Petition for Writ of Certiorari — Kitchens v. Bowen

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8 4 87 6 ‘) Supreme Court, U.S.

FILED

NOV 14 98T

No. JOSEPH F. SPANIOL, JR

LER

In the Supreme Court

of the United States

OCTOBER TERM, 1987

RONNIE O. KITCHENS, et al.,

Petitioners,

OTIS R. BOWEN,

SECRETARY OF HEALTH AND HUMAN

SERVICES, UNITED STATES OF AMERICA, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PHILIP FREDERICK SCHUSTER, II

Counsel of Record

ROGER FREDRICK DIERKING

Attorneys for Petitioners

1500 N.E. Irving Street, Suite 540

Portland,OR 97232

(503) 231-7765

November 12, 1987

STEVENS-NESS LAW PUBLISHING CO., PORTLAND, OR. 97204 e711

QUESTIONS PRESENTED

l. Are persons designated as biological

fathers of children born out-of-wedlock

constitutionally entitled to notice of

actions mandated by federal Social

Security AFDC regulations which implicate

their rights at the Title IV-A application

for assistance stage?

ae Is the Secretary of Health and Human

Services, rather than the states,

responsible, under the AFDC statutes and

principles of cooperative federalism, for

directing that notice be provided to these

designated biological fathers?

ii.

PARTIES TO THE PROCEEDINGS

IN THE COURT BELOW

The plaintiffs in the district court case

were the appellants in the court of

appeals. The named plaintiffs in

Kitchens, et al v. Bowen, et al were:

Ronnie O. Kitchens Glenn D. Rogie

Michael J. Callaghan Gerald E. Ryon

Gordon D. O'Dell John F. Moore

Robert W. Dickinson

The defendants in the district court were

the appellees in the court of appeals.

The named defendants in Kitchens, et al.

v. Bowen, et al were:

Otis R. Bowen, Secretary, Department of

Health and Human Services, United States

of America

Keith Putman, Administrator, Adult and

Family Services Division, Department of

Human Resources, State of Oregon

Jim Hunter, Administrator, Support

Enforcement Division, Department of

Justice, State of Oregon

iii.

TABLE OF CONTENTS

QUESTIONS te ease eek a oe Oe ee

PARTIES TO THE PROCEEDINGS IN THE

COURT EG a a

TABLE OF AUTHORITIES... ccccccccece

OPINIONS Decne bee eeeeeekeseeee

PTE ec hob eeéeesee 6a eeeeees

CONSTITUTIONAL, STATUTORY AND

REGULATORY PROVISIONS INVOLVED....

Cr beee

Bs Te ee

2. The AFDC Title IV-A Program Is

MOCROMAL FH SSGOEsccccccceccc

3. The State Child Support Enforce-

ment - Title IV-D - Proceedings

Are Both Interstate and Intra-

SESCSEIS. CHSEOCCELE ccec ccsscccve

4. The Proceedings In This Case.

REASONS FOR GRANTING THE WRIT......

I. The Conflicts Are Substantial.

II. The Issues Have National

DE ewes ose See seeeecees

page

iv.

A. Federal Regulations Impli-

cate Substantial Fifth and

Fourteenth Amendment Due

Process Property Rights of

Designated Fathers at The

Title IV-A AFDC Application

For Assistance Stage....... 24

B. Federal Regulations Impli-

cate Substantial Fifti: and

Fourteenth Amendment Due

Process Personal Interests

of Designated Fathers at

The Title IV-A AFDC Appli-

cation For Assistance Stage 28

C. Federal Regulations Fail To

Afford Designated Fathers

Their Fifth and Fourteenth

Amendment Procedural Due

Process Rights to Notice... 32

III. The Federal Action Test

Employed By The Court of

Appeals To Dismiss This Case

Conflicts With Decisions Of

This Court and With Other

Courts of AppealS.....cceceeee 4G

IV. The Younger Abstention

Doctrine Is Inapplicable...... 5@

CoE Ras 6 cece ce od 666d 06 DHSS O® 52

LRN INI EN AIRE SER wy

Appendix A:

Appendix B:

Appendix C:

Appendix D:

Vv.

APPENDICES

Opinion@®f the Ninth

Circuit \Court of Appeals A-1

Judgment Order of the

Ninth Circuit Court of

0 ae A-23

Opinion of the United

States District Court for

the District of Oregon. B-1

Order of the United

States District Court for

the District of Oregon. B-10

Judgment of the United

States District Court

for the District of

og ee ee re ee ee B-11l

U.S. Magistrate's Find-

ings and Recommendations C-1

Constitutional Provisions D-l

Statutory Provisions D-2

Regulatory Provisions -D-16

vi.

TABLE OF AUTHORITIES ©

CASES

Abbott Laboratories v. Gardner,

7 US 136 [RTT edhekaveueudes é ee

Armstrong v. Manzo, 388 US 545,

167 Sp.Ct. Rptr 3001 (1965).......

Beck v. Communications Workers of

America (C.W.A.), 776 F2d 1187

(4th ny Tg Ren 54460666665 0646680060

Blum v. Yaretsky, 547 US 991

page

45,46

PRO) és week oksedee66eteene 18,19,40,43,46

Bowen v. Yuckert, 482 US , 96

LEG2ZG 119 (1987) )cccccccccccse 22,397,477

Caban v. Mohammed, 441 US 388

(1 Peeeeeeseseeseceeseeseseseces

Califano v. Sanders, 438 US 99

Te et tadab ebads éads 6666000406460 660

City of Claremont v. Truell, 126

N.H. “36, 489 A2da 581 (1985) ws. eee

Clearfield Trust Co. v. United

States, 318 US 363 (1943) .cccceceee

Dandridge v. Williams, 397 US 471

DEEN cid aeeekeasewaseassensenees

Duncan v. Peck, 752 F2d 1135

(6th CEE « DEN 6¢ 0 e6eh6o0008 000666

AEE Cg Bere

vil.

Finnerty v. Boyett, 469 S2d 287,

(La.App. 2d Cir BPOOl 6eeedeosecses 3¢

Fuentes v. Shevin, 487 US 66 (1972) 33

Goldberg v. Kelly, 397 US 254

Pe 32

Hillsborough County v. Automated

Med. Labs., 471 US 707 (1985)..... 48,49

In Re Baby Girl Eason, Ga P

358 SE2d 459 vs) pene 30

Juidice v. Vail, 43@ US 327 (1977) 58

King v. Smith, 392 US 309 (1968)... 48

Lehr v. Robertson, 463 US 248

(198 3} 00066 6beseseceosseon 4,21,28,29,38,35

Little v. Streater, 452 US 1 (1981) 33

Lloyd v. Lloyd, 731 F2d 393 (7th

Gans Di ihindD semen aedesace see 46

Lugar v. Edmondson Oil Co., Inc.,

457 U 922 (1982) 18,19,22,40,42,44,45,46

Lukhard v. Reed, 481 US ’

95 LEd2d 328 Pett ith anc bkieeeeeeees 9,48

Mathews v. Eldridge, 424 US 319

II ie ee ei cle 19,34

Mitchell v. W.T. Grant Company,

416 US 600 eR eee i 36

viil.

Moore v. City of East Cleveland,

Ohio, 431 US 494 (1977) ..eeereeeee

New York State Dept. of Social

Services v. Dublino, 413 US 465

(1973) eccccccccccesecescccesescece

Pennzoil Co. v. Texaco, Inc., 481

US (95 LEd2d 21) (1987)

Rendell-Baker v. Kohn, 457 US 8380

[LSE SZ) ccecescesesesesseees 18,19,49,43,46

Rivera v. Minnich, 483 US aT"

LEd2d 473 DT) tihsesdadadsbncsiccs

Rodriguez v. Compass Shipping Co.,

Ltd., 451 US 596 (1981) .ecccceeeee

Roudybush v. Zabel, 813 F2d 173

(8th Cio LOST cccccccecceseeeocsce

Santosky v. Kramer, 455 US 745

(1982) .ccccccccccccesccccccececsees

Stanley v. Illinois, 405 US 645

(1972) cc cccccccccccccccscccese

United Mine Workers of America v.

“Gibbs, 383 US 715 (1966). .cccoeeee

Younger v. Harris, 401 US 37 (1971)

4,28,31

'e.

CONSTITUTION

United States Constitution

ASEICLO VI, ClOUSE Zesccsccccscesces 3,36

Fifth Amendment.......... 3,14,15,16,24,32

Fourteenth Amendment.......... 3,16,24,32

STATUTES

Act of August 14, 1935, 49 Stat. 627 9

42 USC § 601-615... cc cccccccccccees 9

Act of January 4, 1975, 88 Stat. 2351 12

42 USC § 651-667... cc ccccccccccccee 12

42 USC cod PERE TETUELEEETUO TTC 3,23

O62 (8) (4) wcccsccccccess 3,39,48

RP tOe CR 6 wad cecassdsoene 3,37

602(a) (7) (A)......2- 3,11,27,28,35

O82 (8) (11)) wccccccccces 3,39,48

Ce ee Cae? Cl <b bbeceseces 3,16

602 (a) (26) (B)..... 22.0 0ee 3,11

CPF COP Cd ebecdeccccsecesos 3,39

RaGCEPUM) bo 6besscecceee 3,13,33

CRU ENT GE) ect peccecesveces 3,13

GUO ER CS) cccccccsasease 3,13,25

5 OVE TEP UT TT Tee errr ee 3,37

PUP iweteeeeneeeeh xeees 2,433,485

20 USC QE APM) bec esecccetvanae 3

S- MBB eeesces 23,15,26,18,31,51

LDR isecessstssssssescass 8,15

2261-2282 .cccccccsccseces 2,15

5 usc ee Pee oa node babs dee ede ce 2,15

FR EeT GT LO bh ee ccdeaneoee 3ga7

REGULATIONS

45 CFR §@ 205.10 (a) (1)..eeeeeeeeene

206.38 (0) (43 (7) ccccaceses

pe ee) ee, Peery Seen

SSE LERCH ENS 1B) oc Knees

292 AS 18) (6) Chics kkccec 4

$55 Pi daccedtsccnuodewas

SEGUE. Ca ecccatnecanves

SSS ORNS O45 occa nsé uns

STR icc idies chances

ae, RR ay

SOS sa hackaceexeeinase

WR An ivckiciawuceteen

SY RR er EY he

S03. FUG) (AF 18) To cctccc

SOs OE ts hhc eaedssawxs

LEGISLATIVE HISTORY

S. Report 93-1356, 93rd Cong. 2nd

Sess.

Sisse 8146-8155 hg. } ere

S. Report 98-387, 98th Cong. 2nd

Sess.

2425 Si | ee ee ee ee

TEXTS

E. Buchanan, The Constitutional

Rights of Unwed Fathers Before and

After Lehr v. Robertson, 45 Ohio

St. L.eJ. DR” CEE Uw sd Wie caoGn cs

4,49

4,9,49

4,10

4,11

0,37,49

4,49

$31.33

4,11

4,49

1,33,46

4,10,46

4,46

1,33,46

4,13,14

‘33.5

ee ee tee ae ns

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1987

RONNIE O. KITCHENS, et al., Petitioners

OTIS R. BOWEN, SECRETARY OF HEALTH AND

HUMAN SERVICES, UNITED STATES OF

AMERICA, et al., Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

—

The petitioners, Ronnie O. Kitchens,

et. al., respectfully pray that a writ of

certiorari issue to review che sudsnent

and opinion of the United States Court of

Appeals for the Ninth Circuit, entered in

the above-entitled proceeding on Aug-

ust 20, 1987.

OPINIONS BELOW

eae The opinion of the Court of Appeals

for the Ninth Circuit is reported at 825

F2d 1337, and is reprinted in Appendix A

hereto.

The memorandum decision of the United

States District Court for the District of

———

Oregon (Redden, D.J.) has not been

reported. It is reprinted in Appendix B

hereto. The Findings and Recommendation

of the U.S. Magistrate is reprinted in

Appendix C hereto.

JURISDICTION

The petitioners invoked 28 USC ¢@

1331, 28 USC $6 2201-2202, 5 USC S& 761-

706, 28 USC g 1343 and 42 USC & 1983 in

bringing this suit in the District Court

for the District of Oregon. On June 25,

1986, the Oregon District Court dismissed

oetitioners' action.

On petitioners' appeal, the Ninth

Circuit Court of Appeals, on August 2G,

1987, entered a judgment and an opinion

affirming the Oregon District Court order

directing that petitioners' action be

dismissed,

The jurisdiction of this Court to

review the judgment of the Ninth Circuit

Court of Appeals is invoked under 28 USC 8

1254(1).

CONSTITUTIONAL, STATUTORY AND REGULATORY

PROVISIONS INVOLVED

The pertinent provisions of the

Supremacy Clause and Fifth and Fourteenth

Amendments of the United States Constitu-

tion, the Administrative Procedure Act, 5

USC § 766(2)(A)(B) and 28 USC $ 1331, the

Aid to Families with Dependent Children

(AFDC) Act, 42 USC ¢§ 6@1 and 662(a) (1),

(2),(3),(4),(5),(7) (A),(11), (26) (A) (B),

the Child Support Enforcement (CSE) Act,

42 USC & 653(a), 654(4)(A),(9) (A), 666(a)

(5) and 1302, the Civil Rights Act, 42 USC

s 1983, and the pertinent regulations im-

plementing the AFDC and CSE Acts by the

Secretary of Health and Human Services, 45

CFR $8 205.18(a)(1), 206.18 (a) (4)(7),

232,2140)3 01), -232cbd tapiasitahs 442642

(a)(g)(h), 232.45, 232.49, 233.26 {a){1),

235.70, 302.31, 3602.56, 383.4, 39363,

363.7(a)(1)(2)(3), 305.24(b), are set

forth in App. D infra, App. D-1 to D-24.

STATEMENT

| INTRODUCTION

This Court has formulated the prin-

ciples for determining the constitutional

rights of biological fathers, in cases

where termination of their parental rights

are implicated, from Stanley v. Illinois,

485 uS 645 (1972) to Lehr v. Robertson,

463 Us 248 (1983). Now the opposite

situation presents itself. Petitioners

are among hundreds of thousands of

biological fathers each year who are

involved, without their knowledge, in a

governmental welfare program of coopera-

tive federalism. Enormous conflict and

confusion is being caused for out-of-

wedlock children as well as biological

fathers. This Social Security program,

known as Aid For Families with Dependent

Children (AFDC), on the one hand assists

needy, dependent out~-of-wedlock children.

On the other hand, however, these bio-

logical fathers (hereinafter distinguished

as designated fathers) are not being

united with their children in an

expeditious manner as Congress intended,

The program by which the government

provides assistance to children and iden-

tifies and targets designated fathers for

filiation prosecution is the Title IV-A

AFDC application for assistance process.

