Appendix — Ellenbecker v. Howe

Supreme our, Oe,

tes FILED

93128 8 JAN 1 11994

OFrick OF THE CLERK

| No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

JAMES ELLENBECKER, in his capacity

of Secretary of the South Dakota Department

of Social Services, TERRY WALTER, in his

capacity as Program Administrator, South

Dakota Office of Child Support Enforcement,

Petitioners,

Vv.

VELDA HOWE, THERESA TAKEN ALIVE, on behalf

of themselves, their children, and all

others similarly situated,

| Respondents.

APPENDICES

MARK BARNETT

ATTORNEY GENERAL

DAVID L. BRAUN

= Special Assistant Attorney General

Counsel of Record

700 Governor's Drive

Pierre, South Dakota 57501

: (605) 773-3641

Attorneys for Petitioners

TABLE OF CONTENTS

Velda Howe, et al. v. James

Ellenbecker, et al.; United States

Court of Appeals for the Eighth

Circuit; No. 92-3354

Velda Howe, et al. v. James

Ellenbecker, et al.; United States

Court of Appeals for the Eighth

Circuit; Judgment; (11/3/93)

Velda Howe, et al. v. James

Ellenbecker, et al.; United States

District Court; No. 90-3007;

(9/18/91)

Velda Howe, et al. v. James

Ellenbecker, et al.; United States

District Court; Central Division;

No. 90-3007; Order; (9/18/93)

Velda How e, et al. Vv. James

Ellenbecker, et al.; United States

District Court; Central Division;

No. 90-3007; Order (3/27/92)

Vv. es

ee ornate s United States

District Court; Central Division;

No. 90-3007; Memorandum Order

(8/10/92)

42 U.S.C. §§ 651-699

PAGE

A-87

A-106

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

NO. 92-3354

VELDA HOWE, on behalf of themselves, their

children, and all other similarly situated;

THERESA TAKEN ALIVE, on behalf of themselves,

their children and all others’ similarly

situated,

Piaintiffs - Appellees,

vs.

JAMES ELLENBECKER, in his capacity as

Secretary of the South Dakota Department of

Social Services; TERRY WALTER, in his capacity

as Program Administrator, South Dakota Office

of Child Support Enforcement;

Defendants - Appellants,

LOUIS W. SULLIVAN, in his capacity as

Secretary of the United States Department of

Health and Human Services,

Defendant.

Appeal from the United States District Court

for the District of South Dakota

Submitted: June 16, 1993

Filed: October 13, 1993

A-2

Before RICHARD S. ARNOLD, Chief Judge, JOHN R.

GIBSON and MORRIS SHEPPARD ARNOLD, Circuit

Judges.

JOHN R. GIBSON, Circuit Judge.

James Ellenbecker, Secretary of the South

Dakota Department of Social Services, Terry

Walter, Program Administrator of the South

Dakota Office of Child Support Enforcement,

and Donna Shalala, Secretary of the United

States Department of Health and Human

Services,’ appeal from a declaratory judgment

entered in favor of a class represented by

Velda Howe and Theresa Taken Alive,’

Donna E. Shalala replaced Louis w.

Sullivan, M.D., as the Secretary of Health and

Human Services on January 22, 1993. The

Secretary of Health and Human Services, who

was a defendant in the proceedings in the

district court, originally appealed the

district court's order, but subsequently

voluntarily dismissed his appeal.

* Howe and Taken Alive bring this action

on behalf of themselves, their children,

custodial parents, and children who have

A-3

recognizing their rights to enforce claims for

child support enforcement services under Title

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

651 et seq. (1988). The district court

ordered the federal government and the State

to negotiate with the Indian tribes, of which

Howe and Taken Alive were enrolled members, in

an attempt to reach a cooperative agreement

concerning enforcement of child support

obligations to their children. The State

argues that Howe and Taken Alive have no

standing and no private enforcement right

under Title IV-D which they may assert in an

absent parents residing on Indian reservations

in South Dakota, and all others similarly

situated, claiming that they have been denied

child support collection services secured

under Title IV-D of the Social Security Act,

the Child Support and Establishment of

Paternity Act, 42 U.S.C. § 651 et seg. (1988).

This matter was certified as a class action by

order filed October 24, 1990.

A-4

action under 42 U.S.C. § 1983 (1988). Wwe

affirm the judgment of the district court.°®

Howe is an enrolled member of the Crow

Creek Sioux Indian Tribe and lives with her

four children in Chamberlain, South Dakota.

She receives Aid to Families with Dependent

Children (AFDC) benefits for herself and her

minor son. As a condition of receiving AFDC,

she was required to cooperate with the State

in establishing her child's paternity,

securing child support for her children, and

assign the right to receive the child support

for her son to the State. She claims that

despite her willingness to cooperate with the

State and identify her son's father, the State

made no effort to establish the paternity of

. The Honorable Donald J. Porter, United

States District Judge for the District of

South Dakota.

A-5

her son because the putative father lives on a

South Dakota Indian reservation.

Taken Alive receives AFDC benefits for

her minor daughter. She has custody pursuant

to a judgment and decree of divorce from the

Standing Rock Sioux Tribal Court, which

required the father to pay child support in

the amount of $300.00 per month to Taken

Alive. Taken Alive claims that although she

informed the South Dakota Office of Child

Support Enforcement of the divorce decree, the

OCSE has refused to attempt to collect child

support because the father lives on a South

Dakota Indian reservation.

The district court describes the AFDC

program as a “federal-state cooperative effort

administered by the _ states." Howe _v.

Ellenbecker, 774 F. Supp. 1224, 1226 (D.S.D.

1991). Under the program, states make

monetary payments to financially needy

A-6

families, including children deprived of

parental support. 42 U.S.C. § 601 et seq.

Although state participation in the program is

not required, if a state enters the progran,

it must operate its Plan in compliance with

the statutory requirements and regulations

promulgated by the Secretary of Health and

Human Services. The Act requires every

participating state to have a plan in effect

for child support collection which meets the

Act's minimum standards, 42 U.S.c. § et seg.

Since 1950, the federal government has

continued to revise the requirements governing

efforts by states to enforce child support.

In 1984, Congress enacted an amendment

requiring states to pass laws for mandatory

wage withholding and liens, as well as

requiring paternity establishment services for

both AFDC and non-AFDC families. See Child

Support Enforcement Amendments of 1984, Pub.

A-7

L. No. 98-378, codified at 42 U.S.C. § 651 et

seg. (1988). Shortly thereafter, Congress

passed the Deficit Reduction Act of 1984 which

provided that when a non-custodial parent of

an AFDC child makes a support payment to the

state pursuant to a Title IV-D plan, the AFDC

family receives the first fifty dollars

collected without any reduction in the amount

of assistance they receive under the plan each

month. Pub. L. No. 98-369, codified at 42

U.S.C. § 657(b)(1) (1985). If a state fails

to comply with any of the Title IV-D child

support enforcement regulations, it risks

losing federal matching funds.

South Dakota follows differing approaches

to child support enforcement depending on

whether or not the absent parent lives within

an Indian reservation. In cases where the

absent parent does not live on an Indian

reservation, upon receiving an application

A-8

from a parent requesting collection

assistance, the South Dakota Office of Child

Support Enforcement first attempts to locate

the absent parent. The OCSE then sends a

notice of support debt to the absent parent

requesting financial data so that the ocsE can

determine the amount owed. The OCSE next

attempts to obtain a stipulation from the

absent parent admitting paternity and agreeing

to pay the amount owed. Finally, if the

absent parent refuses to stipulate to

paternity or the amount owed, the OCSE turns

the case over to counsel who attempts to

obtain paternity determinations and support

orders through the state courts.

If the absent parent lives and works on

the reservation, the OCSE attempts to locate

the absent parent and seeks a stipulation of

paternity and the amount owed. However,

because the state courts lack jurisdiction

A-9

over parents residing on the reservations, the

State cannot pursue these parents through the

state courts. The State has had little

success in its efforts to enforce state court

orders on the reservations because of

jurisdictional barriers. Moreover, the State

does not use tribal courts to pursue the

absent parents, in part, because the federal

government will not provide matching funds for

pursuing child support claims through the

tribal courts. Each of the nine tribes

located in South Dakota operates a tribal

court system having jurisdiction over tribal

members, and the State may use them to bring

paternity and child support actions.

The district court rejected the arguments

of the federal and state governments that

Title IV-D does not afford individuals a

private right of action under section 1983,

and that they do not have standing to bring

A-10

_._.this action. The court found that the

Secretary's interpretation that Title IV-D

precluded federal financial assistance to

states which pursue absent parents who reside

and work on Indian reservations when the tribe

does not comply with the Title IV-D

regulations was unreasonable. The district

court concluded that the State could provide

enforcement’ services through contractual

agreements with attorneys, and that the State

could use tribal courts to pursue absent

parents without contradicting the regulations.

The court reasoned that in enacting Title Iv-

D, Congress did not intend to permit exclusion

of a large percentage of Indian children from

its benefits, and accordingly, that the State

must provide them with the services they are

entitled to receive.

ee

A-11

The court ordered the federal government

to attempt to negotiate with the tribes in

South Dakota a_tribal plan which would be

statutory, regulatory, as well as functionally

equivalent of a state plan as described in

Title IV-D. The court concluded that the

state and federal governments should reach

every effort to negotiate a cooperative

5

agreement with each of the nine tribes. The

parties do not attack the extent of the

Upon a Motion for Reconsideration and

Request for Stay Pending Reconsideration by

the federal government, the district court

vacated its earlier order requiring both the

federal and state governments to negotiate,

and ordered the State to “use every reasonable

effort to negotiate a cooperative agreement or

purchase of service agreement with each of the

nine tribes in South Dakota." Howe __v.

Ellenbecker, 796 F. Supp. 1276, 1280 (D.S.D.

1992).

A-12

remedy, and accordingly, we need not discuss

the remedy in detail.

The only issue on appeal is the propriety

of the district court's determination that

Howe and the class have standing, and that

they have a private enforceable right to sue

under 42 U.S.C. § 1983. We review this ruling

under a de novo standard.

In order to have standing in federal

court, plaintiffs must show that they have

suffered or are about to suffer a "personal

injury" that is "fairly traceable" to the

defendant's conduct, and that the injury is

"likely to be redressed by the requested

relief." Allen v. Wright, 468 U.S. 737, 751

(1984). Because standing is determined by the

specific claims presented, international

Primate Protection Leaque v. Administrators of

Tulane Educ. Fund, ——sU.S. si, - 111 S. Ct.

1700, 1704 (1991) (quoting Allen v. Wright,

A-13

468 U.S. 737, 752 (1984)), whether Howe and

the class have standing depends on whether the

statute at issue, Title IV-D, creates an

express or implied private right of action.

Warth v. Seldin, 442 U.S. 490, 500-01 (1975).

Here, the injury the class suffers,

specifically denial of child support

enforcement services, is directly traceable to

the State's refusal to assist them in

obtaining child support enforcement from the

absent fathers living within Indian

reservations and is capable of judicial

redress. Therefore, their standing depends on

whether Title IV-D confers a private right of

action under section 1983 upon parties in

their position.

As a general rule, plaintiffs may bring

private causes of action under section 1983

=

for violations of federal statutes. Maine v.

A-14

Thiboutot, 448 U.S. 1, 8 (1980). However, a

private right of action will not lie if

Congress has not’ created any enforceable

rights in the statute, Pennhurst State Schoo]

& Hosp. v. Halderman, 451 U.S. 1, 24-25

(1981), or if it intended to foreclose private

enforcement by providing a comprehensive

remedial scheme in the _ statute itself,

id s fe) WwW a

Sea_ Clammers Ass'n, 453 U.S. 1, 14 (1981).

Recently, in Suter v. \s4) @ Att ae A. 2

1360 (1992), the Supreme Court refined its

analysis of private rights of action under

section 1983, concluding that a section 1983

action is created where Congress intends the

statute to benefit persons like the plaintiffs

through the imposition of mandatory and direct

obligations on the state, and where no

comprehensive enforcement mechanism exists

A-15

under which plaintiffs may find relief.° Id.

. Before Suter, the Supreme Court

developed a three-part framework for analyzing

whether a plaintiff could enforce a federal

law by bringing a § 1983 action. See Wilder

v. Virginia Hosp. Ass'n, 496 U.S. 498, 509

(1990). This inquiry examined (1) whether

Congress intended the provision at issue to

benefit the putative plaintiff, and if so,

(2)whether it reflected merely a congressional

preference or imposed binding obligations on a

state or (3) whether the plaintiff's interest

was so "vague and amorphous" that it is beyond

the power of judicial enforcement. Id.

This Circuit, as well as others, has

recognized that although Suter weakened

earlier precedent in vital respects, the Court

was careful not to explicitly overrule the

Wilder framework. See Arkansas Medical Soc'y,

Inc. v. Reynolds, Nos. 92-3146/93-2352, slip

op. at 8-9 (8th Cir. Sept. 10, 1993) ("Suter

did not overrule Wilder") ; w Vv ves,

976 F.2d 65, 68 (lst Cir. 1992); Procopio v.

Johnson, 994 F.2d 325, 311 N.9 (7th Cir.

1993). Following the lead of the First and

Seventh Circuits, we believe it "both prudent

and possible to synthesize the teachings of

Suter with the Court's prior precedents."

Stowell, 976 F.2d at 68. Thus, we proceed by

using the Wilder framework .as articulated in

Suter. however, we need not discuss in detail

whether Howe and the class have “vague and

amphorous" interests that are beyond the power

of judicial enforcement because neither party

disputes that the interests of obtaining child

at 1366-68 & n.11.

Our analysis for evaluating a federal

law's enforceability under section 1983 begins

by inquiring “whether the provision in

question was intended to benefit the putative

plaintiff." Wilder, 496 U.S. at 509. We

agree with the district court that in enacting

Title IV-D Congress intended to benefit AFDC

families. First, Congress expressly provided

in 42 U.S.C. § 651 that the purpose of Title

IV-D is to "“assur[e] that assistance in

obtaining support will be available. .. to

all children." Second, Congress' intent to

benefit AFDC women and children with absent

fathers is evident from the plain language of

Title IV-D's requirements. For example, to

meet the Act's minimum standards, a state

Support are capable of redress through

judicial decree.

A-17

must, inter alia: make Title IV-D services

available to non-AFDC families, 42 U.S.C. §

657(c); give the first fifty dollars collected

from each absent parent to the family without

a corresponding reduction in their monthly

AFDC payment, 42 U.S.C. § 657 (b); and provide

families with annual notice of support

collected on their behalf, 42 U.S.C. § 654(5).

Third, the legislative history sows that Title

IV-D was primarily designed to “help children

attain this right [to support], including the

right to have their fathers identified so that

support can be ovtained." S. Rep. No. 93-1356,

93d Cong., 2d Sess., reprinted in 1974

U.S.C.C.A.N. 8133, 8145-46. Finally, the

decisions of other courts are consistent with

our view that Title IV-D was intended to

benefit needy families. See Carelli v.

