Davis v. Eubanks and DHS

IN THE COURT OF APPEALS OF TENNESSEE,
AT NASHVILLE
FILED
____________________________________________________________
)
March 31, 2000
PATRICIA DAVIS, and JENNIFER ) Davidson County Chancery Court
ARIC, for themselves and on behalf ) No. 92-3314-I Cecil Crowson, Jr.
of all persons similarly situated, ) Appellate Court Clerk
)
Plaintiffs/Appellants, )
)
AND )
)
GINA EUBANKS, )
)
Plaintiff, )
) C.A. No. M1999-00066-COA-R3-CV
VS. )
)
MIKE O’HARA, Acting Director, )
Child Support Services, Tennessee )
Department of Human Services, )
)
Defendant/Appellee. )
)
______________________________________________________________________________
From the Chancery Court of Davidson County at Nashville.
Honorable Irvin H. Kilcrease, Jr., Chancellor
Harris A. Gilbert, WYATT, TARRANT & COMBS, Nashville, Tennessee
Brian Paddock, Cookeville, Tennessee
Attorneys for Plaintiffs/Appellants
Paul G. Summers, Attorney General & Reporter
Stuart F. Wilson-Patton, Assistant Attorney General
Attorneys for Defendant/Appellee
OPINION FILED:
AFFIRMED AND REMANDED
FARMER, J.
CRAWFORD, P.J., W.S.: (Concurs)
HIGHERS, J.: (Concurs)
Plaintiffs Patricia Davis and Jennifer Aric appeal the trial court’s judgment dismissing
their civil rights claims against Defendant/Appellee Mike O’Hara, Acting Director, Child Support
Services, Tennessee Department of Human Services. Relying upon the United States Supreme
Court’s opinion in Blessing v. Freestone, 520 U.S. 329 (1997), the trial court dismissed the
Plaintiffs’ 19831 claims based upon the court’s ruling that the Plaintiffs had failed to assert any
enforceable private right of action under the provisions of Title IV-D of the Social Security Act.
After reviewing the allegations of the Plaintiffs’ amended complaint, we conclude that the trial court
properly dismissed the Plaintiffs’ claims against the Director of Child Support Services, and we
affirm the trial court’s judgment.
I. Factual and Procedural History of Plaintiffs’ 1983 Claims
This appeal presents the second opportunity for this court to rule on the trial court’s
dismissal of Plaintiff Patricia Davis’s 1983 claims against the Director of Child Support Services
for the Tennessee Department of Human Services. In her original complaint, Davis and three other
plaintiffs alleged that the Director and other state agents had failed to provide them with child
support services as required by Title IV-D of the Social Security Act. The trial court dismissed the
original plaintiffs’ 1983 claims based upon its ruling that the plaintiffs had no private right of action
to enforce any rights allegedly arising under Title IV-D, also known as the Child Support
Enforcement Act.
On appeal, this court reversed the trial court’s dismissal of the plaintiffs’ claims. In
Davis v. McClaran, No. 01A01-9304-CH-00164, 1993 WL 523667, at *5 (Tenn. Ct. App. Dec. 10,
1993) (Davis I), we held that the plaintiffs had “an enforceable right under Title IV-D to receive
services from a Title IV-D program that follows federally required procedures in at least 75 percent
of cases.” We based this holding, in part, upon Title IV-D’s requirement that, in order to receive the
full amount of federal funding available, a state must substantially comply with the requirements of
1
See 42 U.S.C.A. § 1983 (West 1994) (providing that “[e]very person who, under color of
any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity,
or other proper proceeding for redress”).
Title IV-D. See Davis I, 1993 WL 523667, at *3 (citing 42 U.S.C. 603(h)(1)). The regulations in
effect indicated that a state was in substantial compliance if it complied with the requirements of
Title IV-D in seventy-five percent (75%) of cases handled. See Davis I, 1993 WL 523667, at *3;
see also 45 C.F.R. § 305.20 (1993).
The Supreme Court of Tennessee affirmed our reinstatement of the plaintiffs’ 1983
action. See Davis v. McClaran, 909 S.W.2d 412, 420-21 (Tenn. 1995) ( Davis II).2 In doing so, the
supreme court agreed with this court’s holding that the plaintiffs had enforceable rights to receive
Title IV-D benefits from the state. See Davis II, 909 S.W.2d at 416. The supreme court modified
our decision, however, by holding that a plaintiff could bring a 1983 action against the state to
enforce its direct obligations to the plaintiff under Title IV-D regardless of whether the state was in
substantial compliance with Title IV-D’s requirements. See id. at 420. Thus, our supreme court
recognized that Title IV-D could give rise to enforceable individual rights to receive child support
services independent of Title IV-D’s substantial compliance provisions. See id. The Supreme Court
of the United States subsequently denied the Director’s petition for certiorari. See McClaran v.
Davis, 517 U.S. 1128 (1996).
After this case was remanded to the trial court, Patricia Davis was the only original
plaintiff who continued to participate in this litigation.3 Davis, along with two new plaintiffs,
including Appellant Jennifer Aric,4 filed an amended complaint in the trial court in which they
alleged that the Director had failed to provide them with child support services in violation of the
provisions of Title IV-D. With regard to the Director’s failure to provide Title IV-D services to
2
The supreme court also affirmed the trial court’s and this court’s dismissals of the
plaintiffs’ requests for declaratory relief and a writ of mandamus, agreeing “that § 1983 is an
adequate remedy, thus obviating the need for a writ of mandamus, an extraordinary remedy; and
that § 1983 provides a better and more efficient remedy than a declaratory judgment.” Davis II,
909 S.W.2d at 420 n.8.
3
On remand, Joyce McClaran’s successor, Glenda Shearon, was automatically substituted
as the defendant in this action. Pending this appeal, the current defendant, Mike O’Hara, was
substituted as a party. See Tenn. R. Civ. P. 25.04(1) (providing that “[w]hen an officer of the
State, a county, a city or other governmental agency is a party to an action in the officer’s official
capacity and during its pendency dies, resigns, or otherwise ceases to hold the office, the action
does not abate and the officer’s successor is automatically substituted as a party”).
4
The plaintiffs named in the amended complaint also included Gina Eubanks, but she is
not a party to this appeal.
Patricia Davis, the complaint made the following allegations:
46. Plaintiff Patricia Davis gave birth to Latasha Davis on
June 30, 1979. Ms. Davis has not been married to Latasha’s father,
Billy Stewart, and she received AFDC for Latasha after the child was
born. Ms. Davis sought assistance from the [District Attorney
General (DAG) for the Twentieth Judicial District of Tennessee] in
establishing paternity and setting a support obligation while Latasha
was still an infant.
47. Eventually, in 1983 or 1984, the DAG’s agents
assisted Ms. Davis in establishing that Mr. Stewart is Latasha’s
father. The DAG’s child support office agents made no effort to
establish a child support obligation until 1991 when they filed a
petition to set support in the Juvenile Court of Davidson County.
