Cuvillier v. Taylor

IN THE UNITED STATES COURT OF APPEALS

United States Court of Appeals

FOR THE FIFTH CIRCUIT Fifth Circuit

FILED

October 5, 2007

No. 05-61186

Charles R. Fulbruge III

Clerk

LAURENE C. CUVILLIER,

Plaintiff-Appellant,

versus

JOHNNIE SULLIVAN; BETTY POLK; HUGH C. REDHEAD;

ELMIRA WILLIAMS; SHERRY JACKSON; RICHARD HARRIS; and

DONALD R. TAYLOR,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Mississippi

Before GARWOOD, BARKSDALE, and GARZA, Circuit Judges.

GARWOOD, Circuit Judge:

Plaintiff–appellant Laurene Cuvillier (Cuvillier) brought this

action pursuant to 42 U.S.C. § 1983, asserting a deprivation of

rights secured by Title IV-D of the Social Security Act, 42 U.S.C.

§§ 651–669b. Because we conclude that the provisions Cuvillier

relies on do not give rise to individual rights, we affirm the

district court’s dismissal of this suit.

FACTS AND PROCEEDINGS BELOW

In 1983, Robert and Anne Harrison were granted a divorce by

decree entered in Atlanta, Georgia. Anne Harrison subsequently

changed her name to Laurene Cuvillier. As part of the divorce

decree, Robert Harrison (Harrison) was required to pay $3,000.00

monthly in child support to Cuvillier. Harrison failed to do so.

In 1990, Cuvillier terminated Harrison’s parental rights for

abandonment and failure to pay child support.

In December of 1993, Cuvillier attempted to collect the past

due child support through the Georgia Department of Human Resources

(GDHR). By that time, however, Harrison no longer lived in

Georgia; he resided in Hazlehurst, Copiah County, Mississippi,

where he owned a home and business. Accordingly, in February of

1994, GDHS forwarded a request for collection of the arrears of

$261,000.00 to the Copiah County Child Support Enforcement Office

(CCCSEO), a subdivision of the Mississippi Department of Human

Services (MDHS).

Cuvillier alleges that she made “repeated inquiries” regarding

the status of her claims, but that CCCSEO failed to pursue them.

On or after June 12, 2002, however, CCCSEO filed a court action

against Harrison to collect the child support.1 Unfortunately,

Harrison died on November 21, 2002, before the case could be heard

1

The complaint alleges that “the claims herein were fraudulently

concealed by one or more of the Defendants, and Plaintiff, although exercising

reasonable diligence, was not able to know or discover her claim until after

June 12, 2002", and that defendants Sullivan (CCCSEO Child Support Enforcement

supervisor) and Polk (Regional Director, Child Support Enforcement, MDHS) had

“repeatedly assured Plaintiff that they were attempting to collect the

arrears.”

2

in court. His estate did not pay any of the arrears.

Cuvillier (proceeding pro se, here and below) filed this suit

on Monday, June 13, 2005, under 42 U.S.C. § 1983 against various

CCCSEO employees and MDHS officials: Donald Taylor, Executive

Director of MDHS; Johnnie Sullivan, supervisor of CCCSEO Child

Support Enforcement; Elmira Williams and Sherry Jackson, both

CCCSEO caseworkers; Hugh Redhead, attorney for CCCSECO Child

Support Enforcement; Richard Harris, Director of Child Support

Enforcement at MDHS; and Betty Polk, the MDHS Regional Director of

Child Support Enforcement MDHS. Cuvillier asserted a deprivation

of rights secured by various provisions of Title IV-D of the Social

Security Act, 42 U.S.C. §§ 651–669b, and 45 C.F.R. §§ 303.3, 303.6,

alleging specifically that:

“Defendants’ deliberate and intentional decision to take

no action on collection of the child support arrears

which was due to plaintiff’s children; and Defendants’

failure to inform plaintiff of that decision, so that

plaintiff could pursue other means of collection;

resulted in plaintiff being deprived forever of her

opportunity to collect support from Robert Ray Harrison.”

