14-3828(L)
Rodriguez v. Anderson

                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order
filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, at 40 Foley Square, in the City of New York, on
the 9th day of December, two thousand fifteen.

Present:    ROBERT A. KATZMANN,
                  Chief Judge,
            RALPH K. WINTER,
            JOHN M. WALKER, JR.,
                  Circuit Judges.
____________________________________________________________

JENNIFER RODRIGUEZ,

       Plaintiff-Appellant-Cross-Appellee,

P.A., JR., an infant minor,

       Plaintiff-Cross-Appellee,

               -v-                                       Nos. 14-3828(L),
                                                         14-3830, 14-3863 (CON)
CARLENE ANDERSON, individually and
in her capacity as a Case Worker for St.
Vincent’s Services, Inc., and ZOILA
VILLALTA, individually and in her
capacity as a Supervisor of Case Workers
for St. Vincent’s Services, Inc.,

       Defendants-Appellees-Cross Appellants,

St. Vincent’s Services, Inc.,



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       Defendant-Appellee,

NATALIA ROSADO, individually and in
her capacity as a Child Protective Specialist
for Administration for Children’s Services,
and ROBERT SALEMI, individually and in
his capacity as a Supervisor of Child
Protective Specialist for Administration for
Children’s Services,

       Defendants-Appellees-Cross-Appellants,

DEBORAH PRIDE and ROSA SOSA, each
individually and in their capacities as Child
Protective Specialists for the Administration
for Children’s Services,

       Defendants-Cross-Appellants,

NEW YORK CITY ADMINISTRATION
FOR CHILDREN’S SERVICES, CITY OF
NEW YORK, ZANETTE SARGEANT,
individually and in her capacity as a Child
Evaluation Specialist for Administration for
Children’s Services, and JOHN
MATTINGLY, individually and in his
capacity as Commissioner of Administration
for Children’s Services,

       Defendants-Appellants.*

For Plaintiff-Appellant-Cross-        ROBERT OSUNA, New York, NY.
Appellee Jennifer Rodriguez:
For Plaintiff-Cross-Appellee          PATRICK G. RIDEOUT (Jonathan J. Lerner, Robert A.
P.A., Jr.:                            Fumerton, on the brief), Skadden, Arps, Slate, Meagher &
                                      Flom LLP, New York, NY.
For Defendants-Appellees-Cross-       CHARLES E. O’BRYAN (lead appeal) and RICHARD
Appellants Carlene Anderson           IMBROGNO (cross appeal), Marshall, Dennehey, Warner,
and Zoila Villalta, and Defendant- Coleman & Goggin, New York, NY.
Appellee St. Vincent’s Services, Inc.:

For Defendants-Appellees-Cross-       DAVID H. SCHULTZ (Suzanne M. Halbardier, on the brief),
                                                       
*
   The Clerk of the Court is directed to amend the caption to conform to the above.

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Appellants Natalia Rosado and       Barry, McTiernan & Moore LLC, New York, NY.
Robert Salemi, Defendants-Cross-
Appellants Deborah Pride and Rosa
Sosa, and Defendants-Appellants
New York City Administration for
Children’s Services, City of New York,
Zanette Sargeant, and John Mattingly.

       Appeal from the United States District Court for the Eastern District of New York
(Gleeson, J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

and DECREED that these appeals are DISMISSED.

       These appeals arise out of the tragic disappearance of seven-year-old P.A., Jr. (“PA”).

P.A. was removed from his family’s care on December 29, 2009, by the New York City

Administration for Children’s Services (“ACS”) and placed in a foster home supervised by St.

Vincent’s Services, Inc. (“St. Vincent’s”) the following day. He ran away from his foster home

on January 22, 2010, and has not been seen since.

       After P.A. ran away, his mother, Jennifer Rodriguez, on behalf of herself and P.A., sued

the City of New York, ACS, St. Vincent’s, and various ACS and St. Vincent’s employees in

their individual and official capacities. She alleged that the defendants deprived her and her son

of their constitutional rights by improperly removing P.A. to foster care and by failing to

safeguard him after that point. P.A.’s father, Patrick Alford, Sr., brought similar claims on behalf

of himself, his son, and his other daughter with Rodriguez. With the help of his appointed pro

bono counsel and guardian ad litem, P.A. also brought federal and state claims on his own

behalf. The district court then dismissed Rodriguez and Alford’s claims on P.A.’s behalf for lack

of standing.

