Petition for Writ of Certiorari — Shipman v. Missouri Division of Child Support Enforcement
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NOV 16 1989
JOSEPH F. SPANIOL, JR,
No. CLERK
IN THE
SUPREME COURT of the UNITED STATES
OCTOBER TERM, 1989
LINDEN SHIPMAN,
Petitioner,
VS.
MISSOURI DIVISION OF CHILD SUPPORT
ENFORCEMENT, JOSEPH J. O'HARA,
MICHAEL R. HENRY, and WILLIAM R.
RAPPS, Individually and as Director of the Division
of Child Support Enforcement,
Respondents.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT
JIM R. BRUCE
(Counsel of Record)
Post Office Box 37
Kennett, Missouri 63857
Telephone:(314) 888-9696
Attorney for Petitioner
November, 1989
Dorp
1.)
2.)
i
QUESTIONS PRESENTED FOR REVIEW
Whether a plaintiff is a prevailing party within the
meaning of 42 U.S.C. §1988 when the defendant
after four (4) years of vigorous and determined
litigation voluntarily concedes the relief sought and
admits he was motivated in his action by hope of
resolving the lawsuit.
Whether a case challenging the practices of state
officials in setting and enforcing the "state debt"
becomes moot when the statute creating the debt
is amended but does not change the practice of the
officials who continue to insist on the validity of
those practices.
TABLE OF CONTENTS
Questions Presented for Review ................. i
RE iii
Ee ere Vv
Ce nC Sees Scab esccceccccecses vii
EES Ee vii
Constitutional Provisions and Statutes Involved ..... vii
EEE ES arr l
Reasons for Granting the Writ .................. 7
I. The Decision below Conflicts with the
Decisions of Other Courts of Appeals
Respecting the Proper Interpretation
DUCT, SRS Saw S 6c cacesescces 7
2. The Eighth Circuit’s Decision is in
Conflict with this Court’s Decision
DE PGC GS Sees eccocsaccecece 14
ORCC e cL LRG SOR a Saacasesscceseess 16
Appendix of Statutes and Rules
Appendix 1 (Order of Court of Appeals entered
August 18, 1989 Denying Petition for Re-
DCCL Ce hcceh ROMs Se aSadaneece Al
Appendix 2 (Order of Court of Appeals entered
Se eee A2
iv
Appendix 3 (Order of Court of Appeals entered
February 1, 1989 Denying Moiion to Recall
PRU URETECTCTEIETE LTT LL A3
Appendix 4 (Opinion of Court of Appeals dated
SUD TR, TED cw cccese sens cwesicsees A4
Appendix 5 (Memorandum Opinion and Order
of District Court dated May 20, 1988
denying Attorney Fees) .............. Al2
Appendix 6 (Memorandum Opinion and Order
of District Court dated January 25, 1988
GEES GUT) gn wc ccccecctens A30
Appendix 7 (Opinion of Court of Appeals dated
oo dg eee Terre eee A43
Appendix 8 (Excerpt from 45 Code of Federal
Ree A47
Appendix 9 (Excerpts from Testimony of Michael
Henry, March 28-29, 1988) ............ A49
——— —
Vv
TABLE OF AUTHORITIES
Cases
Bonnes vs. Long, 455 U.S. 961,
71 L.Ed.2d 681, 102 S.Ct. 1476
i KER ree er ee ee ee ee eee 7-9,
Casines vs. Murchek, 766 F.2d 1494, 1504
Ae PT VP CET TEU
Charles vs. Coleman, 689 F.2d 774, 776
op PL TL Tee EERE
City of Mesquite vs. Aladdin’s Castle, Inc.,
455 U.S. 283, 289, 71 L.Ed.2d 152, 159,
Ge IC cp UGcewe sad ei cncceds
Deakins vs. Monaghan, _U.S.___, 98 L.Ed.2d
529, 539, i cs 6 es iw wa <5 6 oo 0.8
DeMier vs. Gondles, 676 F.2d 92
Se PRES ee SEW Kea wwses ce csweces
Detroit, Toledo R. Co. vs. Consolidated R., Co.,
Pee Wee eG BUD nc ee ice cens
Gerena-Valentine vs. Koch, 739 F.2d 755, 759
Re a re
Hennigan vs. Ouchita Parish School Board,
749 F.2d 1148 (Sth Cir. 1985) ............... 9.
Hewitt vs. Helms, 482 U.S. 755, 96 L.Ed.2d
ee ee eee ee
Koppel vs. Wien, 743 F.2d 129, 135
NR CR Ee
Luethje vs. Peavine School District
of Adair County, 872 F.2d 352, 354
oo BE ES ne are
Morrison vs. Ayboob, 627 F.2d 669,
671 (3rd Cir. 1980) cert. denied
oo ee 9,
N.A.A.C.P. vs. Wilmington Medical
vl
Center, Inc., 689 F.2d 1161, 1169
(Su Ce, TURD oc ccc cc ces seccececcscene 911
Nadeau vs. Helgemoe, 581 F.2d 275
( te 3. eer Tere erraee Te 8, 10-11
Oldham vs. Ehrlich, 617 F.2d 163,
OGD GRU GR. THD kc ccs wccce ce cccesesse 9
Posada vs. Lamb County, 716 F.2d
0066, 1072 (Sth Cir. BSS) www ccc ccc ccces 10-11
United Handicapped Federation vs. Andre,
622 F.2d 342, 346 (8th Cir. 1980) 2... 2... 68. 9-11
Woe vs. Nebraska State Department of
Public Welfare, 608 F.2d 302-303
(Gah CO, TRVED a hic ww cee s Saw SScecnvccses 9, 14
Constitutional Provisions
U.S. Const., Art. VI, Supremacy Clause ........... 3
Us Goa. QERGE, Fate Oe hank wks wha es ds ane.ce 3
Statutes and Regulations
Rev. Stat. Mo. §454.465 2.2.2... .......058. 1, 3, 4, 14
Rev. Stat. Mo. §454.510 2.0... 0.0.0.0... ce eee 3
Rev. Stat. Mo. §454.575 2 06 ee ns 4
GD Ge I 0 6 0 006.06 6066500066 9406 eo 85 3
oo FPP rere erasers 2
4S CURR. SOUBSS ow ccc ccc cece ncn 2, 15
GB UB HED occ cc ccc cece cece cuceesn l
GE Waitan ED © 6600666 006 0 68st ese ncisnde 3
42 US.C. $1988 ooo ooo cece cece ee i, 6,7
vii
OPINIONS BELOW
The opinions of the Eighth Circuit
Court of Appeals and the District Court are not reported with the
exception of 588 F.Supp. 1203 (E.D. Mo. 1984), vacated 782 F.2d.
1048 (8th Cir. 1985). They are reprinted in the Appendix hereto.
JURISDICTION
The judgement of the United
States Court of Appeals for the Eighth Circuit was entered on
June 12, 1989. A timely petition for rehearing and suggestions for
rehearing en banc were denied on August 18, 1989 and this
petition for certiorari is being filed within 90 days of that date.
The Court's jurisdiction is invoked under 28 U.S.C. §1254(1).
STATUTORY PROVISION INVOLVED
42 U.S.C. $1988:
In any action or proceeding to
enforce a provision of sections . . . 1983 . . . of this title . . . the
court, in its discretion, may allow the prevailing party, other than
the United States, a reasonable attorney's fee as a part of the cost.
IN THE
SUPREME COURT of the UNITED STATES
OCTOBER TERM, 1989
LINDEN SHIPMAN,
Petitioner,
Vs.
MISSOURI DIVISION OF CHILD SUPPORT
ENFORCEMENT, JOSEPH J. O'HARA, MICHAEL R. HENRY,
and WILLIAM R. RAPPS, Individually and as Director of the
Division of Child Support Enforcement,
Respondents.
PETITION FOR WRIT OF CERTIORARI
TO THE
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
STATEMENT OF THE CASE
The State of Missouri participates in the joint state-federal
Child Support Enforcement Program under Title IV-D of the
Social Security Act. 42 U.S.C. §651-665. The statutory scheme
requires the State to adopt a state plan for establishing and
enforcing the payment of child support. It provides for recovery
from a non-custodial parent of public assistance (i.e. Aid to
Families with Dependent Children and Medicaid) paid by the state
on behalf of the dependent children and the custodial parent.
In 1982 Missouri enacted §454.465 et seq. R.S.Mo.
2
empowering the Director of the Division of Family Services (DFS)!
to set the amount of the debt owed to the state ("state debt") in
cases where no court order covered that parent’s support
obligation. Unlike the federal program regulation at 45 C.F.R
§§302.50 and 302.53 which require the use of a formula to
determine the state debt, the state statute instructed the Director
to set the debt at an amount equal to the total amount of public
assistance paid. (See Appendix A49)
In September 1979 Petitioner Linden Shipman was divorced
from Maudie Shipman. He had four children, two of which were
children of that marriage. The divorce decree awarded the wife
custody of their two minor children but was silent as to any
support obligation. From March 1978 through March 1983 she
received Aid to Families with Dependent children (AFDC) from
DFS. She also received AFDC from June-September 1983 and
April- May 1984.
On April 6, 1983, the Director initiated an administrative
collection proceeding against Shipman by issuing a Notice of
Finding of Financial Responsibility/State Debt. The Notice set the
state debt at $11,722.00, the amount of public assistance paid to
Maudie Shipman through March 1983 and named Shipman as the
Respondent. At the time Shipman had remarried and was
supporting a wife, two of his own children and three step-children
as a laborer earning $3.65 per hour. The family had also qualified
for food stamps. (Defendant’s Hearing Exhibit H, unnumbered
page 77 introduced at March 28-29, 1988 Hearing).
The Notice and supporting payment records were certified
1 The Division of Family Services was designated as the state agency
responsible for administration of the Child Support Enforcement Program in
Missouri. The Division of Child Support Enforcement was created in 1986 as the
successor agency to DFS and assumed responsibility for administration of the
program. Both agencies are referred to herein as the “Division.”
3
by the Division to the Circuit Court of Dunklin County for
hearing. There was no opportunity for a hearing prior to the
findings by the Director although a form request for a hearing was
served with the Notice. He was informed that he was responsible
for repaying the state debt under §454.465 et seq. and unless he
requested a hearing within twenty (20) days, an administrative
default order would be entered subjecting any wages or property
to withholding, garnishment, liens and execution. Shipman
returned the request stating that he lacked the ability to pay the
debt and had never been informed he owed any child support.
Shipman subsequently filed suit under 42 U.S.C. §1983 in
United States District Court for the Eastern District of Missouri
seeking injunctive relief, monetary damages, declaratory judgement
and attorney fees under 42 U.S.C. §1988. In his complaint,
Petitioner asserted the practices of the Director in setting and
enforcing the state debt at the total amount of public assistance
paid violated the Fourteenth Amendment and the Supremacy
Clause of the Constitution of the United States and the federal
program regulations at 45 C.F.R. §302.1 et seq. Plaintiff further
asserted that the administrative hearing process was defective in
that it was not within the scope of or subject to review under the
Missouri Administrative Procedures Act and that the Missouri
Supreme Court had declined to issue any rules for conducting the
hearings referred to the circuit court although expressly authorized
to do so under §454.510 R.S.Mo.
On June 18, 1984, approximately ten (10) months after suit
was filed, the Missouri legislature amended §454.465 et seq. to
authorize the Director to set the state debt in an amount “not to
exceed the amount of public assistance paid." The circuit courts
were no longer responsible for conducting administrative hearings
for that function was transferred to an administrative hearing
officer within the Division. The amendments specifically provided
that the hearings would be conducted pursuant to the procedures
4
and practices provided in Chapter 536, R.S.Mo. (the Missouri
Administrative Procedures Act). The amendment further provided
the “division shall not be stayed from enforcing and collecting upon
the administrative order during the hearing process and during any
appeal to the courts of this state, unless specifically enjoined by
court order." 454.475 R.S.Mo. 1984.
The federal district court dismissed the entire action,
including the damage claim, eleven (11) days later on June 29,
1984 on abstention grounds and petitioner appealed to the Eighth
Circuit Court of Appeals. Shipman thereafter moved to dismiss
the administrative hearing before the state circuit court based on
the 1984 amendments which transferred all authority for hearings
to an administrative hearings officer. The Division opposed
dismissal and the court remanded to the Division for further
proceedings under the amended hearing provision, but stayed the
remand in order to permit the Division to seek a writ of
prohibition in the Missouri Court of Appeals. The Division filed
a petition for writ of prohibition to prevent remand of the case
and to require the circuit court to decide the state debt under the
1982 statutes.
In the parallel federal appeal, the Eighth Circuit vacated
the order of dismissal entered by the district court and remanded
with directions to retain jurisdiction until the Missouri Court of
Appeals had ruled on the writ of prohibition. If the writ were
denied and the case remanded to the Division for further
proceeding, the district court was instructed to dismiss the entire
case, including the claim for monetary damages, as moot. In their
brief before the Eighth Circuit filed almost five months after the
1984 amendments, the Defendants themselves had maintained the
1984 amendments to §454.465 et seq. "did not moot appellant’s
claims, except for future relief" (Brief of Appellees in appeal No.
