Opposition Brief — Brown v. Ledbetter

Supreme Court, U.S. ie

FILED

FFP 28 1999

JOSEPH F. SPANIOL, UR.

CLERK

No. 89-1030

:

“il

In the Supreme Court of the Anited States

OCTOBER TERM, 1989

GWENDOLYN BROWN, PETITIONER

JAMES G. LEDBETTER

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH CIRCUII

BRIEF FOR THE FEDERAL RESPONDENI

IN OPPOSITION

KENNETH W. STARR

Solicitor General

STUART M. GERSON

Assistant Attorney General

ANTHONY J. STEINMEYER

IRENE M. SOLET

Atlorneys

Department of Justice

Washington D.C. 20530

(202) 633-2217

“

QUESTION PRESENTED

Whether petitioner, a recipient of Aid To Families With

Dependent Children (AFDC) under Title IV-A of the

Social Security Act, 42 U.S.C. 601 ef seg., may bring an

action under 42 U.S.C. 1983 to challenge the failure of

State officials to provide particular child support enforce-

ment services to her in purported violation of Title IV-D

of the Social Security Act, 42 U.S.C. 651 ef seq.

(I)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Allandale Neighborhood Ass’n v. Austin Transpor-

tation Study Policy Advisory Committee, 840

ae LN, CUED pact cbewsncseuscenes

Baliles v. Virginia Hospital Ass’n, No. 88-2043

ean dee hemte Gowen eee en

Beasley v. Harris, 671 F. Supp. 911 (D. Conn.

is i a

Bennett v. White, 865 F.2d 1395 (3d Cir.), cert.

Gemted, 809 S. Ch. 3257 (IGG) 2... ccc nnn

Cannon v. University of Chicago, 441 U.S. 677

sk Ka RAW E AS Kae eo es

Clallam County v. Department of Transportation,

849 F.2d 424 (9th Cir. 1988), cert. denied, 109

ee wed ade Kou vikee &

eae se

Edwards v. District of Columbia, 821 F.2d 651

ee Wve oben ko eke ee capes

Golden State Transit Corp. v. City of Los Angeles,

ae

Maine v. Thiboutot, 448 U.S. 1 (1980) ...........

Middlesex County Sewerage Auth. v. National Sea

Clammers Ass’n, 453 U.S. 1 (1981) .....0......

Pennhurst State School & Hosp. vy. Halderman,

aS oacai-e 4 a's a0 4 6 x6 0 6:4 8 8

Quarles v. St. Clair, 711 F.2d 692 (Sth Cir. 1983) ..

(111)

lV

Cases — Continued: Page

Vanscoter v. Bowen, 706 F. Supp. 1432 (W.D.

Wash. 1988), appeal pending, No. 89-35292 (9th

ee ico Raa kee eae noe ewe Ged coke tress 12

West Virginia University Hospitals, Inc. v. Casey,

885 F.2d 11 (3d Cir. 1989), cert. granted, No.

ee ge | 13

Wright v. City of Roanoke Redevelopment &

Housing Auth., 479 U.S. 418 (1987) ........... 9, 11

Constitution, statutes, regulations and rule:

U.S. Const.:

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Administrative Procedure Act, 5 U.S.C. 701

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Social Security Act, Tit. IV, 42 U.S.C. 601 ef seq. . 2

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8,9, 11, 12, 13

V

Regulations and rule — Continued: Page

45 C.F.R.:

Pt. 302:

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In the Supreme Court of the Qnited States

OCTOBER TERM, 1989

No. 89-1030

GWENDOLYN BROWN, PETITIONER

Vy.

JAMES G. LEDBETTER

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-86a)

is reported at 875 F.2d 1558. The opinions of the district

court (Pet. App. Ic-37c, 3d-18d) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on

June 27, 1989. A petition for rehearing was denied on Sep-

tember 26, 1989 (Pet. App. 1b-2b). The petition for a writ

of certiorari was filed on December 22, 1989. The jurisdic-

tion of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Petitioner receives Aid To Families With Dependent

Children (AFDC) benefits from the State of Georgia

(1)

under Title IV-A of the Social Security Act, 42 U.S.C. 601

et seq. In this action she challenges the alleged failure of

state officials to provide child support enforcement serv-

ices pursuant to Title 1V-D of the Social Security Act, 42

U.S.C. 651 et seq.

AFDC is a cooperative federal and state program pro-

viding assistance to families deprived of child support

through the death, disability, or absence of a parent when

the family’s income falls below a specified level deter-

mined to be necessary for subsistence. 42 U.S.C. 606(a).

