Sammye R. HOLLOWAY, Plaintiff-Appellant, v. Sally BRUSH; Clermont County, Ohio, Defendants-Appellees, 220 F.3d 767

BOGGS, J., delivered the opinion of the court, in which BOYCE F. MARTIN, JR., C. J., MERRITT, DAVID A. NELSON, RYAN, ALAN E. NORRIS, SUHRHEINRICH, SILER, BATCHELDER, DAUGHTREY, MOORE, COLE, and GILMAN, JJ., joined. CLAY, J. (pp. 780-805), delivered a separate dissenting opinion. OPINION BOGGS, Circuit Judge. The district court awarded

summary judgment to all defendants in Sammye Holloway’s § 1983 suit for damages, brought after an order of the Clermont County Court of Common Pleas Juvenile Division terminated her parental rights and granted permanent custody of her children to the Clermont County Department of Human Services (“CCDHS”). Holloway appealed the district court’s ruling as to two of the defendants, Sally Brush and Clermont County. A three-judge panel of this court held that both these defendants enjoy absolute immunity from suit for actions taken in a judicial context. See Holloway v. Ohio, 179 F.3d 431 (6th Cir.1999).

The full court then granted a rehearing en banc to decide the question of the extent to which a public child services agency caseworker, in this case Sally Brush, may be entitled to immunity for her acts in connection with a child custody proceeding. See Holloway v. Ohio, 197 F.3d 236 (6th Cir.1999). For the reasons that follow, we reverse the district court’s ruling that Sally Brush enjoys absolute immunity for her conduct in this case, and its grant of

summary judgment in her favor on that basis. The district court’s grant of

summary judgment to Clermont County, however, is affirmed. I Sammye Holloway, a mother who despite a high-school diploma reads and writes at a third-grade level due to dyslexia, lost track of her two children, then six months and two years old, when, as alleged in her complaint, her husband threw her out of their Oklahoma home in November 1988 and absconded with the children to another state. Over several years, she made numerous attempts to locate them through the relevant agencies of many states.

She had no success until, in 1992, her letter to authorities in the State of Washington led them to notify Ohio, resulting ultimately in contact between Holloway and the CCDHS in the person of Sally Brush, a caseworker there. The sequence of events appears to be as follows. In 1990, after an odyssey through several states, a sequence of failed jobs and the three of them living out of vehicles, the father and the children were stranded in Clermont County, Ohio after his car broke down there. In November, Ohio authorities became aware that the children were living in a car, in extremely unsanitary conditions.

Proceedings were instituted to deprive the father of custody on grounds of abuse and to award custody to CCDHS, preparatory to having the children adopted. CCDHS was granted temporary custody of the Holloway children on November 29, 1990. Efforts to notify Holloway by mail were fruitless, so Clermont County attempted to notify her of the proceedings by publication in the spring of 1991. CCDHS also attempted to place the children with a paternal relative in Spokane, Washington, but this was unsuccessful and the children were returned to Ohio in May or June of 1992.

Brush began administering the children’s case plan on March 1, 1992. In November 1992, Brush provided an affidavit that Sammye Holloway’s whereabouts were unknown, permitting her to be served with notice by publication in The Clermont Sun. On December 15, 1992, Brush testified before a referee appointed by the Clermont County Juvenile Court that the children’s father should not regain custody and recommended that permanent custody be awarded to CCDHS. The referee agreed, embodying his recommendations in a report filed on January 26, 1993.

See Twelfth Appellate District Court of Appeals, Original Action in Habeas Corpus, Case No. CA96-06-052, Stipulated Statement of Evidence, at ¶ 20 (October 11, 1996). Ohio law provides that such a referee’s recommendations are to be reviewed, and may be adopted, modified, or set aside by the juvenile court, which also “may hear additional testimony....” Ohio Rev.Code Ann. § 2151.16 (Baldwin 1994). Brush continued to follow the process throughout 1993, in coordination with Clermont County Assistant Prosecutor Thomas Flessa.

On May 12, 1993, the Washington Department of Social and Health Services wrote to CCDHS, addressing the letter to both Melissa O’Farrell, Supervisor, and Sally Brush, Social Worker, attaching the letter Washington had received from Holloway requesting information about her children. A copy of the letter was sent to Holloway. Brush received that letter on May 18th, and called Flessa about it that day. Her notes on this call read: “5-18-93 Telephone call to Tom Flessa, told him about letter. Legally we have custody.” Supplemental Brief of Appellees (En Banc Rehearing) at 27 (Appendix C: Holloway/Dictation).