BPE NMA IR
5
84-1961 EM, Argument III, p.41).?
The writ of prohibition was ultimately denied and the
proceeding remanded to the Division for further proceedings. On
July 30, 1987, plaintiff moved in the federal district court to amend
his complaint asserting that despite the amendments, the
Defendants were continuing their practice of setting the state debt
at the amount of public assistance paid contrary to the mandate of
the federal regulations. -
Plaintiff moved for summary judgement on September 9th.
On November 4th Defendants filed a cross motion for summary
judgement. On November Sth the district granted leave to amend
and scheduled a hearing for November 9, 1987 on pending
motions. At that hearing, counsel for the state announced to the
court that he intended to file a motion to dismiss for lack of
standing and that Defendant Henry was expected to provide an
affidavit in support of the motion. (TR. Hearing of November 9,
1987, p. 22-23, lines 16-25/1-8). On December 4th Defendant
submitted an affidavit in which he stipulated that the administrative
—
2 Defendants further acknowledged:
It is impossible to ascertain that all of Appellant’s allegations
have been mooted by the enactment of House Bill No. 1275
[including amendments to §454.465 et seq.] because the entire
method for establishing and collecting the state debt has not
been changed. (Brief p. 44).
Defendant Henry was as a party pursuant to Rule 25 F.R.Civ.P. as
current Director of the Division. Prior to his appointment as Director
he had been a staff attorney for the DFS. He testified during the
Hearing on March 28-29, 1989 that after the 1984 amendments, the
Division did not change its policy of setting or enforcing the state debt
at the total amount of public assistance paid. (TR. Vol. B, pp. 39-40,
lines 24-25/1-2). He further admitted the Division had not adopted the
formula provided by 45 C.F.R. §302.53 for setting the state debt and had
no plans to do so in the future (TR. Vol. B, p. 33, lines 3-18; p. 36, lines
16-20).
6
case had been closed and that the Division would take no further
enforcement actions against Shipman for recovery of the state
debt. At no time prior to November 1987 did the Division notify
Shipman or his attorney that it had withdrawn the Notice of
Financial Responsibility/State Debt or otherwise dismissed or
closed the administrative proceeding (Memorandum Opinion dated
May 20, 1987, Finding of Fact No. 46 and 48).
On January 25, 1988, the district court granted summary
judgement dismissing the case as moot and for lack of standing.
Shipman filed a timely notice of appeal. He also filed an
application for an award of attorney fees as a "prevailing party"
under 42 U.S.C. $1988 based on the relief conceded by Defendant
Henry.
At the hearing on the motion, Defendant Henry testified
that he had first considered waiving the state debt in early
November 1987 after he was made aware of the possibility of
doing so in conversations with his attorney. (TR., Vol. B, p. 31,
lines 14-19). He stated he believed that his decision not to pursue
the state debt against Shipman "would help resolve the dispute"
and deprive Shipman of standing to proceed (TR., Vol. B, p. 22-
23, lines 6-25/1-6).
The district court ruled Shipman was not a "prevailing
party" within the meaning of $1988 and was ineligible for an award
of attorney fees and costs. It held he had failed to prove a causal
link between the lawsuit and Defendant Henry’s decision not to
pursue enforcement of the state debt. Shipman appealed.
The appeal from the denial of attorney fees (No. 88-1955)
was consolidated with the appeal of the order of dismissal (No. 88-
1315). Shipman moved the Eighth Circuit to vacate its mandate
in Appeal No. 84-1961 in view of the evidence that the Division
had continued its practice of setting the state debt at the total
amount of public jssistance as it had under the original enactment
and that the case had not become moot until the stipulation in
-
1987 by Defendant Henry. The Court denied the motion.
On June 12, 1989 the Court of appeals affirmed the denial
of attorney fees without analysis. It likewise affirmed the dismissal
for lack of standing and mootness. It held Shipman had alleged no
"real or threatened injuries" under the 1984 amendments and that
any claims for monetary damages or declaratory relief became moot
once the Missouri Court of Appeals had ruled and the ‘district
court was bound by the law of the case to follow its direction en
remand following the previous appeal.
Shipman filed a request for rehearing with suggestions for
rehearing en banc. Both were denied on August 18, 1989.
Whereupon this petition for Certiorari was filed within ninety (90)
days as provided by Rule 20.2. Jurisdiction is invoked under 28
U.S.C. 1254(1).
REASONS FOR GRANTING THE WRIT
1. THE DECISION BELOW CONFLICTS WITH THE DECSIONS
OF OTHER COURTS OF APPEALS RESPECTING THE
PROPER INTERPRETATION OF 42 U.S.C. $1988.
The decision of the Eighth Circuit Court of Appeals raises
a significant and recurring problem for application of the Civil
Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C, §1988
where a lawsuit is mooted or settled by corrective action on the
part of the defendant. Chief Justice Renquist and Justice
O’Conner have referred to the divergence of views among the
Courts of Appeal on the "important issue of how to determine
when a party ‘prevails’ within the meaning of the Act." Bonnes
vs. Long, 455 U.S. 961, 71 L.Ed.2d 681, 102 S.Ct. 1476 (1982)
dissenting from denial of writ of certiorari.
Where a case is litigated to a conclusion and judgement
entered for the plaintiffs success as a "prevailing party" for
purposes of §1988 may be self-evident. Yet, when a case is
8
mooted or settled by the defendant’s voluntary compliance with the
relief sought in the lawsuit, his status as a prevailing party turns on
the effects of his legal efforts as a catalyst prompting the
defendant to reform his conduct.
In Hewitt vs. Helms, 482 U.S. 755, 96 L.Ed.2d 654, 107 S.ct.
2672(1987) this court stated:
It is settled law, of course, that relief need not be
judicially decreed in order to justify a fee award
under $1988. A lawsuit sometimes produces
voluntary action by the defendant that affords the
plaintiff all or some of the relief he sought through
a judgement--e.g., a monetary settlement or a
change in conduct that redresses the plaintiff's
grievances. When that occurs, the plaintiff is
deemed to have prevailed despite the absence of a
formal judgement in his favor. . . . [I]f the
defendant, under pressure of the lawsuit, alters his
conduct (or threatened conduct) towards the
plaintiff that was the basis for the suit, the plaintiff
will have prevailed. [at 482 U.S. 760-761].
The ruling in Hewitt vs. Helms clarified in part the necessary
condition for qualifying as a prevailing party under the catalyst
theory. A plaintiff it was said must initially show he has received
some benefit generally sought from his lawsuit and that they were
prompted by the suit. The Court found it unnecessary to discuss
the circumstances under which a plaintiffs suit may be said to
have been a catalyst prompting defendant’s voluntary compliance.
While there is general agreement among the circuits that
some causal connection exist between a plaintiff's lawsuit and the
relief or benefit obtained, the standards and degree of causation
differ between circuits and not infrequently within the same circuit.
cf. Bonnes vs. Long, 599 F.2d 1316, 1319 (4th Cir. 1979) cert
denied and Nadeau vs. Helgemoe, 581 F.2d 275 (1st Cir. 1978): also
9
see Hennigan vs. Ouchita Parish School Board 749 F.2d 1148 (Sth
Cir. 1985) and cases cited therein; United Handicapped Federation
vs. Andre, 622 F.2d 342, 346 (8th Cir. 1980); Oldham vs. Ehrlich,
617 F.2d 163, 168 (8th Cir. 1980), Charles vs. Coleman, 689 F.2d
774, 776 (8th Cir. 1982); Woe vs. Nebraska State Department of
Public Welfare, 608 F.2d 302-303 (8th Cir. 1979) (affirming an
award of attorney fees where settlement was the result of a ruling
in a state court action after the federal court had ordered
abstention). Under the various formulations, a plaintiff may be
required to show that the litigation was a “material,” or "major" or
“substantial” or "necessary and important" factor causing the change
in the defendant’s conduct. Other courts have asked whether the
suit "prompted" the defendants to act or served as a “catalyst” or
made a “significant contribution" to the measures taken by the
defendants, or whether the action played a "significant role" in
moving the defendants to act. The degree of proof required to
establish the causal connection likewise varies from a relative low
level as in Bonnes, supra, and the decisions interpreting its
language which require minimal "contribution" to the more
rigorous requirements of Casines vs. Murchek, 766 F.2d 1494, 1504
(11th Cir. 1985) and Gerena-Valentine vs. Koch, 739 F.2d 755, 759
(2d Cir. 1984), cf. NA.A.C.P. vs. Wilmington Medical Center, Inc.,
689 F.2d 1161, 1169 (3rd Cir. 1982) court denied 460 U.S. 1052
(1983), (remedial nature requires application of the most expansive
definition of causation). Several circuits are in accord in qualifying
their causation standards by requiring only that the lawsuit serve
"in part" as a catalyst which prompted the defendant to act and
that “it is not necessary for the plaintiffs lawsuit to be the sole
cause or even primary cause of defendant’s decision to settle.
[Emphasis supplied]. United Handicapped Federation vs. Andre,
supra at 346-347; N.A.A.C.P. vs. Wilmington, supra at 1169:
Morrison vs. Ayboob, 627 F.2d 669, 671 (3rd Cir. 1980) cert.
denied 449 U.S. 1102 (1982); Luethje vs. Peavine School District of
10
Adair County, 872 F.2d 352, 354 (10th Cir. 1989); Posada vs. Lamb
County, 716 F.2d 1066, 1072 (Sth Cir. 1983). Similarly some courts
have shifted the burden in the issue of causation where a
plaintiffs lawsuit is mooted by defendant’s corrective action and
required the defendants to prove the absence of causation. Koppel
vs. Wien, 743 F.2d 129, 135 (2nd Cir. 1984); also see Hennigan vs.
Ouachita Parish School Board, 749 F.2d 1148, 1153-1154 (Sth Cir.
1985).
In cases where a defendant successfully moots a lawsuit by
conceding the relief sought by the plaintiff, the court must
determine whether the lawsuit was a factor motivating the
defendant to act. In those exceptional cases, as here, where a
defendant admits he acted, at least in part, in hope of ending the
lawsuit, a causal link will be clearly established. However,
defendants, on the whole, are usually rather reluctant to concede
that the litigation prompted them to mend their ways. Absent an
admission by the defendant, the trial court is left with an intensely
factual determination and application of the law. Too frequently
these disputes result in protracted litigation which may be more
expensive for the parties and time consuming for the courts than
trial of the mooted or settled action.
The Eighth Circuit Court of Appeals in United
Handicapped Federation vs. Andre, supra, at 346 adopted the two
part test employed in Nadeau vs. Helgemoe, supra, at 281 for
determining a prevailing status in mooted cases. The courts in
Nadeau and Andre held that no attorney fees should be awarded
if the court determines the suit was "completely superfluous" in
achieving the improvements undertaken by the defendants on the
plaintiff's behalf. Neither should fees be granted where the
defendant’s conduct was not required by law. The first test
requires the court find a causal link, ie. that the suit contributed
to the decision to confer relief. Under the first formulation a
plaintiff prevails if his suit and his attorney’s efforts were “a
Se RT I OI ee
li
necessary and important factor in achieving improvements."
Nadeau, at 281. The second is entirely legal and is satisfied by
showing the suit was substantial enough that it would not have
been considered “frivolous, unreasonable or groundless" had the
plaintiff been permitted to press his claim.
The standard adopted by the Fourth Circuit Court of
Appeals in Bonnes vs. Long, supra utilizes only a minimal causation
analysis which turns on ". . . whether as a quite practical matter
the outcome, in whatever form it is realized, is one to which the
plaintiff fee claimant's efforts contributed in a significant way”.
There is a growing consensus among the Circuit Courts of
Appeal that a plaintiffs suit need not be the sole cause or even
primary cause of a defendant's decision to undertake corrective
measures or settle a case. United Handicapped Federation vs.
Andre, supra at page 1072; Posada vs. Lamb County Texas, supra
at 354; Morrison vs. Ayoob, supra at 671; DeMier vs. Gondles, 676
F.2d 92 (4th Cir. 1982). In N.A.A.C.P. vs. Wilmington Medical
Center, supra, at 1169, the court held that a plaintiffs suit need
not have been the sole factor so long as it was a material one
which along with other factors motivated the action taken by the
defendants. It further stated: ". . . in determining whether
causation is shown, a district court is bound to apply the most
expansive definition."
In the present case plaintiff filed his suit in federal court
specifically challenging the practices of the Division in pursuing
collection efforts against him for recovery of the state debt.
Defendant's concession of the state debt after four (4) years of
vigorously opposing any relief was conferred an important benefit.