States must administer the program in accordance with

federal statutory and regulatory requirements to receive

the federal financial contribution. 42 U.S.C. 602(a). The

Social Security Act requires each State, as a condition of

receiving federal AFDC funds, to set up a child support

enforcement unit to locate absent parents, establish pater-

nity, and obtain child and spousal support. 42 U.S.C.

602(a)(27), 652(a)(1). The federal government supplies

66% of the administrative costs of this unit.' In addition,

the federal government makes incentive payments to

reward States for effective operation of the child support

enforcement program. 42 U.S.C. 658.

As a condition of receiving AFDC benefits, individual

recipients are required to assign to the State any rights they

may have to spousal or child support, and to cooperate

with the State’s efforts to establish paternity for their

children and obtain child support. 42 U.S.C. 602(a)(26). If

child support is recovered, the first $50 is passed through

to the AFDC recipient without affecting her eligibility for

' The federal share was 70% in fiscal years 1984 through 1987, 68%

in fiscal years 1988 and 1989, and 66% for fiscal year 1990 and

thereafter. 42 U.S.C. 655(a)(2). Certain specific services (/.e.,

automatic data processing and information retrieval, laboratory serv-

ices in establishing paternity) are funded by the federal government at

a 90% level. 42 U.S.C. 655(a)(1).

3

the program or the amount of her benefit. 42 U.S.C.

602(a)(8)(A)(vi), 657 (b)(1). In addition, in States (such as

Georgia) where the level of AFDC benefit payments was

below the state standard of need in July 1975, support

payments collected by the State are passed through to the

recipients to “fill the gap” between the actual amount of

benefits and the state standard of need. 42 U.S.C.

602(a)(28); see also Quarles v. St. Clair, 711 F.2d 691,

694-695 (Sth Cir. 1983).

Title IV-D directs the Secretary of Health and Human

Services to establish standards for state child support en-

forcement programs (42 U.S.C. 652{a)(1)) and to conduct

periodic audits to determine whether actual operation of

each State’s program complies with all statutory and regu-

latory requirements (42 U.S.C. 652(a)(4)). Title IV-D also

establishes monetary penalties, ranging from one to five

percent of the federal contribution to the State’s AFDC

program, if a federal audit reveals that the State’s child

support enforcement unit is not operating in “substantial

compliance” with federal requirements. 42 U.S.C. 603(h).?

The Secretary has determined by regulation that a state

program will be deemed in “substantial compliance” if it

meets audit criteria for most essential program functions

in 75% of the individual cases reviewed. 45 C.F.R. 305.20.

2. Petitioner has three minor children. The oldest was

born out of wedlock. Pet. App. 14a-16a. Petitioner is di-

vorced from the father of her two younger children, and

the divorce decree ordered the father to pay child support

for both of them. /d. ai 16a. At the time of the court of

appeals decision, the Georgia Title IV-D agency had not

established paternity for petitioner’s oldest child and had

not collected the support payments for her younger

? The size of the penalty depends on the number of consecutive

findings of noncompliance. 42 U.S.C. 603(h).

4

children. Pet. App. 15a-16a. In his Brief in Opposition,

however, respondent Commissioner of the Georgia

Department of Human Resources indicates that the State

has now obtained an order of paternity concerning peti-

tioner’s oldest child and that the child’s father is now pay-

ing support for her. The Commissioner also reports that

the father of the two younger children also has now made

support payments. Resp. Br. in Opp. 6-7.

Petitioner intervened in an action in the United States

District Court for the Northern District of Georgia

brought by another AFDC recipient, pursuant to 42

U.S.C. 1983, to obtain Title IV-D agency assistance in

establishing paternity and obtaining support for her child.

Pet. App. 19a.* Together with another intervenor, their

second amended complaint sought redress against the

Commissioner, based on his alleged systematic failure to

operate a statewide chiid support enforcement program as

required by Title IV-D and its implementing regulations,

and against the Secretary based on his alleged failure to

assure that the Georgia 1V-D program complied with fed-

eral statutory and regulatory standards. Pet. App. 20a.

> The original plaintiff sued the Commissioner of the Georgia

Department of Human Resources seeking declaratory and injunctive

relief for alleged violations of her right to AFDC benefits under Title

IV-A of the Social Security Act, her right to child support enforce-

ment services under Title IV-D of the Act, and her due process rights

under the Fourteenth Amendment. Pet. App. 18a; Resp. Br. in Opp.

