BLESSING v. FREESTONE
Cathy Freestone and four other Arizona mothers, whose children are eligible for state child support services under Title IV-D of the Social Security Act, filed suit against Linda J. Blessing, the director of the state child support agency, claiming that they properly applied for child support services; that, despite their good faith efforts to cooperate, the agency never took adequate steps to obtain child support payments for them; that these omissions were largely attributable to staff shortages and other structural defects in the State's program; and that these systemic failures violated their individual rights under Title IV-D to have all mandated services delivered in substantial compliance with the title and its implementing regulations. Freestone sought relief including a declaratory judgment that the Arizona program's operation violates Title IV-D provisions creating rights in them that are enforceable and an injunction requiring the director to achieve substantial compliance with Title IV-D throughout all programmatic operations. The District Court granted summary judgment for Blessing. In reversing, the Court of Appeals held that Freestone had an enforceable individual right to have the State achieve "substantial compliance" with Title IV-D. Additionally, the Court of Appeals disagreed with the District Court that that Congress had foreclosed private Title IV-D enforcement actions by authorizing the Secretary of Health and Human Services to audit and cut off funds to States whose programs do not substantially comply with Title IV-D's requirements.
Can parents sue states under Title IV-D of the Social Security Act to force overall compliance with federal efforts under Title IV-D to collect child- support payments from ex-spouses?
Legal provision: Aid to Families with Dependent Children (AFDC--provisions of the Social Security Act)
No. In an opinion authored by Justice Sandra Day O'Connor, the Court ruled that Title IV-D of the Social Security Act does not give individuals a federal right to force a state agency to substantially comply with Title IV-D. Justice O'Connor wrote for the court that parents cannot sue merely because a state fails to be in "substantial compliance" with federal collection standards.
Argument of C. Tim Delaney
Chief Justice Rehnquist: We'll hear argument now in Number 95-1441, Linda J. Blessing v. Cathy Freestone.
Mr. Delaney: Mr. Chief Justice and may it please the Court:
Congress enacted title IV-D pursuant to its Spending Clause powers.
That meant, under Pennhurst, that Congress had to unambiguously notify the States of any consequences of their accepting Federal funds so that the States could make an informed choice about whether to participate in that program, and under this Court's decisions in Suter, Congress could provide that notice to the States by unambiguously conferring rights in title IV-D that would be privately enforceable.
Here, Congress has neither unambiguously conferred any rights upon respondents, nor unambiguously notified the States that title IV-D can be enforced privately by over 18 million title IV-D applicants.
Indeed, title IV-D says just the opposite, because when Congress offered the title IV-D partnership agreement to the States, it unambiguously deposited all enforcement authority in the Secretary of Health and Human Services.
Congress told the States unambiguously that the Secretary would enforce title IV-D, that the Secretary would apply a substantial compliance standard on a systemwide basis rather than an individual case-by-case basis.
Unknown Speaker: Well, what was sought here in the complaint was something based on the substantial compliance requirement, was it not, in the complaint?
This was a broad complaint.
Mr. Delaney: Yes, Justice O'Connor.
Unknown Speaker: There are, however, some provisions in the statute here that are very specific.
For instance, provisions that for, if the State is going to collect money for non-AFDC parents, that it will pay the money over to those parents very specifically and within certain time limits.
Now, that's a pretty specific requirement, is it not?
Do you say that no parent for whom the State has collected money under that provision would have a right to ask the State to pay it over if it were withheld?
Mr. Delaney: Justice O'Connor, that is an important difference here in this case, and that is, once the State actually receives the money, then the individuals would have a right, a property interest in getting that money if the State is wrongfully withholding it, but that is not a statutory right.
That then becomes a constitutional right in their property.
They don't need to move forward--
Unknown Speaker: Well, it might also be a statutory right.
In any event, you would find at least some provisions are specific enough that by some route they could be enforced, would you not?
Mr. Delaney: --No, ma'am, not through the title IV-D itself.
As we envision title IV-D, it's a funding mechanism.
The States gave up some of its rights in terms of domestic relations to the Federal Government in exchange for the money, so it's a contract between the sovereign interests, and what's happening here is we have the Federal Government coming in and trying to run part of the program.
Unknown Speaker: I would think some of the specific provisions might well fall within cases that we have decided previously giving individuals some rights, but this complaint was not based on any such specific request, was it?
Mr. Delaney: No.
This was a very broad--
Unknown Speaker: Now, in Arizona's brief here you seem to want us to address some other issues like the overruling of Maine v. Thiboutot, and some Eleventh Amendment arguments that were not raised in the cert petition.
Is that correct?
Mr. Delaney: --We have raised those--
Unknown Speaker: Why should we get into those?
I mean, you didn't come here with cert petition questions identifying those.
Mr. Delaney: --We did not specifically, but we think that they are subsumed within the question presented, and--
Unknown Speaker: Fairly subsumed, so that people all around the country would understand you were going to be here arguing the overruling of Maine v. Thiboutot.
Mr. Delaney: --Yes, ma'am, and indeed the respondents, when they opposed our cert petition, said that we were doing just that, and that our petition loudly echoed that type of activity, and they have fully briefed the case.
We think that this case presents an excellent vehicle for the Court to reexamine Maine v. Thiboutot, but we don't come here today saying that that's the only way we can win.
We can set that argument aside, and we win on the fact that title IV-D does not unamiguously notify the States that there is any enforceable right in--
Unknown Speaker: But Mr. Delaney, that hasn't been the approach when 1983 is there.
This is not a Cort v. Ash case.
This is a 1983.
Maine v. Thiboutot says there is a right to enforce laws of the United States, and in connection with the question that Justice O'Connor asked you, I think you responded that there would be a claim... suppose the State collected the money and simply didn't turn it over.
You acknowledge there would be such a claim?
Mr. Delaney: --We believe that there would be a claim under either State law grounds or constitutional grounds in the property interest.
Unknown Speaker: But what about a case where the parent was located, the noncustodial parent, and had a job, and the State simply refused to do anything about a wage implementation order?
Would that also... well, would it be enforceable or not in Federal court?
Mr. Delaney: No, ma'am, it would not be enforceable under title IV-D, because title IV-D again is a funding mechanism, and it's a funding relationship, and in order for the court... or in order for the parents to come in and say that they have an enforceable right, we need to make sure that they have one.
Here, there is no conferral of that right.
Unknown Speaker: So your view is it's either all or nothing, so that there's no claim possible under IV-D no matter how specific?
Mr. Delaney: And... correct, and in terms of the substantial compliance standard that Congress has laid out in title IV-D, again that gets back to the funding mechanism, when you have this funding relationship and Congress says in order to continue getting funds you have to perform at a substantial compliance standard on a system-wide basis.