The district court agreed. (Appendix, A25)
Plaintiff further established a causal link between his suit
and the concession by the defendants. Defendant Henry as
Director of the Division admitted that his decision was made
immediately before the court hearing scheduled for November 9,
12
1987 on pending motions to include plaintiffs motions amend the
complaint and for summary judgement. He first learned of the
possibility of conceding the state debt in conversations with his
attorney prior to the hearing. He understood from those
discussions that by waiving the state's claim he might succeed in
having the case dismissed for lack of standing. He likewise
testified that he decided not to pursue the state debt further in
hopes of resolving the dispute, although he asserted that was not
the “overriding reason.” (Appendix, A49).
In approving plaintiff's application for attorney's fees,
Defendant asserted that he had other reasons for conceding the
state debt. He stated that Shipman did not appear to possess
sufficient assets to pay the debt. However, that assertion was at
best pretextual since the Division was aware of Shipman’s
impecunious situation as early as June 1, 1983 for the Division
appeared through counsel in the state circuit court for an
administrative hearing. (See Defendant's Hearing Exhibit H,
unnumbered page 77 from records in the circuit court proceeding
showing income and family composition). Nevertheless, the
Division vigorously pursued Shipman to collect $11,722.00 in state
debt for the next four (4) years in the circuit court. As a further
reason he stated it had been his belief that the state was
foreclosed by the Missouri statute of limitations from seeking
recovery of more than $600 of its claims. The simple fact is that
the state circuit court remand of the administrative case to the
Division for further proceedings preserved the Division's right to
enforcement of its claims in the ongoing administrative process.
Defendant Henry testified that the Division had closed the
case on May 31, 1984 and no significant action had been taken
against plaintiff since that time. When examined, he admitted no
final determination by the Director, either directly or through
delegation of authority had been made, to close the case until his
decision in November 1987. Moreover, his testimony was
13
erroneous in view of the fact that the administrative case was
pending before the Circuit Court of Dunklin County from May 3,
1983 until July 11, 1986 when it was remanded to the Division.
The Division was well aware of those proceedings inasmuch as it
was represented by counsel in the proceeding before the court and
authorized the filing of a petition for writ of prohibition opposing
remand. (See Defendant's Exhibit H introduced during the
Hearing on March 28-29, 1988). Plaintiff submits that the
attempts to enforce the state debt in state court throughout that
period was indeed a significant enforcement action as was the
continuation of the administrative case on remand. Defendant
Henry's testimony is incredulous since during 1985 plaintiff's
appeal of the federal court's abstention ruling was pending before
the Eighth Circuit, and at no time did Defendants advise the court
or plaintiff that the state debt proceedings had been resolved.
One would not think Defendants would have concealed so vital a
| fact from both the federal and state courts had such a decision
) been made.
The district court found no record that the Division
notified plaintiff the case had been closed and that neither plaintiff
nor his counsel were notified of any case closing. (Appendix,
A23). That conclusion is not surprising since the administrative
case was still pending in the state circuit court.
Defendant Henry claimed he was motivated to concede the
state debt because plaintiff's case was the only administrative
proceeding remanded to the Division by a state court and he was
unsure how to proceed on plaintiff's request for a hearing.
Defendant Henry testified that the case remained inactive
following remand except for periodic updates of plaintiff's
addresses. In such cases a relatively low standard of causation is
appropriate where the evidence shows that the defendant's conduct
was motivated at least in part by a desire to resolve the litigation.
This is especially so where the evidence relevant to the
tell
14
defendant's behavior is under his control and not easily available
to the plaintiff. A stricter standard of causation as applied by the
Eighth Circuit not only frustrates the congressional purpose but
would allow the defendant to hide his true motivation behind what
seems a plausible alternate justification.
At the bottom, Defendant Henry’s alternative justification
is the result of plaintiff's litigation effort in state court following
the abstention ruling in the district court. A similar situation arose
in Woe vs. Nebraska State Department of Public Welfare, supra.
The district court abstained forcing the plaintiff to litigate an
action in state to a successful conclusion. Thereafter the parties
stipulated that the federal case could be dismissed. The Eighth
Circuit held that plaintiff was a prevailing party despite the fact
that the "primary source” of the agreement to settle was the ruling
in the parallel state court action. In such cases plaintiff may be
hesitant to defend an administrative proceeding which might
jeopardize an award of attorney fees to which he would otherwise
be entitled.
2. THE EIGHTH CIRCUIT'S DECISION IS IN CONFLICT
WITH THIS COURTS DECISION ON MOOTNESS
The Eighth Circuit in an initial appeal in this case from the
district court’s abstention ruling held the amendments to §454.465
et seq. R.S.Mo. mooted plaintiffs substantive claims, including
those for monetary damages, injunctive relief, and declaratory
judgement. It remanded the case to the district court and directed
it to dismiss the action as moot if defendants petition for writ of
prohibition were denied. If it were sustained the district court
“was requested to review Shipman’s claim as to whether the
administrative review in state court under the old statute was
insufficient to justify abstention. (Appendix, A46).
15
|
Defendants themselves argued the case did not moot
appellant's [plaintiff's] claims except for future relief." (Brief of
Appellees in appeal No. 84-1961 EM, p. 41). They further advised
) the court that it was impossible to determine that all of plaintiff's
| claims had been mooted “because the entire method for
| establishing and collecting the state debt has not been changed.”
| (Brief of Appellees, p. 44).
On remand the Director testified that the Division did not
change its practice of setting and enforcing the state debt at the
total amount of public assistance paid and plaintiff would have
been held accountable for the same amount of reimbursement.
(Appendix, A49). He likewise admitted the Division had not
adopted the formula required by 45 D.F.R. $302.53 for setting the
state debt and had no plans to do so in the future. (TR. Vol. B,
p. 33, lines 3-18; p. 36, lines 16-20).
The district court ruled that it was foreclosed by the law of
the case from considering any injuries sustained by the plaintiff
prior to the ruling of the Eighth Circuit. Plaintiff thereupon filed
a motion to recall the mandate in the prior appeal based on the
above evidence respecting the defendants’ practices. The motion
was denied on February 1, 1989. The issue was raised on appeal
and on petition for rehearing.
It is clear from the facts stated above and to the Court of
Appeals that neither plaintiffs claims for injunctive relief or
monetary damages were mooted by the 1984 amendments which
did not require the Division to change its practices in setting the
state debt and which indeed were not changed. The claim for
injunctive relief became moot on in November 1987 upon the
concession of the $11,722 debt.
This court has addressed the requirements for mootness on
several occasions. In City of Mesquite vs. Aladdin's Castle, Inc.,
455 U.S. 283, 289, 71 L.Ed.2d 152, 159, 102 S.Ct. 1070 (1982), the
Supreme Court held:
CE —
16
The test for mootness in cases such as this is a
stringent one. Mere voluntary cessation of allegedly
illegal conduct does not moot a case; if it did, the
courts would be compelled to leave [t]he defendant
. . . free to return to his old ways. [Citations
omitted] A case might become moot if subsequent
events made it absolutely clear that the allegedly
wrongful behavior could not reasonably be expected
to recur... ..
Similarly, in Detroit, Toledo Co. vs. Consolidated R. Corp., 767 F.2d
274 (6th Cir. 1985), the court stated:
When a defendant voluntarily ceases allegedly illegal
activity, but continues to insist on the validity of its
position, cessation does not render an existing court
action moot. (at p. 279).
Also see: Deakins vs. Monaghan, __US.__, 98 L.Ed.2d 529,
539, S.Ct. (1988) n. 4.
Defendants representation to the court as well as its failure to
disclose or concede its claim for the state debt while continuing its
enforcement efforts plainly establish the case was not moot.
CONCLUSION
For these reasons, Petitioner Linden Shipman respectfully
requests that this petition for writ of certiorari be granted and the
decision of the Eighth Circuit Court of Appeals be reversed.
17
Respectfully submitted,
JIM R. BRUCE
(Counsel of Record)
P. O. Box 37
Kennett, Missouri 63857
Telephone: (314) 888-9696
Attorney for Petitioner
November, 1989
:
' oo. :
ee) or ee ee 1 SS ee ee SSS ee See eA es Ree eS SS SS See eee eee a a
Al
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
Nos. 88-1315 and 88-1955EM
Linden W. Shipman, Individually and on
behalf of others similarly situated,
Appellant,
VS.
Missouri Department of Family Services
and Joseph O’Hara, Individually and as
Director of Division of Family Services,
Appellees.
Order Denying Petition for Rehearing
August 18, 1989
Appellant’s suggestions for rehearing by the panel have been
considered by the court and are denied.
Order entered at the direction of the Court
Robert D. St.Vrain, Clerk, U.S. Court of Appeals, Eighth Circuit
A2
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
Nos. 88-1315 and 88-1955EM
Linden W. Shipman, Individually and on
behalf of others similarly situated,
Appellant,
VS.
Missouri Department of Family Services
and Joseph O'Hara, Individually and as
Director of Division of Family Services,
Appellees.
Order Denying Petition for Rehearing
And Suggestions for Rehearing En Banc
August 18, 1989
Appellant’s suggestions for rehearing en banc have been
considered by the court and are denied by reason of the lack of a
majority of the active judges voting to rehear the cases en banc.
Order entered at the direction of the Court
Robert D. St.Vrain, Clerk, U.S. Court of Appeals, Eighth Circuit
A3
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 88-1315
Linden W. Shipman, Individually and on
behalf of others similarly situated,
Appellant,
VS.
Missouri Department of Family Services
and Joseph O’Hara, Individually and as
Director of Division of Family Services,
Appellees.
Appeal from the United States District Court
for the Eastern District of Missouri
February 1, 1989
Appellant’s motion to recall the mandate in a prior appeal, No.
84-1961, Linden W. Shipman, etc. vs. Missouri Department of Family
Services, et al., has been considered by the Court and is denied.
Order entered at the direction of the Court
Robert D. St.Vrain, Clerk, U.S. Court of Appeals, Eighth Circuit
A4
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 88-1315/1955
Linden W. Shipman, Individually and on
behalf of others similarly situated,
Appellant,
vs.
Missouri Department of Family Services
and Joseph O’Hara, Individually and as
Director of Division of Family Services,
Appellees.
Appeals from the United States District Court
for the Eastern District of Missouri.
Submitted: November 14, 1988
Filed: June 12, 1989
Before McMILLIAN and BOWMAN, Circuit Judges, and BOGUE,
*Senior District Judge. —
McMILLIAN, Circuit Judge
*The Honorable Andrew W. Bogue, Senior United States District Judge
for the district of South Dakota, sitting by designation.
AS
Linden W. Shipman appeals from final judgements entered in
the District Court! for the Eastern District of Missouri. In appeal
No. 88-1315 the district court held that Shipman’s 42 U.S.C. §1983
action challenging certain Missouri State Statutes is mooted by the
subsequent amendment of the statutes and that Shipman lacks
standing to challenge the 1984 enactments because no action under
these enactments has been brought against him. In appeal No. 88-
1955 the district court held that Shipman is not entitled to attorney
fees because he failed to prove a causal connection between his
suit and the 1984 enactments. For the reasons discussed below, we
affirm the judgements of the district court.
In September 1979 Shipman was divorced from Maudie
Shipman. The divorce decree awarded custody of Shipman’s two
minor children to Maudie Shipman, but the court made no
provision for financial support. From March 1978 through March
1983 Maudie Shipman received aid for depending children (AFDC)
from the Missouri Department of Family Services (DFS).
The State of Missouri participates in a joint state-federal
Child Support Enforcement Program under Title IV-D of the
Social Security Act. 42 U.S.C. §651-665 (1988). The statutory
scheme provides for the recoupment from the noncustodial parent
of state and federal funds paid to the custodial parent. The
obligation of the noncustodial parent to reimburse the state for
public assistance provided to his or her children was first mandated
by Mo. Rev. Stat. §454.465 (1982) (1982 enactments).
The 1982 enactments empowered the Director of the DFS
to set the amount of debt owed by the noncustodial parent (“state
debt") in cases where no court order had established that parent’s
support obligation. Unlike the federal regulations at 45 C.F.R.
the Honorable David D. Noce, United States Magistrate for the Eastern
District of Missouri, tried the case pursuant to 28 U.S.C. Section 636(c).
A6
§302.1 et seq. which require the use of a formula to determine the
state debt, the 1982 enactments merely instruct the Director to set
the state debt at an amount equal to the public assistance paid.
_ On April 6, 1982, the Director issued a Notice of Finding of
Financial Responsibility/State Debt to Shipman setting the state
debt at $11,722, the amount of public assistance paid to Maudie
Shipman through March 1983. In 1983, after a hearing, the DFS
found Shipman to be financially responsible for $11,722 pursuant
to the 1982 enactments. Shipman subsequently filed this civil
rights action against DFS and its Director in federal district court.