Following a hearing on October 29, 1991, the Juvenile Court for
Davidson County entered an order requiring Mr. Stewart to pay
support in the amount of $142 per month by income assignment. The
Clerk of Court was unable to serve the income assignment order, and
Mr. Stewart failed to make any child support payments directly to the
Clerk of Court. Despite knowing Mr. Stewart’s home address, the
DAG’s child support program made no efforts to enforce the child
support order to the time this action was filed.
48. Ms. Davis has advised the child support agency that
Mr. Stewart now receives Social Security Disability payments. Social
Security Disability payments are subject to income withholding to pay
child support. Ms. Davis now receives only food stamps. Ms. Davis
receives no Families First assistance because she cannot work. She
must provide constant care for Latasha who has such serious asthma
that she is frequently admitted to the hospital. Upon information and
belief the [Director] and [his] agents have taken no action to
effectuate the income withholding order for support for Ms. Davis
and Latasha.
49. Plaintiff Davis has another child, Thaddeus Davis,
born on August 23, 1982. Ms. Davis has not been married to the
child’s father, Thaddeus Kenneth Smyer. She received AFDC
benefits for the child after he was born. Ms. Davis provided Mr.
Smyer’s home address and likely place of employment within
Davidson County to the DAG’s agents. This information was never
acted upon to establish a paternity or support order for Thaddeus
Davis.
50. The DAG’s agents refused to allow Ms. Davis’ then
counsel to review the child support file on her or to provide
information as to the case status or the actions of the child support
agency. On information and belief, [the Director’s] agents did
nothing to enforce the child support obligations of Mr. Stewart or to
establish the child support obligation of Mr. Smyer.
51. In November 1997, Ms. Davis sought the help of a
private attorney to obtain child support. The private attorney
contacted the child support agency and provided the most recent
information concerning Ms. Davis’ child support cases, including the
Social Security number of Thaddeus Kenneth Smyer. On information
and belief, [the Director] and [his] local child support agents have not
taken any steps to enforce the child support obligations of Mr.
Stewart or to establish the child support obligation of Mr. Smyer.
With regard to the Director’s failure to provide Title IV-D services to Jennifer Aric,
the amended complaint made the following allegations:
56. Plaintiff Jennifer Aric is the mother of Julia Aric, born
July 29, 1993. Ms. Aric was receiving welfare aid at the time Julia
was born, but the [Director] failed to establish paternity although the
non-custodial parent was in custody and paternity could have been
established within the time limits set by federal law. A court order
for child support was entered in March 1995 for $80 per month to be
paid by the non-custodial parent Anthony Nolley. The non-custodial
parent has made only two payments since the entry of the order.
Upon information and belief, the [Director] failed to promptly
identify the failure of the non-custodial parent to timely pay support
and failed to take the enforcement actions required by federal law.
57. In 1996 Ms. Aric repeatedly requested enforcement of
the support order over a period of many months. Eventually the
[Director’s] contract IV-D agency MAXIMUS filed a motion for
contempt to enforce the order. Ms. Aric called the MAXIMUS office
the day before the hearing, as she had been instructed to do. She was
told that the non-custodial parent had been served and so she took
time off work to attend the hearing. Ms. Aric appeared at the
courthouse for the motion. After several hours delay, she was told
that the non-custodial parent had not been served. She was then told
by the MAXIMUS representative that it was her duty to locate the
non-custodial parent and that she had failed in this duty. Ms. Aric has
not had contact with the non-custodial parent since they separated
because he had abused Julia. This demand upon her to perform the
location activity which federal law requires the [Director] to perform
was delivered before other persons assembled for child support case
hearings and greatly embarrassed Ms. Aric.
58. The [Director] and [his] agents are aware of the Social
Security number of the non-custodial parent. In February 1998, Ms.
Aric was notified by the Internal Revenue Service that the non-
custodial parent had claimed Julia Aric as a dependent on his tax
return for 1997 despite the fact that he had paid no child support. The
information as to the current address and employment of the non-
custodial parent is available to the [Director] upon request, but will
not be made available by IRS to Ms. Aric.
59. Ms. Aric reported to MAXIMUS that the IRS had
recent location and employment information on the non-custodial
parent and requested that they locate the non-custodial parent. She
was told that her case was, and had been in “locate” since 1997, but
that she would not be told if any location action had been taken or if
any location information had been received. . . .
60. Jennifer Aric is also the mother of Hanna Aric, born
February 27, 1992. Hanna’s father is Kevin Jennings. In July 1997,
the non-custodial parent was ordered to pay $182 every two weeks by
wage assignment. The [Director] failed to obtain any support for the
time prior to the entry of the order. The [Director] has collect[ed]
child support by wage assignment forwarded by the non-custodial
parent’s employer. The [Director] has not sent the full amount
collected as child support to Ms. Aric as required by federal law.
Based upon the foregoing allegations, the Plaintiffs’ amended complaint claimed that
the Director, in violation of 42 U.S.C. § 1983, had deprived the Plaintiffs of their rights under Title
IV-D of the Social Security Act and the related implementing regulations by (1) failing to provide
parent location services as required by 42 U.S.C. §§ 654(4) and 654(8) and 45 C.F.R. §§ 303.3,
303.7, and 303.100 (count I); (2) failing to provide services to establish child support orders as
required by 42 U.S.C. §§ 602(a)(2), 652(a)(1), 652(a)(2), 652(h), 654(4), and 654(13) and 45 C.F.R.
§§ 302.50, 303.4, and 303.5 (count II); and (3) failing to provide services to enforce child support
orders as required by 42 U.S.C. §§ 652(a)(1), 652(a)(2), 652(h), 654(4), and 654(13) and 45 C.F.R.
§ 303.6 (count III). As part of their third claim for relief, the Plaintiffs additionally asserted that they
were entitled to receive the benefits of the income withholding procedures set forth in 42 U.S.C.
§§ 666(b)(6)(A)(i), 666(b)(6)(A)(iii), 666(b)(8), and 666(b)(11). In a fourth claim for relief, the
Plaintiffs asserted that the Director had violated their due process rights under the Fourteenth
Amendment to the United States Constitution and Article I, Section 8 of the Tennessee Constitution
by failing to provide the Plaintiffs with notice regarding the status of their cases or to allow the
Plaintiffs’ counsel to inspect their child support files (count IV). The Plaintiffs’ amended complaint
requested the following relief:
1. That this action be certified as a class action;5
2. That plaintiffs be awarded preliminary and permanent
injunctive relief requiring [the Director] to provide child support
services as required by Title IV-D of the Social Security Act and its
implementing regulations and to make available information as to
case status sufficient to allow custodial parents to protect their
interests in child support;
3. That the court declare that [the Director] is obligated
to provide child support services meeting the requirements of Title
IV-D of the Social Security Act and that [the Director] has failed to
fulfill that duty;
4. That [the Director] be ordered to pay the cost of this
cause, including plaintiffs’ reasonable attorney fees; and
5. For such other or additional relief as the court finds to
be just and proper.