On May 20, 1993, Brush received a letter from Holloway requesting that she put the children on a plane to Kansas City, where Holloway proposed to pick them up. The following day Brush and Holloway spoke by telephone. At that time, CCDHS had temporary custody of the children, while the juvenile court was considering the referee’s recommendation regarding permanent custody for CCDHS. But that is not what Brush told Holloway.

For reasons that have not been satisfactorily explained, in their telephone conversation on May 21, 1993 Bnush falsely informed Holloway that CCDHS had already been awarded permanent custody of her children. Brush concedes this, but characterizes it as a “misstatement.” Supplemental Brief of Appellees (En Banc Rehearing) at 15. Brush’s own notes of that conversation, however, indicate she did not merely mis-speak: “I told Mrs. Holloway her best bet is-to talk to a lawyer about her rights. At this point, our agency has permanent custody.” Id. at 27 (Appendix C: Holloway/Dictation).

Moreover, Holloway claims that Brush told her “they had taken away her parental rights whether she likes it or not,” and refused to discuss the matter further, advising Holloway to get a lawyer. Brief for Appellant at 6. Brush repeated the latter advice in a letter to Holloway dated June 2, 1993.

Although the matter of awarding permanent custody to CCDHS was still pending before the juvenile court, the long-sought appearance of the children’s mother, who had not been heard at the December proceeding, was not broúght to the court’s attention by Brush, nor by assistant prosecutor Flessa, who knew as early as May 18th that Holloway had surfaced.

Indeed, Holloway alleges that when, on May 24, 1993 Brush failed to keep an appointment to speak with Holloway by phone, due (as Brush’s June 2nd letter states) to the fact that Brush was out of her office that afternoon, Brush was actually in court to-file a document related to the Holloway custody case. Brief for Appellant at 6. The record indicates that a Case Plan Document Amendment was in fact filed on that date. See Twelfth Appellate District Court of Appeals, Original Action in Habeas Corpus, Case No. CA96-06-052, Stipulated Statement of Evidence,, at ¶24 (October 11, 1996).

Brush’s telephone log of this period continues with entries relating to the children’s medical coverage, placement in school as foster children, and other details. On June 15th, the day before the court acted on permanent custody, there is the following entry: “6-15-93 Telephone call to [assistant prosecutor] Tom Flessa. He is writing the letter to Sam-mye Holloway. I should not worry needlessly at'this point about her disrupting the whole process. We did everything legally as to publication/notice” (emphasis added). Supplemental Brief of Appellees (En Banc Rehearing) at 28 (Appendix C: Holloway/Dictation).

On June 16, 1993, the court accepted the referee’s report by written order, awarding permanent custody of the children to CCDHS. (The father, Albert Holloway, appealed the juvenile court’s award of permanent custody to CCDHS; this was affirmed. See In the Matter of T.J.

Holloway, John Holloway, 1994 WL 18161, *1 (Oh.App. 12 Dist., Jan. 24, 1994) (unpublished).) On June. 18, 1993, two days after the juvenile court acted, Flessa wrote Sammye Holloway to inform her that CCDHS had permanent custody of her sons, and continued “I suggest that you contact an attorney in regard to your legal rights, as our plan is to seek adoptive homes for the children.” Sammye Holloway moved to have the order of permanent custody set aside by the juvenile court; the motion was denied and Holloway appealed.

The Ohio Court of Appeals ruled that Clermbnt County had not followed proper procedures to give her notice, and remanded .the case for a new hearing. See In re Holloway, No. CA95-09-064, 1996 WL 227481 (Ohio App. 12 Dist., May 6, 1996) (unpublished). But no rehearing was held, and Holloway sought habeas corpus relief. Ultimately, the Ohio Supreme Court denied Holloway’s habeas petition, in part at least because the Ohio Court of Appeals had previously remanded the case to Clermont County for renewed proceedings with Holloway present.

In its ruling the Ohio Supreme Court specifically relied on and reiterated assurances that Holloway’s rights would be protected by renewed custody proceedings. See Holloway v. Clermont County Dep’t of Human Servs., 80 Ohio St.3d 128, 131, 684 N.E.2d 1217, 1220 (Ohio 1997). Nevertheless, to this day, seven years after CCDHS secured permanent custody of the Holloway children without their mother being heard, no rehearing has taken place and Holloway’s sons remain in the care of the foster parents who adopted them.