And it used to be when IV-D was first enacted that it was full compliance in 1975, and it continued that way until 1984, and Congress saw that no State had ever been able to comply at a full compliance standard, so Congress ratcheted it down from full compliance down to substantial compliance, and in the process notified the States that you didn't have to deliver service in each and every case, and that's the way that the Secretary also enforces it.
Unknown Speaker: Well, it notified the States that it wouldn't take its enforcement measures such as reducing, what is it, the IV-A money or whatever, as a result of something less than a failure, or substantial compliance, but it doesn't follow from that that there is no individual right if in a particular case there is individual crime.
Mr. Delaney: Well, in fact we think that it does follow that way, Your Honor, because Congress has developed a very comprehensive scheme in title IV-D.
You mentioned the fact that we would be losing title IV-A funds.
The rationale there is Congress wanted to have title IV-D operating full bore, at full speed, doing all that it could for the masses that it was designed to try to take care of, and in the process of then pulling off on an individual case-by-case basis various lawsuits we're... again, we have over 18 million title IV-D applicants across the Nation, and it will cripple the program if you allow these individuals to then come in and try to enforce this on a case-by-case basis.
Unknown Speaker: I thought your point is it wasn't the deal, that the States when they went in thought that all they had to do was make a good faith effort and achieve substantial compliance.
Mr. Delaney: Absolutely, Your Honor.
Unknown Speaker: And if they have to achieve total compliance, at least insofar as being liable to individual suits is concerned, it's quite a different program they're buying.
Mr. Delaney: --It would radically change, Your Honor... just as you are suggesting it was radically change the agreement that we had entered into with the Federal Government.
The Federal Government came in and told us again that we would have to comply on a substantial compliance standard on a system-wide basis, that if we didn't we would have liquidated damages in the form of specific liquidated penalties against us, but again they would be assessed against title IV-A as opposed to title IV-D.
We were told that the Secretary would then have the discretion to waive those liquidated damages when appropriate, and we could then go in and negotiate with the Secretary.
There were other mechanisms available for us to go in and in essence say, this isn't the time to be enforcing the terms this rigorously.
But again, we were told that we had an agreement, and it was given to us in very unambiguous terms exactly how it would be enforced.
Unknown Speaker: Well, the Federal Government has not yet suspended Arizona from the benefits.
Mr. Delaney: Your Honor, in fact the Secretary has found that Arizona is in substantial compliance.
In 1984 she came out--
Unknown Speaker: That's a surprising finding, in light of Arizona's recalcitrance in carrying out its program and its apparent inability to handle these matters.
I mean, it has been a dismal sort of a performance there in Arizona, but nonetheless, the Federal Government has not withdrawn the funding.
Mr. Delaney: --Correct.
Arizona has not had anything withheld beyond the... it was almost $1 million.
We did have that penalty assessed against us in the early nineties.
Unknown Speaker: Has the Federal Government... excuse me.
Mr. Delaney: --In terms of Justice O'Connor's statement Arizona has done an abysmal job, as the complaint lays out, in 1988 Maricopa County, with no notice to the State, bailed out of the title IV-D program, and it dumped over two-thirds of all of the cases in title IV-D upon the State.
The State then had to scramble to try to start meeting those obligations.
And then in 1991... again, the Secretary then came out and found that we were out of substantial compliance, did the audit, and then was coming in annually to do new audits to see where we were, did assess penalties of almost a million dollars, and then found under a subsequent audit than Arizona has now achieved substantial compliance.
And, indeed, as we lay out in some of our briefing materials, Arizona's now receiving national awards, and it's the number one State in terms of improvements for collections over the last 4 years, so Arizona has turned things around and in large part because of the comprehensive mechanism that Congress has laid out, which is to get our attention, and it did when we got that million-dollar penalty assessed against us, but then to--
Unknown Speaker: Did the Federal Government intervene in the district court action?
Mr. Delaney: --No, sir, not in this case.
Unknown Speaker: There was a letter that said in 1992 Arizona was found in substantial compliance.
Has there been anything from the Federal Government since then evaluating this program's compliance?
Mr. Delaney: Your Honor, that was actually a letter in 1994 based on the latest audit, that Arizona is in substantial compliance.
Unknown Speaker: But it was as of 1992, was it not, or--
Mr. Delaney: It was based on a 1992 audit, and no, there is not a subsequent audit that has taken place.
Unknown Speaker: --Do I assume correctly that you would agree that if the agreement between the National Government and the State of Arizona, it had a clause in it providing that Maine v. Thiboutot would be applicable in the relationship between Arizona and the welfare recipients, that then the agreement would be sufficiently unambiguous and they would have the private rights of action to compel your enforcement, is that correct?
Mr. Delaney: If it was that specific in the statute, yes, but it is not in this particular statute, and there are all sorts of mechanisms that I've already identified showing that it is not.
Unknown Speaker: Do you also take the position that, regardless of how clear the general law might be... for example, Maine v. Thiboutot law... indicating that the welfare recipients would have an action for enforcement, that still there would be no action cognizable unless the agreement between the Federal Government and the States expressly referred to that unambiguous law?
Mr. Delaney: We believe that that is what is required under this Court's decisions in Suter, and in Pennhurst, that in the Spending Clause context the States have to be put on notice what the consequences of their agreement or--
Unknown Speaker: Right, but the notice must be within the four corners of the agreement.
The notice cannot be notice by virtue of general but unambiguous law if it is not specifically referred to in the agreement.
Is that correct?
Mr. Delaney: --Yes, sir.
That is our position, that it does need to be spelled out within the confines of the funding mechanism statute so that the States are on notice what it is that they're going to be exposed to.
And again, the problem that we face as States is that there are two different lines of authority out there.
we have the Pennhurst-Suter line that talks in terms of the Spending Clause and the fact that there are significant federalism concerns here when you have contracts between two different sovereigns, and then we have the Wright-Wilder case, line of cases that suggest to the contrary.
Unknown Speaker: But isn't... I haven't looked at Pennhurst recently, but wasn't it the problem in Pennhurst that the State didn't know for sure what its obligation was, not... the question wasn't whether there was a remedy if there were a clear obligation.
Mr. Delaney: They... the problem there was that the States were not on notice what was required.
Unknown Speaker: That's right.
Mr. Delaney: Right.
Unknown Speaker: But here you're on notice about what's required.
Mr. Delaney: No.
We're not on notice about what the consequences are.
We would put--
Unknown Speaker: By that you mean you're not on notice as to whether or not somebody can sue you if you fail to do what's required.
Mr. Delaney: --Yes, sir, and we believe that is a very significant difference, because if we're being told that we're going to be penalized by the Secretary and the Secretary alone, then we can deal with that, but to then have 18 million different individuals who can then walk in and demand enforcement is something completely different.
