Levesque v. Sheehan, Civ. No. 93-32-P-C.

• Decision Date: 12 May 1993
• Docket Number: Civ. No. 93-32-P-C.
• Citation: 821 F. Supp. 779
• Parties: Bonnie LEVESQUE, Plaintiff, v. Jane SHEEHAN, Commissioner, Maine Department of Human Services.
• Court: U.S. District Court — District of Maine

821 F. Supp. 779

Bonnie LEVESQUE, Plaintiff, v. Jane SHEEHAN, Commissioner, Maine Department of Human Services.

Civ. No. 93-32-P-C.

United States District Court, D. Maine.

May 12, 1993.

COPYRIGHT MATERIAL OMITTED

Thomas Kelly, Pine Tree Legal Assistance, Portland, ME, for plaintiff.

Andrew Gattine, Asst. Atty. Gen., Augusta, ME, for defendant.

MEMORANDUM AND ORDER ON MOTIONS FOR JUDGMENT ON A STIPULATED RECORD

GENE CARTER, Chief Judge.

In this action Plaintiff seeks injunctive and declaratory relief and money damages for Defendant's alleged violation of her rights under 42 U.S.C. § 1983, the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 21 of the Maine Constitution. Plaintiff, a recipient of Aid to Families with Dependent Children (AFDC) who represents a class of similarly situated individuals,¹ alleges specifically that Defendant, the Commissioner of Maine's Department of Human Services (DHS), has denied her her right to child support pass-through payments under 42 U.S.C. § 657(b)(1), as amended by the Family Support Act of 1988, Pub.L. 100-485, Title I, § 102(b). Plaintiff filed a motion for a preliminary injunction (Docket No. 6). By agreement of the parties, the proceedings on that motion were continued so that the case might be submitted for judgment on a stipulated record. (Docket No. 11). The parties' cross-motions (Docket Nos. 16 and 19) for judgment upon a stipulated record (Docket No. 17) are now before the Court.

I.

AFDC is a joint federal/state program providing financial assistance to families with dependent children. The federal statutory basis for the program is set forth in 42 U.S.C. § 601 et seq. Maine participates in the AFDC program through the Maine Department of Human Services, of which Defendant is Commissioner. 22 M.R.S.A. § 3741 et seq. In order to participate in the AFDC program, a state must adopt a plan which complies with federal statutory requirements. 42 U.S.C. §§ 601, 602(b). Participating states are also specifically required to adopt a federally-approved child support enforcement plan. Id. § 602(a)(27). A separate state entity must be established to administer the child support enforcement plan. Id. § 654(3). Maine has designated the Division of Support Enforcement and Recovery, a division of the DHS's Bureau of Income Maintenance, as its "IV-D agency."² The IV-D agency operates under a plan approved by the Office of Child Support Enforcement (the OCSE), which is the agency within the United States Department of Health and Human Services charged with administering Title IV-D.

Federal law also provides that the State's AFDC Plan must require AFDC recipients, as a condition of eligibility, to assign to the State their rights to child support from any other person. Id. § 602(a)(26)(A). The IV-D agency must collect child support payments and

of such amounts as are collected periodically which represent monthly support payments, the first $50 of payments for a month received in that month, and the first $50 of payments for each prior month received in that month which were made by the absent parent in the month when due, shall be paid to the AFDC recipient family without affecting its eligibility for assistance or decreasing any amount otherwise payable as assistance to such family during such month.

Id. § 657(b)(1).³

Federal regulations interpreting the statute provide that except for specifically enumerated situations:

(i) Effective June 9, 1988, the date of collection for distribution purposes in all IV-D cases shall be the date on which the payment is received by the IV-D agency or the legal entity of any State or political subdivision actually making the collection, whichever is earliest; and

(ii) Effective January 1, 1989, a State may use on a statewide basis either the definition of the date of collection in paragraph (a)(5)(i) of this section or the date the payment is mailed, as evidenced by a legible U.S. Postal Service postmark or a legibly dated receipt from a commercial carrier, as the date of collection in all IV-D cases.

45 C.F.R. § 302.51.(a)(5)(i) and (ii). Another subsection of this regulation requires that the date of collection of child support payments made by withholding from wages or other income must be the date the wages or other income are withheld to meet the support obligation. Id. § 302.51(a)(4).

