal of court's previous judgment.

2/24/95 District Court enters order accepting Magistrate's recommendation to dismiss State of Ohio Ohio Dept. of Human Services

3/10/95 District Court orders Plaintiff to show cause why summary judgment should not be entered sua sponte against her; orders Defendants to supplement record in response.

8/22/95 CCJC overrules Plaintiff's motion. Plaintiff appeals to the Ohio Court of Appeals for Clermont County.

9/18/95 District Court orders Defendants to, among other things, brief the issue of immunity regarding the motion for summary judgment.

10/13/95 Defendants file brief in support of immunity.

4/16/96 Defendants Clermont County Sally Brush file motion for summary judgment.

4/23/96 Plaintiff responds to motion.

5/6/96 Ohio Court of Appeals reverses the ruling of the CCJC; orders that the CCJC set aside its previous order granting Clermont County permanent custody; orders Clermont County Dep't of Human Servs. ("CCDHS") to obtain proper service over Plaintiff. See In re Holloway, No. CA95-09-064, 1996 WL 227481 (Ohio App. 12 Dist., May 6, 1996) (unpublished).

5/16/96 District Court enters order granting Defendants' motion for summary judgment on the basis of absolute immunity. (J.A. at 18.)

5/17/96 Plaintiff files motion in CCJC seeking immediate reunification with her children.

6/96 Pretrial conference on Plaintiff's motion is held; CCJC denies Plaintiff's motion; CCDHS states its intention to serve Plaintiff with a new complaint seeking permanent custody.

On the same day, Plaintiff files a petition for a writ of habeas corpus in the Ohio Court of Appeals to restore custody.

Ohio Court of Appeals thereafter denies her petition, and Plaintiff appeals to the Ohio Supreme Court.

6/17/96 Plaintiff files notice of appeal at hand.

10/22/97 Ohio Supreme Court affirmed the court of appeals denial of the writ, finding that Plaintiff had a legal remedy in the ordinary course of law by being served with a copy of the amended complaint for permanent custody. See Holloway v. Clermont County Dep't of Human Servs., 684 N.E.2d 1217, 1219-20 (Ohio 1997).

4/30/98 Oral argument heard by original Holloway panel.

6/30/99 Sixth Circuit affirms the district court's order granting Defendants' summary judgment. See Holloway v. Ohio, 179 F.3d 431, reh'g en banc granted, vacated by 197 F.3d 236 (6th Cir. 1999).

8/6/99 Plaintiff files a new petition for writ of habeas corpus in the Ohio Supreme Court.

8/18/99 Clermont County Department of Human Services files a motion to dismiss the petition, arguing no new grounds had been alleged by Plaintiff.

9/22/99 Ohio Supreme Court unanimously denies Plaintiff's petition for writ of habeas corpus; sustains Defendant's motion; and dismisses the action. See Holloway v. Clermont County Dep't of Human Servs., 716 N.E.2d 720 (Ohio 1999) (table decision)

12/8/99 Case reheard by en banc court. Plaintiff avers through counsel that the CCDHS had recently notified and served her with a dependency hearing complaint.

The fact that Plaintiff sought relief from this Court while custody matters were on going in the Ohio state courts, along with the fact that Plaintiff requested the district court to order Defendants to return her children to her, are significant in understanding why this Court lacks subject matter jurisdiction. However, as explained in the following section, this case should have been dismissed by the Ohio District Court under the law of the case doctrine, where the United States District Court for the District of Kansas had previously dismissed the same claims by which Plaintiff sought the same relief.

B.The Law of the Case Doctrine As Applied to Plaintiff's Claim Filed in the United States District Court for the Southern District of Ohio

"'As most commonly defined, the doctrine of the law of the case posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.'" Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988) (alteration omitted) (quoting Arizona v. California, 460 U.S. 605, 618 (1983)); see United States v. Moored, 38 F.3d 1419, 1421 (6th Cir. 1994). "[T]he doctrine applies as much to the decisions of a coordinate court in the same case as to a court's own decisions." Christianson, 486 U.S. at 816 (examining claim that one circuit court was bound by a different circuit court's decision under law of the case). In fact, "[f]ederal courts routinely apply law-of-the-case principles to transfer decisions of coordinate courts." Id. As the Supreme Court has found, "the policies supporting the doctrine apply with even greater force to transfer decisions than to decisions of substantive law; transferee courts that feel entirely free to revisit transfer decisions of a coordinate court threaten to send litigants into a vicious circle of litigation." Id. Indeed, the basic premise behind the law of the case doctrine is that courts should generally "refuse to reopen what has been decided." Messinger v. Anderson, 225 U.S. 436, 444 (1912).

However, the law of the case doctrine is not an "inexorable command." See United States Steel Corp. v. Holley, 479 F.2d 489, 494 (6th Cir. 1973). "A court has the power to revisit prior decisions of its own or of a coordinate court in any circumstance, although as a rule courts should be loathe to do so in the absence of extraordinary circumstances such as where the initial decision was 'clearly erroneous and would work a manifest injustice.'" Christianson, 486 U.S. at 817 (quoting Arizona v. California, 460 U.S. at 618 n. 8). We have held that a court must "find some cogent reason to show the prior ruling is no longer applicable" before refusing to apply the law of the case. See Holley, 479 F.2d at 494. Factors to consider in determining whether a prior ruling may be ignored include "substantially different evidence raised on subsequent trial; a subsequent contrary view of the law by the controlling authority; or a clearly erroneous decision which would work a manifest injustice." See id. (citing White v. Martha, 377 F.2d 428, 431-32 (5th Cir. 1968)). With that said, however, revisions in the law of the case occur "very infrequently" when one court is asked to review the decision of a coordinate court. See Perkin-Elmer Corp. v. Computervision Corp., 732 F.2d 888, 900 (Fed. Cir. 1984).

Although the case at hand is not a "transfer" case in the typical sense of the term, it is nonetheless a case which was decided by a previous coordinate court on a rule of law — subject matter jurisdiction — which the Ohio District Court should have respected and used as a basis to dismiss the case. In other words, the district court should have dismissed Plaintiff's case under the law of the case doctrine based upon the rulings from the Kansas District Court. See Hayman Cash Register Co. v. Sarokin, 669 F.2d 162, 166-69 (3d Cir. 1982) (holding that law of the case prevented the New Jersey District Court from redetermining jurisdictional issue previously decided by the District of Columbia District Court, and noting that "the principles of comity among courts of the same level of the federal system provide further reason why . . . an issue already decided by a court of equal authority" should not be reexamined); see also Holloway v. State of Ohio, No. 93-4139-SAC, 1993 WL 463426, at **1-**2 (D.Kan. Oct. 18, 1993); Holloway v. State of Ohio, No. 93-4139-SAC, 1993 WL 302240 (D.Kan. July 27, 1993).

Indeed, an examination of Plaintiff's complaint filed in the United States District Court in Kansas, as well as an examination of her "Motion: For this courtto [sic] order fair hearing an [sic] suit for civil rights violations" filed in that court, as compared to her complaints filed in the Ohio District Court, clearly indicate that Plaintiff was filing the same claim and seeking the return of her children from the district court below, just as she sought from the district court in Kansas. For example, in her complaint to the Kansas District Court, Plaintiff stated as follows:

We feel that this case falls under this courts [sic] jurisdiction as it is a flagrant violition [sic] of her and her childrens [sic] rights to know and to love each other and their right to life, lib. and pre suit [sic] of happyness [sic]. As how can she or her children be happy not being together. [sic]

We pray that this court will find it in their hearts and law to reunite these children with their natural birth mother.