We were never told that they had enforceable rights.
Unknown Speaker: It seems to me that you're... even under your acknowledgement you're potentially liable to 18 million individuals if you don't give them the money that's coming to them.
You've said that yourself, but you say they just have to sue not in Federal court but in State court for their own property.
Mr. Delaney: If I did, Your Honor, I misspoke.
These individuals do not have any enforceable rights.
Our contract is with the Federal Government.
Our obligations flow to the Secretary.
Unknown Speaker: I thought in answer to Justice O'Connor you said that if money was owing to a particular individual they could sue for it.
Mr. Delaney: But that's different.
When there's money that we have actually received from a third party and we are holding that money, then--
Unknown Speaker: Aren't there 18 million people for whom that could happen?
Mr. Delaney: --If we are able to collect, but again, Nation-wide the collection rate is only 18 percent because of the significant problems in child support enforcement.
Unknown Speaker: What apart from... let's leave aside the question of the collection activity that we're talking about.
What if the State of Arizona simply withheld, under the prior AFDC scheme simply withheld a payment due?
Could the individual bring a claim for that payment?
Mr. Delaney: We don't believe they could under title IV-D, no, sir.
Unknown Speaker: How would they do it?
Mr. Delaney: If Arizona withheld the... if we collected the moneys?
Unknown Speaker: No.
I don't know exactly what the AFDC formula is, but whatever the AFDC formula is, if there were a single parent with two children, and they were entitled to X dollars a month, and the State did not distribute the X dollars, could the parent and the children bring a claim against the State for the money?
Mr. Delaney: No, sir.
No longer, because in the 1996 Reconciliation Act--
Unknown Speaker: No, I... under the prior AFDC scheme.
Mr. Delaney: --Under the prior AFDC scheme I believe so, under Thiboutot, but that is different than our scheme, where we have this agreement.
Again, it's a funding mechanism, and there's not direct dollars--
Unknown Speaker: No, but what is there... I'm sorry, but what is there in the AFDC law or in the agreement between the State and the National Government with respect to the administration of the AFDC scheme that gives them, or perhaps in your terms puts the State on clear notice that the individual recipients could bring an individual claim for the money in the case that I posit, which is not present with respect to the action before us here?
What in the agreement is different?
Mr. Delaney: --Justice Souter, I'm not as familiar with the AFDC case law or statute, just as you are not, but the significant difference is that--
Unknown Speaker: We're evenly matched.
Mr. Delaney: --We're evenly matched.
I wish that were the case.
In terms of the difference, though, there is a very significant difference.
In title IV-A with AFDC, under the old system you had direct dollars, they were quantifiable, that if you went through and you met the specific standards of the day you could then have an entitlement to that.
Under title IV-D you're talking about services, not dollars.
You're talking about something that's not quantifiable, something that is much more amorphous, and in title IV-D the difference is instead of having a direct one-on-one relationship, we as the State have to go out and try to locate an absent parent, have to establish paternity for Joe or John or Paul or Ringo, who may be in various different States, so we have to issue subpoenas to try to track them down.
It's a very different--
Unknown Speaker: Well, that might very well go to the question whether you had fulfilled your obligation in an individual instance to try to collect, but I don't know that it would support a distinction in principle between the two cases.
Take an example... in fact, I guess it's already been mentioned... in which the parent with the support responsibility is more or less standing on the sidewalk outside the State welfare office.
All they've got to do is serve him with a document and haul him into court, and the State simply says, we don't want to.
We have other things to do.
There, it seems to me the State's obligation is just as clear and definite as it is in the instance of the obligation to pay money, and I'm having difficulty drawing the distinction in principle between those two sets of circumstances.
Mr. Delaney: --And a lot of that falls back, Your Honor, to the issue of what the States were told, and we were told that we would have to substantially comply in order to get our funds, and--
Unknown Speaker: So I think you're saying... I'm sorry, but may I interrupt you with this question: I think you're saying not so much that you weren't put on notice that you would have this obligation, but that the substantial compliance requirement in effect puts you on notice that you didn't have it.
In other words, I think you're arguing that the substantial compliance condition says, we don't worry about individual cases.
Your only obligation is an obligation in the mass, as it were.
Is that your argument, that it's kind of like a defense?
Mr. Delaney: --Yes, Your Honor, that is a way of looking at us, at our argument, which is we were told that we wouldn't have to do it on a comprehensive system, and we were told not only in... with... in terms of substantial compliance.
We were told in section 658, that would then reward us with incentives if we did better than had been anticipated.
As the Court found in Pennhurst, the fact that there are incentives show that there cannot be any mandatory obligations.
Unknown Speaker: Mr. Delaney, in comparing the two, the direct benefit to the IV-A money, isn't there something like for social security benefits that there's an administrative route that you have to go first, and then if you're turned down, then you have further judicial review?
Is there nothing like that for--
Mr. Delaney: There is nothing in IV-D that--
Unknown Speaker: --And in IV-A... I'm trying to get back to Justice Souter's question, when he said well, what if you were entitled to AFDC benefits and the State didn't pay them, under the old regime.
Mr. Delaney: --Again, that's different than what we--
Unknown Speaker: And it seems to me that most benefit systems like that you have to make an application, get turned down, go through the administrative mill, and then end up in court.
Mr. Delaney: --Right, and again the key phrase there is a benefit program.
That is different than title IV-D, which is... concerns services that the State is providing based on an agreement that we have with the Federal Government.
And it's different because again on... we're being told that we're going to be measured with substantial compliance, with incentives, with the paternity establishment, for example, and the statute itself says that we will comply if we get anywhere between 45 and 90 percent establishment of paternity.
That's not 100 percent.
We're not being told by our Federal partner in this that we have to reach 100 percent anywhere.
We're being told--
Unknown Speaker: What about the payments?
What about the... perhaps the statute's changed so much that I don't know which version I'm dealing with, and so I might just be referring to an old statute, but this... the words I have in the red brief at the end seem to talk about IV-D.
And then there's something, 42 U.S.C. 64, that says a State plan for child and spousal support must, on page 9a it says, provide that amounts collected as support shall be distributed as provided in section 657, and then section 657, which wasn't actually in the brief, seems to have, like, eight paragraphs which say rather specifically who gets what money, and then it seems like 654(b) says the State disbursement unit shall distribute all amounts payable under 657(a) within 2 business days.
So it seemed like there was a lot of rather specific requirements saying exactly how many dollars different people would receive, some of them being AFDC people and some of them being non-AFDC people, and I think Justice O'Connor's original question, which I thought Justice Stevens was getting at too, is doesn't at least that part of the statute create a private right, or create a 1983 action that would require the State to pay the money, the specific dollars that it must pay to the people who are entitled to those dollars?