Congress intended for this Title IV-A pro-

gram to be a portal through which the

welfare family could be strengthened.

Designated fathers should be encouraged

and allowed, in a non-adversarial manner,

to come through this portal at this most

meaningful time to exercise their oppor-

tunity interests to form lasting

relationships with their children. The

rights of designated fathers become

implicated the moment applicants designate

them on government forms as responsible

for paying support to the children, and

the government targets them for filiation

prosecution. However, only in the limited

instance where the state agency finds it

necessary to investigate the applicants’

claimed ref\¥isal to cooperate, is contact

with designated fathers at the Title IV-A

stage directed by the Secretary. But

where paternity is to be established, the

Secretary has slammed the doorway of this

portal upon designated fathers by failing

to enact federaily mandated Title IV-A

notice requirements for State plans

applicable to designated fathers. Because

federal statutes now require that state

filiation statutes of limitation be

effectively abolished, these designated

fathers, many of whom are totally unaware

that they have become targeted by the

government for filiation prosecution, must

wait while their rights are held in limbo

for years and sometimes decades. Then,

when they are able, state Title IV-D Child

Support Enforcement agencies institute

adversarial filiation proceedings. By

then, any semblance of effective child

support enforcement and welfare recapture,

consistent with these childrens' best

interests, becomes a sham,

Clearly, the Secretary's regulations

are unconstitutional and out of harmony

with the intent of Congress and the goals

of the program to promote family stability

while achieving the expeditious determina-

tion of paternity and support obligations.

In a program of cooperative federalism

such as this, the Secretary must define

the sphere of enumerated national powers

in Title IV-A proceedings to enable the

states to exercise their residual powers

over domestic relations matters consistent

with a balanced federalism. There is

substantial basis for this Court to

require the Secretary to align his

regulations with the Constitution and the

Social Security Act by promulgating

regulations which ensure that designated

fathers are notified of their involvement

in this government program at the time

when assistance is first provided to

welfare children.

2s THE AFDC TITLE IV~-A PROGRAM IS

NATIONAL IN SCOPE.

The AFDC program, enacted by Congress

in 1935, Act of August 14, 1935, Cc. 531,

Title IV, 5 461 et seq, 49 Stat. 627, et

seq, as a cooperative federal-state

program to give assistance to needy

children, was established in Title IV-A of

the Social Security Act, 42 USC $$ 601 to

615. States must administer their

assistance plans in conformity with

applicable federal statutes and regula-

tions promulgated by the Secretary.

Lukhard v. Reed, 481 US ___, 95 LEd2d 328

(1987). The Secretary has provided

comprehensive Title IV-A notice procedures

for applicants. 45 CFR § 206.10 (a) (4)(7).

However, the Secretary has directed

contact with designated fathers at the

Title IV-A stage only for purposes of

investigating applicants' claims of "good

cause" for refusal to cooperate to

establish paternity. 45 CFR 2

232.43(g)(h).

Administrative and eligibility

requirements of the Secretary pertaining

to Title IV-A proceedings implicate the

personal and property rights of designated

fathers without giving them notice. These

regulations require the following: (1)

assignments by applicants to the state, of

Support rights against the designated

fathers, creating obligations owed to the

states, 42 USC § 682(a) (26) (A); 45 CFR §8

232.ll(a) (1), 302.5@0(a)(1)(2); (2) coop-

eration of applicants in the indentifica-

tion and location of designated fathers to

establish paternity and collect support

unless “good cause" exists for refusal to

do so, 42 USC § 662(a)(26)(B); 45 CFR &

232.12(a) (1) (2); (3) deciding grant

amounts for needy children based on

available income and resources of the

children, 42 USC § 602(a)(7) (A); 45 CFR 8

233.28 (a) (1) (i); and (4) targeting of

designated fathers by the Title IV-A AFDC

process and referral to the Title IV-D

Child Support Enforcement (CSE) agency for

prosecution of designated fathers through

paternity and support proceedings. 45 CFR

$$ 232.49; 302.31(a) (1) (2); 303.5(a).

3. THE STATE CHILD SUPPORT ENFORCEMENT --:

TITLE IV-D ~- PROCEEDINGS ARE BOTH INTER-

STATE AND INTRASTATE IN CHARACTER,

In 1975, Congress enacted the Child

Support Enforcement program, Social Ser-

vices Amendments of 1974, Act of Janu-

seq., 88 Stat. 2351, as Title IV-D of the

Social Security Act, 42 usc §8 651-667.

The CSE program is a federally financed

effort to assist the states with welfare

recovery through efficient prosecution of

paternity and child support claims. S.

Rep. 93-1356, 93rd Cong., 2nd Sess. 8133,

8146-8155, (1974).

Two to fourteen years after the Title

IV-A proceedings, and without prior notice

of the Title IV-A proceedings, the Oregon

Adult and Family Services Division filed

proceedings against the petitioners to

establish paternity and collect assistance

support obligations of $5,477 to $22,000.

These proceedings were allowed to be filed

at various times because of the statute

and regulations which require that the

State of Oregon permit the establishment

of paternity of any child prior to 18

years of age. 42 USC 8 666(a)(5); 45 CFR

e 305.24 (b). Paternity proceedings are

required to be filed in all cases except

where the state Title IV-A agency

determines, under the Secretary's

standards, that “good cause" exists not to

establish paternity. 42 usc § 654(4)(A).

Six of the petitioners’ cases in the

Oregon courts were intrastate situations.

The Title IV-A proceedings to provide aid

for the benefit of the children born out-

of-wedlock occurred in Oregon where the

designated fathers resided and where Title

IV-D paternity and support proceedings

were filed, The seventh case, involving

petitioner O'Dell, was an interstate

Situation. The child born out-of~wedlock

received Title IV-A benefits in Cali-

fornia, and, in accordance with federal

law, 42 usc § 654(9)(A), 45 CFR 8

303.7(a)(1)(2)(3), the Title IV-D pater-

nity and support collection actions were

filed in Oregon where the designated

father resided.

Two of the petitioners, Mr. O'Dell

and Mr. Rogie, have acknowledged paternity

and the state court proceedings in their

cases were terminated subject to federal

court rulings on their federal claims.

Proceedings against two other petitioners,

Mr. Callaghan and Mr. Ryon, were dismissed

upon stipulation of the parties. Motions

for summary judgment were granted by the

State of Oregon circuit court dismissing

paternity proceedings involving the other

three petitioners, Mr. Kitchens, Mr. Moore

and Mr. Dickinson. The circuit court

rulings were not dispositive of petition-

ers' federal claims that the federal

regulations deprive them of their Fifth

Amendment due process rights. A consoli-

dated appeal is now pending before the

Oregon Court of Appeals.

4. THE PROCEEDINGS IN THIS CASE.

In 1985, without suspension of the

State court filiation and child support

proceedings, the seven petitioners filed

this action against the Secretary of

Health and Human Services pursuant to 28

usc § 1331, 28 usc $$ 2201-2202, 5 usc 8&8

701-766, and 28 usc § 1343, and against

the Administrators of the Oregon Adult and

Family Services Division and Support

Enforcement Division pursuant to 42 usc 8

1983.

Petitioners invoked exclusive federal

court jurisdiction under 28 usc 8 1331 to

challenge the validity of the Secretary's

regulations in mandating actions that

affected their property and personal

rights without notice. Petitioners fur-

ther invoked federal court jurisdiction

under 28 USC § 1331 to determine whether

or not designated fathers possess substan-

tive Fifth Amendment due process rights

that must be protected by the Secretary's

regulations, or Fourteenth Amendment due

process rights that states must protect at

the time of the Title IV-A AFDC proceed-

ings. These rights include a property

right to be able to financially plan for

the children and an “opportunity interest"

to form relationships with their out-of-

wedlock children, at the earliest point of

government involvement with the welfare

family. Petitioners alleged deprivation

of these rights by the Secretary's

regulations to their injury. With respect

to the State of Oregon, the complaint

asked that the State be enjoined from

applying the invalid federal regulations

which involve them without notice.

On June 23, 1986, the District Court

issued its opinion dismissing petitioners'

complaint against the Secretary on the

basis cnet the designated fathers did not

challenge the validity of the federal

regulations that affected their rights.

(App. B at B-4). The District Court

recognized, however, that the lack of

notice affected the petitioners and that

this system postpones the giving of notice —

to designated fathers without simultane-

ously postponing their right to be heard

regarding the amount of assistance

payments provided which later on became

chargeable to designated fathers. (App. B

at B-4).

Notwithstanding this conclusion, the

District Court applied the rulings of this

Court in Blum v. Yaretsky, 457 US 991

(1982) and Rendell-Baker v. Kohn, 457 US

836 (1982) in concluding that there is no

federal action where "(t]he United States

does not coerce or significantly encourage

an omission of notice but leaves’ the

notice procedures to the states." (App. B

at B-6). The District Court further ruled

that the petitioners could raise their

federal claims in state court as a partial

defense to state proceedings and dismissed

the petitioners' claims under the Younger

abstention doctrine. (App. B at B-7).

On their appeal to the Ninth Circuit

Court of Appeals, petitioners stressed

that the challenged federal regulations

are made reviewable by—federal courts pur-

suant to 28 USC § 1331 and under the tests

of this Court in Lugar v. Edmondson Oil

Co., Inc., 457 US 922 (1982) and Mathews

v. Eldridge, 424 US 319, 335 (1976).

In its opinion of August 20, 1987,

the Court of Appeals affirmed the District

Court decision by applying the state

action principles of Blum v. Yaretsky,

Supra, and Rendell-Baker v. Kohn, supra,

and concluded that there was no required

showing of nexus to establish federal

action

“by showing that the [federal]

government exercised such coercive

power or such significant encourage-

ment that it is responsible for the

specific . . . conduct challenged, or

by showing that the [state defendants]

ha[ve] exercised powers’ that are

traditionally the exclusive preroga-

tive of the [federal] government."

(App. A at A-12).

The Court of Appeals also concurred

with the District Court's construction of

the Title IV-A statutes and Secretary's

regulations, adding that the Secretary's

Title IV-D CSE regulations ‘for state

paternity and support proceedings left to

the states the responsibility to give

designated fathers notice in the Title

IV-A proceedings. (App. A at A-~13).

Finally, the Court of Appeals invoked the

Younger abstention doctrine as _ to the

state defendants. (App. A at A-15).

REASONS FOR GRANTING THE WRIT

I. THE CONFLICTS ARE SUBSTANTIAL.

A conflict of major national concern

exists between the constitutional rights

of hundreds of thousands of designated

fathers and the Secretary's regulations

governing Title IV-A AFDC application for

assistance proceedings which omit a notice

requirement for designated fathers. The

regulations deter these designated fathers

from timely exercising their opportunity

to parent their out-of-wedlock children,

creating conflict and confusion within

the welfare family. In Lehr v. Robertson,

Supra, this Court defined the due process

rights of biological fathers, within the

context of state proceedings which gave

them control over the receiving of notice,

when their parental rights were termin-

ated. Here, the Court is presented with

the task of defining the due process

rights of men who are designated as

biological fathers, within the context of

a cooperative federal-state program which

involves them with the welfare program

without notifying them when assistance is

first provided. The concept of coopera-

tive federalism requires that the spheres

of responsibility for giving notice to

designated fathers be precisely defined by

the Secretary so as to avoid conflict and

to maintain a balance between the

national, enumerated powers and the

residual powers of the states regarding

domestic relations matters.

The Court of Appeals' decision raises

further conflict with the state (federal)

action rule of this Court announced in

Lugar v. Edmondson Oil Co., Inc. Supra.

The Court of Appeals failed to apply the

Lugar test, which is utilized by this

Court and other Courts of Appeals to find

state (federal) action where statutes or

regulations are directly challenged.

Also, in holding that states are

responsible for Title IV-A notice

procedures for designated fathers (App. A

at A-13), the court failed to construe the

statutes and regulations in a manner

consistent with rules of this Court.

Bowen v. Yuckert, 482 US ___, 96 LEd2d 119

(1987). These conflicts require resolu-

tion.

The

seeks

with the

children through the family structure.

involvement of all

paramount

Dandridge v.

THE ISSUES HAVE NATIONAL IMPORTANCE.

scope of the entire AFDC program

family members

goal being to help

Williams, 397 US

USC § 601;

471, 479 (1976).

fathers as parties

To exclude designated

entitled to notice at

the Title IV-A proceedings is unreasonable

and

early on in

sense in terms of achieving national

gram goals. The

compelled to

legislative

national, uniform

the AFDC Title IV-A

Congress' intent

interests of these

wedlock. Earlier

unconstitutional.

the AFDC program makes

carry

direction

Excluding them

pro-

Secretary should be

Out the implicit

to establish a

notice requirement at

stage, consistent with

to promote the best

children born out-of-

payment of child

support, prompted by more timely notice to

the designated fathers, will tend to pro-

mote the program goal of family stability

through the earlier creation of father-

Child bonding engendered by the earlier

payment of child support by biological

fathers. By recognizing the consti-

tutional rights of designated fathers to

receive notice, the conflict and confusion

now experienced by hundreds of thousands

of children born out-of-wedlock and

designated fathers each year will be

alleviated.

A. FEDERAL REGULATIONS IMPLICATE

SUBSTANTIAL FIFTH AND FOURTEENTH AMENDMENT

DUE PROCESS PROPERTY RIGHTS OF DESIGNATED

FATHERS AT THE TITLE IV-A AFDC APPLICATION

FOR ASSISTANCE STAGE. The property rights

of designated fathers are implicated at

the Title IV-A stage by force of federal

regulations which target them on state

forms as the individuals responsible for

paying support. That specific property

right which is implicated is ". .. the

primary interest « « « in avoiding the

serious economic consequences that flow

from a court order that establishes

paternity and its correlative obligation

to provide support for the child." Rivera

v. Minnich, 483 US , 97 LEd2d 473, 4890

(1987). Without notice, designated

fathers suffer a loss of their property

interests at the Title IV-A stage for two

reasons. First, Congress, in enacting the

current CSE amendments, has extended state

filiation statutes of limitation for AFDC

participant states to 18 years of age. 42

USC g 666(a)(5); 45 CFR § 305.24(b). This

extension gives states broad discretion as

to when they may initiate Title IV-D

filiation proceedings and also removes the

remedy formerly given to designated

fathers to protect themselves from the

prosecution of untimely filiation proceed-

ings. The removal of this remedy by

Congress mandates that the Secretary enact

a notice regulation at the Title IV~-A

application stage to avoid placing an

undue and chilling influence upon desig-

nated fathers much later on when state

Title IV-D agencies request large child

support arrearages. The seven petition-

ers, here, are being subjected to such

burdensome requests for large child sup-

port arrearages because of the discre-

tionary time allowance given to state

Title IV-D agencies and the notice

deficiencies in the Secretary's regula-

tions.