Howser, 923 F.2d 1208, 1211 (6th Cir. 1991)

(Title IV-D was intended to benefit both AFDC

A-18

families and "the public fisc" by reducing

public welfare); Behunin v. Jefferson County

Dep't of Social Servs., 744 F. Supp. 255, 257-

58 (D. Colo. 1990) (Congress primarily

intended Title IV-D to. secure support

enforcement services for children and their

families); Beasley Vv. Harris, 671 F. Supp.

911, 921 (D. Conn. 1987) (Congress intended to

enlarge the assistance to the family); cf.

Wehunt v. Ledbetter, 875 F.2d 1558, 1565 (11th

Cir. 1989), Cert. Denied, 494 U.S. 1027 (1990)

(Title IV-D was enacted to reduce welfare

costs). We thus conclude that Congress

enacted Title IV-D to benefit "putative

plaintiffs" such as Howe and the class

members. J

Next, we must determine whether Congress

set forth the intent to benefit these types of

families in specific and mandatory terms in

the provision at issue. Suter, 112 S. Ct. at

|

A-19

J 1370. To assert a section 1983 action, the

y statute at issue must give unambiguous notice

~ to the State of what is expected of it,

y instead of "broad limits" in which to comply.

t Suter, 112 S. Ct. at 1368; Arkansas Medical

7 Soc'y, slip op. at 9 (discussing the Suter

Court's emphasis on the fact that terms must

> be "unambigucusly" conferred to be

. enforceable). Once a state decides to enter

1 the AFDC program, the requirements of Title

IV-D and its corresponding regulations are

mandatory and unambiguous. For example, in

w

; addition to the mandatory requirements stated

: above, state plans "must provide that the -

State will undertake" a program to establish

the paternity of a child born out of wedlock,

, 42 U.S.C. § 654(4), and the state “must”

notify a family "at least annually" of the

| amount of child support collected on its

behalf. 42 U.S.C. § 654(5). See Behunin, 744

A-20

F. Supp. at 258 (listing reasons Title IV-D is

mandatory). A state may not receive federal

funds for its AFDC program unless it has a

Title IV-D child support recovery program that

complies with federal law. 42 U.S.C. §

602(a) (27). Furthermore, the regulations

reiterate the statute's plain directives,

requiring that participating states must

attempt to locate absent parents, 45 C.F.R. §

303.3(b); must periodically review and adjust

child support orders, 45 C.F.R. § 303.4; must

determine the paternity of children born out

Of wedlock, 45 C.F.R. § 303.5; and must

enforce support obligations for the children,

45 C.F.R. § 303.6. The mandates of Title IV-D

are particular and specific enough to impose

binding obligations on South Dakota, and

accordingly, create substantive enforceable

rights in the class. See Wilder, 496 U.S. at

512 (holding that the Boren Amendment of the

a

A-21

Medicaid Act creates substantive federal

rights enforceable under section 1983 because

the Act actually required the states to adopt

"reasonable and adequate rates" for medical

assistance); cf. Suter, 112 S. Ct. at 1370

(holding that the Adoption Assistance and

Child Welfare Act of 1980 does not create a

private enforceable right under section 1983

because Act only required states to make

"reasonable efforts").

Finally, even though the class falls

within the parameters of intended

beneficiaries and Title IV-D imposes mandatory

requirements, we must conclude. that’ the

statute itself does not provide a

"comprehensive remedial scheme which leaves no

room for additional private remedies" in order

to hold that Title IV-D confers an enforceable

right on Howe and the class members to sue

under section 1983. Suter, 112 S. Ct. at 1368

A-22

& n.1l. Title IV-D confers an enforceable

right on Howe and the class members to sue

under section 1983. Suter, 112 S. Ct. at 1368

& Ww. ii. Title IV-D does contain an

enforcement scheme in the form of fiscal

sanctions the federal government may assert

against the State, but these remedial measures

are neither comprehensive nor available to the

Class. The federal government's authority to

audit and impose monetary sanctions does not

constitute "comprehensive" remedies. See

Wright v. City of Roanoke Redevelopment and

Housing Auth., 479 U.S. 418, 423 (1987)

(finding a federal agency's authority to audit

and withhold federal funds insufficient to

show Congress' intent to preclude section 1983

actions). Furthermore, Howe and the class

have no alternative enforcement remedy because

the State has continuously refused to assist

them in obtaining Title IV-D services to which

i

A-23

they are entitled. We see no enforcement

provisions in Title IV-D that show a

congressional intent to foreclose these Indian

women and children from asserting private

remedies. We cannot believe that in enacting

Title IV-D Congress intended to deny child

Support enforcement services and paternity

determination for a such a large segment of

the South Dakota population.

Our analysis under Wilder and Suter leads

us to the conclusion that the Howe class may

assert their claims under section 1983.

We affirm the judgment of the district

court.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS,

EIGHTH CIRCUIT.

APPENDIX B

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

Appeal from the United States

District Court for the

District of South Dakota

No. 92-3354SDP

Velda Howe, on behalf of themselves, their

children, and all others similarly situated;

Theresa Taken Alive, on behalf of themselves,

their children, and all others’ similarly

situated,

Appellees,

vs.

James Ellenbecker, in his capacity as

Secretary of the South Dakota Department of

Social Services; Terry Walter, in his capacity

as Program Administrator, South Dakota Office

of Child Support Enforcement,

Appellants,

Louis W. Sullivan, in his capacity as

Secretary of the United States Department of

Health and Human Services,

Defendant.

JUDGMENT

This appeal from the United States

District Court was submitted on the record of

A-25

the district court, briefs of the parties and

was argued by counsel.

After consideration, it is hereby ordered

and adjudged that the judgment of the district

court in this cause is affirmed in accordance

with the opinion of this court.

A true copy.

ATTEST:

/s/ Michael E. Gans, Clerk

U.S. Court of Appeals

Eighth Circuit

MANDATE ISSUED 11/3/93

AyPENDIX C

VELDA HOWE, Theresa Taken Alive, on Mehalf of

themselves, their children, and al: others

similarly situated, Plaintiffs,

Vv.

JAMES ELLENBECKER, in his capacity as

Secretary of the South Dakota Department of

Social Services; Terry Walter, Program

Administrator, South Dakota Office of Child

Support Enforcement, and Louis Sullivan, M.D.,

in his capacity as Secretary of the United

States Department of Health and Human

Services, Defendants.

Civ. No. 90-3007

United States District Court,

D. South Dakota, C.D.

Sept. 18, 1991

Aid to Families with Dependent Children

(AFDC) recipients whose children had absent

parents residing on Indian reservation brought

class action against state officials and the

Secretary of the Department of Health and

Human Services (HHS), claiming they had been

denied child support collection services to

A-27

which they were entitled under the Social

Security Act. The District Court, Donald J.

Porter, J., held that: (1) Title IV-D of the

Social Security Act, dealing with child

support enforcement, created enforceable right

in AFDC recipients, and recipients had

standing to bring § 1983 action to enforce

Claims for child support enforcement services,

and (2) Title IV-D does not permit the HHS to

deny federal financial assistance to states to

pursue absent Indian parents who reside and

work on Indian reservation.

So ordered.

i. Civil Rights

Social Security and Public Welfare

Title IV-D of the Social Security Act,

dealing with child support’ enforcement,

created enforceable right in Aid to Families

with Dependent Children (AFDC) recipients, and

A-28

recipients had standing to bring § 1983 action

to enforce claims for Title IV-D child support

enforcement services. Social Security Act, §

452 et seq., as amended. 42 U.S.C.A. § 651 et

seq.; 42 U.S.C.A. § 1983.

2. Federal Civil Procedure

Nine South Dakota Indian tribes were not

indispensable parties to civil rights action

brought by Aid to Families with Dependent

Children (AFDC) recipients whose children had

absent parents residing on Indian reservations

within South Dakota, claiming that they have

been denied child support collection services

secured them under the Social Security Act,

and thus, failure to join tribes did not

warrant dismissal of suit. Social Security

Act, § 451 et seq., as amended, 42 U.S.C.A. §

651 et seq.; Fed.Rules Civ.Proc.Rule 19, 28

U.S.C.A.

A-29

3. Social Security and Public welfare

Title IV-D does not permit the Department

of Health and Human Services (HHS) to deny

federal financial assistance to states to

pursue absent Indian parents of children whose

custodial parents are recipients of Aid to

Families with Dependent Children (AFDC)

benefits when the absent Indian parent resides

and works on an Indian reservation and the

tribe does not comply with Title Iv-p

regulations; child support enforcement

services could be provided recipient by

reaching agreement with respective tribal

governments, or state could utilize tribal

court system. Social Security Act, § 451 et

seq-, aS amended, 42 U.S.C.A. § 651 et seq.

4. Social Security and Public welfare

Any interpretation of Title Iv-D of

Social Security Act, dealing with child

Support enforcement, that results in exclusion

Eee a tl OO OL

A-30

of large percentage of Indian children and

their parents from its benefits is

unreasonable and contrary to language and

purposes of the Act. Social Security Act, §

451 et seq., as amended, 42 U.S.C.A. § 651 et

seq.

5. Declaratory Judgment

Declaratory relief may be granted

regardless of availability of an injunction.

28 U.S.C.A. § 2201(a).

Krista Clark, Dakota Plains Legal

Services, Mission, S.D., B.J. Jones, Dakota

Plains Legal Services, Fort Yates, N.D., for

plaintiffs.

Mark L. Bratt, Asst. Atty. Gen., David L.

Braun, Sp. Asst. Atty. Gen., Office of Legal

Services/Dept. of Social Services, Pierre,

S.D., for James Ellenbecker.

A-31

David L. Zuercher, Asst. U.S. Atty.,

Pierre, S.D., Lucille Meis, Office of Chief

Counsel, Health and Human Services, Denver,

Colo., for Federal defendant.

MEMORANDUM OPINION

DONALD J. PORTER, District Judge.

On February 8, 1990, plaintiffs Velda

Howe and Theresa Taken Alive filed this class

action against defendants James Ellenbecker,

Secretary of the South Dakota Department of

Social Services, Terry Walter, Program

Administrator of the South Dakota Office of

Child Support Enforcement and Louis Sullivan,

M.D., Secretary of the U.S. Department of

Health and Human Services (HHS). Plaintiffs

are custodial parents of children who have

absent parents residing on Indian reservations

within South Dakota. Plaintiffs bring this

action on behalf oof themselves, their

children, and all others similarly situated,

A-32

claiming that they have been denied child

support collection services secured them under

Title IV-D of the Social Security Act, the

Child Support and Establishment of Paternity

Act, 42 U.S.C. § 651 et seg.’ Trial was held

before the Court on July 23-25, 1991.

FACTS

Plaintiff's Bac!

Velda Howe is an enrolled member of the

Crow Creek Sioux Indian tribe and resides with

her four children in Chamberlain, South

Dakota. Howe is a present recipient of Aid to

Families with Dependent Children (AFDC) for

herself and her twelve year old son, Daniel.

As a condition of receiving AFDC, Howe was

required to cooperate with the state in

establishing her child's paternity, in

, The matter was certified as a class

action by order filed October 24, 1990.

A-33

securing child support for her children, and

in assigning to the state the right to receive

child support for her son. Howe expressed a

willingness to cooperate with the state in

establishing paternity and collecting support,

and identified the putative father of Daniel

for the State Office of Child Support

Enforcement. Howe claims that despite her

cooperation and repeated requests, the state

has made no effort to establish the paternity

of Daniel because the putative father lives on

a South Dakota Indian reservation.

Theresa Taken Alive receives AFDC from

the State of South Dakota for her minor child,

Caroline. Taken Alive has custody of Caroline

pursuant to a Judgment and Decree of Divorce

from the Standing Rock Sioux Tribal Court.

This decree requires that Caroline's father

pay child support in the amount of $300,00.

per month to Theresa Taken Alive. Taken Alive

A-34

has informed the State Office of Child Support

Enforcement of the decree of divorce but

claims that the state has refused to attempt

to collect child support from Caroline's

father because he lives on a South Dakota

Indian reservation.

Plaintiffs claim that the state

defendants refusal to assist them in obtaining

child support and the federal defendant's

refusal to provide matching funds to assist

the state in child support enforcement

violates Title IV-D of the Social Security Act

and denies plaintiffs their right to child

support collection services on the basis of

their race, in violation of the equal

protection clause of the fourteenth amendment

and the due process clause of the fifth

amendment to the United States Constitution.

A-35

AFDC AND TITLE IV-D

AFDC is a federal-state cooperative

effort administered by the states. The

program provides monetary payments from the

state to financially needy families, which

include children deprived of parental support

due to death, disability or desertion. 42

U.S.C. § 601 et seg. States are not required

to participate in the AFDC program but, if

they do so, they must operate the program in

compliance with the statutory requirements and

the regulations promulgated by the Secretary.

One of these requirements is that the state

have a plan in effect for child support

collection which meets the standards set forth

in Title IV-D of the Social Security Act. 42

U.S.C. § 651 et seg,; See also Wehunt v.

Ledbetter, 875 F.2d 1558, 1559-60 (11th Cir.

1989), cert, denied sub nom. Brown _v.

Ledbetter, --- U.S. ---, 110 S.Ct. 1472, 108

A-36

L.Ed.2d 609 (1990); Id. at 1569 (Clark, J.,

dissenting).

The federal government has made efforts

since 1950 to require that absent parents

support their children. The early attempts

were near-complete failures. Wehunt, 875 F.2d

at 1569. In 1974, Congress enacted the Social

Security Amendments of 1974 which radically

revised the previous law. This new law

provided for increased matching funds and

incentive payments to local governmental units

to improve their enforcement of support

orders. The 1974 changes also required

families to assign their child support

payments to the state as a condition of

receiving AFDC. Jd. at 1569.

In 1984, a second set of changes in the

child support enforcement requirements was

instituted to strengthen Title IV-D. These

changes required states to pass laws for

A-37

mandatory wage withholding and liens and

provided for federal tax withholding

availability and access to Federal Parent

Locator Services. jal. at 1570. These 1984

amendments were "intended to ensure that ‘all

children in the United States who are in need

of assistance in securing financial support

from their parents will receive assistance

regardless of their circumstances. '" a4.

quoting S.Rep. No. 98-387, 98th Cong., 2nd

Sess., at 1 U.S.Code Cong. & Ajmin.News 1984,

Pp. 2397. This also provided that paternity

establishment services be provided to both

AFDC and non-AFDC recipients. Id,.

The Deficit Reduction Act of 1984 also

had an effect on Title IV-D. This act

provided that when a non-custodial parent of a

child receiving AFDC makes support payments to.

the state, the first fifty dollars collected

would be paid to the family without affecting

A-38

the amount of assistance it received. 42

U.S.C.S. § 657(b) (1) (1985).