5
See Tenn. R. Civ. P. 23.
The Director responded to the Plaintiffs’ amended complaint by filing a motion to
dismiss that asserted several grounds for dismissal of the Plaintiffs’ complaint. In the motion to
dismiss, the Director again contended that the Plaintiffs’ complaint failed to state a cause of action,
see Tenn. R. Civ. P. 12.02(6), because the Plaintiffs had “failed to assert a violation of an
individually enforceable right under Title IV-D of the Social Security Act.” Although our supreme
court had rejected this argument in Davis II, the Director again raised it because, after our supreme
court decided Davis II and after the United States Supreme Court denied certiorari in that case, the
Supreme Court decided Blessing v. Freestone, 520 U.S. 329 (1997), which directly addressed the
issue of whether Title IV-D’s provisions gave rise to individual rights that could be enforced by
bringing a 1983 action against the state.
After conducting a hearing, the trial court again dismissed the Plaintiffs’ complaint.
Citing the Supreme Court’s intervening decision in Blessing v. Freestone, 520 U.S. 329 (1997), the
trial court ruled that, “based upon Blessing, this Court, having reviewed each asserted/alleged right,
is of the opinion that plaintiffs have not asserted enforceable private rights of action under Title
IV-D.” In its order of dismissal, the trial court denied the Plaintiffs’ request for class certification
based upon the court’s ruling that the request was moot.
On appeal, the Plaintiffs agree that the Supreme Court’s decision in Blessing v.
Freestone, 520 U.S. 329 (1997), controls the outcome of this case. The Plaintiffs insist, however,
that the trial court misinterpreted the Blessing decision to hold that the Plaintiffs had no enforceable
private right of action under Title IV-D. The Plaintiffs contend that, contrary to this ruling, Blessing
recognized that Title IV-D may give rise to some individual rights that can be enforced through a
1983 action. The Plaintiffs further contend that, as directed by Blessing, they have identified with
particularity the individually enforceable rights which they claim were conferred upon them by the
provisions of Title IV-D.
II. United States Supreme Court’s Decision in Blessing v. Freestone
In Blessing v. Freestone, 520 U.S. 329, 340 (1997), the Supreme Court of the United
States reaffirmed the principle that a plaintiff may bring a 1983 action to enforce individual rights
created by a federal statute. The Court cautioned, however, that, in order to maintain such an action,
“a plaintiff must assert the violation of a federal right, not merely a violation of federal law.”
Blessing, 520 U.S. at 340 (emphases added). The Court then set forth the traditional test for
determining whether a federal statute creates an individually enforceable right:
We have traditionally looked at three factors when determining
whether a particular statutory provision gives rise to a federal right.
First, Congress must have intended that the provision in question
benefit the plaintiff. [Wright v. Roanoke Redev. & Hous. Auth., 479
U.S. 418, 430 (1987)]. Second, the plaintiff must demonstrate that
the right assertedly protected by the statute is not so “vague and
amorphous” that its enforcement would strain judicial competence.
[Id. at 431-32]. Third, the statute must unambiguously impose a
binding obligation on the States. In other words, the provision giving
rise to the asserted right must be couched in mandatory rather than
precatory terms. [Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498,
510-11 (1990)].
Blessing, 520 U.S. at 340-41.
If a plaintiff demonstrates, by applying the foregoing three-part test, that a federal
statute creates an individual right, a rebuttable presumption arises that the right is enforceable under
1983. See Blessing, 520 U.S. at 341. A defendant may rebut this presumption by demonstrating that
Congress, either expressly or impliedly, foreclosed a remedy under 1983. See id. (citing Smith v.
Robinson, 468 U.S. 992, 1005 n.9 (1984)). The Supreme Court explained that Congress may
foreclose a remedy “expressly, by forbidding recourse to § 1983 in the statute itself, or impliedly,
by creating a comprehensive enforcement scheme that is incompatible with individual enforcement
under § 1983.” Blessing, 520 U.S. at 341 (citing Livadas v. Bradshaw, 512 U.S. 107, 133 (1994)).
Because the application of the foregoing analysis requires a thorough examination
of the federal statute involved, the Supreme Court succinctly described the existing provisions of
Title IV-D:
To qualify for federal AFDC [Aid to Families with Dependent
Children] funds, the State must certify that it will operate a child
support enforcement program that conforms with the numerous
requirements set forth in Title IV-D of the Social Security Act, 42
U.S.C.A. §§ 651–669b (Nov. 1996 Supp.), and will do so pursuant to
a detailed plan that has been approved by the Secretary of Health and
Human Services (Secretary). § 602(a)(2); see also § 652(a)(3). The
Federal Government underwrites roughly two-thirds of the cost of the
State’s child support efforts. § 655(a). But the State must do more
than simply collect overdue support payments; it must also establish
a comprehensive system to establish paternity, locate absent parents,
and help families obtain support orders. §§ 651, 654.
A State must provide these services free of charge to AFDC
recipients and, when requested, for a nominal fee to children and
custodial parents who are not receiving AFDC payments. §§ 651,
654(4). AFDC recipients must assign their child support rights to the
State and fully cooperate with the State’s efforts to establish paternity
and obtain support payments. Although the State may keep most of
the support payments that it collects on behalf of AFDC families in
order to offset the costs of providing welfare benefits, until recently
it only had to distribute the first $50 of each payment to the family.
42 U.S.C. § 657(b)(1). The amended version of Title IV-D replaces
this $50 pass-through with more generous distributions to families
once they leave welfare. 42 U.S.C.A. § 657(a)(2) (Nov. 1996 Supp.).
Non-AFDC recipients who request the State’s aid are entitled to have
all collected funds passed through. § 657(a)(3). In all cases, the State
must distribute the family’s share of collected support payments
within two business days after receipt. § 654b(c)(1).
The structure of each State’s Title IV-D agency, like the
services it provides, must conform to federal guidelines. For
example, States must create separate units to administer the plan,
§ 654(3), and to disburse collected funds, § 654(27), each of which
must be staffed at levels set by the Secretary, 45 CFR § 303.20
(1995). If a State delegates its disbursement function to local
governments, it must reward the most efficient local agencies with a
share of federal incentive payments. 42 U.S.C.A. § 654(22) (Nov.
1996 Supp.). To maintain detailed records of all pending cases, as
well as to generate the various reports required by federal authorities,
States must set up computer systems that meet numerous federal
specifications. § 654a. Finally, in addition to setting up this
administrative framework, each participating State must enact laws
designed to streamline paternity and child support actions.
§§ 654(20), 666.
To oversee this complex federal-state enterprise, Congress
created the Office of Child Support Enforcement (OCSE) within the
Department of Health and Human Services (HHS). This agency is
charged with auditing the States’ compliance with their federally
approved plans. Audits must occur at least once every three years, or
more often if a State’s performance falls below certain standards.
§ 652(a)(4). If a State does not “substantially comply” with the
requirements of Title IV-D, the Secretary is authorized to penalize the
State by reducing its AFDC grant by up to five percent. § 609(a)(8).