Secondly, designated fathers suffer

another loss of property rights at the

Title IV-A stage. They lose the opportun-

ity, at this point in time, to either

rectify the needs of the children by

coming forward and acknowledging paternity

and raising the children, or to mitigate

“the serious economic consequences" by

beginning to pay some support for the

children. See, Armstrong v. Manzo, 380 US

545, 550-552 (1965); City of Claremont v.

Truell, 126 NH 30, 489 A2d 581 (1985).

Notice calculated to give designated

fathers the opportunity to mitigate their

child support obligations, then, not only

means that these fathers can financially

plan for their children but also means

that the fathers’ income and resources

can, as Congress intended, be counted as

resources for the children, 42 USC g

602(a)(7) (A), leading to expeditious CSE

welfare recapture. S. Rep. 98-387, 98th

Cong., 2nd Sess., 2425 (1984).

B. FEDERAL REGULATIONS IMPLICATE

SUBSTANTIAL FIFTH AND FOURTEENTH AMENDMENT

DUE PROCESS PERSONAL INTERESTS OF

DESIGNATED FATHERS AT THE TITLE IV-A AFDC

APPLICATION FOR ASSISTANCE STAGE, The

"opportunity interest" of designated

fathers exists where the government is

engaged in the positive program of

providing assistance to children and in

identifying their parents. This oppor-

tunity interest finds its genesis in the

AFDC program goal of strengthening the

welfare family, 42 USC § 601, and in three

of this Court's cases: Stanley v.

Illinois, supra; Caban v. Mohammed, 441 US

388 (1979); and Lehr v. Rcbertson, supra.

In Lehr, this Court, in finding that the

Significance of the blood relationship is

more limited, presupposed that a

designated father would have an

opportunity to grasp parental

responsibility:

"The significance of the biological

connection is that it offers’ the

natural father an opportunity that no

other male possesses to develop a

relationship with his offspring, If

he grasps that-opportunity and accepts

some measure of responsibility for the

child's future, he may enjoy the

blessings of the parent-child rela-

tionship and make uniquely valuable

contributions to the child's

development." Lehr v. Robertson,

supra, 463 US at 262.

The Title IV-A AFDC assistance

proceeding is an important government

portal through which designated fathers

can establish relationships with their

out-of-wedlock children. A federal notice

requirement, in the context of federal

legislation designed to assist needy

children and to promote family stability,

is absolutely necessary in order to enable

designated fathers to first "grasp the

opportunity" of parenthood. This oppor-

tunity interest "begins at conception and

endures probably throughout the minority

of the child." In Re Baby Girl Eason,

Ga , 358 SE2d 459, 462 (1987); Finnerty

v. Boyett, 469 S2d 287, 292 (La. App. 2d

Cir. 1985); see also, E. Buchanan, The

Constitutional Rights of Unwed Fathers

Before and After Lehr v. Robertson, 45

Ohio St. L.J. 313 (1984).

Contrasting with Lehr v. Robertson,

supra, here there exists a program of

cooperative federalism within which the

opportunity interest continues from the

Title IV-A stage to state initiated Title

IV-D filiation proceedings. The force of

governmental action to establish a_ legal

and financial relationship between father

and child presupposes that the state seeks

the creation of a relationship between the

father and the child, and, hence, the

perpetuation of an already existing

opportunity interest.

Important corollary rights to. the

opportunity interest are the right to

associate with one's child, "an interest

far more precious than any property

right," Santosky v. Kramer, 455 US 745,

758-59 (1982); Stanley v. Illinois, supra,

and the right to determine the family unit

in which to raise one's child. Moore v.

City of East Cleveland, Ohio, 431 US 494

(1977). The omission of a notice require-

ment by the Secretary from the Title IV-A

application program substantially lessens

the ability of designated fathers to

exercise their opportunity interests in a

timely manner to begin the task of

assuming parental obligations and to begin

making decisions with the mother/appli-

cants concerning the type of family units

within which the welfare children will be

raised.

C. FEDERAL REGULATIONS FAIL TO

AFFORD DESIGNATED FATHERS THEIR FIFTH AND

FOURTEENTH AMENDMENT PROCEDURAL DUE

PROCESS RIGHTS TO NOTICE. Procedural due

process ensures that the property rights

and opportunity interests of designated

fathers can be protected at a meaningful

time and in a meaningful manner. Goldberg

vy. Kelly, 397 US 254, 267 (1976). The

granting of assistance to the welfare

family through a federal program,

involving determinations which can

ultimately lead to the imposition of new

parent-child bonds, demands procedural due

process for the designated fathers whose

rights are implicated, Little Vv.

Streater, 452 US l, 13 (1981); Fuentes v.

Shevin, 487 US 67, 88 (1972). In this

Social Security program, designated

fathers become targeted for filiation

prosecution at the Title IV-A stage and

the adversary nature of the relationship

commences at the Title IV-A stage when the

Title IV-A agency makes a determination

that Title IV-D enforcement action will

occur. 42 USC $ 654(4) (A); 45- CER Se

232.49; 302.31(a) (1) (2); 303.5(a).

Immediately, then, designated fathers have

a “right to know" that (1) they have been

named as parties responsible for providing

support, on state AFDC forms, (2) that

under the federal regulations, they are

targeted for filiation prosecution at some

time in the future, and (3) that, upon

being targeted for filiation prosecution,

they have need to consult with legal

counsel to become informed of their rights

under state law.

The facial omission of a notice

requirement for designated fathers at the

Title IV-A stage makes the Secretary's

regulations procedurally deficient under

the tests developed by this Court in

Mathews v. Eldridge, supra, 424 US at 335.

Having examined the substantial private

property and personal interests which are

affected, a consideration of the risk of

erroneous deprivation of those interests

and the value of any substitute procedural

safe-guards demonstrates why the

Secretary, rather than the states, is

responsible for providing such notice.

First, the Secretary's facial

omission of notice requirements for

designated fathers at the Title IV-A

application for assistance stage is

procedurally inadequate because such a

scheme is likely to omit many responsible

fathers from participation in the Title

IV-A stage with respect to ascertainment

of resources available to the children.

42 usc $ 6@2(a)(7)(A); Lehr v. Robertson,

supra, 463 US at 264. It is also pro-

cedurally inadequate because it does not

adopt an alternative, special administra-

tive scheme "to protect the unmarried

father's interest in assuming a

responsible role inthe future of his

child." The qualification for receiving

notice is peyond the knowledge and control

of the interested, designated father.

Lehr v. Robertson, supra, 463 US at 263-

264.

Secondly, the Secretary's regulatory

scheme of postponing notice to designated

fathers until Title IV-D filiation pro-

ceedings are filed is procedurally

inadequate because it does not ensure

protection of the designated fathers'

ability to mitigate their child support

obligations nor does it ensure promotion

of timely father-child bonding. Mitchell v

W.T. Grant Company, 416 US 606, 611

(1974).

Finally, the risk of erroneously

depriving the rights of designated fathers

because of the Secretary's facial omission

of a Title IV-A notice requirement will

not be cured by substitute procedural

safeguards enacted by the states. None of

the fifty states have enacted mandatory

Title IV-A notice requirements pertaining

to- designated fathers. Implicit in the

absence of state enactments is the notion

that the states, in the absence of federal

regulations, do not consider themselves

responsible for enacting Title IV-A notice

requirements for designated fathers. On

the other hand, the Secretary is given

broad authority to enact the very

regulations which can safeguard the rights

of all designated fathers. 42 USC &&$

602(a) (5); 1302. But the Secretary's

requirement that designated fathers’ be

contacted at the Title IV-A stage only in

narrow circumstances and not where

paternity is to be established, 45 CFR $

232.43(g) (h), coupled with the failure of

the states to enact notice provisions,

makes his omission of a notice requirement

not only unconstitutional but arbitrary

and capricious as well. S USC | 8

706 (2) (A) (B); Bowen v. Yuckert, supra, 482

US , 96 LEdG2d at i29.

Even if states were to enact such

additional or substitute procedural notice

safeguards, the risk of an erroneous

deprivation of the property and personal

interests of designated fathers would

still exist due to the interstate nature

of the AFDC program, The exigencies of

our modern, mobile society mean that many

individuals travel from state to state

while receiving public assistance. 4x

primary example of this mobility is found

in petitioner O'Dell's interstate

Situation. A piecemeal, state by state

notice remedy would not assure that

designated fathers, living in states other

than where Title IV-A AFDC assistance is

granted, would receive notice. In order

for the notice requirement to be

dependable, the notice requirement must be

uniform and national.

Finally, we consider the government's

interest, including fiscal and administra-

tive burdens, that the additional or

substitute procedural notice requirement

would entail. The government's interest

in welfare recapture is enhanced by an

earlier Title IV-A notice requirement.

Automated processes for locating absent

parents and notice provisions for AFDC

proceedings are already in place. 42 USC

88 602(a)(4)(11); 653(a). A Title IV-aA

federal notice requirement would simply

require states to adopt State plans

applying their existing notice processes

for designated fathers. Therefore, the

fiscal and administrative burdens that any

additional procedural notice requirement

would entail are minimal compared to the

continuing loss of child support collec-

tions now being experienced because of

lack of notice and consequential delays

and difficulties experienced in collecting

state child support claims.

III. THE FEDERAL ACTION TEST EMPLOYED BY

THE COURT OF APPEALS TO DISMISS THIS CASE

CONFLICTS WITH DECISIONS OF THIS COURT AND

WITH OTHER COURTS OF APPEALS.

This Court, in the trilogy of cases,

Lugar v. Edmondson Oil Co., Inc., Supra;

Blum v. Yaretsky, supra; and Rendell~Baker

ve Kohn, supra, dealt with the

establishment of state (federal) action as

it applied to situations where the

affected parties were litigants,

beneficiaries or active participants in

the activity being challenged. Here, how-

ever, the parties whose rights are

implicated by government action are

treated as strangers but are, nonetheless,

involved in the government program without

their knowledge by virtue of federal

regulations.

A basic presumption of judicial

review exists for persons adversely

affected by federal administrative actions

which are constitutionally deficient.

Abbott v. Laboratories v. Gardner, 387 US

136, 140 (1967). This Court has held in

Califano v. Sanders, 438 US 99, 105 (1977)

that 28 USC @ 1331 confers jurisdiction on

federal courts to review agency action,

subject only to preclusion of review

Statutes. No explicit statutory provision

of the AFDC program bars judicial

consideration of petitioners' consti-

tutional claims involving federal action

presented here.

This Court has already determined

that the proper test for federal action,

where federal regulations are directly

challenged, is embodied in the case of

Lugar v. Edmondson Oil Co., Inc., Supra.

In Lugar, this Court held that a rule of

conduct imposed by the government upon an

entity will convert that entity's action

into action of the government. The

parties must show that

"First, the deprivation must be caused

by the exercise of some right or

privilege created by the [federal

government] or by a rule of conduct

imposed by the [federal government] or

by a person for whom the _ [federal

government] is responsible. ...

Second, the party charged with the

deprivation [federal government] must

be a person who may be said to be a

[federal] actor. This may be because

he is a [federal] official, because he

has acted together with or has

obtained significant aid from

[federal] officials, or because his

conduct is otherwise chargeable to the

[federal government])." Lugar, supra,

457 US at 937. [petitioners'

insertions indicated by parenthesis]

Petitioners did not seek judicial

review of the misuse of a statute by any

AFDC federal or state official or private

individual. Nevertheless, the Court of

Appeals applied the brace of cases, Blum

ve. Yaretsky, supra, and Rendell-Baker v.

Kohn, supra, where the state action test

is applied to allegations of misuse of

statutes, to this case, where direct

review is sought of federal regulations

which affect the rights of citizens. In

so doing, the Court of Appeals, without

any basis in the rulings of this Court,

formulated a radical test for federal

action where federal regulations are

directly challenged: Is the state's

failure to provide notice compelled or

encouraged in any way by the Secretary?

This test would allow federal regulations

within a cooperative federal program,

which contain due process’ irregularities,

to go unchallenged.

Petitioners’ allegations clearly meet

the Lugar test for federal action.

Petitioners allege that their federally

guaranteed rights to due process under the

Fifth Amendment have been violated by the

Secretary's Title IV-A regulations them-

selves. The petitioners have alleged that

the deprivation is caused by rules of

conduct promulgated by the Secretary and

mandated upon the states. The applicants

are required to identify designated

fathers as the financially responsible

parents on Title IV-A forms and to assist

the state in locating them, These rules

of conduct involve the designated fathers

in the Title IV-A program without their

knowledge, thereby depriving them of their

rights.

Secondly, the persons charged with

the deprivation, mamely the Secretary and

state officials, are all federal actors

because they act together and the actions

of Title IV-A state officials are mandated

by the federal regulations. The regula-

tions require the applicants, absent "good

cause," to act jointly with state

officials to identify and locate’ these

designated fathers. There is nothing

contained in the challenged federal

regulations which give the states or

applicants any discretion, whatsoever, to

deviate from these federal rules of

conduct.

The Court of Appeals' misapplication

of the federal action test directly con-

flicts and is inconsistent with the

holding of this Court in the Lugar case

and is inconsistent with the holdings of

Courts of Appeals in the Fourth Circuit,

Beck v. Communications Workers of America

(C.W.A.), 776. £2d 1187, 1288 (4th Cir.

1985), the Sixth Circuit, Duncan v. Peck,

752 F2d 1135, 1148-1141 (6th Cir. 1985),

the Seventh Circuit, Lloyd v. Lloyd, 731

F2d 393, 398-399 (7th Cir. 1984), and the

Eighth Circuit, Roudybush v. Zabel, 813

F2d 173, .176-277 (Geb. Cig«.1987)s .. Ais of

these Courts of Appeals apply the Lugar

state action test to direct attacks on a

statute or regulations and apply the Blum

and Rendell-Baker state action tests to

attacks ona person's alleged misuse of a

statute.

The Court of Appeals decision creates

further conflict and confusion with this

Court's holdings. It evades finding

federal action by construing the

Secretary's Title IV-D regulations, 45 CFR

S$ 392.31, 302.50, 303-4 (sic) and 303-5

(sic), as giving authority to the states

to enact Title IV-A notice requirements

for designated fathers. (App. A at A-13)..-

There is absolutely no basis for this

conclusion in either the language of the

Social Security Act nor in the Act's

Congressional history, nor have the states

themselves enacted any legislation to

Support this interpretation. Bowen Vv.

Yuckert, supra; Rodriguez v. Compass

Shipping Co., Ltd, 451i: 0a . 596, 614

(1981).

The Court of Appeals supports its

conclusion that there is no federal action

by reasoning that there is no compelling

need for national uniformity and that

nothing in the statutory scheme indicates

that Congress intended to preempt this

area of traditional state concern with

domestic relations (App. A at A-14).