States must comply with the Title IV-D

child support enforcement regulations or they

risk the withholding of federal matching

funds. The state is required to undertake the

establishment of paternity and the enforcement

of support obligations for all AFDC children

and non-recipients as well. The state must

comply with the regulations promulgated by the

Secretary, including a time frame within which

states must respond to requests for support

enforcement assistance. Wehunt, 875 F.2d at

1561.

The Secretary of the U.S. Department of

Health and Human Services is responsible for

implementing state plans and establishing

regulations for the Title IV-D program. 42

U.S.C.S. § 652 (1985). The state plans are

required by statute to be in effect in all

A-39

political subdivisions of the state, and to

provide for entering into cooperative

arrangements with appropriate courts and law

enforcement officials. 42 U.S.C.S. § 654

(1985). The state plans are further required

to provide child support collection and

paternity determination services for AFDC

children, for foster children, and for any

individual not otherwise eligible for

services. Id.

Neither the statute nor the regulations

enacted by the Department of Health and Human

Services consider the question of how states

are to operate child support collection

schemes in non-Pub.L. 280 states where Indian

reservations exist. There are no regulations

exempting states from providing support

enforcement services to Indian families whose

absent parent resides on an Indian reservation

and there is no authorization for Indian

ae)

Je

in

Ss

A-40

Tribes to provide AFDC programs on the

reservation.

The Secretary has interpreted Title IV-D

and the regulations promulgated by HHS in

developing a policy that deters states from

using tribal courts to assist in child support

collections unless the tribal court utilizes

tribal or state law that conforms with Title

IV-D. Under this policy, the state is

encouraged to enter into cooperative

agreements with the tribes to provide services

on the reservations. The states may enter

into these agreements with a tribe and provide

services as long as the tribe has enacted

tribal law or agreed to use state law which

complies with Title IV-D in those areas in

which the service is to be provided. If no

cooperative agreement exists that ensures

compliance with Title IV-D, the states do not

receive federal funding for child support

A-41

collection actions taken against an absent

parent under the jurisdiction of the tribe.*

At present, the state does not have a

cooperative agreement with any tribe in South

Dakota.

* For example, federal funding would not

be available for the following activities:

1) Where the state has an agreement with

the tribe that allows tribal personnel to

pursue child support enforcement

activities against persons who are within

tribal jurisdiction, applying a tribal

code which does not conform to Federal

IV-D requirements.

2) Where the state has an agreement with

the tribe that allows state or county IV-

D personnel t pursue child support

enforcement activities against persons

who are withi tribal jurisdiction

applying a tribal code which does not

conform with Title IV-D requirements.

3) Where the state, without an agreement

with the tribe, |pursues child support

enforcement activities against persons

who are within’ tribal jurisdiction

through utilizatiion of tribal courts

which do not apply law which conforms

with Title IV-D.

— ewe tt we

A-42

South Dakota Child Support Enforcement

Procedures

The South Dakota Office of Child Support

Enforcement (OCSE) consists of approximately

60 employees under the direction of Program

Administrator Terry Walter. In addition to

the OCSE employees, OCSE contracts with over

50 states attorneys and utilizes the services

of special assistant attorneys general to

provide legal assistance to persons seeking

child support enforcement services. OCSE is

funded largely through federal matching funds,

through its share of child support collected

and through incentive grants offered by the

federal government. OCSE handles over 23,000

cases, assisting AFDC families, non-AFDC

families and foster children in collecting

child support payments. Of these 23,000

cases, over 5,000 involve absent Indian

parents who live and work on the reservation.

A-43

OCSE follows a basic four step approach

to child support enforcement cases when the

absent parent lives or works in South Dakota

but not within an Indian reservation. Upon

receiving an application from a parent

requesting collection assistance, OCSE first

attempts to locate the absent parent. OCSE

then sends the absent parent a notice of

support debt asking the parent to provide OCSE

with financial data so that they can determine

the amount owed by the absent parent. OCSE

next attempts to obtain a stipulation from the

absent parent admitting paternity and agreeing

to pay the amount owed. Finally, if the

absent parent will not stipulate to paternity

or to the amount owed, the case is turned over

to legal counsel who attempt to obtain

paternity determinations and support orders

through the state courts.

A-44

In cases where the absent parent is an

Indian who lives and works on the reservation,

OCSE locates the absent parent and asks him or

her to stipulate to paternity and to child

support payment obligations. However, because

state courts do not have jurisdiction over

Indians residing on the reservations, the

state is unable to pursue these parents

through use of the state courts. The state

has attempted to enforce state court orders on

the reservation but has had little success

because of the jurisdictional barriers. The

state does not utilize tribal courts to pursue

absent parents, in part because the federal

government has notified the state that federal

matching funds would not be available for

pursuing child support claims through the

A-45

tribal court system.” When the state is

audited by the federal government, these cases

are not considered in determining whether the

state has complied with Title IV-D

requirements. South Dakota has not been

sanctioned by the federal government for non-

compliance with federal regulations in the

treatment of cases where the absent parent

lives and works on the reservation.

Tribal Court Systems

There are nine tribes located within the

boundaries of South Dakota. Each of these

tribes operates a tribal court system which

has jurisdiction over tribal members. Judges

from the Standing Rock Sioux Tribe, the

Cheyenne River Sioux Tribe, the Oglala Sioux

. There was evidence presented at trial

that on at least one occasion, the state

threatened to sanction an individual who had

not made attempts on her own to obtain a child

Support order through a tribal court.

— ei

A-46

Tribe and the Rosebud Sioux Tribe all

testified at trial that these tribal courts

were open courts in which the state may

properly bring paternity and child support

actions against Indian parents living on the

reservations. There were no facts presented

which would indicate that any South Dakota

Indian Tribal court would prohibit the state

from utilizing the court for child support

enforcement orders. Each of the tribes has

separate tribal codes; however, none of the

tribes have laws that fully comply with Title

IV-D.

Plaintiffs presented evidence that, from

1983 to 1990, the North Dakota Office of Child

Support Enforcement contracted with Maury

Thompson, States Attorney for Sioux County,

North Dakota, to provide child support

enforcement services through the Standing Rock

Sioux Tribal Court. The Standing Rock

A-47

Reservations is located within both North and

South Dakota. Thompson was successful in

establishing paternity and obtaining support

orders but, because of the unemployment ane

poverty on the reservation, was less

successful in collecting under the support

orders. However, because of his efforts in

obtaining the orders, the state was able to

use enforcement techniques such as federal tax

intercept to collect some of the support money

due. North Dakota received federal matching

funds to assist in paying fer the contract

with Thompson. The contract was terminated in

January, 1990 when HHS announced that it would

no longer provide matching funds for child

Support enforcement services performed through

tribal courts that did not fully comply with

Title IV-D. In addition to the contract with

Thompson, the North Dakota OCSE also

contracted with other attorneys to provide

A-48

child support enforcement services through

other tribal courts in North Dakota. Through

the use of these contracts, the North Dakota

OCSE was able to obtain paternity

determinations and child support orders from

the various tribal courts. These contracts

were also terminated when HHS announced that

it wousd no longer provide matching funds.

ANALYSIS AND DISCUSSION

Motions to Dismiss

[1] The defendants argue that this case

must be dismissed because Title IV-D of the

Social Security Act does not afford

individuals a private right of action and thus

plaintiffs do not have standing to bring this

action.

Plaintiffs have sued under 42 U.S.C. §

1983. Section 1983 authorizes suits against

those acting under color of state Jaw for

violations of federal law and for violations

A-49

of the U.S. Constitution. Maine v. Thiboutot,

448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555

(1980). The Supreme Court has ruled that

there are two situations where a § 1983 action

based upon violation of a federal statute may

not be brought. First, an action may not be

brought under § 1983 for violation of a

federal statute if that statute does not

create enforceable rights in the plaintiff.

Pennhurst State Sch. & Hosp. v. Halderman, 451

U.S. 1, 24, 101 S.Ct. 1531, 1543, 67 L.Ed.2d

694 (1981). Second, a plaintiff may not bring

suit under § 1983 for violation of a federal

statute if Congress has foreclosed private

enforcement in the enactment of the statute.

Middlesex County Sewerage Auth. v. National

Sea Clammers Ass'n, 453 U.S. 1, 20, 101 S.Ct.

2615, 2626, 69 L.Ed.2d 435 (1981).

Four recent cases have addressed the

issue of whether a plaintiff has standing to

A-50

bring a § 1983 action for violation of Title

IV-D of the Social Security Act. In Wehunt v.

Ledbetter, 875 F.2d 1558 (11th Cir. 1989),

cert. denied sub nom., Brown v. Ledbetter, ~~~

U.S. ---, 110 S.Ct. 1472, 108 L.Ed.2d 609

(1990), the Eleventh Circuit Court of Appeals,

with Judge Clark dissenting, dismissed a

complaint against the Commissioner of the

Georgia Department of Human Resources after

determining that Title IV-D did not afford the

plaintiff an enforceable right. Since that

decision, three courts have held that § 1983

does create enforceable rights. See Carelli

v. Howser, 923 F.2d 1208, 1211. (6th Car.

1991),° reh'q denied en banc, 1991 WL 3470,

“In Carelli, the 6th Circuit rejected the

holding in Wehunt, concluding that’ the

plaintiffs in that case, all those currently

eligible for child support enforcement in

Clermont and Brown Counties of Ohio, were

afforded an enforceable right in Title IV-D.

The Court went on to hold that under the

A-51

1991 U.S.App. LEXIS 7102 (6th Cir. 1991);

} ; Jeff 7 ) ( ta)

Services, 744 F.Supp. 255 (D. Colo. 1990);

Beasley v. Ginsberg, Civ. No. H-86-619, 1989

WL 202144, U.S. Dist. LEXIS 16682 (1989).

In determining whether plaintiff has

standing to bring this action under § 1983, it

must first be determined whether Congress has

created enforceable rights in Title IV-D. If

Title IV-D was intended to benefit the

putative plaintiffs, an enforceable right

exists unless it merely reflects a

Congressional preference for a certain kind of

conduct, rather than a binding obligation on

circumstances of that case, where the Federal

Secretary had already taken corrective action

against the state, private enforcement was

foreclosed. Under the facts of this case, the

federal defendant has not taken corrective

action but rather has taken the position that

plaintiffs are not entitled to the benefits

they seek.

mn

A-52

the governmental unit, or unless the interest

sought to be enforced is so vague and

amorphous as to be beyond the competence of

the judiciary to enforce. Wilder v. Virginia

osp. Ass'n, --- U.S. <---, ---, 110 S.Ct.

2510, 2516-18, 110 L.Ed.2d 455 (1990). Upon

examining Title IV-D and the legislative

history that accompanied its enactment, this

court finds that Congress intended Title IV-D

to benefit persons such as the plaintiffs, and

that the intent is expressed within Title IV-D

as a binding obligation on the government and

not merely as a Congressional preference.

There are several factors present that

lead to the belief that Congress, in enacting

Title IV-D, intended to benefit women and

children in AFDC families such as the

plaintiffs. The first and most obvious is the

purpose of Title IV-D set out at 42 U.S.C. §

652:

————ee

A-53

For the purpose of enforcing the support

obligations owed by absent parents to

their children and the spouse (or former

spouse) with whom such children are

living, locating absent parents,

establishing paternity, obtaining child

and spousal support, and assuring that

i Ane _ _

available under this part [42 U.S.C. §§

651 et seq.] to all children (whether or

not eligible for aid under part A [42

U.S.C. §§ 651 et seq.) for whom such

assistance is requested....

42 U.S.C. § 651 (emphasis supplied). This

statutory purpose demonstrates that Congress

had a specific and primary intent to aid

families in child support enforcement when

enacting Title IV-D.

Two additional factors which reveal that

Congress' primary intent in enacting Title IV-

rt

to

A-54

D was to aid the families of absent parents

are found in the fact that Congress has

expressly required states to provide Title IV-

D services to non-AFDC families as well as to

those receiving the benefits and that Congress

has required that the first $50 collected from

absent parents of AFDC recipients go to the

family without a corresponding offset to the

AFDC payments. These requirements would be

inconsistent with the claim that the primary

purpose of Title IV-D was to recoup welfare

expenditures.

The most important factor indicating that

Congress intended to aid families of absent

parents and to give these families an

enforceable right is the language of Title IV-

D. Precatory rather than mandatory language

was determined in Pennhurst to be an important

factor in determining that a statute created

no privately enforceable rights. 451 U.S. at

A~55

19-20, 101 S.Ct. at 1540-41. The language in

Title IV-D is mandatory and set out in

specific and definite terms that directly

benefit the children and families entitled to

support enforcement services. It sets forth

what states must do to participate in the

progran. For example, participating states

must establish the paternity of children born

out of wedlock, 42 U.S.C. § 654(4)(A); they

must secure payments for abandoned children

and their remaining parent, 42 U.S.C. §

654(4)(B); and they must provide notice of the

mount collected to each family at least

annually. 42 U.S.C. § 654(5)(A); see also

Carelli, 923 F.2d at 1210; Carelli v. Howser,

733 F.Supp. 271, 276 (S.D. Ohio 1990), rev'd,

923 F.2d at 1208 (6th Cir. 1991) (examples of

the mandatory language found within Title Iv-

D). The strong mandatory language combined

with the factors previously discussed leads

A-56

this Court to find that Title IV-D of the

Social Security Act does create an enforceable

right in plaintiffs.

Plaintiffs may also be denied standing if

it is shown that Congress has foreclosed

private enforcement in the enactment of Title

IV-D. See Middlesex County, 453 U.S. at 20,

101 S.Ct. at 2626. The state defendants have

the burden to demonstrate "by express

provision or other specific evidence from the

statute itself that Congress intended to

foreclose such private enforcement." Wright

v. Roanoke Redevelopment and Hous. Auth., 479

U.S. 418, 423, 107 S.Ct. 766, 770, .93 L.Ed.2d

781 (1987). A court should not lightly

conclude that Congress intended to preclude

the § 1983 as remedy for the deprivation of a

federally secured right. Jd. at 423-24, 107

$.Cct. at 770-71. The state defendants have

set forth no specific provision or other

A-57

evidence that would indicate to the court that

Congress has precluded private enforcement of

Title IV-D. The Court therefore finds that

plaintiffs do have standing under § 1983 to

bring this action to enforce their claims for

Title IV-D child support enforcement services.

{2} Defendants also argue that this case

must be dismissed for failing to join

indispensable parties as required by Rule 19

of the Federal Rules of Civil Procedure.

Defendants claim that the nine South Dakota

Indian tribes are indispensable because they

have major interests and must consent to

‘encroachment by the state of South Dakota

within reservation boundaries and by use of

their independent tribal court systems." See

State Defendants' Post-Trial Brief at p. 3.

As is made evident by this Court's holding,

consent of the tribes is not essential to

provide plaintiffs relief. The Court will

A-58

therefore decline to dismiss this case for

failure to join the nine South Dakota Indian

tribes.

nte atio itle IvV-

[3] HHS has interpreted Title IV-D to

preclude federal financial assistance to

states to pursue absent Indian parents who

reside and work on an Indian Reservation when

the tribe does not comply with Title IV-D

regulations. Following well-established

principles of administrative law, this Court

must give substantial deference to an agency's

interpretation of a statute that it

administers, and cannot substitute its

judgment for a reasonable interpretation by

the agency. st v ivan, ~--- U.S. ---, -

--, 111 S.Ct. 1759, 1766-68, 114 L.Ed@.2d 233

(1991); Connecticut Dept. of Maintenance v.

