Hickey v. Duffy

• Decision Date: 24 August 1987
• Docket Number: No. 86-2941,86-2941
• Citation: 827 F.2d 234
• Parties: Norma HICKEY and Julian Sheimo, for themselves and a class of those similarly situated, Plaintiffs-Appellants, v. Edward T. DUFFY, Director of the Illinois Department of Public Aid, and the Illinois Department of Public Aid, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 234

827 F.2d 234

8 Fed.R.Serv.3d 974

Norma HICKEY and Julian Sheimo, for themselves and a class of those similarly situated, Plaintiffs-Appellants, v. Edward T. DUFFY, Director of the Illinois Department of Public Aid, and the Illinois Department of Public Aid, Defendants-Appellees.

No. 86-2941.

United States Court of Appeals Seventh Circuit.

Argued May 27, 1987.

Decided Aug. 24, 1987.

Jerry Brask, Prairie State Legal Services, Wheaton, Ill., for plaintiffs-appellants.

James C. Stevens, Sp. Atty. Gen. Office, Ill. Atty. Gen.'s Office, Chicago, Ill., for defendants-appellees.

Before WOOD, FLAUM, and EASTERBROOK, Circuit Judges.

EASTERBROOK, Circuit Judge.

When a child of separated parents receives welfare benefits under the program of Aid to Families with Dependent Children (AFDC), the state obtains the right to any child support payments the non-custodial parent owes to the custodial parent. See Bowen v. Gilliard, --- U.S. ----, 107 S.Ct. 3008, 3012-14, 3018 n. 19, 97 L.Ed.2d 485 (1987). This litigation, filed in state court to determine whether the obligation to pay child support may be established after the state has made the welfare payments, landed in a jurisdictional swamp when the state removed it to federal court. There are so many problems that our principal challenge is selecting the ground on which to eject the case from federal court.

I

Norma Hickey and Julian Sheimo are the parents of children who have received AFDC benefits. Both separated from their spouses before divorce, and both ultimately gave custody of their children to their spouses. Both obtained final decrees of divorce in courts of Illinois. Sheimo's decree requires him to make child support payments prospectively, but not for the pre-divorce period during which his former wife Dolores, with custody of their four children, received AFDC benefits. Hickey's decree does not require her to make payments for the support of her child, now in the custody of her former husband William, who has received AFDC since the divorce. The Illinois Department of Public Aid filed petitions to intervene in both divorce proceedings and to modify each non-custodial parent's child support obligations. The Department asked each judge to determine the non-custodial parent's support obligations for the period during which the state furnished AFDC benefits. Each parent filed an answer contending that the Department's request for retroactive support is barred by state and federal law.

Hickey and Sheimo also filed a class action before still a third judge of Illinois. Seeking to represent the class of divorced, non-custodial parents being pursued by the Department for retroactive support, Hickey and Sheimo sought declaratory and injunctive relief based on state and federal law. Their claim under state law is that the Marriage and Dissolution of Marriage Act, Ill.Rev.Stat. ch. 40 Secs. 510(a) and 511, prohibits retroactive adjustments of support obligations. The Department replies that Ill.Rev.Stat. ch. 23 Sec. 10-10 permits welfare officials to intervene in divorce cases to obtain "the recovery of aid granted during the period such support was not provided, or both for the obtainment of support and the recovery of the aid provided." The Department believes that Sec. 10-10 prevails over Secs. 510(a) and 511.

The only federal claim plaintiffs now pursue depends on the interaction of several parts of the AFDC statute and 42 U.S.C. Sec. 1983. States participating in the AFDC program must recoup expenditures by pursuing non-custodial parents. The basic obligation appears in 42 U.S.C. Sec. 602(a)(26):

[The state's plan must] provide that, as a condition of eligibility for aid, each applicant or recipient will be required--

(A) to assign the State any rights to support from any other person such applicant may have (i) in his own behalf or on behalf of any other family member for whom the applicant is applying for or receiving aid, and (ii) which have accrued at the time such assignment is executed....

Each participating state also must have "a plan approved under Part D of this subchapter and operate[ ] a child support program in substantial compliance with such plan". 42 U.S.C. Sec. 602(a)(27). One portion of Part D, 42 U.S.C. Sec. 656(a), provides:

(1) The support rights assigned to the State under section 602(a)(26) of this title ... shall constitute an obligation owed to such State by the individual responsible for providing such support. Such obligation shall be deemed for collection purposes to be collectible under all applicable State and local processes.