On August 8, 2005, Defendants moved for dismissal of

Cuvillier’s complaint under Federal Rule of Civil Procedure

12(b)(6) for failure to state a claim, arguing that Title IV-D did

not create a privately enforceable federal right, as indicated by

Blessing v. Freestone, 117 S.Ct. 1353 (1997). Cuvillier filed a

reply to the motion on August 25, 2005. On September 23, 2005,

Defendants filed “Defendants’ Second Motion To Dismiss,” under Rule

3

12(b)(6) urging as additional grounds that—even if the relevant

Title IV-D provisions secure individual rights—the applicable

statute of limitations and Eleventh Amendment immunity barred

Cuvillier’s claim. Cuvillier filed a response to the second motion

on October 5, 2005.

The district court granted Defendants’ second motion to

dismiss in an opinion and order filed November 15, 2005.2 The

court concluded, “without considering whether plaintiff can

maintain a claim under title IV”, that “any such putative claim

would be time barred under the applicable statute of limitations.”

Determining that the applicable limitations period was three years,

the district court noted that, because Cuvillier filed suit on June

13, 2005, her claim “should have accrued sometime after June 13,

2002.” The court found, however, that Cuvillier’s claim accrued

much earlier:

“Federal regulation promulgated in accordance with Title

IV-D provides that state IV-D agencies must take action

to enforce support obligations no later than 60 days

after the agency is notified of a delinquency. 45 C.F.R.

§ 303.6(b)(2). Plaintiff alleges that Defendants were

first apprised of Mr. Harrison’s delinquency in February

1994. Therefore, Defendants allegedly violated

Plaintiff’s Title IV-D rights no later than May 1, 1994,

when Defendants failed to act within 60 days. Further,

Plaintiff alleges that she made repeated inquiries to

Defendants prior to June 12, 2002, the date Defendants

began legal proceedings against Mr. Harrison. Thus, the

Court can reason that Plaintiff was aware of the alleged

violation of her statutory right and the resulting injury

prior to June 13, 2002.”

2

The court’s November 15, 2005 order states that the case “is before the

Court on” Defendants’ first and second motions to dismiss.

4

The district court also addressed Cuvillier’s argument that

the Defendants’ fraudulent concealment prevented her from

discovering her claims until after June 12, 2002. Observing that

it was only necessary that Cuvillier knew the facts that would

support a claim, the Court concluded that because she had

repeatedly made inquiries regarding what action was being taken,

Cuvillier was “aware of the fact that Defendants were not pursuing

her claims in a timely manner more than three years before she

filed this suit.”

The district court entered final judgment and dismissed the

action with prejudice on November 15, 2005. Cuvillier timely filed

notice of appeal on December 14, 2005.

DISCUSSION

I. STANDARD OF REVIEW

We review de novo a district court’s dismissal under Rule

12(b)(6).3 Hosein v. Gonzales, 452 F.3d 401, 403 (5th Cir. 2006)

(per curiam). “In doing so, we accept as true the well-pleaded

factual allegations in the complaint.” Causey v. Sewell Cadillac-

Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004). To survive a

Rule 12(b)(6) motion to dismiss, a complaint “does not need

detailed factual allegations,” but must provide the plaintiff’s

grounds for entitlement to relief—including factual allegations

3

Under Rule 12(b)(6), a court may dismiss an action for “failure to

state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6).

5

that when assumed to be true “raise a right to relief above the

speculative level.”4 Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955,

1964–65 (2007). Conversely, “when the allegations in a complaint,

however true, could not raise a claim of entitlement to relief,

‘this basic deficiency should . . . be exposed at the point of

minimum expenditure of time and money by the parties and the

court.’” Twombly, 127 S.Ct. at 1966 (quoting 5 CHARLES ALAN WRIGHT &

ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1216, at 234 (quoting

Daves v. Hawaiian Dredging Co., 114 F. Supp. 643, 645 (D. Haw.