Mr. Delaney: --Your Honor, if we have actually received the moneys and we're holding the moneys and we don't distribute, then yes, we could be sued if we're wrongfully withholding it, but we could be sued not under title--
Unknown Speaker: Well, I would be amazed if the Constitution says you have to pay within 2 business days, as this statute does.
I would be amazed if the Constitution has the same requirements as to how much money you can deduct for expenses or not as this statute does.
So are you saying that this statute does not at least give that right, the right that the very specific provisions as to actual dollars that the State would have, are you saying that this statute does not give that right to a person who is entitled to those dollars?
Mr. Delaney: --Your Honor, in terms... getting back to substantial compliance, or whether we have been in substantial compliance, we don't know yet--
Unknown Speaker: I'm not talking about substantial compliance, you realize.
My question is, is it your view that the statute does not give that right to those very dollars with the specific expense deductions, the specific time periods, to the particular plaintiffs who are entitled to those dollars?
That was my question.
Mr. Delaney: --At first glance, yes.
However, getting back to substantial compliance, the Secretary will be promulgating regulations saying how she is going to measure substantial compliance.
There are other provisions in the statute that talks about having to do certain things.
The Secretary has promulgated regulations and said that those time lines can be waived, those time lines can be treated differently if you collect the moneys within the audit period, and so the whole substantial compliance thing does come back in in terms of measuring whether there would be an individual right there or not, and--
Unknown Speaker: Could I follow up on that for a minute?
Supposing you have the hypothetical situation Justice Breyer described.
You've got some money collected there, and you're in substantial compliance with the statute.
You have that money sitting there, and a plaintiff who wanted that money sued you in State court, said we want that money turned over to us.
Could you defend on the ground that we don't have to because we're in substantial compliance with the statute?
Mr. Delaney: --No, Your Honor.
Again, if we actually had the money, I don't think that we could.
I think that we would have to--
Unknown Speaker: Well then, why is substantial compliance a defense to a Federal cause of action if it's not a defense to a State cause of action?
Mr. Delaney: --The chief concern we have... and again, this whole line of questions has gone off on the issue of actually holding the moneys, and we think that that's a different situation because we actually have property that we are holding of someone else's.
That's distinguishable from the broad range of the rest of title IV-D.
Unknown Speaker: The complaint would not argue that there's been a violation of any obligation under the act.
The complaint would simply say, you have my money, right?
It's a State law cause of action for money improperly withheld.
Mr. Delaney: Exactly, and--
Unknown Speaker: When did title to that money pass to the individual?
Isn't there just a Federal duty to turn over an amount of money collected?
You say it suddenly became the idnvidual's property.
Mr. Delaney: --Well, actually, it's done pursuant to a court order, and the court order tells the individual that they have to pay.
Then the State is sitting there as a repository, so it's really just enforcing that current court order, that we are then holding that individual's money, that we then turn it over.
Unknown Speaker: What relief was prayed for here by the plaintiff?
Mr. Delaney: Sweeping relief, in that they asked for an order that Arizona be ordered to achieve as well as sustain substantial compliance.
Again, the Secretary has already found that we are in substantial compliance.
Unknown Speaker: So it wasn't just a request that money held by you be turned over to individual plaintiffs, then.
Mr. Delaney: No.
No, it was not at all, Your Honor.
It had to do with much more broader scope, saying that we have to be held in substantial compliance, and again the Secretary has already found that we're in substantial compliance, and the Secretary's brief today tells us that that is not a right that the individuals can be enforcing.
Your Honor, I'd like to reserve the balance of my time.
Unknown Speaker: Very well, Mr. Delaney.
Ms. Berzon, we'll hear from you.
Argument of Marsha S. Berzon
Mr. Berzon: Mr. Chief Justice, and may it please the Court:
I'd like to begin by clarifying the complaint.
The complaint in paragraph 143 on pages 36 and 37 of the Joint Appendix spells out the particular provisions of the statute and regulations that are being complained of here.
They include the collect and using the parent locator service which is specifically mandated by the statute, refusal to collect in the manner that is specifically required by the statute, refusal to carry out paternity determinations in the manner required by the statute, and so on.
Unknown Speaker: But the--
--What relief was requested?
Was the counsel wrong--
Mr. Berzon: The relief that was requested was double.
On page 42 there was first relief entering... asking that declaratory judgment be entered determining that the operation of Arizona's title IV-D program violates controlling substantive provisions of Federal law creating rights in plaintiffs, and those provisions are the mandatory, specific, and individual provisions that are in this statute and the implementing regulations--
Unknown Speaker: --Well, it didn't say that at all.
It went on to ask for grant permanent and as necessary and appropriate interlocutory injunctions--
Mr. Berzon: --That's correct.
Unknown Speaker: --prohibiting continued adherence to the aforesaid pattern and practices, and requiring affirmative measures sufficient to achieve as well as sustain substantial compliance with Federal law throughout all programmatic operations.
Mr. Berzon: That's right, but--
Unknown Speaker: Your answer really wasn't very careful.
Mr. Berzon: --I was about to get to that.
I was just--
Unknown Speaker: I hope you will.
Mr. Berzon: --I certainly will, and what I was going to say about... I said it was double, and I was getting to the double part.
The double part was a request for an injunction of that kind.
However, that is simply the prayer for relief.
The Ninth Circuit did not reach any remedial question.
The substance of the complaint is with respect to the specific enforceable provisions, and I would suggest that if this case was found to state a cause of action under 1983 and remanded the question of relief and whether that--
Unknown Speaker: What is your--
Mr. Berzon: --injunction is proper is one that the Court could determine at that point, or the Court could determine now that isn't proper, but--
Unknown Speaker: --What is your best--
Mr. Berzon: --that is not the substance or the core of this case.
Unknown Speaker: --What is your best authority for the proposition that this suit, which in effect asks for an ongoing regulatory scheme to be implemented by the State of Arizona is not barred by Ex parte Young?
Mr. Berzon: The best authority is Edelman v. Jordan.
Unknown Speaker: Pardon me?
Mr. Berzon: Edelman v. Jordan.
That case is almost on all fours with this one.
It was a case in which--
Unknown Speaker: Well, Edelman v. Jordan required that a notice be sent out.
This requires ongoing supervision of a State administrative scheme.
I think that's quite different.
Mr. Berzon: --I did not understand that Edelman v. Jordan required that a notice went out.
Later, in Koren v. Jordan, it was determined that notice of relief--
Unknown Speaker: Oh, yes, Edelman was--
Mr. Berzon: --Edelman was--
Unknown Speaker: --Was for retroactive--
Mr. Berzon: --At that time was assuming that the statute was still in effect.