He er, 471 U.S. 524, 532, 105 S.Ct. 2210,

2214, 85 L.Ed.2d 577 (1985). Where the

A-59

agency's interpretation of a statute

"represents a reasonable accommodation of

conflicting policies that were committed to

the agency's care by the statute, we should

not disturb it unless it appears from the

statute or its legislative history that the

accommodation is not one that Congress would

have sanctioned." Chevron U.S.A. v. Natural]

Resources Defense Council, 467 U.S. 837, 845,

104 S.Ct. 2778, 2783, 81 L.Ed.2d 694 (1984),

reh'g denied, 468 U.S. 1227, 105 S.Ct. 28, 82

L.Ed.2d 921 (quoting United States v. Shimer,

367 U.S. 374, 382, 81 S.Ct. 1554, 1560, 6

L.Ed.2d 908 (1961)).

Although Courts must give substantial

deference to an agency's interpretation, they

are not required to "rubber stamp...

administrative decisions that they deen

inconsistent with a statutory mandate or that

frustrate the Congressional policy underlying

A-60

a statute." u u obacco an

Firearms v. FLRA, 464 U.S. 89, 97, 104 S.Ct.

439, 444, 78 L.Ed.2d 195 (1983) (quoting NLRB

v. Brown, 380 U.S. 278, 291-292, 85 S.Ct. 980,

988, 13. L.Ed.2ad 839 (1965)). The

Administrative Procedures Act provides that a

reviewing court shall hold unlawful and set

aside agency action, findings, and conclusions

found to be arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance

with law. 42 U.S.C.S. § 706(2)(A) (1985).

While the scope of review under this standard

is narrow, the agency must "articulate a

satisfactory explanation for its action

including a ‘rational connection between the

facts found and the choice made. '"

Environmental Defense Fund v. E.P.A., 852 F.2d

1316, 1326 (D.C.Cir. 1988), cert. denied, 489

U.S. 1011, 109 S.Ct. 1120, 103 L.Ed.2d 183

(1989) (quoting Motor Vehicle Mfrs. Ass'n v.

A-61

State Farm Mut. Auto Ins. Co., 463 U.S. 29,

43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443

(1983)). "Moreover, if the agency ‘does not

reasonably accommodate the policies of a

statute or reaches a decision that is "not one

that Congress would have sanctioned," .. . a

reviewing court must intervene to enforce the

policy decisions made by Congress.'"

Environmental Defense Fund, 852 F.2d at 1326

(quoting National Resources Defense Council v.

Herrington, 768 F.2d 1355, 1383 (D.C.Cir.

1985)). Upon review of the language of Title

IV-D and the underlying purpose of the

statute, this Court is unable to find that

HHS's interpretation is a reasonable one.

The language and structure to Title IV-D

are the foremost indicators that Congress

intended all children to benefit from the

child support enforcement services established

by the statute. 42 U.S&.C.S. § 651

A-62

specifically provides that the purpose of the

Title IV-D is to enforce "the support

obligations owed by absent parents to their

children and the spouse (or former spouse)

with whom such children are living, locating

absent parents, establishing paternity,

obtaining child and spousal support, and

assuring that assistance in obtaining support

will be available ... to al] children for whom

such assistance is requested." 42 U.S.C.S. §

651 (1985) (emphasis supplied). Further, §

654 provides that "A state plan for child and

spousal support must-- .-.. (6) provide that

(A) the child support collection or paternity

determination services established under the

plan shall be made available to any individual

not otherwise eligible for such services...."

42 U.$.C.S. s 654 (6) (1991) (emphasis

supplied).

A-63

This language strongly indicates that

Congress did not give HHS the authority to

arbitrarily deny services to a large group of

Indian children simply because jurisdiction

over their absent parents rests with the

tribal government rather than the _ state

government. While the defendants argue that

jurisdictional problems’ have severely

hindered any attempts to pursue Indian absent

parents, it is clear that defendants' attempts

have been limited to the use of state court

enforcement procedures. While Congress may

have intended and envisioned that the states

would enter into cooperative agreements with

> There is no dispute among the parties

that the state does not have jurisdiction to

enforce state court orders against Indians

living and working on the reservation. See

Rosebud Sioux Tribe v. South Dakota, 900 F.2d

1164 (8th Cir. 1990), reh'g denied en banc,

1990 U.S. App. LEXIS 9521 (8th Cir. 1990),

cert denied, --- U.S. ---, 111 S.Ct. 2009, 114

L.Ed.2d 98 (1991).

A-64

tribes to solve jurisdictional problems, no

agreements have resulted. It is unreasonable

to assume that since the tribes have refused

to submit to state jurisdiction, Indian

children who in many cases have no

relationship with the tribe should therefore

be entitled to a lesser degree of assistance

in obtaining paternity determinations and

child support orders.

This is also not a case where plaintiffs

are asking the defendants to undertake

unreasonable measures to assist then.

Defendants could provide enforcement services

by reaching agreement with the . respective

tribal governments or they could utilize the

tribal court system. The state currently has

contractual agreements with state's attorneys

who provide legal services to individuals

seeking child support in state court. The

court cannot see any significant distinction

A-65

in providing those same services to

individuals pursuing Indian absent parents in

tribal courts.° While the forum may be

different, attorneys familiar with the tribal

courts could contract to provide the services

in the same manner currently practiced in

state court.

(4} The defendants, citing § 655(a)(1),

contend that appropriations are authorized

* Defendants attempted to show that tribal

courts were incompetent or somehow inferior to

state courts in that they were uncooperative

with OCSE, showed favoritism toward certain

tribal members and that they were manipulated

by the tribal council. In light of recent

decisions recognizing the sovereignty of

tribal governments, it is important that

tribal courts be recognized as legitimate

tribunals for the resolution of disputes that

come within tribal jurisdiction. As the U.S.

Supreme Court stated in Santa Clara Pueblo v.

Martinez: "Tribal Courts have repeatedly been

recognized as appropriate forums for the

exclusive adjudication of disputes affecting

important personal and property interests of

both Indians and non-Indians." 436 U.S. 49,

65, 98 S.Ct. 1670, 1680-81, 56 L.Ed.2d 106

(1978).

A-66

only for the operation of plans approved under

$654 of the plan. Because federal regulations

promulgated by the Secretary require all

cooperative agreements to comply with Titie

IV-D, see 45 C.F.R. § 303, 107 (Cc), the

defendants assert that they are unable to

provide services on the reservations unless

the tribes comply with Title IV-D reguiations.

The Court finds this argument unpersuasive for

three reasons. First, an agency's

interpretation of a statute is entitled to

great deference unless that interpretation is

unreasonable or inconsistent with the policies

and purposes of the statute. Bureau of

U.S. 89, 97, 104 S.Ct. 439, 444 78 L.Ed.2d i195

(1983). As discussed above, the Court finds

that any interpretation of Title IV-D that has

as its result the exclusion of a large

percentage of Indian children and their

A-67

parents from the benefits of the statute is

unreasonable and contrary to the language and

purposes of the statute.

Secondly, this is not a situation where

plaintiffs are able to conform their conduct

to comply with Title IV-D. While the

situation would be resolved if the tribes

would adopt the Title IV-D regulations,

plaintiffs do not control what laws are

adopted by the tribe. In many cases, the

individuals seeking assistance may not be

members of the tribe or even live on the

reservation and, thus, have very little

influence over tribal policies. It is thus

unreasonable to deprive them of Title IV-D

services in an effort to encourage the tribes

to adopt Federal regulations.

Finally, the Court is not convinced that

the use of tribai courts to pursue absent

parents would be contrary to the agency's own

is

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Own

A-68

regulations.’ The regulations provide that

services not performed in compliance with

Title IV-D requirements are not eligible for

Federal funding. See 45 C.F.R. § 304.22;

Federal Defendant's Post-Trial Brief at p. 8.

Were the state to utilize the tribal courts in

assisting plaintiffs, the services provided

would be the legal counsel and tribal court

fees, not the use of the tribal court. These

regulations provide that these services, and

not the tribal court itself, comply with Title

Iv-p.°

’ There was testimony at trial that the

tribal courts are open forums which would

allow the commencement of paternity and child

support actions without any existing

cooperative agreement.

& To the extent that the agency's

regulations and policies do deter the state

from providing Title IV-D services to the

plaintiffs, they are unreasonable and contrary

to the language and purpose of the statute.

A-69

The state defendants have continually

argued throughout this action that they have

attempted to provide child support enforcement

services through the state court and have been

thwarted in these attempts by the tribes’

unwillingness to allow enforcement of state

court orders on the reservations. Defendants

claim that based upon the decisions in Rosebud

Sioux Tribe, 900 F.2d at 1172, and State vy.

Spotted Horse, 462 N.W.2d 463 (S.D. 1990),

this Court cannot grant the relief requested

by plaintiffs. These decisions, however,

recognize tribal jurisdiction over Indians

living on the reservation and do not stand for

the proposition that the state may not bring

claims in tribal court or may not enter

cooperative agreements with the tribes. As

long as the state respects the tribe's

jurisdiction and provides Title IV-D services|

through cooperative agreements with the tribes

A-70

or through utilization of the tribal courts,

it will not have unlawfully infringed upon

tribal jurisdiction.

The state defendants also presented

several hypothetical situations in which they

claim it would be unreasonable for them to

pursue absent parents through the tribal

courts. Defendants suggest that the tribes

could prohibit the state from using the tribal

court when disputes arise or that situations

exist where the tribal court would not have

jurisdiction over an Indian absent parent

living on the reservation.” The Court is not

* The state defendants argue that ordering

them to pursue Indian absent parents who live

on the reservation could create a "haven" for

these individuals on the Rosebud Reservation

because the Rosebud Sioux Tribe does not claim

jurisdiction over Indians who are not members

of the tribe. This argument is flawed in that

it assumes that there are individuals living

on the Rosebud Reservation who are not subject

to any jurisdiction. Even in the event that

this assumption could be true, this Court's

A-71

suggesting through this opinion that the state

must pursue Indian absent parents living on

the reservation through the tribal courts when

the tribe has not provided a reasonable access

to the court. The Court does, however, find

that where no cooperative agreement has been

made with a tribe for the pursuit of absent

parents within the tribes jurisdiction, and

where reasonable access to a tribal court

exists, the children of Indian absent parents

are entitled to the same degree of child

support enforcement service as other children

; 10

pursuing claims in state court.

order would only reduce the size of the

"havens" which currently exist on all

reservations within the state because of

defendants' refusal to provide Title IV-D

services to plaintiffs.

10

The Court notes that even though the

high unemployment rates on the reservation may

make it difficult to collect support on the

reservation, an important service is provided |

to children through the establishment of their |

it

1d

CONCLUSION

Congress enacted Title IV-D for the

purpose of "assuring that assistance in

obtaining support will be available to all

children...." 42 U.S.C.S. § 651 (1985).

While this does not require defendants to take

unreasonable steps to provide child support

services to anyone, the Court finds that it

does require defendants to provide equal

services to children and families in like

situations. Simply put, this Court cannot

find that, in enacting Title IV-D, Congress

intended to permit defendants to exclude a

large percentage of Indian children from its

benefits. It is not for this Court to

determine how defendants will provide the

paternity. This is particularly true in the

case of Indian children where the

establishment of an Indian parent may entitle

them to membership in the tribe, and to

certain federal benefits.

A-73

Title IV-D services to plaintiffs. Evidence

presented at trial established that reasonable

avenues exist for the provision of these

services. Where these reasonable avenues

exist, defendants must provide plaintiffs the

services they are entitled to receive.

[5} The Declaratory Judgment Act

authorizes this Court to "declare the rights

and other legal relations of any interested

party seeking such declaration." 28 U.S.C. §

2201(a). Declaratory relief may be granted

regardless oof the availability of an

injunction. Green v. Mansour, 474 U.S. 64,

72, 106 S.Ct. 423, 427, 88 L.Ed.2d 371 (1985)

(citing Steffel_v. Thompson, 415 U.S. 452,

462, 94 S.Ct. 1209, 1217, 39 L.Ed.2d 505

(1974)). Accordingly, plaintiffs are granted

declaratory judgment.

es

he

25

2d

A-74

APPENDIX D

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

CENTRAL DIVISION

ORDER CIV. 90-3007

Velda Howe, Theresa Taken Alive, on behalf of

themselves, their children, and all others

similarly situated,

Plaintiffs,

vs.

James Ellenbecker, in his capacity as

Secretary of the South Dakota Department of

Social Services,

Terry Walter, in his capacity as Program

Administrator, South Dakota Office of Child

Support Enforcement

Louis Sullivan, M.D., in his capacity as

Secretary of the United States Department of

Health and Human Services,

Defendants.

The Court finds that defendants’ policy

of denying child support collection services

to plaintiff's and their children because the

children's absent parents reside on South

A-75

Dakota Indian reservations violates Title Iv-

D of the Social Security Act. It is therefore

ORDERED that declaratory judgment is

entered for plaintiffs in accordance with the

findings of fact and conclusions of law as

fully set forth in the Court's Memorandum

Opinion filed this date.

Dated September 18, 1991.

BY THE COURT:

/s/ Donald J. Porter

U.S. District Judge

ATTEST:

WILLIAM F. CLAYTON, CLERK

By /s/ Vicky J. Reinhard

Deputy

(Seal of Court)

yn

tT (Ah te (Th ww Cu

APPENDIX E

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

CENTRAL DIVISION

MEMORANDUM ORDER CIV. 90-3007

VELDA HOWE and THERESA TAKEN ALIVE, on behalf

of themselves, their children and all others

similarly situated,

Plaintiffs,

vs.

JAMES ELLENBECKER, in his capacity as Program

Administrator, South Dakota Office of Child

Support Enforcement, and LOUIS SULLIVAN, M.D.,

in his capacity as Secretary of the United

States Department of Health and Human

Services,

Defendants.

On September 18, 1991, this Court granted

declaratory relief in favor of Plaintiffs in

the above-entitled case. On November 1, 1991,

a hearing was held at the United States

Courthouse, Pierre, South Dakota, during which

counsel for all parties had the opportunity to

propose what further relief should

A-77

appropriately flow from this Court's September

18, 1991, memorandum opinion. On November 13

and November 15 respectively, State and

Federal Defendants each filed a notice of

appeal to the United States Court of Appeals

for the Eighth Circuit. The Eighth Circuit |

dismissed both Defendants' appeals. This |

Court now issues this memorandum order to

provide Plaintiffs further relief in

accordance with its previous memorandum

opinion.

ussj

Plaintiffs and similarly situated persons

are in a unique position with respect to the

implementation of Title IV-D of the Social

Security Act, the Child Support and

Establishment of Paternity Act, 42 U.S.C. §§

651 et seq. In order to receive federal aid

for child support enforcement’ services,

A-78

participating states must draft a State plan,

which is to follow fairly strict federal

requirements. The states must, according to

the regulations promulgated pursuant to the

statute, pass laws to ensure certain

procedures will be carried out in the effort

to fulfill the purposes of the Act. 45 C.F.R.