1953) (internal quotation marks omitted)). We may affirm a

district court’s Rule 12(b)(6) dismissal on any grounds raised

below and supported by the record. Hosein, 452 F.3d at 403; see

also R2 Invs. LDC v. Phillips, 401 F.3d 638, 642 (5th Cir. 2005).

II. STATUTE OF LIMITATIONS

Because Congress has not specified a limitations period for

section 1983 suits, in such cases “federal courts borrow the forum

state’s general personal injury limitations period.” Piotrowski v.

City of Houston, 51 F.3d 512, 514 n.5 (5th Cir. 1995). The

relevant limitations period in Mississippi is three years from the

4

In the past, this court has frequently used the expression that a case

will not be dismissed “‘unless it appears beyond doubt that the plaintiff can

prove no set of facts in support of his claim which would entitle him to

relief.’” E.g., Kennedy v. Tangipahoa Parish Library Bd. Of Control, 224 F.3d

359, 365 (5th Cir. 2000) (quoting Conley v. Gibson, 355 U.S. 41, 45-46

(1957)). The Supreme Court, however, recently retired Conley’s “no set of

facts” language. Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1969 (2007)

(stating that “[t]he phrase is best forgotten as an incomplete, negative gloss

on an accepted pleading standard”).

6

day the cause of action accrues. MISS. CODE ANN. § 15-1-49 (2003)5;

see also James v. Sadler, 909 F.2d 834, 836 (5th Cir. 1990) (in §

1983 suit, finding “the three year residual period provided by

Section 15-1-49, Miss. Code Ann. applies”). The limitations period

starts to run when the plaintiff becomes aware or has sufficient

information to know that he or she suffered an injury. Piotrowski,

51 F.3d at 516. Relying on 45 C.F.R. § 303.6(c)(2),6 the district

court concluded that this three-year period ran from May 1, 1994.

On appeal, Cuvillier asserts that the limitations period began to

run much later: from June 12, 2002, when she “first learned from

MDHS that no prior legal collection actions at all had commenced

until that date.”7

We decline to decide this case on statute of limitations

grounds. First, we find it unnecessary to do so since, as we

5

Mississippi Code 1972 Annotated § 15-1-49, “Limitations applicable to

actions not otherwise specifically provided for,” states in pertinent part

that “[a]ll actions for which no other period of limitation is prescribed

shall be commenced within three (3) years next after the cause of such action

accrued, and not after.”

6

The district court cited 45 C.F.R. § 303.6(b)(2) for the proposition

that “state IV-D agencies must take action to enforce support obligations no

later than 60 days after the agency is notified of a delinquency.” However,

the correct citation appears to be § 303.6(c)(2).

7

Defendants argue that even if Cuvillier is correct that her cause of

action accrued on June 12, 2002, the three-year limitations period bars her

suit because she did not file her complaint until June 13, 2005, one day after

three years had passed. As Cuvillier points out, however, this argument

overlooks the fact that June 13, 2005 was a Monday. Therefore, the case was

properly filed under Federal Rule of Civil Procedure 6(a), which states in

pertinent part that when computing a period of time allowed “by any applicable

statute,” “The last day of the period so computed shall be included, unless it

is a Saturday, a Sunday, or a legal holiday, . . . in which event the period

runs until the end of the next day which is not one of the aforementioned

days.”

7

explain below, Cuvillier has not asserted a federal right

enforceable under section 1983. Second, it is less than clear that

the 12(b)(6) dismissal on limitations grounds was appropriate.

Using the same standard as the district court, we “must look only

at the pleadings and accept all allegations in them as true.” St.

