USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-1137
SUSAN ALBISTON, ET AL.,
Plaintiffs, Appellees,
v.
MAINE COMMISSIONER OF HUMAN SERVICES, ET AL.,
Defendants, Appellants.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
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____________________
Before
Selya, Cyr and Boudin,
Circuit Judges.
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Christopher C. Leighton, Deputy Attorney General, with whom
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Michael E. Carpenter, Attorney General, and Thomas D. Warren, Deputy
____________________ _________________
Attorney General, were on brief for appellants.
Mary T. Henderson with whom Patrick Ende, Linda Christ, and Pine
__________________ ____________ ____________ ____
Tree Legal Assistance were on brief for appellees.
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September 27, 1993
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CYR, Circuit Judge. Plaintiffs-appellees Susan Albis-
CYR, Circuit Judge.
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ton and Anita Wingert brought a class action, under 42 U.S.C.
1983, to compel timely disbursement of "pass-through" and "gap"
payments under Titles IV-A and IV-D of the Social Security Act.
Defendants-appellants, in their official capacities,1 challenged
plaintiffs' standing. The district court rejected the challenge.
We affirm.
I
I
BACKGROUND
BACKGROUND
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Title IV-A of the Social Security Act, 42 U.S.C. 601
et seq., creates a voluntary, cooperative federal-state program
__ ____
for Aid to Families With Dependent Children ("AFDC"). The AFDC
program, administered by participating states, provides federal
financial assistance to needy families with children who are
deprived of parental support through death, disability or deser-
tion. States are not required to participate in the AFDC pro-
gram, but must agree to administer it in accordance with a
federally approved AFDC plan if they elect to participate. King
____
v. Smith, 392 U.S. 309, 316 (1968).
_____
____________________
1The nominal defendants are the Commissioner of the Maine
Department of Human Services, 22 M.R.S.A. 3781, and the Commis-
sioner of the Maine Department of Finance, 5 M.R.S.A. 282-283,
1541. Since the State of Maine is the real party in interest,
however, we refer to defendants-appellants collectively as the
"State," or "Maine." See Stowell v. Ives, 976 F.2d 65, 67 n.1
___ _______ ____
(1st Cir. 1992) ("Stowell I").
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2
In 1975, Congress amended Title IV-A, by requiring AFDC
recipients to assign to the State their "rights to support from
any other person" (including the right to child-support payments
from an absent parent), as a condition to their receipt of AFDC
benefits. 42 U.S.C. 602(a)(26)(A). States in turn were
required to amend their Title IV-A plan, see id. at 602(a)(27),
___ ___
assuming responsibilities for enforcement of absent parents'
child-support obligations [hereinafter "child-support enforce-
ment," or "CSE"], under a program outlined in a new Title IV-D of
the statute, 42 U.S.C. 451 et seq.2 Among other provisions,
__ ____
Title IV-D requires States to "pass through" to AFDC recipients
the first $50 of each monthly child-support payment the States
recover from absent parents of AFDC recipients. See id. at
___ ___
657(b); see also Wilcox v. Ives, 864 F.2d 915, 916-17 (1st Cir.
___ ____ ______ ____
1988) (discussing origins and statutory background of States'
"pass-through" obligation). Moreover, under Title IV-A, a State
____________________
which pays out less in AFDC benefits than a family's predeter-
2In order to monitor State performance under Title IV-D,
mined "level of need" is required to provide supplemental monthly
Congress established an Office of Child Support Supervision
["OCSE"], to which it delegated substantial authority for stan-
payments, drawn from its Title IV-D child-support recovery, up to
dard-setting and administrative review. See 42 U.S.C. 652(a);
___
see also Carelli v. Howser, 923 F.2d 1208, 1213-15 (6th Cir.
___ ____ _______ ______
the amount necessary to fill the "gap."3 42 U.S.C. 602(a)-
1991) (comprehensive review of OCSE duties and authority).
3In order to offset expenditures made on the AFDC recip-
ient's behalf, the State may retain any child-support recoveries
from the absent parent above the amount required to fund the
"gap" payments to the AFDC recipient. See 42 U.S.C. 602(a)-
___
(8)(A)(vi); 657(b) (4). If a family is not receiving AFDC, or if
the child-support recovery raises a family above the minimum
income threshold for AFDC eligibility, the State must "pass
through" the support payment in its entirety. See id. at
___ ___
657(b), 657(c); see also 45 C.F.R. 232.20(b)(1).
___ ____
3
(28); see also Stowell v. Secretary of HHS, ___ F.2d ___, ___
___ ____ _______ _________________
(1st Cir. 1993) ("Stowell II") (describing "gap-filling" under
___________
the Act); Doucette v. Ives, 947 F.2d 21, 24-25 (1st Cir. 1991)
________ ____
(discussing origins and statutory background of "gap" payment
obligation); see generally Wehunt v. Ledbetter, 875 F.2d 1558,
___ _________ ______ _________
1569-70 (11th Cir. 1989) (per curiam) (Clark, J., dissenting)
(comprehensive analysis of Title IV-D legislative history).
"Gap" payments are considered supplemental AFDC
disbursements under Title IV-A, see Fed. Reg. 29223-25 (August
___
15, 1988), and must be "furnished with reasonable promptness to
all eligible individuals," 42 U.S.C. 602(a)(10), "without any
delay attributable to the [State] agency's administrative pro-
cess." See 45 C.F.R. 206.10(a)(5). The $50 "pass-through"
___
payments mandated by 657(b) are disbursed under Title IV-D, not
Title IV-A, and therefore are not covered by 602(a)(10)'s
"reasonable promptness" requirement. However, in 1988, respond-
ing to persistent reports of "long delays [by States] in distrib-
uting child support collections," see Cong. Rec. S7993 (June 16,
___
1988) (remarks of Senator Bradley), Congress amended Title IV-D,
directing OCSE to establish specific time frames for "prompt"
disbursement of "pass-through" payments by the States. 42 U.S.C.