In March 1994, Holloway sued the State of Ohio, the Ohio Department of Human Services, Clermont County, and Sally Brush for monetary damages in federal district court in Ohio under 42 U.S.C. § 1983. The suit against the first two plaintiffs was dismissed as barred by the Eleventh Amendment’s guarantee of a state’s sovereign immunity from suit in federal court. Holloway now appeals the district court’s grant of

summary judgment, on grounds of absolute immunity, to defendants Clermont County and Sally Brush. II This court reviews a district court’s grant of

summary judgment de novo. See, e.g., Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir.1996), cert. denied, 519 U.S. 1055, 117 S.Ct. 683, 136 L.Ed.2d 608 (1997).

Summary judgment is called for “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c). The court will view the facts, and all inferences to be drawn-from them, in the light most favorable to the nonmoving party. See, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The nonmoving party, in answering a motion for

summary judgment that is supported properly, must show that there is, indeed, a genuine issue for trial. See Fox v. Van Oosterum, 176 F.3d 342, 347 (6th Cir.1999). Such an issue exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A The district court concluded that Clermont County was absolutely immune from suit because it acted as an integral part of the judicial system in the matter of the custody of the Holloway children.

However, counties and other local governments—while “persons” for the purposes of § 1983 liability in the sense that they can be sued—-do not enjoy the defenses of absolute and qualified immunity that are available to human defendants sued in their individual capacities. See Owen v. City of Independence, 445 U.S. 622, 650, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980); Monell v. Dep’t of Social Serv., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Leach v. Shelby County Sheriff, 891 F.2d 1241, 1245 (6th Cir.1989).

That is to say, the liability of counties and other local governments under § 1983 depends solely on whether the plaintiffs constitutional rights have been violated as a result of a “policy” or “custom” attributable to the county or local government. Nevertheless, the district court reached the correct result in awarding

summary judgment to Clermont County, as we shall explain below. Therefore we shall affirm its judgment, although on other grounds. See Andrews v. Ohio, 104 F.3d 803, 808 (6th Cir.1997) (holding this court may affirm on any grounds supported by the record, even if different from the district court’s grounds). Clermont County could only be held liable if its “official policy,” not the acts of its executives or agents, were the source of Holloway’s injury, as the Supreme Court has made clear: [A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents.

Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983. Monell, 436 U.S. at 694, 98 S.Ct. 2018. Thus, “a municipality cannot be made liable by application of the doctrine of re-spondeat superior.” Pembaur v. City of Cincinnati, 475 U.S. 469, 477, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). The acts in question must be “acts which the municipality has officially sanctioned or ordered.” Id. at 480, 106 S.Ct. 1292.

Under appropriate circumstances, even a single act or decision may qualify as an official government policy, though it be unprecedented and unrepeated. See ibid. But in any case, acts will only be construed as official policy when they are those of a body or an official “responsible for establishing final government policy respecting such activity....” Id. at 483, 106 S.Ct. 1292.

Holloway has not even alleged, much less adduced evidence to support, a claim that it was Clermont County’s official policy to dispose of child custody issues without hearing each of the child’s parents, a claim that would be most unusual since such an official policy, in addition to its being blatantly unconstitutional, see Lassiter v. Dep’t of Social Serv. of Durham County, 452 U.S. 18, 27, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), would never be tolerated by any conceivable majority.

Furthermore, neither Brush nor Flessa were final decisionmakers in Clermont County, and the record neither names nor implicates other individuals nor any county council or decisionmaking body. For these reasons, the decision of the district court to grant

summary judgment to Clermont County was correct and is affirmed. B In the Brief for Appellant originally filed by Holloway with this court, the district court’s ruling that Brush and Cler-mont County were immune from suit as actors in a judicial process was challenged based on the argument that the Clermont County courts lacked jurisdiction over Holloway and hence could not be entitled to immunity.

This argument is clearly mistaken; it confuses personal jurisdiction, arguably lacking in this case, with subject matter jurisdiction, which the Clermont County Court of Common Pleas, Juvenile Division, indisputably had. Only in the absence of subject matter jurisdiction are judicial actors devoid of the shield of immunity. See Stump v. Sparkman, 435 U.S. 349, 356-57, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978) (citing Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351, 20 L.Ed. 646 (1872)).

When, however, a court with subject matter jurisdiction acts where personal jurisdiction is lacking, judicial and pros-ecutorial absolute immunity remain intact. See id. at 355-56. The district court ruling leaves unresolved, however, whether Brush, as a social worker, could claim prosecutorial immunity for her particular actions in this case. Her immunity was not addressed by Holloway apart from the preceding, and unavailing, contention regarding jurisdiction. Rather, Holloway attacked for the first time in her reply brief Brush’s claim that she had immunity because she was involved' in prosecution.