Paul Ins. Co. v. AFIA Worldwide Ins. Co., 937 F.2d 274, 279 (5th

Cir. 1991) (contrasting the standard for Rule 12(b)(6) motions to

dismiss with that for summary judgment motions under Federal Rule

of Civil Procedure 56). Cuvillier alleges in her complaint and on

appeal that when she made inquiries regarding attempts to collect

the past due child support, CCCSEO officials assured her that they

were taking action and fraudulently concealed from her the claims

alleged in her complaint. She claims that consequently she was

unable to discover her claims before June 12, 2002.8 For purposes

of the instant appeal we therefore assume arguendo that Cuvillier

brought her suit before the limitations period expired. We proceed

to consider whether the Title IV-D provisions relied on by

Cuvillier give her federal rights.

III. TITLE IV-D and 42 U.S.C. § 1983

Section 1983 makes liable anyone who, “under color of state

8

Moreover, as Cuvillier points out, although the district court

correctly noted that 45 C.F.R. § 303.6(c)(2) states that when service of

process is necessary, enforcement action must be taken “within no later than

60 calendar days of identifying a delinquency,” the district court omitted the

end of that provision, which makes clear that enforcement action must be taken

within 60 days of whichever occurs later—identifying a delinquency or

identifying “the location of the noncustodial parent.”

8

law, deprives a person ‘of any rights, privileges, or immunities

secured by the Constitution and laws.’” Blessing v. Freestone, 117

S.Ct. 1353, 1359 (1997). The Supreme Court has held that this

provision protects certain rights conferred by federal statutes.

Id. Violation of a federal law is insufficient for redress through

section 1983; a plaintiff must assert violation of a federal right.

Id. Three factors set out in Blessing provide guidance in

determining whether a statutory provision gives rise to an

individual federal right:

“First, Congress must have intended that the provision in

question benefit the plaintiff. Wright, 479 U.S., at

430, 107 S.Ct., at 773-774. Second, the plaintiff must

demonstrate that the right assertedly protected by the

statute is not so ‘vague and amorphous’ that its

enforcement would strain judicial competence. Id., at

431-432, 107 S.Ct., at 774-775. Third, the statute must

unambiguously impose a binding obligation on the States.

In other words, the provision giving rise to the asserted

right must be couched in mandatory, rather than

precatory, terms. Wilder, supra, at 510-511, 110 S.Ct.,

at 2517-2518; see also Pennhurst State School and

Hospital v. Halderman, 451 U.S. 1, 17, 101 S.Ct. 1531,

1539-1540, 67 L.Ed.2d 694 (1981) (discussing whether

Congress created obligations giving rise to an implied

cause of action).” Id. at 1359–60.

Once a plaintiff demonstrates that a federal statutory provision

creates an individual right, a rebuttable presumption exists that

the right is enforceable under section 1983. Id. at 1360.

In Blessing, five Arizona mothers with children eligible for

Title IV-D child support services claimed that the state child

support “agency never took adequate steps to obtain child support

9

payments from the fathers of their children.” Id. at 1358. The

Ninth Circuit had determined that the mothers had an enforceable

individual right to have the state’s child support program “achieve

‘substantial compliance’ with the requirements of Title IV-D.” Id.

at 1356.

The Supreme Court disagreed. Id. First, the Court stated

that Title IV-D could not be analyzed “so generally.” Id.; see

also id. at 1360 (commenting that “the lower court’s holding that

Title IV-D ‘creates enforceable rights’ paints with too broad a

brush”). The Court emphasized that the plaintiffs needed to

“identify with particularity the rights they claimed, since it is

impossible to determine whether Title IV-D, as an undifferentiated

whole, gives rise to undefined ‘rights.’” Id. at 1360 (emphasis

added).

Second, the Court held that “Title IV-D does not give

individuals a federal right to force a state agency to

substantially comply with Title IV-D.” Id. at 1356. In making

this determination, the Court observed that the five mothers were

not intended beneficiaries of the statutory provisions on which

they relied: “[T]he requirement that a State operate its child

support program in ‘substantial compliance’ with Title IV-D was not

intended to benefit individual children and custodial parents, and

therefore it does not constitute a federal right.” Id. at 1361.