652(i). Pursuant to its statutory authority, OCSE adopted
regulations requiring "pass-through" payment disbursements to
eligible AFDC recipients, under 42 U.S.C. 657, within fifteen
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days of the State's receipt of child-support payments from an
____
4
absent parent or collecting agency. See 45 C.F.R. 302.32(f)-
___
(2).4
II
II
PROCEDURAL HISTORY
PROCEDURAL HISTORY
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Maine participates in the AFDC program as a "gap"
state, i.e., one whose AFDC benefits do not fully meet the AFDC
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recipient's designated "level of need."5 Accordingly, Maine
must make "gap" payments, as well as "pass-through" payments, to
eligible AFDC recipients. Plaintiffs Albiston and Wingert are
eligible AFDC recipients who assigned their child-support rights
to Maine under 602(a)(26)(A), but experienced significant
delays (two and six months, respectively) in receiving "gap" and
"pass-through" payments. Alleging "systemic" administrative
deficiencies, plaintiffs brought the present class action for
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4The Secretary subsequently amended the 15-day requirement
to provide that the "pass-through" payment may be made within
fifteen days after the month in which payment was due from the
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absent parent. See 57 Fed. Reg. 54519 (Nov. 19, 1992). Unless
___
otherwise indicated, however, we refer to the version in effect
at the time the present action was initiated.
5When this action was brought, the gap between AFDC benefits
and "level of need" for a family of three (one adult and two
children) was $ 199. Maine subsequently reduced its "level of
need," narrowing the "gap" obligation somewhat. Maine's AFDC
"gap," and its later reduction in the "level of need," are
discussed in Stowell I, 976 F.2d at 67, and in Stowell II, ___
_________ __________
F.2d at ___ [slip op. at 3-4 & n.1].
5
declaratory and injunctive relief under 42 U.S.C. 1983.6
Although Maine disputes the severity of its "systemic"
problems, it acknowledges that "gap payment" disbursements are
delayed in individual cases by a variety of administrative
factors, including inadequate staffing, computer programming
errors, clerical mistakes, and errors caused either by collection
agencies or other states. Maine also acknowledges that, as of
the initiation of this lawsuit, it missed OCSE's 15-day deadline
for processing "pass-through" payments in approximately 66% of
its qualifying AFDC cases. But it argues that Titles IV-A and
IV-D, which require "substantial compliance" on penalty of
cutbacks in federal funding, see 42 U.S.C. 604(a)(2), 603(h),
___
impose no corresponding, judicially cognizable obligation to make
timely "gap" and "pass-through" payments in individual cases, and
__ __________ _____
that plaintiffs therefore lack standing to enforce a timely-
____________________
6The district court certified Albiston and Wingert as repre-
sentative of a plaintiff class consisting of
all present, former and future AFDC recipients with a
present entitlement to pass-through and gap payments
within the State of Maine:
(a) who have not received or will not receive their
$ 50.00 pass-through payment under 42 U.S.C. 657(b)-
(1) within 15 days of the date the child support from
which the $ 50.00 payment is derived was received by
the State of Maine; and
(b) who have not received or will not receive their
"GAP" payment pursuant to 42 U.S.C. 602(a)(28) by the
month after the month in which the child support pay-
ment from which the GAP payment is derived was received
by the State of Maine.
6
payment obligation in a private action under 1983.7
III
III
DISCUSSION
DISCUSSION
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The 1983 remedy presumptively encompasses violations
of federal statutory rights by state officials. See Maine v.
___ _____
Thiboutot, 448 U.S. 1, 4 (1980) (finding private cause of action
_________
under 1983 to enforce rights conferred by Social Security Act).
Nevertheless, certain post-Thiboutot cases, see, e.g., Suter v.
_________ ___ ____ _____
Artist M., 112 S. Ct. 1360 (1992); Pennhurst State Sch. & Hosp. v.
_________ ____________________________
Halderman, 451 U.S. 1 (1981), have been "difficult for lower
_________
courts to reconcile" with the presumptive availability of a
private right of action for statutory enforcement. See Evelyn V.
___ _________
v. Kings County Hosp. Center, 819 F. Supp. 183, 190 (E.D.N.Y.
__________________________
1993) (surveying 1983 caselaw from Thiboutot to Suter).
_________ _____
In Golden State Transit Corp. v. Los Angeles, 493 U.S.
__________________________ ___________
103, 106 (1989), and Wilder v. Virginia Hosp. Ass'n, 496 U.S.
______ _____________________
498, 508-09 (1990), the Supreme Court synthesized prior case law,
reaffirming the presumptive availability of a 1983 remedy for
violations of federal statutory rights, but articulating several
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7The Secretary is charged with conducting periodic audits of
State performance under Title IV-D and has promulgated regula-
tions deeming a State in "substantial compliance" with Title IV-D
provided the applicable statutory requirements are met in 75% of
the cases reviewed in the particular State. See 45 C.F.R.
___
305.20.
7
broad exclusions.8 First, because "section 1983 speaks in terms
of 'rights, privileges, or immunities, [rather than] violations
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of federal law," Golden State, 493 U.S. at 106 (1989) (emphasis
_____________
added), private relief is considered unavailable if the federal
statute at issue does not "create enforceable rights." Wilder,
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496 U.S. at 519 (citing Wright, 479 U.S. at 423). Whether a
______
statute creates "enforceable rights"
turns on [A] whether 'the provision in
question was intend[ed] to benefit the
putative plaintiff.' If so, the provision
creates an enforceable right unless it [B]
reflects merely a 'congressional preference'
for a certain kind of conduct rather than a
binding obligation on the governmental unit,
or unless [C] the interest the plaintiff
asserts is 'too vague and amorphous' such
that it is 'beyond the competence of the
judiciary to enforce.'"