The Secretary has interpreted “substantial compliance” as: (a) full
compliance with requirements that services be offered statewide and
that certain recipients be notified monthly of the support collected, as
well as with reporting, recordkeeping, and accounting rules; (b) 90
percent compliance with case opening and case closure criteria; and
(c) 75 percent compliance with most remaining program
requirements. 45 CFR § 305.20 (1995). The Secretary may suspend
a penalty if the State implements an adequate corrective action plan,
and if the program achieves “substantial compliance,” she may
rescind the penalty entirely. 42 U.S.C.A. § 609(c) (Nov. 1996 Supp.).
Blessing, 520 U.S. at 332-35 (footnote omitted).
In Blessing, five Arizona mothers brought a 1983 action against the Director of the
Arizona Department of Economic Security, the state agency charged with providing child support
services under Title IV-D. See Blessing, 520 U.S. at 337. Some of the claimants received AFDC
benefits, and all of them had children who were eligible for Title IV-D child support services. See
id. In their complaint, the claimants alleged “that they had properly applied for child support
services but that, despite their good faith efforts to cooperate, the [state] agency never took adequate
steps to obtain child support payments from the fathers of their children.” Id. The claimants
attributed these omissions to “structural defects in the State’s child support efforts,” including “staff
shortages, high caseloads, unmanageable backlogs, and deficiencies in the State’s accounting
methods and recordkeeping.” Id.
In fact, Arizona’s poor record of enforcing child support obligations and its failure
to substantially comply with significant Title IV-D program requirements were well documented.
See Blessing, 520 U.S. at 335-36 & n.2. In their complaint, the claimants “sought to represent a
class of all children and custodial parents residing in Arizona who [were] or [would] be entitled to
Title IV-D services.” Id. In support of their 1983 action, the claimants asserted that Title IV-D
granted them “individual rights to all mandated services delivered in substantial compliance with
Title IV-D and its implementing regulations.” Id. at 341. In addition to seeking other relief, the
claimants asked the trial court to issue an injunction requiring the director of Arizona’s child support
agency to achieve “substantial compliance” throughout all operations of the agency’s child support
enforcement program. See id.
The trial court dismissed the claimants’ 1983 action, but a divided panel of the United
States Court of Appeals for the Ninth Circuit reversed, concluding “that [the claimants] could sue
[the director] under § 1983 to bring Arizona’s child support enforcement program into substantial
compliance with federal law.” Blessing, 520 U.S. at 339 (citing Freestone v. Cowan, 68 F.3d 1141,
1150 (9th Cir. 1995)). The United States Supreme Court granted certiorari “to resolve disagreement
among the courts of appeals as to whether individuals may sue state officials under § 1983 for
violations of Title IV-D.” Blessing, 520 U.S. at 339-40.
The Supreme Court vacated the Court of Appeals’ judgment and remanded the case
for further proceedings consistent with the Supreme Court’s opinion. See Blessing, 520 U.S. at 349.
In its opinion, the Supreme Court first criticized the Court of Appeals’ holding that Title IV-D
created individually enforceable rights without specifying “exactly which ‘rights’ it was purporting
to recognize.” Id. at 342. The Supreme Court explained:
As an initial matter, the lower court’s holding that Title IV-D
“creates enforceable rights” paints with too broad a brush. It was
incumbent upon [the claimants] to identify with particularity the
rights they claimed, since it is impossible to determine whether Title
IV-D, as an undifferentiated whole, gives rise to undefined “rights.”
Only when the complaint is broken down into manageable analytic
bites can a court ascertain whether each separate claim satisfies the
various criteria we have set forth for determining whether a federal
statute creates rights. . . .
In prior cases, we have been able to determine whether or not
a statute created a given right because the plaintiffs articulated, and
lower courts evaluated, well-defined claims. . . .
The Court of Appeals did not engage in such a methodical
inquiry. As best we can tell, the Court of Appeals seemed to think
that [the claimants] had a right to require the director of Arizona’s
child support agency to bring the State’s program into substantial
compliance with Title IV-D.
Blessing, 520 U.S. at 342-43 (citations omitted).
Apparently, the only statutory provisions identified by the claimants and the Court
of Appeals were those requiring the state to operate its child support program in “substantial
compliance” with Title IV-D. Accordingly, the Supreme Court next considered whether these
statutory provisions gave rise to individually enforceable rights. See Blessing, 520 U.S. at 335, 343-
44 (citing 42 U.S.C.A. §§ 609(a)(8), 609(c) (Nov. 1996 Supp.); 42 U.S.C. § 652(g)). Contrary to
the Court of Appeals’ holding, the Supreme Court held that Title IV-D’s substantial compliance
provisions did not create individually enforceable rights. See Blessing, 520 U.S. at 343-44. The
Court explained:
[T]he requirement that a State operate its child support program in
“substantial compliance” with Title IV-D was not intended to benefit
individual children and custodial parents, and therefore it does not
constitute a federal right. Far from creating an individual entitlement
to services, the standard is simply a yardstick for the Secretary to
measure the systemwide performance of a State’s Title IV-D
program. Thus, the Secretary must look to the aggregate services
provided by the State, not to whether the needs of any particular
person have been satisfied. A State substantially complies with Title
IV-D when it provides most mandated services (such as enforcement
of support obligations) in only 75 percent of the cases reviewed
during the federal audit period. 45 CFR § 305.20(a)(3)(iii) (1995).
States must aim to establish paternity in 90 percent of all eligible
cases, but may satisfy considerably lower targets so long as their
efforts are steadily improving. 42 U.S.C. § 652(g). It is clear, then,
that even when a State is in “substantial compliance” with Title IV-D,
any individual plaintiff might still be among the 10 or 25 percent of
persons whose needs ultimately go unmet. Moreover, even upon a
finding of substantial noncompliance, the Secretary can merely
reduce the State’s AFDC grant by up to five percent; she cannot, by
force of her own authority, command the State to take any particular
action or to provide any services to certain individuals. In short, the
substantial compliance standard is designed simply to trigger penalty
provisions that increase the frequency of audits and reduce the State’s
AFDC grant by a maximum of five percent. As such, it does not give
rise to individual rights.
Blessing, 520 U.S. at 343-44.
In addition to holding that Title IV-D’s substantial compliance provisions did not give
rise to individually enforceable rights, the Supreme Court observed that “many other provisions” of
Title IV-D did not fit the “traditional three criteria for identifying statutory rights.” Blessing, 520
U.S. at 344. For example, the Court concluded that Title IV-D’s “detailed requirements for the
State’s data processing system” did not “give rise to individualized rights to computer services”
because “these complex standards” were “simply intended to improve the overall efficiency of the
States’ child support enforcement scheme.” Id. at 344-45 (citing 42 U.S.C.A. § 654a (Nov. 1996
Supp.); 45 CFR § 307.10 (1995)). Similarly, the Court concluded that Title IV-D did not give rise
to individually enforceable rights to adequate staffing levels, despite the fact that Title IV-D required
“each participating State to establish a separate child support enforcement unit ‘which meets such
staffing and organizational requirements as the Secretary may by regulation prescribe.’” Blessing,
520 U.S. at 345 (quoting 42 U.S.C. § 654(3)).
Despite its holding, the Supreme Court specifically indicated that it was not
foreclosing “the possibility that some provisions of Title IV-D [gave] rise to individual rights.”