However, Congress enacted Title IV-A of

the Social Security Act as a national,

interstate program to give assistance to

needy children, the requirements of which

the states must follow. Lukhard v. Reed,

Supra; King v. Smith, 392 US 3809, 327-328,

333 (1968). As previously discussed,

petitioner O'Dell's interstate situation

graphically demonstrates the practical

need for national uniformity. Moreover, a

clear and manifest intention was expressed

by Congress’ for the Secretary to issue

preemptive regulations governing the

entire field of Title IV-A notice and

hearing procedures. 40 USC $

602 (a) (4) (11); Hillsborough County v.

Automated Med. Labs, 471 US 787, 713

(1985). Acccordingly, the Secretary has

promulgated a comprehensive scheme of

notice and hearing requirements for state

agencies in Title IV-A proceedings. 45

CFR §§ 205.10 (a) (1), 206.19 (a) (4)(7),

232.43(g) (h), 232.45, 235.76. This

presumption of federal preemption is

strengthened because no state has enacted

mandatory Title IV-A notice requirements

for designated fathers and no coordinate

state and federal efforts exist within

either the AFDC or CSE administrative

framework to provide such notice. New

York State Dept. of Social Services v.

Dublino, 413 US 405, 421 (1973). Clearly,

a dominant need exists dex a national,

uniform notice requirement for designated

fathers in order to resolve the

substantial conflict and uncertainty over

responsibility for giving the notice.

Hillsborough County v. Automated Med.

Labs., supra, 471 US at 713; Clearfield

Trust Co. v. United States, 318 US 363,

367 (1943).

IV. THE YOUNGER ABSTENTINE DOCTRINE IS

INAPPLICABLE,

The Younger abstention doctrine,

announced in Younger v. Harris, 401 US 37

(1971), has never been used by this Court

to prevent the disposition of substantial

federal questions involving the constitu-

tionality of federal regulations that

cannot be reviewed by state courts.

All petitioners, and especially

Mr. O'Dell, face continuing consequences

where AFDC applicants move from state to

state and receive Title IV-A assistance.

Petitioners are entitled to federal relief

because no opportunity exists for them to

present their federal, interstate notice

claims in state proceedings. Juidice v.

Vail, 438 US 327, 337 (1977). The Federal

Supremacy Clause, Article VI, Clause 2,

provides “unambiguous authority" that

state courts simply have no jurisdiction

to change federal Title IV-A regulations

to give designated fathers their notice

remedy on a national, interstate basis.

Pennzoil Co. v Texaco, Inc., 481 US P

95 LEd2d 1, 18 (1987).

Because petitioners’ federal claims

involve interstate considerations having

“substance sufficient to confer subject

matter jurisdiction on the court," 28 USC 8

1331, and because petitioners’ state claims

and federal claims “derive from a common

nucleus of operative fact," bridging both

state and federal Title IV-A bureaucracies,

—this Court may exercise pendent jurisdic-

tion over both the petitioners’ Fifth and

Fourteenth Amendment claims. United Mine

Workers of America v. Gibbs, 383 US 715,

725 (1966).

CONCLUSION

The Petition for Writ of Certiorari

should be granted.

Respectfully submitted,

Philip F. Schuster, II

Counsel of Record

Roger F. Dierking

Counsel for Petitioners

November 12, 1987

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RONNIE O. KITCHENS, et al.,) No. 86-3994

Plaintiffs-Appellants,)

)

Vv. >; DC. Wes

) CV-85~-1815-RE

OTIS R. BOWEN, et al. )

Defendants~-Appellees. ) OPINION

Argued and Submitted

July 8, 1987 - Portland, Oregon

Filed August 20, 1987

Before: John F. Kilkenny, Alfred T.

Goodwin and Warren J. Ferguson,

Circuit Judges.

Opinion by Judge Kilkenny

Appeal from the United States District

Court for the District of Oregon

James A. Redden, District Judge, Presiding

COUNSEL

Philip F. Schuster, II, Roger F. Dierking,

Portland, Oregon for the plaintiffs-

appellants.

Robert M. Atkinson, Salem, Oregon, Felicia

Chambers, Washington D.C., for the

defendants~appellees.

APP. A-1l

OPINION

KILKENNY, Senior Circuit Judge:

This appeal arises out of a challenge

to the constitutionality of a social

welfare program that does not mandate

immediate notice to the putative fathers of

children whose mothers apply for benefits

under that program. The questions

presented for review are whether the

district court erred by dismissing the

complaint as against the federal defendant

for lack of any federal action, and against

the state defendants by virtue of the

doctrine of abstention. For the reasons

set forth below, we affirm.

FACTS AND PROCEEDINGS BELOW

Appellants are a group of seven men

who, in applications submitted for benefits

under the Aid to Families with Dependent

APP. A-2

Children ("AFDC") program,- were identified

by the mothers of children born out of

wedlock as the children's fathers. At the

time of their filing the underlying action,

appellants were all defendants in Oregon

state court proceedings brought by the

state to establish paternity and, pursuant

to the AFDC applicants’ assignment of

Support rights to the state, to collect

support obligations. In suing the

Secretary of the United States Department

of Health and Human Services ("Secretary"

or “federal defendant"), the Administrator

of the Adult and Family Services Division

of the Oregon Department of Human

Resources, and the Administrator of the

Support Enforcement Division of the Oregon

Department of Justice ("state defendants"),

1 pub. L. No. 271, g§ 401 et seq., codified

as Title IV-A of the Social Security Act at

42 U.S.C. $& 601 et seg.

APP. A-3

appellants have alleged that the federal

regulations governing the administration of

the AFDC program are unconstitutional

because they do not provide for notice to

putative fathers at the time when mothers

of children born out of wedlock apply for

AFDC assistance.

The district court dismissed

appellants' claim against the federal

defendant, both because the complaint

failed to allege federal action on the part

of that defendant sufficient to warrant the

exercise of federal subject matter

jurisdiction over the claim, and because

the complaint failed to state a claim upon

which relief could be granted. The claim

against the state defendant was also

dismissed under the provisions of the so-

APP. A-4

2 It is

called Younger abstention doctrine.

from the dismissal of their complaint that

appellants have timely appealed.

STANDARD OF REVIEW

We review de novo a district court's

dismissal of a complaint for lack of

subject matter jurisdiction. Abrams v.

Commissioner, 814 F.2d 1356, 1357 #£=(CA9

1987). Similarly, we review de novo a

district court's decision to dismiss a

complaint for failure to state a claim upon

which relief can be granted. Newman v.

Universal Pictures, 813 F.2d 1519, 1521

(CA9 1987). Finally, we review de novo a

dismissal based on the doctrine of

abstention. Fresh Int'l Corp. o:

Agricultural Labor Relations Bd., 885 F.2d

1353, 1356 (CA9 1986).

ee eee ee

é Younger v. Harris, 401 U.S. 37, 44-45

(1971).

DISCUSSION

1. Background

At the heart of this appeal lies the

scheme of cooperative federalism existing

between the state and federal governments

under the AFDC program. The avowed purpose

of this program is to promote the benefits

of family life by encouraging the care of,

inter alia, fatherless,~ needy children,

either in their own homes or in those of

relatives, by providing financial

assistance to the children's mothers or

other relatives. 42 U.S.C. § 661.

In a nutshell, the AFDC program works

as follows. Financial assistance to needy

children is provided by state agencies,

which are in turn eligible for federal

ee ee ee ee et et ee

3 The AFDC program "offers welfare payments

to families in which the father is dead,

absent, disabled or, at the State's option,

unemployed." S. Rep. No. 93-1356, 93rd

Cong., 2nd Sess., reprinted in 1974 U.S.

Code Cong. & Ad. News 8133, 8146.

matching funds if their assistance plans

comply with both the Social Security Act's

relevant statutory requirements and the

regulations implementing the program. For

example, a state's plan must provide for

prompt notice to the state's child support

collection agency upon the furnishing of

AFDC assistance to a child who has been

deserted or abandoned by a parent,

including a child born out of wedlock,

without regard to whether the paternity of

that child has been established. 42 U.S.C.

e 602(a)(11). In addition, and as a

condition of eligibility, the AFDC

applicant must assign to the state any

rights to support she may have from any

other person and which have accrued at the

time the assignment is executed. 42 U.S.C.

$ 602(a)(26)(A). Also, the applicant is

generally required to cooperate with the

APP. A-7

state, both in establishing the paternity

of a child born out of wedlock and in

obtaining support therefor. 42 U.S.C. 8

602 (a) (26) (B).

The state must have in effect a plan

to establish paternity, locate absent

parents, and obtain child and spousal

support. 42 U.S.C. § 602(a)(27).

Similarly, the state must provide child

support enforcement services with respect

to all AFDC recipients. 42 u.s.c. 8

654(4). Finally, support rights assigned

to the state under the AFDC program

constitute obligations owed to the state

and are collectable by the state under

relevant state and local processes. 42

U.S.C. § 656(a)(1).

2. Federal Jurisdiction

The gravamen of appellants' complaint

against the Secretary is that, in

promulgating the regulations governing the

administration of the AFDC program, the

Secretary failed to require that, at the

time mothers of children born out of

wedlock apply for AFDC benefits, putative

fathers be given notice of the filings of

such applications and an opportunity for a

hearing. As a result, appellants argue,

they have no opportunity to contest the

level of AFDC assistance provided and, by

virtue of the mothers' assignment of

support rights to the state, appellants now

face substantial support obligations to the

state which accrued during the prenotice

period.

The Secretary contends that dismissal

was proper because appellants failed to

allege and show any federal action. The

AFDC statute and regulations leave the

responsibility for formulating specific

APP. A-9

procedures for determining paternity and

support obligations to the individual

states; therefore, the Secretary asserts,

if appellants were deprived of any

constitutional rights, the responsibility

for that deprivation must fall on the

shoulders of the state defendants.

In addressing this issue, we note at

the outset that “(t]he standards utilized

to find federal action for purposes of the

Fifth Amendment are identical to those

employed to detect state action subject to

the strictures of the Fourteenth

Amendment." Geneva Towers Tenants Org. v.

Federated Mortgage Investors, 504 F.2d 483,

487 (CA9 1974); see also Fidelity Fin.

Corp. v. Fede=al Home Loan Bank, 792 F.2d

1432, 1435 (CA 1986) (applying principles

of state action cases to federal action

issue), cert denied, U.S. , sgz

S.Ct. 949 (1987). Accordingly, this court

turns now to an examination of the leading

state action cases.

{1] The relevant standards are set

forth in the brace of cases, Blum v.

Yaretsky, 457 U.S. 991 (1982) and Rendell-

Baker v. Kohn, 457 U.S. 830 (1982). Those

decisions make clear that, even though the

state defendants here were subject to

federal regulations in administering the

AFDC program, that fact alone does not

establish federal action. Blum, 457 U.S.

at 1004; Rendell-Baker, 457 U.S. at 841.

Appellants must show that

""there is a sufficiently close

nexus between the [federal

government] and the challenged

action of the regulated entity so

that the action of the latter may

be fairly treated as that of the

[federal government] itself.’

[Citation omitted] The purpose of

this requirement is to assure that

constitutional standards are

invoked only when it can be said

that the [federal government])is

APP. A-1l

responsible for the specific

conduct of which the plaintiff

complains."

Blum, 457 U.S. at 18004 (quoting (sic)

Jackson v. Metropolitan Edison Co., 419

U.S. 345, 351 (1974) (emphasis in

Original); accord, Fidelity Fin., 792 F.2d

at 1435. Appellants may establish this

required nexus only

"by showing that the (federal)

government exercised such coercive

power or such significant

encouragement that it is responsi-~

ble for the specific . .. conduct

challenged, or by showing that the

[state defendants] halve] exer-

cised powers that are tradition-

ally the exclusive prerogative of

the [federal] government."

Id. (citing Blum, 457 U.S. at 1004-1905).

{2] As already indicated, the specific

conduct challenged by appellants here is

the failure to provide for notice and an

opportunity for a hearing at the so-called

Title IV-A, or AFDC application, stage.

While the federal regulations make no

APP. A~-12

provision for such notice and hearing, they

do not prohibit the states from granting

such rights, either. Indeed, the entire

AFDC scheme is designed to leave the states

responsible for the specific procedures to

be employed, subject only to the broad

parameters outlined in the federal statutes

and regulations. See, e.g., 45 C.F.R. ss

392.31, 302.50, 303-4, and 303-5 (requiring

states to establish paternity and secure

support obligations in accordance with

state law).

The State of Oregon was and is free to

adopt procedures to give timely notice to

putative fathers, and there is no evidence

that its failure to do so was compelled or

encouraged in any way by the Secretary.

Nor is it significant that the Secretary

did not take action in the face of the

state's failure to provide for such notice:

APP. A~-13

“Mere approval of or acquiescence in the

initiatives of [the state defendants] is

not sufficient to justify holding the

[Secretary] responsible for those

initiatives ...." Blum, 457 U.S. at

1904-1005.

{(3] Finally, the realm of domestic

relations is and has been traditionally

governed by state law. Lehr v. Robertson,

463 U.S. 248, 256 (1983). Accordingly,

appellants' argument that there is a

compelling need for national uniformity in

this area that overrides any state

interests fails; there is nothing in the

statutory scheme to indicate a "clear and

manifest" intent on the part of Congress to

preempt the entire field. Hillsborough

County v. Automated Med. Labs., 471 U.S.

7607, 716 (1985). The claim against the

federal defendant was properly dismissed.

3. Younger Abstention

At the time appellants brought this

action, they were all defendants in Oregon

State court proceedings brought by the

state to establish paternity and collect

support obligations on behalf of children

who were receiving or had received AFDC

benefits. In the underlying action,

appellants sought a declaratory judgment

that the federal AFDC regulations were

unconstitutional and an order restraining

the state defendants from, inter alia,

collecting all past and future support

obligations. As indicated above, the

district court dismissed appellants' claim

against the state defendants based on the

principles espoused in Younger vy. Harris,

63 GS. 37 (139733-z

While the Younger case involved

Criminal proceedings, "[C]oncerns of comity

and federalism counsel restraint in civil

proceedings as well, when important state

interests.are at stake." Fresh Int'l Corp.

v. Agricultural Labor Relations Bd., 805

F.2d at 1356; accord, Middlesex County

Ethics Comm. v. Garden State Bar Ass'n, 457

0.8. 423, 432 (1982) (“{t]he policies

underlying Younger are fully applicable to

noncriminal judicial proceedings when

important state interests are involved."

Thus,

"“[A]bstention is appropriate in

favor of a state proceeding if (1)

the state proceedings are ongoing;

(2) the proceedings implicate

important state interests; and (3)

the state proceedings provide an

adequate opportunity to raise

federal questions."