He asserted that appellees had violated the Equal Protection and
due process clauses of the fourteenth amendment, the supremacy
clause of the Constitution of the United States, the federal
regulations contained at 45 C.F.R. §302.53, and article III section
1 of the Constitution of the State of Missouri. He sought
injunctive and declaratory relief, monetary damages, and attorney
fees. Shipman also filed an action in the Circuit Court of Dunklin
County, Missouri.
In 1984 the Missouri General Assembly amended the 1982
enactments. Mo. Rev. Stat. §454.465(1)(1984)(1984 enactments).
Under the 1984 enactments the Director was authorized to set the
sate debt in an amount "not to exceed" the amount of public
assistance paid.
The district court dismissed the instant case on June 29,
1984, on the grounds that abstention was appropriate. Shipman vs.
Missouri Division of Family Services, 588 F. Supp. 1203, 1207 (E.D.
Mo. 1984), vacated mem., 782 F.2d 1048 (8th Cir. 1985). Shipman
appealed the dismissal.
On May 24, 1985, the state circuit court also dismissed
Shipman’s case and remanded it to the DFS to be processed under
the 1984 enactments. DFS then sought a writ of prohibition in the
Missouri Court of Appeals.
A7
In 1985 this Court heard Shipman’s appeal from the district
court’s abstention dismissal. On November 8, 1985, this Court
vacated the judgement of the district court and remanded the case
with directions to retain jurisdiction until the Missouri Court of
Appeals had ruled on the writ of prohibition. Shipman s. Missouri
Department of Family Services, slip op. at 3-4 (8th Cir. November
8, 1985). If the wit were denied, the district court was ordered to
dismiss this case as moot. id. The writ of prohibition was
ultimately denied by the Missouri Court of Appeals, and Shipman
was allowed to amend his federal complaint. On March 25, 1987,
appellees moved for summary judgement stating that the Director
would take no further action against Shipman under the 1982
enactments and arguing that Shipman lacked standing to pursue his
challenge of the 1984 enactments.
On January 25, 1988, the district court granted appellees’
motion for summary judgement on all issues except the award of
attorney’s fees. On May 20, 1988, the district court held that
Shipman was not entitled to attorney’s fees because he had failed
to demonstrate a causal connection between his lawsuit and the
state’s amendment of the 1982 enactments. These consolidated
appeals followed.
MOOTNESS (No. 88-1315)
Shipman argues that the district court erred in granting
summary judgement to appellees on the basis that his claim is
moot. He argues that his claims for declaratory relief and
monetary damages should have been considered. We disagree.
In dismissing the case as moot, the district court was following
this Court’s mandate of November 8, 1985:
Under the present ruling of the state court,
Shipman’s_ challenge to the old statute and
administrative procedure is mooted. We therefore
remand this case to the district court with directions
A8&
to retain jurisdiction until such time as the Missouri
Court of Appeals passes on the writ of prohibition.
If the writ is denied and Shipman’s case is
remanded to the Division of Family Services to be
processed under the amended statute, the federal
district court should dismiss the case as moot. If,
however, the writ of prohibition is sustained and
Shipman is required to process his administrative
review in the Missouri State Court under the old
statute, the district court is requested to review
Shipman’s claim as to whether the administrative
review in the state court under the old statute is
insufficient to justify abstention under Middlesex.
Under such circumstances, the district court is to
either enter a new judgement on the grounds of
abstention or to try plaintiffs claim under $1983.
Shipman vs. Missouri Department of Family Services, slip op. at
3-4 (8th Cir. November 8, 1985). Once the writ of prohibition was
denied, the district court had no choice but to follow the mandatc
and dismiss all claims previously raised.
When a case has been decided by this court on
appeal and remanded to the District Court, every
question which was before this court and disposed
of by its decree is finally settled and determined.
The District Court is bound by the decree and must
carry it into execution according to the mandate.
It cannot alter it, examine it except for purposes of
execution, or give any further relief or review it for
apparent error with respect to any question decided
on appeal.
Houghton vs. McDonnell Douglas Corp., 627 F.2d 858, 864-
865 (8th Cir. 1980) citing Thornton vs. Carter, 109 F.2d 316, 319-
320 (8th Cir. 1940).
A9
The district court properly followed the mandate of this
Court by dismissing as moot all of Shipman’s claims involving the
1982 enactments.
STANDING
Shipman argues that the district court erred in granting
summary judgement to appellees on his claims based upon the
1984 enactments and the DFS’s alleged practices subsequent to
these enactments. He argues that he may be subject to a future
action by appellees to recover state debt for AFDC payments
made to Maudie Shipman after 1984. The district court properly
held that Shipman lacked standing to challenge the 1984
enactments.
In order to establish standing, a plaintiff must show that he or
she has suffered some actual or threatened injury as a result of the
putatively illegal conduct of the defendant and that the injury is
likely to be redressed by a favorable decision. Heckler vs.
Mathews, 465 U.S. 728, 738 (1984). The injury may not be merely
“eonjectural’ or ‘hypothetical, City of Los Angeles vs. Lyons. 461
I/S/ 95, 102 (1983) (citations omitted), and the injury alleged must
be fairly traceable to the challenged action. Allen vs. Wright, 468
U.S. 737, 751 (1984).
In the present action, Shipman alleges no real or threatened
injuries as a result of the 1984 enactments. Appellees have not
initiated any proceedings against Shipman under the 1984
enactments. Such proceedings are now merely conjectural.
Therefore, the district court properly concluded that Shipman lacks
standing to challenge the 1984 enactments.
CLASS CERTIFICATION
Shipman argues that the district court erred in dismissing his
case without ruling on his motion for class certification. Shipman
relies on United States Parole Commission vs. Geraghty, 445 U.S.
Al0
388, 401-02 (1980), (citations omitted) (Geraghty).
Nor does a confession of judgement by defendants
on less than all the issues moot an entire case;
other issues in the case may be appealable. We
can assume that a district court’s final judgement
fully satisfying named plaintiffs’ private substantial
claims would preclude their appeal on that aspect
of the final judgement; however, it does not follow
that this circumstance would terminate the named
plaintiffs’ right to take an appeal on the issue of
class certification.
The district court in Geraghty had denied the plaintiffs’ class
certification motion. Therefore, the Supreme Court held the
district court’s ruling on the issue of class certification was
appealable as a separate issue even though the named plaintiff's
substantive claims had been mooted by his release from priser. In
the instant case, Shipman did not file a motion requesting the
district court to rule on the question of class certification, and the
district court did not make a ruling. Under these circumstances
Geraghty does not apply and the proper rule is that:
Where named plaintiff's personal claim becomes
moot prior to district court’s ruling on certification
of a class action, the court loses jurisdiction over
the action because the case or controversy
requirement of Article III is violated.
Inmates of Lincoln Intake & Detention Facility vs. Boosalis, 705
F.2d 1021, 1023 (8th Cir. 1983), citing Vun Cannon vs. Breed, 565
F.2d 1096, 1099 (9th Cir. 1977).
Nor does the narrow "relation back" exception of Gerstein vs.
Pugh, 420 U.. 103 (1975) (Gerstein) apply to this case. Gerstein
held that where a claim is “capable of repetition but evading
review" a court may rule on class certification even if the named
All
plaintiff's individual claim became moot before the court had
considered class certification. Jd. at 110-111 n. 11. The present
case does not meet the requirements of the Gerstein exception,
because we hold the district court did not err in granting summary
judgement to appellees without ruling on the issue of class
certification.
ATTORNEY FEES (No. 88-1955)
Pursuant to 42 U.S.C §1988, Shipman argues that he is
entitled to an award of attorney fees as a prevailing party under
the "catalyst theory" of recovery. He argues that he is a
“prevailing party" as required by Hewitt vs. Helms, 482 U.S. 755
(1987), because some of the changes reflected in the 1984
enactments were the result of his federal suit.
To recover under the "catalyst theory," Shipman had to first
prove that a causal link existed between his lawsuit and the 1984
enactments. /d. at 763. Whether such a causai link existed is a
question of fact. United Handicapped Federation vs. Andre, 622 F.
2d 342, 346 (8th Cir. 1980). The district court found that Shipman
did not show a causal link between his federal suit and the 1984
enactments. Having carefully reviewed the record and the district
court’s memorandum opinion of May 20, 1988, we cannot conclude
that the district court’s finding of fact is clearly erroneous.
Therefore, the district court’s decision denying attorney's fees must
be sustained.
Accordingly, the judgements of the district court are affirmed.
A true copy.
Attest:
Clerk, U.S. Court of Appeals, Eighth Circuit.
Al2
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
Linden W. Shipman, et al., )
)
Plaintiff, )
VS. ) No. S 83-199 C
)
Missouri Division of Family )
Services, et al., )
)
Defendants. )
MEMORANDUM
This cause is before the Court on the motion of plaintiff
Linden W. Shipman for an award of attorney’s fees and costs. The
parties have consented to the exercise of jurisdiction over this
action by a United States Magistrate. 28 U.S.C. $636(c).
On August 2, 1983, plaintiff Linden W. Shipman commenced
this civil rights action against defendants Missouri Division of
Family Services (DFS); and Joseph J. O’Hara and William
Siedhoff, former DFS Directors. Plaintiff's amended complaint in
one count alleges violations under 42 U.S.C. §1983. Plaintiff
asserted that the defendants had violated (1) the Equal Protection
and Due Process Clauses of the Fourteenth Amendment; (2) the
Supremacy Clause of the Constitution of the United States; (3)
federal regulations contained at 45 C.F.R. §$§302.0-302.53; and (4)
Article III, §1 of the Constitution of the State of Missouri. These
violations, plaintiff argued, arose out of the State of Missouri’s
original and revised statutory schemes for recouping public
Al3
assistance benefits provided to children. §454.465 et seq, R.S.Mo.
Plaintiff sought injunctive and declaratory relief, monetary damages,
and attorney’s fees.
On September 11, 1987, plaintiff filed a motion for summary
judgement on the issue of liability. On November 27, 1987,
plaintiff renewed the motion after being granted leave to file his
amended complaint. Plaintiff argued that his claims were not
mooted by the 1984 amendments to §454.465 et seq., that
defendants failed to comply with the requirements of the applicable
federal regulations; and that he was entitled to an award of
attorney’s fees under a "catalyst theory" of recovery.
On November 4, 1987, defendants filed their first motion for
summary judgement as to all causes of action in plaintiffs original
complaint. On November 27, 1987, defendants filed a second
motion for summary judgement as to all causes of action in
plaintiffs amended complaint.
On January 25, 1988, this Court ordered that defendants’
motion for summary judgement be granted and plaintiff's motion
for summary judgement be denied, except as to the issue of
attorney’s fees. On March 28 and 29, 1988, an evidentiary hearing
was held on plaintiffs entitlement to a reasonable attorney’s fee,
based upon the catalyst theory concerning the 1984 amendments
to the relevant statutes. At the hearing counsel for plaintiff
presented evidence of the amount of time expended and the
reasonable rate therefore as a prevailing party. Both parties
presented evidence as to whether a causal link existed between the
lawsuit and the state’s amendment of the statute or Director
Michael Henry’s decision not to pursue any “state debt" owed by
plaintiff. The undersigned makes the following findings of fact and
conclusions of law:
Al4
FINDINGS OF FACT
1. Plaintiff Linden W. Shipman is the divorced non-
custodial parent of two children who received Aid to Families with
Dependent Children (AFDC) benefits from the State of Missouri.
Plaintiffs ex-wife, the custodial parent of their two children,
received public assistance benefits from March 1978 to March
1982. She also received public assistance benefits for her children
for four months in 1983 and two months during 1984. (Vol B. at
4.)!
2. Defendant Missouri Division of Family Services (DFS) is
the state agency charged with administering the AFDC program in
Missouri. From 1982 to 1986, DFS was also the responsible state
agency for the assessment and collection of "state debt" owed by
non-custodial parents to the state for public assistance provided to
their non-custodial children. Defendant Joseph J. O’Hara was the
Director of DFS when plaintiff was served with notice of state
_debt owed. Defendant William Siedhoff was a successor in office
as Director of DFS.
3. The Missouri Division of Child Support Enforcement
(DCSE) is presently the state agency authorized to enforce child
support obligations. Michael Henry was the Director of DCSE
from January 6, 1986 through at least the date of the evidentiary
hearing.
4. $454.465, R.S.Mo. (1982), set forth a non-custodial parent’s
obligation to reimburse the state for public assistance benefits
provided to his or her children. When no court order established
the non-custodial parent’s support obligation, §454.465 empowered
the Director of DFS to determine the amount of the obligation,
lai! references to the Transcript of the hearing before the Court on March
28 and 29, 1988, will be designated by volume and page number.
Al5
known as "state debt."2
5. In 1983 plaintiff was found by defendants to be financially
responsible for a "state debt," pursuant to the 1982 statute.
Defendants set the amount of state debt owed by plaintiff at the
amount of public assistance paid to his ex-wife for their children’s
benefit: $11,722.00. The notice was sent on March 15, 1983.