The Court explained that the “substantial compliance” standard is

10

“simply a yardstick for the Secretary to measure the systemwide

performance of a State’s Title IV-D program”; that even when a

state meets the substantial compliance standard, “any individual

plaintiff might still be among the 10 or 25 percent of persons

whose needs ultimately go unmet”; and that, assuming a state falls

below the standard, the Secretary can only reduce the state’s

funding by up to five percent. Id. Title IV-D “may ultimately

benefit individuals who are eligible for Title IV-D services, but

only indirectly.” Id. Further, the Court noted that regulations

requiring state child support enforcement units to have “sufficient

staff” espouse an “undefined standard” that would strain judicial

competence if enforced through section 1983. Id. at 1362.

While the Court concluded that the Arizona mothers had failed

to establish that Title IV-D gave them federal rights, the Court

nevertheless declined to foreclose the possibility that some Title

IV-D provisions might give rise to individual rights. Id. The

Court stated:

“For example, respondent Madrid alleged that the state

agency managed to collect some support payments from her

ex-husband but failed to pass through the first $50 of

each payment, to which she was purportedly entitled under

the pre-1996 version of § 657(b)(1). Although § 657 may

give her a federal right to receive a specified portion

of the money collected on her behalf by Arizona, she did

not explicitly request such relief in the complaint.”

Id. (citation omitted).

The Court concluded that, regardless of whether any Title IV-D

provisions secure a federal right, the five Arizona mothers had not

11

clearly alleged a violation of any such particular right. See id.

(sending the case back to the district court to “determine exactly

what rights, considered in their most concrete, specific form,

respondents are asserting”).

In the instant case, Cuvillier cites several specific

statutory provisions that she claims support her contention that

Title IV-D gives her a federal right to child support or child

support collection. These are: 42 U.S.C. §§ 651–652(a)(1), (h) and

654(4)(B),(13).9 Cuvillier asserts that these specific provisions

9

42 U.S.C. § 651, “Authorization of appropriations,” states:

“For the purpose of enforcing the support obligations owed by

noncustodial parents to their children and the spouse (or former

spouse) with whom such children are living, locating noncustodial

parents, establishing paternity, obtaining child and spousal

support, and assuring that assistance in obtaining support will be

available under this part to all children (whether or not eligible

for assistance under a state program funded under part A of this

subchapter) for whom such assistance is requested, there is hereby

authorized to be appropriated for each fiscal year a sum

sufficient to carry out the purposes of this part.” 42 U.S.C.A. §

651 (West 2003).

42 U.S.C. § 652(a)(1) states:

“(a) Establishment of separate organizational unit; duties

The Secretary shall establish, within the Department of Health

and Human Services a separate organizational unit, under the

direction of a designee of the Secretary, who shall report

directly to the Secretary and who shall—

(1) establish such standards for State programs for locating

noncustodial parents, establishing paternity, and obtaining

child support and support for the spouse (or former spouse)

with whom the noncustodial parent’s child is living as he

determines to be necessary to assure that such programs will

be effective;” 42 U.S.C.A. § 652(a)(1) (West Supp. 2007).

Subsection (h) of 42 U.S.C. § 652 states:

“(h) Prompt State response to requests for child support

assistance

The standards required by subsection (a)(1) of this section shall

include standards establishing time limits governing the period or

periods within which a State must accept and respond to requests

(from States, jurisdictions thereof, or individuals who apply for

services furnished by the State agency under this part or with

12

satisfy Blessing’s three factor test. We disagree and conclude

that Cuvillier has not shown that these statutory sections give her

a federal right.

Although we have not addressed post-Blessing whether the Title

IV-D provisions relied on by Cuvillier give rise to individual

federal rights, we note that the Sixth Circuit faced an appeal

similar to Cuvillier’s in Clark v. Portage County, Ohio, 281 F.3d

602 (6th Cir. 2002).10 The plaintiff in Clark brought suit under

respect to whom an assignment pursuant to section 608(a)(3) of

this title is in effect) for assistance in establishing and

enforcing support orders, including requests to locate

noncustodial parents, establish paternity, and initiate

proceedings to establish and collect child support awards.” Id. §

652(h).