App. 12-14. The complaint also named as a defendant the Secretary of

Health and Human Services, alleging that the Secretary had failed to

assure compliance by the State with the requirements of Titles IV-A

and |V-D and regulations issued thereunder. Pet. App. 19a; Resp. Br.

in Opp. App. 14-15. The Title IV-A claims against the Commissioner

concerning payment of AFDC benefits were eventually settled by a

consent order. Pet. App. 18a-19a. Petitioner, joined by the original

plaintiff and another intervenor, then filed an amended complaint and

moved for class certification. /d. at 19a.

5

The district court dismissed the complaint on the grounds

that Congress had foreclosed private enforcement of Title

IV-D against the State under Section 1983 and that Title

IV-D created no implied right of action. Pet. App. 22a,

13c-3l1c.4

Petitioner and her co-plaintiffs then filed a third

amended complaint asserting claims only against the

Secretary under the Administrative Procedure Act (APA),

5 U.S.C. 701 et seq., and for mandamus relief pursuant to

28 U.S.C. 1361. Pet. App. 22a. The district court dis-

missed this complaint as well (id. at 24a, 3d-18d), holding

that plaintiffs lacked standing under the APA because

their complaint failed to set forth facts sufficient to estab-

lish either causation or redressability. Jd. at 24a, 8d. Peti-

tioner alone then filed a notice of appeal challenging the

orders dismissing the claims against the Commissioner and

the Secretary. Jd. at 24a.

3. The court of appeals affirmed. With regard to peti-

tioner’s claims against the Commissioner, the court recog-

nized that under this Court’s decision in Maine v.

Thiboutot, 448 U.S. 1 (1980), and subsequent cases, a vio-

lation of a federal statute is generally cognizable under

Section 1983, but such an action is not available if Con-

gress has either foreclosed private enforcement or has

created no enforceable rights in the relevant statutory pro-

visions. Pet. App. 25a-26a. The court of appeals pointed

out that in Cort v. Ash, 422 U.S. 66 (1975), this Court

articulated four factors for determining whether a statute

creates a private cause of action (Pet. App. 28a-29a); the

court of appeals concluded that the first Cort fac-

tor —whether that plaintiff is one of the class for whose

* The district court also denied plaintiffs’ request for class certifica-

tion. See Pet. App. 22a, 36c.

6

“especial benefit” the statute was enacted —is helpful to

the Section 1983 analysis. Pet. App. 29a-30a. The court

then determined that Title IV-D of the Social Security Act

created no enforceable rights to child support enforcement

services for individual AFDC recipients, and found it un-

necessary to reach the issue of whether the statute

foreclosed private remedies. Pet. App. 26a, 30a-36a.

The court based its conclusion regarding the lack of en-

forceable rights on several characteristics of the statute

and its legislative history. Pet. App. 30a-3la. Unlike Title

IV-A of the Act, which provides funds to children in need,

Title IV-D seeks to recover those funds for the Treasury.

Pet. App. 3la. In enacting Title IV-D, Congress was

primarily concerned with collecting support payments to

lessen the cost of the AFDC program to the taxpayers and

to reduce the welfare rolls. Pet. App. 3la-34a. The court

also pointed out that Title IV-D is not a legal assistance

program for AFDC recipients, but rather a program in

which recipients assign their support rights to the State

and agree to cooperate with the State in its efforts to

establish and enforce support obligations. Pet. App.

35a-36a. Accordingly, the court concluded that petitioner

did not have rights to support enforcement services under

Title IV-D that were enforceable through a Section 1983

action. Pet. App. 36a.

With respect to the claims against the Secretary, the

court of appeals held that petitioner lacked Article III

standing. Pet. App. 36a-44a. Although the court acknowI-

edged that petitioner had alleged two types of cognizable

injury —the loss of the $50 of child support that would be

passed through to her if collected by the State and the

failure to establish her child’s paternity—the court held

that the nexus between these injuries and the Secretary’s

alleged unlawful action was “attenuated at best.” Jd. at

42a. The court further held that petitioner had failed to

show that her situation would be improved if the court

were to award the relief she sought against the Secretary.

Id. at 43a. The court pointed out that where, as here, the

Statute provides its Own comprehensive enforcement

scheme, these enforcement procedures may not be by-

passed by means of individual actions under Section 1983.

