King v. Bradley, 92 C 1564.

• Decision Date: 09 August 1993
• Docket Number: No. 92 C 1564.,92 C 1564.
• Citation: 829 F. Supp. 989
• Parties: Mollie KING, et al., Plaintiffs, v. Philip C. BRADLEY, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

829 F. Supp. 989

Mollie KING, et al., Plaintiffs, v. Philip C. BRADLEY, et al., Defendants.

No. 92 C 1564.

United States District Court, N.D. Illinois, E.D.

August 9, 1993.

Bridget Arimond, John Mark Bouman, Joan S. Colen, Mary E. Hurley, Denice Wolf Markham, Legal Assistance Foundation of Chicago, Chicago, IL, for plaintiffs.

James C. Stevens, Jr., Barbara L. Greenspan, Illinois Atty. General's Office, Chicago, IL, for defendants.

MEMORANDUM OPINION AND ORDER

LINDBERG, District Judge.

Plaintiffs, Mollie King, Bobby Dunbar, Sharon Murphy, and their children, are clients of Illinois' Title IV-D child support enforcement program. They are seeking to bring a class action under 42 U.S.C. § 1983 to enjoin defendants, Philip Bradley, Director of Illinois Department of Public Aid ("IDPA"), and Isabel Blanco, Acting Administrator of the IDPA's Division of Child Support Enforcement ("DCSE"), to comply with the statutory requirements of the Child Support Enforcement Act ("Title IV-D"), 42 U.S.C. § 651, et seq., and with regulations promulgated by the Secretary thereunder. Plaintiffs seek to represent a class of all Cook County residents who have been, are, or will be clients of Illinois' IV-D program and "obligees under judicial child support orders with respect to which required payments have not been, are not being, or will not be collected from the obligors." Plaintiffs allege that defendants have a "custom and practice" of failing to operate Illinois' Title IV-D program in compliance with federal law. Plaintiffs specifically allege that defendants have a custom and practice of failing to:

(1) serve orders for withholding on obligors' employers in cases involving child support orders entered on or after November 1, 1990 and in which there are immediate orders for withholding;

(2) serve Notices of Delinquency on obligors for months and even years in cases involving child support orders entered before November 1, 1990 and in which the obligor's wages were not subject to immediate withholding;

(3) take the necessary further action to implement withholding within 25 days after serving the Notices of Delinquency on obligors in cases in which the obligors do not file a Petition to Stay Service within 20 days in cases involving child support orders entered before November 1, 1990 and in which the obligor's wages were not subject to immediate withholding;

(4) resolve disputes and take the necessary steps to implement withholding within 45 days of serving the Notices of Delinquency on the obligors in cases in which the obligors do file a Petition to Stay Service within 20 days in cases involving child support orders entered before November 1, 1990 and in which the obligor's wages were not subject to immediate withholding;

(5) use court time effectively by sending obligors Notices of Delinquency and following applicable state law;

(6) take any action to enforce child support; and

(7) locate the obligor's physical whereabouts and/or sources of income or other assets on a quarterly basis in the absence of new information.

Each named plaintiff also claims to have been individually injured by defendants' failure to comply with federally required procedures. Plaintiffs King and Dunbar, through services provided under the Title IV-D program, obtained court orders on April 25, 1989, and September 1, 1989, respectively, for immediate withholding of child support payments. King does not receive AFDC benefits and is a "non-assistance" IV-D client. The father of each plaintiff's child was identified and employed, and each father's employer was known to defendants. As of April 22, 1992, the defendants had failed to serve withholding orders on either father's employer. King claims, as a result, to have lost the full amount of monthly child support payments to which she was entitled as a "non-assistance" client. Dunbar claims, as a result, to have lost the $50 pass-through to which she was entitled.

Plaintiff Murphy obtained a conditional income withholding order against Dwight Ballinger on October 29, 1987. As of April 22, 1992, defendants had not taken steps to obtain or serve an immediate income withholding order despite the fact that Ballinger has never made any scheduled support payments. Murphy claims to have lost the $50 pass-through as a result.

Defendants have filed a motion to dismiss both for lack of subject matter jurisdiction, FRCP 12(b)(1), and for failure to state a claim upon which relief may be granted, FRCP 12(b)(6). Defendants contend that this court lacks subject matter jurisdiction because plaintiffs lack standing. Alternatively, they argue that no actionable claim exists because Title IV-D does not create an enforceable right for purposes of § 1983.

On reference from this judge, the Magistrate Judge issued a Report and Recommendation recommending that defendants' motion be granted. Plaintiffs have objected to that recommendation and to the Magistrate Judge's recommendation that their motion for class certification be denied.