(Vol. B at 5.) Plaintiff objected to the finding and commenced the
instant action in this court. Plaintiff also commenced an action in
the Circuit Court of Dunklin County, Missouri, challenging the
1982 enactment and the 1983 finding of state debt. (Def. Exh. H.)
6. During the 1984 legislative session, the General Assembly
amended six chapters concerning child support enforcement,
including Chapter 454. (See Missouri House Bill 1275, Def. Exh.
G.) Some of the amendments to Chapter 454 concerned sections
challenged in plaintiffs complaint.
7. The instant action was dismissed by the district court on
June 29, 1984, after a determination that abstention was
appropriate under Younger vs. Harris, 401 U.S. 37 (1971) and
Middlesex County Ethics Committee vs. Garden State Bar
Association, 457 U.S. 423 (1982). Shipman vs. Missouri Division of
Family Services, 588 F. Supp. 1203, 1207 (E.D. Mo. 1983), vacated,
782 F.2d 1048 (8th Cir. 1985). Plaintiff appealed the dismissal.
8. On May 24, 1985, the state circuit court dismissed the
proceeding in that court and remanded plaintiff's case to DFS to
be processed under the 1984 amended statutes. DFS then sought
a writ of prohibition in the Missouri Court of Appeals. (Def. Exh.
H.)
or brevity, the Court will refer io the original enactment of §454.465
et seq. as the 1982 enactments or statutes and the statutes as amended in 1984 as
the 1984 amendments. The Court also notes that §454.465 R.S.Mo. was amended
again in 1986.
Al6
9. On November 8, 1985, the judgement of the district court
was vacated and the cause remanded with the following mandate:
Under the present ruling of the state
court, Shipman’s challenge to the old
statute and administrative procedure is
mooted. We therefore remand this case
to the district court with directions to
retain jurisdiction until such time as the
Missouri Court of Appeals passes on the
writ of prohibition. If the writ is denied
and Shipman’s case is remanded to the -
Division of Family Services to be
processed under the amended statute, the
federal district court should dismiss the
case as moot. If, however, the writ of
prohibition is sustained and Shipman is
required to process his administrative
review in the Missouri state court under
the old statute, the district court is
requested to review Shipman’s claim as
to whether the administrative review in
the state court under the old statute is
insufficient to justify abstention under
Middlesex. Under such circumstance, the
district court is to either enter a new
judgement on the grounds of abstention
or to try plaintiffs claim under section
1983.
Shipman vs. Missouri Depariment of Family Services. slip op. at 3-
4 (8th Cir. November 8, 1985).
10. On January 3, 1986, the Missouri Court of Appeals,
Eastern District, denied defendants’ request for a writ of
prohibition. (Def. Exh. H.)
Al7
11. Defendants have undertaken no further action to process
plaintiffs case under the amended statutes since the Missouri
Court of Appeals’ action. Neither have defendants made any
further attempts to collect the state debt defendants previously
determined to be owed by plaintiff.
12. Mr. Henry was employed by the Department of Social
services’ Division of General Counsel from January 1979 to
August 1983. During his employment in the Office of General
Counsel, Mr. Henry was assigned to DFS and worked with DFS
on issues relating to the Child Support Enforcement Unit of the
agency. (Vol. A at 46-47; B at 5-7.)
13. His duties included providing support to state prosecuting
attorneys, who until 1982 performed the majority of the legal work
for the DFS child support enforcement unit. He also provided
iegal advice to program administrators on policies and procedures,
drafted legislation, and performed training (Vol. B. at 8.)
14. In August 1983 Mr. Henry left his state employment to
work for a consulting firm in Washington, D.C. He was employed
by University Research Corporation from August 1983 until the
end of 1985. During this time he was employed on a contract
basis with the federal Office of Child Support Enforcement. (Vol.
A at 47; B at 5-6.)
15. Mr. Henry participated in preparing legislation which
became $§454.465, et seq., R.S.Mo. (1982). This statute was
modeled after the State of Oregon’s system for establishing current
support obligations and judgements for reimbursement for public
assistance provided. Mr. Henry drafted the legislation which later
became $454.465 through §454.515, also known as the state debt
procedure. (Vol. A at 47-48.) In 1982 and 1983, he assisted DFS
in developing forms, procedures, and policies to implement this
statute. (Id. at 49.)
16. The 1982 statute provided that when the state provided
public assistance to a child, a parent absent from the home of that
Al8
child would accrue, as a state debt, the amount of public assistance
provided to the child. If there was a court order setting child
support arrearages, then the amount of the state debt was the
amount set forth in the order. If there was no court order
existing then, the Director of DFS could set or reset the amount.
The amount could be lowered by the Director. Theoretically, it
could be raised as well, but this was not DFS’ practice. (Vol. B.
at 13.)
17. When the original version of §§454.465 et seq. was
drafted in 1982, DFS program administrators preferred an
administrative process. However, after discussions with legislators,
DFS decided to seek passage of a statute that left control of the
process with the state courts. (Vol. A at 53-54.)
18. The implementation of the 1982 statute encountered
docket delays of six to eight months in the state’s urban
jurisdictions when a hearing was requested by a parent. Sixty
percent of the Division’s cases were, and are, in those urban areas.
DFS officials were aware in 1983 that the federal government was
in the process of establishing time frames which would not be met
in the urban jurisdictions because of the above problems. The
federal guidelines were promulgated in 1984. (/d., at 54.)
19. DFS officials were also concerned that state judges would
not be consistent throughout the state in setting amounts of
current support. (/d., at 54-55.) DFS sought an administrative
process that gave the agency control over the dockets and
amounts of current support that would result from the hearings.
(Id.)
20. Mr. Henry was aware in 1983 that a bill was pending in
the United States Congress which required states to establish
expedited procedures to handle the establishment of child support
obligations. The legislation became federal law in 1984. Missouri
was required to comply in order to continue to receive federal
funding. (/d., at 50.) The Missouri General Assembly enacted
Al9
amendments in 1984 and 1986 to comply with the federal law.
(Id., at 50-51)
21. Mr. Henry first became aware of plaintiff's state lawsuit
in 1983 on the day on which the petition was served. The lawsuit
"caught [his] attention because it was the only challenge that
[DFS] had received to the administrative process statute since its
enactment." Mr. Henry did not remember reading the pleading
but was certain that he had done so. (Vol. B at 7.) He recalled
that it alleged a due process challenge. (J/d.) S
22. In 1983-Mr. Henry discussed the plaintiffs case with
Victoria Schwartz, a staff attorney in the Office of General
Counsel of DSS. Ms. Schwartz aided in drafting legislation in
1983 that dealt only with changes to §454.440, R.S.Mo., which
pertained to the state parent locator service. This legislation was
submitted to sponsoring state representatives and later became
House Bill 1275 (HB 1275). (Vol. B at 8-11.)
23. Ms. Schwartz left the State of Missouri’s employ in May
or June of 1987. (Vol B at 11.)
24. During 1984 Mr. Henry did not have responsibility for
making policy decisions regarding legislation. The DFS Director,
Mr. O'Hara, had that responsibility. (/d., at 28.)
25. In 1983 no conversations were held by Mr. Henry or Ms.
Schwartz with Mr. O’Hara regarding plaintiff's lawsuit. (/d., at
26.)
26. In the fall of 1983, Mr. Henry returned to Missouri to
aid in drafting legislation for the 1984 to testify on behalf of a
paternity bill that he had drafted during the fall of 1983. (Vol. B
at 38; Vol. A at 57-58).
27. As a general practice DFS develops legislative proposals
for the forthcoming legislative year as soon as the current
legislative session ends. The Division establishes a set of
legisiative priorities which are then submitted to the Department
of Social Services (DSS). The Director of DSS then presents a
A20
set of departmental priorities to the Governor (Vol. A at 52.)
28. On September 14, 1983, Mr. Paul Nelson, Supervisor for
the child Support Enforcement Unit, sent a memo to Director
O’Hara outlining the unit’s legislative priorities for the 1984
legislative session. The document does not refer to the definition
of state debt. (Vol. B. at 28-30; Def. Exh. B.)
29. When he developed the 1984 legislation concerning the
administrative procedures and the sate debt collection, Mr. Henry
did not discuss plaintiffs suit with DFS. Plaintiffs lawsuit was
never brought up by Mr. Henry as a reason for seeking a change
in the law. Nor did he hear anyone else discuss the suit. (Vol. A
at 55-56.)
30. In the fall of 1983, Mr. Henry neither made nor heard
any. references to plaintiffs lawsuit during his work on 1984
legislative session priorities with Mr. Barrett Toan, then director of
DSS. (Vol. A at 57.) Director Toan’s outline of departmental
legislative priorities for the 1984 legislative session contains no
reference to the definition of state debt or plaintiffs lawsuit.
(Def. Exh. C; Vol. A at 56.)
31. Mr. Henry assisted DSS in preparing the draft legislation
that later became House Bill 1275. His work on the original
version was limited to review and comment. Ms. Schwartz had
drafted the §454.440 changes, and Mr. Henry had some input in
them but no drafting responsibilities. (Vol. A at 58.) At no time
did Mr. Henry participate in or become aware of any discussions
on the need to change House Bill 1275’s state debt provisions
because of probable violation of either the due process or equal
protection clause of the Fourteenth Amendment or the Supremacy
clause of the United States Constitution. (/d., at 61-62.)
32. During no conversation that Mr. Henry had with DFS
officials during the 1984 legislative session did the issue arise of
needing to redefine the state debt, as set out in §454.465. (Vol.
A at 60.)
A2l
33. The original version of House Bill 1275 does not contain
any reference to "state debt." (Def. Exh. E.) The perfected
version of House Bill 1275 contains no reference to the state debt
procedure set out in §454.465, et seq. with the exception of
changes made to a lien statute, §454.515. (Def. Exh. F.) That
Statute’s procedure is not at issue in the instant action. (Vol. A at
58-60.)
34. Amendments to the state debt procedures were contained
in the finally passed Senate Committee Substitute for House Bill
1275. (Def. Exh.G.) This became the 1984 amendments to the
child support enforcement statutes. Mr. Henry did not know how
these provisions came to be in the final version of House Bill
1275. (Vol. A at 60-61.)
35. Mr. Henry did not discuss the 1984 amendments with the
Governor of Missouri or any member of his staff in 1983 or 1984.
The written DSS review of House Bill 1275 for the Governor,
prior to his approval, contains no reference to plaintiffs suit or
any of the issues raised therein. (Def. Exh. D.) The only
discussion Mr. Henry had with a legislator was with Representative
Danner on the original version of House Bill 1275. Plaintiffs case
was not discussed with Representative Danner. (Vol. A at 66-67.)
36. Draft amendments to House Bills may be prepared by
any state representative or senator or their staff. Also, various
interest groups present proposed amendments to state legislators
and agencies. State agencies may also suggest legislation. (Vol A
at 68-69.)
37. There is generally no recording of the purpose for which
a bill is enacted in the Missouri legislature. House Bill 1275 has
no purpose clause. (Vol. .i at 69.)
38. House Bill 1275 was altered from its original form by
both the Missouri Senate and House of Representatives. (Vol. B
at 11.) Mr. Henry had no personal knowledge of any changes in
House Bill 1275 that were sponsored by DFS. (Jd, at 11-12.)
A22
The legislation was passed by both legislative houses and signed by
the Governor of Missouri in 1984. (/d., at 13.).
39. The 1984 amendment relating to state debt provided that
when there was no court order, the Director of DFS could set or
reset the amount, not to exceed the amount of public assistance
that had been provided. The 1984 amendment specifically set a
“ceiling” on the amount of state debt the Director could set. (/d.,
at 14.).
40. In December 1985, the Division of Child Support
enforcement (DCSE) was created within the Missouri Department
of Social Services. Mr. Henry was appointed Director of DCSE
on January 6, 1986, and has continued in that position to he
current date. (Vol. B at 6.)
41. After Mr. Henry returned to Missouri in 1986, he
discussed the 1984 amendments. No reference was made to
plaintiff's suit in any discussion he had with his staff, DSS staff, or
the Governor's staff. (Vol. A at 69-72.)
42. The 1986 legislation was designed to bring Chapter 454
into strict compliance with federal statutes and regulations. No
discussion regarding the redefinition of state debt or changes in
the administrative hearing process occurred during the
development of the 1986 amendments. One change was made in
the DCSE procedure regarding the issuance of administrative
income withholding orders based on judicial current support
obligations. This is not an issue in the instant action. (Vol. A at
79-81.)
43. Mr. Henry, as Director of DCSE, had the authority to
settle, on behalf of the Division, only unliquidated claims that had
not been reduced to judgement. He did not have the authority to
settle a liquidated judgement owed to the State of Missouri. (Vol.
B at 21; Pl. Exh. 5.)
44. Mr. Henry became familiar once more with plaintiffs case
in the summer of 1987. He was surprised to learn that it was still
A23
pending. (Vol. B at 8.)