Complaint of Sammye R. Holloway at 2, Holloway, 1993 WL 302240 (D.Kan. July 27, 1993). Once again, in a subsequent pleading which the Kansas District Court interpreted as a Rule 60(b) motion, Plaintiff stated and prayed as follows:

WE FEEL THAT THIS COURT DOES HAVE JURISDICTION, BECAUSE OF THE VIOLATIONS [sic] OF MRS. HOLLOWAYS [sic] SIXTH, EIGHTH [sic], AND FOURTEENTH CIVIL RIGHTS. . . . SO WE NOW COME TO THIS COURT PRAYING FOR RELIEF, IN THAT WE WANT THIS COURT TO HOLD A FAIR HEARING IN TO WAY [sic] MRS. HOLLOWAYS [sic] CHILDREN SHOULD NOT BE RETURNED TO HER AND ALSO ASK THIS COURT FOR COMPENSATION FOR THE PAIN AND SUFFERING THEY ARE CONTINUING [sic] TO CAUSE MRS. HOLLOWAY AND FOR THE VIOLATIONS [sic] TO HER CIVIL RIGHTS IN THE AMOUNT OF TWO MILLION DOLLARS[.]

"Motion: for this Court to Order Fair Hearing an [sic] Suit for Civil Rights Violations" at 1-2, Holloway, 1993 WL 463426, at **1-**2 (D.Kan. Oct. 18, 1993) (emphasis in original). Likewise, in her complaint to the Ohio District Court, Plaintiff claimed a violation of her right to due process under the Fourteenth Amendment because she had been deprived of the right to life, liberty and the pursuit of happiness, and that Defendants were working together to keep her and her sons apart, based upon the same allegations made in the Kansas complaint where Plaintiff prayed for in excess of two million dollars. (J.A. at 8-9.) Thus, because Plaintiff sought the same claims and the same relief in the Ohio District Court that she sought from the Kansas District Court, the Ohio District Court should have bowed to the decision of its coordinate court under the law of the case, and refused to reexamine Plaintiff's claim absent "extraordinary circumstances." See Christianson, 486 U.S. at 817; Hayman Cash Register Co., 669 F.2d at 166-69.

No such extraordinary circumstances exist in this case. In fact, as will be shown in the section that follows, the Kansas District Court reached the only possible result allowed under prevailing Supreme Court precedent, where Plaintiff's § 1983 due process claim was filed in an effort to gain custody of her children and to challenge the merits of the underlying state custody determination. See discussion infra Part II.C.; see also Holloway, 1993 WL 302240, at **1 (citing Lehman v. Lycoming County Children's Servs. Agency, 458 U.S. 502 (1982)). Therefore, the district court should have dismissed Plaintiff's case, if not on its own accord, then by way of Defendants' motion to dismiss, under the law of the case pursuant to the Kansas decisions. See Skil Corp. v. Millers Falls Co., 541 F.2d 554, 557 (6th Cir. 1976) ("We should never assume that a court of concurrent jurisdiction neglected to perform its duty, particularly when its order clearly shows full performance."). This is particularly so where in her response to Defendants' motion to dismiss filed in the court below, Plaintiff twice requested that the district court order Defendants to return her children to her, (J.A. at 41-43), and Plaintiff did not seek relief in state court until it became apparent that the State of Ohio and Ohio Department of Human Services were going to be dismissed as parties from the federal suit.

In an attempt to distinguish the law of the case doctrine and find it to be inapplicable here, the majority makes statements which are simply false and mischaracterizes the matter. For example, the majority asserts that the Kansas District Court "never even mentioned damages (which Holloway was not seeking in that action)." However, in ruling on what it termed to be Plaintiff's Rule 60(b) motion, the Kansas District Court expressly stated that "In addition to the return of her children, . . . Holloway also seeks compensation in the amount of $2,000,000.00 for the pain and suffering caused by the termination of her parental rights. Holloway alleges that the termination of her parental rights violated the Sixth, Eighth and Fourteenth Amendments, as well as certain statutes. Holloway also alleges violation of her civil rights." See Holloway v. State of Ohio, 1993 WL 463426, at *1 (D.Kan. Oct. 18, 1993).

Likewise, the majority asserts that the Kansas District Court "never even mentioned . . . Sally Brush." However, one need look no further than the captions of each of the decisions from the Kansas District Court regarding Plaintiff's claims to see Sally Brush expressly named as a defendant. See Holloway, 1993 WL 463426; Holloway, 1993 WL 302240. In addition, the majority makes a great deal of the fact that the Kansas district court did not address the affirmative defense of § 1983 immunity. However, it was not necessary for the Kansas District Court to address or consider the affirmative defense because the court properly found that it lacked subject matter jurisdiction to hear the matter. Simply put, in an effort to find that the law of the case doctrine does not apply, the majority makes misstatements and attempts to characterize Plaintiff's case as one about an affirmative defense, as opposed to focusing on the nature of Plaintiff's claims.

In another effort to find that the law of the case doctrine does not apply, the majority attempts to divorce the two Kansas decisions, and confuses principles attendant to res judicata — issue preclusion and claim preclusion — with the law of the case doctrine. However, despite its efforts, the majority's attempts simply do not carry the day. First, a review of the Kansas District Court's October 13, 1993 opinion indicates that District Judge Crow clearly considered the fact that Plaintiff brought civil rights claims — the same civil rights claims that she brought in the Ohio District Court; therefore, contrary to the majority's position, the Kansas District Court did consider Plaintiff's claims as an amendment to her original pleading. Under Fed.R.Civ.P. 15(c), the amendment relates back to the same conduct, transaction and occurrence as Plaintiff's original complaint, and the two pleadings should thus be considered as one.

Moreover, as noted in Wright and Miller under the "Law of the Case," "[d]ismissal for want of jurisdiction precludes relitigation of the same jurisdiction issue." See 18 C. Wright, A. Miller E. Cooper, Federal Practice and Procedure § 4436 (2000 Supp.). The Ohio District Court was therefore precluded from relitigating the issue, and erred when it denied Defendants' motion to dismiss for lack of subject matter jurisdiction. The majority cannot escape this fact by arguing that principles of res judicata apply to bar the law of the case. The majority incorrectly applies principles of res judicata to the law of the case doctrine. It is without question that a decision on the merits is required in order for res judicata to apply, see supra note 2; however, contrary to the majority's unsupported claim, a decision on the merits is not necessary for the law of the case to apply. See Christianson, 486 U.S. at 816.

Regarding the law of the case, the issue to be examined is whether the Ohio District Court should have dismissed the matter where the Kansas District Court previously had before it the same claims made by Plaintiff — her civil rights were violated, her children were taken from her without due process of law, and her children should be immediately returned to her — and the Kansas District Court ruled as matter of law that it lacked subject matter jurisdiction over Plaintiff's claims. Any affirmative defense asserted after the Ohio District Court allowed the case to proceed has nothing to do with whether the Ohio District Court was bound by the Kansas District Court's ruling at the outset of the case. See Hayman Cash Register Co., 669 F.2d at 166-69. Thus, the Ohio District Court should have recognized the law of the case doctrine when Defendants brought their motion to dismiss for lack of subject matter jurisdiction.