The question thus arises as to whether that issue has been waived and is not reviewable on appeal. See United States v. Washington, 127 F.3d 510, 513 (6th Cir.1997) (citing United States v. Perkins, 994 F.2d 1184, 1191 (6th Cir.1993)) (holding that issues raised for the first time in a reply brief are not reviewable). The doctrine of Washington and Perkins is intended to ensure that the opposing party has had a full and fair opportunity to consider and respond to the issue in question. In the instant case, the issue was first argued to this court by Brush, not Holloway.

The Brief for Appellee, at 15-17, arguing in the alternative, defends the district court’s ruling on this very ground, citing and analyzing cases that Holloway’s Reply Brief for Appellant, at 11-18, subsequently addressed. Thus, this is not the situation that Washington and Perkins enjoin, in which a matter is raised for the first time in the reply brief, leaving the other party at a loss to respond. Holloway’s initial brief, challenging the district court’s ruling of absolute immunity, obviously gave Brush notice that her absolute immunity was contested.

This properly put before this court the issue of her absolute immunity. Brush responded with a reason for absolute immunity: her prose-cutorial role. Moreover, in Holloway’s supplemental brief, filed for this rehearing en banc, the entire issue of Brush’s entitlement to absolute immunity is once again thoroughly discussed. Brush thus had another opportunity to address in full the issue of her immunity and Holloway’s arguments to the contrary. The issue is, therefore, properly before this court.

III Judges and other court officers are absolutely immune from suit on claims arising out of their performance of judicial or quasi-judicial functions, Pierson v. Ray, 386 U.S. 547, 553-54, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Bush v. Rauch, 38 F.3d 842, 847 (6th Cir.1994), but not from suits that arise out of other conduct, Forrester v. White, 484 U.S. 219 228, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988); Clinton v. Jones, 520 U.S. 681, 694-95, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997).

Absolute immunity is determined by a functional analysis that 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, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993) (quoting Burns v. Reed, 500 U.S. 478, 486, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991)). The official seeking absolute immunity bears the burden of showing that immunity is justified in light of the function she was performing. See Burns, 500 U.S. at 486, 111 S.Ct. 1934. This court has held that under certain circumstances, social workers are entitled to absolute immunity.

See Kurzawa v. Mueller, 732 F.2d 1456, 1458 (6th Cir.1984) (holding that social workers are entitled to absolute immunity when prosecuting child delinquency petitions); Salyer v. Patrick, 874 F.2d 374, 377-78 (6th Cir.1989) (recognizing the functional orientation of the absolute immunity doctrine and holding that social workers are entitled to absolute immunity when filing child abuse petitions); but see Achterhof v.

Selvaggio, 886 F.2d 826, 830 (6th Cir.1989) (holding that social workers are not entitled to absolute immunity when deciding whether to open or continue an investigation, or when deciding to enter a parent’s name in a central register of abusers, all of which are administrative or investigative by nature rather than prosecutorial). In all three of these cases, this court has explicitly analogized the social workers to prosecutors for purposes of the functional analysis. Thus, to determine the scope of the immunity extended to social workers, we look to the scope of prosecutorial immunity.

Absolute prosecutorial immunity is justified "only for actions that are connected with the prosecutor’s role in judicial proceedings, not for every litigation-inducing conduct.” Burns, 500 U.S. at 494, 111 S.Ct. 1934. “Prosecutors are entitled to absolute immunity for conduct ‘intimately associated with the judicial phase of the criminal process.’ ” Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976).

Prosecutors are not absolutely immune when they perform administrative, investigative, or other functions; for example, when they give legal advice to the police, hold a press conference, or fabricate evidence. Ibid. “[T]he actions of-a prosecutor are not absolutely immune merely because they are performed by a prosecutor. Qualified immunity represents the norm.... The question, then, is whether the prosecutors have carried their burden of establishing that they were functioning as ‘advocates’” when they performed the actions complained of. Buckley, 509 U.S. at 273-74, 113 S.Ct. 2606 (emphasis added).

The Supreme Court has extended absolute immunity to prosecutors only where their challenged acts were performed while seiying as an advocate in legal proceedings. Kalina v. Fletcher, 522 U.S. 118, 125, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997). This Circuit has followed the Supreme Court closely. Prosecutorial immunity extends to “ ‘a prosecutor’s decision to file a criminal complaint and seek an arrest warrant and the presentation of these materials to a judicial officer.’ ” Manetta v. Macomb County Enforcement Team, 141 F.3d 270, 274 (6th Cir.1998) (quoting Ireland v.

