Freestone v. Cowan, No. 93-16697

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtREINHARDT; KLEINFELD
Citation68 F.3d 1141
Parties, 95 Cal. Daily Op. Serv. 8010, 95 Daily Journal D.A.R. 13,793 Cathy FREESTONE, individually, on behalf of their minor children and on behalf of all others similarly situated; Susan Harrington, individually, on behalf of their minor children and on behalf of all others similarly situated; Sonya Madrid, individually, on behalf of their minor children and on behalf of all others similarly situated; Judith Rogers, individually, on behalf of their minor children and on behalf of others similarly situated; Esperanza Laustaunau, individually, on behalf of their minor children and on behalf of others similarly situated, Plaintiffs-Appellants, v. Charles E. COWAN, Director, Arizona Department of Economic Security, in his official capacity, Defendant-Appellee.
Decision Date12 October 1995
Docket NumberNo. 93-16697

Page 1141

68 F.3d 1141
64 USLW 2235, 95 Cal. Daily Op. Serv. 8010,
95 Daily Journal D.A.R. 13,793
Cathy FREESTONE, individually, on behalf of their minor
children and on behalf of all others similarly situated;
Susan Harrington, individually, on behalf of their minor
children and on behalf of all others similarly situated;
Sonya Madrid, individually, on behalf of their minor
children and on behalf of all others similarly situated;
Judith Rogers, individually, on behalf of their minor
children and on behalf of others similarly situated;
Esperanza Laustaunau, individually, on behalf of their minor
children and on behalf of others similarly situated,
Plaintiffs-Appellants,
v.
Charles E. COWAN, Director, Arizona Department of Economic
Security, in his official capacity, Defendant-Appellee.
No. 93-16697.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Feb. 17, 1995.
Decided Oct. 12, 1995.

Page 1143

William E. Morris, Southern Arizona Legal Aid, Inc., Tucson, Arizona, for the plaintiffs-appellants.

Steven J. Silver, Sherry M. Klein, Mirian M. Yim, Assistant Attorneys General, Phoenix, Arizona, for the defendant-appellee.

Appeal from the United States District Court for the District of Arizona.

Before: STEPHEN REINHARDT, THOMPSON and ANDREW J. KLEINFELD, Circuit Judges.

REINHARDT, Circuit Judge:

This case involves a class action brought by custodial parents, primarily mothers, and their children who have been unable to obtain federally required child support enforcement services from the state of Arizona. The class members sued under Sec. 1983 in an attempt to force the state to comply with its federal obligations, under Title IV-D of the Social Security Act, to identify and seek support from "deadbeat dads." The federal courts have splintered on the question of whether a Sec. 1983 action is available to enforce Title IV-D. The district court adopted the reasoning and approach of the Sixth Circuit finding such relief unavailable and granted summary judgment against the plaintiff families. We join the First and Eighth Circuits in holding that Sec. 1983 is available and reverse.

BACKGROUND

As a condition of participating in the federal Aid to Families with Dependent Children (AFDC) program, states are required to adopt a plan for child support enforcement pursuant to Title IV-D of the Social Security Act, and to operate a program in substantial compliance with that plan. 42 U.S.C. Sec. 602(a)(27). The state program must provide a variety of services including establishment of paternity, enforcement of support orders, and parent locator services. The state must provide these enforcement services both to families receiving AFDC and to non-AFDC families that request them. AFDC families must assign their rights to monetary child support to the state; however, the first fifty dollars of any support collected each month is "passed through" to the AFDC family. All money collected on behalf of non-AFDC families is passed on entirely

Page 1144

to the family. A large portion of the costs associated with administering a state's Title IV-D program is reimbursed by the federal government. 1

The Secretary of Health and Human Services is responsible for monitoring state compliance with Title IV-D through periodic audits, and may impose penalties in the form of a reduction in AFDC money for noncompliance, ranging from one to five percent. From 1985 until 1991, Arizona failed three audits conducted by the Department of Health and Human Services (HHS). After the first failed audit, Arizona devised a Corrective Action Plan (CAP) which was approved by the Secretary. 2 However, subsequent audits showed that this CAP was not successfully implemented. After the final failed audit, Arizona devised a new CAP. The Secretary approved the 1992 CAP and waived the 1% penalty. At the time the complaint was filed, the CAP was scheduled to expire on March 1, 1993. During this most recent CAP period, Arizona's State Auditor General conducted an internal performance audit of the child support enforcement program and declared it "barely functioning." 3