C.Defendants' Motion to Dismiss and the District Court's Erroneous Conclusion that the Court had Subject Matter Jurisdiction Over the Case

Defendants filed a motion to dismiss Plaintiff's claim on the basis of, among other things, lack of subject matter jurisdiction under Lehman v. Lycoming County Children's Servs. Agency, 458 U.S. 502 (1982). In Lehman, the Supreme Court held that 28 U.S.C. § 2254 does not confer federal court jurisdiction to consider collateral challenges to state court judgments involuntarily terminating parental rights. Id. at 516. In reaching this decision, the Court found that the need for finality of judgments was in the best interests of the children:

The State's interest in finality is unusually strong in child-custody disputes. The grant of federal habeas would prolong uncertainty for children such as the Lehman sons, possibly lessening their chances of adoption. It is undisputed that children require secure, stable, long-term, continuous relationships with their parents or foster parents. There is little that can be as detrimental to a child's sound development as uncertainty over whether he is to remain in his current "home," under the care of his parents or foster parents, especially when such uncertainty is prolonged. Extended uncertainty would be inevitable in many cases if federal courts had jurisdiction to relitigate state custody decisions.

Id. at 513-14 (footnote omitted). Defendants in this case argued that Lehman and the reasoning stated therein controlled because Plaintiff was actually seeking to challenge the substance of the custody hearing as well as the return of her children by way of her § 1983 claim. Clermont County also argued that the district court lacked jurisdiction under the Rooker/Feldman doctrine. See discussion infra Part II.C.2.

The district court rejected Defendants' contentions and held that the court had jurisdiction over Plaintiff's § 1983 claim. The court began by recognizing that federal courts traditionally have declined to accept jurisdiction over child custody disputes. However, the court went on to hold that because the underlying custody matter was not in question and Plaintiff's cause of action was cognizable in tort, the child custody exception to jurisdiction did not apply. The district court then qualified its holding as follows:

However, to the extent that plaintiff seeks an order from this court for the return of her children, this Court lacks jurisdiction to grant such relief. Such relief would require the Court to address the underlying merits of the action terminating plaintiff's parental rights. This is the province of the state courts, and any relief plaintiff seeks in this respect must be sought through the state courts.

(J.A. at 76 (citations and footnote omitted)).

One need look no further than Plaintiff's response to Defendants' motion to dismiss to see how the district court's decision to invoke jurisdiction contradicts its own written opinion. Specifically, in Plaintiff's response to Defendants' motion to dismiss, she not only questioned and challenged the underlying merits of the custody determination by claiming that perjured testimony was presented regarding Plaintiff's abandonment of her children, she also expressly requested that the district court order Defendants to return her children to her:

NOT ONLY DID THEY LIE TO MRS HOLLOWAY IN MAY BY TELLING HER RIGHTS HAD ALREADY [sic] BEEN TAKEN BUT ALSO MUST HAVE LIED TO THE COURTS IN JUNE[,] JULY[,] AND JANUARY [various custody hearing dates] WHEN THEY CLAIMED ABANDONMENT ON HER PART WHEN SHE HAD SENT THEM ALL THE EVIDENCE THAT THE FATHER HAD STOLEN THE CHILDREN FROM HER IN 1988 . . . . THEREFORE THE LOWER COURT'S RULING [the decision of the Clermont County Juvenile Court] MUST BE OVER TURNED AS STATED IN THE 14 AMENDMENT AND THIS COURT ORDER THE DEFENDANTS TO RETURN MRS[.] HOLLOWAYS [sic] CHILDREN TO HER AND TO ORDER THAT THE DEFENDANTS ALSO PAY RESATUTION [sic] TO MRS[.] HOLLOWAY FOR VIOLATING HER CIVIL RIGHTS AND TO PAY THE AMOUNTS LISTED IN THE ORIGINAL COMPLAINT.

* * *

SO WE FEEL THAT THIS COURT DUE TO ALL THE EVIDENCE HAS NO CHOICE BUT TO DENIE [sic] THE DEFENDANTS [sic] DISMISSAL MOTION AND TO FIND IN MRS[.] HOLLOWAYS [sic] FAVOR AND TO GRANT HER ALL RELIEF ASK [sic] FOR IN HER COMPLAINT AND TO ORDER THE DEFENDANTS TO RELEASE HER CHILDREN TO HER[.]

(J.A. at 42-43 (emphasis added)). The express language of Plaintiff's responsive pleading clearly challenges the testimony presented at the hearings regarding Plaintiff's contention that she did not abandon her children, but that her husband absconded with them; requests the district court to overrule the custody determination made by the CCJC; and requests that the district court order Defendants to return her children to her. As such, under the district court's own opinion, Defendants' motion to dismiss for lack of subject matter jurisdiction should have been granted.

Furthermore, because Plaintiff's claim in this case, although filed under the guise of a § 1983 claim, is actually a challenge to the substance of the state custody determination which seeks the return of her children, and not simply a challenge to the procedures leading up to the decision, the district court erred in concluding that it had jurisdiction over the matter under the domestic relations/child custody exception to jurisdiction as well as the Rooker/Feldman doctrine. See 28 U.S.C. § 1257; District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482, 486 (1983) ("[Federal district court's do not have jurisdiction] "over challenges to state-court decisions in particular cases arising out of judicial proceedings even if those challenges allege that the state court's action was unconstitutional."); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 (1923).

1.The Domestic Relations/Child Custody Exception to Federal Court Jurisdiction

Traditionally, federal courts have declined to accept jurisdiction in parent-child, domestic relations or custody disputes, and adoption matters subject to state law. See Ankenbrant v. Richards, 504 U.S. 689, 703 (1992) (concluding "that the domestic relations exception . . . divests the federal courts of power to issue divorce, alimony, or child custody decrees"); Catz v. Chalker, 142 F.3d 279, 292 (1998); see also Zak v. Pilla, 698 F.2d 800, 801 (6th Cir. 1982) ( per curiam). It is "incumbent" upon a federal court to carefully examine the nature of a complaint to determine whether it is actually concerned with a custody issue — i.e., whether it actually seeks a child custody decree. See Firestone v. Cleveland Trust Co., 654 F.2d 1212, 1216 (6th Cir. 1981). Jurisdiction is absent in those cases where the alleged tort action is a mere pretense and the suit actually seeks a custody determination. See Drewes v. Ilnicki, 863 F.2d 469, 471 (6th Cir. 1988); see also Zak, 698 F.2d at 801.

In the case at hand, although Plaintiff filed her claim in district court under the guise of 42 U.S.C. § 1983 seeking monetary damages, a close examination of the true character of Plaintiff's claim and her pleadings indicates that she is seeking a custody decree from this court. As previously noted, in her response to Defendants' motion to dismiss, Plaintiff expressly challenges the substance of the testimony presented at the termination hearings, and expressly requests an order from the district court to return her children to her. (J.A. at 42-43.) In addition, and perhaps most telling, is the fact that Plaintiff did not seek the return of her children from the CCJC until after the magistrate recommended that the State of Ohio and the Ohio Department of Human Services be dismissed from suit — i.e., she did not seek the return of her children from state court until after it became apparent that she could not obtain such an order from the federal district court. Likewise, she did not file a second petition with Ohio Supreme Court for a writ of habeas corpus until after the Holloway panel issued its opinion affirming the district court. It is patently clear that Plaintiff is attempting to use the heavy hand of the federal district court to strong arm the Ohio state courts regarding this child custody matter. Like the plaintiff in McLaughlin v. Cotner, Plaintiff is simply "attempting to disguise the true nature of the action" by seeking monetary relief in her complaint. See 193 F.3d 410, 413 (6th Cir. 1999).