Blessing, 520 U.S. at 345. For example, the Court suggested that the $50 pass-through provision
that existed in the pre-1996 version of Title IV-D might give one of the claimants a “federal right
to receive a specified portion of the money collected on her behalf by Arizona.” Id. at 345-46 (citing
42 U.S.C. § 657(b)(1)). Inasmuch as the claimant did not explicitly request such relief in the
complaint, however, the Court did not address this issue further. See Blessing, 520 U.S. at 346.
Based on the foregoing analysis, the Supreme Court remanded the case for the trial
court “to construe the complaint in the first instance, in order to determine exactly what rights,
considered in their most concrete, specific form, [the claimants] are asserting.” Blessing, 520 U.S.
at 346. The Court explained that “[o]nly by manageably breaking down the complaint into specific
allegations can the [trial court] proceed to determine whether any specific claim asserts an individual
federal right.” Id.
III. Analysis of Plaintiffs’ 1983 Claims
Although Blessing does not indicate what other enforceable rights might exist under
Title IV-D, the opinion does make clear that a court can make this determination only by separately
analyzing each asserted claim and the specific statutory provisions that allegedly give rise to such
a claim. See Blessing, 520 U.S. at 342. Accordingly, the present appeal requires this court to
analyze each of the Plaintiffs’ asserted claims and the specific statutory provisions upon which they
relied to assert such claims.
In their amended complaint, the Plaintiffs asserted that the Director of Child Support
Services had violated their rights to receive certain child support services that were mandated by
Title IV-D, including services involving the location of noncustodial parents, the establishment of
child support obligations, and the enforcement of child support orders. At trial and on appeal, the
Plaintiffs relied upon the following statutory provisions to support their contention that Title IV-D
gave them individually enforceable rights to receive these child support services.
Section 653 of the Child Support Enforcement Act requires the Secretary of the
Department of Health and Human Services to “establish and conduct a Federal Parent Locator
Service.” 42 U.S.C.A. § 653(a)(1) (West 1991 & Supp. 1999). The Federal Parent Locator Service,
in turn, is required to “obtain and transmit” the following information to any “authorized person”
who submits a request for such information in the manner and form prescribed by the Secretary:
(A) information on, or facilitating the discovery of, the
location of any individual –
(i) who is under an obligation to pay child
support;
(ii) against whom such an obligation is sought;
(iii) to whom such an obligation is owed; or
(iv) who has or may have parental rights
with respect to a child,
including the individual’s social security number . . . , most recent
address, and the name, address, and employer identification number
of the individual’s employer;
(B) information on the individual’s wages (or other
income) from, and benefits of, employment . . . ; and
(C) information on the type, status, location, and amount
of any assets of, or debts owed by or to, any such individual.
42 U.S.C.A. § 653(a)(2) (West 1991 & Supp. 1999). Upon the request of any authorized person, the
Secretary of Health and Human Services must provide the foregoing information through the Federal
Parent Locator Service if the information is contained in the Secretary’s or the Department’s files
or if the information can be obtained by the Secretary from any federal or state department or agency.
See 42 U.S.C.A. § 653(b)(1) (West 1991 & Supp. 1999). The Act requires the Secretary to
“promptly undertake to provide the information” upon receipt of a properly submitted request. 42
U.S.C.A. § 653(e)(1) (West 1991 & Supp. 1999). Section 653 defines “authorized person” to
include a state agency that is administering that state’s Title IV-D program, a state agent or attorney
who has the authority to seek to recover child support under the state’s Title IV-D plan, the court
which has the authority to issue a child support order against the noncustodial parent, and “the
resident parent, legal guardian, attorney, or agent of a child (other than a child receiving assistance
under a State program funded under part A of this subchapter).”6 42 U.S.C.A. § 653(c) (West
1991 & Supp. 1999).
Regarding the state’s responsibilities to provide location services, section 654(8) of
the Act provides that
[a] State plan for child and spousal support must –
(8) provide that, . . . the agency administering the plan will
establish a service to locate parents utilizing –
(A) all sources of information and available
records; and
(B) the Federal Parent Locator Service established
under section 653 of this title, . . . .
42 U.S.C.A. § 654(8) (West 1991 & Supp. 1999).
The provisions of Title IV-D also require the Secretary of Health and Human Services
to establish
within the Department of Health and Human Services a separate
organizational unit, under the direction of a designee of the Secretary,
who shall report directly to the Secretary and who shall –
(1) establish such standards for State programs for
locating noncustodial parents, establishing paternity, and
obtaining child support and support for the spouse (or former
spouse) with whom the noncustodial parent’s child is living
as he determines to be necessary to assure that such programs
will be effective;
(2) establish minimum organizational and staffing
6
Part A of subchapter IV governs AFDC grants. See 42 U.S.C.A. §§ 601–619 (West
1991 & Supp. 1999).
requirements for State units engaged in carrying out such
programs under plans approved under this part.
42 U.S.C.A. § 652(a) (West 1991 & Supp. 1999). Title IV-D further provides that the standards
required by section 652(a), as set forth above,
shall include standards establishing time limits governing the period
or periods within which a State must accept and respond to requests
(from States, jurisdictions thereof, or individuals who apply for
services furnished by the State agency under this part or with respect
to whom an assignment pursuant to section 608(a)(3)7 of this title is
in effect) for assistance in establishing and enforcing support orders,
including requests to locate noncustodial parents, establish paternity,
and initiate proceedings to establish and collect child support awards.
42 U.S.C.A. § 652(h) (West 1991 & Supp. 1999) (footnote added).
In order to be eligible for Title IV-D funding, a state, through its chief executive
officer, must certify that the state will operate a child support enforcement program under an
approved plan. See 42 U.S.C.A. § 602(a)(2) (West 1991 & Supp. 1999). The state’s plan for child
support enforcement must
(4) provide that the State will –
(A) provide services relating to the establishment
of paternity or the establishment, modification, or
enforcement of child support obligations, as appropriate,
under the plan with respect to –
(i) each child for whom [assistance,
benefits or services are provided under specified
federal programs, including AFDC], unless, . . . good
cause or other exceptions exist;
(ii) any other child, if an individual applies
for such services with respect to the child; and
(B) enforce any support obligation established with
respect to –
(i) a child with respect to whom the State
provides services under the plan; or
7
Section 608(a)(3) requires AFDC recipients to assign their rights to support to the state.
See 42 U.S.C.A. § 608(a)(3)(A) (West 1991 & Supp. 1999).
(ii) the custodial parent of such a child.
....