Pet. App. 43a-44a.°

ARGUMENT

Although this case is not moot, its practical significance

has been substantially diminished because petitioner has

now obtained the support services that she sought. In any

event, this case does not warrant review because the court

of appeals correctly rejected petitioner’s claim that Title

IV-D of the Social Security Act establishes rights to par-

ticular child support enforcement services enforceable

through a Section 1983 action.®

> Judge Clark dissented from the decision with respect to the affir-

mance of the dismissal of the Section 1983 action against the Commis-

sioner. Pet. App. 46a-86a.

* Petitioner does not seek review of the dismissal of her claims

against the Secretary. Pet. 12 n.1. Under Rule 12.4 of the rules of this

Court, the Secretary nevertheless remains a party before this Court.

The Secretary also retains a substantial interest in this matter. As

discussed below, the Title 1V-D program was designed by Congress to

save federal and state funds by recovering assigned support payments

from absent parents of children in families receiving AFDC benefits,

and to reduce the number of welfare recipients. This plan would be

undermined if, through availability of a cause of action under Section

1983, Tithe IV-D became an entitlement program which guaranteed

specific child support enforcement services to all individual AFDC

recipients. As the court of appeals pointed out (Pet. App. 44a),

recognition of a Section 1983 remedy in this case would generate

“multitudinous suits” in federal court, diverting state resources from

the effort to operate the most efficient overall program of child sup-

port enforcement.

1. Although not moot,’ this case is an inappropriate

vehicle for review because petitioner has now obtained the

essential elements of the relief that she requested. The

Commissioner reports that he has been successful in

establishing paternity for petitioner’s oldest child and that

since May 1989 the child’s father has been paying support

on her behalf. Resp. Br. in Opp. 6. In addition, the Com-

missioner reports that the father of petitioner’s two

younger children has made support payments under his

divorce decree with petitioner. /d. at 6-7. Petitioner thus

has now received the services to which she claims to be en-

titled under Title IV-D. Particularly in light of these

changed circumstances, review of petitioner’s claims is not

warranted.

2. In any event, those claims are not well founded.

Petitioner’s principal contention is that there is widespread

confusion concerning the proper standard for determining

whether Section 1983 actions may lie from violations of

federal statutes, and that, reflecting this confusion, the

court of appeals improperly relied upon Cort v. Ash. Pet.

13-36. This contention is unavailing.

Contrary to petitioner’s submission, the governing

standard for evaluating whether Section 1983 actions may

be brought for claimed violations of federal statutes is set-

tled. Violations by state officials of federal statutes give

rise to a cause of action under 42 U.S.C. 1983 (Maine v.

Thiboutot, 448 U.S. 1 (1980)); a Section 1983 action is not

available, however, if (1) Congress has foreclosed private

enforcement of the claim in the statute itself (Middlesex

’ Petitioner’s claim is not moot because the plaintiffs’ complaint in-

cluded a request for judicial oversight of systematic reform. See, e.g.,

Second Amended Complaint, para. 90 (C.A. E.R. 4) (requesting that

the court “{rjetain jurisdiction over Defendants until such time as the

Court is satisfied that the practices, policies, and omissions alleged

herein are corrected and will not recur”).

9

County Sewerage Auth. v. National Sea Clammers Ass’n,

453 U.S. 1 (1981)), or (2) the pertinent federal statute does

not create “enforceable rights” for the purpose of Section

1983 (Pennhurst State School & Hosp. v. Halderman, 451

U.S. 1 (1981)). See also Golden State Transit Corp. v. City

of Los Angeles, 110 S. Ct. 444, 448-449 (1989); Wright v.

City of Roanoke Redevelopment & Housing Auth., 479

U.S. 418, 423 (1987). Recognizing that implied cause of

action cases like Cort v. Ash, can be helpful tools in the

analysis of congressional intent that this standard requires,

this Court itself has cited Cort and its progeny in Section

1983 analysis of federal statutes.* Thus, contrary to peti-

tioner’s assertion, there is no widespread confusion re-

garding the proper standard for evaluating whether a Sec-

tion 1983 action may lie for violations of a federal statute.’

The court of appeals correctly applied the established

standard from Thiboutot, Sea Clammers, and Pennhurst

(Pet. App. 24a-26a, 36a) and concluded that, under Penn-

hurst, Title IV-D does not create “enforceable rights” to

particular child support enforcement services for individ-

* See Golden State Transit Corp., 110 S. Ct. at 448 (citing the

Wright dissent and noting its citation to Cort v. Ash); Wright, 479

U.S. at 428 (citing Cannon v. University of Chicago, 441 U.S. 677,

704-707 (1979), which applies Cort v. Ash).