The plaintiff in McLaughlin v. Cotner filed suit against her ex-husband claiming that she was seeking damages for breach of contract and tortious interference with a contract in regard to residential property under Ohio tort and contract law, and that the domestic relations exception to diversity jurisdiction did not apply. See 193 F.3d at 413. However, we rejected the plaintiff's contention, finding that the contract in dispute was part of a separation agreement which was incorporated into the divorce decree. Id. As such, we concluded that "[t]his case thus involves issues arising out of conflict over a divorce decree, and according to Ankenbrandt, comes within the 'domestic relations exception.' . . . [T]he federal court lacks jurisdiction, as this case is not a tort or contract suit that merely has domestic relations overtones, but is one seeking a declaration of rights and obligations arising from marital status." Id. at 413-14.

Plaintiff's claim in the case at hand is like that of McLaughlin because an adjudication of whether Plaintiff was denied due process of law requires the federal court to examine the substance of the custody matters via a determination of Brush's representations to Plaintiff. Therefore, as in McLaughlin, the district court did not have jurisdiction over the matter, where an adjudication of Plaintiff's due process claim required "a declaration of rights" as to whether Plaintiff lawfully no longer had custody of her children. See McLaughlin, 193 F.3d at 413-14. Moreover, as in McLaughlin, the issue of whether Plaintiff was denied due process of law in the course of the CCJC's termination of her parental rights was pending before the Ohio Court of Appeals at the time that the issue was being addressed by the district court below, thus providing a further basis for the lack of jurisdiction. See id. at 413.

In Catz v. Chalker, a case decided before McLaughlin, it was found that the domestic relations exception to jurisdiction did not apply even though the plaintiff sought a declaration from the court that the divorce decree was void as a violation of due process. See 142 F.3d at 291. This Court reasoned that "if the divorce judgment were unconstitutionally obtained, it should be regarded as a nullity, and any decree so stating would change nothing at all." See id. (citation omitted). The Court went on to opine that "the declaration Catz seeks would not itself address the merits, or ultimately dispose, of [the] divorce petition; she would be free to relitigate her marital status in state court." Id. Finally, the Court rested its decision on the fact that Catz was not asking the district court to involve itself "in the sort of questions attendant to domestic relations" such as "what custody determination would be in the best interest of a child." Id.

In this case, Plaintiff is not merely asking the federal court to "examine whether certain judicial proceedings, which happened to involve a [custody determination], comported with the federal constitutional guarantee of due process" that would thereby allow the federal courts jurisdiction over the matter. See Catz, 142 F.3d at 292. Rather, Plaintiff is asking the district court to grant her custody of her children by declaring that the custody decree entered by the CCJC was unconstitutionally obtained. The distinction is significant in that it removes the case from the bounds of Catz, and places it squarely within the domestic relation/child custody exception to jurisdiction espoused in Ankenbrandt. See 504 U.S. at 703. Clearly, at the "core" of Plaintiff's action she seeks a declaration of parental status; the fact that she also prays for money damages is of no moment to the true nature of the relief sought because the Supreme Court has made it clear that a federal district court lacks jurisdiction to enter a custody decree. See Ankenbrandt, 504 U.S. at 703; Catz, 142 F.3d at 291.

At first blush it may appear that like in Catz, Plaintiff is merely seeking a declaration that the custody decree was unconstitutionally obtained, and that the domestic relations exception does not apply. However, we are not to address custody cases in a superficial fashion; it is our duty to examine the true nature of the complaint to determine whether it seeks a custody decree. See Firestone, 654 F.2d at 1216. Had the district court sifted through the claims made by Plaintiff, it would have determined that she is indeed seeking a custody decree from the district court. Plaintiff not only expressly requested that the court order the children returned to her, but she sought the return of her children through an adjudication from the district court that the CCJC's order was unconstitutionally obtained. The result of granting Plaintiff the relief that she seeks is of a particular concern where the Ohio Supreme Court expressly found that it "would not be in the children's best interest" to be returned to Plaintiff. Holloway, 684 N.E.2d at 1219-20; see Lehman, 458 U.S. at 513-14 ("There is little that can be as detrimental to a child's sound development as uncertainty over whether he is to remain in his current 'home,' under the care of his parents or foster parents . . . ."). Moreover, the issue of whether the CCDHS properly served Plaintiff was pending in the Ohio Court of Appeals at the time Plaintiff's claim was before the district court thereby allowing for potentially contradictory results on the same issue. Accordingly, under the commands of Ankenbrandt and the domestic relations/child custody exception, the district court did not have jurisdiction over Plaintiff's case, and should have dismissed the case on this basis. Bender, 475 U.S. at 541 (noting the "special obligation" of every federal appellate court to satisfy itself of the lower court's jurisdiction in a cause under review).

2.The Rooker/Feldman Doctrine to Divest Jurisdiction

The Rooker/Feldman doctrine is based on 28 U.S.C. § 1257, which grants the Supreme Court jurisdiction to review the decisions of the highest state courts for compliance with the Constitution. See 28 U.S.C. § 1257; District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 467 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (1923). Under the doctrine, "lower federal courts do not have jurisdiction to review a case litigated and decided in state court; only the United States Supreme Court has jurisdiction to correct state court judgments." Gottfried v. Medical Planning Servs., 142 F.3d 326, 330 (6th Cir. 1998). "This is equally true in constitutional cases brought under § 1983, since federal courts must give 'full faith and credit' to the judicial proceedings of state courts." Id. (citing 28 U.S.C. § 1738; Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 85 (1984); Kremer v. Chemical Constr. Corp., 456 U.S. 461, 475-78 (1982); Allen v. McCurry, 449 U.S. 90, 103-05 (1980)). Stated otherwise, under the Rooker/Feldman doctrine, "[f]ederal district courts lack subject matter jurisdiction to review such final adjudications or to evaluate constitutional claims that are 'inextricably intertwined with the state court's [decision] in a judicial proceeding.'" Valenti v. Mitchell, 962 F.2d 288, 296 (3d Cir. 1992) (alteration in Valenti) (quoting Feldman, 460 U.S. at 483 n. 16). The doctrine "has a close affinity to the principles embodied in the legal concepts of claim and issue preclusion." Valenti, 962 F.2d at 297.

In order for the doctrine to apply, the "federal claim [must be] inextricably intertwined with the state-court judgment [such that] the federal claim succeeds only to the extent that the state court wrongly decided the issues before it." Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 25 (1987) (Marshall, J., concurring). In addition, United States District Courts "do not have jurisdiction . . . over challenges to state court decisions in particular cases arising out of judicial proceedings even if those challenges allege that the state court's action was unconstitutional." Feldman, 460 U.S. at 485-86.

In this case, as discussed in relation to the domestic relations/child custody exception to jurisdiction, a decision on the merits of Plaintiff's § 1983 claim required review of a matter inextricably intertwined with the state custody matter. Although Plaintiff couched her claim as a civil rights action under § 1983, the relief that she clearly sought was the return of her children through a finding by the district court that the CCJC, via Sally Brush and Clermont County, acted without due process of law. In other words, Plaintiff was seeking federal appellate review of the state custody decree through the filing of her § 1983 claim.