Fresh Int'l, 865 F.2d at 1357-58 (citing

Middlesex, supra).

Appellants argue that the first prong

of the above three-part test has not been

APP. A-16

met because four of the appellants’ state

court proceedings are no longer “ongoing".

This argument fails for two reasons.

{4] First, Oregon law subjects these

appellants to ongoing child support

proceedings that continue until the

applicable support orders are either

vacated or dismissed. Or. Rev. Stats. 8§

167.135, 169.1803. Until then, either party

to those proceedings can file a motion

requesting that the state court modify the

Support order. Id.

{5] Second, Fresh Int'l suggests that

the critical question is not whether the

State proceedings are still "ongoing", but

whether the “state proceedings were

underway before initiation of the federal

proceedings." 865 F.2d at 1358. There is

no dispute that all of the appellants were

already defendants in the state court

APP. A-17

proceedings prior to the commencement of

the federal action.

Appellants next contend that the state

interests involved are not sufficiently

important to justify Younger abstention.

In support of this position they first

argue, citing Miofsky v. Superior Court,

703 F.2d 332 (CA9 1983), that this court is

reluctant to extend the Younger doctrine to

Civil litigation, particularly in civil

rights suits.

It is true that, prior to Fresh Int'l,

this court was somewhat hesitant to expand

Younger beyond criminal or quasi-criminal

contexts. See, e.g., Playtime Theaters v.

City of Renton, 748 F 533 (CA9 1984) rev'd

on other grounds, 475 U.S. 41 (1986);

Goldie's Bookstore v. Superior Court, 739

F.2d 466, 469-70 (CA9 1984). However,

Fresh Int'l recognizes that the earlier

view was too restrictive and that

abstention is warranted whenever an

important state interest is implicated.

805 F.2d at 1359-60. Moreover, the Supreme

Court held in Trainer v. Hernandez, 431

U.S. 434 (1977) that a state's interests in

"administering its public-assistance

programs" and "safeguarding the fiscal

integrity of those programs" were

sufficiently important to warrant

application of the Younger abstention

doctrine. Id. at 444.

Appellants’ further argument that the

interests of the State of Oregon are

outweighed by the need for national

uniformity in AFDC procedures is no more

persuasive in this context than it was with

respect to their claim against the federal

defendant, above. Similarly, appelilants'

argument that the claim against the state

APP. A-19

defendants should have been retained under

the pendent jurisdiction doctrine of United

Mine Workers v. Gibbs, 383 U.S. 715 (1966)

ignores the underlying rationale of that

decision: Appellants' claim against the

federal defendant was properly dismissed,

and Gibbs states that "if the federal

claims are dismissed before the trial

- « « the state claims should be dismissed

as well." Id. at 726,

[6] Finally, there is no merit to

appellants’ argument that they do not (or

did not) have an adequate opportunity to

raise their federal constitutional claims

in the state court proceedings. Three of

the appellants did in fact present their

constitutional claims in the state court

and prevailed thereon. The state trial

court determined that the state's failure

to notify these appellants at the AFDC

application stage denied them their rights

to due process and equal protection under

the constitutions of both the United States

and Oregon.

As to those appellants whose paternity

proceedings have terminated, or those who

failed to raise their constitutional claims

in state court, the relevant question is

whether they "could have presented" those

claims to the state court. Fresh Int'l,

805 F.2d at 1362 (emphasis in original).

"All that Middlesex requires is an

opportunity to present the federal

issue. ... "™ Id. (emphasis in

original); see also Juidice v. Vail, 430

U.S. 327, 337 (1977)(same). The success of

the three appellants mentioned above belies

any argument that the remaining appellants

did not themselves have the opportunity to

Those decisions are now before the Oregon

Court of Appeals.

APP. A-21

raise the constitutional issues in state

court. The district court therefore did

not err in dismissing appellants' claim

against the state defendants.

CONCLUSION

For the reasons set forth above, the

decision of the district court is hereby

AFFIRMED.

APP. A-22

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RONNIE O. KITCHENS, et al.,) No. 86-3994

Plaintiffs-Appellants,)

)

Vv. > o.C. Be.

) CV-85-1815-RE

OTIS R. BOWEN, et al. )

Defendants-Appellees. )

APPEAL from the United States

District Court for the District of Oregon

(Portland).

THIS CAUSE came on to be heard on the

Transcript of the Record from the United

States District Court for the District of

Oregon (Portland) and was duly submitted.

ON CONSIDERATION WHEREOF, It is now

here ordered and adjudged by this Court,

that the judgment of the said District

Court in this Cause be, and hereby is

affirmed.

Filed and entered August 20, 1987

APP. A-23

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

RONNIE O. KITCHENS, MICHAEL)

J. CALLAGHAN, GORDON D.

O'DELL, JOHN F. MOORE,

GLENN D. ROGIE, GERALD E.

RYON and ROBERT W. DICKIN-~

SON,

Plaintiffs,

Vv. Civil No.

85-1815-JU

OTIS R. BOWEN, SECRETARY,

{ DEPARTMENT OF HEALTH AND

HUMAN SERVICES, UNITED OPINION

STATES OF AMERICA; KEITH

PUTMAN, ADMINISTRATOR,

ADULT AND FAMILY SERVICES

DIVISION, DEPARTMENT OF

HUMAN RESOURCES, STATE OF

OREGON; JIM HUNTER, ADMIN-

j ISTRATOR, SUPPORT ENFORCE-

MENT DIVISION, DEPARTMENT

OF JUSTICE, STATE OF

OREGON,

et a

Defendants.

Philip F. Schuster, II

Roger F. Dierking

Attorneys at Law

1500 N.E. Irving, Suite 540

Portland, Oregon 97232

See en dco othe ee GRE re a

Attorneys for Plaintiffs

ee ee ers

Richard K. Willard

Assistant Attorney General

Sheila Lieber

Felicia L. Chambers

Civil Division

U.S. Department of Justice

16th & Pennsylvania Avenue, N.W.

Washington, D.C. 20530

Charles H. Turner

United States Attorney

Jack G. Collins

Assistant U.S. Attorney

312 U.S. Courthouse

620 S.W. Main

Portland, Oregon 97205

Attorneys for Federal Defendant

Dave Frohnmayer

Attorney General

Glenn Klein

Assistant Attorney General

108 Justice Building

Salem, Oregon 973194

Attorneys for Defendants

Keith Putman and Jim Hunter

REDDEN, Judge:

Plaintiffs bring this action, claiming

their right under the due process clause of

the United States Constitution, to receive

notice from the government that they are

named as fathers at the time when

APP. B-2

application is made for Aid for Dependent

Children (AFDC) support by the mothers.

Both federal and state defendants move for

dismissal pursuant to Fed. R. Civ. P.

12. té@}.s Magistrate Juba recommended

granting both motions in his Findings and

Pecommendation of April 24, 1986. I adopt

the Recommendation.

BACKGROUND

I will comment, but briefly, as the

Magistrate's opinion is detailed and

correct.

The factual background is undisputed.

Plaintiffs are all purported fathers of

children and are or have recently been

involved in state court actions concerning

their paternity and support obligations.

Although they received notice of the

paternity and support proceedings, they did

APP. B-3

not receive notice when the mothers applied

for AFDC.

The failure to receive notice affects

plaintiffs. Federal regulations, which

plaintiffs do not challenge, mandate that

AFDC states: (1) require applicant mothers

to assign their support rights to the

State; (2) require the applicant mothers'

promise to cooperate in establishing

chin ie, sheet good cause; and (3)

impose an obligation upon the fathers for

Support. Under such regulations, an

individual later found to be the father has

incurred obligations for AFDC payments from

their commencement, although he did not

have notice or opportunity to be heard on

setting the amount of those payments.

Plaintiffs say this failure to give notice

violates their due process rights.

APP. B-4

DISCUSSION

When a party objects to any portion of

the Magistrate's Findings and Recommenda-

tion, the district court must make a de

novo determination of that portion of the

Magistrate's report. oe U8. C. g

636(b)(1)(C); McDonnell Douglas Corp. v.

Commodore Business Machines, Inc., 656 F.2d

1369, 1313 (9th Cir. 1981), cert. denied,

455 U.S. 920 (1982). Here plaintiffs

object to the entirety of the Findings and

Recommendation, and thus I review it in its

entirety de novo.

A. Federal Defendant

Federal defendant argues that he is

free from liability as a matter of law,

because there has been no federal action.

The federal action principle is merely the

analog of the state action principle as

applied to the federal government. Geneva

APP. B-5

Towers Tenants Organization v. Federated

Mortgage Investors, 504 F.2d 483, 487 (9th

Cir. 1974). The state action principle is

expressed in Blum v. Yaretsky, 457 U.S.

991, 1005-006 (1982), and is detailed in

the briefs and the Magistrate's well

reasoned opinion.

Plaintiffs fail to point to a federal

statute or regulation that requires the

States not to give notice at the AFDC

application stage. The United States does

not coerce or significantly encourage an

ommission of notice but leaves the notice

procedures to the states. 42 0.8.C. e

656(a)(1); 42 U.S.C. & 602(1)(27). The

federal government has not preempted the

entire field, making it impossible for a

state to impose its own notice require-

ments. The statutes are clear that the

APP. B-6

rari she OH Cal Bie

Si lg RG hae Hee

rT ae

iii inna aion dah Dates wee esi Adicts

states are free to impose their own regu)a-

tions.

Since there has been no federal

action, this claim for violation of due

process must be dismissed. Lugar v.

Edmondson Oil Co., Inc., 457 U.S. 922, 925

(1982).

B. State Defendants

The state defendants argue that the

Younger abstention doctrine requires

dismissal as against them. This doctrine

does require a federal court to abstain

from any action against state officials in

which:

(1) the plaintiffs sought to enjoin

the continuation of the state

proceeding or sought to enjoin state

officials from enforcing a state

statute, and (2) the basis for federal

relief could have been raised as a

complete or partial defense to a

pending or ongoing state enforcement

proceeding.

LH. ve. Jamieson, 643 F.2d 1351, 1352-53

(9th Cir. 1981).

Plaintiffs do seek to enjoin a state

statute. The remedy they seek is to

preclude collection of accrued child

Support for the prenotice period, This

basis for federal relief could have been

raised as a partial defense to the state

proceedings to which these plaintiffs are

or were involved.

This case is not clearly distinguish-

able from Trainer v. Hernandez, 431 U.S.434

(1977), wherein the Supreme Court held that

the federal court should abstain from

intervening in a pending state civil

enforcement proceedings.

Plaintiffs argue that the actions of

some plaintiffs have been terminated.

However, the question is not whether they

presented their federal claims in the state

proceedings, but whether they had the

APP. B-8

iii iii Ate Piha? nati i abl niin? tb abe

opportunity to &. Juidice v. Vail, 4390

U.S. 327, 337-38 (1977).

CONCLUSION

sens Upon de novo review, I find that Judge

Juba's Findings and Recommendation properly

dismissed all claims, There» is an absence

of federal action by the federal defendant,

and a federal claim may not be pursued

against the state defendants.

DATED this 23 day of June, 1986.

James A. Redden

United States District Judge

FILED June 24, 1986

APP. B-9

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

RONNIE O. KITCHENS, MICHAEL)

J. CALLAGHAN, GORDON D.

O'DELL, JOHN F. MOORE,

GLENN D. ROGIE, GERALD E.

RYON and ROBERT W. DICKIN-

SON,

Plaintiffs,

Vv. Civil No.

85~-1815-JU

OTIS R. BOWEN, SECRETARY,

DEPARTMENT OF HEALTH AND

HUMAN SERVICES, UNITED ORDER

STATES OF AMERICA; KEITH

PUTMAN, ADMINISTRATOR,

ADULT AND FAMILY SERVICES

DIVISION, DEPARTMENT OF

HUMAN RESOURCES, STATE OF

OREGON; JIM HUNTER, ADMIN-

ISTRATOR, SUPPORT ENFORCE-

MENT DIVISION, DEPARTMENT

OF JUSTICE, STATE OF

OREGON,

ee ee”

Defendants.

IT IS ORDERED that the Findings and

Recommendation of Judge Juba dated

Eee Te Pe

April 24, 1986 are ADOPTED.

Dated this 23 day of June, 1986.

ae ld es se mm

James A. Redden |

James A. Redden

United States District Judge

FILED June 24, 1986

____ ae

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

RONNIE O. KITCHENS,

et al.,

Plaintiffs,

Civil No.

)

Vv. )

) 85-1815-JU

)

OTIS R. BOWEN, Secretary

Department of Health and

Human Services, et al.,

JUDGMENT

Defendants.

Based on the record,

IT IS ORDERED that this action is

dismissed.

_ Dated this 25 day of June, 1986.

Jeffrey Amram

Clerk, United States District Court

FILED June 25, 1986

APP. B-11

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ORiGON

RONNIE O. KITCHENS, et al.,

)

Plaintiffs, )

Vv. ) Civil No.

) 85-1815-JU

OTIS R. BOWEN, Secretary )

of Health and Human Ser- )FINDINGS AND

vices, et al., ) RECOMMENDATION

)

Ce Defendants. )

PHILIP F. SCHUSTER, II

ROGER F. DIERKING

1508 N.E. Irving, Suite 549

Portland, Oregon 97232

Of Attorneys for Plaintiff

RICHARD K. WILLARD,

Asst. Attorney General

U.S. Dept. of Justice-Civil Div.

CHARLES H. TURNER,

United States Attorney

JACK G. COLLINS,

Asst. U.S. Attorney

312 U.S. Courthouse

620 S.W. Main Street

Portland, Oregon 97265

FELICIA CHAMBERS

U.S. Dept. of Justice, Rm, 3537

18th & Pennsylvania Avenue, N.W.

Washington, D.C. 20530

Attorneys for Federal Defendant

JUBA, Magistrate:

PRELIMINARY STATEMENT

Plaintiffs are six individuals, each

of whom is or was a defendant in an Oregon

State court proceeding brought by the

State to establish paternity and child

Support obligations.

They bring this action against the

Secretary of the U.S. Department of Health

and Human Services, (federal defendant or

Secretary), the Administrator of Adult and

Family Services of the Oregon Department

of Human Services, and the Administrator

of the Support Enforcement Division of the

Oregon Department of Justice (State

defendants) alleging that regulations

governing the establishment of paternity

and obligations owed to recipients of Aid

to Families with Dependent Children (AFDC)

are unconstitutional. Plaintiffs seek

relief pursuant to 42 U.S.C. § 1983.

