                          UNPUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                          No. 12-1045


RONALD REALE; DEBRA REALE; MINOR CHILD T.R.B., through next
friends Ronald and Debra Reale; MINOR CHILD S.R.R., through
next friends Ronald and Debra Reale; MINOR CHILD M.R.R.,
through next friends Ronald and Debra Reale; MINOR CHILD
H.M.R., through next friends Ronald and Debra Reale; MINOR
CHILD S.M.R., through next friends Ronald and Debra Reale;
MINOR CHILD J.R.R., through next friends Ronald and Debra
Reale; MINOR CHILD B.R.R., through next friends Ronald and
Debra Reale,

              Plaintiffs - Appellants,

         v.

WAKE COUNTY HUMAN SERVICES; RAMON ROJANO; WARREN LUDWIG;
LISA CAULEY; VIRGINIA KING; JOHN GUSTAVSON; NIKKI LYONS;
RICHARD HAYNER; NANCY BRAKE; JULIE RIGGINS; SAUNDRA JUDD;
JILL GREEN; GINGER GIALANELLA; JAMIE SESSOMS; LAURIE SCHOLL;
JUDGE ERIC CHASE; JUDGE LORI CHRISTIAN; JUDGE MONICA
BOUSMAN; JUDGE JANE GRAY; STEVE COMBS; RICK CROUTHARMEL;
ALBERT SINGER; WAKE COUNTY GUARDIAN AD LITEM PROGRAM;
BACCUHUS CARVER; SUSAN VICK; MELLONEE KENNEDY; LAS VEGAS
METRO POLICE DEPARTMENT; CHILD HAVEN; WRENN HOUSE; WAKE
HOUSE; KELLI-ANN REALE; TIMOTHY GRIEGO; NATASHA WILDE-BRANT;
ROBIN   DOMINGUEZ;  RHONDA   ANDERBERG;  GERARD   ANDERBERG;
CHRISTOPHER ANDERBERG; MAIN STREET CLINICAL ASSOCIATES; DR.
KARIN YOCH; CAROLINA PSYCHOLOGICAL HEALTH SERVICES; JOYCE
WILLIAMS; COMMISSIONER JOHN VINEYARD; COUNTY OF RIVERSIDE
DEPARTMENT OF SOCIAL SERVICES; BRUCE RUDBERG; COURTNEY
BARZANDEH,

              Defendants - Appellees.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.  James C. Dever III,
Chief District Judge. (5:11-cv-00682-D)
Submitted:   April 20, 2012                 Decided:   May 4, 2012


Before GREGORY, DUNCAN, and KEENAN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Ronald Reale and Debra Reale, Appellants Pro Se.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

              Ronald and Debra Reale, acting on behalf of themselves

and their minor children, appeal the district court’s dismissal

of their pro se civil complaint under 42 U.S.C. § 1983 (2006).

We vacate and remand to the district court.

              The district court premised its dismissal on lack of

jurisdiction.         It    concluded      that       no     federal    question       was      at

issue,    diversity        of   citizenship           was    not     present,       and    “the

domestic-relations exception to federal jurisdiction applies.”

We   review    legal       determinations,         including         the     breadth       of   a

district      court’s      jurisdiction,         de       novo.      Simmons    v.        United

Mortg. & Loan Inv., LLC, 634 F.3d 754, 762 (4th Cir. 2011).

              While     the       district        court          correctly     found       that

diversity     jurisdiction         was   lacking,           we    cannot    agree    that       no

federal     question        was     presented.               The     Reales’        complaint

specifically      invoked         § 1983     as       a     basis     for    jurisdiction,

claiming that state actors had deprived them of their children

without due process. 1             While we have no basis to assess the




      1
       It appears that some of the Defendants named in the
complaint may not be state actors.     Thus, the district court
will have to determine whether the Reales’ complaint fails to
state a viable claim under § 1983 against some or all of the
Defendants.   That uncertainty, however, does not bear upon the
jurisdiction of the district court.



                                             3
viability       of    the     complaint,         its    constitutional          character      is

undeniable.

               Nor    does     the    domestic         relations      exception        undermine

federal question jurisdiction where it otherwise exists.                                       As

construed       by     the      Supreme         Court,      “the        domestic       relations

exception encompasses only cases involving the issuance of a

divorce,       alimony,       or   child        custody     decree.”          Ankenbrandt       v.

Richards, 504 U.S. 689, 704 (1992).                         Federal courts “lack power

to     issue    these        types     of       decrees     because       of     the       special

proficiency developed by state tribunals over the past century

and a half in handling issues that arise in the granting of such

decrees.”       Id.        The exception is statutory, not constitutional,

in   nature,         and    derives     from         construction        of    the     diversity

jurisdiction         statute.         Id.       at     700-01.        Thus,     the       domestic

relations exception “is applied only as a judicially implied

limitation on the diversity jurisdiction; it has no generally

recognized       application          as    a    limitation        on     federal         question

jurisdiction.”             United States v. Johnson, 114 F.3d 476, 481 (4th

Cir.     1997);       see     also     Atwood          v.   Fort      Peck     Tribal        Court

Assiniboine, 513 F.3d 943, 947 (9th Cir. 2008).

               Because       the     Reales’         complaint     is    based       on   federal

question       jurisdiction,           not       diversity       of      citizenship,          the

domestic relations exception does not limit the district court’s



                                                  4
jurisdiction over it.          We therefore vacate the district court’s

dismissal of the complaint for lack of jurisdiction.

            The district court also found that the Reales could

not bring a pro se lawsuit on behalf of their minor children.

On appeal, the Reales concede they cannot press their children’s

claims pro se.          See Myers v. Loudoun Cnty. Pub. Sch., 418 F.3d

395, 401 (4th Cir. 2005).          However, they request remand so that

they can retain counsel on behalf of their children or seek

appointment of counsel by the district court.                  We grant their

request for remand of their children’s claims.                However, if they

fail to retain counsel and the district court does not appoint

counsel,    their   children’s     claims    should     be   dismissed   without

prejudice. 2

            Accordingly, we vacate the district court’s order of

dismissal and remand.           We dispense with oral argument because

the facts and legal contentions are adequately presented in the

materials      before    the   court   and   argument    would   not     aid   the

decisional process.

                                                         VACATED AND REMANDED




     2
        By our order of remand, we make no comment                        on   the
propriety of appointment of counsel in this case.



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