Tunis, 113 F.3d 1435, 1446 (6th Cir.), cert. denied, 522 U.S. 996, 118 S.Ct. 560, 139 L.Ed.2d 401 (1997)). Prosecutors are not absolutely immune, however, when they perform administrative, investigative, or other functions.

Manetta, 141 F.3d at 274 (denying absolute immunity to a prosecutor for investigating a couple and holding them on extortion charges without probable cause). “Sixth Circuit precedent has established that ‘the critical inquiry is how closely related is the prosecutor’s challenged activity to his role as an advocate intimately associated with the judicial phase of the criminal process.’ ” Pusey v. City of Youngstown, 11 F.3d 652, 658 (6th Cir.1993) (emphasis added) (quoting Joseph v. Patterson, 795 F.2d 549, 554 (6th Cir.1986), cert. denied, 481 U.S. 1023, 107 S.Ct. 1910, 95 L.Ed.2d 516 (1987)).

The analytical key to prosecutorial immunity, therefore, is advocacy— whether the actions in question are those of an advocate. See Buckley, 509 U.S. at 273-74, 113 S.Ct. 2606; Kalina, 522 U.S. at 125, 118 S.Ct. 502; Pusey, 11 F.3d at 658. By analogy, social workers are absolutely immune only when they are acting in their capacity as legal advocates — initiating court actions or testifying under oath — not when they are performing administrative, investigative, or other functions. The case before us turns on whether the actions of which Holloway complains were taken by Brush in her capacity as a legal advocate.

IV As a caseworker, Brush’s official position and responsibilities were defined by Ohio statutes. These provide that a “public children services agency ... shall prepare and maintain a case plan for any child to whom the agency is providing services;” this applies, for example, when, as in this case, that agency has temporary custody of the child. Ohio Rev.Code Ann. § 2151.412(

A) and (A)(2) (Baldwin 1994). Day-to-day responsibility for that case plan’s management is in the hands of the caseworker. Id. at § 2151.416(B)(1). In such a situation, the agency preparing the case plan “shall attempt to obtain an agreement among all parties, including, but not limited to, the parents, guardian, or custodian of the child and the guardian ad litem of the child regarding the content of the case plan.” Id. at § 2151.412(D). Two aspects of this statutory scheme are of considerable relevance to this case. First, the agency, CCDHS, as temporary custodian of the children, was one of the parties.

Second, it was a party with a statutorily created duty to attempt to obtain the agreement of the other parties, including the parents. As the agency caseworker, this was plainly Brush’s responsibility, but Brush chose to construe her role otherwise. In violation of the clear mandate of the statute, she described herself to Holloway as her “adversary.” Rather than first seeking to forge an agreement with Holloway, as the law required her to do, she refused to discuss the case with that parent. Instead, she advised Holloway to obtain an attorney.

Had Brush attempted to obtain Holloway’s participation in the proceedings and agreement with the case plan, and failed to obtain such agreement, then perhaps Brush and Holloway would have become adverse parties in a court hearing. In that event, however, the advocate for the child services agency would be, not Brush, but the county prosecutor and assistant prosecutors. To be sure, in such a case, Brush would have absolute immunity for her testimony or recommendations given in court concerning the children’s best interests as she saw the matter.

But in claiming absolute immunity for her out-of-court actions as a caseworker, Brush arrogates to herself an adversarial and quasi-prosecutorial role which Ohio law did not intend her to have. Once again, absolute immunity extends to social workers only when they are acting in the capacity of legal advocates. It is apparent that Ohio law does not envision a caseworker’s principal function as that of an advocate, although at a certain stage in custody proceedings a caseworker might be called by the prosecutor to present reports or make recommendations that, functionally, constitute advocacy.

But the acts for which Brush is being sued- — 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 her rights were severed — do not come within that description. The information withheld by Brush in the case before us was not analogous to the evidence that may be analyzed, and presented or withheld, by a prosecutor in a criminal proceeding.

Rather, it was the fact that a party long sought by the court had appeared and wished to address the court to assert her legal rights; it was the fact that the juvenile court’s decision on the recommendations of the referee, who had held the December 15, 1992 hearing and filed the January 26, 1993 report, was still pending, and the fact that in April 1993 a hearing had been held to afford the children’s father an opportunity to assert his rights; it was the fact that Holloway, had she not been misinformed by Brush, would have been able to ask the court for a similar hearing on her rights before a decision were made.