Id. at 509 (citations omitted). Second, 1983 may be unavail-
__
able if "Congress foreclosed [private] enforcement in the enact-
ment" whose enforcement is sought, by providing an alternative,
comprehensive administrative scheme for redressing individual
____________________
8The Court in Wilder found a private right to enforce a
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Boren Amendment requirement that Medicaid expenses be reimbursed
at rates that a "State finds, and makes assurances satisfactory
to the Secretary, are reasonable and adequate to meet the costs
which must be incurred by efficiently and economically operated
facilities." 496 U.S. at 507. The Court in Golden State upheld
____________
a private right, under 1983, to enforce National Labor Rela-
tions Act provisions against state interference in collective
bargaining procedure. 493 U.S. at 112-13. Both cases cited
approvingly to Wright v. City of Roanoke Redevelopment & Hous.
______ _______________________________________
Auth., 479 U.S. 418, 423 (1987), which upheld a private right to
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enforce the Brooke Amendment's statutory directive that public
housing rents incorporate "reasonable" utility rates.
8
plaintiffs' grievances under the statute. Smith v. Robinson, 468
_____ ________
U.S. 1, 10-20 (1981); Middlesex County Sewerage Auth. v. National
_______________________________ ________
Sea Clammers Ass'n, 453 U.S. 1, 20 (1981).
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The framework established in Golden State and Wilder
____________ ______
continued to be used for several years in determining whether
1983 permitted a private right of action for the enforcement of
federal "spending" statutes. See, e.g., Playboy Enterprises v.
___ ____ ___________________
Public Svce. Com'n, 906 F.2d 25, 32-33 (1st Cir.), cert. denied,
___________________ _____ ______
111 S. Ct. 388 (1990) (applying Wilder analysis; upholding private
______
enforcement of "editorial control" provisions in Cable Communica-
tions Policy Act). Then, the Supreme Court appeared to depart
from this framework in Suter v. Artist M., 112 S. Ct. 1360, where
_____ _________
it considered whether an enforceable private right of action
arose under the "reasonable efforts" provision of the Adoption
Assistance and Child Welfare Act ["AACWA"]. The Suter Court
_____
acknowledged that the AACWA was "mandatory in its terms," in that
it required States to "have a plan approved by the Secretary
which . . . provides that, in each case, reasonable efforts will
be made (A) prior to the placement of a child in foster care, to
prevent or eliminate the need for removal of the child from his
home, and (B) to make it possible for the child to return to his
home." Id. at 1367 (quoting 42 U.S.C. 671(a)(15)). Suter
___ _____
noted, however, that the States were given "a great deal of
discretion" in defining the terms of their compliance with the
AACWA, since the statute, its legislative history, and the
9
accompanying regulations provided no "further . . . guidance
. . . as to how 'reasonable efforts' [were] to be measured." Id.
___
at 1368-69. Accordingly, Suter held, Congress intended "to
_____
impose only a rather generalized duty on the State." Id. at
___
1370. And, this "generalized duty" was too vague to permit an
inference that Congress had intended to "confer 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." Id. at 1367. Suter's failure explicitly to apply
___ _____
the framework outlined earlier in Wilder led two dissenting
______
Justices to assert that the holdings of the two cases were
"plainly inconsistent," and that the Suter majority had "changed
_____
the rules of the game without even minimal justification," in
effect overruling Wilder, sub silentio. 112 S. Ct. at 1371, 1377
______ ___ ________
(Blackmun, J., dissenting).
In Stowell I, 976 F.2d at 68-70, this court examined
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the Suter dissenters' claim that Suter had overruled Wilder.
_____ _____ ______
Stowell I concluded, however, that though Suter "shed new light
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on this fuliginous area of the law," it was "much too early to
post epitaphs for Wilder and its kin," and that it was "both
______
prudent and possible to synthesize the teachings of Suter with
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10
the Court's prior precedents." 976 F.2d at 68.9 Revisiting the
issue today, we conclude that Suter left the basic Wilder frame-
_____ ______
work intact, but added a further threshold inquiry, applicable in
cases involving "federal-state funding statutes" enacted pursuant
to the "Spending Clause." See Pennhurst, 451 U.S. at 17-18
___ _________
(noting special attributes of statutes enacted under Spending
Clause, which assume "the nature of a contract" between state and
federal governments); see also Suter, 112 S. Ct. at 1366 & n.7
___ ____ _____
(quoting Pennhurst, and noting AACWA's enactment pursuant to
_________
Spending Clause). When federal-state funding statutes enacted
pursuant to the Spending Clause "fail[] to impose a direct
______
obligation on the States, instead placing the onus of compliance
__________ __ ___ ______
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9 For one thing, Suter offered no analytic
_____
framework to replace the structure erected in
the Court's previous decisions. For another
thing, the Suter Court, while weakening ear-
_____
lier precedents in certain important re-
spects, was careful not to overrule them.
Indeed, the majority relied on those prece-
dents as pertinent authority.
Stowell I, 976 F.2d at 68. Other courts of appeals also have
_________
found Suter reconcilable with "Wilder and its kin." See, e.g.,
_____ ______ ___ ____
Procopio v. Johnson, 994 F.2d 325, 331 n.9 (7th Cir. 1993);
________ _______
Clifton v. Schaefer, 969 F.2d 278, 283-85 (7th Cir. 1993); Dorsey
_______ ________ ______
v. Housing Auth. of Baltimore, 984 F.2d 622, 631 (4th Cir. 1993).