In any event, the Rooker/Feldman doctrine is satisfied because "federal relief could only be predicated upon a conviction that the state court was wrong . . . ." Pennzoil, 481 U.S. at 25. Here, the district court could not have adjudicated Plaintiff's § 1983 claim without determining that the due process commands were not met based upon allegations made by Plaintiff regarding Ms. Brush. Had the district court made such a determination, the result would have been to declare the permanent custody order invalid as unconstitutionally obtained. Such a determination by the district court may not have been in the best interests of the children as determined by the state court; an issue which lies at the heart of any child custody matter. Indeed, as noted supra, the Ohio Supreme Court affirmed the denial of Plaintiff's application for writ of habeas corpus because it would not have been in the children's best interests to return the children to Plaintiff. See Holloway, 684 N.E.2d at 1219-20. Furthermore, Rooker/Feldman is also satisfied because Plaintiff clearly is "challeng[ing] [a] state court decision in [a] particular case arising out of judicial proceedings [while] alleging that the state court's action was unconstitutional." See Feldman, 460 U.S. at 485-86. Simply put, Plaintiff is challenging the CCJC's decision to award the CCDHS permanent custody of her children as being unconstitutional. See id.

In Anderson v. Colorado, 793 F.2d 262, 263 (10th Cir. 1986), the plaintiff brought a § 1983 action against the State of Colorado and the judges of the First Judicial District of Jefferson County, Colorado, claiming that the defendants violated his right to equal protection and due process of law by awarding mothers custody of children in child custody disputes. The plaintiff sought declaratory and injunctive relief under § 1983, as well as a writ of habeas corpus directing that his son be returned to his custody. See id. In affirming the district court's dismissal of the plaintiff's claim, the Court of Appeals for the Tenth Circuit first noted that the Plaintiff's attempt to invoke federal habeas jurisdiction was foreclosed under Lehman. Id. The Tenth Circuit then found that under the Rooker/Feldman doctrine, the court lacked jurisdiction to hear the § 1983 claims because the plaintiff was making a specific challenge to a state court decision where the relief sought was in the nature of appellate review of a state court judgment. Id. The court concluded that the plaintiff's "recourse, if any, is to exhaust his appeals in the Colorado courts and to petition the Supreme Court of the United States for certiorari review of the decision of the state supreme court." Id. at 264.

Likewise, in the present case, to the extent that Plaintiff requests that the district court order Defendants to return her children to her, she is attempting to invoke federal habeas jurisdiction in violation of Lehman. See 458 U.S. at 516. Furthermore, as in Anderson, her § 1983 claim is precluded under the Rooker/Feldman doctrine because she is attempting to seek an impermissible appellate review by the federal district court of the state court's custody determination. See Anderson, 793 F.2d at 263-64. Plaintiff's recourse at the time she filed suit in the district court was to exhaust her state court remedies and appeal any unfavorable decision of the Ohio Supreme Court to the United States Supreme Court. See id. In light of the state court proceedings filed in this case after Plaintiff filed her claim in the district court, see time line supra Part II.A., Plaintiff's remedy was to petition for writ of certiorari to the United States Supreme Court challenging the Ohio Supreme Court's denial of her state writ of habeas corpus. See id.; see also 28 U.S.C. § 1257; Feldman, 460 U.S. at 482-86; Keene Corp. v. Cass, 908 F.2d 293, 296 (8th Cir. 1990) ("Where a litigant attempts to circumvent the requirement of seeking direct review in the United States Supreme Court by casting her lawsuit as a section 1983 action, Feldman's jurisdictional bar applies."); Duby v. Moran, 901 F. Supp. 215, 216-17 (S.D.W. Va. 1995) (dismissing the plaintiff's § 1983 due process claim seeking the return of her children and damages, for lack of subject matter jurisdiction under Rooker/Feldman, while concluding that the plaintiff's recourse was with the United States Supreme Court).

D.Summary

In summary, I would affirm the district court's order dismissing Plaintiff's case; however, I would do so on different grounds. See Jackson v. City of Columbus, 194 F.3d 737, 756 (6th Cir. 1999) (citing Russ' Kwik Car Wash, Inc. v. Marathon Petroleum Co., 772 F.2d 214, 216 (6th Cir. 1985)). Specifically, I would affirm the district court's dismissal on the basis of the law of the case doctrine or for lack of subject matter jurisdiction.

Although I firmly believe the district court and this Court alike should not be exercising our heavy hands in reaching the immunity issue here, I will address the matter in the section that follows because I believe with even greater conviction that Sally Brush is entitled to absolute immunity for her actions at issue in this case which were prosecutorial in nature.

III.PLAINTIFF'S § 1983 PROCEDURAL DUE PROCESS CLAIM AND THE LEVEL OF IMMUNITY AFFORDED TO DEFENDANTS IN THIS MATTER

I agree that Clermont County was properly dismissed for the reasons stated by the majority; however, I strongly disagree with the majority's position that the district court erred in granting Sally Brush absolute immunity in connection with her actions for which Plaintiff complains, particularly in this case which I believe is without merit.

I begin by stating my belief that Plaintiff has failed to state a viable procedural due process claim against Ms. Brush. Plaintiff's counsel admitted during oral argument that if the Court found that Plaintiff failed to state a claim against Ms. Brush, the immunity issue need not be reached; Plaintiff also agreed that we could affirm the district court on this alternative ground. Based upon the sequence of events in this case, I find Plaintiff's claim against Ms. Brush without merit. Plaintiff surfaced twenty-seven days before the permanent custody order was entered, which was after the case was more than two and one-half years in the making, and Ms. Brush did everything to notice Plaintiff of the hearings, as conceded by Plaintiff.

To recap these events, in November of 1990, the CCDHS filed a complaint in the Clermont County Court of Common Pleas, Juvenile Division, ("CCJC") alleging that the children were dependent and requesting temporary custody. See Holloway, 684 N.E.2d at 1218. The CCJC determined that the children were living in an unhealthy environment and granted the CCDHS temporary custody. Id. In January of 1991, the CCJC ordered that the complaint be amended to include a request for permanent custody. Id. The CCDHS, through Sally Brush, attempted to serve Plaintiff with a copy of the amended complaint by certified mail, and when that failed, it attempted to serve Plaintiff via publication. Id. In February of 1992, the CCJC adjudicated the children dependent and continued the agency's temporary custody. Id.

The children were placed with relatives in the state of Washington; however, that placement failed, and in September of 1992, the CCDHS filed a motion for permanent custody. Holloway, 684 N.E.2d at 1218. Once again, the CCDHS attempted to serve Plaintiff notice of the motion by publication. Id. Brush filed an affidavit with the CCJC in which she stated that she was unable to obtain a current address for Plaintiff, despite her calls to social service agencies in Arizona, Washington, Oklahoma, California, and Colorado. On December 15, 1992, a hearing on the motion was held, and it was recommended by the referee that the CCDHS be awarded permanent custody of the children, finding by clear and convincing evidence that such a disposition was in the children's best interests. At the hearing, Plaintiff's husband testified that Plaintiff had abandoned him and the children. Id. at 1220. Five months after the hearing was held and the recommendation was made, (about two and one-half years after the children were taken into custody by the CCDHS), on May 18, 1993, Ms. Brush received copies of correspondence between Plaintiff and the State of Washington Department of Social Services regarding Plaintiff's current whereabouts in Iola, Kansas, and called the CCDHS legal representative, Thomas Flessa, to provide him with this information. (Supplemental Brief of Appellees at 27, Addendum C, Holloway/Dictation).