45. Plaintiff's state agency administrative case was closed at
the local level on May 31, 1984. No further action was taken by
any DFS or DCSE employee after that date except regarding a
change of address notice. (Vol. A at 83-85)
46. When plaintiff's case was closed in May of 1984, plaintiff
should have received a computer-generated notice informing him
that DFS was no longer pursuing support. No record of such
notice exists. Neither plaintiff nor his counsel were notified of the
case closing. ( Vol. B at 48-49.) The case was not given a final
determination by the Director, either directly or through
delegation of authority to the local level, until Mr. Henry's action
in November 1987. (/d., at 54.)
47. Plaintiffs case was the only case, to Mr. Henry's
knowledge, remanded to DCSE by a state court. DCSE was
unsure how to proceed with it and thus had taken no action
regarding it. (Vol. A at 91-92.)
48. Mr. Henry decided, after a hearing in the present cause
was held on November 9, 1987, to not pursue plaintiff for the
amounts of public assistance that had been provided to his family
from 1978 through 1982. (Vol. B at 22-23.) He stated that he did
so, in part, to help resolve the instant dispute, but that reason
“was not the overriding reason behind [his] decision." (/d.)
49. Mr. Henry had several reasons for deciding not to pursuc
any action against plaintiff for state debt owed. First, Mr. Henry
believed that the Missouri statute of limitations prohibited any
recovery on claims over five years old. Second, he calculated the
remaining amount due the state from plaintiff to be approximately
$600.00, and determined it was too minor to pursue. Third,
plaintiff did not appear to possess sufficient assets to pay a
judgement against him. Fourth, DCSE conserved staff resources
and thus did not pursue small amounts of state debt. (Vol. A at
86-89.)
A24
50. Plaintiffs lawsuit was not an important or significant
factor in Mr. Henry's decision of November 1987 to not pursue
any recoverable state debt form plaintiff. (Vol. A at 92.)
CONCLUSIONS OF LAW
Plaintiff contends that he is entitled to an award of attorney's
fees as a prevailing party under a “catalyst theory" of recovery,
pursuant to 42 U.S.C. §1988. Plaintiff argues that the 1984
amendments to §454.465 ef seg. were proposed by defendants ten
months after plaintiff commenced his suit. While not all the
claims made by plaintiff are reflected in the 1984 amendments,
plaintiff contends that sufficient changes were made as a result of
his suit for him to be deemed a "prevailing party" entitled to an
award of attorney's fees.
Defendants contend that plaintiff has not proven that the
1984 amendments were made as a result of his suit or that
Director Henry’s decision to not pursue any state debt due form
plaintiff was caused by his suit. Defendants submniit that ihe 1984
amendments were not made in response to plaintiffs suit, but
rather as a part of an overall review of Missouri's child support
enforcement program. Defendants argue that Director Henry
determined that any state debt due from the plaintiff should not
be pursued because the case had been closed for over three years.
the amount that was collectible was small, plaintiffs assets were
minimal, and DCSE needed to efficiently allocate agency
resources.
"In order to be eligible for attorney's fees under §1988, a
litigant must be a ‘prevailing party.” Hewitt vs. Helms, __ USS.
__, 107 S.Ct. 2672, 2675 (1987). In this action plaintiff must
prove (1) a causal link between this lawsuit and the state's
amendment of the statutes or the decision of Director Henry not
te reopen plaintiffs case, and (2) plaintiff must have been the
recipient of some benefit from the amendment. /d., at 2675-77.
—
athens. —
A25
The Court, in its Order of January 25, 1988, found that
plaintiff may qualify as a prevailing party because defendants had
conceded that the "state debt" allegedly owed by plaintiff for
AFDC benefits provided to his children from March 1978 to
March 1982 would rot be sought by defendants. Further, should
defendants seck a state debt for the one year of provided AFDC
benefits not explicitly conceded by them, they will have to proceed
under existing law, not the 1982 statute. Thus, plaintiff appears to
meet the second factor set forth in Hewitt.
Plaintiff has not, however, satisfied the first part of the Hewitt
test. Plaintiff has not shown that a causal link between his lawsuit
and the state’s amendment of the statutes or the decision of
Director Henry not to reopen his case.
The Eighth Circuit has adopted the guidelines established in
Nadeau vs. Helgemoe, 581 F.2d 275, 281 (ist Cir. 1978), for
determining whether a plaintiff can be deemed to have prevailed
on a catalyst theory. United Handicapped Federation vs. Andre,
622 F.2d 342, 345-46 (8th Cir. 1980). The first part of the test is
a question of fact. (/d., at 346) The plaintiff must demonstrate
that his lawsuit is causally linked to the relief obtained:
[Njo award is required if the court
determines that plaintiffs suit was
completely superfluous in achieving the
improvements undertaken by defendants
on plaintiffs behalf... However, if
... the plaintiffs suit and their attorney's
efforts were @ mecessary and important
factor in achieving the improvements . . .
plaintiffs should be held to have
overcome their first hurdle toward their
goal of receiving some attorney fees.
(/d.) This standard is referred to as the causation standard.
While chronological evidence is a consideration in proving
A26
causation, it is not conclusive. Nadeau, supra, 581 F.2d at 281.
The second part of the Nadeau test is a legal question.
Plaintiff must demonstrate that defendants’ conduct in response to
the lawsuit was legally required:
If it has been judicially determined that
defendants’ conduct, however beneficial
it may be to plaintiffs’ interests, is not
required by law, then defendants must
be held to have acted gratuitously and
plaintiffs have not prevailed in a legal
sense.
United Handicapped Federation, supra, 622 F.2d at 346. This part
of the Nadeau test is sometimes termed the "non frivolity"
standard.
The Court finds that plaintiff has been unable to develop any
factual basis to support his claim that the 1984 amendments to
$$454.465-454.510 were caused or given any impetus by his filing
the instant action. Indeed, defendants have shown that the 1984
amendments were motivated by the need to come into compliance
with federal regulations, not because of plaintiffs lawsuit. The
finally passed Senate Committee Substitute for House Bill 1275
demonstrates that a sweeping change in the area of child support
enforcement was made by the General Assembly. (Def. Exh. G.)
The final version of House Bill 1275 amended five chapters other
than Chapter 454 and included other sections in Chapter 454
which were not challenged in the instant action. There is no
evidence that plaintiff's lawsuit was known to the members of the
Generai Assembly, much less that it was a significant or substantial
factor in the decision of the General Assembly to enact House Bill
1275.
Defendants have demonstrated that the original version of
House Bill 1275 did not contain any reference to the state debt
procedure. (Def. Exh. E.) Likewise, the perfected House Bill
es.
es Oe ee ae
POLI AS Bt or) ae . Se ete Ded noe
A27
1275 contained no reference to the challenged §§454.465-454.510.
(Def. Exh. F.) As defendants argue, this is significant because
there is no evidence that either the Department of Social Services
or the Division of Family Services had any input on House Bill
1275 once it left the House chamber.
The 1984 legislative priorities for the child support
enforcement program contains no reference to the plaintiffs
federal lawsuit or any of the issues raised therein. (Def. Exh. B.)
Likewise, the 1984 legislative objectives of the Department of
Social Services and the Department’s review of House Bill 1275
for the Governor's office contain no reference to the suit or any
of the issues raised therein. (Def. Exh. C and D.)
The only testimony presented in this action was provided by
Michael Henry, the Director of the Division of Child Support
Enforcement. The state agency reasons for the 1984 amendments
were: (1) to anticipate future changes required by federal law;
(2) to reduce the significant delay in processing the caseloads in
the urban areas of the state; and (3) to assure that a uniform
determination of child support obligation would exist. There was
neither a discussion of plaintiffs federal suit or the issucs
contained therein in relation to the 1984 legislative objectives of
DFS or DSS nor a discussion of the need to redefine the state
debt provision. Mr. Henry was unable to testify as to even one
discussion with legislators or agency administrators where plaintiffs
lawsuit was mentioned during the 1984 legislative session. The
only evidence of a discussion relating to plaintiff's lawsuit was Mr.
Henry’s discussion in 1983 with Ms. Schwartz. No evidence was
presented to the Court that demonstrates that this one
conversation had any impact upon the 1984 amendments. Indeed,
Ms. Schwartz's draff of House Bill 1275 contains no reference to
the state debt procedure whatsoever. (Def. Exh. E.)
The Court also finds that Director Henry’s stated reasons for
deciding not to reopen the state debt case against plaintiff to be
A28
persuasive and convincing. The Court finds that plaintiff's case
was closed administratively at the local level in May 1984, and no
significant action was taken by the state against plaintiff since that
date. Mr. Henry closed the case at the Director’s level because
(1) the general five-year statute of limitations, Chapter 516,
R.S.Mo., would have limited any new action to a recovery of only
$600.00; (2) the plaintiffs assets were minimal; and (3) the
Division did not normally pursue small debts, in order to
effectively allocate agency time and resources. Mr. Henry also
acknowledged that his agency was unsure as to how to proceed on
plaintiffs case should it choose to do so because it was the only
one remanded to the Division. Plaintiff's pending lawsuit was not
an important or significant factor in his decision.
Because the Court has found that plaintiff has failed to meet
the first part of the Nadeau test, there is no need to consider
whether plaintiff has met the second part, the non-frivolity
standard. Plaintiff has failed to demonstrate a causal connection
between his lawsuit and the state’s amendment of the statutes or
the decision of the Director of DCSE to not reopen the state
debt case against him. He, therefore, cannot be a prevailing party
under a catalyst theory of recovery. Hewitt vs. Helms, supra, 107,
S.Ct at 2675; Zephier vs. Pierce, 714 F.2d 856, 859 (8th Cir. 1983).
In light of the above findings of the Court, no discussion of
the reasonableness of plaintiffs costs or his counsel’s fees is
required. Further, the defendants’ motions to dismiss, for
sanctions, and to strike are denied as moot. Plaintiff's motion for
Rule 11 saactions is also denied.
An appropriate Order will issue herewith.
DAVID D. NOCE
UNITED STATES MAGISTRATE
Signed this 20th day of May, 1988.
ss Se
A29
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
Linden W. Shipman, et al.,
~ Plaintiffs,
VS. No. S 83-199 C
Missouri Division of Family
Services, et al.,
)
)
)
)
)
)
Defendants. )
ORDER
In accordance with the memorandum issued herewith,
IT IS HEREBY ORDERED that plaintiffs motion for
attorney’s fees and costs be and it is denied.
IT IS FURTHER ORDERED that defendants’ motion to
dismiss, for sanctions, and to strike be and they are denied.
IT IS FURTHER ORDERED that plaintiff's motion for Rule
11 sanctions be and it is denied.
DAVID D. NOCE
United States Magistrate
Signed this the 20th day of May 1988.
A30
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
Linden W. Shipman, et al., )
)
Plaintiff, )
VS. ) No. S 83-199 C
)
Missouri Division of Family )
Services, et al., )
)
Defendants. )
MEMORANDUM
This cause is before the Court on the cross-motions of the
parties for summary judgement pursuant to Fed.R.Civ.Pro. 56.
The parties have consented to the exercise of jurisdiction over this
action by a United States Magistrate. 28 U.S.C. $636(c).
On August 2, 1983, plaintiff Linden W. Shipman commenced
this civil rights action against defendants Missouri Division of
Family Services (DFS); Joseph J. O’Hara, former DFS Director;
and William Siedhoff, present DFS Director. Plaintiff's amended
complaint in one count alleges violations under 42 U.S.C. §1983.
Plaintiff asserts that the defendants have violated (1) the Equal
Protection and Due Process Clauses of the Fourteenth
Amendment; (2) the Supremacy Clause of the Constitution of the
United States; (3) federal regulations contained at 45 C.F.R.
§§$302.0-302.53; and (4) Article III, Section 1 of the Constitution
of the State of Missouri. These violations, plaintiff argues, arise
out of the State of Missouri’s origina! and revised statutory
A31
schemes for recouping public assistance benefits to children.
§$§454.465 et seq., R.S.Mo. Plaintiff seeks injunctive and
declaratory relief, monetary damages, and attorney’s fees.
Section 454.465, R.S.Mo. (1982), sets forth a non-custodial
parent’s obligation to reimburse the state for public assistance
benefits provided to -his or her children. When no court order
established the non-custodial parent’s support obligation, $454.465
empowered the Director of DFS to determine the amount of the
obligation, known as "state debt."!
In 1983 plaintiff was found by defendants to be financially
responsible for a "state debt," pursuant to the 1982 enactment.
During the 1984 legislative session, the General Assembly
amended six chapters concerning child support enforcement,
including Chapter 454. (See, Mo. House Bill 1275, Defs. Exh. A,
attached to defendants’ suggestions in opposition to plaintiff's mation
for summary judgement, filed September 30, 1987.) Some of the
amendments to Chapter 454 concerned sections challenged in
plaintiff's complaint.