§ 302.70. A State plan must be in effect in

all political subdivisions, 42 U.S.C. § 654

(1); and a state's Title IV-D agency must

administer the plan in conformity with Title

IV-D requirements, 45 C.F.R. § 301.10. If the

state's Title IV-D agency delegates any of the

Title IV-D functions to a local. agency or

official, the state agency has the

responsibility to ensure compliance with the

State plan. 45 C.F.R. § 302.12(a) (3).

Federal financial and technical assistance is

available for many of the expenditures

associated with implementation of this

A-79

federal-state cooperative effort. See 45

C.F.R. pt. 304; 45 C.F.R. § 301.15.

Neither Congress nor the Department of

Health and Human Services, when adopting these

statutes and regulations, seems to have

contemplated the existence of a sovereign

Native American Indian Tribe within a state's

borders. South Dakota provides a situation in

which a state that chose to participate in

this federal-state cooperative effort has

different laws governing different groups of

people living within its boundaries. As

stated, the statutory and regulatory scheme

requires a participating state to pass certain |

laws in order to become eligible for federal |

financial assistance. 45 C.F.R. § 302.70.

The State must also ensure that all parties to

cooperative agreements or purchase of service

contracts, which a state enters with courts,

law enforcement officials, and attorneys to

5

A-80

provide these child support enforcement

services, comply with the federal

requirements. 45 C.F.R. § 303.107; 45 C.F.R.

§ 304.22. Those requirements would include

adherence to the newly enacted federally

mandated state laws. The state courts, in

which these services would be provided, are

already bound by state law, and would

therefore be required to follow those laws

passed to conform to federal requirements as

well. In South Dakota, however, the State has

no jurisdiction over the nine tribes residing

within its borders. See Rosebud Sioux tribe

v. South Dakota, 900 F.2d 1164 (8th Cir.

1990), cert. denied, _—aU.S. ___, «111 S. Ct.

2009, 114 L. Ed. 2d 98 (1991). As a result,

the statutory and regulatory scheme has left a

gap: If South Dakota considers the Indian

tribes "political subdivisions" and enters

cooperative agreements or purchase of service

A-81

contracts to provide child support enforcement

services to children who have an Indian absent

parent living on a reservation, the State runs

the risk that the tribal court, unlike a state

court, will not recognize the Title IV-D

mandated state laws.

The parties have proposed methods by

which the State of South Dakota _ would)

negotiate with a tribe or tribal court to|

provide for the delivery of child support

enforcement services just as it would

negotiate with its own state courts, agencies,

or private attorneys to provide these services

in the state courts. Again, however, because

the State in this instance has no power to

demand compliance with its own State plan (é

prerequisite for federal funding), such

negotiations would not necessarily result ir

Plaintiffs receiving the relief requested.

The Court finds, as.a- result, that. such

ch

A-82

negotiations between a state and a sovereign

Indian tribe were not necessarily considered

by Congress or the Department of Health and

Human Services when requiring administration

and implementation of Title IV-D State plans

in all political subdivisions of the state.

Federal Defendants assert otherwise.

Specifically, they argue that cooperative

agreements with tribal entities are indeed

contemplated by 42 U.S.C. § 654(7) and 45

C.F.R. § 303.107 to assist South Dakota in

carrying out its State plan. The Court,

however, does not find this to be a

particularly appropriate approach to the

problen. A sovereign tribal entity with

jurisdiction. within its own borders simply

cannot be forced to comply with state laws, or

a State plan, even if that plan is dictated by

federal, not state, law.

A-83

The Court reiterates that Congress, in

passing Title IV-D of the Social Security Act,

"intended all children to benefit from the

child support enforcement services established |

by the statute." Howe v. Ellenbecker, 774 F.|

Supp. 1124, 1231 (D.S.D. 1991). Thus, the)

fact that Indian tribes in South Dakota stand

independent of the State of South Dakota

cannot prove fatal to the effort to provide

these services on the reservations within the)

State. While the Court appreciates State

Defendants’ willingness to negotiate with the

Tribes, the Court finds that the State may not |

be the most efficient or effective means by

which children with an Indian absent parent

living on a reservation may receive child

support enforcement services. Rather, the

Court finds that the Native American Indian

Tribes in South Dakota would more

appropriately be treated as states for the

To|

e€

A-84

purposes of implementing Title IV-D. Any

requirements that the Tribes would have to

meet are federal requirements, not

requirements initiated by the State of South

Dakota, which itself simply follows’ the

federal mandates.

Federal Defendants have stated they are

willing to make federal funding available for

services provided on Indian reservations in

compliance with Title IV-D requirements and to

furnish technical assistance in establishing

cooperative agreements between the State and

the Tribes. This offer of assistance includes

help in negotiating these agreements with the

tribes, reviewing tribal law for compliance

with federal law, and examining proposed

cooperative agreements. The Court assumes

that Federal Defendants would be willing to

provide similar assistance whether or not

A-85

State Defendants were involved in the

negotiations. Accordingly, it is

ORDERED that. Federal Defendants are to

propose to the nine Native American Indian

Tribes within the State of South Dakota the |

possibility of implementing a Tribal plan, |

which would be the statutory and regulatory,

as well as functional, equivalent of a State

plan as described in 42 U.S.C. §§ 651 et seg

and 45 C.F.R. §§ 301 et seg. Federal

Defendants are to inform the Court within 60

(sixty) days of this date regarding their

progress in complying with this Order.

Dated March 27, 1992.

A-86

BY THE COURT:

/s/ Donald J. Porter

U.S. Senior District Judge

ATTEST:

WILLIAM F. CLAYTON, CLERK

By /s/ Vicky J. Reinhard

Deputy

(Seal of Court)

APPENDIX F

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

CENTRAL DIVISION

MEMORANDUM ORDER CIV. 90-3007

VELDA HOWE, THERESA TAKEN ALIVE, on behalf of

themselves, their children and all others

similarly situated,

Plaintiffs,

vs.

JAMES ELLENBECKER, in his capacity as

Secretary of the South Dakota Department of

Social Services,

TERRY WALTER, in- his capacity as Program

Administrator, South Dakota Office of Child

Support Enforcement, and

LOUIS SULLIVAN, in his capacity as Secretary

of the United States Department of Health and

Human Services,

Defendants.

The federal defendant in the above-

captioned case has filed a Motion for

Reconsideration and Request for Stay Pending

Reconsideration. Federal defendant strongly

A-88

opposes this Court's order filed March 27,|

1992, in which the Department of Health and

Human Services (HHS) was ordered to negotiate

directly with the nine tribes located in South

Dakota and to propose to them the possibility

of implementing a Tribal Plan that would

provide for child support enforcement services

on the reservation. This Court had concluded

that because the federal statute and

regulations refer only to State Plans, neither

Congress nor HHS considered the possibility of

a semi-sovereign Indian nation existing within

the boundaries of a state. The Department of

Health and Human Services is the entity “hat

ultimately must approve or disapprove 3

state's plan based on its degree of compliance

with federal law. Because of this role, as

well as the State's apparent unsuccessful)

attempts to provide services to plaintiffs,

this Court found that the most efficient and

A-89

effective approach was to order. direct

negotiation between the tribes and HHS.

Federal defendant asserts that the Court's

approach is contrary to law. Specifically,

Federal defendant argues that the statute and

regulations refer specifically to State Plans,

that Congress intended the Title IV-D program

to be implemented as a "coherent whole" within

the state, and that Congress authorized

payment of federal monies only to states, not

to tribes.

Federal defendant also expresses concern

about tribal sovereignty. A Tribal Plan,

federal defendant asserts, would have to

comply with each and every requirement of

Title IV-D and would therefore infringe upon

the tribe's right of self-government. State

defendants have, on several occasions during

the course of this litigation, expressed

Similar concerns. The State has asserted that

_———e

A-90

neither the State nor this Court can force the

tribes to enter agreements or change their

tribal laws. |

The Court shares these concerns about

tribal sove,eignty and both recognizes anc

respects the independent, semi-sovereign

status of the nine Indian Tribes located

within the State of South Dakota. As 3

result, the March 27, 1992, memorandum order

was addressed to the federal defendant, not tc

the Indian tribes themselves. At no time has

the Court suggested it has the authority to

the jurisdiction to order a tribe to enter @

cooperative agreement or to modify its tribal

laws. The inability of this Court to ordey |

specific action on the part of the tribes doe :

not, however, leave plaintiffs without avenue:

for relief. Any order issued from the Cour} <

in this case is simply addressed to th <

rh

parties before it, not to the tribes or triba

|

2.

m

A-91

officials who lie outside the court's

jurisdiction.

Federal defendant strongly objects to

negotiating with the tribes in the manner

proposed by the Court's order filed March 27,

1992, on the basis that to do so would be

contrary to law. Federal defendant asserts

instead that cooperative agreements between

the state and the tribal entities are

contemplated by § 457(7) of the Social

Security Act, 42 U.S.C. § 654(7), and 45

C.F.R. 5 303.107 (1990). See Federal

defendant's Response to Brief of Plaintiffs

(Requesting Additional Relief) at 2. The

Court appreciates the attempt to seek a

solution within the language of the statute

itself. The Court finds, however, that just

as Tribal Plans were not specifically

contemplated by Congress when enacting the

statute or by the agency when promulgating the

A-92

regulations, neither were such state-tribal

agreements. The statute and accompanying

regulations anticipate cooperative agreements

between a state and its own state courts,

courts in which state law would necessarily be

followed.’ The statute and regulations simply

do not take into account the possibility that

these services might be provided in courts,

such as tribal courts located within the State

of South Dakota, that are not answerable to

state law.

Federal defendant also argues vehemently

that Congress authorized funding only for

states, not for’ tribes. The initial

requirements regarding the necessary laws that

must be passed in order to receive funding are

1

Also anticipated were purchase of

service agreements in which attorneys, workins

in the state courts, would provide the Title

IV-D child support and enforcement services.

A-93

the burden of the state, the entity receiving

the funding. Federal defendant suggests that

as a result of the limited funding

authorization, a tribal entity may be party

only to a cooperative agreement and not to its

own Tribal Plan. As a result, however, the

tribe, to which no federal money flows

directly and which has no Plan of its own,

should not be required to change its tribal

laws. A tribal entity, as a party to a

cooperative agreement and thus acting more

like a state court than the state itself for

the purposes of Title IV-D, would need only

recognize those federal mandates that apply to

the services covered by its particular

cooperative agreement.

Finally, Federal defendant objects to the

Court's Tribal Plan proposal on the grounds

that the semi-sovereign, independent status of

the Indian tribes, in part, prevents the

A-94

implementation of any Tribal Plan as proposed

by this Court. Federal defendant contends

that under the Court's proposed scheme the

tribes would be required to comply with al)

the federal requirements already mandated of

the states rather than simply "picking and

choosing" among the several Title IV-D prograr

services applicable to its own particularized

cooperative agreement with the state.

The Court notes that State defendants

initially took a very different positior

regarding the requirements a tribe would have

to meet before obtaining Title IV-D services.

This earlier position was the focus of

significant dispute among the parties:

As has been emphasized by the State

and Federal Defendants throughout

this litigation, before any child

support enforcement services can be

provided as requested by Plaintiffs

herein, the various Indian tribes

must meet any and al] requirements

of Title IV-D of the Social Security

Act, as the State Defendants have

been required to do. In other —

A-95

words, before the State Defendants

can avail themselves to the benefits

of Title IV-D, including the federal

funding as requested by Plaintiff's

herein, the State Defendants were,

and still are, required to comply

with all Title IV-D mandates and

requirements. It is the State

Defendants' position herein that the

tribes must be required to do

likewise.

State defendants' letter filed November 14,

1991, in response to Court order filed

November 4, 1991 (emphasis original).

Nevertheless, the Court finds that the

distinction Federal defendant currently makes

regarding the requirements a tribal entity

must meet provides a sufficient justification

for negotiating state-tribal cooperative

agreements rather than Tribal Plans in the

effort to grant plaintiffs relief. According

to the applicable law, the services provided

pursuant to cooperative arrangements or

agreements must conform with Title IV-D

requirements. See 45 C.F.R. § 304.22; Howe v.

A-96

Ellenbecker, 774 F. Supp. 1224, 1233 (D.S.D.

1991). Federal defendant has stated it is

prepared to provide federal funding for

"cooperative arrangements with tribal entities

or purchase of service agreements with private

attorneys for the provision of child support

enforcement services that comply with the

conditions set forth in the Federal statute

and regulations." Federal defendant's

Response to Brief of Plaintiffs (Requesting

Additional Relief) at 4. The services, and

the agreements pursuant to which’ those

services would be provided in the tribal

court, must adhere to federal law.. The Court

understands, however, that a tribe would not

necessarily have to change its tribal code in

order to recognize and comply with the

provisions of a given cooperative agreement.

The Court's findings are not intended to

imply that a tribe's cooperation is irrelevant

A-97

to the issue of whether federally funded

services would be provided in the tribal

courts. The tribes would have to make their

courts available for carrying out the

federally mandated procedures described in the

cooperative agreement, and they would have to

recognize these procedures before the child

support enforcement services would, or even

could, be provided. The Court does not

understand, however, that an agreement to

provide, for example, genetic testing under

the terms of a eeepeeitive agreement and

funded largely by the federal] government would

require a tribe to change its substantive

law.* How the tribe addresses the issue of

genetic testing for establishing paternity in

Plaintiffs suggested at oral argument

that Title IV-D requires states to pass some

laws that are simply not applicable to Native

American Indian tribes.

A-98

situations independent of the Title IV-D

program is of no consequence in determining

whether the cooperative agreement complies

with federal law. The tribe must simply, as

the term suggests, “cooperate” with those

requirements when services are being provided

pursuant to the cooperative agreement.

Both the federal and the State defendants

have expressed a willingness to negotiate, in

some manner, with the tribes. The Court

recognizes that negotiations with the nine

Indian tribes to prepare cooperative

agreements for the various services provided

under Title IV-D may be qualitatively

different than any negotiations undertaker

pursuant to this statute in the past.

Furthermore, no one questions that the Indiaz

tribes in South Dakota have distinct tribal

codes, none identical to the code of the State

of South Dakota, which has already bee

A-99

modified to comply with the federal mandates.

Yet this Court has determined that "Congress

intended all children to benefit from the

child support enforcement services established

by the statute." Howe v. Ellenbecker, 774 F.