At the time of Koren that statute had been reversed, but at the time of Edelman the statute was in effect, and Edelman understood that what the... that the ongoing injunction was going to remain in effect, that the problem was with retroactive relief, but that an injunction to continue to comply with the statute was quite at the core of what Ex parte Young is about, and the case is really indistinguishable from this one.
It is like--
Unknown Speaker: --Well, this case looks to me very much, frankly, as though the respondents were just asking the Federal court to step into the shoes of the Secretary at the Federal level and compel substantial compliance with the act, just as the Secretary's obligation would be, and to have the Federal court take over the entire administration of this IV-D act, and I never read that act as contemplating such a broad role for the Federal court--
Now, that's not to say there may not be certain individual provisions in the act that are specific enough that could require enforcement, as has been discussed already, but the notion that the Federal court could be asked to come in and just take over the whole idea of whether there is substantial compliance in all its details, supervise it, struck me as going beyond any case that this case had ever handed down.
Mr. Berzon: --At this juncture the issue in this case, as I understand it, is simply whether there are any enforceable rights of the particular kinds that are alleged here, and I commend again section 143, which really spells out what they are under 1983.
The relief available I think is really quite a separate question.
Unknown Speaker: Ms. Berzon, I'm happy to talk about the individual rights rather than the whole program.
Suppose you have a Federal statute that, let's say, provides for broadcast licenses, and the claim is that the license has been improperly denied.
The personsuing under 1983, however, is not the person who would have gotten the license, but rather a hot dog stand across the street from the person who would have gotten the license, who claims that he lost a lot of business, that had the license been issued here, there would have been a lot more traffic and so forth.
Would that person have a cause of action under 1983?
Mr. Berzon: I don't think he would, and I don't think that this bears any resemblance to that.
Here we have a statute--
Unknown Speaker: Now, wait.
So you acknowledge that some exercise must be indulged in in deciding what is a right, deprivation of any rights, privileges, or immunities.
Not everyone who is adversely affected by the failure to act has a right, so--
Mr. Berzon: --This Court's cases make that quite clear.
Unknown Speaker: --So we ask the question here, when 1983 was enacted, would these people be deemed to have rights?
Now, a brief by an amicus suggests that at the time 1983 was enacted, under contract law third party beneficiaries of a contract between two people would not be able to sue in order to enforce the rights promised to the third party beneficiary, and that's the situation you have here.
It's a contract between the Federal Government and the States.
The States agree as part of that contract to render certain benefits, services to your clients.
Your clients are suing as third party beneficiaries.
As I read the law at the time of 1983, third party beneficiaries had no right, no right to sue, just like the hot dog stand owner wouldn't have any right to sue today.
Mr. Berzon: First of all, this Court has really crossed that bridge a long time ago, beginning with King v. Smith, Rosado v. Wyman, Edelman v. Jordan, Thiboutot itself, Wilder, Wright and so on.
All of those cases have exactly the structure of this one.
They are cases in which the... there is a Spending Clause statute in which the State in return, and I should say here for a large amount of money from the Federal Government in a situation in which States that do their job actually come out with a net surplus, have agreed to provide specified rights, and this Court in Bennett v. Kentucky Department of Education--
Unknown Speaker: Was this argument made in those cases?
Mr. Berzon: --I'm sorry.
Unknown Speaker: Was this argument made and rejected in those cases?
Mr. Berzon: I don't know whether the third party beneficiary argument was made, but certainly the argument that the only enforcement mechanism available is that within the statute and not the one that specifically expressly provided by 1983 was made, but I would also--
Unknown Speaker: Was there not some consideration--
Mr. Berzon: --I'm sorry.
Unknown Speaker: --Was there not some consideration coming from the third party beneficiary in some of those casess?
Mr. Berzon: I would say that there was probably a lot less than there is here, and here we have a situation in which the individuals have cognizable rights to the support, and what the statute is doing is assisting them providing services in obtaining the support, and I'd like to say in comment to--
Unknown Speaker: Ms. Berzon, there's an anomaly, isn't there, in that at least the Government is insisting that substantial compliance is none of the business of the beneficiaries.
That's simply between the Secretary and the State.
But your position seems to be, or the Secretary's position seems to be that you can enforce full compliance.
Seventy-five percent of collections won't do.
You can insist on full compliance.
Doing it in 3 days instead of 2 days won't do.
You can insist on full compliance.
Now, isn't... how does one rationalize giving the beneficiaries a right to full compliance when all that the Secretary can insist on is substantial compliance?
Mr. Berzon: --Actually, it isn't true that that's all the Secretary can insist upon.
The structure of this statute includes title IV-A and title IV-D.
Title IV-A is the financial assistance provisions, which used to be AFDC and it's presently temporary assistance to needy families.
It is in that section and that section alone that the substantial compliance language appears, and it appears in order to delineate a special draconian penalty which says that if there is really, really noncompliance with the statute, not only is the money that's being spent for IV-D at issue, but other money, separate money, money that is not being spent for this program but for a different one is going to be docked as well.
In other words, it's a... really it's a separate and draconian penalty.
Substantial compliance does not appear in IV-D.
IV-D is... all of the requirements set out in IV-D are mandatory, specific, universal, run to each child, every child, all children--
Unknown Speaker: So then what was the letter following the audit that says you are now in substantial compliance not with everything in the world but with IV-D?
Mr. Berzon: --The letter that... first of all, I believe, and perhaps the Solicitor General can clarify this, that it was not universal in any event.
It was only the specific issues that were determined not to be in substantial compliance earlier.
There is no determination at all that at this moment Arizona is in substantial compliance and, indeed, despite the representations that were made earlier, Arizona is dead last among the States with respect to the efficiency of their collections.
Unknown Speaker: I don't unfortunately have that particular brief with me, but I'm fairly certain that there was a broad statement that Arizona... we are pleased to tell you that Arizona is in substantial compliance with the program.
Mr. Berzon: But in any event, what I was going to go on to say is that the statute as read against Bell v. New Jersey, which has very similar provisions with regard to funding, would permit the Secretary to, for example, recoup misspent money and the regulations... with regard to IV-D money now, on a full compliance level.
And this Court in Bennett v. Kentucky Department of Education specifically rejected a very similar argument that would have read substantial compliance in a penalty provision into the liability or obligations of the statute as a whole, and it rejected that and said it isn't true.
It only applies to the particular penalties as to which the substantial compliance language appears, and it does not delineate the obligation when the obligation itself is stated in a mandatory and not limited fashion.
So the substantial compliance issue here is largely a red herring.
It deals with a very specific penalty.
It does not deal with the Secretary's rights as to IV-D money, and it does not deal with the beneficiary's rights as to IV-D money.
Unknown Speaker: Why do you think that's more draconian than the relief you ask for in this complaint?
I mean, I'm not... if I were the State administrator I'm not sure that the cutting... that the monetary penalty from the Federal Government, or the cutting off of Federal Government funds, would be any worse than being subjected to a suit that demands, in effect, every individual get what the act requires.