(2) The amount of such obligation shall be--

(A) the amount specified in a court order which covers the assigned support rights, or

(B) if there is no court order, an amount determined by the State in accordance with a formula approved by the Secretary....

Hickey and Sheimo contend that the Department needs a "court order" under Sec. 656(a)(2)(A), for the state does not have an approved "formula", and, because of Sec. 656(a)(1), may not collect more than the amount specified in the court order. But because of state law, Hickey and Sheimo submit, the Department cannot get a court order. Moreover, they insist, Sec. 602(a)(26)(A)(ii) limits any obligation to sums "which have accrued" when the assignment is "executed"; when the assignment arises automatically because of the custodial parent's application for AFDC benefits, the imputed assignment may cover only support obligations that had accrued" at the time the AFDC benefits were received; and according to Hickey and Sheimo, the obligation to provide support "accrues" in Illinois only when fixed by court order. Voila! No court order at the time of the payments, no obligation for the non-custodial spouse. And although neither Sec. 602 nor Sec. 656 provides for judicial review of the federal claim, Hickey and Sheimo turn to 42 U.S.C. Sec. 1983, which as construed in Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), supplies a right of action against state officials who do not comply with federal statutes. Thiboutot, like this case, involves the AFDC statute.

Before the state court could act on the class action, the Department removed the case to federal court under 28 U.S.C. Sec. 1441(b), which permits the defendant to remove any case "of which the district courts have original jurisdiction founded on a claim or right arising under the ... laws of the United States". According to the Department, the class action arose under a law of the United States, so that the district court would have had original jurisdiction under 28 U.S.C. Sec. 1331. The district court quickly recognized, however, that the claim based on the Marriage and Dissolution of Marriage Act sought relief against a state government based on state law. A federal court may not grant such relief. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (Pennhurst II ). The district court remanded the claim based on Illinois law to state court, purportedly on the authority of Sec. 1441(c), which states:

Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise nonremovable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction.

The partial remand was improvident. Section 1441(c) deals with "separate and independent" claims for relief, and the class action contained only one "claim for relief". The plaintiffs wanted to stop the Department from obtaining retroactive support payments. The complaint contained several legal arguments that might support such relief, but a distinct legal argument is not a separate "claim for relief". American Fire & Casualty Co. v. Finn, 341 U.S. 6, 12-14, 71 S.Ct. 534, 539-40, 95 L.Ed. 702 (1951). If Hickey and Sheimo had filed a suit under the Marriage and Dissolution of Marriage Act in one court and a suit under the AFDC statute in another, whichever first went to judgment would preclude litigation of the other because of principles of claim preclusion (res judicata). See, e.g., American National Bank & Trust Co. v. Chicago, 826 F.2d 1547, 1550-51 (7th Cir. 1987) (Illinois law); Button v. Harden, 814 F.2d 382 (7th Cir.1987) (same); Frier v. Vandalia, 770 F.2d 699 (7th Cir.1985) (same). Cf. Migra v. Warren City School District, 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984) (interaction of Ohio law and Sec. 1983). Moreover, state and federal claims here are not "independent" even if they are "separate"; part of the plaintiffs' argument under federal law depends on the proposition that support obligations do not "accrue" under Illinois law until fixed by court order. The remand of a single theory of relief in a case with only one claim for relief not only was unauthorized but also created a distinct possibility that the court would need to determine an abstract issue of federal law without being able to consider an integral issue of state law. But no one complained.

With the remand order, the issues were divided among four judges. Hickey and Sheimo were defending the state's petitions in their divorce cases, a third state judge had the arguments just remanded by the district judge, and the district judge had the claims based on the AFDC statute. At this point a modicum of common sense prevailed and the three state proceedings were consolidated before a single judge. Unfortunately, the state judge decided to sit tight until the district court decided the federal issues--unfortunate, because the federal issues cannot readily be decided in advance of the state issues.

The next step should have been to act on the request in plaintiffs' complaint to be representatives of a class. See Fed.R.Civ.P. 23(c). The district court ignored that request, however,...