The instant action was dismissed by the district court on June
29, 1984, after a determination that abstention was appropriate
under Younger vs. Harris, 401 U.S. 37 (1971) and Middlesex County
Ethics Committee vs. Garden State Bar Association, 457 U.S. 423
(1982). Shipman vs. Missouri Division of Family Services, 588
F.Supp. 1203, 1207 (E.D. Mo. 1983), vacated, 782 F.2d 1048 (8th
Cir. 1985). Plaintiff appealed the dismissal.
On May 24, 1985, the state circuit court dismissed the
proceeding in that court and remanded plaintiff's case to DFS to
be processed under the 1984 amended statutes. DFS then sought
For brevity, the Court will refer to the original enactment of §§454.465 ef seq.
as the 1982 enactments or statutes and the statutes as amended in 1984 as the
1984 amendments. The Court also notes that §454.465 R.S.Mo. was amended
again in 1986.
A32
a writ of prohibition in the Missouri Court of Appeals.
On November 8, 1985, the judgement of the district court was
vacated and the cause remanded with the following mandate:
Under the present ruling of the state
court, Shipman’s challenge to the old
statute and administrative procedure is
mooted. We therefore remand this case
to the district court with directions to
retain jurisdiction until such time as the
Missouri Court of Appeals passes on the
writ of prohibition. If the writ is denied
and Shipman’s case is remanded to the
Division of Family Services to be
processed under the amended statute, the
federal district court should dismiss the
case as moot. If, however, the writ of
prohibition is sustained and Shipman is
required to process his administrative
review in the Missouri state court under
the old statute, the district court is
requested to review Shipman’s claim as
to whether the administrative review in
the state court under the old statute is
insufficient to justify abstention under
Middlesex. Under such circumstances,
the district court is to either enter a new
judgement on the grounds of abstention
or to try plaintiffs claim under $1983.
Shipman vs. Missourt Department of Family Services, slip op. at 3-
4 (8th Cir. November 8, 1985). On January 3, 1986, the Missouri
Court of Appeals, Eastern District, denied defendants’ request for
a writ of prohibition. (Defendants’ suggestions in opposition to
plaintiff's motion for leave to amend complaint, filed September
A33
16, 1987, at 1.)
In June 1987, both parties announced their readiness for trial
and consented to submitting the case to a United States
Magistrate. On June 29, 1987, the parties were given until August
1, 1987, to file any motions to dismiss or to amend the pleadings.
Plaintiff moved to amend his complaint on July 30, 1987, pursuant
to Fed.R.Civ.Pro. 15, in order to "simplify the issues, assert
additional bases for relief, and set forth event which have taken
place subsequent to the filing of the original complaint." This
Court granted plaintiffs motion to amend and supplement his
complaint on November 5, 1987. The defendants have filed an
answer, and both partics have motions for summary judgement
now before the Court.
On September 11, i987, plaintiff filed a motion for summary
judgement on the issue of liability. On November 27, 1987,
plaintiff renewed the motion. Plaintiff argues that: (1) his claims
are not mooted by the 1984 amendments te §§$454.465 ef seq., (2)
detendants have failed to comply with the requirements of the
applicabie federal regulations; and (3) he is entitled to an award
of attorney's fees under a “catalyst theory” of recovery.
On November 4, 1987, defendants filed their first motion for
summary judgement as to all causes of action in plaintiffs original
complaint. On November 27, 1987, defendants filed a second
motion for summary judgement as to all causes of action in
plaintiffs amended and supplemented complaint.
This Court must grant summary judgement if, based upon the
pleadings, admissions, depositions and aflidavits, there exists no
genuine issue of material fact and the moving party is entitled to
judgement as a matter of law. Fed. R.Civ.Pro. 56(c); Celotex
Corporation vs. Catrett, —— U.S. ___, 106 S.Ct. 2548, 2552 (1986),
Board of Education, Island Trees, etc. vs. Pico, 457 U.S. 853, 863
(1982). The moving party must initially demonstrate the absence
of an issue for trial. Celotex Corporation, supra, 106 S.Ct. at 2553.
A34
Any doubt as to the existence of a material fact must be resolved
in favor of the party opposing the motion. Board of Education,
Island Trees, supra, 457 U.S. at 863. Nevertheless, once a motion
is properly made and supported, the non-moving party may not
rest upon the allegations in his pleadings but must instead set
forth specific facts showing that there is a genuine issue of
material fact for trial. Fed.R.Civ.Pro. 56(e); Buford vs. Tremayne,
747 F.2d 445, 447 (8th Cir. 1984). Summary judgement must be
granted to the movant if, after adequate time for discovery, the
non-moving party fails to produce any proof to establish an
element essential to the party’s case and upon which the party will
bear the burden of proof at trial. Celotex Corporation, supra, 106
S.Ct. at 2552-53.
Plaintiff argues that the Eighth Circuit decision determining
his claims under the 1982 statute to be moot is in error. Plaintiff
urges this Court to grant summary judgement in his favor on the
issues relating to the legality of the 1982 enactments and
defendants’ subsequent actions relating thereto.
Defendants respond that plaintiff's claims with respect to the
1982 statute are moot with the exception of a possible motion for
costs. Defendants argue that the issue of whether plaintiff's claims
were rendered moot was raised by plaintiff in his brief to the
Eighth Circuit. (See Defs. Exh. A and B attached to defendants’
first and second sets of suggestions in oppositic 2 to plaintiff's motion
to amend complaint.) Defendants courts’ determinations that
plaintiff's claims should be processed under the 1984 amendments
rendered moot plaintiff's claims under ithe 1982 statute.
As a matter of law, this Court cannot state that the Court of
Appeals mandate is in error. *
When a case has been decided by [an
appellate court] and remanded to the
District Court, every question which was
before [the appellate] court and disposed
A35
of by its decree is finally settled and
determined. The District Court is bound
by the decree and must carry it into
execution according to the mandate. It
cannot alter it, examine it except for
purposes of execution, or give further or
other relief or review it for apparent
error with respect to any question
decided on appeal . . ..
Houghton vs. McDonnell Douglas Corporation, 627 F.2d 858, 864-
65 (8th Cir. 1980), quoting Thornton vs. Carter, 109 F.2d 316, 319-
20 (8th Cir. 1940). ,
Therefore, plaintiffs first contention is plainly in error. As a
matter of law, plaintiffs claims under the 1982 statute were
rendered moot when the Missouri Court of Appeals denied
defendants’ writ of prohibition, thus upholding the state circuit
court’s remand of plaintiffs case to DFS to be processed under
the 1984 amended statute. Shipman vs. Missour’ Department of
Family Services, supra, No. 84-1961 at 3. Thus plaintiff is not
entitled to a judgement as a matter of law in the instant action
on the issue of the legality of the 1982 statute and defendants’
subsequent actions relating thereto, except possibly an award of
attorney's fees.?
Plaintiff next contends that he is entitled to summary
judgement on whether the present state statutory scheme is in
compliance with the applicable federal regulations. Specifically,
Zany reliance by plaintiff Standard Oil Company of California vs. United States,
429 U.S. 17 (1976), is inapposite. Standard Oil held that a district court can take
appropriate action on a Rule 60(b) motion without obtaining leave of the appellate
court. The matter before the Court does not pertain to a Rule 60(b) issue as
there is no final judgement in the present cause. See, Fed.R.Civ.Pro. 60(b).
Plaintiff has had the opportunity to move the Eighth Circuit to modify or vacate
its mandate, but has evidently chosen not to do so.
A36
plaintiff argues that §454.465(4) R.S.Mo. (1984 Supp.) authorizes
DFS to “promulgate such rules as may be necessary to carry out
the provisions of this chapter . . .." Plaintiff contends that
defendants have not yet promulgated any regulations to determine
the amount of money for which a noncustodial parent is liable
when his (or her) child has received Aid to Families with
Dependent Children (AFDC) benefits. Plaintiff argues that DFS
is required as the identified [TV-D Agency to promulgate such
regulations under Title IV-D of the Social Security Act, 42 U.S.C.
§§$1302 ef seg., and the implementing federal regulations at 45
C.F.R. §$§302.1 et seq. Further, plaintiff asserts, the amount owed
by a noncustodial parent is to be determined by utilizing a formula
which takes into consideration factors enumerated in 45 C.F.R.
§$302.53(a). See, 45 C.F.R. §$§302.50, 302.53. Plaintiff contends
that the federal regulations supersede state law, because of the
Supremacy Clause of the United States Constitution.
Defendants argue that plaintiff lacks standing to raise any
issue as to the validity of the "state debt" statute as amended in
1984 or 1986 because plaintiff has suffered no actual or
threatened injury. Heckler vs. Mathews, 465 U.S. 728, 738 (1984).
The issue of standing must first be addressed by the Court,
because a finding in defendants’ favor would render it unnecessary
to consider the parties’ other arguments except those as to
attorney fees.
In order to possess standing in the present matter, plaintiff
must have alleged such a personal stake in the outcome of the
instant controversy as to warrant the invocation of federal court
jurisdiction and to justify exercise of the court's remedial powers.
Baker vs. Carr, 369 U.S. 186, 204 (1962). A federal court's
jurisdiction may be invoked only when the plaintiff himself has
suffered some threatened or actual injury resulting from the
putatively illegal action. Warth vs. Seldin, 422 U.S. 490, 499
(1975). Plaintiff must allege a “distinct and palpable" injury,
A37
Gladstone, Realtors vs. Village of Bellwood, 441 U.S. 91, 114 (1979)
not an “abstract,” “conjectural,” or "hypothetical" one. City of Los
Angeles vs. Lyons, 461 U.S. 95, 102 (1983). The injury alleged
must be fairly traceable to the challenged action. Allen vs. Wright,
469 U.S. 737, 751 (1984. Finally, the relicf sought must be likely
to result from a favorable decision. Jd.
Thus, the general requirements for standing are that (1)
plaintiff has alleged an actual or threatened injury as a result of
the defendants’ conduct; (2) the alleged injury must be fairly
traceable to the defendants’ actions that are challenged; and (3)
the injury alleged must be likely to be redressed by a favorable
decision. Valley Forge Christian College vs. Americans United for
Separation of Church and State, Inc. 454 U.S. 464, 472 (1982);
Arkla Exploration Company vs. Texas Oil & Gas Corp., 734 F.2d
347, 353 (8th Cir. 1984), cert. denied, 469 U.S. 1158 (1985).
The focus on whether standing exists is on the party seeking
relief, not the issues the plaintiff desires to have tried. Flast vs.~
Cohen, 392 U.S. 83, 99 (1968). An asserted right to have the
government act in accordance with the law is not, per se, sufficient
to confer standing on a plaintiff. Schesinger vs. Reservists
Committee to Stop the War, 418 U.S. 208 (1974). While plaintiff
does not have to await the consummation of threatened injury to
obtain preventive relief, the injury must certainly be impending.
See, Babbitt vs. United Farm Workers National Union, 442 U.S.
289, 305 (1979).
Plaintiff argues that he may be subject to an action by
defendants to recover state debt for AFDC benefits provided to
his children from March 1982 to March 1983. Alternatively,
plaintiff contends he might be liable for public assistance benefits
that might be liable for public assistance benefits that might be
paid on behalf of his children in the future. (See, plaintiff's
response to defendants’ motion for summary judgement, filed
December 18, 1987, at p. 7.)
A38
——
In the present action, plaintiff alleges no actual or ihreatened
injury as a result-of the 1984 or 1986 amendments. His injuries,
if ary, were a result of the state debt assessed against him under
the 1982 statute. That cause of action, as determined by the
Eighth Circuit, is now moot because of the rulings of the Missouri
courts. (See, plaintiff's amended complaint at %%44-45.)
Defendants have no present actions instituted against plaintiff for
collection of the state debt assessed under the 1982 statute and
have indicated that no proceedings will be instituted against
plaintiff for collection of any of the disputed state debt due from
March 1978 to March 1982. (See, defendants’ motion for summary
judgement, filed November 27, 1987, Exhibit A, at 14.) Any action
by defendants for a state debt arising from AFDC benefits
provided to plaintiffs children from March 1982 to March 1983
will have to be pursued by defendants under the amended statutes,
not the 1982 enactment. (See, plaintiff's amended complaint, at
144-45.) Until such proceedings are initiated against plaintiff, they
remain conjectural only. Plaintiff cannot now show that
defendants will not further amend the child support enforcement
statutes or promulgate additional administrative guidelines in order
to comply with any applicable federal law or regulation that may
now not be met by them.
Plaintiff is not entitled to the equitable relief sought because
such relief cannot be granted for an unconstitutional act where
there is no real and immediate threat of the repeated injury. City
of Los Angeles vs. Lyons, supra, 461 U.S. at 110. Neither is
plaintiff entitled to monetary relief because no injuries to plaintiff
as a result of any action by defendants pursuant to the 1984 or
1986 amendments are alleged in his amended complaint.