Supp. 1224, 1231 (D.S.D. 1991). Accordingly,

the Court urges the parties to approach

negotiation with a certain degree of

flexibility, a recognition of the distinctive

relationship among the state, the tribes, and

the federal government, and a willingness to

acknowledge that the definition of

"compliance," as negotiations progress, may

have to be shaped to accommodate the unique

situation of the Indian tribes within South

Dakota.

The Court seeks a solution most amenable

to all parties, but one that will nevertheless

achieve the ultimate goal: providing child

support enforcement services to plaintiffs.

A-100

As the federal defendants oppose negotiatin

directly with the tribes as independent

entities capable of carrying out their ow

Tribal Plans, the Court finds that such ar

approach would, contrary to its earlier

findings, not be the most effective means of

granting plaintiffs relief. Accordingly, it

is

ORDERED that the directives contained ir

this Court's March 27, 1992, memorandum order

are vacated in their entirety. It is further

ORDERED that State defendants will use

every reasonable effort to negotiate :

cooperative agreement or purchase of service

agreement with each of the nine tribes in the

State of South Dakota. This effort wil!

include, but will not be limited to, sending:

letter, as proposed by State defendants, tc

each tribe. The letter will advise the tribe:

of the benefits of the Title IV-D program an

—_>

A-101

the specifics of the state's child support

enforcement progran. The State defendant

shall then propose a meeting with each tribe

in order to describe the program more fully

and to answer any questions and address any

concerns the tribes may have regarding

implementation of the program and use of the

tribal courts. The discussions would

necessarily include an explanation of the

federal participation funding scheme, as this

may be an important factor in a tribe's

decision whether to enter an agreement with

the state. It is also

ORDERED that the federal . defendants

shall, in concert with the State defendants,

co-author the described letter to each of the

tribes. The federal defendants shall also

attend any meetings with the tribes to discuss

implementation of the Title IV-D program and

the use of tribal courts. In addition, the

A-102

federal defendants shall provide technical

assistance in establishing agreements between

the State and the nine Native American Indian

tribes located within South Dakota.

Specifically, as federal defendants have

expressed 4a willingness to do, federal

defendants shall help negotiate the agreements

with the tribes and examine proposed

cooperative agreements. During the

negotiations, both federal and State

defendants shall make clear that no changes in

tribal law are mandated in order for the

tribes to arrange for child support and

enforcement services to be provided for

children who have an Indian absent parent

living on the reservation. Rather, the

services themselves, and the cooperative

agreements that govern them, must comply with

federal law before those services may be

A~-103

approved and financially supported by the

federal government.

It is therefore

ORDERED that Federal defendant's Motion

for Reconsideration is granted in accordance

with this memorandum order. It is further

ORDERED that Federal defendant's Request

for Stay Pending Reconsideration is granted.

The State defendants have filed a Motion

for Reconsideration and Dismissal based upon

the recent United States Supreme Court

decision in Suter v. Artist, 503 U.S. __, 112

S. Ct. 1360, 118 L. Ed. 2d 1 (1992). In

Suter, the Court found that the Adoption

Assistance and Child Welfare Act of 1980

"neither confers an enforceable private right

on its beneficiaries nor creates an implied

cause of action on their behalf." Suter, 118

L. Ed.2d at 16. State defendants assert that

the rationale applied in Suter should be

A-104

applied to the instant case, and that this

Court should determine as a matter of law that

Plaintiffs have no private enforceable right

under Title IV-D of the Social Security Act.

This Court filed its original memorandu

opinion in this case on September 18, 1991.

Defendants then filed an appeal to the United

States Court of Appeals for the Eighth

Circuit, which was dismissed on January 238,

1992 for lack of jurisdiction. Accordingly,

this Court filed its supplemental memorandu

order granting Plaintiffs further relief on

March 27, 1992. The Court considers any new

legal developments that may affect this

Court's original memorandum opinion, which

held that Title IV-D does create an

enforceable right in AFDC recipients and that

Title IV-D does not permit the exclusion of

Indian children who have absent parents living

on the reservation from its benefits, a matter

A-105

for the parties and the appellant court to

consider on appeal. Without ruling on the

merits of the motion, it is

ORDERED that State defendants’ Motion for

Reconsideration and Dismissal is denied.

Dated August 10, 1992.

BY THE COURT:

/s/ Donald J. Porter

Senior U.S. District Judge

ATTEST:

WILLIAM F. CLAYTON, CLERK

By /s/ Vicky J. Reinhard

Deputy 7

(Seal of Court)

A-106

APPENDIX G

TITLE 42. THE PUBLIC HEALTH AND WELFARE

CHAPTER 7. SOCIAL SECURITY ACT

TITLE IV. GRANTS TO STATES FOR AID AND

SERVICES TO NEEDY FAMILIES WITH CHILDREN AND

FOR CHILD-WELFARE SERVICES

PART D. CHILD SUPPORT AND ESTABLISHMENT OF

PATERNITY

§ 651. Authorization of appropriations

For the purpose of enforcing the support

obligations owed by absent parents to their

children and the spouse (or former spouse)

with whom such children are living, locating

absent parents, establishing paternity,

cbtaining child and spousal support, and

assuring that assistance in obtaining support

will be available under this part [42 USCS §§

651 et seq.) to all children (whether or not

eligible for aid under part A [42 USCS §§ 601

et seq.) for whom such assistance is

requested," there is hereby authorized to be

appropriated for each fiscal year a sum

A-107 —

sufficient to carry out the purposes of this

part [42 USCS §§ 651 et seq.]}.

§ 652. Duties of Secretary

(a) Establishment of separate organizational

unit; duties. The Secretary shall establish,

within the Department of Health and Human

Services a separate organizational unit, under

the direction of a designee of the Secretary,

who shall report directly to the Secretary and

who shall--

(1) establish such standards for State

programs for locating absent parents,

establishing paternity, and obtaining

child support and support for the spouse

(or former spouse) with whom the absent

parent's child is living as he determines

to be necessary to assure that such

programs will be effective; (2) establish

minimum organizational and _ staffing

requirements for State units engaged in

A-108

carrying out such programs under plans

approved under this part [42 USCS §§ 651

et seq.];

(3) review and approve State plans for

such programs;

(4) evaluate the implementation of State

programs established pursuant to. such

plan, conduct such audits of State

programs established under the plan

approved under this part [42 USCS §§ 651

et seq.] as may be necessary to assure

their conformity with the requirements of

this part [42 USCS §§ 651 et seq.], and,

not less often than once every three

years (or not less often than annually in

the ease of any State to which a

reduction is being applied under section

403(h)(1) [42 USCS § 603(h)(1)], or which

is operating under a corrective action

plan in accordance with section 403(h) (2)

A~-109

[42 USCS § 603(h)(2)]j), conduct a

complete audit of the programs

established under such plan in each State

and determine for the purposes of the

penalty provision of section 403(h) [42

uscS § 603(h)] whether the actual

operation of such programs in each State

conforms to the requirements of this part

[42 USCS §§ 651 et seq.];

(5) assist States in establishing

adequate reporting procedures and

maintain records of the operations of

programs established pursuant to this

part [42 USCS §§ 651 et seq.] in each

State;

(6) maintain records of all amounts

collected and disbursed under programs

established pursuant to the provisions of

this part [42 USCS §§ 651 et seq.] and of

A-110

the costs incurred in collecting such

amounts;

(7) provide technical assistance to the

States to help them establish effective

systems for collecting child and spousal

support and estabiishing paternity;

(8) receive applications from States for

permission to utilize the courts of the

United States to enforce court orders for

support against absent parents and, upon

a finding that (A) another State has not

undertaken to enforce the court order of

the originating State against the absent

parent within a reasonable time, and (8B)

that utilization of the Federal courts is

the only reasonable method of enforcing

such order, approve such applications;

(9) operate the Parent Locator Service

established by section 453 [42 USCS §

653); and

A-111

(10) not later than three months after

the end of each fiscal year, beginning

with the year 1977, submit to the

Congress a full and complete report on

all activities undertaken pursuant to the

provisions of this part [42 USCS §§ 651

et seq.}], which report shall include, but

not be limited to, the following:

(A) total program costs and

collections set forth in sufficient

detail tc show the cost to the

States and the Federal Government,

the distribution of collections to

families, State and local

governmental units, and the Federal

Government; and an identification of

the financial impact of the

provisions of this part [42 uscs kh

651 et seq.);

A-112

(B) costs and staff associated with

the Office of Child Support

Enforcement;

(C) the following data, with the

data required under each clause

being separately stated for cases

where the child is receiving aid to

families with dependent children (or

foster care maintenance payments

under part E [42 USCS §§ 670 et

seq.]), cases where the child was

formerly receiving such aid or

payments and the State is continuing

to collect support sestqnet to it

under section 402 (a) (26) or

471(a)(17) [42 USCS §§ 602(a) (26),

671(a)(17)}], and all other cases

under this part [42 USCS §§ 651 et

seq. }

A-113

(i) the total number of cases

in which a support obligation

has been established in the

fiscal year for which the

report is submitted, and the

total amount of such

obligations;

(ii) the total number of cases

in which a support obligation

has been established, and the

total - amount of such

obligations;

(iii) the mumber of cases

described in clause {i) in

which support was collected

during such fiscal year, and

the total amount of such

collections;

(iv) the number of cases

described in clause (ii) in

A-114

which support was collected

during such fiscal year, and

the total amount of = such

collections; and

(v) the number of child support

cases filed in each State in

such fiscal year, and the

amcunt of the collections made

in each State in such fiscal

year, on behalf of children

residing in another State or

against parents residing in

another State;

(D) the status of all State plans

under this part [42 USCS §§ 651 et

seq.] as of the end of the fiscal

year last ending before the report

is submitted, together with an

explanation of any problems which

are delaying or preventing approval

A-115

of State plans under this part [42

USCS §§ 651 et seq.]};

(E) data, by State, on the use of

the Federal Parent Locator Service,

and the number of locate requests

submitted without the absent

parent's social security account

number ;

(F) the number of cases, by State,

in which an applicant for or

recipient of aid under a State plan

approved under part A [42 USCS §§

601 et seg.}]) has refused to

cooperate in identifying and

locating the absent parent and the

number of cases in which refusal so

to cooperate is based on good cause

(as determined in accordance with

the standards referred to in section

A-116

402 (a) (26) (B) (ii) [42 USCS s

602 (a) (26) (B) (ii) });

(G) data, by State, on the use of

Federal courts and on use of the

Internal Revenue Service for

collections, the number of court

orders on which collections were

made, the number of paternity

determinations made and the number

of parents located, in sufficient

detail to show the cost and benefits

to the States and to the Federal

Government;

(H) the major problems encountered

which have delayed or prevented

implementation of the provisions of

this part [42 USCS §§ 651 et seq.]

during the fiscal year last ending

prior to the submission of such

report; and (I) the amount

re) f

administrative

costs which are

expended in

each functional

category of

expenditures,

including

establishment

of paternity.

The information contained in any such

report under subparagraph (A) shall

specifically include (i) the total amount

of child support payments collected as a

result of services furnished during the

fiscal year involved to individuals under

section 454(6) [42 USCS § 654(6)], (ii)

the cost to the States and to the Federal

Government of furnishing such services to

those individuals, and (iii) the extent

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to which the furnishing of such services

was successful in providing sufficient

support to those individuals to assure

that they did not require assistance

under the State plan approved under part

A [42 USCS §§ 601 et seq.].

(b) Certification of child support obligations

to Secretary of Treasury for collection. The

Secretary shall, upon the request of any State

having in effect a State plan approved under

this part [42 USCS §§ 651 et seq.], certify to

the Secretary of the Treasury for collection

pursuant to the provisions of section 6305 of

the Internal Revenue Code of 1954 [26 USCS §

6305] the amount of any child _ support

obligation (including any support obligation

with respect to the parent who is living with

the child and receiving aid under the State

plan approved under part A [42 USCS §§ 601 et

seq.]) which is assigned to such State or is

A-119

undertaken to be collected by such State

pursuant to section 454(6) [42 USCS § 654(6)].

No amount way be certified for collection

under this subsection except the amount of the

delinquency under a court or administrative

order for support and upon a showing by the

State that such State has made diligent and

reasonable efforts to collect such amounts

utilizing its own collection mechanisms, and

upon an agreement that the State will

reimburse the Secretary of the Treasury for

any costs involved in making the collection.

All reimbursements shall be credited to the

appropriation accounts which bore all or part

of the costs involved in making’ the

collections. The Secretary after consultation

with the Secretary of the Treasury may, by

regulation, establish criteria for accepting

amounts for collection and for making

certification under this subsection including

@

wn

Lov

r

A-120

imposing such limitations on the frequency of

aking such certifications under this

ursection.

c) Payments to States. The Secretary of the

seasury shall from time to time pay to each

tate for distribution in accordance with the

rovisions of section 457 [42 uSscsS § 657] the

mount of each collection made on behalf of

uch State pursuant to subsection (b).

€) Child support management information

stem.

(1) Except as provided in paragraph (3),

the Secretary shall not approve the

initial and annually updated advance

automated data processing planning

document, referred to in section 454 (16)

[42 USCS § 4°4(16)], unless he finds that

such document, when implemented, will

generally carry out the objectives of the

A-121

management system referred to in such

subsection, and such document--

(A) provides for the conduct of, and

reflects the results of,

requirements analysis studies, which

include consideration of the program

mission, functions, organization,

services, constraints, and current

support, of, in, or relating to,

such systen,

(B) contains a description of the

proposed management system referred

to in section 655(a)(1)(B) [42 USCS

% 655(a) (1! (B)), including a

descriptic:: of information flows,

input data, and output reports and

uses,

(C) sets forth the security and

interface requirements to be

employed in such management systen,

A-122

(D) describes the projected resource

requirements for staff and other

needs, and the resources available

or expected to be available to meet

such requirements,

(E) contains an imslementation plan

and backup procedures to handie

possible failures,

(F) contains a summary of proposed

improvement of such management

system in terms of qualitative and

quantitative benefits, and

(G) provides such other information

as the Secretary determines under

regulation is nevessary.

(2) (A) The Secretary shall through the

separate organizational unit established

pursuant to subsection (a), on a

continuing basis, review, assess, and

inspect the planning, design, and

A-123

operation of, management information

systems referred to in section

455(a)(1)(B) [42 USCS § 655(a)(1)(B)],

with a view to determining whether, and

to what extent, such systems meet and

continue to meet requirements imposed

under paragraph (1) and the conditions

specified under section 454(16) [42 USCS

§ 654(16)]).

(B) If the Secretary finds with

respect to any statewide management

information system referred to in

section 455(a)(1)(B) [42 USCS §

655(a)(1)(B)) that there is a

failure substantially to comply with

criteria, requirements, and other

undertakings, prescribed by the

advance automated data processing

planning document theretofore

approved by the Secretary with

\

(3)

requirement of paragraph (1) or any

A-124

respect to such system, then the

Secretary shall suspend his approval

of such document until there is no

longer any such failure of such

system to comply with such criteria,

requirements, and other undertakings

so prescribed.