Mr. Berzon: Again, I would like to suggest that the case at this juncture is not about relief.
It's about whether there is a cause of action under 1983.
Unknown Speaker: I understand that, but I'm just questioning your assertion that the substantial compliance provision only applies to some draconian relief.
It seems to me that to insist that the State comply with every jot and tiddle of this law with respect to every person who is benefited by the contract with the Federal Government is itself pretty draconian.
Mr. Berzon: My argument was simply that the statute in terms makes it only available... only applicable to the relief, and that Bennett v. Kentucky Department of Education makes clear that when that's the case it applies to what it applies to and not to other provisions that do not in terms speak in other than mandatory, specific, and universal terms which the various provisions here do, and I'd like to say--
Unknown Speaker: How could I find out which provisions you're talking about?
My particular problem is, suppose I thought that some of these provisions... I take it in 654, where there are 24 listed obligations, suppose I thought that some of them Congress did mean to be mandatory in the sense that they might fall within 1983, but others of them Congress didn't.
What should I do here?
It doesn't seem to me that the parties have argued it out provision by provision.
I didn't even know what particular provisions you'd be talking about specifically, so what... I'm quite puzzled.
If I thought that perhaps some but not others, what's the proper disposition of the case, and how do I know which are which?
Mr. Berzon: --The... again, the complaint is quite specific about what provisions it's complaining about.
Unknown Speaker: It mostly said regulations.
It mostly cited reguations.
It didn't cite--
Mr. Berzon: It mostly cites regulations, but those--
Unknown Speaker: --So which... where do I find out which provisions of the statute you're talking about?
Mr. Berzon: --Primarily the provisions of the statute that we're talking about are the ones that derive from 654(4), which is the provision that says that each child is to be provided services with regard to location, paternity, establishment of child support orders, modification, and collection, and then there are various provisions in this statute and in the regulations that spin out exactly what that means, as well as provisions in the statute which spell out the fact that the regulations are binding on the States, and that the Secretary is to issue these very specific timing regulations, which he did do.
So I would suggest that what we need to focus on here is the substance of the complaint, and that the relief prayed for is really quite beside the point at this juncture.
Unknown Speaker: Well, can you give us at least an example of, if you're right that there is a claim that there is a private right, of relief that would be beyond question within the ordinary judicial realm?
Mr. Berzon: I think the relief, and I... we say this in our brief, given the very specificity of the statute and the implementing regulations, it's really not difficult.
The relief is, comply with them.
That's the relief.
Unknown Speaker: Then how does a judge--
Mr. Berzon: As to the particular... I mean, obviously the person has to have standing as to whatever they're complaining about, and therefore, for example, Ms. Freestone's problem was that they were not withholding wages from her husband in the way that the statute requires, and the relief--
Unknown Speaker: --So the direction would then be, go after her husband, and that would be the relief.
Mr. Berzon: --Yes, and this case was pled as a class action and has been certified--
Unknown Speaker: But what about, as there are many people similarly situated and we can't identify them all because we don't have the records, go after all defaulting parents?
Mr. Berzon: --If there was a properly certified class action and if it were proven that there was an overall pattern of not doing so after a trial, then ordinary equitable principles would apply.
Now, the Ninth Circuit again was--
Unknown Speaker: You said, Ms. Berzon, as the statute requires.
Technically the statute here doesn't require anything, does it, unless the State enters into a contract.
The State says... what it says is, if you agree to do this, the Federal Government agrees to do the other.
Mr. Berzon: --That's true, but the State has, and this Court has--
Unknown Speaker: The State has agreed, so the issue is whether the State's breaking its word with the Federal Government gives the right to people who are not parties to that contract to come in and complain about it.
Mr. Berzon: --Once again, this Court, starting with Rosado v. Wyman, has dealt with this problem and in Rosado and a series of later cases has suggested the nature of relief which might be available here would be conditioned on the State continuing to take the money.
If the State at any point decided to opt out the money the requirements would no longer apply.
Again, this has been thrashed out, it's been determined, and the cases are there, so any--
Unknown Speaker: I don't agree that it's been--
--Were those class actions?
Was Rosado a class action?
Mr. Berzon: --I believe Rosado was a class action.
Unknown Speaker: Isn't... you spoke of general equitable principles of relief applying, and I guess it's not clear to me that they necessarily would, at least I think in the way you intended, because in the usual class action case I think the assumption that we make going into court is that there is no one in effect who is going to act on behalf of the class except these particular plaintiffs who are suing on behalf of the class.
But that's not so in a case like this, because here we have a Federal agency which presumably is in business to do precisely what the class relief is requesting, and that is to look at the big picture and to sort of take the mega enforcement action, so I would have thought that even on general equitable principles the only relief that it would be appropriate for a court to decree as opposed to leaving it to the National Government to demand would be the specific relief of those who claim that they have a particular entitlement quite apart from whatever in the main the State's failure or success may be, which is the business of the National Government.
Mr. Berzon: Again, this Court's cases have never drawn that distinction.
Many of the cases--
Unknown Speaker: Why shouldn't we draw the distinction?
Mr. Berzon: --under the Social Security Act have been class actions.
Unknown Speaker: Why shouldn't we draw the distinction?
In other words, why should a court in effect take over an obligation which has been pretty clearly delineated to be that of the Secretary here, as opposed to doing what courts usually do in nonclass action cases where there's nobody to act on behalf of a class if the court and the plaintiffs don't, and that is simply to provide the specific--
Mr. Berzon: I guess because it would be difficult to find... certainly it would be difficult to find any exception in 1983 which would preclude--
Unknown Speaker: --Well, 1983 doesn't say anything one way or the other.
1983 provides in effect jurisdiction to provide equitable relief, and the question that I'm raising is really one of equitable relief principles and that is, when you have somebody who in effect can do the work of the class action, i.e., the Secretary, why should a court do anything other than do the work that the Secretary cannot do well?
Mr. Berzon: --I guess because the individuals in question who are class representatives, if they can prove a classwide relief, are simply doing what a class action proposes.
Now, again I'd like to reiterate--
Unknown Speaker: I think you've answered the question, Ms. Berzon.
Mr. Berzon: --Thank you very much.
Unknown Speaker: Your time has expired.
Ms. Millett, we'll hear from you.
Argument of Patricia A. Millett
Ms Millett: Mr. Chief Justice, and may it please the Court:
Before I make my points, I would like to clarify Arizona's status with respect to substantial compliance.
It is incorrect to say that we have found them in substantial compliance in their overall operations.
The 1994 letter to which Justice Ginsburg referred states only that we have found them in substantial... and this is at page 1 of the reply to the cert petition, that appendix.