The portions of 42 U.S.C. § 654, “State plan for child and spousal support,”

cited by Cuvillier state:

“A State plan for child and spousal support must—

. . .

(4) provide that the State will—

...

(B) enforce any support obligation established with

respect to—

(i) a child with respect to whom the State provides

services under the plan; or

(ii) the custodial parent of such a child;

. . .

(13) provide that the State will comply with such other

requirements and standards as the Secretary determines to be

necessary to the establishment of an effective program for

locating noncustodial parents, establishing paternity, obtaining

support orders, and collecting support payments and provide that

information requests by parents who are residents of other States

be treated with the same priority as requests by parents who are

residents of the State submitting the plan;” Id. § 654(4) & (13).

10

Post-Blessing, a few other sister circuits have faced issues related

to child support under Title IV-D. For example, the Eighth Circuit held that

42 U.S.C. § 657 “does not create an individual right to distribution in strict

compliance with its terms.” Walters v. Weiss, 392 F.3d 306, 313 (8th Cir.

2004). More recently, in Arrington v. Helms, 438 F.3d 1336, 1347 (11th Cir.

2006), the Eleventh Circuit concluded that 42 U.S.C. § 657 “does not confer a

private right to distribution of child support payments enforceable under §

1983.” The circumstances presented to the Sixth Circuit in Clark, however,

13

section 1983 claiming that county officials “failed to provide the

enforcement services required to collect outstanding child support

payments in violation of Title IV-D.” 281 F.3d at 603. The

plaintiff relied on 42 U.S.C. § 654(4)(B)—relied on by Cuvillier in

this case—and 42 U.S.C. § 654(8) as statutory provisions giving her

the right to sue under section 1983, and asserted that 45 C.F.R. §§

303.3 and 303.6—also relied on by Cuvillier—evidenced this federal

right. Id. at 604. The Sixth Circuit concluded that the cited

statutory provisions did not give rise to an individual right to

sue because “the Plaintiff’s claimed interests, like those of the

plaintiffs in Blessing, are so vague and amorphous as to be beyond

the competence of the judiciary to enforce on behalf of

individuals.” Id. The court explained further:

“For example, the state plan requirements in § 654(4)(B)

do not make it clear whether an individual right would

arise based on the alleged inadequacy of the state plan’s

wording or from a deficiency in the enforcement efforts

of the agency. The lack of such parameters indicates

that, regardless of whether the Plaintiff is an intended

beneficiary of Title IV-D, Congress did not intend to

give her a private right of action to challenge agency

actions.” Id. at 604–05.11

We agree with the Sixth Circuit in Clark that “the simple lack

of effectiveness by a state in enforcing support obligations does

are most comparable to those currently before us, and Cuvillier does not rely

on 42 U.S.C. § 657.

11

The court did not actually decide whether the plaintiff was an

intended beneficiary of Title IV-D. See 281 F.3d at 604 (assuming the

plaintiff to be an intended beneficiary—“a question we need not decide”).

14

not alone give rise to an individual right.”12 Id. at 605.

Cuvillier may in some sense be a beneficiary of the Title IV-D

provisions that she cites, but Congress did not intend by those

provisions to give her an individual right enforceable through a

section 1983 suit. Gonzaga University v. Doe, 122 S.Ct. 2268

(2002), instructs this result.13 In Gonzaga University, the Supreme

Court made clear that courts should not read Blessing too broadly.