Plaintiffs claim that the Secretary's

implementation of the AFDC and Child

Support Enforcement (CES) programs, which

direct participating states, in accordance

with state law, to establish the paternity

of and support obligations owed to AFDC

recipients, violates due process. As to

the Federal Defendant, plaintiffs allege

that due process requires that the Secre-

tary mandate that State provide putative

fathers with notice and a hearing at the

time AFDC applications are filed, and that

the Secretary must prescribe when and

under what circumstances blood testing can

be utilized in paternity actions. Fur-

ther, plaintiffs allege that the federal

regulations andlewtwt ty omit requirements

allowing putative fathers to show that

granting AFDC benefits to children while

in their mother's care is against the best

interests of the child. Plaintiffs also

attack the Oregon statutory and regulatory

schemes as violative of due process and

equal protection of the law.

As relief plaintiffs seek a declara-

tory judgment determining the invalidity

of the federal regulations, and an injunc-

tion directing the Federal and State

Defendants to promulgate specific

regulations incorporating additional

protections and prohibiting the State from

collecting any support obligations until

cheese semiinkions are promulgated.

The Federal Defendant now moves to

dismiss this action for lack of subject

matter jurisdiction and because plaintiffs

have failed to state a claim upon which

relief may be granted. The State

Defendants move to dismiss pursuant to

Fed. R. Civ. P. 12 on the basis of the

Younger abstention doctrine. Both motions

to dismiss should be granted.

STATUTORY BACKGROUND

This summary of the relevant statutes

is taken from the Secretary's well-written

brief.

The AFDC program was enacted by

Congress in 1935, Act of August 14, 1935,

Pub. L. No. 271, & 461 et seq., 49 Stat.

627, et seg., and is established in Title

IV-A of the Social Security Act, 42 U.S.C.

$ 601 et seg. The purpose of the AFDC

program is to encourage the care of needy

dependent children in their own homes or

those of relatives in order to help

maintain and strengthen family life, and

to assist the parent or relatives with

whom they are living to attain or retain

APP. c-5

the maximum self-sufficiency that is

consistent with continuing parental care

and protection. 42 U.S.C. & 661

"... (AFDC) offers welfare payments to

families in which the father is dead,

absent, disabled or at the state's option,

unemployed." S. Rep. No. 93-1356, 93rd

Cong., 2nd Sess., reprinted in, 1974 U.S.

Code Cong. & Ad. News 8133, 8146. The

AFDC program is based on a scheme of

cooperative federalism in which Congress

provides certain sums to be paid to the

states which have approved state plans

providing for state financial participa-

tion in furnishing aid and services to

needy children. 42 U.S.C. §&& 601,

682(a) (2).

Congress required that the state plan

shall provide that such aid be furnished

with reasonable promptness to all eligible

individuals. 42 U.S.C. § 662(a) (16) (A).

The state plan must also provide that

prompt notice be given to the state child

Support collection agency of the

furnishing of AFDC to a child who has been

deserted or abandoned by a parent,

including a child born out of wedlock,

without regard to whether the paternity of

that child has been established. 42

U.S.C. § 602(a) (11). As a condition of

eligibility, the AFDC applicant must

assign to the state any rights to support

he or she may have from any other person

and which have accrued at the time the

assignment is executed. 42 U.S.C. &

602(a)(26)(A). Also, the applicant must

cooperate with the state in establishing

the paternity of a child born out of

wedlock who receives AFDC, and in

obtaining support, unless the applicant

APP. C-7

has good cause for refusing to cooperate

as determined by the state agency in

accordance with standards prescribed by

the Secretary. 42 U.S.C. § 682(a) (26) (B).

The state must also have in effect a plan

to establish paternity, locate absent

parents, and obtain child and spousal

Support under Subchapter IV-D of the Act.

42 U.&,¢. S$ 662(a)(27). The Secretary

must approve a state plan that complies

with the provisions of section 6@2(a). 42

U.S.C. § 602(b).

In 1975, Congress enacted the CSE

program, Social Services Amendments of

1974, Pub. L. Now 93-647, § 161(a) et

seq., as Title IV-D of the Social Security

Act. 42 U.S.C. § 651 et Seg. In so

doing, Congress authorized federal

financial support for a panoply of

services and programs designed to

encourage the enforcement of child support

obligations by the states. See, 1974 U.S.

Code Cong. & Admin. News, at 8168.

Congress was concerned with the steadily

rising costs of the AFDC program and

sought to redress a national failure to

enforce support obligations owed dependent

children, a principal cause of the rising

AFDC costs. Id. at 8145-8149. TO

accomplish this, the legislation mandated

that the states provide child support

enforcement services with regard to all

AFDC recipients. 42 U.S.C. § 654(4). The

state plan must comply with standards that

the Secretary has determined are necessary

to the establishment of an effective

program. 42 U.S.C. & 652(13)(a)(1).

Support rights assigned to the state under

the AFDC program constitute an obligation

owed to the state and are collectible by

the state under applicable state and local

processes. 42 U.S.C. § 656(a) (1).

In the 1984 amendments, Congress

mandated that effective October l, 1985,

the states shall have an effect all laws

to improve child support enforcement, 42

U.S.C. $ 654(28), including expedited

processes under the state judicial or

administrative systems for obtaining and

enforcing support orders, and, at the

state's option, for establishing pater-

nity. 42 U.S.C. § 666(a) (2). Congress

also provided that the state plan shall

permit the establishment of the paternity

of any child prior to his or her

eighteenth birthday. 42 0.8.C. g

666 (a) (5). The Secretary has promulgated

regulations implementing the AFDC and CSE

programs at 45 C.F.R. § 232.1 et seq., and

45 C.F.R. § 308 et seq.

APP. C-16

II. DISCUSSION

A. The Federal Defendant

Plaintiffs contend that the failure

of the federal regulations to provide

notice and an opportunity for plaintiffs,

as persons designated as fathers by

mothers receiving AFDC benefits, to

participate in the application for

assistance procedure is inconsistent with

the Congressional mandate and in violation

of plaintiffs' due process and equal

protection rights. Plaintiffs allege that

the federal regulations deny them the

opportunity to participate during the

application procedure, in the determina-

tion of what is in the child's best

interest. .

1. Legal Standards

The standards utilized to find

federal action for purposes of the Fifth

APP. C-11

Amendment are the same as those employed

to detect state action. Geneva Towers

Tenants Organization ve Federated

Mortgage Investors, 504 F.2d 483, 487 (9th

Cir. 1984); Rendell-Baker v. Kohn, 457

U.S. 830, 838 (1981). The ultimate issue

in determining whether a party is subject

to suit under g 1983 is whether the

alleged infringement of federal rights is

fairly attributable to that party. Id.

The Supreme Court has recently

discussed the elements required to

establish governmental action. Regulation

of an entity does not convert that

entity's action into governmental action.

Plaintiffs must show that:

"There is a sufficiently close nexus

between the [federal government] and

the challenged action of the regulated

entity so that the action of the

latter may be fairly treated as’ that

of the [federal government] itself."

[citation omitted]. The purpose of

this requirement is to assure that

constitutional standards are involved

only when it can be said that [the

federal government] is responsible for

the specific conduct of which the

plaintiff complains. The importance

of this assurance is evident, when, as

in this case, the complaining party

seeks to hold the [federal government]

liable for the actions of private

parties.

Blum v. Yaretsky, 457 U.S. 991, 1804

(1982) (emphasis in original). The

government is responsible for the actions

of third parties when it has exercised

coercive power or provided such

significant encouragement that the law

imputes the action to the government

itself. Id. Mere approval of, or

acquiescence in, the decisions of a third

party is not sufficient to justify holding

the government responsible for those

actions. Id. Finally, the required nexus

may »e present if the federal government

has exercised powers that are

‘traditionally the exclusive perogative of

the state’. Blum, at es.

2. Analysis of the Regulations

“=.

Essentially the Secretary argues that

the challenged regulations are the actions

of the State of Oregon and not mandated by

the federal regulations. Plaintiffs

basically argue that the federal

regulations pre-empt the State and are

inadequate for failure to mandate notice

and hearing requirements.

In accordance with the Congressional

prescription that AFDC be provided to

eligible persons with reasonable

promptness, 42 U.S.C. § 6@2(a) (16) (A), the

Secretary determined, that each person

wishing to apply for AFDC would have the

Opportunity to do so without delay, 45

C.F.R. § 266.10(a)(1). The AFDC applicant

Or recipient must assign any rights to

support to the state, and cooperate in

establishing the paternity of children

born out of wedlock, and support

obligations, 45 C.F.R. §§ 232.11 (a)(1)(i),

(ii), 232.12(a) (i), (2), (3), unless good

cause for refusing to cooperate is found.

Good cause, as defined by the

Secretary, encompasses circumstances which

are against the best interests of the

child, and includes situations where

cooperation may result in physical or

emotional harm to the child or caretaker

relative, where the child was conceived as

a result of rape or incest, or where

adoption proceedings are being

contemplated or are pending. 45 C.F.R. §

232.42 (a).

The CSE regulations mandate that a

state undertake to establish the paternity

of a child born out of wedlock who is

APP. C-15

receiving AFDC benefits, and to secure

Support for that child "from any person

who is legally liable, using state

laws. . ." 45 C.F.R. § 302.31 (a) (1), (2),

303.4(a), 383.5(a) (1), (2). (emphasis

added). The support obligation, consti-

tuting an obligation owed to the State,

shall be established by "[oJrder of a

court of competent jurisdiction, [or]

{[o]ther legal process as established by

State lews. .« «” 88. CoB Rs ss 302.50(a),

(1), (2), 303.4(b) (emphasis added).

Pursuant to the Child Support

Enforcement of 1984, the Secretary

promulgated regulations which require

(effective October 1, 1985,) that states

enact laws providing for expedited

processes having the same force and effect

as those established through judicial

process to establish and enforce child

eh ee 1 tee cael at et es 5 le

= oe

PG. a an fh ee Se,

support obligations. 45 Ceres Rs 8

302.70(a) (2). These regulations mandate

that support enforcement proceedings’ be

completed in one year from filing, and

that the state may utilize such

proceedings in the establishment of

paternity. 45 C.F.R. §8§ 303.161(b)(2),

(3). “Orders established [under expedited

processes] must have-the same force and

effect under state law as orders

established by full judicial process

within the state[;] {t]he due process

rights of the parties involved must be

protected; [and] [t]he parties must be

provided a copy of the order..." 45

C.F.R. § 303.101(c) (1), (2), and (3).

In enacting the Child Support

Enforcement Amendments of 1984 Congress

stated that “basic responsibility for

child support and establishment of

APP. C-17

paternity is left to the states," S. Rep.

reprinted in, 1983 U.S. Code Cong. &

Congress specifically noted that:

{the] provision does not mandate a

particular procedure nor authorize the

Federal agency to impose its views as

to the details of State court organi-

zation. What is required is that

States adopt structures and procedures

which will assure that child support

and paternity actions are processed in

an expeditious manner.

1983 U.S. Code Cong. & Admin. News at

2425. "It is not intended that the

Secretary be authorized to specify the

particular administrative or judicial

structures to be adopted by the States.

Rather, it is intended that the Secretary

should measure a State's compliance with

this provision primarily on the basis of

the results it produces." Id. at 2454.

APP. C-18

The Secretary is not responsible for

the State of Oregon's failure to provide

notice and an opportunity to be heard to

the putative fathers. Likewise, the

Secretary is mot responsible for the

State's policy regarding use of blood

testing in paternity actions. The

required nexus between the federal

regulations and plaintiffs' injury is

missing. The challenged decisions made by

the State according to standards that are

not established by federal government.

See Blum, 457 U.S. at 1008.

Moreover, this is not a situation in

which the federal government has exercised

powers ‘traditionally within the exclusive

perogative’ of the State. The regulation

of marital and family relationships is

traditionally reserved to the states.

Sherrer v. Sherrer, 334 U.S. 343, 354

APP. C-19

(1948); Lehr v. Robertson, 463 U.S. 248,

256 (1983). The regulations in question

preserve the states' traditional role.

Plaintiff contends that the State is

pre-empted from providing for notice by

the federal regulations. The Supreme

Court has recently discussed pre-emption:

the Supremacy Clause .. . invalidates

state laws that interfere with, or are

contrary to federal law. Under the

Supremacy Clause, federal law may

supersede state law in several

different ways. First, when acting

within constitutional limits, Congress ~~

is empowered to pre-empt state law by

so stating in express terms. In the

absence of express pre-emption

language, Congress’ intent to pre-empt

all state law in a particular area may

be inferred when the scheme of federal

regulation is sufficiently compre-

hensive to make reasonable the

inference that Congress "left no room"

for supplementary state regulation.

Pre-emption of a whole field also will

be inferred where the field is one in

which “the federal interest is_ so

dominant that the federal system will

be assumed to preclude enforcement of

State laws on the same subject."

Even where Congress has not

completely displaced state regulation

in a specific area, state law is

APP. C--26

nullified to the extent that it

actually conflicts with the federal

law. Such a conflict arises when

“compliance with both federal and

state regulations is < physical

impossibility," or when state law

"stands as an obstacle to the _ full

accomplishment and execution of the

full Purposes’) and objectives of

Congress. ..

Hillsborough County, Florida v. Automated

Medical Laboratories, Inc., U.S. ’

193 @&. Ct. 2371, 23735 (1985). Where the

field is one in which the states have

traditionally regulated, there is a pre-

sumption that federal regulation has not

pre-empted state law unless that purpose

is clear and manifest. Hillsborough

County, 105 S. Ct. at 2376 (quoting Jones

ve. Rath Packing Co., 436 U.S. 520, 525

(1977)). "Courts are not to seek out

conflicts between state and federal

regulation where none clearly exists;"

U.S. ve. State of California, 694 F.2d

Livi, 1176 (93th Cir. 1982).

The field of domestic relations’ and

family relationships is traditionaliy

regulated by state law. Lehr, 463 U.S. at

256. Therefore, in order to overcome the

presumption of non-pre-emption plaintiffs

must show that the federal regulations

manifest a clear purpose to pre-empt.

There is no indication that Congress

intended to pre-empt state law. On the

contrary, the regulations indicate

Congressional c¢ ference to state law in

the establishment of the regulations at

issue here, Moreover, there is no

evidence that there would be a conflict

between the federal and state regulations

if the state were to provide the notice

and hearing procedures and blood test

regulations requested by plaintiffs.

3. Conclusion

There is no federal action in the

failure of the State of Oregon to provide

putative fathers with notice and an

opportunity to be heard in paternity and

child support proceedings. There is no

federal action in the state's regulation

and use of blood testing. Plaintiffs have

failed to establish that the ‘federal

defendant has violated rights secured by

the Fifth Amendment. The Secretary's

motion to dismiss should be granted.