The program has achieved substantial--
Unknown Speaker: Where are you reading from, Ms. Millett?
Ms Millett: --I'm sorry.
It's the reply to... the cert reply, at the cert stage, appendix--
Unknown Speaker: Reply by whom?
Ms Millett: --The reply by Arizona.
Unknown Speaker: Whose reply?
Ms Millett: Their cert petition reply.
Unknown Speaker: Arizona's?
Ms Millett: Yes.
They filed... the reply at the cert page, and app 1... at app 1 the letter states that the program has achieved substantial compliance with the unmet criteria cited in our March 1992 penalty notice.
There's no broad finding of substantial compliance, and in fact we have not made that yet.
We do not know what... I'm not suggesting this has happened by Arizona.
We don't know.
As I said, we have investigated, but it would... it's not uncommon in these circumstances for agencies to focus on... State agencies to focus on the unmet criteria, and then that takes resources away from another one.
Unknown Speaker: Ms. Millett, as to the criterion, the Government's brief said something about three different kinds of provisions.
They said, there are some that are not judicially enforceable at all, some that are judicially enforceable, and some that are not judicially enforceable to the same degree as others, so you laid out those three categories but you didn't fill any of them.
So looking at this, the dozens and dozens of quite specific requirements, how does a court say which ones are not judicially enforceable at all, which ones are fully judicially enforceable, and which ones are judicially enforceable somewhat?
Ms Millett: I think you have to look at the plain language of the statute and the regulations.
Parts of the statute--
Unknown Speaker: Well, you've looked at them.
Ms Millett: --Right.
Unknown Speaker: So can you give--
Ms Millett: Yes.
Unknown Speaker: --Since you set out those categories, can you fill them for us?
Ms Millett: Certainly.
Examples of the types of things we just don't think are judicially enforceable at all because they don't create rights are some of the sort of macroadministrative mechanisms under the statute, things such as, we discussed the substantial compliance requirement, which is just a penalty provision that we administer, the existence of a computer system writ large.
The general scheme for operating, the tools for operating this are not the types of things that would be judicially enforceable because they do not run to individuals as rights.
Specific things that are judicially enforceable, just in the statute itself... the regulations we think creates many, many more, but the statute itself talks about, as Justice O'Connor already mentioned, the requirement the States distribute proceeds collected in a specific manner and under the new act between certain specific times frames is a specific enforceable right that runs to the individual.
It's their money, and Congress has said you have a right to get it in a certain amount of time, and--
Unknown Speaker: Congress hasn't said that.
It's not really a right.
If the State had chosen not to go into this program nobody would have any rights to anything here.
If there is any entitlement to it, it is through the contract between the State and the Federal Government, isn't it?
Ms Millett: --Your--
Unknown Speaker: It's too misleading to refer to it casually as a right.
It may be a right, or it may not be a right, and that's part of the issue.
It arises out of this contract, and that's what makes it difficult to decide these Government grant and benefit program cases, as distinguished from those cases in which the Federal Government does create rights.
Automatically it says the States must do this.
Ms Millett: --Well, some--
Unknown Speaker: Then you have a 1983 right, and it's easy to talk cavalierly about rights, but every time you say right, I... you know, I think that's really what's at issue here.
Ms Millett: --Sometimes Congress creates things that are recognized as rights outside the contract context, such as a Clean Water Act, a Clean Air Act, that don't apply to States until they choose to enter into an activity that is covered.
This would be the same way.
Yes, if no one gets into this program, although all 50 States are, there are no rights, but once you get in you are bound by the Federal law that you have voluntarily chosen to submit to and been paid substantially to comply with.
This Court's decisions, previous decisions involving these types of contract cooperative relationships have all recognized that once you're in we can decide whether or not the Federal law you have now agreed to comply with creates rights, and we believe that to underscore this with respect to the Social Security Act, Congress acted after this Court's decision in Suter and passed 42 U.S.C. section 132a-2, and that underscored Congress' intent that under 1983 this type of relationship, once it's entered into, can create rights.
Unknown Speaker: Yes, but there may be very few socalled privately enforceable rights here because the statutory scheme is one that essentially wants the States to be involved in a program to substantially carry out the Federal vision, and to be involved in substantially trying to help people collect child support, but clearly it's not going to be effective in every case.
There are deadbeats who are never going to be located or who don't have the money.
You can't squeeze blood out of a turnip, and you've never going to get it, and Congress surely didn't contemplate here that for most of these provisions that there are individual rights which the statute never contemplated the State would be required to carry out in every single case.
It was seeking broadly substantial compliance.
There may be some individual exceptions within the act, such as where money has in fact been collected and not paid over, but I think those might be few and far between.
Ms Millett: Your Honor, we would disagree.
Congress wants full compliance.
The fact that it has a penalty provision in IV-A and not in IV-D, in IV-A, in terms of substantial compliance is no different.
The old AFDC program had a substantial compliance penalty provision, too.
They concede that that was enforceable.
Unknown Speaker: Does the Secretary have authority to do anything other than those draconian things, either suspend payment or dock payments?
Could the Secretary seek the kind of relief these plaintiffs are seeking?
Ms Millett: We think that the Secretary and the United States generally has the same right under a contract as any other party to seek specific performance--
Unknown Speaker: And how about the Secretary herself?
Suppose that... we have a letter talking about 1992, written in 1994.
Suppose the plaintiffs say the real problem is the Secretary.
She is just letting the States get away with murder, so we want to sue the Secretary for insufficiently monitoring this program, not simply in Arizona.
There may be States that are much worse than Arizona.
How about that?
Would there be a claim?
What is the Government's position?
Could the Secretary be sued for abysmal lack of enforcement?
Ms Millett: --I think that you would have... a plaintiff would have serious standing problems that sound a lot like Simon v. Eastern Kentucky Welfare Rights Organization, where they were trying to sue the Commissioner of Internal Revenue to change a rule which would then require... supposedly require hospitals to change their conduct which then might result in benefits to the plaintiffs.
That would be the same sort of attenuated scenario.
Unknown Speaker: I don't see that, because here the Secretary can take away they money.
There the question was, how would the hospitals respond?
Ms Millett: We could take away the money.
As a second tier we also think that our audit and penalty things are committed to agency discretion so there would be a second problem beyond that, and there's nothing in the statute that would allow a court to determine--
Unknown Speaker: So your answer is that there would be... there is standing against the State Department of Welfare but there would be no standing against the Secretary?
Ms Millett: --Right, because the person that... because what they want is services, and we don't deliver the services, and this was the same problem again in Simon.
You need to sue the person who can give you what you want, to make it very simple.
Unknown Speaker: Can I ask about... I just have one question in this case which stems from your idea that some of these are enforceable and others are not.