(13) provide that the State will comply with such other
requirements and standards as the Secretary determines to be
necessary to the establishment of an effective program for locating
noncustodial parents, establishing paternity, obtaining support orders,
and collecting support payments . . . .
....
(20) provide, . . . that the State (A) shall have in effect all
of the laws to improve child support enforcement effectiveness which
are referred to in [section 666], and (B) shall implement the
procedures which are prescribed in or pursuant to such laws.
42 U.S.C.A. §§ 654(4), 654(13), 654(20) (West 1991 & Supp. 1999). Section 666, referred to above,
requires the state to have in effect laws requiring the use of certain procedures for withholding child
support payment amounts from a noncustodial parent’s income. See 42 U.S.C.A. §§ 666(a)(1)(A),
666(b) (West 1991 & Supp. 1999).
After carefully reviewing the foregoing statutory provisions, as well as the allegations
of the Plaintiffs’ amended complaint, we agree with the trial court’s ruling that the complaint fails
to assert the violation of any individually enforceable rights under Title IV-D. As an initial matter,
we observe that some of the cited statutory provisions do not directly impose obligations upon the
state of Tennessee. Rather, these provisions set forth the responsibilities of the Secretary of Health
and Human Services. Section 653 of the Act, for example, sets forth the Secretary’s responsibilities
for establishing and conducting the Federal Parent Locator Service. See 42 U.S.C.A. § 653(a)(1)
(West 1991 & Supp. 1999). Section 653 requires the Secretary to establish such a service and to
promptly undertake to provide information requested by authorized persons. See 42 U.S.C.A.
§§ 653(b)(1), 653(e)(1) (West 1991 & Supp. 1999). Moreover, even if these provisions could be
construed as imposing direct obligations upon the state, we note that the Plaintiffs’ complaint fails
to allege that they fell within section 653’s definition of authorized person or that they submitted
a request for information under section 653.8
8
In the amended complaint, Plaintiff Jennifer Aric alleged that state agents refused to tell
her if any location information had been received. As noted above, however, Aric failed to allege
that she was an authorized person within the meaning of section 653 or that she submitted a
request for information under that section.
The remaining statutory provisions cited by the Plaintiffs present a closer question
as to whether these provisions confer individually enforceable rights upon the Plaintiffs.
Section 652(a) of the Act requires the Secretary of Health and Human Services, through her
designee, the Office of Child Support Enforcement (OCSE), to establish standards for state programs
for locating noncustodial parents, establishing paternity, and obtaining child support. See 42
U.S.C.A. § 652(a)(1) (West 1991 & Supp. 1999).9 Under this section, the OCSE must create
“standards establishing time limits governing the period or periods within which a State must accept
and respond to requests . . . for assistance in establishing and enforcing support orders, including
requests to locate noncustodial parents, establish paternity, and initiate proceedings to establish and
collect child support awards.” 42 U.S.C.A. § 652(h) (West 1991 & Supp. 1999). Thus,
section 652(h) appears to require the state to accept and respond to requests for child support services
within time limits established by the OCSE.10
Moreover, section 654 requires the state to include specified provisions within its plan
for child support enforcement. Specifically, section 654 requires the state to include provisions
indicating that the state will provide the following services: locating noncustodial parents;
establishing paternity; and establishing, modifying, and enforcing child support obligations. See 42
U.S.C.A. §§ 654(4), 654(8) (West 1991 & Supp. 1999). In addition to indicating that the state will
provide the foregoing services, the state’s plan must indicate that the state will comply with the
Secretary’s requirements and standards for providing these services. See 42 U.S.C.A. § 654(13)
(West 1991 & Supp. 1999). Finally, as required by the remaining statutory provisions cited by the
Plaintiff Patricia Davis alleged that state agents refused to allow her former counsel to
review her child support file and, further, that they refused to provide information as to the status
of her case or any actions taken to obtain child support for her children; however, Davis did not
cite any provision of Title IV-D that would entitle her to this information.
9
Section 652(a) additionally requires the OCSE to establish minimum organizational and
staffing requirements for states administering Title IV-D programs. See 42 U.S.C.A. § 652(a)(2)
(West 1991 & Supp. 1999). The organizational and staffing requirements referred to in
section 652(a) appear to be the same requirements that are referred to in section 654(3) of the
Act. See 42 U.S.C.A. § 654(3) (West 1991 & Supp. 1999). As we previously observed, the
Supreme Court in Blessing held that section 654(3) did not give rise to individually enforceable
rights to adequate staffing levels. See Blessing, 520 U.S. at 345.
10
We note, however, that section 652(h) merely requires the state to “accept and respond
to” such requests; it does not require the state to succeed in its efforts to locate noncustodial
parents, establish paternity, establish child support obligations, or enforce child support orders.
See 42 U.S.C.A. § 652(h) (West 1991 & Supp. 1999).
Plaintiffs, the state’s plan must provide that the state will enact laws requiring the use of specified
procedures for withholding child support payment amounts from a noncustodial parent’s income.
See 42 U.S.C.A. §§ 654(20), 666 (West 1991 & Supp. 1999). Although these statutory provisions
merely require the state to include certain provisions in its plan for child support enforcement, the
argument could be made that the provisions go one step further by requiring the state to actually
provide these services when the state implements its plan and to provide such services in accordance
with the standards established by the Secretary. See, e.g., Wilder v. Virginia Hosp. Ass’n, 496 U.S.
498, 512 (1990) (concluding that Boren Amendment, which required state plan for medical
assistance to provide for payment of hospitals according to rates found by state to be reasonable and
adequate, was “cast in mandatory rather than precatory terms”). This argument is supported by the
related regulations promulgated by the Secretary, many of which specify what actions a state’s IV-D
agency “must” take when it provides these services under the state’s plan for child support
enforcement. See, e.g., 45 C.F.R. §§ 303.3 (Location of noncustodial parents); 303.4 (Establishment
of support obligations); 303.5 (Establishment of paternity); 303.6 (Enforcement of support
obligations); 303.7 (Provision of services in interstate IV-D cases); 303.100 (Procedures for income
withholding) (1999).
Despite the arguably mandatory language found in section 654 and its related
regulations, we conclude that, contrary to the Plaintiffs’ contention, section 654 does not confer upon
them individually enforceable rights to location, establishment, and enforcement services. We reach
this conclusion because, by its own terms, Title IV-D requires only “substantial compliance” with
most of its provisions. 42 U.S.C.A. § 609(a)(8) (West 1991 & Supp. 1999). For example, a state’s
program is in substantial compliance with Title IV-D’s provisions requiring it to provide services
to establish paternity if the state’s paternity establishment percentage equals or exceeds ninety
percent (90%). See 42 U.S.C.A. § 652(g) (West 1991 & Supp. 1999). With regard to most
remaining services, the Secretary historically has defined substantial compliance as seventy-five
percent (75%) compliance. See 45 C.F.R. § 305.20 (1998). Similarly, new regulations recently
proposed by the Secretary require only 75% compliance for most remaining services, including, as
pertinent to this appeal, locating noncustodial parents, obtaining support orders, and enforcing
support obligations. See Child Support Enforcement Program, 64 Fed. Reg. 55,074, 55,101 (1999)
(to be codified at 45 C.F.R. § 305.63(c)) (proposed Oct. 8, 1999).