Hypothetical application of the amended state debt statute in the
future is not sufficient to present a court with a present case or
controversy. Thomas vs. Union Carbide Agricultural Products Co.,
473 U.S. 568, 579-80 (1985); see Lyons, supra, 461 U.S. at 110.
A39
Finally, plaintiff contends that he is entitled to an award of
attorney’s fees as a prevailing party under a "catalyst theory” of
recovery, pursuant to 42 U.S.C. §1988.5 Plaintiff argues that the
1984 amendments to §§454.465 ef seg. were proposed by
defendants ten months after plaintiff commenced his suit. While
not all the claims made by plaintiff are reflected in the 1984
amendments, plaintiff contends that sufficient changes were made
as a result of his suit for him to be deemed a “prevailing party"
entitled to an award of attorney's fees.
Defendants contend that plaintiff fails to support his argument
with sufficient facts to demonstrate that the 1984 amendments
were made as a result of his suit. Defendants argue that plaintiff's
statement of facts in his memorandum and amended complaint are
an insufficient basis on which to grant summary judgement,
because they are not based upon first-hand knowledge. Chambers
vs. United States , 357 F.2d 224, 228 (8th Cir. 1966). Defendants
also assert that plaintiffs motion should be submitted as one for
costs, not summary judgement. Lastly, defendants submit that the
1984 amendments were not made in response to plaintiffs suit,
but rather as a part of an overall review of Missouri's child
support enforcement program. (Def. suggestions in opposition to
plaintiff's motion for summary judgement, filed September 30, 1987,
Exhs. A to D; Affidavit of Chad Jordan.)
"In order to be eligible for attorney's fees under §1988, a
litigant must be a ‘prevailing party.” Hewitt vs. Helms, —_ U.S.
__, 107 S.Ct. 2672, 2675 (1987). There must be (1) a causal link
between the lawsuit and the state’s amendment of the statutes,
and (2) plaintiff must have been the recipient of some benefit
An light of the above discussion, it is apparent that plaintiff cannot be entitled to
attorney's fees for his claims against the amended statutes; therefore, only plainuff's
claims asserted against the 1982 statute are considered herein.
A40
from the amendment. J/d., at 2675-77.
Plaintiff may qualiiy as a prevailing party because defendants
have conceded that the "state debt" allegedly owed by plaintiff for
AFDC benefits provided to his children from March 1978 to
March 1982 will not now be sought by defendants. Further,
should defendants seek a state debt for the one year of provided
AFDC benefits not explicitly conceded by them, they will have to
proceed under existing law, not the 1982 statute. Thus, plaintiff
meets the second factor set forth in Hewitt.
Plaintiff has not, however, on the present state of the record
satisfied the first part of the Hewitt test. Plaintiff has not shown
that there is an absence of dispute as to a material fact essential
to his claim: that the 1984 amendments were made in response to
his suit. Fed.R.Civ.Pro. 56(e); Buford vs. Tremayne, supra, 747
F.2d at 447.
Defendants’ contention that a material issue of fact exists is
correct. Defendants’ memorandum, exhibits and affidavits are in
direct opposition to plaintiffs assertions. Summary judgement is
not intended as a substitute for the trial of disputed fact issues.
Wilson vs. Myers, 823 F.2d 253, 256 (8th Cir. 1987). Therefore,
plaintiff is not entitled to summary judgement as to an award of
attorney’s fees. This issue will be heard by the Court, and
relevant evidence thereon received, during the current setting of
the action during the week of February 22, 1988 in Cape
Girardeau.
An appropriate Order will be entered.
DAVID D. NOCE
United States Magistrate
Dated this 25th day of January, 1988.
A41
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
Linden W. Shipman, et al., )
Plaintiffs, )
VS. ) No. S 83-199 C
Missouri Division of Family )
Services, et al, )
Defendants. )
ORDER
In accordance with the memorandum issued herewith,
IT IS HEREBY ORDERED that the motion of plaintiff tor
summary judgement be and it is denied except as to the issue of
attorney's fees.
IT IS FURTHER ORDERED | that the motion of defen-
dants for summary judgement be and it is granted except as to the
issue of attorney’s fees.
IT IS FURTHER ORDERED that an evidentiary hearing on
plaintiffs entitlement to a reasonable attorney’s fee, based upon
the catalyst theory concerning the 1984 amendments to the
relevant statutes, be and it is set for February 22, 1988 at 9:00
a.m. in Cape Girardeau immediately following the trial of Cause
No. S&86-69 C, if that case is not otherwise determined. Plaintiff
in this case shall offer evidence of the amount of time reasonably
expended and the reasonable rate therefore as a prevailing party.
Prior to said hearing plaintiff's counsel shall allow defendants an
opportunity to review attorney time records (excluding information
protected by the attorney-client privilege) and other relevant
documents underlying the claim for attorney’s fees.
DAVID D. NOCE, U.S. Magistrate
Signed this the 25th day of January 1988.
A42
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
eS. aarti
No. 84-1961
Linden W. Shipman, Individually and on
behalf of others similarly situated,
Appellant,
VS.
Missouri Department of Family Services
and Joseph O’Hara, Individually and as
Director of Division of Family Services,
Appellees.
Appeal from the United States District Court
for the Eastern District of Missouri.
Submitted: April 11, 1985
Filed: November 8, 1985
Before LAY, Chief Judge, McMillian, Circuit Judge, and
WOODS,* District Judge
PER CURIAM.
*The HONORABLE HENRY WOODS, United States District
Judge for the Eastern District of Arkansas, sitting by designation.
—
A43
This civil rights action brought under 42 U.S.C. §1983
arises out of appellant’s challenge to the State of Missouri’s
statutory scheme setting forth a non-custodial parent’s obligation
to reimburse the state for public assistance benefits received by his
or her children. The district court dismissed the action on the
ground of abstention. In view of ongoing proceedings in the state
court, we vacate the judgement of the district court and remand.
with further directions.
Under the former state statute, if there is no court
order establishing the non-custodial parent’s support obligation,
the Director of the Department of Family Services is empowered
to set the obligation, known as "state debt," at a level not to
exceed benefits actually paid. Domestic Relations Act, 1982 Mo.
Laws 633, $14 (repealed 1984). The "notice and finding of
financial responsibility" is served on the debtor-parent in the
manner prescribed for service of process in a civil action.
Domestic Relations Act, 1982 Mo. Laws 633-634, §15 (repealed
1984). The debtor-parent may request a "negotiation conference"
or send written objections requesting a hearing. If no action is
taken by the debtor-parent the Director may enter an order which
immediately subjects the debtor-parent to collection, "including, but
not limited to, wage withholding, garnishment, liens, and execution
thereon.” Jd. If a hearing is requested, the Director certified the
matter to a court by transferring copies of the notice and any
orders entered as well as the debtor-parent’s written objections and
request for a hearing. Domestic Relations Act, 1982 Mo. Laws
635, $18 (repealed 1984). The court is then required to set the
matter for hearing and notify all parties by regular mail. Jd.
In 1983, Linden Shipman, a resident of Missouri,
received a notice and finding of financial responsibility from the
Director. At the time, Shipman was divorced and under no court-
imposed obligation to support his children. Shipman objected to
the finding and the Director certified the matter to the Circuit
A44
Court of Dunklin County. On August 2, 1983, Shipman filed the
present case as a class action in the United States District Court
for the Eastern District of Missouri under 42 U.S.C. $1983.
Shipman seeks to represent a class of non-custodial parents whose
children receive Aid to Families with Dependent Children (AFDC)
or Medicaid benefits and whose support-obligation has not been
established by court decree. According to Shipman, the "state
debt" system violates due process, the right to trial by jury, and
various federal laws and regulations, as well as the Constitution of
the State of Missouri. Plaintiff seeks injunctive and declaratory
relief, damages, and attorneys’ fees. Because the action before the
Circuit Court of Dunklin County was still pending, the district
court, the Honorable H. Kenneth Wangelin presiding, dismissed
the case in June, 1984, on the ground of abstention. See Middlesex
County Ethics Committee vs. Garden State Bar Association, 457 U.S.
423 (1982); Younger vs. Harms, 401 U.S. 37 (1971). Shipman has
appealed.
Since Shipman appealed, the Missouri legislature has
amended the challenged provisions providing a new procedural
basis for handling such cases. See Mo. Rev. Stat. §§454.460-460-
510 (Supp. 1984). We are informed by Shipman’s attorney that
the state trial court has ruled that Shipman’s case should be
remanded to the Division of Family Services with directions that
Shipman’s case be procedurally processed under the new statute.
We are also informed that the State Director is seeking a writ of
prohibition from the Missouri Court of Appeals against the state
judge challenging his jurisdiction to remand the case under the new
Act. ,
Under the present ruling of the state court, Shipman’s
challenge to the old statute and administrative procedure is
mooted. We therefore remand this case to the district court with
directions to retain jurisdiction until such time as the Missouri
Court of Appeals passes on the writ of prohibition. If the writ is
‘4
7
:
Le
‘
yy
A45
denied and Shipman’s case is remanded to the Division of Family
Services to be processed under the amended statuie, the federal
district court should dismiss the case as moot. If, however, the
writ of prohibition is sustained and Shipman is required to process
his administrative review in the Missouri state court under the old
statute, the district court is requested to review Shipman’s claim as
to whether the administrative review in the state court under the
old statute is insufficient to justify abstention under Middlesex.
Under such circumstances, the district court is to either enter a
new judgement on the grounds of abstention or to try plaintiff's
claim under $1983.
It is so ordered.
A true copy.
Attest:
Clerk, U.S. Court of Appeals, Eighth Circuit
A46
45 CODE OF FEDERAL REGULATIONS
CHAPTER III - CHILD
SUPPORT ENFORCEMENT PROGRAM
PART 302 - STATE PLAN REQUIREMENTS
$302.50 SUPPORT OBLIGATIONS
The State plan shall provide as follows:
(a) The support rights assigned to the IV-D agency
pursuant to $232.11 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 established by State laws, such
as an administrative hearing process or a legally enforceable and
binding agreement;
(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 process referred
to in paragraph (a)(2) of this section in accordance with a
formula which meets the criteria prescribed in §302.53.
A47
§302.53 FORMULA FOR DETERMINING THE AMOUNT OF
THE OBLIGATION
The State plan shall provide as follows:
(a) There shall be a formula to be utilized by the IV-D
agency in determining the amount of the support obligation
pursuant to §302.50 when there is no court order covering the
obligation. Such formula must take into consideration the
following criteria:
(1) All earnings, income and resources of the absent
parent including real and personal property;
(2) The earnings potential of the absent parent;
(3) The reasonable necessities of the absent parent;
(4) The ability of the absent parent to borrow;
(S The need of the child for whom the support is sought;
(6) The amount of assistance which would be paid to the
child under the full standard of need of the State’s IV-A plan;
(7) The existence of other dependents; and
(8) Other reasonable criteria which the State may choose
to incorporate. :
(b) The formula described in paragraph (a) of this section
must be designed to insure, as a minimum, that the child for whom
support is sought benefits from the income and resources of the
absent parent on an equitable basis in comparison with any other
minor children of the absent parent.
(c) The formula described in paragraph (a) of this section
shall be utilized to determine the required monthly support
obligation, the amount of support obligation arrearage, if any, and
the amount to be paid periodically against such arrearage.
Mr. Henry:
A48
TESTIMONY OF MICHAEL HENRY
DURING HEARINGS ON ATTORNEYS
FEES MARCH 28-29, 1988
We didn’t change our policy when the law changed,
so we would have held him accountable to the same
amount of reimbursement [state debt].
[Tr., Vol. B. pages 39-40, lines 24-25/1-2].
Q.
A.
Oo Ff Oo
Does the State have any plans at the present time
of promulgating any rules or regulations which
would establish a formula for determining child
support arrearages, using the factors set out in
302.53 of the federal regulations?
a
Let me ask you, when did you first consider waiving
the state debt for Mr. Shipman?
November 1987.
How did you become aware of the possibility o!
waiving that?
I discussed it with my counsel.
[Tr., p. 31, lines 14-19].
Q.
A.
Did you discuss the matter with Mr. Cornwell
before he appeared there [November 9, 1987
hearing]?
Yes
After discussing with Mr. Cornwell the proposed
hearing, did you make any decision as to what
action he would take in that hearing?
A.
PO
PO FF DO PO PY
A49
I made a decision regarding our future posture on
the case.
Okay, What was that decision?
I believed that it would help resolve the dispute,
although that was not the overriding reason behind
the decision.
In fact, prior to that hearing, Mr. Cornwell, in the
conference call, had advised Judge Noce that it was
likely that the claim would be withdrawn by the
State and not pursue that matter, and-he further
advised that he would be filing a motion to dismiss
for lack of standing. Is thet what you understood -
Yes.
-- to be a way of resolving the case?
Yes.
That if you did that, then the plaintiff would have
no standing and the case would be dismissed.
I don’t know if my thinking went quite that deep.
But in general?
Yes.
[Tr., p. 21-23, lines 18-25/1-25/1-6].
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.