9 As petitioner points out (Pet. 17 n.3, 25 n.5), Baliles v. Virginia

Hospital Ass'n, No. 88-2043 (argued Jan. 9, 1990), presents a question

concerning the availability of a Section 1983 remedy for violations of

a federal statute. Because the question presented in that case concerns

the availability of such a remedy under a particular statute, rather

than a challenge to the governing standard, it is not necessary to hold

this case for disposition in light of Baliles. It should be pointed out,

however, that both the petitioner’s and the respondent’s briefs in

Baliles discuss, at least in passing, the relationship between Thiboutot

and the Cort v. Ash/Cannon v. University of Chicago implied right of

action line of cases. See Pet. Br. 10-11; Resp. Br. 22 n.24.

10

ual AFDC recipients. The fact that the court invoked the

first factor of Cort v. Ash to aid its inquiry does not in any

way undermine the correctness of its analysis.

As the structure of the Title IV-D statute demonstrates,

the program was crafted to help the government recoup

welfare costs and reduce the number of welfare recipients.

The entire Title IV-D program is built around the statu-

tory requirement that AFDC recipients assign their rights

to child support to the State and cooperate with the State

in its efforts to establish paternity and enforce support

obligations. 42 U.S.C. 602(a)(26). The child support rights

“assigned to the State under section 606(a)(26)” become

“an obligation owed to such state by the individual respon-

sible for providing such support.” 42 U.S.C. 656(a) (em-

phasis added). Pursuant to that assignment of support

rights, it becomes the State’s prerogative to undertake the

support enforcement efforts it deems appropriate under

an overall plan meeting federal statutory and regulatory

standards. 42 U.S.C. 602(a)(27), 652(a)(1). Moreover, al-

though the federal standards require statewide operation

of a program of services designed to serve all AFDC ap-

plicants and recipients (see 45 C.F.R. 302.31, 302.33),

whether a State has adequately met these federal re-

quirements is measured by a standard of “substantial com-

pliance.” 42 U.S.C. 603(h). The Secretary has determined

by regulation that “substantial compliance” means meet-

ing audit criteria in 75% of individual cases. 45 C.F.R.

305.20.'° Clearly, this statute and its implementing regula-

'0 The regulations specifically permit States to develop a case

assessment and prioritization system for determining the order in

which individual cases will be handled. 45 C.F.R. 303.10.

EE |

11

tions do not envision a program creating enforceable rights

to services in specific individuals.'!

The pass-through to the AFDC recipient of the first $50

per month of support payments collected by the State does

not suggest otherwise. Whether such a pass-through will

be available depends not only on successful efforts by the

State to establish paternity or a support obligation, but

also on the actual collection of support from an absent

parent. Thus, a recipient’s expectation of a pass-through

payment is not a “specific and definite” right (Wright, 479

U.S. at 432) mandated by federal statute upon which peti-

tioner can base a cause of action under Section 1983. For

the same reason, the “fill the gap” provision (42 U.S.C.

602(a)(28)) also creates no such right. Like the $50 pass-

through, expectation of this additional benefit is con-

tingent On a variety of factors in addition to the State’s ef-

forts to establish and collect support obligations and also

does not create a “specific and definite right.” !2

'! Indeed, if such a right were found and individual AFDC re-

cipients were free to bring suits in federal court whenever they believed

child support enforcement services provided by the State were inade-

quate, Title 1V-D programs could be saddled with a burden of litiga-

tion which would frustrate accomplishment of their statutory objec-

tive.

'2 In view of its decision regarding the lack of enforceable rights,

the court of appeals found it unnecessary to reach the issue whether

the Title IV-D statute precludes private enforcement. Pet. App. 26a.

In fact, the statute’s comprehensive oversight and enforcement scheme

demonstrates that Congress intended to foreclose private enforcement

of its requirements through actions under Section 1983. Title IV-D re-

quires the Secretary to audit every state program at least once every

three years. 42 U.S.C. 652(a)(4). Federal regulations establish exten-

sive and detailed audit criteria (see 45 C.F.R. Pt. 305). The statute

itself prescribes monetary penalties ranging from one to five percent

of the federal contribution to the State’s AFDC program, to be im-

posed where a federal audit reveals that the State’s Title IV-D agency is

12

Petitioner’s suggestion (Pet. 19) that the court of ap-

peals decision conflicts with the decisions of other courts

regarding the availability of a Section 1983 cause of action

for alleged state failure to comply with the Title IV-D pro-

gram is unfounded. None of the cases cited by petitioner

involved an action (as in this case) for particular child sup-

port enforcement services; each of the cases principally in-

volved the fundamentally different situation of a challenge

to the State’s treatment of funds already in hand, at least

some Of which were earmarked by statute and regulation

to the AFDC recipient.'?

not Operating in “substantial compliance” with federal reqt:irements.