That's why I wanted to find out which one they're talking about, and they say they're talking about 654(4) primarily, and if I look at that, that provision says that the State has to promise it will undertake to establish the paternity of the child, and that the State will undertake to secure support for the child.
Now, those are the two provisions.
It seems to me those are awfully vague and general.
So now... I'm sure that's what they'll say.
I want to know what is it that leads you to think that those words that I just quote are meant to give a specifically enforceable right to an individual?
Ms Millett: I think it's those words in combination with others.
We don't think that every single stage of paternity or support services is enforceable.
You have to look at the statute regs and see if it spells it out.
Let me give you an example.
Unknown Speaker: The regs?
You mean you're saying the regs are what are enforceable?
Ms Millett: No.
There's statutory provisions and regulations both.
Let me... I can give you a couple of examples of statutory provisions in the... that might affect these plaintiffs.
First of all, there's the distribution one that's already been discussed.
Section 654(8) requires that when someone seeks location services--
Unknown Speaker: Yes.
Ms Millett: --you must use a Federal--
Unknown Speaker: Okay, I got... I understand your point now.
But then what am I supposed to do if I think you have made the... I'm not sure about 654(4) and I don't feel they've argued that specifically.
Maybe you have.
But what do I... what am I supposed to do if I think some were not argued, particularly not 654(4), with enough detail for me to decide?
Some you may be right on.
Others you may be not.
What am I supposed to do with this case?
Ms Millett: --I believe a remand--
Unknown Speaker: Yes.
Ms Millett: --I believe a remand would be appropriate.
Unknown Speaker: Thank you, Ms. Millett.
Mr. Delaney, you have 3 minutes remaining.
Rebuttal of C. Tim Delaney
Mr. Delaney: Thank you, Your Honor.
I have just three quick points.
Unknown Speaker: You'd better hurry up and make them.
Mr. Delaney: Ms. Berzon was talking about looking at the substance of the complaint.
If you look at paragraph 132(t), they complain about the extraordinary staff personnel shortages as the paramount cause of noncompliance with IV-D requirements.
Then at 133, paragraph 133, they complain that Linda Blessing lacks the authority to direct the legal work of the AG's office, and at 134 they complain about the fact that title IV-D at the State level incurs problems with clerks in the Superior Court.
What they're asking for here is not a structural injunction.
They're asking for a restructural injunction because they want a Federal judge to come in and tell Arizona how to redo its State government activities, and as the SG's representative just said, you need to sue the person who can grant the relief.
Linda Blessing cannot redo what the Arizona legislature's budgetary concerns are.
Linda Blessing cannot go out and reconfigure the lines of Arizona State government so that she can control the AG's office, and she cannot go out and rewrite Arizona government in terms of having to make the counties comply.
So it really boils down to, what's a Federal court going to do here?
Is it going to duplicate what the Secretary's done, or will it be imposing new duties beyond whatever the Congress has passed?
My second point gets to one that Justices Breyer and Ginsburg have raised, which is, how do I know which are which?
The SG has just told us, well, we can look at them provision by provision, and some are and some aren't.
We have to guess and hope that we come up with the answer.
We believe that the Constitution says otherwise.
The Spending Clause as this Court has interpreted says that the States have to know unambiguously what is enforceable and what is not.
We have to know in advance so that we can make the determination whether we want to accept this agreement or not, and the Constitution requires that it be spelled out by Congress and not by judges who have to guess which ones are--
Unknown Speaker: But their argument will be, when I look at 644(4) and look at all the regs, I'll discover it's very, very specific, and if it is?
Mr. Delaney: --Again, we think that that should be something that they do across the street rather than out at the various district courts or even at State courts to be guessing, well, this one looks like it is, and this one looks like it isn't.
Instead of having a Nation-wide uniform system we're going to wind up with a judge in Phoenix looking at something different than one in Massachusetts and saying that the same provision is or is not enforceable.
Congress should be doing that.
And my final point, just racing through here, Justice Ginsburg, you had asked a question about the--
Chief Justice Rehnquist: Thank you, Mr. Delaney.
The case is submitted.
Unknown Speaker: Two out of three ain't bad.
Argument of Speaker
Mr. Speaker: ...Freestone will be announced by Justice O’Connor.
Argument of Justice O'Connor
Mr. O'Connor: This case comes here on writ of certiorari to the United States Court of Appeals for the Ninth Circuit.
Arizona has chosen to participate in a federally funded welfare program, Aid to Families with Dependent Children.
As a condition of receiving that federal funding, a federal statute known as Title IV-D requires Arizona to help children and single parents obtain paternity determinations and child support orders and to collect support payments from absent parents.
This lawsuit was brought by five single mothers living in Arizona whose children were not receiving child support from their absent fathers.
The mothers sued the Director of Arizona’s Child Support Agency, claiming that the agency had not provided them with child support services, and that the State’s failure were largely attributable to structural defects in the state agency; staff shortages, high case loads, and poor record keeping.
They brought their lawsuit under 42 United States Code Section 1983 which imposes liability on anyone who under color of state law, deprives the person of any rights, privileges, or immunity secured by the Constitution and laws of the United States.
The mothers claimed that Title IV-D gave them rights and asked the court to order Arizona to achieve substantial compliance with federal law through all of its programmatic operations.
The District Court granted summary judgment for the Director but Court of Appeals for the Ninth Circuit reversed.
It held that Title IV-D gave the mothers an individual right to have Arizona’s Child Support Agency substantially comply with federal guidelines, and that the Secretary’s authority to audit and cut funding of the agency did not foreclose an individual remedy for the plaintiffs under Section 1983.
We disagree with the first portion of the Court of Appeals’ analysis and therefore vacate the judgment.
We disagree with the lower court’s conclusion, the Ninth Circuit’s conclusion, that individuals have a right to have Arizona’s Child Support Agency substantially comply with Title IV-D.
For a statute to create an enforceable right for individual plaintiffs that must be intended to benefit the plaintiff and must create judicially manageable standards and impose a binding obligation on the state.
The requirement that a state be in substantial compliance, we think, is not intended to benefit particular individuals.
The substantial compliance standard requires that a state must provide certain services only in a specified percentage of cases.
For example, a state must collect over due support payments in 75% of state cases, and that numerical target is a system wide measure of performance triggering the Secretary’s auditing and penalty provisions.
It does not give particular individuals an enforceable right to receive child support services.
We also think the Court of Appeals painted with too broad a brush in holding that Title IV-D created unspecified rights.
Our cases have always analyzed the plaintiffs' asserted right in their most concrete specific form.
We send this case back to the District Court to construe the complaint in the first instance to determine exactly what right, considered in their most concrete specific form the mothers are asserting.
The opinion is unanimous.
Justice Scalia has filed a concurring opinion which is joined by Justice Kennedy.