About two days later, on May 20, 1993, Ms. Brush received a letter directly from Plaintiff that included Plaintiff's telephone number and current address. Ms. Brush called the telephone number that day and reached "City Hall." Ms. Brush left a message for Plaintiff, making an appointment to call her on Friday, May 21, 1993 at 3:15 p.m. Id. Ms. Brush contacted Plaintiff by telephone on the twenty-first, and told Plaintiff that the children had been in the custody of CCDHS for nearly the past three years, that the children were in a foster home where they might be adopted, that the CCDHS had permanent custody of the children, and that Plaintiff should talk to an attorney "about her rights." Id. On May 24, 1993, Ms. Brush attempted to telephone Plaintiff, but received no answer; Ms. Brush explained the situation to her supervisor, Debbie Penders, in the event that Plaintiff called back while Ms. Brush was out of the office that day. Id.

On May 27, 1993, Ms. Brush received a letter from Plaintiff, and she gave a copy of the letter to attorney Flessa who informed her that he would explain the CCDHS's position to Plaintiff. Id. at 28. Ms. Brush responded to Plaintiff's letter on June 2, 1993 summarizing their May 21 telephone conversation. Id.; J.A. at 93. On June 15, 1993, Ms. Brush contacted attorney Flessa, who once again informed Ms. Brush that he was writing a letter to Plaintiff and assured Ms. Brush that she "should not worry needlessly about [Plaintiff] disrupting the whole process. We did everything legally as to publication/notice." Id. The next day, June 16, 1993, Ms. Brush called attorney Flessa and requested a copy of the letter that he told Ms. Brush he was sending to Plaintiff; the CCJC filed an order adopting the referee's recommendation that the CCDHS be awarded permanent custody of the children. Id. Plaintiff did not contact the CCJC until February 15, 1995 — despite being directed by the Kansas District Court to do so some eighteen months beforehand, and only after it was recommended in the Ohio District Court that the State of Ohio and Ohio Department of Human Services be dismissed from suit — at which time an attorney was appointed for Plaintiff and she sought a reversal of the court's permanent custody order.

Under these facts, and considering that Plaintiff's counsel conceded at oral argument that Ms. Brush did all that was necessary to serve Plaintiff with notice of the hearings, I find Plaintiff's § 1983 claim against Ms. Brush for denial of procedural due process to be without merit. Ms. Brush did not deny Plaintiff notice of any hearing nor an opportunity to be heard, the fundamental elements of due process. See Yellow Freight v. Sys., Inc. v. Reich, 27 F.3d 1133, 1140 (6th Cir. 1994); see also Affidavit of Judge Stephanie A. Wyler (attesting that in her capacity as Clerk of the Clermont County Juvenile Court, at the time Ms. Brush first became aware of Plaintiff's surfacing on May 20, 1993, no other judicial proceedings were scheduled for which Ms. Brush could have provided notice to Plaintiff) (Supplemental Brief of Appellee, Addendum B). The fact of the matter is that Plaintiff surfaced nearly three years after the children had been taken into temporary custody; five months after the magistrate found by clear and convincing evidence that it was in the children's best interests for the CCDHS to be awarded permanent custody, where the children were together and living with a foster family that wanted to adopt them; and twenty-seven days before the permanent custody order was actually entered by the district court. And of course, well after Ms. Brush had made every attempt to locate Plaintiff and serve her, as conceded. I simply see no due process violation on the part of Ms. Brush under these facts.

If the majority believes otherwise, as it must since it is remanding the case for trial, I would admonish the majority for making credibility findings about Ms. Brush such as she "lied" to Plaintiff, or "hid" Plaintiff, or "refused to discuss the case" with Plaintiff. These findings are completely inappropriate at this stage of the proceedings, unsupported by the record, and indicate the majority's unfounded bias against Ms. Brush. For example, based upon the above recitation of undisputed facts, it is difficult to imagine in what respect Ms. Brush "hid" Plaintiff. She told attorney Flessa of Plaintiff's whereabouts, advised Plaintiff to seek legal counsel, and informed her supervisor of the situation in the event Plaintiff telephoned while Ms. Brush was out of the office. One can just as easily surmise under these facts that Ms. Brush's actions were legally sound and in accordance with advice from attorney Flessa who assured her that no due process violation had occurred, as well as honorable in that she acted out of concern for what was in the children's best interests — which is paramount to the parents' interests under Ohio law. See Ohio Rev. Code Ann. § 2151.414(C) ("[A] court shall not consider the effect the granting of permanent custody to the agency would have upon any parent of the child.").

Before addressing the immunity issue, I pause to take exception with the majority's decision to ignore yet another basis upon which to decline review — Plaintiff's failure to raise and argue Ms. Brush's immunity in this context, both in the district court as well as in her initial brief to this Court. Although it is true that Ms. Brush raised and argued that she was absolutely immune from liability below and to this Court, it is equally as true that Plaintiff failed to comply with two procedural prerequisites to this Court's review. See White v. Anchor Motor Freight, Inc., 899 F.2d 555, 559 (6th Cir. 1990); Wright v. Holbrook, 974 F.2d 1152, 1156 (6th Cir. 1986). The majority contends that because Ms. Brush had an opportunity and in fact was the first to address her level of immunity in this regard, the Court's procedural prerequisites should be ignored. Perhaps this may be a viable argument under other circumstances, but in a case where the district court should have dismissed the case at the outset of Plaintiff's filing suit, it appears that the Court's turning one more deaf ear and one more blind eye to barriers for review is inappropriate and extreme. This is especially so where we must also liberally construe Plaintiff's complaint in order to find that she sued Ms. Brush in her individual capacity, inasmuch as Plaintiff never specified capacity in her complaint. See Pelfrey v. Chambers, 43 F.3d 1034, 1038 (6th Cir. 1995); Wells v. Brown, 891 F.2d 591, 593 (6th Cir. 1989).

With that said, I begin my analysis of the immunity issue with a recitation of the alleged actions of Ms. Brush of which Plaintiff complains. Specifically, Plaintiff claims that Ms. Brush denied Plaintiff her right to procedural due process of law when Ms. Brush 1) failed to notify the trial court that Plaintiff had made contact and wished to assert her parental rights, 2) told Plaintiff that her rights had been severed when they had not yet been, and 3) withheld information that would have enabled Plaintiff to raise her rights in court before they had been terminated. It is important to keep in mind that these are the alleged actions for which Plaintiff complains, and that the inquiry into immunity, as well as the merits of the underlying case, are limited to these three actions which have been liberally construed from the complaint.

The relevant inquiry into the level of immunity afforded to Ms. Brush for the three alleged actions is whether those actions can be considered "prosecutorial, judicial, or otherwise intimately related to the judicial process." See Achterof v. Selvaggio, 886 F.2d 826, 830 (6th Cir. 1989). If they can be so considered, then Ms. Brush is entitled to absolute immunity. Id. If the actions are considered "investigatory or administrative" in nature, then Ms. Brush would only be entitled to qualified immunity. See id. In deciding whether the acts were prosecutorial or administrative/investigatory in nature so as to impose the proper level of immunity, a reviewing court employs the "functional approach" announced by the Supreme Court; which is to say, a court looks to "[']the nature of the function performed, not the identity of the actor who performed it.'" Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993) (quoting Forrester v. White, 484 U.S. 219, 229 (1988)).