B. The State Defendants

1. Background

Plaintiffs are six persons who have

been sued in state court by the State of

Oregon. In each of the state court

actions the State is seeking to establish

that each plaintiff here is the father of

a child who is or has been receiving AFDC

benefits. In addition, the State seeks a

State court order granting back and future

child support. In this federal court

action plaintiffs seek to enjoin the state

from proceeding with the state court

actions against them.

Plaintiffs allege that the _ state

Statutes governing the establishment of

paternity and eligibility for AFDC

assistance unconstitutionally omit notice

and hearing requirements. The State moves

to dismiss this action pursuant to. the

Younger abstention doctrine.

2. Younger Abstention

In Younger v. Harris, 401 U.S. 37

(1971), the U.S. Supreme Court held that

absent extraordinary circumstances, a

federal court cannot enjoin a pending

state court criminal proceeding. In a

second case decided at the same time as

Younger, the Supreme Court held that’ the

Younger doctrine would also prohibit the

issuance of a declaratory judgment.

Samuels v. Mackell, 4@1 U.S. 66 (1971).

Where there is a pending state court

criminal proceeding, absent “great and

immediate irreparable injury to the

federal plaintiff" and.wunless "state law

clearly bars the interposition of the

constitutional claims," the federal court

must abstain from deciding the

constitutional questions, and must dismiss

the federal suit. Moore v. Simms, 442

U.S. 415, 423, 426 (1979).

"Younger, and its progeny espouse a

strong federal policy against federal-

court interference with pending state

judicial proceedings absent extra-

ordinary circumstances. The policies

underlying Younger abstention have

been frequently reiterated by this

Court. The notion of "comity"

includes "a proper respect for state

functions, a recognition of the fact

that the entire country is made up of

a Union of separate state governments,

and a continuance of the belief that

the National Government will fare best

if the States and their institutions

are left free to perform their

APP. C-25

separate functions in their separate

ways." Id. at 44. Minimal respect

for the state processes, of course,

precludes any presumption that the

state courts will not safeguard

federal constitutional rights.

The policies underlying Younger are

fully applicable to noncriminal

judicial proceedings when important

state interests are involved. Moore

ve. Sims, 442 U.S. 415, 423 (1979);

Huffman v. Pursue, Ltd., 420 U.S. 592,

604-605 (1975). The importance of the

state interest may be demonstrated by

the fact that the noncriminal proceed-

ings bear a close relationship to pro-

ceedings criminal in nature, as in

Huffman, supra. Proceedings necessary

for the vindication of important state

policies or for the functioning of the

state judicial system also evidence

the state's substantial interest in

the litigation. Trainor v. Hernandez,

431 U.S. 434 (1977); Juidice v. Vail,

436 U.S. 327 (1977) Where vital

state interests are involved, a

federal court should abstain “unless

State law clearly bars the interposi-

tion of the constitutional claims."

Moore, 442 U.S., at 426. "“([T)he ...

pertinent inquiry is whether the state

proceedings afford an adequate oppor-

tunity to raise the constitutional

claims..." Id., at 430. See also |

Gibson v. Berryhill, 411 U.S. 564

(1973).

Middlesex County Ethics Committee v.

Garden, 457 U.S. 423, 431-32 (1982).

In Trainor, the Supreme Court held

that the state's roles in “administering

its public assistance programs" and “safe-

guarding the fiscal integrity of those

programs" are important state interests

which prohibit a federal court from

interfering with a pending state court

action. At the time the federal plaintiff

had filed suit in federal court, there was

a pending state action involving a suit by

the state to recover welfare payments

which the federal plaintiff had

fraudulently obtained. The Supreme Court

held that the federal district court

should have abstained because of the

important state interests (administering

public assistance programs, and the

fiscal integrity of those programs) which

were involved in the state court proceed-

ings.

In the Middlesex County case the

Court held that a federal court should not

interfere with state bar disciplinary

proceedings in state court:

“Because respondent Hinds. had an

‘opportunity to raise and have timely

decided by a competent state tribunal

the federal issues involved,' Gibson

ve. Berryhill, 411 0U.S., at 577, and

because no bad faith, harassment, or

other exceptional circumstances

dictate to the contrary, federal

courts shoulda abstain from interfering

with the ongoing-proceedings." Id. at

437. aLy

The Middlesex County Court established

the following test for abstention: (1)

whether the ongoing proceedings at the

state level constitute judicial proceed-

ings; (2) whether those state proceedings

implicate important state interest; and (3)

whether there is an adequate opportunity to

raise constitutional challenges in the

state proceedings. Middlesex, 457 U.S. at

432.

APP. C-28

The Ninth Circuit has commented that:

"Younger and its progenies’ share

two principal characteristics: (1)

the plaintiffs sought to enjoin the

continuation of the state proceedings

or sought to enjoin state officials

from enforcing a state statute, and

(2) the basis for federal relief could

have been raised as a complete or

partial defense to a pending or

ongoing state enforcement action

during the normal course of the state

proceedings... When these characteris-

tics are not present, however, the

Supreme Court has refused to find the

Younger concerns sufficiently

compelling to warrant federal

equitable restraint, even where a

plaintiff could have raised the claim

in a pending state proceeding."

(citations omitted)

L.H. Vv. Jamiseon, 643 F.2d 1351 (9th Cir.

2. Amalysis of the Evidence

The state paternity and support

enforcement proceedings are judicial

proceedings. As in Trainor, they involve

important state interests in ‘safeguarding

the fiscal integrity’ of the State's

"public assistance programs’, Finally,

APP. C-29

)

the state proceedings provide an adequate

opportunity to raise constitutional

challenges to the procedures, Plaintiffs

have, in fact, raised in the state court

proceedings most if net ai: of the

constitutional challenges asserted in this

Suit.

Plaintiffs assert that’ the state

proceedings are not ongoing, as, after

this motion to dismiss was filed, several

of the individual plaintiffs’ state court

Suits terminated. However, all of the

plaintiffs remain subject to ongoing child

support proceedings. See ORS 169.100;

109.103; 107.135. Under Oregon law’ the

child support proceeding continues until

the support order is vacated or dismissed.

Until that time, either party can file a

motion requesting the state court modify

the support order. Even if the state

ee ee ee ee ee ee eee Se Se ee en ee

court proceedings were not ongoing, the

Ninth Circuit has recognized that Younger

abstention is appropriate where the

plaintiff seeks to enjoin state officials

from enforcing any support order under the

existing regulations and procedures.

3. Conclusion

Because the plaintiffs had an

“opportunity to raise and have timely

decided by a competent state tribunal the

federal issues involved," and because "no

bad faith, harassment, or other

exceptional circumstances dictate to the

contrary," this federal court should

abstain from interfering with the state

court proceedings. Middlesex County at

437.

III. CONCLUSION

Defendant Secretary of Health and

Human Service's motion to dismiss should

be granted. Defendants Hunter and

Putmans' motion to dismiss should be

granted, This action should be dismissed.

Dated this 24 day of April, 1986.

ee —__> -—— ——

George E. Juba

United States Magistrate

APPENDIX D

CONSTITUTIONAL PROVISIONS

The Supremacy Clause

Article 6, Clause 2, The Supremacy Clause

of the United States Constitution, pro-

vides:

"This Constitution, and the Laws of

the United States which shall be made

in Pursuance thereof; and all Treaties

made, or which shall be made, under

the Authority of the United States,

shall be the supreme Law of the Land;

and the Judges in every State shall be

bound thereby, any Thing in the

Constitution or Laws of any State to

the Contrary not withstanding."

The Fifth Amendment to the United States

Constitution provides:

"No person shall be held to answer for

a capital, or otherwise infamous

crime, unless on a presentment or

indictment of a Grand Jury, except in

cases arising in the land or naval

forces, or in the Militia, when in

actual service in time of War or

public danger; nor shall any person be

subject for the same offense to be

twice put in jeopardy of life or limb;

nor shall be compelled in any criminal

case to be a witness against himself,

nor be deprived of life, liberty, or

property, without due process of law;

nor shall private property be taken

APP. D-l

for public use, without just

compensation."

The Fourteenth Amendment to the United

States Constitution provides in relevant

part:

"Gection i. All persons born or

naturalized in the United States, and

subject to the jurisdiction thereof,

are citizens of the United States and

of the State wherein they reside. No

State shall make or enforce any law

which shall abridge the privileges or

immunities of citizens of the United

States; nor shall any State deprive

any person of life, liberty, or

property, without due process of law;

nor deny to any person within its

jurisdiction the equal protection of

the laws."

* & & &. 2

STATUTORY PROVISIONS IN PERTINENT PART

5 USC § 706. Scope of review

"To the extent necessary to decision

and when presented, the reviewing

court shall decide all relevant

questions of law, interpret constitu-

tional and statutory provisions, and

determine the meaning of applicability

of the terms of an agency action. The

reviewing court shall -- :

* &£ & @

APP. D-2

"(2) hold unlawful and set aside

agency action, findings, and

conclusions found to be --

"(A) arbitrary, capricious, an abuse

of discretion, or otherwise not in

accordance with law;

"(B) contrary to constitutional

right, power, privilege, or

immunity;

: 2.8 @n

28 USC 8 1331. Federal Question

"The district courts shall have

Original jurisdiction of all civil

actions arising under the Constitu-

tion, laws, or treaties of the United

States."

42 usc $ 681. Authorization of appro-

priations

"For the purpose of encouraging the

care of dependent children in their

own homes or in the homes of relatives

by enabling each State to furnish

financial assistance and rehabilita-

tion and other services, as far as

practicable under the conditions in

such state, to needy dependent

children and the parents or relatives

with whom they are living to help

maintain and strengthen family life

and to help such parents or relatives

to attain or retain capability for the

maximum self-support and personal

independence consistent with the

maintenance of continuing parental

care and protection, there is hereby

authorized to be appropriated for each

fiscal year a sum sufficient to carry

Out the purposes of this part. The

Sums made available under this section

shall be used for making payments to

States which have submitted, and had

approved by the Secretary, State plans

for aid and services to needy families

with children.

42 USC § 602. State plans for aid and ser-

vices to needy families with children;

contents; approval by Secretary; records

and reports; treatment of earned income

advances

"“(a) Contents

"A State plan for aid and services to

needy families with children must --

(1) provide that it shall be in

effect in all political subdivisions

of the State, and, if administered

by them, be mandatory upon them;

(2) provide for financial participa-

tion by the State;

(3) either provide for the estab-

lishment or designation of a single

State agency to administer the plan,

or provide for the establishment or

designation of a single State agency

to supervise the administration of

the plan;

APP. D4

(4) provide for granting an oppor-

tunity for a fair hearing before the

State agency to any individual whose

claim for aid to families with

dependent children is denied or is

not acted upon with reasonable

promptness;

(5) provide such methods of adminis-

tration * * * as are found by the

Secretary to be necessary for the

proper and efficient operation of

the plan;

2. Ls 2.2.2

(7) except as may be otherwise

provided in paragraph (8) or (31)

and section 615 of this title,

provide that the State agency --

(A) shall, in determining need,

take into consideration any

other income and resources of

any child or relative claiming

aid to families with dependent

children, or of any other

individual (living in the same

home as such child and relative)

whose needs the State determines

should be considered in deter-

mining the need of the child or

relative claiming such aid;

ee. £ & 2.

(11) provide for prompt notice

(including the transmittal of all

relevant information) to the State

child support collection agency

APP. D-5

(established pursuant to part D of

this subchapter) of the furnishing

of aid to families with dependent

children with respect to a child who

has been deserted or abandoned by a

parent (including a child born out

of wedlock without regard to whether

the paternity of such child has been

established);

ee SS 8. aS

"(26) provide that, as a condition of

eligibility for aid, each applicant or

recipient will be required --

"(A) to assign the State any

rights to support from any other

person such applicant may have (i)

in his own behalf or in behalf of

any other family member for whom

the applicant is applying for or

receiving aid, and (ii) which have

accrued at the time such

assignment is executed;

"(B) to cooperate with the State

(i) in establishing the paternity

of a child born out of wedlock

with respect to whom aid is

claimed, and (ii) in obtaining

support payments for such appli-

cant and for a child with respect

to whom such aid is claimed, or in

obtaining any other payments or

property due such applicant or

such child, unless (in either

case) such applicant or recipient

is found to have good cause for

refusing to cooperate as

Co — — se

determined by the State agency in

accordance with standards pre-

scribed by the Secretary, which

Standards shall take into consid-

eration the best interests of the

child on whose behalf aid is

claimed; * * *"

42 USC ° 653. Parent Locator Service

(a) Establishment; purpose

"The Secretary shall establish and

conduct a Parent Locator Service,

under the direction of the designee of

the Secretary referred to in .section

652(a) of this title, which shall be

used to obtain and transmit to any

authorized person (as defined in sub-

section (c) of this section) informa-

tion as to the whereabouts of any

absent parent when such information is

to be used to locate such parent for

the purpose of enforcing support

obligations against such parent.

e-< 2 &- Bee

42 USC § 654. State plan for child and

spousal support

"A state plan for child and spousal

support must --

se @ee @

APP. D-7

(4) provide that such State will

undertake --

"(A) in the case of a child born

out of wedlock with respect to

whom an assignment under section

6@2(a)(26) of this title is

effective, to establish the pater-

nity of such child, unless the

agency administering the plan of

the State under part A of this

subchapter determines in accor-

dance with the standards

prescribed by the Secretary

pursuant to section 602(a) (26) (B)

of this title that it is against

the best interests of the child to

do so, and

zx eke & ®

"(9) provide that the State will, in

accordance with standards prescribed

by the Secretary, cooperate with any

other State --

"(A) in establishing paternity, if

necessary.

oe 22.2 42e

42 USC 666. Requirement of statutorily

prescribed procedures to improve effective-

ness of child support enforcement

"(a) Types of procedures required

"In order to satisfy section

654(2@0)(A) of this title, each State

must have in effect laws requiring the

APP. D-8

use of the following procedures,

consistent with this section and with

regulations of the Secretary, to

increase the effectiveness of the

program which the State administers

under this part:

i. ee

"(5) Procedures which permit the

establishment of the paternity of

any child at any time prior to

such child's eighteenth birthday.

e 2:82 - @¢.25

42 USC - 1362. Rules and regulations

"The Secretary of the Treasury, the

Secretary of Labor, and the

Secretary of Health and Human

Services, respectively, shall make

and publish such rules and

regulations, not inconsistent with

this chapter, as may be necessary to

the efficient administration of the

functions with which each is charged

under this chapter."

42 USC § 1983. Civil action for depriva-

tion of rights

"Every person who, under color of

any statute, ordinance, regulation,

custom, or usage, of any State or

Territory or the District of Colum-

bia, subjects, or causes to be

subjected, any citizen of the United

States or other person within the

jurisdiction thereof to the depriva-

APP. D9

tion of any rights, privileges, or

immunities secured by the

Constitution and laws, shall be

liable to the party injured in an

action at law, suit in equity, or

other proper proceeding for redress.