__________________________
Some further confirmation of this position may have been offered
last Term, when Justice White, a member of the Suter majority,
_____
cited Suter alongside Wilder and Wright in a dissenting opinion
_____ ______ ______
a juxtaposition which went unremarked by the majority. See
___
New York v. United States, 112 S. Ct. 2408, 2445 (1992) (White,
_________ _____________
J., dissenting) ("we have upheld 1983 suits to enforce certain
rights created by statutes pursuant to the Spending Clause
[citing Wilder and Wright], though Congress must be cautious in
______ ______
spelling out the federal rights clearly and distinctly [citing
Suter]").
_____
11
with the statute's substantive provisions on the federal govern-
ment, no cause of action cognizable under section 1983 can
flourish." Stowell I, 976 F.2d at 70 (emphasis added).
_________
Viewed in this light, Suter's impact on our 1983
_____
jurisprudence is neither particularly "far-reaching" nor "plainly
inconsistent" with prior precedent. Since Suter, 1983 cog-
_____
nizability in the ambiguous context of shared state-federal
obligations contemplates that the alleged breach of statutory
rights shall have resulted from some impermissible "state ac-
_____
tion," rather than from a mere default in the performance of a
federally-retained obligation. This said, however, two other
aspects of Suter's holding require our consideration.
_____
First, although a congressional intent to create
______
"enforceable rights" may be presumed simply from the enactment of
a federal statute mandating performance of specific duties, see
___
Golden State, 493 U.S. at 112-13, a congressional intent to
_____________
impose those obligations on participating States may not be
______ _____ ___________ __ _____________ ______
presumed, but must be demonstrated by the 1983 plaintiff.
Suter, 112 S. Ct. at 1367-68. Second, and equally important, in
_____
order to "impose a direct obligation on the States," the plain-
tiff must show that Congress has delineated the obligation
"unambiguously," i.e., with sufficient specificity to permit
____
States to "exercise their choice [to participate in the statutory
scheme] knowingly, cognizant of the consequences of their partic-
ipation." See Pennhurst, 451 U.S. at 17. A federally-imposed
___ _________
12
statutory obligation is not enforceable in a private action
against the State under 1983 if its terms are so vague and
generalized that their "meaning will . . . vary with the circum-
stances of each case" so as to be insusceptible to judicial
enforcement. See Suter, 112 S. Ct. at 1368-70; see also Penn-
___ _____ ___ ____ _____
hurst, 451 U.S. at 17 ("The legitimacy of Congress' power to
_____
legislate under the spending power . . . rests on whether the
State voluntarily and knowingly accepts the terms of the 'con-
tract.' There can . . . be no knowing acceptance if a State is
unaware of the conditions or is unable to ascertain what is
expected of it") (citations omitted).
13
A. A Statute Enacted Under the Spending Power Must
A. A Statute Enacted Under the Spending Power Must
Delegate a Mandatory Duty Directly to the States
Delegate a Mandatory Duty Directly to the States
________________________________________________
We agree with plaintiffs that the challenged statute
and its implementing regulations satisfy Suter's threshold
_____
mandate by imposing reasonably clear, judicially enforceable
obligations directly on the participating States. We begin with
the statutory provisions covering gap payments. Under Title
IV-A, in order to receive federal subsidies under the AFDC
program, a State is obligated to adopt a plan, see King v. Smith,
___ ____ _____
392 U.S. at 333, which ". . . provide[s] that aid to families
with dependent children shall be furnished with reasonable
_____
promptness." See 42 U.S.C. 602(a) (10)(A) (emphasis added).
___
Moreover, the State's obligation does not cease once it obtains
initial administrative approval of its plan; even after the
_____
Secretary has given administrative approval, the State must also
____ ____
"comply substantially with [all] provisions required by section
602(a) . . . to be included in the plan," id. at 604(a)(2). If
___
a State is not in compliance with the terms of its plan, the
Secretary "shall make no further payments to such State (or shall
_____
limit payments to categories under or parts of the State plan not
affected by such failures)." 42 U.S.C. 604(a) (emphasis
added). Like the "reasonable efforts" requirement in Suter,
_____
these requirements are "mandatory in [their] terms," 112 S.Ct. at
1367. Indeed, then-Justice Rehnquist's Pennhurst opinion quoted
_________
the statutory predecessor to 602(a)(10), including its "reason-
14
able promptness" language, as an example of an "instance[] where
Congress . . . intended the States to fund certain entitlements
as a condition of receiving federal funds, . . . [and] proved
capable of saying so explicitly." 451 U.S. at 17-18. See also,
___ ____
e.g., Carleson v. Remillard, 406 U.S. 598, 600 (1972) (stating
____ ________ _________
that 602(a)(10) "places on each State participating in the AFDC
__ ____ _____
program the requirement that 'aid to families with dependent
children shall be furnished with reasonable promptness to all
eligible individuals") (emphasis added); King v. Smith, 392 U.S.
____ _____
at 333 (asserting that State of Alabama "breached its federally
________ ___ _________
imposed obligation [under statutory predecessor to 602(a)(10)]
_______ __________
to furnish 'aid . . . with reasonable promptness to all eligible
individuals'") (emphasis added).