That is, the Court noted that some courts had read Blessing “as

allowing plaintiffs to enforce a statute under § 1983 so long as

the plaintiff falls within the general zone of interest that the

statute is intended to protect.” 122 S.Ct. at 2275; see also S.D.

ex rel. Dickson v. Hood, 391 F.3d 581, 602 (5th Cir. 2004). But in

Gonzaga University the Court clarified the standard for finding a

right enforceable under section 1983: “We [] reject the notion that

our cases permit anything short of an unambiguously conferred right

to support a cause of action brought under § 1983. . . . [I]t is

rights, not the broader or vaguer ‘benefits’ or ‘interests,’ that

12

We note that, while the Sixth Circuit in Clark found the plaintiff’s

asserted rights too “vague and amorphous” and compared this deficiency to the

interests of the Arizona mothers in Blessing, we have previously concluded

that Blessing “never reached the vague-and-amorphous question because it found

that the plaintiffs had not ‘identified with particularity the rights they

claimed.’” Evergreen Presbyterian Ministries Inc. v. Hood, 235 F.3d 908, 930

n.28 (5th Cir. 2000).

13

In Gonzaga University, the Court considered whether a student may sue

a private university for damages under section 1983 based on provisions of the

Family Educational Rights and Privacy Act of 1974 (FERPA), 88 Stat. 571, 20

U.S.C. § 1232g, that “prohibit the federal funding of educational institutions

that have a policy or practice of releasing education records to unauthorized

persons.” 122 S.Ct. at 2271.

15

may be enforced under the authority of that section.” 122 S.Ct. at

2275. Thus the Court made clear in Gonzaga University that

individuals may be beneficiaries even though Congress did not

confer a right on them.14 This, we conclude, is Cuvillier’s

situation.

Moreover, the language of the statutory provisions cited by

Cuvillier belies her assertion that Title IV-D gives her a federal

right to child support or child support collection on her behalf.

Specifically, the provisions’ language does not focus on the

individuals benefitted, but rather focuses entirely on the state

agency and what the agency should be doing. For example, 42 U.S.C.

§ 654(4) and (13) both focus on the state agency’s plan for child

and spousal support and the fact that such a plan should provide

for enforcement of support, for compliance with other requirements

necessary for an effective child support program, and for equal

treatment of information requests by residents and non-residents.

The subsections do not focus on the individual beneficiaries of the

state agency’s plan. This lack of focus on individuals like

Cuvillier counsels against finding a federal right. See Gonzaga

Univ., 122 S.Ct. at 2279 (statutory provisions had an “aggregate,

not individual focus”). Compare Evergreen Presbyterian Ministries

14

As we have previously noted, Gonzaga University illustrates that the

Supreme Court’s “approach to § 1983 enforcement of federal statutes has been

increasingly restrictive; in the end, very few statutes are held to confer

rights enforceable under § 1983.” Johnson v. Hous. Auth. of Jefferson Parish,

442 F.3d 356, 360 (2006), cert. denied, 127 S.Ct. 136 (2006).

16

Inc. v. Hood, 235 F.3d 908, 927 (5th Cir. 2000) (finding that

Medicaid recipients are intended beneficiaries of Medicaid Act

provision 42 U.S.C. § 1396a(a)(30)(A), “because the provision is

‘phrased in terms’ benefitting recipients in that it directly

focuses on their access to medical care” (citing Wilder v. Virginia

Hosp. Ass’n, 110 S.Ct. 2510, 2518 (1990))), with id. at 929

(concluding that section 30(A) does not confer an individual right

on health care providers “because the section does not focus

directly on providers”).

The existence of Cuvillier’s asserted federal right is all the

more clearly foreclosed considering that Title IV-D constitutes

spending legislation. As the Court made clear in Gonzaga

University, for a particular provision of a funding statute to give

rise to a federal right enforceable through section 1983, Congress

must have unambiguously conferred the right on the individual. See

122 S.Ct. at 2273 (stating that the Court has previously “made

clear that unless Congress ‘speak[s] with a clear voice,’ and

manifests an ‘unambiguous’ intent to confer individual rights,

federal funding provisions provide no basis for private enforcement

by § 1983” (citing Pennhurst State Sch. & Hosp. v. Halderman, 101

S.Ct. 1531, 1540, 1545 & n.21 (1981))). The FERPA provisions

relied on by the Gonzaga University plaintiff did not give rise to

the federal right he asserted in part because “they serve[d]

primarily to direct the Secretary of Education’s distribution of

17

public funds to educational institutions.” Id. at 2271–72, 2279.