For the purposes of this section,

any Act of Congress applicable

exclusively to the District of

Columbia shall be considered to be a

statute vt the OTECriet of

Columbia."

REGULATORY PROVISIONS

IN PERTINENT PART

45 CFR 2 265.10. Hearings

"(a) State plan requirements. A State

plan under title I, IV-A, X, XIV, or

XVI of the Social Security Act shall

provide for a system of hearings under

which:

(1) The single State agency responsi-

ble for the program shall be responsi-

ble for fulfillment of hearing provi-

sions which shall provide for:

(i) A hearing before the State agency,

(ii) An evidentiary hearing at the

local level with a right of appeal to

a State agency hearing. Where a state

agency adopts a system of evidentiary

hearings with an appeal to a State

agency hearing, it may, in some

political subdivisions, permit local

evidentiary hearings, and in others,

APP. D-1@

ee eee

provide for a single hearing before

the State agency. Under this

requirement hearings shall meet the

due process standards set forth in the

US Supreme Court decision in Goldberg

v. Kelly, 397 U.S. 254 (1970) and the

standards set forth in this section."

45 CFR 206.19. Application, determina-

tion of eligibility and furnishing of

assistance.

"(a) State plan requirements. A State

plan under title I, IV-A, X, IV, or

XVI(AABD), of that Social Security Act

shall provide that:

xkkk tk

"(4) Adequate notice shall be sent to

applicants and recipients to indicate

that assistance has been authorized

(including the amount of financial

assistance) or that it has been

denied or terminated. Under this

requirement, adequate notice means a

written notice that contains a state-

ment of the action taken, and the

reasons for and specific regulations

supporting such action, and an

explanation of the individual's right

to request a hearing.

2°. 82 -&.-@

"(7) In cases of proposed action to

terminate, discontinue, suspend or

reduce assistance, the agency shall

give timely and adequate notice. Such

notice shall comply with the

APP. D-1l

provisions of @ 205.18 of this

chapter."

45 CFR $ 232.11. Assignment of rights to

support.

"(a) The State plan must provide that:

(1) As a condition of eligibility for

assistance, each applicant for or

recipient of AFDC shall assign to the

State any rights to support from any

Other person as such applicant or

recipient may have: * * *"

45 CFR 2 232.12. Cooperation in obtaining

Support.

"The State plan must meet all

requirements of this section.

"(a) The plan shall provide that as a

condition of eligibility for assis-

tance, each applicant for or recipient

of AFDC will be required to cooperate

(unless good cause for refusing to do

so is determined to exist in accor-

dance with S$ 232.48 through 232.49 of

this chapter) with the State in:

"(1) Identifying and locating the

parent of a child for whom aid is

claimed;

"(2) Establishing the paternity of a

child born out of wedlock for whom aid

is claimed; —~ ——

x* *&* *& *& en

APP. D-12

45 CFR §& 232.43. Proof of good-cause

claim.

"The plan shall provide that:

"“(a) The State or local agency wiil

make a good-cause determination based

on the corroborative evidence supplied

by the applicant or recipient only

after it has examined the evidence and

found that it actually verifies the

good-cause claim.

e 2.@ 2@.@

"(g) The State or local agency may

further verify the good-cause claim if

the applicant's or recipient's state-

ment of the claim required by

232.4@(c)(1)(i), together with the

corroborative evidence do not provide

sufficient basis for making a deter-

mination. When the State or local

agency determines that it is

necessary, the agency may conduct an

investigation of good-cause claims to

determine that good cause does or does

not exist.

"(h) If it conducts an investigation

of a good-cause claim, the State or

local agency will:

"(1) Contact the absent parent or

putative father from whom support

would be sought if such contact is

determined to be necessary to estab-

lish the good-cause claim; and

APP. D-13

"(2) Prior to making such necessary

contact, notify the applicant or

recipient to enable the applicant or

recipient to:

"(i) Present additional corroborative

evidence or information so that con-

tact with the parent or putative

father becomes unnecessary;

"(ii) Withdraw the application for

assistance or have the case closed; or

"(iii) have the good-cause claim

denied."

45 CFR e 2324.43. Notice to the IV-D

Agency

"The plan shall provide that:

"“(a) If the notice, required by

235.780 of this chapter, has previously

been provided to the IV-D agency, the

State or local agency will promptly

report to the IV-D agency that good

cause has been claimed;

"(b) The state or local agency will

promptly report to the IV-D agency all

cases in which it has been determined

that there is good cause for refusal

to cooperate and if applicable, its

determination whether or not child

Support enforcement may proceed

without the participation of the care-

taker relative; and ,

"(c) The State and local agency will

promptly report to the IV-D agency all

APP. D-14

cases in which it has determined that

there is not good cause for refusal to

cooperate,"

45 CFR §& 232.49. Enforcement without the

caretaker's cooperation.

"The State plan may provide that:

"(a) If the State or local agency

makes a determination that good cause

exists it will also make a determina-

tion of whether or not child support

enforcement could proceed without risk

of harm to the child or caretaker

relative if the enforcement or collec-

tion activities did not involve their

participation;

"(b) This determination will be in

writing, contain the agency's findings

and basis for determination, and be

entered into the AFDC case record;

"(c) If the IV-A agency excuses coop-

eration but determines that the IV-D

agency may proceed to establish pater-

nity or enforcement support, it will

notify the applicant or recipient to

enable such individual to withdraw

their application for assistance or

have the case closed; and

"(d) Prior to making a determination

under this paragraph, the State or

local agency will afford the IV-D

agency an opportunity to review and

comment on the findings and basis for

the proposed determination and

APP. D-15

consider any recommendation from the

IV-D agency."

45 CFR $ ‘ei ye - Need and amount of

assistance.

"(a) Requirements for State Plans. A

State Plan for OAA, AFDC, AB, APTD or

AABD must, as specified below:

"(1) General. (i) Provide that the

determination of need and amount of

assistance for all applicants and

recipients will be made on an objec-

tive and equitable basis and all types

of income will be taken into |

consideration in the same way except

where otherwise specifically

authorized by Federal statute and

x * *eN

Are ae tie

45 CFR § 235.70. Prompt notice to child

Support agency.

"“(a) A State plan under Title IV-A of 4

the Social Security Act must provide

for prompt notice to the State or

local child support agency designated

pursuant to section 454(3) of the

Social Security Act whenever:

"(1) Aid is furnished to a child who j

has been deserted or abandoned by a

parent, to the parent(s) with whom the

child lives, or to a pregnant woman

under S 233.98 (c)(2) (iv), or

"(2) Any of the persons in paragraph

(a)(1) of this section is deemed to be

APP. D-16

a recipient of aid under $ 233.26 (a)

(3) (viii) (D).

"(b) In this section:

"(1) 'Aid' means Aid to Families with

Dependent Children, or AFDC Foster

Care.

"(2) ‘Prompt notice’ means written

notice including a copy of the AFDC

case record, or all relevant informa-

tion as prescribed by the child

Support agency. The prompt notice

shall be provided within two working

days of the furnishing of aid or the

determination that an individual is a

recipient under 233.20 (a) (3)

(viii)(D). The title IV-A agency and

the child support agency may agree to

provide notice immediately upon the

ftiing of an application for

assistance.

"(3) 'Furnish' means the date on which

cash is given to the family, a check

Or warrant is mailed to the family, a

deposit is made in a bank for the

family, or other similar circumstances

in which an assistance payment is made

to the family, or the date on which

individuals are determined to be

recipients under & 233.26 (a) (3)

(viii) (D).

"(4) "A child who has been deserted or

abandoned by a parent' means any child

whose eligibility for AFDC is based on

continued absence of a parent from the

home, and includes a child born out of

APP. D-17

wedlock without regard to whether the

paternity of such child has been

established."

45 CFR § 302.31. Establishing paternity

and securing support.

"The State plan shall provide that:

"(a) The IV-D agency will undertake:

"(1) In the case of a child born out

of wedlock with respect to whom an

assignment under $ 232.11 of this

title or section 471l(a)(17) of the Act

is effective, to establish the

paternity of such child; and

"(2) In the case of any individual

with respect to whom an assignment

under 232.it of this titie: or

section 471l(a)(17) of the Act is

effective to secure support for a

child or children from any person who

is legally liable for such support,

using State laws and reciprocal

arrangements adopted with other States

when appropriate. Effective Octo-

ber 1, 1985, this includes securing

Support for a spouse or former spouse

who is living with the child or

children, but only if a support

obligation has been established for

that spouse and the child support

obligation is being enforced under the

title IV-D State plan.

"(3) When assigned support payments

are received and retained by an AFDC

recipient, to proceed as follows:

APP. D-18

"(i) In States that implement the IV-A

State plan requirements to count

retained support payments as income

under 45 CFR 233.20(a)(3)(v), the IV-D

agency shall notify the IV-A agency

whenever it discovers that directly

received payments are being, or have

been, retained; or

"(ii) In States that do not implement

the IV-A State plan requirements to

count retained support payments as

income to meet need, the IV-D agency

shall recover the retained payments.

This recovery by the IV-D agency shall

be carried out in accordance with the

standards for program operations

provided in 5 303.880 of this chapter.

"(b) Upon receiving notice from the

IV-A or IV-E agency that there has

been a claim of good cause under

232.48 of this title, the IV-D agency

will suspend all activities to

establish paternity or secure support

until notified of a final determina-

tion by the IV-A or IV-E agency.

"(c) The IV-D agency will not under-

take too establish paternity or secure

Support in any case for which it has

received notice from the IV-A or IV-E

agency that there has been a finding

of good cause pursuant to 232.40

through 232.49 of this title unless

there has been a determination by the

State or local IV-A or IV-E agency

that support enforcement may proceed

without the participation of the

APP. D-19

caretaker or other relative. If there

has been such a determination, the

IV-D agency will undertake to

establish paternity or secure support

but may not involve the caretaker or

other relative in such undertaking."

42 CFR ® 3062.50. Support obligations.

"The state plan shall provide as

follows:

"(a) The support rights assigned to

the IV-D agency pursuant to 233.11

of this title or section 471(a)(17) of

the Act constitute an obligation owed

to the State by the individual

responsible for providing such

support. Such obligation shall be

established by:

"(1) Order of a court of competent

jurisdiction,

"(2) Other legal process as estab-

lished by State laws, such as an

administrative hearing process or a

legally enforceable and binding

agreement; or,

"(3) For cases receiving child support

services under the provisions of sec-

tion 48@2(a)(17) an (18) of the Act

prior to July 1, 1975, the obligation

may be that established by an agree-

ment which was entered into prior to

July 1, 1975 which does not meet the

requirement of paragraph (a)(2) of

this section, In the event of a

breach of the agreement, such agree-

APP. D-20@

ment must be superseded pursuant to

paragraph (a)(1) or (2) of this sec-

tion as soon as possible. All agree-

ments not meeting the requirements of

paragraph (a)(1) or (2) of this

section must be superseded pursuant to

paragraph (a)(1l) or (2) of this sec-

tion on the basis of one-third by

January 1, 1976, two-thirds by July l,

1976, and all by January 1, 1977;

"(b) The amount of the obligation

described in paragraph (a) of this

section shall be:

"(1) The amount specified in the order

of a court of competent jurisdiction

which covers the assigned support

rights; or

"(2) If there is no court order, an

amount determined in writing by the

IV-D agency as part of the legal proc-

ess referred to in paragraph (a)(2) of

this section in accordance with a

formula which meets the criteria pre-

scribed in e 302.53.

"(c) The obligation described in para-

graph (a) of this section shall be

deemed for collection purposes to be

collectible under all applicable State

and local processes.

"(d) Any amounts which represent

Support payments collected from an

individual responsible for providing

Support under the State plan shall

reduce, dollar for dollar, the amount

of his obligation under this section.

APP. D-21

"(e) No portion of any amounts col-

lected which represent a support obli-

gation assigned under § 232.11 of this

title may be used to satisfy a medical

support obligation unless the court or

administrative order requires a

specific amount for medical support."

42 CFR 303.4. Establishment of support

obligations.

"For all cases referred to the IV-D

agency Or applying under § 362.33 of

this chapter, the IV-D Agency must:

"(a) When necessary, establish pater-

nity pursuant to the standards of 2

303.5;

"(b) Utilize appropriate State

Statutes and legal processes in

establishing the support obligation

pursuant to § 302.58 of this chapter.

"(c) Review the support obligation

periodically and whenever the IV-D

agency becomes aware of changes in the

factors which determine the amount of

the support obligation."

42 CFR § 303.5. Establishment of pater-

nity.

“(a) For all cases referred to the

IV-D agency or applying under § 362.33

of this chapter in which paternity has

not yet been established, the IV-D

agency must:

"(1) Attempt to establish paternity by

court order or other legai process

established under State law; or

"(2) Establish paternity by acknowl-

edgment if under the State law such

acknowledgment has the same legal

effect as court-ordered paternity,

including the right to benefits other

than child support.

"“(b) The IV-D agency need not attempt

i to establish paternity in any case

= involving incest or forcible rape, or

% in any case in which legal proceedings

7 for adoption are pending, if, in the

i opinion of the IV-D agency, it would

f not be in the best interests of the

. child to establish paternity.

"(c) The IV-D agency shall identify

id laboratories within the State which

i perform legally and medically accept-

2 able tests, including blood tests,

. which tend to identify the father or

& exclude the alleged father from pater-

: nity. A list of such laboratories

shall be available to appropriate

courts and law enforcement officials,

and to the public upon request.”

42 CFR @ 303.7. Cooperation with other

States.

"“(a) For all cases referred to the

IV-D agency under the State plan of

another State, the IV-D agency must

assist the other State in locating an

absent parent, establishing paternity,

Or szecuring support for a child or

APP. D-23

children and for the spouse (or former

spouse) of the absent parent with whom

the child or children are living in

the other State. Under this standard,

the IV-D agency must:

"(1) When necessary, locate the

putative father or absent parent

utilizing the standards prescribed in

§ 303.3.

"(2) When necessary, establish pater-

nity or assist the other State in

establishing paternity;

"(3) Process and enforce all court

orders referred by another State,

whether pursuant to the Uniform

Reciprocal Enforcement of Support Act ;

or other legal processes. The IV-D :

agency shall utilize the same remedies ‘

normally applied to its own cases;

® 2,82 8 2.

42 CFR § 305.24. Establishing paternity.

"For the purposes of this part, in

order to be found to be in compliance

with the State plan requirement that

the State undertake the establishment

of paternity (45 CFR 3902.31(a) and

302.33), a State must:

re £ 2: £2 4

"(b) Have established and use written ba

procedures for establishing the 7

paternity of any child at least until ‘

the child's 18th birthday: * * * * *" 4

APP. D-24

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.