Seemingly no less clear is the delegation to the States
of the Title IV-D mandated obligation to disburse "pass-through"
payments in a timely fashion. Section 654(13) provides that a
State child-support plan must provide, in pertinent part, "that
the State will comply with such other requirements and standards
as the Secretary determines to be necessary." Section 657(b) of
Title IV-D governs the terms under which "amounts collected as
support by a State . . . shall . . . be distributed" by the
_____
collecting State. (Emphasis added.) The 1988 amendments to
Title IV-D require OCSE, as part of its "standards for State
programs," 42 U.S.C. 652(a)(1), to promulgate mandatory regula-
tions which "shall include standards establishing time limits
_____
15
governing the period or periods within which a State must dis-
____
tribute, in accordance with section 657 of this section, amounts
collected as child-support pursuant to the State's plan." Id. at
___
652(i) (emphasis added). The OCSE regulations in effect at the
commencement of this litigation provided that
Amounts collected by the IV-D agency on be-
half of recipients of aid under the State's
title IV-A . . . plan . . . shall be distrib-
_____
uted as follows:
(i) . . . When the IV-A agency sends payments
to the family under 302.51(b)(1) of this
part, the IV-D agency must forward any amount
____
due the family under 302.51(b)(1) to the
IV-A agency within 15 calendar days of the
date of initial receipt in the State of the
first $ 50 of support collected in a month,
or, if less than $ 50 is collected in a
month, within 15 calendar days of the end of
the month in which the support was collected.
45 C.F.R. 302.32(f)(2) (later revised; see 57 Fed. Reg. 54519
___
(November 19, 1992)) (emphasis added). In addition, a State that
fails to achieve "substantial compliance" with the Title IV-D
requirements, including its 657 distribution obligations and
OCSE's 15-day "promptness" provision, shall have "amounts other-
_____
wise payable . . . reduced." 42 U.S.C. 603(h)(1) (emphasis
added). We conclude that these provisions impose a specific,
definite and mandatory obligation directly on participating
States. See generally Howe v. Ellenbecker, 774 F. Supp. 1224,
___ _________ ____ ___________
1230 (D.S.D. 1991) (considering Title IV-D in light of Pennhurst;
_________
"The language in Title IV-D is mandatory and set[s] out in
specific and definite terms . . . . what states must do to
16
participate in the program"); Behunin v. Jefferson Cty. Dept. of
_______ _______________________
Social Servs., 744 F. Supp. 255, 258 (D. Colo. 1990) ("The
______________
mandatory language of Title IV-D, and its clear intent to benefit
children and their families[,] distinguish this statute from the
statute considered in Pennhurst"); Carelli v. Howser, 733 F.-
_________ _______ ______
Supp. 271, 276 (S.D. Ohio 1990) (citing 654(13); "the language
of Title IV-D is clearly mandatory rather than precatory," and
creates "specific and definite benefits"), rev'd on other
_____ __ _____
grounds, 923 F.2d 1208 (6th Cir. 1991).
_______
It is the imposition of mandatory obligations directly
on the States, as distinguished from the Secretary, that sepa-
rates the "promptness" obligations under Titles IV-A and IV-D
from the statutory provisions considered in Suter and Stowell I.
_____ __________
In Suter, the Court concluded that the AACWA requirement of
_____
"reasonable efforts" was "mandatory," and "does place a require-
ment on the States," but held that because of its vagueness "that
requirement only goes so far as to ensure that the State have a
____ ____ __ ___ __ __ ______ ____ ___ _____ ____ _
plan approved by the Secretary which contains the 16 listed
____ ________
features." 112 S. Ct. at 1367 (emphasis added). Likewise, in
Stowell I, 976 F.2d at 69, plaintiffs sought 1983 enforcement
_________
of a statutory provision which
simply and forthrightly provides, in haec
____
verba, that 'the Secretary shall not approve
_____
any State plan for medical assistance' if the
State has reduced AFDC payment levels below
the level prevailing on May 1, 1988. 42
U.S.C. 1396a(c)(1). By its express terms,
section 1396a(c)(1) obliges the federal gov-
17
ernment, in the person of the Secretary of
Health and Human Services not the State
to take action. The statute could scarcely be
clearer.
In the present case, on the other hand, although the
Secretary retains oversight responsibility for monitoring "sub-
stantial compliance" with the State's plan, plaintiffs do not
base their statutory claim on the Secretary's nonperformance of
these oversight obligations, but on the State's separate "com-
________
pliance" obligations as mandated. And, as discussed in Part D,
infra, the Secretary's oversight responsibilities are neither
_____
incompatible with, nor exclusive of, Congress' imposition upon
____
the participating State of the direct responsibility for fulfill-
___ _____________ _____
ing its plan obligations to the statute's intended beneficiaries.
Rosado v. Wyman, 397 U.S. 397, 420 (1970); Lynch v. Dukakis, 719
______ _____ _____ _______
F.2d 504, 511, 512 (1st Cir. 1983).10
B. The State's Obligation Must Be "Unambiguous"
B. The State's Obligation Must Be "Unambiguous"
____________________________________________
____________________
10Although further discussion of this issue is reserved for
Part D, infra, we pause to note one additional point. We do not
_____
read Suter as disturbing the principle, articulated in Wilder and
_____ ______
other cases, that a statute may impose obligations on the States
despite the existence of a parallel administrative scheme for the
enforcement of overall compliance with statutory provisions. See
___
Wilder, 496 U.S. at 512. Although Suter cited the AACWA's
______ _____
administrative enforcement mechanisms in passing, to "show that
the absence of a remedy to private plaintiffs under 1983 does
not make the reasonable efforts clause [of the AACWA] a dead
letter," it made clear that its brief discussion of this subject
was intended as an "aside," and not to supplant the more detailed
inquiry required by Smith v. Robinson, supra, and Middlesex
_____ ________ _____ _________
County Sewerage Authority, supra. See 112 S. Ct. at 1368-69 &
_________________________ _____ ___
n.11.