The Secretary may waive any

condition specified under section 454(16)

[42 USCS § 654(16)] with respect to a

State if--

(A) the State demonstrates to the

satisfaction of the Secretary that

the State has an alternative system

or systems that enable the State,

for purposes of section 403(h) [42

USCS § 603(h)], to be in substantial

compliance with other requirements

A-125

of this part [42 USCS §§ 651 et

seq.]); and

(B) (i) the waiver meets_ the

criteria of paragraphs (1), (2), andg

(3) of section 1115(c) [42 USCS §

1315(c)(1)-(3)], or

(ii) the State-provides

assurances to the _ Secretary§

that steps will be taken to

otherwise improve the State's

child support enforcement

program.

(e) Technical assistance to States. Thee

Secretary shall provide such technica!

assistance to States as he determine:

necessary to assist States to plan, design,

develop, or install and provide for the§

security of, the management informatio

systems referred to in section 455(a) (1) (8

[42 USCS § 655(a) (1) (B)].

et

nd &

n,

hee

A-126

(f) Inclusion of medical support in child

support orders. The Secretary shall issue

regulations to require that State agencies

administering the child support enforcement

program under this part [42 USCS §§ 651 et

seq.] petition for the inclusion of medical

support as part of any child support order

whenever health care coverage is available to

the absent parent at a reasonable cost. Such

regulation shall also provide for improved

information exchange between such State

agencies and the State agencies administering

the State medicaid programs under title XIX

[42 USCS §§ 1396 et seq.] with respect to the

availability of health insurance coverage.

(g) Standards for State paternity

establishment programs.

(1) A State's program under this part [42

USCS §§ 651 et seq.] shall be found, for

A-127

purposes of section 403(h) [42 USCS §

603(h)], not to have complied

substantially with the requirements of

this part [42 USCS §§ 651 et seq.|

unless, for any fiscal year beginning on

or after October 1, 1994, its paternity

establishment percentage for such fiscal

year is based on reliable data an

(rounded to the nearest whole percentag§

point) equals or exceeds--

(A) 75 percent;

(B) for a State with a paternity

establishment percentage of not less

than 50 percent but less than 7°

percent for such fiscal year, the

paternity establishment percentag™

of the State for the immediatelj—

preceding fiscal year _ plus

percentage points;

SS

A-128

(C) for a State with a paternity

establishment percentage of not less

than 45 percent but less than 50

percent for such fiscal year, the

paternity establishment percentage

of the State for the immediately

preceding fiscal year plus 4

percentage points;

(D) for a State with a paternity

establishment percentage of not less

than 40 percent but less than 45

percent for such fiscal year, the

paternity establishment percentage

of the State for the immediately

preceding fiscal year plus 5

percentage points; or

(E) for a State with a paternity

establishment percentage of less

than 40 percent for such fiscal

year, the paternity establishment

A-*'.29

percentage of the State for the

immediately preceding fiscal year

plus 6 percentage points.

(2) For purposes of this section--

(A) the term "paternity

establishment percentage" means,

with respect to a State (or all

States, as the case may be) for a

fiscal year, the ratio (expressed as

a percentage) that the total number

of children--

(i) who have been born out of

wedlock during the fiscal year,

(ii) (I) except as provided in

the last sentence of this

paragraph, with respect to whom

aid is being paid under the

State's plan approved under

part A or E [42 USCS §§ 601 et

1e

ir

A-130

seq. or §§ 670 et seq.] as of

the end of the fiscal year, or

(II) with respect to whom

services are being provided

under the State's plan approved

under this part or [part] E [42

USCS §§ 651 et seq. or §§ 670

et seq.) as of the end of the

fiscal year pursuant to an

application submitted under

section 454(6) {42 USCS §

654(6)], and

(iii) the paternity of whom has

been established or

acknowledged during the fiscal

year, bears to the total

number of children who were

born out of wedlock during the

immediately preceding fiscal

year and (except as provided in

A-131

such last sentence) with

respect to whom aid was being

paid under the State's plan

approved under part A or E [42

USCS §§ 601 et seq. or §§ 670

et seq.] as of the end of such

preceding fiscal year or with

respect to whom services were

being provided under the

State's plan approved under

this part or [part] E [42 USCS

§§ 651 et seq. or §§ 670 et

seq.] as of the end of such

preceding fiscal year pursuant

to an application submitted

under section 454(6) [42 USCS §

654(6)]; and

(B) the term "reliable data" means

the most recent data available which

are found by the Secretary to be

th

ng

1S

\@

—_

€

A-132

reliable for purposes of this

section.

For purposes of subparagraph (A), the

total number of children shall not

include any child who is a dependent

child by reason of the death of a parent

unless paternity is established for such

child or any child with respect to whom

an applicant or recipient is found to

have good cause for refusing to cooperate

under section 402(a)(26) [42 USCS §

602(a)(26)] or any child with respect to

whom the State agency administering the

plan under part E [42 USCS §§ 670 et

seq.] determines (as provided in section

454(4)(B) [42 USCS § 654(4)(B)]}) that it

is against the best interests of such

child to do so.

(3) (A) The requirements of this

subsection are in addition to and shall

A-133

not supplant any other requirement (that

is not inconsistent with such

requirements) established in regulations

by the Secretary fer the purpose off

determining (for purposes of section

403(h) [42 USCS § 603(h)]}]) whether the

program of a State operated under this |

part [42 USCS § 651 et seq.] shall be

treated as complying substantially with

the requirements of this part [42 USCS §

651 et seq.].

(B) The Secretary may modify the

requirements of this subsection to

take into account such additional

variables as the Secretary

identifies (including the percentage

of children born out-of-wedlock in 4

State) that affect the ability of a

State to meet the requirements of

this subsection.

A-134

(C) The Secretary shall submit an

annual report to the Congress that

sets forth the data upon which the

paternity establishment percentages

for States for a fiscal year are

based, lists any additional

variables the Secretary has

identified under subparagraph (A),

and describes State performance in

establishing paternity.

(h) Requirement of prompt State response to

requests for child support assistance. The

standards required by subsection (a)(1) shall

include standards establishing time limits

governing the period or periods within which a

State must accept and respond to requests

(from States, jurisdictions thereof, or

individuals who apply for services furnished

by the State agency under this part {42 UscsS

§§ 651 et seq.] or with respect to whom an

A-135

assignment under section 402(a) (26) [42 USCS §

602(a)(26)] is in effect) for assistance in

establishing and enforcing support orders,

including requests to locate absent parents, §

establish paternity, and initiate proceedings

to establish and collect child support awards.

(i) Requirement of prompt State response to

requests for child support assistance. The

standards required by subsection (a)(1) shall

include standards establishing time limits

governing the period or periods within which a

State must distribute, in accordance with

section 457 [42 USCS § 657], amounts collected

as child support pursuant to the State's plan

approved under this part [42 USCS §§ 651 et

seq.].

§ 653. Parent Locator Service

(a) Establishment; purpose. The Secretary

shall establish and conduct a Parent Locator

A-136

Service, under the direction of the designee

of the Secretary referred to in section 452(a)

(42 USCS § 652(a)], which shall be used to

obtain and transmit to any authorized person

(as defined in subsection (c)) information as

to the whereabouts of any absent parent when

such information is to be used to locate such

parent for the purpose of enforcing support

obligations against such parent.

(b) Disclosure of information to authorized

persons. Upon request, filed in accordance

with subsection (d) of any authorized person

(as defined in subsection (c)) for the social

security account number (or numbers, if the

individual involved has more than one such

number) and the most recent address and place

of employment of any absent parent, the

Secretary shall, notwithstanding any other

Provision of law, provide through the Parent

A-137

Locator Service such information to. such

person, if such information--

(1) is contained in any files or records

maintained by the Secretary or by the

Department of Health and Human Services;

or

(2) is not contained in such files or

records, but can be obtained by the

Secretary, under the authority conferred

by subsection (e), from any _. other

department, agency, or instrumentality of

the United States or of any State.

No information shall be disclosed to any

person if the disclosure of such information

would contravene the national policy or

security interests of the United States or the

confidentiality of census data. The Secretary

shall give priority to requests made by any

authorized person described in subsection

(c) (1).

ich

ds

he

he

=I

f

A-138

"Authorized persons" defined. As used in

subsection (a), the term "authorized person"

means~-~-

(1) any agent or attorney of any State

having in effect a plan approved under

this part [42 USCS §§ 651 et seg.], who

has the duty or authority under such

plans to seek to recover any amounts owed

as child and spousal support (including,

when authorized under the State plan, any

official of a political subdivision) ;

(2) the court which has authority to

issue an order against an absent parent

for the support and maintenance of a

child, or any agent of such court; and

(3) the resident parent, legal guardian,

attorney, or agent of a child (other than

a child receiving aid under part A of

this title [42 USCS §§ 601 et seq.]) (as

determined by regulations prescribed by

A-139

the Secretary) without regard to the

existence of a court order againt an

absent parent who has a duty to support

and maintain any such child.

(da) Form and manner of request for

information. A request for information unde:

this section shall be filed in such manner an

form as the Secretary shall by regulation

prescribe and shall be accompanied or

supported by such documents as the Secretar)

may determine to be necessary.

(e) Compliance with request; search of files

and records by head of any department, etc.

of United States; transmittal of informatio

to Secretary; reimbursement for cost of

search; fees.

(1) Whenever the Secretary receives oi

request submitted under subsection (b

which he is reasonably satisfied meet

the criteria established by subsectior

he

an

Ty

,eS

A-140

(a), (b), and (c), he shall promptly

undertake to provide the information

requested from the files and records

maintained by any of the departments,

agencies, or instrumentalities of the

United States or of any State.

(2) Notwithstanding any other provision

of law, whenever the individual who is

the head of any department, agency, or

instrumentality of the United States

receives a request from the Secretary for

information authorized to be provided by

the Secretary under this section, such

individual shall promptly cause a search

to be made of the files and records

maintained by such department, agency, or

instrumentality with a view to

determining whether the information

requested is contained in any such files

or records. If such search discloses the

A-141

information requested, such individua]

shall immediately transmit such

information to the Secretary, except that

if any information is obtained the

disclosure of which would contravene

national policy or security interests of

the United States or the confidentiality

of census data, such information shal)

not be transmitted and such individual

shall immediately notify the Secretary.

If such search fails to disclose the

information requested, such individual

shall immediately so notify the

Secretary. The costs incurred by any such

department, agency, or instrumentality of

the United States or of any State in

broviding such information to the

Secretary shall be reimbursed by hin.

Whenever such services are furnished to

an individual specified in subsection

A-142

(c)(3), a fee shall be charged such

individual. The fee so charged shall be

used to reimburse the Secretary or his

delegate for the expense of providing

such services.

(3) The Secretary of Labor shall enter

into an agreement with the Secretary to

provide prompt access for the Secretary

(in accordance with this subsection) to

the wage and unemployment compensation

claims information and data maintained by

or for the Department of Labor or State

employment security agencies.

(f) Arrangements and cooperation with State

agencies. The Secretary, in carrying out his

duties and functions under this section, shall

enter into arrangements with State agencies

administering State plans approved under this

part [42 USCS §§ 651 et seq.] for such State

agencies to accept from resident parents,

A-143

legal guardians, or agents of a child

described in subsection (c) (3) and to transnit

to the Secretary requests for information with

regard to the whereabouts of absent parents

and otherwise to cooperate with the Secretary

in carrying out the purposes of this section.

§ 654. State plan for child and spousal

support

A State plan for child and spousal support

must--

(1) provide that it shall be in effect in

all political subdivisions of the State;

(2) provide for financial participation

by the State;

(3) provide for the establishment or

designation of a single and separate §

organizational unit, which meets. such

staffing and organizational requirements

as the Secretary may by regulation

A-144

prescribe, within the State to administer

the plan;

(4) provide that such State will

undertake--

(A) in the case of a child born out

of wedlock with respect to whom an

assignment under section 402(a) (26)

or section 1912 of this title [42

USCS § 602(a)(26) or 1396k] is

effective, to establish the

paternity of such child, unless the

agency administering the plan of the

State under Part A of this title [42

USCS §§ 601 et seq.] determines in

accordance with the standards

prescribed by the Secretary pursuant

to section 402(a)(26)(B) [42 USCS §

602(a)(26)(B)] that it is against

the best interests of the child to

do so, or, in the case of such a

A-145

child with respect to whom ap

assignment under section 1912 [42

USCS § 1396k) is in effect, the

State agency administering the plan

approved under title XIX [42 USCS §§

1396 et seq.] determines pursuant tc

section 1912(a)(1)(B) [42 USCS §

1396k(a)(1)(B)] that it is against}

the best interests of the child tof

do so, and

(B) in the case of any child with

respect to whom such assignment is

effective, including an assignment

with respect to a child on whose

behalf a State agency is making

foster care maintenance payments

under part E [42 USCS §§ 670 et

seq.], to secure support for such

child from his parent (or from any

other person legally liable for such

A-146

support) and, at the option of the

State, from such parent for his

spouse (or former spouse) receiving

aid to families with dependent

children or medical assistance under

a State plan approved under title

XIX [42 USCS §§ 1396 et seq.] (but

only if a support obligation has

been established with respect to

such spouse), utilizing any

reciprocal arrangements adopted with

other States (unless the agency

administering the plan of the State

under part A or E of this title [42

USCS §§ 601 et seq., 670 et seq. ]

determines in accordance with the

standards prescribed by the

Secretary pursuant to section

402(a) (26) (B) [42 uscs

602(a)(26)(B)) that it is against

A-147

the best interests of the child to

do so), except that when = such

arrangements and other means have

proven ineffective, the State may

utilize the Federal courts to obtain

or enforce court orders for support;

(5) provide that (A) in any case in which

Support payments are collected for an

individual with respect to whom an

assignment under section 402(a) (26) [42

USCS § 602(a)(26)] is effective, such

payments shall be made to the State for

distribution pursuant to section 457 [42

USCS § 657} and shall not be paid

directly to the family, and the

individual will be notified on a monthly

basis (or on a quarterly basis for so

long as the Secretary determines with

respect to a State that requiring such

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notice on a monthly basis would impose an

unreasonable administrative burden) of

the amount of the support payments

collected; except that this paragraph

shall not apply to-such payments for any

month following the first month in which

the amount collected is sufficient to

make such family ineligible for

assistance under the State plan approved

under part A (42 USCS §§ 601 et seq.]};

and (B) in case in which support payments

are collected for an individual pursuant

to the assignment made under section 1912

[42 USCS § 1396k], such payments shall be

made to the State for distribution

pursuant to section 1912 [42 USCS §

1396k]), except that this clause shall not

apply to such payments for any month

after the month in which the individual

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ceases to be eligible for medica)

assistance;

(6) provide that (A) the child support

collection or paternity determination

services established under the plan shal!