Appellants are a class of Arizona custodial parents of minor children who qualify for enforcement services under Title IV-D. The class includes both AFDC and non-AFDC families. The five named plaintiffs in this action are Cathy Freestone, Susan Harrington, Sonya Madrid, Judith Rogers and Esperanza Laustaunau. The custodial parents assert that Arizona's child support enforcement administration systematically fails to furnish them with the services mandated by federal law. The original complaint and the appellant's brief recites a litany of abuses to which the named plaintiffs have been subject. The stories told by the five named plaintiffs document a range of administrative abuses extending from simple incompetence and bureaucratic bungling to shockingly callous indifference. 4 The most fortunate of the named plaintiffs appears to be Cathy Freestone.

After their divorce, Cathy Freestone's former husband failed to meet his monthly child support obligations. Freestone could not afford private counsel so she turned to Arizona's Department of Child Support Enforcement (DCSE) for collection assistance. Freestone completed the necessary forms to obtain a wage assignment from her ex-husband's employer. A month later, she called DCSE and was told that the case agent was still waiting for information from a section of the Phoenix office. It was only after Freestone volunteered to procure the information herself and submitted it to her case agent that any progress began to take place. Eventually the wage assignment order was filed, but Freestone discovered that during the interim her ex-husband had switched to a higher paying job for a different employer. She then urged DCSE to obtain a valid wage assignment against the new employer and to obtain a modification of the divorce decree

Page 1145

for increased child support payments. Once again, DCSE failed to act in a timely manner. Freestone's ex-husband again switched jobs, this time moving to a lower-paying job in an attempt to avoid increased child support obligations. Although DCSE eventually obtained a wage assignment order against his most recent employer, payments have remained sporadic and DCSE has failed to provide periodic notice to Freestone or to explain the continuing irregularities.

Compared to the other named plaintiffs, Freestone's frustrating experiences appear to have been relatively mild. Susan Harrington has obtained, at most, meager assistance from DCSE. Harrington has cooperated with DCSE and its predecessor since 1980 in an effort to force her ex-husband to comply with his support obligations for their three minor children. DCSE has repeatedly lost Harrington's case file and only attempts to contact Harrington's ex-husband when she personally tracks him down and provides the agency with his current address and employment information. Often times, when Harrington has managed to find her ex-husband (who at all times resided and worked in Arizona) and inform DCSE of his whereabouts, because of its extraordinarily long delays in taking enforcement action, he successfully relocates and escapes the agency's grasp. In 13 years, DCSE has managed to obtain only two monthly support payments for Harrington.

At the farthest end of the spectrum, are the plaintiffs who simply have received no help at all. For example, Sonya Madrid is an AFDC mother of four who has consistently provided DCSE with all the required information and has repeatedly given the agency her nomadic ex-husband's address. Although Madrid believes that over the past 10 years DCSE has obtained some support payments from her ex-husband, she has never received a pass-through payment.

Similarly, Judith Rogers unsuccessfully sought paternity establishment assistance from DCSE. Although her child's father has acknowledged paternity and his name appears on her son's birth certificate, Rogers needs a formal declaration of paternity in order to establish a valid child support order. Also, if paternity were legally established, her son would be entitled to payments against his father's social security account. Rogers first applied for DCSE services in 1980. Although the father's whereabouts are known, the agency has failed to establish paternity over a thirteen-year period. Rather, it has managed to lose Rogers' file on multiple occasions, forcing her to reapply for services each time. At the time this action was filed, Rogers' son was a few months away from reaching majority.

Because of systematic failures including the failure to procure wage assignment when all information as to the former spouse's current employer and address has been provided by the custodial parent, the failure to disburse collected support payments in a timely manner or to sufficiently account for payments collected, the frequent losses of clients' files thus forcing them repeatedly to re-initiate enforcement procedures and to complete voluminous forms and burdensome paperwork over and over again, and the inexplicable failure to account for or disburse "pass-through" payments, the parents filed this Sec. 1983 action. They seek equitable relief including a declaratory judgment that the current operation of the Arizona Title IV-D program violates federal law, and a permanent injunction enjoining the state from engaging in this pattern and practice of noncompliance and requiring affirmative measures to achieve and maintain substantial compliance with federal law.