18
Invoking Suter's requirement that delegated obligations
_____
be not only "mandatory" but "unambiguous," the State raises two
additional arguments concerning the alleged vagueness of the
obligations imposed by Titles IV-A and IV-D. First, the State
argues, the statutory requirement of "substantial" rather than
"total" compliance with a Title IV-D plan, see 42 U.S.C. 602(a)
___
(27), renders the State's "promptness" obligation under the plan
ambiguous in individual cases, and therefore unenforceable in a
private action under 42 U.S.C. 1983. See Mason v. Bradley, 789
___ _____ _______
F. Supp. 273 (N.D. Ill. 1992) ("full compliance with the regula-
tions in every case is clearly not required"); Oliphant v.
________
Bradley, No. 91-C3055, 1992 U.S. Dist. LEXIS 8975, at *23 (N.D.
_______
Ill. 1992) ("had Congress intended to mandate compliance [in
individual cases] with the time frames set out in the regula-
tions, it would have conditioned receipt of federal funds on
total, rather than substantial, compliance") (emphasis add-
_____
ed).11
____________________
11But see King v. Bradley, No. 92-C1564, 1993 U.S. Dist.
___ ___ ____ _______
LEXIS 11041, at *16-17 (N.D. Ill. Aug. 9, 1993), at *17 ("al-
though no individual plaintiff or class of plaintiffs has an
enforceable right or guarantee to be among the 75 percent of
cases that must be handled in conformance with federally regulat-
ed procedures . . . [,] [a]ny plaintiff or class of plaintiffs
that fails to receive services in compliance with federal regula-
tions when the state is running a Title IV-D program which does
not substantially comply with federal procedures does have the
right to sue to enjoin the State to improve its level of confor-
mance until it is in substantial compliance."). In the present
case, the district court's factual findings suggest that Maine
had not achieved "substantial compliance" with the relevant
statutory provision. Compare, e.g., Shands v. Tull, 602 F.2d
_______ ____ ______ ____
19
We think Maine misapprehends the import of the 602(a)
(27) "substantial compliance" requirement in this case. By its
terms, the "substantial compliance" obligation applies only to
the State's compliance with the terms of the State plan itself,
____ ______
as defined in 42 U.S.C. 654. However, the 15-day compliance
time frame imposed by OCSE under 45 C.F.R. 302.32(f)(2) is not
directly imposed as part of the State's plan, but stems from a
__ ____ __ ___ _______ ____
separate statutory provision, 42 U.S.C. 652(i), which specifi-
cally relates the OCSE 15-day regulation to "the period or
periods within which the State must distribute [amounts collected
as child-support], in accordance with section 657 of this sec-
tion." As 657 itself is mandatory, the 15-day compliance
requirement imposed thereunder takes precedence over the more
general "substantial compliance" directive made applicable to the
State's plan by 602(a)(27).
Alternatively, it may be possible, of course, to
construe Maine's "substantial compliance" argument as resting on
the provisions of sections 604(a)(2) and 603(h), which authorize
the Secretary to withhold funds from States which do not "comply
substantially" with Titles IV-A and IV-D. But if this is Maine's
position, it too must fail. For one thing, with respect to the
____________________
1156, 1160-61 (3d Cir. 1979) (barring private suit for enforce-
ment of AFDC statute, where State was in "substantial compliance"
with statutory provisions, but indicating that injunctive suits
may be permissible where "agencies have failed to reach even
substantial compliance with statutory standards").
20
Secretary's argument under Title IV-D, 603(h)(3) provides that
"for purposes of section 602(a)(27) of this title, . . . a State
which is not in full compliance with the requirements of this
part shall be determined to be in substantial compliance only if
the Secretary determines that any noncompliance is of a technical
_________
nature which does not adversely affect the performance of the
______
child-support enforcement program" (emphasis added). More
generally, however, the "substantial" compliance required to
avoid administrative penalties under both provisions is indepen-
____
dent of, and narrower than, the State's direct obligation to AFDC
recipients. See Wilder, 496 U.S. at 514-15 & n.11 (findings and
___ ______
assurances to Secretary, prior to plan approval, are separate
from subsequent obligation to comply with assurances). As the
Ninth Circuit has stated, in an analogous context, "[t]he funding
standard [of 'substantial compliance'] is not . . . the measure
of what the regulations require; it is intended to measure how
great a failure to meet those requirements should cause funds to
be cut off." Withrow v. Concannon, 942 F.2d 1385, 1387 (9th Cir.
_______ _________
1991).
Indeed, the AACWA, construed in Suter, also contained a
_____
provision, 42 U.S.C. 671(b), requiring "substantial compliance"
with the terms of the State-presented plan, or face cutbacks in
aid. Although Suter cited this statutory provision for a differ-
_____
ent proposition, 112 S. Ct. at 1368-69 (discussing alternative
"enforcement mechanisms" under the AACWA), the Suter majority
_____
21
nowhere intimated that it thought the administrative requirement
of "substantial compliance" contributed to the ultimate ambigu-
ousness of the States' "reasonable efforts" obligation.