The Statutory Framework

Title IV-A of the Social Security Act, Aid to Families with Dependent Children ("AFDC"), 42 U.S.C. § 601, et seq., is a federal state public assistance program that provides cash assistance and other benefits to needy dependent children and the caretaker relatives or guardians with whom they live. State participation in the program is voluntary, but States that choose to participate in AFDC are required to have a child support enforcement program in effect that complies with the requirements of Title IV-D. 42 U.S.C. § 602(a)(27). Services provided by the Title IV-D program are available not only to AFDC families, but also to families that do not currently receive (42 U.S.C. § 657(c)), or who may never have received (42 U.S.C. § 654(6)), AFDC benefits. Illinois participates in the AFDC program and operates a Title IV-D child support enforcement program. Illinois' Title IV-D program is overseen by IDPA and is administered by DCSE.

Among other things, Title IV-D programs are required to establish child support obligations by court or administrative order, to collect and distribute support payments, and to enforce support orders. 42 U.S.C. § 654(4), (6), (8). In Illinois, Title IV-D clients may choose to procure either an order for immediate income withholding or a conditional order for income withholding in the event the obligor defaults on payments. SHA 750 ILCS 5/706.1(B)(1). An obligor under a conditional order who fails to make a monthly payment within 30 days is served with a Notice of Delinquency ("NOD"). SHA 750 ILCS 5/706.1(C)(1). The obligee then files an affidavit which states that an NOD was served on the obligor and the obligor did not file a Petition to Stay. SHA 750 ILCS 5/706.1(E)(1). The Court can then issue an order for immediate income withholding. SHA 750 ILCS 5/706.1(E)(2). According to federal regulations, DCSE must serve an immediate income withholding order on the obligor's employer within 25 days of the date that an NOD was sent to the obligor. 45 CFR § 303.100(d)(2); SHA 750 ILCS 5/706.1(D)(1); SHA 750 ILCS 5/706.1(K)(3).

Support payments collected by DCSE are distributed to clients in the following manner. Title IV-D clients who are not receiving AFDC benefits receive the full payment. 42 U.S.C. § 657(c); 45 CFR § 302.51(e). Title IV-D clients receiving AFDC benefits are entitled to a "pass-through" of the first $50 of each timely monthly payment. 42 U.S.C. § 657(b)(1); 42 U.S.C. § 602(a)(8)(A)(vi); 45 CFR § 302.51(b)(1). IDPA retains the remainder of the monthly payment to reimburse AFDC for benefits distributed to the client presently or in the past. 42 U.S.C. § 657(b)(2); 45 CFR § 302.51(b)(2. If the monthly payment minus the $50 pass-through exceeds the amount of the total monthly AFDC benefit, the client also receives the excess amount. 42 U.S.C. § 657(b)(3); 45 CFR § 302.51(b)(3). However, DCSE may retain the excess amount to reimburse AFDC funds paid to the client in the past. 42 U.S.C. § 657(b)(4); 45 CFR § 302.51(b)(4), (b)(5).

Standing in suits brought under § 1983.

When a motion to dismiss is brought both for lack of subject matter jurisdiction under Rule 12(b)(1) and for failure to state an actionable claim under Rule 12(b)(6), the Rule 12(b)(1) motion is addressed first. Winslow v. Walters, 815 F.2d 1114, 1116 (7th Cir.1987). Here, the 12(b)(1) motion is brought on grounds of lack of standing, so it must first be decided whether plaintiffs have standing to bring this suit.

Article III of the United States Constitution limits federal courts to adjudication of actual "cases" and "controversies." Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 469, 102 S.Ct. 752, 757, 70 L.Ed.2d 700 (1982). An actual case or controversy exists only if the plaintiff has standing to bring suit, i.e., if the plaintiff has suffered a personal injury which is fairly traceable to the defendant's unlawful conduct and which is likely to be remedied by the requested relief. Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). When, as here, the plaintiff brings suit under § 1983 to remedy the violation of a federal statute, the standing analysis must include a determination of whether the statute creates an enforceable right. The plaintiff cannot bring suit if the defendant can show either that the statute does not create an enforceable right or that Congress has foreclosed enforcement of the statute. Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508, 110 S.Ct. 2510, 2517, 110 L.Ed.2d 455 (1990).

Title IV-D creates an enforceable right.

An enforceable right exists when: (1) the statutory provision in question is intended to benefit the plaintiff, (2) the provision imposes a binding obligation on the state, and (3) the right is not so amorphous that courts are unable to adequately enforce it. Wilder, 496 U.S. at 508, 110 S.Ct. at 2517.¹

First, Title IV-D is...