42 U.S.C. 603(h). In addition, the statute provides for incentive

payments to States that operate cost-effective Title IV-D programs. 42

U.S.C. 658. This complex scheme of federal monitoring, enforce-

ment, and incentives demonstrates that Congress did not intend that

State compliance with federal requirements for operation of child sup-

port enforcement programs would be policed through private suits by

recipients under Section 1983.

'3 See Bennett v. White, 865 F.2d 1395 (3d Cir.), cert. denied, 109

S. Ct. 3257 (1989); Quarles v. St. Clair, 711 F.2d 691 (Sth Cir. 1983);

Vanscoter v. Bowen, 706 F. Supp. 1432 (W.D. Wash. 1988), appeal

pending No. 89-35292 (9th Cir.); Beasley v. Harris, 671 F. Supp. 911

(D. Conn. 1987). To be sure, Quarles also involved a claim that a State

had not made the necessary arrangements to enter into certain

cooperative agreements at all (711 F.2d at 708-713); such a claim,

however, is distinguishable from the claims for particular services at

issue here. None of the cases cited by petitioner, moreover, addresses

the question whether a Section 1983 cause of action is proper.

Petitioner’s related claim (Pet. 19-23) that there is confusion in the

courts of appeals regarding the availability of Section 1983 remedies

under other statutes also does not warrant review. Like the court of

appeals decision in this case, the holdings of those cases rest on an

analysis of the specific statute at issue. Petitioner cites four decisions

from courts of appeals analyzing remedies for violations of other

statutes. Two of the four cite Cort as helpful in the Section 1983 anal-

ysis (see Clallam County v. Department of Transportation, 849 F.2d

424, 428 (9th Cir. 1988), cert. denied, 109 S. Ct. 790 (1989); Edwards

v. District of Columbia, 821 F.2d 651, 654 n.4 (D.C. Cir. 1987)), and

13

3. Finally, petitioner also raises (Pet. 36-38) a due

process claim concerning the possibility of receiving the

$50 pass-through and the “fill the gap” payments.

Although recognizing that the court of appeals did not ad-

dress this issue, petitioner maintains that the result con-

flicts with Bennett v. White, 865 F.2d 1395 (3d Cir.), cert.

denied, 109 S. Ct. 3257 (1989). Even if the court of appeals

in this case had addressed the issue, however, there would

be no conflict. Bennett had nothing to do with alleged

failure by the State to provide particular child support en-

forcement services and the resulting failure of AFDC re-

cipients to receive pass-through payments under 42 U.S.C.

657(b)(1) or fill-the-gap payments under 42 U.S.C.

602(a)(28). Instead, the court of appeals in Bennett

recognized a due process interest by AFDC recipients in

support payments actually collected by the state Title IV-D

agency, not (as petitioner asserts here) in the speculative

expectation of support payments that might be available if

the state agency undertook efforts to establish and enforce

support obligations by the absent fathers of petitioner’s

children — and if the absent fathers then actually made the

required support payments. This speculative expectation,

which is contingent on a number of factors, does not give

rise to a protectable property interest under the Due Proc-

ess Clause. Petitioner’s claim of a due process violation

thus does not warrant review.

one does not even involve Section 1983 at all (see A//landale Neighbor-

hood Ass’nv. Austin Transportation Study Policy Advisory Commit-

fee, 840 F.2d 258, 264 n.19 (Sth Cir. 1988)). The fourth does disavow

reliance on Cort in a footnote (see West Virginia University Hospitals,

Inc. v. Casey, 885 F.2d 11, 18 n.1 (3d Cir. 1989), cert. granted on a

different issue, No. 89-994 (Feb. 26, 1990)), but the court’s statements

are dicta and do not create a conflict warranting review; the court in

that case recognized the same Thiboutot-Sea Clammers-Pennhurst

framework as the court in this case (885 F.2d at 18), and rested its

decision on a detailed discussion of the particular statute. /d. at 19-21.

14

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

STUART M. GERSON

Assistant Attorney General

ANTHONY J. STEINMEYER

IRENE M. SOLET

Altorneys

FEBRUARY 1990

ss US GOVERNMENT PRINTING OFFICE 1990—262.203/00783