This is not evidence in the case, but rather administrative information about the case and its posture. Nor are Brush’s actions analogous to a prosecutor’s decision about whether a given witness shall or shall not testify, which is entitled to absolute immunity. See Buckley, 509 U.S. at 272-73, 113 S.Ct. 2606 (citing Imbler, 424 U.S. at 430 n. 32, 96 S.Ct. 984). Whatever latitude a prosecutor has to control the testimony of his witness is irrelevant here. Witnesses other than the defendant generally have no right to testify in criminal proceedings. But Holloway did have a right to be heard by the juvenile court.

Moreover, Holloway was in no sense Brush’s witness, and this is not a situation of a prosecutor’s controlling Brush’s actions. Holloway was a party, analogous to a defendant in a criminal proceeding, whose right to be heard in court may have been denied by Brush’s actions under color of law.

Once such potential analogies to prose-cutorial functions are seen as spurious, it is difficult to see in what sense Brush’s actions were, in the words of the Magistrate Judge’s Report and Recommendation adopted by the district court, “an integral part of the judicial process.... ” It is true that Brush was involved “in initiating the court proceedings involving the Holloway children and in testifying on behalf of the interests of the children in court.” Ibid. But those are not the actions complained of.

It is her out-of-court actions, misinforming Holloway and failing to inform the court of the latter’s appearance, that are the basis of this suit. Brush may have been an integral part of the judicial process at other stages. But such an involvement is not, by itself, sufficient for absolute immunity. The Supreme Court has explicated the appropriate standard on several occasions. “The question ... is whether the prosecutors have carried their burden of establishing that they were functioning as ‘advocates’ ” (as opposed, for example, to auxiliary police) when they performed the actions complained of.

Buckley, 509 U.S. at 274, 113 S.Ct. 2606; see also Kalina, 522 U.S. at 125, 118 S.Ct. 502 (extending absolute immunity to prosecutors only where their challenged acts were performed while serving as an advocate in legal proceedings); Pusey, 11 F.3d at 658 (immunity turns on the prosecutor’s role as an advocate intimately associated with the judicial phase of the criminal process).

Even if Brush could successfully explain how failing to tell the court that Holloway had appeared and wished to assert her parental rights, lying to Holloway about her rights, and failing to inform Holloway that the matter was still pending were intimately connected with the judicial process, she has not explained how they were the functions of an advocate or consistent with her statutory role.

Nor are the actions of which Holloway complains analogous to recommendations made by caseworkers to the court, or the “formulation of professional judgments that served as the basis for” such recommendations, which the Third Circuit has held are entitled to immunity. See Ernst v. Child & Youth Servs., 108 F.3d 486 (3d Cir.1997). In Ernst, the court had the opportunity to evaluate the caseworkers’ actions and to accept or reject their suggestions. In the case before us, Brush’s actions denied the court the opportunity to accept or reject the results of her judgment.

A jury could reasonably find that Brush appropriated the entire judicial process to herself by hiding Holloway and the court from each other and feeding them inaccurate information by act (in Holloway’s ease) and omission (in both cases). Even granting arguendo that Brush’s actions were motivated by her “formulations of professional judgment,” the actions themselves bear no resemblance to recommendations made to the court. They were, rather, usurpations of the court’s authority.

Even if such motivations could legitimate Brush’s actions, it would be through qualified immunity, not absolute immunity, and she has not claimed qualified immunity. V In addition to disagreeing with the above reasoning on the issue of Brush's absolute immunity, the dissent also raises a variety of reasons justifying its new-found assertion that this court lacks subject matter jurisdiction in this action-a position that the dissent admits the Holloway panel somehow failed to consider before.

Its exhaustive arguments in favor of dismissal on that basis-whether based on attempted application of the doctrines of the law of the case, or Rooker-Feldman-all founder on the plain fact that the case before this court simply is not a custody case, but a § 1983 damages claim. That Holloway would also like this court to restore her children to her, which it cannot do, is irrelevant (though unsurprising given that she still has not been heard in a proper forum).

The dissent's literalistic construction of her pro se pleadings against her, to divine "the true nature of the complaint," and uncover there a bid for custody "under the guise of" an action for damages, invites in this instance a return to the formalisms of the writ system with its traps for the unwary, an invitation that we decline on numerous grounds, not least that it contravenes the injunction of Fed. R.Civ.P. Rule 8(f), that pleadings are to "be so construed as to do substantial justice." “The doctrine of law of the case comes into play only with respect to issues previously determined.” Quern v.