In our view, the Plaintiffs’ claim that Title IV-D confers upon them individually
enforceable rights is simply at odds with Title IV-D’s substantial compliance provisions. As
observed by the Supreme Court in Blessing, even when the state is meeting its obligations under
Title IV-D, “any individual plaintiff might still be among the 10 or 25 percent of persons whose
needs ultimately go unmet.” Blessing v. Freestone, 520 U.S. 329, 344 (1997). Although the
Plaintiffs are not seeking to enforce Title IV-D’s substantial compliance provisions, as were the
claimants in Blessing, we believe that the result is the same. In the present case, the Plaintiffs claim
that Title IV-D grants them individually enforceable rights to receive services for locating
noncustodial parents, establishing paternity, obtaining child support orders, and enforcing child
support obligations. These are the precise services for which Title IV-D requires only the state’s
“substantial compliance.” Inasmuch as Congress obviously envisioned that states would achieve less
than one hundred percent (100%) compliance with many of Title IV-D’s provisions,11 such as the
provisions at issue here, we conclude that, as a general rule, Congress did not intend to confer upon
individual recipients of Title IV-D services an enforceable right to receive those services.
At least one federal appellate court has reached the same conclusion based upon its
interpretation of Blessing. In an unpublished decision, Barnes v. Anderson, No. 95-15969, 1997
WL 583325 (9th Cir. Sept. 19, 1997),12 the United States Court of Appeals for the Ninth Circuit held
that Blessing barred the plaintiffs’ claims that they were entitled to receive child support
enforcement services under Title IV-D. The court first cited Blessing’s holding that “Title IV-D
does not give individuals a federal right to force a state agency to substantially comply with Title
IV-D” because “the requirement that a State operate its child support program in ‘substantial
compliance’ with Title IV-D was not intended to benefit individual children and custodial parents,
and therefore it does not constitute a federal right.” Barnes, 1997 WL 583325, at *1 (quoting
11
The proposed regulations apparently require 100% compliance in only the following
areas: statewide operations (45 C.F.R. § 302.10); reports and maintenance of records (45 C.F.R.
§ 302.15(a)); separation of cash handling and accounting functions (45 C.F.R. § 302.20); and
notice of collection of assigned support (45 C.F.R. § 302.54). See Child Support Enforcement
Program, 64 Fed. Reg. 55,074, 55,101 (1999) (to be codified at 45 C.F.R. § 305.63(a)) (proposed
Oct. 8, 1999).
12
We recognize that the Court of Appeals designated its decision as “not appropriate for
publication” and that, pursuant to Ninth Circuit Rule 36-3, the decision’s precedential value is
limited. Nevertheless, we agree with the court’s analysis of this issue, and we adopt it as our
own.
Blessing, 520 U.S. at 333, 343). The court then interpreted Blessing “as further holding that Title
IV-D does not ‘unambiguously impose a binding obligation on the States.’” Barnes, 1997 WL
583325, at *1 (quoting Blessing, 520 U.S. at 341). In concluding that Blessing barred the plaintiffs’
claims, the court explained:
Absent the imposition of . . . a binding obligation, Title IV-D does not
affect a liberty or property interest protected by the Due Process
Clause. See Board of Regents v. Roth, 408 U.S. 564, 569 (1972).
As the Supreme Court pointed out in [Blessing], the [plaintiffs] can
have no “legitimate claim of entitlement” to enforcement services,
Roth, 408 U.S. at 569, because “even when a State is in ‘substantial
compliance’ with Title IV-D, any individual plaintiff might still be
among the 10 or 25 percent of persons whose needs ultimately go
unmet.”
Barnes, 1997 WL 583325, at *1 (quoting Blessing, 520 U.S. at 344).
A federal district court also has interpreted Blessing to hold “that Title IV-D does not
generally give rise to any individually enforceable rights.” Brinkley v. Hill, 981 F. Supp. 423, 427
(S.D. W. Va. 1997). Citing various statutory and regulatory provisions, the plaintiffs in that case
claimed that state officials had violated their rights to receive certain Title IV-D services by, inter
alia, failing to pursue mandatory collection procedures, failing to establish paternity by
acknowledgment, failing to pursue enforcement of child support orders, failing to employ all
available legal remedies for collecting past due child support, failing or refusing to take action
against employers who did not enforce wage withholding, and failing or refusing to use proper
locator and search methods. See Brinkley, 981 F. Supp. at 438-41. After examining the statutory
and regulatory provisions cited by the plaintiffs, the court concluded that none of them created
individually enforceable rights to receive the requested services. See id. In reaching this conclusion,
the court observed that the plaintiffs’ “exhaustive requests for relief . . . are in fact nothing more than
an elaborate request for substantial compliance.” Brinkley, 981 F. Supp. at 438.13
13
The Plaintiffs have provided this court with copies of two unreported decisions of
federal district courts which, they contend, support the claims asserted in their amended
complaint. We conclude that the first decision, Emmons v. Murray, No. 91-CV-40411-FL, slip
op. at 5-8 (E.D. Mich. Aug. 26, 1997), is distinguishable from the present case because that
decision dealt with section 657 of the Act, governing the state’s distribution of collected support.
In Young v. Anderson, No. S-95-942, slip op. at 10-16 (E.D. Cal. Jan. 7, 2000), the court
ruled that sections 652(h) and 654(4) of the Act created individually enforceable rights to receive
The result we reach today also is consistent with the result reached by the Supreme
Court in a case decided prior to Blessing. In Suter v. Artist M., 503 U.S. 347, 352 (1992), the
claimants brought a 1983 action against officials of the Illinois Department of Children and Family
Services based upon a provision of the Adoption Assistance and Child Welfare Act.14 That
provision, section 671(a)(15), required “that to obtain federal reimbursement, a State have a plan
which ‘provides that, in each case, reasonable efforts will be made . . . to prevent or eliminate the
need for removal of the child from his home, and . . . to make it possible for the child to return to his
home.’” Suter, 503 U.S. at 358 (quoting 42 U.S.C. § 671(a)(15) (1988 & Supp. I 1989)). The
Supreme Court framed the dispositive issue before it as whether Congress, “in enacting the Adoption
Act, unambiguously confer[red] upon the child beneficiaries of the Act a right to enforce the
requirement that the State make ‘reasonable efforts’ to prevent a child from being removed from his
home, and once removed to reunify the child with his family.” Suter, 503 U.S. at 357. Despite
Congress’s use of mandatory terms in section 671(a)(15), the Court concluded that this section did
“not create a federally enforceable right to ‘reasonable efforts’ under § 1983.” Id. at 363. The Court
reasoned that
[c]areful examination of the language relied upon by [the
claimants], in the context of the entire Act, leads us to conclude that
the “reasonable efforts” language does not unambiguously confer an
enforceable right upon the Act’s beneficiaries. The term “reasonable
efforts” in this context is at least as plausibly read to impose only a
rather generalized duty on the State, to be enforced not by private
individuals, but by the Secretary [of Health and Human Services].