Because social workers are analogized to prosecutors for immunity purposes, and because I acknowledge that in determining whether a prosecutor is entitled to absolute immunity we look to how closely related the challenged activity is to the prosecutor's role as an advocate, see Pusey v. City of Youngstown, 11 F.3d 652, 658 (6th Cir. 1993), I agree that for purposes of determining whether a social worker is entitled to absolute immunity for an alleged action, we look to whether she was functioning as an advocate for the state at the time. However, I disagree with the majority's myopic view of those instances when a social worker is functioning as an advocate. In other words, I disagree with the majority's attempt to strictly limit the actions for which a social worker is absolutely immune to instances where she is "initiating court actions or testifying under oath," such that the majority characterizes these actions as being confined to filing a complaint or testifying in court. Indeed, the majority's extreme position was advanced by the petitioner in Buckley regarding absolute immunity afforded to prosecutors, and was expressly rejected by the Supreme Court:

Petitioner argues that Imbler's protection for a prosecutor's conduct in initiating a prosecution and in presenting the State's case, extends only to the act of initiation itself and to conduct occurring in the courtroom. This extreme position is plainly foreclosed by our opinion in Imbler [ v. Pachtman, 424 U.S. 409 (1996)] itself. We expressly stated that the duties of the prosecutor in his role as advocate for the State involve actions preliminary to the initiation of a prosecution and actions apart from the courtroom, and are nonetheless entitled to absolute immunity. JJ We noted in particular that an out-of-court effort to control the presentation of [a] witness' testimony was entitled to absolute immunity because it was fairly within [the prosecutor's] function as an advocate. To be sure, Burns made explicit the point we had reserved in Imbler: A prosecutor's administrative duties and those investigatory functions that do not relate to an advocate's preparation for the initiation of a prosecution or for judicial proceedings are not entitled to absolute immunity. We have not retreated, however, from the principle that acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State are entitled to the protections of absolute immunity. Those acts must include the professional evaluation of the evidence assembled by the police and appropriate preparation for its presentation at trial or before a grand jury after a decision to seek an indictment has been made.

Buckley, 509 U.S. at 272-73 (internal quotation marks and citations omitted; emphasis added).

Furthermore, in her role as social worker with the Clermont County Department of Social Services, Ms. Brush was an advocate for the state regarding child custody issues, especially for purposes of determining immunity. See Kurzawa v. Mueller, 732 F.2d 1456, 1458 (6th Cir. 1984) (extending the absolute immunity afforded to prosecutors to those individuals who perform analogous functions such as employees of state department of social services). The analogy goes as follows: a prosecutor functions as an advocate for the state in bringing a defendant to trial for his alleged acts against a crime victim; a social worker functions as an advocate for the state in bringing parents or legal custodians of children to "trial" for their alleged actions, or perhaps inactions, against children who are victims or abuse or neglect. Of course, in the first instance, the criminal culpability is always invoked; while in the latter instance, a parent may not be criminally culpable in the traditional sense. Although a parent may be well-intended, he or she simply may not have the capacity, be it mental or physical, to provide the proper level of care for his or her children such that it may be necessary for the state, via its social services department, to intervene and ultimately terminate parental rights. In fact, under the Ohio probate code, "a court shall not consider the effect the granting of permanent custody to the agency would have upon any parent of the child," where the state's primary concern is the "best interests of the children." See Ohio Rev. Code Ann. § 2151.414(C) (Anderson 1998).

Turning to the matter at hand, the majority bases its holding that Ms. Brush is not entitled to absolute immunity for her actions of which Plaintiff complains on the ground that the CCDHS had a statutory duty to attempt to incorporate Plaintiff into the case plan pursuant to § 2151.412. The majority finds this significant for two reasons. First, by virtue of this statutory duty, the CCDHS was one of the parties; and second, the CCDHS was a party with a duty to attempt to obtain the agreement of other parties, including the parents, and it did so through Ms. Brush. The majority then concludes that Ms. Brush violated this statutory duty when she failed to incorporate Plaintiff into the plan when Plaintiff made contact. Based upon this conclusion, the majority contends that Ms. Brush improperly described herself to Plaintiff as her "adversary" and arrogated herself to an adversarial and quasi-prosecutorial role which Ohio law did not intend her to have. In other words, the majority claims that Ms. Brush was not functioning as an advocate for the state regarding the actions for which Plaintiff complains, because the actions somehow come down to a violation of Ms. Brush's duty under § 2151.412 and § 2151.416 to make Plaintiff part of the case plan, where Ms. Brush was standing in the shoes of the CCDHS which was a party to the case. Simply put, the majority contends that because Ms. Brush was standing in the shoes of a party in failing to incorporate Plaintiff into the plan, she could not be considered an advocate for the state; rather, Ms. Brush should have been some sort of advocate for Plaintiff. I disagree with what I believe to be the majority's flawed logic.

To begin, Plaintiff did not allege that Ms. Brush violated her duty to Plaintiff by failing to make her part of the case plan under the statute. Whether Ms. Brush had such a statutory duty to Plaintiff, and whether Ms. Brush violated that duty if she in fact had one, is not relevant to the matter at hand. Instead, we look to Ms. Brush's actions for which Plaintiff complains, and whether those actions can be considered prosecutorial, judicial, or otherwise intimately related to the judicial process, whether inside or outside of the courtroom, such that Plaintiff was acting as an advocate for the state at the time. We do not look to the actor involved, nor the statute under which she may have been acting in determining the level of immunity to be afforded. See Buckley, 509 U.S. at 269. Rather, we look to the nature of the function performed. Id.

However, even when considering the statute cited by the majority and Ms. Brush's duty to include Plaintiff in the case plan, I disagree with the majority's contention that Ms. Brush was not acting in an adversarial role toward Plaintiff or as an advocate for the state. As a child social worker for the State of Ohio, Ms. Brush is not an advocate for parents or legal custodians. Rather, her advocacy efforts lie in assisting the state to secure whatever is in the best interests of the children, which the state expressly says supersedes the interests of the parent. See Ohio Rev. Code Ann. § 2151.414(C) (Anderson 1998). Indeed, the theory behind affording social workers immunity is to allow them to proceed on behalf of the children's best interests without fear of reprisal from disgruntled parents. Therefore, by the very nature of the work they perform, child social workers are not seen by parents as individuals acting on their behalf; rather, they are viewed as parental adversaries, whether in the course of developing a case plan or performing some other task, where their efforts may ultimately lead to a termination of parental rights.

Focusing on the relevant acts for which Plaintiff complains, failing to notify the trial court that Plaintiff had made contact and wished to assert her parental rights; telling Plaintiff that her rights had been severed when they had not yet been; and withholding information that would have enabled Plaintiff to raise her rights in court before they had been terminated, I believe that all of these acts were intimately associated with the judicial process such that Ms. Brush was functioning as an advocate at the time and should therefore be entitled to absolute immunity. Because this case presents a unique set of facts in that Plaintiff was not a party to the custody matter, it does not fit squarely within any cases presented thus far. Moreover, the case is unique because Plaintiff is seeking to hold Ms. Brush liable for acts that she did not perform, as opposed to affirmative acts performed, as is usually the case. However, by analogy and negative implication, Ms. Brush's actions would be protected by absolute immunity.