       All parties eventually moved for summary judgment on at least some of the claims. In a

memorandum and order issued on September 11, 2014, the district court dismissed all of



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Rodriguez’s claims, three of P.A.’s claims, and deferred making a decision on Alford’s claims

pending further factual findings. The district court also denied the individual defendants’

motions for summary judgment on qualified immunity grounds on all but two of P.A.’s claims.

         Rodriguez appealed the grant of summary judgment on three of her claims. The

individual defendants cross-appealed the court’s denial of their motions for summary judgment

on PA.’s claims, asserting that they are entitled to qualified immunity.

         Carlene Anderson, the case worker responsible for P.A. during his time in foster care, and

Zoila Villalta, Anderson’s supervisor, are hereinafter referred to as the “St. Vincent’s

Defendants.” Natalia Rosado, the ACS Child Protective Specialist assigned to P.A.’s case, her

supervisor, Robert Salemi, and two other Child Protective Specialists involved in removing P.A.

from his family’s care, Deborah Pride and Rosa Sosa, are referred to as the “City Defendants.”

    I.      RODRIGUEZ’S APPEAL

         As a threshold matter, we must determine if we have jurisdiction to hear this case.

“Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to

declare the law, and when it ceases to exist, the only function remaining to the court is that of

announcing the fact and dismissing the cause.” Steel Co. v. Citizens for a Better Env’t, 523 U.S.

83, 94 (1998) (quoting Ex parte McCardle, 7 Wall. 506, 514 (1868)).

         We conclude that we do not have jurisdiction to hear Rodriguez’s appeal at this time.

“The historic rule in the federal courts has always prohibited piecemeal disposal of litigation and

permitted appeals only from final judgments.” Fed. R. Civ. P. 54 (advisory committee’s note to

1946 amendment). Nonetheless, under Rule 54(b), a district court can determine, in its

discretion, if an immediate appeal is warranted in the interests of justice by issuing a certification

along with an explanation for its determination. See, e.g., Harriscom Svenska AB v. Harris




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Corp., 947 F.2d 627, 629 (2d Cir. 1991). “But the exercise of this discretion must follow the

procedures set out by the Rule, and the requirement of an express determination that there is no

just reason for delay has not been taken lightly by this Circuit.” HBE Leasing Corp. v. Frank, 48

F.3d 623, 631 (2d Cir. 1995).

       This Court has held that it is possible to have jurisdiction over a non-final order even

when the district court did not formally enter a Rule 54(b) certification:

       [W]hen there is a judgment in a consolidated case that does not dispose of all
       claims which have been consolidated, there is a strong presumption that the
       judgment is not appealable absent Rule 54(b) certification. In highly unusual
       circumstances, a litigant may be able to overcome this presumption and convince
       us that we should consider the merits of the appeal immediately, rather than
       waiting for a final judgment.

Hageman v. City Investing Co., 851 F.2d 69, 71 (2d Cir. 1988) (emphasis added). But the

exception identified in Hageman has been restricted to “highly unusual circumstances,” for

example, where the district court “clearly intended” to enter a final judgment but inadvertently

failed to do so. See, e.g., Kamerman v. Steinberg, 891 F.2d 424, 429–30 (2d Cir. 1989).

       The parties do not point to any such “highly unusual circumstances” in this case. P.A.

notes that he “twice requested that the District Court enter final judgment” on two of his claims,

but that he was “unsuccessful.” Brief for P.A., Jr. at 23. Rodriguez never sought Rule 54(b)

certification, and she does not identify any evidence that the district court intended to but

inadvertently failed to certify its order for immediate review. Indeed, it is clear from that order

that the district court anticipated that trial would go forward on P.A.’s claims, and the court

scheduled a trial date during the follow-up status conference. The district court also deferred

judgment on Alford’s claims, most of which are duplicative of Rodriguez’s. “[W]e have

repeatedly noted that the district court generally should not grant a Rule 54(b) certification ‘if the




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same or closely related issues remain to be litigated.’” Novick v. AXA Network, LLC, 642 F.3d

304, 311 (2d Cir. 2011) (quoting Harriscom, 947 F.2d at 629).