Id.15
As we previously indicated, in Blessing the Supreme Court specifically left open the
location and enforcement services. We acknowledge that the court’s decision in Young is
inconsistent with the result we reach today, but we decline to follow Young.
14
The provisions of the Adoption Assistance and Child Welfare Act appear in Titles IV-B
and IV-E of the Social Security Act. See Suter, 503 U.S. at 350 (citing U.S.C. §§ 620–628,
670–679a (1988 & Supp. I 1989)).
15
Congress subsequently enacted a statute overturning Suter to the extent that its holding
relied upon the rationale that the provision was included “in a section of [the Social Security Act]
requiring a State plan or specifying the required contents of a State plan.” 42 U.S.C.A. § 1320a-2
(West Supp. 1999). Significantly, however, Congress left intact Suter’s holding “that section
671(a)(15) . . . is not enforceable in a private right of action.” Id.
possibility that Title IV-D might give rise to some individually enforceable rights. See Blessing, 520
U.S. at 346. The only right arguably recognized by the Court, however, was one arising under
section 657 of the Act, which governs the state’s distribution of collected support. See id. at 345-46.
Prior to 1996, section 657(b)(1) provided that the first $50 of each monthly support payment would
be paid to the family receiving AFDC. See U.S.C.A. § 657(b)(1) (West 1991). In Blessing, one of
the claimants alleged that the state had collected some support payments from the noncustodial
parent but had failed to pass through the first $50 of each payment. See Blessing, 520 U.S. at 345-
46. Referring to the $50 pass-through provision contained in the pre-1996 version of the statute, the
Court suggested that section 657 might give an AFDC recipient a federal right to receive a specified
portion of the money collected on her behalf by the state. See id. The Court did not decide this
issue, however, because the claimant did not explicitly request this relief in the complaint. See id.
at 346.
In the present case, Plaintiff Jennifer Aric alleged that the Director of Child Support
Services had collected some child support by wage assignment forwarded by Kevin Jennings’
employer but that the Director had “not sent the full amount collected as child support to Ms. Aric
as required by federal law.” Significantly, however, the amended complaint did not cite any
provision of Title IV-D that would entitle Aric to receive “the full amount collected as child
support,” nor did the complaint explicitly request such relief. Accordingly, we need not decide
whether Title IV-D might give rise to such an individually enforceable right. See Blessing, 520 U.S.
at 345-46.16
16
As noted by the Supreme Court in Blessing, Congress replaced section 657’s “$50 pass-
through with more generous distributions to families once they leave welfare.” Blessing, 520
U.S. at 334 (citing 42 U.S.C.A. § 657(a)(2) (Nov. 1996 Supp.)). The current version of
section 657 specifies how the state shall distribute amounts collected on behalf of a family as
support. See 42 U.S.C.A. § 657(a) (West 1991 & Supp. 1991). The method of distribution
differs depending upon whether the family (1) currently receives AFDC, (2) formerly received
AFDC, or (3) never received AFDC. See 42 U.S.C.A. §§ 657(a)(1)–(a)(3) (West 1991 & Supp.
1999). Under section 657(a), only families who never received AFDC are entitled to the full
amount collected. See 42 U.S.C.A. § 657(a)(3) (West 1991 & Supp. 1999).
According to the amended complaint, Plaintiff Jennifer Aric was receiving “welfare aid”
when her second child was born in July 1993. The complaint does not make clear whether Aric
was receiving AFDC payments in February 1992, when her first child was born, or in July 1997,
when the noncustodial parent of her first child was ordered to pay child support, but the
complaint’s allegations suggest that Aric has received AFDC in the past. Thus, even if Aric had
explicitly sought relief under section 657(a)(3), the allegations of the complaint indicate that she
was not entitled to such relief.
In conclusion, we hold that the Plaintiffs’ amended complaint fails to state a claim
for relief against the Director of Child Support Services under 1983 because the complaint fails to
successfully allege the violation of an individually enforceable right under Title IV-D of the Social
Security Act, also known as the Child Support Enforcement Act. Contrary to the Plaintiffs’
contentions, the cited statutory and regulatory provisions17 do not unambiguously confer upon them
enforceable rights to receive Title IV-D services. Instead, Title IV-D requires only “substantial
compliance” with its provisions, and relative to the provision of most Title IV-D services, the
Secretary has defined “substantial compliance” as 75% compliance. Inasmuch as the Plaintiffs have
failed to demonstrate an entitlement to specific Title IV-D services, we conclude that the trial court
did not err in dismissing their amended complaint. In light of our holding, we need not address the
remaining issues raised by the parties on appeal.
The trial court’s judgment is affirmed, and this cause is remanded for further
proceedings consistent with this opinion. Costs of this appeal are taxed to Plaintiffs/Appellants
Patricia Davis and Jennifer Aric, for which execution may issue if necessary.
17
We also reject any suggestion that the regulations promulgated by the Secretary, by
themselves, may confer individually enforceable rights upon the Plaintiffs. See Harris v. James,
127 F.3d 993, 1009 (11th Cir. 1997) (reasoning that “[t]o hold otherwise would be inconsistent
with the driving force of the Supreme Court precedent requiring a Congressional intent to create
federal rights and with the Supreme Court’s directive that courts must find that Congress has
unambiguously conferred federal rights on the plaintiff”); Brinkley v. Hill, 981 F. Supp. 423, 439
(S.D. W. Va. 1997) (holding that, in order to maintain 1983 action, claimants must allege
violation of federal statutory law and not merely violation of federal regulation); see also Todd E.
Pettys, The Intended Relationship Between Administrative Regulations and Section 1983’s
“Laws”, 67 Geo. Wash. L. Rev. 51, 53 (1998) (contending that “Congress almost certainly
would not have used the word ‘laws’ in section 1983 if it intended to provide a remedy for
violations of regulatory rights”); but see Boatman v. Hammons, 164 F.3d 286, 289 (6th Cir.
1998) (indicating that Sixth Circuit “has held to the contrary that because federal regulations
have the force of law, they must be characterized as ‘law’ under § 1983”). Compare Smith v.
Dearborn Financial Services, Inc., 982 F.2d 976 (6th Cir. 1993), dealing with the related issue
of whether a federal statute creates an implied private right of action, wherein the court explained
that
federal regulations cannot themselves create a cause of action; that
is a function of the legislature. . . . A grant of federal rulemaking
power is not authority to create federal jurisdiction. That authority
lies solely with Congress. . . . Therefore, no implied private right
of action can be found from the regulations standing alone. Rather,
the statute must be examined to determine if an implied private
right of action can be found from the statute.
Smith, 982 F.2d at 979 (citations omitted).
_______________________________________
FARMER, J.
______________________________
CRAWFORD, P.J., W.S.
______________________________
HIGHERS, J.