Citing Suter's disapproval of the "reasonable efforts"
_____
provision, Maine also argues that the Title IV-A obligation of
"reasonable promptness," 42 U.S.C. 602(a)(10), is "'too vague
and amorphous,'" placing it "'beyond the competence of the
judiciary to enforce.'" Wright, 479 U.S. at 431-32. Again,
______
however, Maine misapprehends Suter's holding. A statute is not
_____
impermissibly vague simply because it requires judicial inquiry
into "reasonableness." See, e.g., Wilder, 496 U.S. at 519-20
___ ____ ______
("reasonable and adequate rates"); Wright, 479 U.S. at 437
______
("reasonable" utilities allowance); see generally, e.g., Virginia
___ _________ ____ ________
R. Co. v. System Fed'n No. 40, 300 U.S. 515 (1937) ("whether
_______ ____________________
action taken or omitted is . . . reasonable [is an] everyday
subjec[t] of inquiry by courts in framing and enforcing their
decrees"). Rather, the relevant question is whether the action
______
or purpose whose "reasonableness" is commanded has been clearly
__ _______
delineated and is susceptible of judicial ascertainment. See
___
Suter, 112 S. Ct. at 1368 (distinguishing Wilder as "set[ting]
_____ ______
forth in some detail the factors to be considered in determining
the methods for calculating rates") (emphasis added). Here, like
___________ _____
the "rates" considered in Wilder, or the utility allowance in
______
Wright and unlike the "efforts" prescribed, without elabora-
______ _______
tion, in the AACWA "promptness of payment" presents a straigh-
22
tforward, identifiable standard which we previously have found
readily susceptible of judicial evaluation. Coalition for Basic
___________________
Human Needs v. King, 654 F.2d 838, 841 (1st Cir. 1981) (finding
___________ ____
AFDC plaintiffs "likely to succeed" on 1983 claim based on
violation of "reasonable promptness" provisions in 602(a)(10)).
Moreover, to the extent further guidance may be re-
quired to demarcate the contours of reasonable "promptness" in
the Title IV-A context, the regulations promulgated by the
Secretary state that "financial assistance [under the AFDC
program] . . . shall be furnished promptly to eligible individu-
als without any delay attributable to the agency's administrative
_______ ___ _____ ____________ __ ___ ________ ______________
process." 45 C.F.R. 206.10(a)(5)(i) (emphasis added). We are
_______
not persuaded by Maine's contention that "the language of the
regulation offers no . . . assistance in determining the differ-
ence between necessary processing time and administrative delay."
Cf. California Dept. of Human Resources Development v. Java, 402
___ ________________________________________________ ____
U.S. 121, 133 (1971) (relying on purposes of Social Security Act
to construe statutory requirement that state unemployment compen-
sation programs be "reasonably calculated to insure full payment
of unemployment compensation when due"). Rather, this inter-
pretation plainly equates reasonable "promptness" in furnishing
financial assistance with an absence of delay due to the State's
_______ __ _____ ___ __ ___ _______
administrative process. We think it clear, therefore, that the
______________ _______
reference to "delay," considered in context, means "unreasonable
____________
delay," excluding whatever reasonable processing time is required
23
to credit the child-support received, determine the amount of the
gap payment, and issue a check. Cf. Beasley v. Harris, 671
___ _______ ______
F. Supp. 911, 915-16 (D. Conn. 1987) (similar argument).12
C. Section 1983 Plaintiffs Must Be Intended
C. Section 1983 Plaintiffs Must Be Intended
Beneficiaries of Delegated Obligations
Beneficiaries of Delegated Obligations
______________________________________
As we conclude that the relevant Title IV-A and IV-D
provisions satisfy the threshold test under Suter, by directly
_____
delegating to the States an unambiguous statutory obligation to
make reasonably "prompt" payments to AFDC recipients, we turn
next to Wilder's three-part test for determining whether the
______
statutory "rights, privileges and immunities" afforded AFDC
recipients under the Social Security Act are of a kind Congress
meant to be enforceable under 1983. Since we have determined
that the statutory responsibilities imposed upon the States by
the CSE program are "unambiguous" and "mandatory" within the
meaning of Suter, the second and third parts of the Wilder test,
_____ ______
requiring a similar analysis, seem clearly to be met. According-
ly, the Wilder "enforceable right" determination, "as reconfig-
______
ured by the neoteric principles announced in Suter," see Stowell
_____ ___ _______
I, 976 F.2d at 68, turns largely on the first part of the Wilder
_ ______
____________________
12We are not suggesting that error-free compliance is likely
to be achieved in administering this program, any more than in
other programs administered by agencies with limited resources.
But this reality does not afford the State a safe harbor merely
because its overall rate of compliance is adequate to avoid the
ultimate program sanction a cutoff of federal funding.
Moreover, if plaintiffs' allegations are to be credited, Maine
falls below even that level of compliance.
24
test: "whether 'the provision in question was intend[ed] to
benefit the putative plaintiff.'" 496 U.S. at 509.
Maine concedes, for purposes of this appeal, that the
plaintiff class is comprised of "intended beneficiaries" of the
requirement that Title IV-D child-support be "promptly" distri-
buted. Although the Eleventh Circuit has held otherwise, see
___
Wehunt v. Ledbetter, 875 F.2d 1558, 1565-66 (11th Cir. 1989)
______ _________
(Title IV-D's collection provisions primarily intended to benefit
"the public fisc," not individual claimants, and therefore do not
give rise to enforceable private rights), we accept Maine's
concession, which conforms in any event with the conclusion
reached by most courts that have considered the issue, and with
our prior characterizations of Title IV-D in dictum. See, e.g.,
___ ____
Carelli v. Howser, 923 F.2d 1208, 1211 (6th Cir. 1991) (rejecting
_______ ______
Wehunt; finding that Title IV-D was intended both "to protect
______ ____
needy families with children [and to protect] the public fisc");
see also Doucette v. Ives, 947 F.2d at 24 (dictum) ("the CSE
___ ____ ________ ____
program [was] designed both to assist parents in collecting child
____
support . . . and to reduce state and federal government AFDC
expenditures") (emphasis added); accord, Howe v. Ellenbecker, 774
______ ____ ___________
F. Supp. 1224 (D. S.D. 1991) (same); Behunin v. Jefferson County
_______ ________________
Dept. of Social Services, 744 F. Supp. 255, 257-58 (D. Colo.
__________________________
1990) (same).