Jordan, 440 U.S. 332, 347, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). The issue of Brush’s immunity from suit, the grounds of the district court’s grant of

summary judgment, was never raised, much less decided, in any earlier action in which Holloway was involved, whether in Ohio or Kansas. The Kansas district court, in particular, never even mentioned damages (which Holloway was not seeking in that action), nor Sally Brush (whose name appears solely in the caption as a defendant), nor the question of immunity from § 1983 liability; it simply dismissed Holloway’s plea for the return of her children as beyond a federal court’s limited subject matter jurisdiction. See Holloway v. State of Ohio, 1993 WL 302240 (D.Kan. July 27, 1993).

Had that court opined on the issue at bar, an issue that was not before it, the result would have been not the law of the ease but, at best, dicta; in any event, it did not. Almost three months later, that same court denied Holloway’s motion to reconsider, which added for the first time a request for “compensation in the amount of $2,000,000.00 for the pain and suffering caused by the termination of her parental rights.” See Holloway v. State of Ohio, 1993 WL 463426 (D.Kan., Oct.18, 1993). In disposing of the motion as one for relief under Fed.R.Civ.P.

Rule 60(b), the court did not discuss Sally Brush, nor any of her actions complained of here, much less immunity therefrom, and it once again held subject matter jurisdiction lacking. “The basic rule that dismissal for lack of subject matter jurisdiction does not preclude a second action on the same claim is well settled.” 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4436 (1981) (citing Hughes v. U.S., 4 Wall. (71 U.S.) 232, 237, 18 L.Ed. 303 (1866), and other cases).

Although the dissent is not arguing that principles of preclusion apply here, the reason they do not is the same as the reason that law of the case principles do not apply either: there has been no adjudication of the issue on the merits, whether that be as a final judgment (which would have preclusive effect) or as a matter decided before final judgment (when law of the case rules might apply). A “dismissal for lack of jurisdiction” does not “operate[ ] as an adjudication on the merits” for preclusive purposes. Fed.R.Civ.P. Rule 41(b).

Similarly, “the law of the case is ... based upon sound policy that when an issue is once litigated and decided, that should be the end of the matter.” United States v. United States Smelting Refining & Mining Co., 339 U.S. 186, 198, 70 S.Ct. 537, 94 L.Ed. 750 (1950). When a case is dismissed or a motion denied for lack of subject mater jurisdiction, nothing has been “litigated and decided” and neither set of principles comes into play.

The merits of Holloway’s damages claim were neither litigated nor decided by the Kansas district court, nor is that claim at all the same as the one before us, save in the eyes of the dissent. The denial of her later motion thus adds no force to the dissent’s law of the case argument. The dissent’s alternative basis in the Rooker-Feldman doctrine begs the question.

That doctrine teaches that federal courts have no subject matter jurisdiction to entertain federal constitutional claims that are “inextricably intertwined” with a state court’s ruling in an earlier action, when their adjudication would be tantamount to a “review [of] the state court decision.” District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 n. 16, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). No court, save the district court whose decision we review here, has addressed the question of whether Brush enjoys immunity from suit for her alleged acts.

The dissent assumes precisely what is at issue: it thinks Feldman is applicable because it assumes that acts undertaken in the course of the custody proceedings were an integral part of those proceedings, hence entitled to absolute immunity. But even a decision that they are not so entitled does not constitute a review of the custody decision, which is an entirely separate, state matter.

Those courts have held that Holloway’s parental rights were severed without a proper hearing; the question before us is rather whether certain actions in the course of those proceedings may have involved a violation of her federal constitutional rights for which the responsible party may be held liable for damages. The conceptual distinction could not be more clear.

Holloway has not sought § 1983 damages against Brush in state court, and her complaint there that severance of her parental rights constituted a due process violation rested only on a claim of insufficient notice; notice can be fatally defective, and was held to be in this case by the Ohio courts, without any question of personal liability being raised. Indeed, the claims against Brush that we permit to go forward do not relate to the defects in notice found by the Ohio courts. Once again, Holloway was not seeking damages in state court, but the re-opening of custody proceedings.

It is the dissent, not Holloway, who keeps entangling these separate matters. Consequently, it is clear that the domestic relations exception to federal jurisdiction has no applicability. In considering this case, this court has not trespassed in any way on the state courts’ appropriate jurisdiction over the underlying child custody dispute. Nor have we expressed in the slightest degree any view as to the merits of one side or the other in that matter.

The dissent, on the other hand, does not disguise its hostility to Holloway’s desire for the restoration of parental rights, but rather evinces a curious animus against her on the merits, repeatedly opining that finality in this case is in the children’s best interest, as well as showing an Olympian disdain for her search for damages with which “to cover expenses for a short period of time.” Infra at 804.