Further, the relevant FERPA provisions’ “reference[s] to individual

consent is in the context of describing the type of ‘policy or

practice’ that triggers a funding prohibition.” Id. at 2278.

Cuvillier’s asserted right stands in contrast to the type of

situation that the Court in Blessing suggested might–or might not–

evidence a Title IV-D based right enforceable under section 1983.

See 117 S.Ct. at 1362 (suggesting that the pre-1996 version of 42

U.S.C. § 657(b)(1) might give the plaintiff a “federal right to

receive a specified portion of the money collected on her behalf by

Arizona”). In the situation referred to by the Court in Blessing,

the plaintiff had alleged “that the state agency managed to collect

some support payments from her ex-husband but failed to pass

through the first $50 of each payment,” to which she claimed

entitlement until Title IV-D. Id. Thus, the plaintiff in Blessing

alleged that the state agency had effectively taken away from her

specific funds in its possession which the statute made her

property. Here, in Cuvillier’s case, the state agency simply did

not do anything.

Lastly, we reject Cuvillier’s reliance on 45 C.F.R. § 303.3

and § 303.6. Both of these sections are within part 303 of 45

C.F.R. Ch. III (2002). Section 303.00 (“Scope and applicability of

this part”) states that:

“This part prescribes:

(a) The minimum organizational and staffing

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requirements the State IV-D agency must meet in carrying

out the IV-D program, and

(b) The standards for program operation which the

IV-D agency must meet.”

Thus, these regulations are focused on and directed at, and speak

to, the State and its program, not at or to individual

beneficiaries. Section 303.3 (“Location of noncustodial parents”)

provides that “the IV-D agency must attempt to locate all

noncustodial parents,” § 303.3(b), and “[w]ithin no more than 75

calendar days of determining that [knowing the noncustodial

parent’s] location is necessary [to enforcement] . . . ensure that

location information is sufficient to take the next appropriate

action in a case.” Section 303.6 states that “the IV-D agency must

maintain and use an effective system for: . . . (c) Enforcing the

obligation by: . . . (2) [t]aking any appropriate enforcement

action . . . unless service of process is necessary . . . within no

more than 30 calendar days of identifying a delinquency . . . or

the location of the noncustodial parent, whichever occurs later.

If service of process is necessary . . . service must be completed

(or unsuccessful attempts to serve process must be documented . .

.), and enforcement action taken if process is served, within no

later than 60 calendar days of identifying a delinquency . . . or

the location of the noncustodial parent, whichever occurs later.”

Again, this is directed to the state and its focus is on the

state’s “maintenance and use” of “an effective system” (emphasis

added). The mandate is for the state to maintain a child support

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system. These regulations simply do not purport to create an

individual federal right in beneficiaries.15

No doubt Congress meant for individuals like Cuvillier to fall

within the sphere of Title-IV’s benefits. As Gonzaga University

indicates, however, this circumstance is insufficient to find a

federal right secured by the statutory scheme. Congress did not

intend the provisions Cuvillier relies on to give rise to an

individual federal right to child support or child support

collection.

CONCLUSION

Because we find that Cuvillier has not asserted a violation of

a federal right for which redress may be sought under 42 U.S.C. §

1983, we affirm the district court’s dismissal of this suit.

AFFIRMED.

15

We also note that in Arrington v. Helms, 438 F.3d 1336, 1340 n.4 (11th

Cir. 2006), the Eleventh Circuit held that regulations under Title IV-D could

not create rights enforceable under § 1983 because the statute in relation to

which regulations were adopted did not create such rights. “If the statute at

issue does not create rights enforceable under 42 U.S.C. § 1983, then neither

do the regulations adopted under that statute.” Id.

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