Plaintiff Bonnie Levesque, who receives AFDC benefits for herself and two children, is divorced from Daniel Levesque. Under the 1990 divorce decree, Daniel Levesque agreed to pay $67.00 per week as child support for their minor child. Daniel Levesque makes child support payments directly to the IV-D cashiers by mail. All payments are processed through the IV-D agency's Augusta office. For purposes of this litigation, the parties agree that on May 27, 1992, Daniel Levesque mailed a child support payment for May 1992 to the IV-D cashiers in Augusta.

In accordance with DHS policy, the IV-D cashiers identified the payment as having been received on Monday, June 1, 1992, and therefore as not having been "made" until that date. Since the IV-D agency concluded that Daniel Levesque had not made his May payment in the month when due, it did not provide Bonnie Levesque with a $50.00 pass-through payment for the month of May. DHS is unwilling to agree to change its policy to consider a payment as made on the date it is postmarked.

If, on May 27, the date he mailed his child support payment, Daniel Levesque had either delivered the payment to the Biddeford DHS office for forwarding to Augusta or if the payment had been withheld from his wages, it would have been considered by the IV-D agency to have been made in May, the month it was due. Also if Daniel Levesque lived in another state and the IV-D agency of that state advised Maine that his payment had been made in the month due, DHS would have regarded the payment as made in May even if it had not been forwarded to Maine until June.

The IV-D cashiers pick up mailed child support payments twice a day from the mailroom at DHS. The mail is delivered there by the State Postal Center, a State entity separate from that administering the support enforcement plan. The State Postal Center picks up the State's mail from the U.S. Post Office throughout the morning on all days except Sundays and legal holidays. Generally, the mail is distributed to the various State departments on the day the Postal Center receives it. The State Postal Center, however, does not distribute the mail on Saturdays, Sundays, legal holidays or on weekdays when the State government is shut down. Thus, the IV-D cashiers do not receive any support payments on Saturdays, Sundays, legal holidays or government shut-down days. It is not uncommon for delays, beyond the control of the State Postal Center, to occur in the federal postal system.

The IV-D cashiers receive more than 9000 child support payments monthly, not including those forwarded by employers withholding such payments. The cashiers manually open each envelope and enter information concerning the checks into the computer. All support payments are processed on the day they are received by the cashiers, and they are credited as received on that day. Sometimes the postmarks on the envelopes containing support payments are missing or illegible. In order to implement a system whereby all support payments are credited as "made" on the date postmarked, the IV-D cashiers would have to change the processing system currently in place, perhaps requiring them to perform sorting and batching in addition to their current work. A new system might also require the agency to retain and store the envelopes as proof of the date of postmark.

On June 25, 1992, the IV-D cashiers received $268.00 by mail from Daniel Levesque. Because the IV-D cashiers had credited the payment mailed by Daniel Levesque in May to the month of June, the agency applied the June 25 payment as reimbursement for past assistance payments made to Bonnie Levesque's family. As of June 25, Daniel Levesque's child support was current and may have shown a credit. Without conceding that Daniel Levesque's account had a credit, DHS acknowledges that if an absent parent makes any advance payment of child support, the Department applies that payment to future obligations.

II.

Plaintiff argues that under section 657(b)(1), Daniel Levesque's child support payment, which was mailed on May 27, 1992, was a payment "made by the absent parent in the month when due," entitling her to a $50 pass-through for May 1992. Defendant Commissioner argues that under the statute States need not consider a payment "made" when it is mailed. She relies on 45 C.F.R. § 302.51(a)(5)(ii), the federal regulation interpreting section 657(b)(1), which permits States to choose as the date of collection of support payments either the date of mailing or the date of the payment's receipt at the IV-D agency.

The Supreme Court has recently described the federal courts' well-established mode of reviewing challenges to an agency's interpretation of its governing statute:

We first ask "whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter, for the court as well as the agency must give clear effect to the unambiguous intent of Congress." Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-843 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984). "In ascertaining the plain meaning of the statute, the court must look to the particular statutory language at issue as well as the language and design of the statute as a whole." ... But "if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute, rational and consistent with the statute,...."

Sullivan v. Everhart, 494 U.S. 83, 88, 110 S.Ct. 960, 964, 108...