          Accordingly, Rodriguez’s appeal is dismissed. Rodriguez may file a motion in the district

court requesting Rule 54(b) certification in order to reinstate her appeal, but we note that the

district court is under no obligation to grant her request. Cf. Citizens Accord, Inc. v. Town of

Rochester, 235 F.3d 126, 128 (2d Cir. 2000) (“[W]e do not mean to suggest that such a

certification would have been appropriate in this case. Respect for the ‘historic federal policy

against piecemeal appeals’ requires that a Rule 54(b) certification not be granted routinely.”

(quoting Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 8 (1980))).

    II.      DEFENDANTS’ CROSS-APPEALS

          Although the district court’s order was likewise not final with respect to P.A.’s claims,

the individual City and St. Vincent’s Defendants contend that this Court has jurisdiction to hear

their cross-appeals of the district court’s denial of qualified immunity under the collateral order

doctrine. “It is well-settled that a decision denying a defendant the defense of qualified immunity

satisfies the collateral order doctrine ‘to the extent that it turns on an issue of law . . .

notwithstanding the absence of a final judgment.’” Coollick v. Hughes, 699 F.3d 211, 217 (2d

Cir. 2012) (quoting Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)). “The principal justification

for allowing such appeals is that ‘[t]he entitlement is an immunity from suit rather than a mere

defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously

permitted to go to trial.’” Bolmer v. Oliveira, 594 F.3d 134, 140 (2d Cir. 2010) (quoting Puerto

Rico Aqueduct & Sewer Auth v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993)).

          Our jurisdiction under the collateral order rule is limited, however:

          Where a court’s denial of summary judgment is based on a determination that
          certain factual findings are essential to resolving the qualified immunity question,



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       the denial is not reviewable under the collateral order doctrine. This Court can,
       nonetheless, review a denial of qualified immunity to the extent it can be resolved
       on stipulated facts, or on the facts that the plaintiff alleges are true, or on the facts
       favorable to the plaintiff that the trial judge concluded the jury might find.

Coollick, 699 F.3d at 219 (citations, alterations, and internal quotation marks omitted).

       On appeal, the defendants raise several different arguments to support their claim that the

district court erred in not granting them qualified immunity. First, the City Defendants contend

that because P.A. did not have a “clearly established right” to be placed in or transferred to

kinship foster care or in a “linguistically compatible foster home,” they are entitled to qualified

immunity as a matter of law on P.A.’s second, third, and fourth claims. The City Defendants also

argue that they were not personally responsible for P.A.’s placement in foster care, and therefore

cannot be held liable under §1983. Separately, the St. Vincent’s Defendants assert that qualified

immunity is appropriate because their conduct was “objectively reasonable.”

       As noted, this Court only has jurisdiction under the collateral order doctrine to hear

interlocutory appeals involving “neat abstract issues of law.” Johnson v. Jones, 515 U.S. 304,

317 (1995) (quoting 5A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §

3914.10, 664 (1992)); see, e.g., Tolbert v. Queens Coll., 164 F.3d 132, 138 (2d Cir. 1999)

(“Where, however, the district court has denied summary judgment because resolution of the

immunity defense requires the adjudication of issues of fact that are inseparable from the merits,

the denial is not immediately appealable.”). Because the district court explicitly found that

disputed issues of material fact preclude resolution of the immunity defense, see P.A. v. City of

New York, 44 F. Supp. 3d 287, 306, 309–10 (E.D.N.Y. 2014), we do not have jurisdiction to

consider the defendants’ cross-appeals. To the extent that the City Defendants contend that they

are entitled to qualified immunity as a matter of law because P.A. did not allege a violation of

any “clearly established right,” we find that this argument was not fairly raised below. See P.A.,



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44 F. Supp. 3d at 309 n.14. “In general, ‘a federal appellate court does not consider an issue not

passed upon below.’” Booking v. Gen. Star Mgmt. Co., 254 F.3d 414, 418 (2d Cir. 2001)

(quoting Singleton v. Wulff, 428 U.S. 106, 120 (1976)).

       Accordingly, for the foregoing reasons, these appeals are DISMISSED.

                                              FOR THE COURT:
                                              CATHERINE O’HAGAN WOLFE, CLERK




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