For example, Ms. Brush's actions may be analogized to a prosecutor who would be protected by absolute immunity for initiation of a case against a defendant. Indeed, the majority claims that Ms. Brush should have done exactly that — initiated proceedings when Plaintiff surfaced. It follows that since Ms. Brush would have been entitled to absolute immunity had she initiated proceedings against Plaintiff and incorporated her into a case plan, Ms. Brush should be entitled to absolute immunity for her failure to do so. See Buckley, 509 U.S. at 272-73; Ernst v. Child and Youth Servs., 108 F.3d 486, 495 (3d Cir. 1997) (holding that child social workers "are entitled to absolute immunity for their actions on behalf of the state in preparing for, initiating, and prosecuting dependency hearings" as well as "the formulation and presentation of recommendations to the court in the course of such proceedings").

Likewise, any actions taken by Ms. Brush in the preparation, evaluation, and formulation of recommendations which may or may not have eventually been made to the court, are entitled to absolute immunity. See Ernst, 108 F.3d at 497-98. As the Court of Appeals for the Third Circuit held in Ernst, "[t]o grant [child social workers] absolute immunity for the recommendations that they made to the court but deny them such immunity for the observations and judgments that were the necessary predicate for those recommendations would eviscerate the immunity they did receive and undermine the purposes sought to be advanced by the grant of absolute immunity." Id. at 498. Therefore, it follows that Ms. Brush is absolutely immune for her actions in evaluating information concerning Plaintiff making contact, even if that evaluation and judgment did not lead to a recommendation to the court. Id. at 498 (noting that "the [Supreme] Court has expressly embraced the idea that immunity must be afforded to the evaluation of available data to determine whether and in what manner to seek judicial action") (emphasis added) (citing Buckley, 509 U.S. at 272-73). In a similar vein, any professional judgment that Ms. Brush may have exercised, correctly or incorrectly, regarding the status of the ongoing judicial proceeding which may have prevented Plaintiff from immediately presenting herself to the court is entitled to absolute immunity. See id. at 497-98; see also Millspaugh v. County Dep't of Pub. Welfare, 937 F.2d 1172, 1176 (7th Cir. 1991).

Characterizing Ms. Brush's actions as usurpations of the court's authority, the majority contends that Ernst does not apply because all of Ms. Brush's actions denied the court the opportunity to evaluate any recommendations. In other words, the majority claims that Ernst extends only to recommendations that a social worker makes to the court, and not to the judgment exercised by the social worker leading up to deciding what to recommend and whether to recommend anything at all. However, as stated above, Ernst expressly held that a social worker is entitled to absolute immunity for the formulation of judgments "to determine whether and in what manner to seek judicial action," and that denying absolute immunity for the actions which led to recommendations — whether or not the result of the exercise of professional judgment led to a recommendation to the court at all — would "eviscerate" the absolute immunity afforded to them. See 108 F.3d at 497 (citing Buckley, 509 U.S. at 272-73).

Finding that Ms. Brush is entitled to absolute immunity for her actions — or perhaps more accurately stated, for her inactions — of which Plaintiff complains, comports with strong policy reasons based upon the welfare of our children and the body of those individuals who have made it their chosen profession to act in best interests of children. In stating these policy reasons and in finding Ms. Brush absolutely immune, in no way do I wish to suggest that a parent's custody right to his or her children is not strong. However, what we must keep in mind is that parental rights are not absolute and that they bow to what is in the children's best interests. The policy reasons for affording Ms. Brush immunity are two-fold.

First, parents have available to them other means than suits filed under § 1983 in order to protect against alleged unconstitutional behavior by child social workers, in the same way that alternative means are available to the public from such conduct by prosecutors and judges. See Imbler v. Pachtman, 424 U.S. 409, 428-29 (1976). For example, appellate review is available. See id.; see also Butz v. Economou, 438 U.S. 478, 512 (1985); Ernst, 108 F.3d at 497; Millspaugh, 937 F.2d at 1175-77. In addition, the agency which employs social workers have an incentive to insure that its employees do not violate the Constitution, because the agencies are not immune from liability for abuses committed by employees with policy-making authority. See Ernst, 108 F.3d at 497. And, of course, social workers, like prosecutors and judges, are subject to criminal prosecution under 18 U.S.C. § 242 for willful deprivations of constitutional rights, even if absolutely immune from civil liability. See Briscoe v. LaHue, 460 U.S. 325, 345 (1983).

Second, child social workers are better able to perform their jobs — and therefore ostensibly protect our children — if their judgment is not compromised by the threat of personal liability under § 1983 from a disgruntled parent. As recognized by the Supreme Court, "if litigation expenses mount, social workers . . . may well become less willing to seek placements for children over their parents' objections, whether rational or irrational, even though in their honest judgment the child's best interests demand it." Lehman, 458 U.S. at 514 n. 18. Indeed, "[s]ocial workers often act on limited information; those who tarry, or resolve all doubts in favor of the parents, chance enduring damage to the children." Millspaugh, 937 F.2d at 1176-77 (citing DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189 (1989)). Likewise, defending against such suits would divert the social worker's time and attention away from her official duties, in which case innocent children are the parties who suffer the consequences. See Imbler, 424 U.S. at 424-25. Imposing liability and requiring social workers to defend such suits would impose "intolerable burdens" upon the caseworker who is likely working under serious time constraints and carrying a heavy case load. See id.

In short, "immunity helps social workers put their private interests aside and concentrate on the welfare of children. Unfortunately, immunity also may embolden social workers to pursue their private agendas . . . . One effect is inseparable from the other." Millspaugh, 937 F.2d at 1177. However, it is for the greater good that child social workers proceed in their quasi-judicial capacities without fear of redress from parents who, perhaps sometimes through no fault of their own, simply cannot properly care for their children. As espoused by Judge Learned Hand when commenting on the absolute immunity afforded to police officer witnesses who knowingly provide false testimony against defendants whose liberty is at stake:

"As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than subject those who try to do their duty to the constant dread of retaliation."

Briscoe v. LaHue, 460 U.S. 325, 345 (1983) (quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949)).

Here, in the end, it is far better to leave unredressed the alleged wrongs of Ms. Brush than to subject her to litigation under the circumstances of this case. Allowing the case against Ms. Brush to proceed, thereby subjecting her to potential liability, may provide Plaintiff with money damages to cover expenses for a short period of time; however, it will also send a message to child social workers causing them to second-guess their actions in a way which could forever affect the lives of children who are victims of neglect and abuse.

IV.CONCLUSION

It is well established that federal courts have a duty to examine the issue of subject matter jurisdiction "throughout the pendency of every matter before them" see Children's Healthcare is a Legal Duty, Inc., 92 F.3d at 1419 n. 2, and this Court should therefore fulfill its duty in this case. In doing so, it is clear that like the Kansas District Court, the district court below as well as this Court on appeal do not have jurisdiction to hear the matter. Dismissing the case on jurisdictional grounds would not only be legally sound, it would not leave Plaintiff in any worse position. However, failing to dismiss the case and sending the matter back for trial may have the affect of putting children in a worse position by detrimentally, and unjustifiably under these facts, affecting the people who champion their rights and care for them. The answer as to whether the district court's order dismissing Plaintiff's case should be affirmed could not be more clear; we should affirm, albeit on different grounds. I am not without compassion for Plaintiff. However, neither the district court nor this Court is the proper forum for the relief which she actually seeks. Plaintiff's case belonged in the hands of the Ohio courts and ultimately in the hands of the United States Supreme Court. I therefore respectfully dissent.