To focus at length, as the dissent does, on whether notice to Holloway was or was not defective, as though that were the basis for this complaint, and to insist that such notice’s sufficiency was “conceded” by Holloway, is idle, quite apart from the fact that the Ohio Court of Appeals has not conceded this, but has held that notice by publication was insufficient in this ease. See supra at 771-72. Notice to Holloway is hardly the issue here.

The real issue is whether Brush’s alleged failure to notify the court that Holloway had finally surfaced, while its decision on permanent custody was still pending, and her alleged concealment from Holloway of that pen-dency, was a violation of Holloway’s rights to which liability attaches. Nor does the children’s best interest, which is not before this court, and as to which this court holds no view, have any bearing on the sole issue at bar, which is whether Brush enjoys absolute immunity in a § 1983 suit for monetary damages for her actions.

The dissent’s belief that social workers should and do enjoy absolute immunity whenever they undertake any act in what they regard as a child’s best interest, see infra at 803-04, goes far beyond the traditional, prosecutorial, basis for such immunity and would permit to go unredressed even the most blatant forms of discrimination or other constitutional violation. VI What Brush did was not the evaluation and presentation of evidence. It was not controlling the testimony of her witness. It was not intimately associated with the judicial process, nor was it the function of an advocate.

Finally, it was not a recommendation to the county court. It was a usurpation of the judicial process that denied Holloway her right to be heard in court. The proper test is whether Brush has carried her burden of establishing that she was functioning as an advocate when she performed the actions complained of. See Buckley, 509 U.S. at 274, 113 S.Ct. 2606. She was not. The judgment of the district court granting

summary judgment on grounds of absolute immunity to Defendant Brush is REVERSED. VII Finally, this court notes with concern the fashion in which Clermont County has proceeded in this litigation.

Over three years ago, the Court of Appeals of Ohio set aside the order of the Clermont County Court of Common Pleas granting permanent custody of the Holloway children to CCDHS, and remanded the case for further proceedings, ordering as follows: “the trial court is directed to set aside its previous order granting permanent custody of the children to CCDHS and to obtain proper service of process upon appellant [Sammye Holloway] before, conducting a hearing on the merits.” In re Holloway, No. CA95-09-064, 1996 WL 227481 at *3 (Ohio Ct.App. May 6, 1996) (unpublished).

There was no hearing, Holloway pursued the matter by moving in the state trial court for immediate reunification. At a pretrial conference on her Motion to Begin Reunification, held on June 20, 1996, CCDHS stated its intention to serve her with a complaint seeking permanent custody. See Twelfth Appellate District Court of Appeals, Original Action in Habeas Corpus, Case No. CA96-06-052, Stipulated Statement of Evidence, at ¶ 53 (October 11, 1996). No complaint was served.

Over a year later, the Ohio Supreme Court turned aside Holloway’s petition for a writ of habeas corpus, noting that Holloway would have her day in court in Clermont County, as ordered by the Court of Appeals: “[t]here is nothing to indicate that CCDHS will not promptly serve such complaint [seeking permanent custody anew] following completion of this action or that Holloway’s participation in the juvenile court proceedings will be either futile or time-consuming.” Holloway v. Clemont County Dep’t of Human Servs., 80 Ohio St.3d 128, 131, 684 N.E.2d 1217, 1220 (Ohio 1997).

Still no complaint was served, no proceedings held. With this factual background, at oral argument before a panel of this court on April 30, 1998, CCDHS reiterated its intention to file a renewed complaint. None was filed. On the contrary, CCDHS astonished this court sitting en banc when, in oral argument on December 9, 1999, counsel announced that CCDHS had no intention of obeying the orders of its state courts, no intention of honoring its repeated statements to this court, and no intention of ever reopening custody proceedings.

As though it were only an afterthought, CCDHS revoked its word, given by its attorneys as officers of the court to a panel of this court to its face, as well as to the Ohio Court of Appeals and the Ohio Supreme Court. This action was not consistent with the County’s duty of candor to this court. As of this date, Holloway continues to be denied her parental rights without their having been severed judicially.

The Supreme Court has long recognized that “[a] parent’s interest in the accuracy and injustice of the decision to terminate his or her parental status is ... a commanding one.” Lassiter, 452 U.S. at 27, 101 S.Ct. 2153. If Clermont County now intends not to comply with the ruling of the Ohio Court of Appeals, this court was entitled to know of that change of position without our having to elicit it by questioning at oral argument.