D. Congress Must Not Have Expressed Intent
D. Congress Must Not Have Expressed Intent
to Preclude Recourse to Private Remedies
to Preclude Recourse to Private Remedies
________________________________________
25
Maine's final salvo is that Congress preempted private
enforcement actions under Titles IV-A and IV-D by establishing in
the governing statute a comprehensive and exclusive administra-
_________
tive enforcement scheme. Wilder, 496 U.S. at 520-21. The
______
Supreme Court repeatedly has stated that it "will not lightly
conclude that Congress intended to preclude reliance on 1983 as
a remedy for the deprivation of a federally secured right,"
Wright, 479 U.S. at 423. Accordingly, where a federal statute
______
erects an administrative scheme for its enforcement, the Court
has required States to demonstrate, "by express provision or
other specific evidence from the statute itself," id., a congres-
___
sional intent to preclude private enforcement actions. On only
two occasions, however, has the Court found "express preclusion"
of the 1983 remedy. In both instances the challenged statute
itself expressly included remedies permitting private citizens to
________
compel State compliance with the statutory scheme. Smith v.
_____
Robinson, 468 U.S. 992, 1009-13 (1984) (statute provided indivi-
________
dualized administrative hearings and judicial review for individ-
ual beneficiaries); Sea Clammers, 453 U.S. 1, 20 (1981) (statute
____________
created "quite comprehensive enforcement scheme," with "many
specific statutory remedies, including the two citizen-suit
provisions").
In the present case, Maine does not claim that Titles
IV-A and IV-D contain express provisions foreclosing private
enforcement actions. Nor does it contend that the statute
26
provides a specific statutory remedy enabling aggrieved AFDC
recipients to obtain redress for wrongfully-delayed payments.
Instead, it argues that "express preclusion" of a private 1983
remedy is demonstrated by the statute's establishment of OCSE;
the grant to OCSE of responsibility for setting and monitoring
standards for "substantial compliance" with the statutory scheme;
and OCSE's administrative responsibility under the statute for
imposing financial sanctions on States whose programs do not
"substantially comply." 42 U.S.C. 652(a).
Although one court of appeals has accepted a similar
argument, finding it unlikely "that Congress intended to occupy
the same ground at the same time and in the same manner as the
Secretary," Carelli, 923 F.2d at 1215-16, we respectfully dis-
_______
agree. In our view, the OCSE administrative enforcement scheme,
authorizing penalties against participating States for "substan-
tial noncompliance," seems intended to protect important federal
_______
interests, including prompt disbursement of federal funds to
needy AFDC recipients as mandated by Congress, by ensuring that
overall performance by the participating State does not fall
_______
below federally-prescribed levels. The private remedy afforded
by 1983, on the other hand, safeguards the individual AFDC
__________ ____
recipient's interests in the timely receipt of the mandated
___________ _________
federal benefits. Though coexistent, at best these interests
overlap imperfectly. For example, a State may avoid coercive
administrative penalties by disbursing "pass-through" and "gap"
27
payments reasonably promptly in 76% of its AFDC cases, while
violating the statutory rights of the other 24% of eligible AFDC
recipients. Cf. Wehunt, 942 F.2d at 1387 ("From the standpoint
___ ______
of the applicants or recipients who are denied [statutory bene-
fits] within the time mandated by federal regulations, it is no
comfort to be told that there is no federal remedy because the
state is in 'substantial compliance' with the federal require-
ments") (footnote omitted).
Accordingly, the Supreme Court repeatedly has held that
administrative enforcement schemes must be presumed to parallel
________
the private 1983 enforcement remedy, rather than to "occupy
the same ground" as the State contends. Rosado v. Wyman, 397
______ _____
U.S. 397, 420 (1970) (Secretary's authority to withhold funds
under 604(a) does not preclude private actions to enforce
individual rights under Title IV-A; "we are most reluctant to
assume Congress has closed the avenue of effective judicial
review to those individuals most directly affected by the admin-
istration of its program"); Howe, 774 F. Supp. at 1230 (rejecting
____
argument that Title IV-D rights are unenforceable under Sea
___
Clammers); see also Wright, 479 U.S. at 428 (Secretary's "author-
________ ___ ____ ______
ity to audit, enforce annual contributions contracts, and cut off
federal funds . . . [are] generalized powers [which] are insuffi-
cient to indicate a congressional intention to foreclose 1983
remedies"); see generally Ashish Prasad, Note, Rights Without
___ _________ _______________
Remedies: Section 1983 Enforcement of Title IV-D of the Social
_________________________________________________________________
28
Security Act, 60 U. Chi. L. Rev. 197, 221 (1993) ("without a
____________
1983 remedy, needy families with children are completely
deprived of access to the federal courts to secure child support
enforcement services granted them by Title IV-D"). Indeed,
Wilder suggests that in certain circumstances an administrative
______
enforcement scheme may even support the finding of a private
_______
right. See 496 U.S. at 514-15 ("If the Secretary is entitled to
___
reject a state plan upon concluding that a State's assurances of
compliance are unsatisfactory . . . a State is on notice . . . .
[of] the concomitant obligation [to beneficiaries] to adopt
reasonable and adequate rates"). Accordingly, we decline to
disturb the presumption, articulated in Rosado, Wilder and
______ ______
earlier cases, that the OCSE administrative enforcement scheme
parallels and does not displace the private 1983 enforcement
remedy.
IV
IV
CONCLUSION
CONCLUSION
__________
We hold that individual AFDC recipients possess stand-
ing to bring a private action against the State, under 42 U.S.C.
1983, to enforce their right to prompt disbursement of their
child-support entitlements under Titles IV-A and IV-D of the
Social Security Act.
The judgment of the district court is affirmed.
______________________________________________
29