Defendant Cowan, Director of Arizona Department of Economic Security, filed a motion to dismiss premised on two grounds: 1) a Rule 12(b)(1) dismissal for lack of standing and thus a lack of subject matter jurisdiction; 2) a Rule 12(b)(6) dismissal for failure to state a claim on which relief can be granted. The state attached various exhibits to its motion, including its most recent CAP. Because of the attachments and...

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9 practice notes
  • Confed. Tribes and Bands of Yakama Indian v. Lowry, No. CY-95-3077-AAM.
    • United States
    • United States District Courts. 9th Circuit. Eastern District of Washington
    • December 19, 1996
    ...remedy explicitly, or implicitly by imbuing the act in question with its own comprehensive remedial scheme. See also Freestone v. Cowan, 68 F.3d 1141, 1148 (9th Cir.1995) (Suter represents an elaboration and amplification of the Wilder test rather than an unannounced and unacknowledged Plai......
  • Doe by Fein v. District of Columbia, No. 95-7077
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 27, 1996
    ...use the Wilder test, lower courts are in agreement that the analytical framework of Wilder still applies. See Freestone v. Cowan, 68 F.3d 1141, 1147-48 (9th Cir.1995), cert. granted sub nom. Blessing v. Freestone, --- U.S. ----, 116 S.Ct. 1671, 134 L.Ed.2d 775 (1996); Wood v. Tompkins, 33 F......
  • Office of Hawai`Ian Affairs v. Department of Educ., Civ. No. 96-00030 ACK.
    • United States
    • Supreme Court of Hawai'i
    • October 23, 1996
    ...Virginia Hosp. Ass'n, 496 U.S. 498, 509, 110 S.Ct. 2510, 2517, 110 L.Ed.2d 455 (1990) (intended to benefit plaintiff); Freestone v. Cowan, 68 F.3d 1141, 1146 (9th Cir.1995) (citing Wilder three-factor test). In addition the Supreme Court has further emphasized that this is a stringent test:......
  • Mallo v. Public Health Trust of Dade County, No. 99-0064-CIV.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • March 31, 2000
    ...not `unambiguously confer' enforceable rights on any individual" under Title IV-D. Id. at 339, 117 S.Ct. 1353 (quoting Freestone v. Cowan, 68 F.3d 1141, 1157 (9th Cir.1995) (Kleinfeld, J., dissenting)). The Supreme Court The Court in Blessing found "`substantial compliance' with Title IV-D ......
  • Request a trial to view additional results
9 cases
  • Confed. Tribes and Bands of Yakama Indian v. Lowry, No. CY-95-3077-AAM.
    • United States
    • United States District Courts. 9th Circuit. Eastern District of Washington
    • December 19, 1996
    ...remedy explicitly, or implicitly by imbuing the act in question with its own comprehensive remedial scheme. See also Freestone v. Cowan, 68 F.3d 1141, 1148 (9th Cir.1995) (Suter represents an elaboration and amplification of the Wilder test rather than an unannounced and unacknowledged Plai......
  • Doe by Fein v. District of Columbia, No. 95-7077
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 27, 1996
    ...use the Wilder test, lower courts are in agreement that the analytical framework of Wilder still applies. See Freestone v. Cowan, 68 F.3d 1141, 1147-48 (9th Cir.1995), cert. granted sub nom. Blessing v. Freestone, --- U.S. ----, 116 S.Ct. 1671, 134 L.Ed.2d 775 (1996); Wood v. Tompkins, 33 F......
  • Office of Hawai`Ian Affairs v. Department of Educ., Civ. No. 96-00030 ACK.
    • United States
    • Supreme Court of Hawai'i
    • October 23, 1996
    ...Virginia Hosp. Ass'n, 496 U.S. 498, 509, 110 S.Ct. 2510, 2517, 110 L.Ed.2d 455 (1990) (intended to benefit plaintiff); Freestone v. Cowan, 68 F.3d 1141, 1146 (9th Cir.1995) (citing Wilder three-factor test). In addition the Supreme Court has further emphasized that this is a stringent test:......
  • Mallo v. Public Health Trust of Dade County, No. 99-0064-CIV.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • March 31, 2000
    ...not `unambiguously confer' enforceable rights on any individual" under Title IV-D. Id. at 339, 117 S.Ct. 1353 (quoting Freestone v. Cowan, 68 F.3d 1141, 1157 (9th Cir.1995) (Kleinfeld, J., dissenting)). The Supreme Court The Court in Blessing found "`substantial compliance' with Title IV-D ......
  • Request a trial to view additional results

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