be made available to any individual not

otherwise eligible for such services upon

application filed by such individual with

the State, including support collection

services for the spouse (or former

spouse) with whom the absent parent's

child is living (but only if a support

obligation has been established with

respect to such spouse, and only if the

Support cbligation established with

respect to the child is being enforced

under the plan), (B) an application fee

for furnishing such services shall be

imposed, which shall be paid by the

individual applying for such services, or

wv

A-150

recovered from the absent parent, or paid

by the State out of its own funds (the

payment of which from State funds shali

not be considered as an administrative

cost of the State for the operation of

the plan, and shall be considered income

to the program), the amount of which (i)

will not exceed $ 25 (or such higher or

lower amount (which shall be uniform for

all States) as the Secretary may

determine to be appropriate for any

fiscal year to reflect increases or

decreases in administrative costs), and

(ii) may vary among such individuals on

the basis of ability to pay (as

determined by the State), f{and] (C) a fee

of not more than $ 25 may be imposed in

any case where the State requests the

Secretary of the Treasury to withhold

past-due support owed to or on behalf of

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such individual from a tax. refund

pursuant to section 464(a)(2) [42 USCS §

664(a)(2)], (D) a fee (in accordance with

regulations of the Secretary) for

performing genetic tests may be imposed

on any individual who is not a recipient

of aid under a State plan approved under

part A [42 USCS §§ 601 et seq.], and (E£)

any costs in excess of the fees so

imposed may be collected--

(i) from the parent who owes the

child or spousal support obligation

involved, or

(ii) at the option of the State,

from the individual to whom such

services are made available, but

only if such State has in effect a

procedure whereby all persons in

such State having authority to order

child or _ spousal support _ are

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informed that such costs are to be

collected from the individual to

whom such services were made

available;

(7) provide for entering into cooperative

arrangements with appropriate courts and

law enforcement Officials (A) to assist

the agency administering the plan,

including the entering into of financial

arrangements’ with such courts and

officials in order to assure optimum

results under such program, and (B) with

respect to any other matters of common

concern to such courts or officials and

the agency administering the plan;

(8) provide that the agency administering

the plan will establish a service to

locate absent parents utilizing--

(A) all sources of information and

available records, and

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(B) the Parent Locator Service ip

the Department of Health and Human

Services;

(9) provide that the State will, in

accordance with standards prescribed by

the Secretary, cooperate with any other

State--

(A) in establishing paternity, if

necessary,

(B) in locating an absent parent

residing in the State (whether or

not permanently) against whom any |

action is being taken under a

program established under a tien!

approved under this part [42 USCS §§

651 et seq.] in another State,

(C) in securing compliance by an

absent parent residing in such State

(whether or not permanently) with an

order issued by a court of competent

in

an

t

A-154

jurisdiction against such parent for

the support and maintenance of the

child or children or the parent of

such child or children with respect

to whom aid is being provided under

the plan of such other State, and

(D) in carrying out other functions

required under a plan approved under

this part [42 USCS §§ 651 et seq.];

(10) provide that the State will maintain

a full record of collections and

disbursements made under the plan and

have an adequate reporting system;

(11) provide that amounts collected as

Support shall be distributed as provided

in section 457 [42 USCS § 657];

(12) provide that any payment required to

be made under section 456 or 457 [42 uscs

$$ 656, 657] to a family shall be made to

the resident parent, legal guardian, or

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caretaker relative having custody of or

responsibility for the child or children; &

(13) provide that the State will comply

with such other requirements and

standards as the Secretary determines to

be necessary to the establishment of an

effective program for locating absent

parents, establishing paternity,

obtaining support orders, and oelliectintn

support payments;

(14) comply with such bonding

requirements, for employees who receive,

disburse, handle, or have access to,

cash, as the Secretary shall by

regulations prescribe;

(15) maintain methods of administration

which are designed to assure that persons

responsible for handling cash receipts

shall not participate in accounting or

4

A-156

operating functions which would permit

them to conceal in the accounting records

the misuse of cash receipts (except that

the Secretary shall by _ regulations

provide for exceptions to this

requirement in the case of sparsely

populated areas where the hiring of

unreasonable additional staff would

otherwise be necessary) ;

(16) provide, at the option of the State,

for the establishment, in accordance with

an (initial and annually updated) advance

automated data processing planning

document approved under section 452 (d)

[42 USCS § 652(d)], of a statewide

automated data processing and information

retrieval system designed effectively and

efficiently to assist management in the

administration of the State plan, in the

State and localities thereof, so as (A)

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to control, account for, and monitor (ji)

all the factors in the support

enforcement collection and paternity

determination process under such plan

(including, but not limited to, (I)

identifiable correlation factors (such as

social security numbers, names, dates of

birth, home addresses and mailing §

addresses (including postal ZIP codes) of

any individual with respect to whon

Support obligations are sought to be

established or enforced and with respect |

to any person to whom such support

obligations are owing) to assure

sufficient compatibility among the

systems of different jurisdictions to

permit periodic screening to determine

whether such individual is paying or is

obligated to pay support in more than one

jurisdiction, (II) checking of records of

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such individuals on a periodic basis with

Federal, intra- and inter-State, and

local agencies, (III) maintaining the

data necessary to meet the Federal

reporting requirements on a timely basis,

and (IV) delinquency and enforcement

activities), (ii) the collection and

distribution of support payments (both

intra- and inter-State), the

determination, collection, and

distribution of incentive payments both

inter- and intra-State, and the

maintenance of accounts receivable on all

amounts owed, collected and distributed,

and (iii) the costs of all services

rendered, either directly or by

interfacing with State financial

management and expenditure information,

(B) to provide interface with records of

the State's aid to families with

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dependent children program in order to

determine if a collection of a support

payment causes a change affecting

eligibility for or the amount of aid

under such program, (C) to provide for

security against unauthorized access to,

or use of, the data in such system, (D)

to facilitate the development and

improvement of the income withholding and

other procedures required under section

466(a) [42 USCS § 666(a)]} through the

monitoring of support payments, the

maintenance of accurate records regarding

the payment of support, and the prompt

provision of notice to appropriate

officials with respect to any arrearages |

in support payments which may occur, and

(E) to provide management information on

all cases under the State plan from

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initial referral or application through

collection and enforcement;

(17) in the case of a State which has in

effect an agreement with the Secretary

entered into pursuant to section 463 [42

USCS § 663] for the use of the Parent

Locator Service established under section

453 [42 USCS § 653], provide that the

State will accept and transmit to the

Secretary requests for information

authorized under the provisions of the

agreement to be furnished by such Service

to authorized persons, will impose and

collect (in accordance with regulations

of the Secretary) a fee sufficient to

cover the costs to the State and to the

Secretary incurred by reason of such

requests, will transmit to the Secretary

from time to time (in accordance with

such regulations) so much of the fees

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collected as are attributable to _ such

costs to the Secretary so incurred, and

during the period that such agreement is

in effect will otherwise comply with such §

agreement and regulations of the

Secretary with respect thereto;

(18) provide that the State has in effect

procedures necessary to obtain payment of

past-due support from overpayments made

to the Secretary of the Treasury as set

forth in section 464 [42 USCS § 664], and

take all steps necessary to implement and

utilize such procedures;

(19) provide that the agency |

administering the plan--

(A) shall determine on a periodic

basis, from information’. supplied

pursuant to section 508 of the

Unemployment Compensation Amendments

of 1976 [29 USCS § 49b; 42 USCS §

oh

wal

id

Qa.

A-162

603a], whether any individuals

receiving compensation under the

State's unemployment compensation

law (including amounts’~ payable

pursuant to any agreement under any

Federal unemployment compensation

law) owe child support obligations

which are being enforced by such

agency, and

(B) shall enforce any such child

support obligations which are owed

by such an individual but are not

being met--

(i) through an agreement with

such individual to have

specified amounts withheld from

compensation otherwise payable

to such individual and by

submitting a copy of any such

agreement to-the State agency

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administering the unemployment

compensation law, or

(ii) in the absence of such an

agreement, by bringing llega!

process (as defined in section

462(e) of this Act [42 USCS ¢

662 (e) }) to require the

withholding of amounts fron

such compensation;

(20) provide, to the extent required by§

section 466 [42 USCS § 666], that the

State (A) shall have in effect all of the

laws to improve child support enforcement

effectiveness which are referred to in

that section, and (B) shall implement the

procedures which are prescribed in or

pursuant to such laws;

(21) (A) at the option of the State,

impose a late payment fee on all overdue

Support (as defined in section 466(e) [42

ro

A-164

USCS § 666(e)]) under any obligation

being enforced under this part [42 USCS

§§ 651 et seq.]), in an amount equal to a

uniform percentage determined by the

State (not less than 3 percent nor more

than 6 percent) of the overdue support,

which shall be payable by the absent

parent owing the overdue support; and

(B) assure that the fee will be

collected in addition to, and only

after full payment of, the overdue

support, and that the imposition of

the late payment fee shall not

directly or indirectly result in a

decrease in the amount of the

support which is paid to the child

(or spouse) to whom, or on whose

behalf, it is owed;

(22) in order for the State to be

eligible to receive any incentive

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payments under section 458 [42 USCS §

658], provide that, if one or _ more

political subdivisions of the _ State

participate in the costs of carrying out

activities under the State plan during

any period, each such subdivision shal]

be entitled to receive an appropriate

share (as determined by the State) of any

such incentive payments made to the State

for such period, taking into account the

efficiency and effectiveness of the

activities carried out under the State

plan by such political subdivision;

(23) provide that the State _ will

regularly and frequently publicize,

through public service announcements, the

availability of child support enforcement

services under the plan and otherwise,

including information as to any

application fees for such services and 4

e

e

A-166

telephone number or postal address at

which further information may be

obtained; and

(24) provide that if the State, as of the

date of the enactment of this paragraph

[enacted Oct. 13, 1988], does not have in

effect an automated data processing and

information retrieval system meeting all

of the requirements of paragraph (16),

the State--

(A) will submit to the Secretary by

October 1, 1991, for review and

approval by the Secretary within 9

months after submittal an advance

automated data processing planning

document of the type referred to in

such paragraph; and

(B) will have in effect by October

1, 1995, an operational automated

data processing and _ information

A-167

retrieval system, meeting all thf

requirements of that paragraph,

which has been approved by the

Secretary.

The State may allow the jurisdiction

which makes the collection involved to

retain any application fee under

paragraph (6)(B) or any late payment fee

under paragraph (21).

§ 655. Payments to States

(a) Amounts payable each quarter. (1) Fron

the sums appropriated therefor, the Secretary

shall pay to each State for each quarter an

amount--

(A) equal to the percent specified

in paragraph (2) of the total

amounts expended by such _ State

during such quarter for the

operation of the plan approved under

section 454 [42 USCS § 654],

QQ.

4

A-168

(B) equal to 90 percent (rather than

the percent specified in

subparagraph (A)) of so much of the

sums expended during such quarter as

are attributable to the planning,

design, development, installation or

enhancement of an automatic data

processing and information retrieval

System (including in such sums the

full cost of the hardware components

of such system) which the Secretary

finds meets the requirements

specified in section 454(16) [42

USCS § 654(16)]}, or meets’. such

requirements without regard to

Clause (D) thereof [42 uscs §

654(16)(D)], and

(C) equal to 90 percent (rather than

the percentage specified in

subparagraph (A)) of so much of the

A~-169

Sums expended during such quarter as

are attributable to laboratory costs

incurred in determining paternity;

[+]

(2) The percent applicable to quarters in

a fiscal year for purposes of paragraph

(1) (A) is--

(A) 70 percent for fiscal years

1984, 1985, 1986, and 1987,

(B) 68 percent for fiscal years 1988

and 1989, and

(C) 66 percent for fiscal year 1990

and each fiscal year thereafter.

C7]

except that no amount shall be paid to

any State on account of amounts expended

to carry out an agreement which it has

entered into pursuant to section 463 [42

USCS § 663]. In determining the total

amounts expended by any State during a

as

ts

A-170

quarter, for purposes of this subsection,

there shall be excluded an amount equal

to the total of any fees collected or

other income resulting from services

provided under the plan approved under

this part [42 USCS §§ 651 et seq.].

Estimate of amounts payable; installment

payments.

(1) Prior to the beginning of each

quarter, the Secretary shall estimate the

amount to which a State will be entitled

under subsection (a) for such quarter,

such estimates to be based on (A) a

report filed by the State containing its

estimate of the total sum to be expended

in such quarter in accordance with the

provisions of such subsection, and

stating the amount appropriated or made

available by the State and its political

subdivisions for such expenditures in

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such quarter, and if such amount is less

than the State's proportionate share of

the total sum of such estimated

expenditures, the source or sources fron

which the difference is expected to be

derived, and (B) such other investigation

as the Secretary may find necessary.

(2) Subject to subsection (d),_ the

Secretary shall then pay, in such

installments as he may determine, to the

State the amount so estimated, reduced or

increased to the extent of any

overpayment or underpayment which the

Secretary determines was made under this

section to such State for any prior

quarter and with respect to which

adjustment has not already been made

under this subsection.

(3) Upon the making of any estimate by

the Secretary under this subsection, any

yn

e

A-172

appropriations available for payments

under this section shall be deemed

obligated.

(Cc) [Repealed]

(d) State reports. Notwithstanding any other

provision of law, no amount shall be paid to

any State under this section for any quarter,

prior to the close of such quarter, unless for

the period consisting of all prior quarters

for which payment is authorized to be made to

such State under subsection (a), there shall

have been submitted by the State to the

secretary, with respect to each quarter in

such period (other than the last two quarters

in such period), a full and complete report

(in such form and manner and containing such

information as the Secretary shall prescribe

or require) as to the amount of child support

collected and disbursed and all expenditures

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with respect to which payment is authorized

under subsection (a).

(e)(1) In order to encourage and promote the

development and use of more effective methods

of enforcing support obligations under this

part [42 USCS §§ 651 et seq.] in cases where

either the children on whose behalf. the

support is sought or their absent parents do

not reside in the State where such cases are

filed, the Secretary is authorized to make

grants, in such amounts and on such terms and

conditions as the Secretary determines to be

appropriate, to States which propose to

undertake new or innovative methods of support

collection in such cases and which will use

the proceeds of such grants to carry out

special projects designed to demonstrate an¢

test such methods.

d

e

-.

A-174

(2) A grant under this subsection shall

be made only upon a finding by the

Secretary that the project involved is

likely to be of significant assistance in

carrying out the purpose of this

subsection; and with respect to such

project the Secretary may waive any of

the requirements of this part [42 USCS §§

651 et seq.) which would otherwise be

applicable, to such extent and for such

period as the Secretary determines is

necessary or desirable in order to enable

the State to carry out the project.

(3) At the time of its application for a

grant under this subsection the State

shall submit to the Secretary a statement

describing in reasonable detail the

project for which the proceeds of the

grant are to be used, and the State shall

from time to time thereafter submit to

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the Secretary such reports with respect

to the project as the Secretary may

specify.

(4) Amounts expended by a State ip

carrying out a special project assisted

under this section shall be considered,

for purposes of section 458(b) [42 USCS §

658(b)] (as amended by section 5(a) of

the Child Support Enforcement Amendments

of 1984), to have been expended for the

operation of the State's plan approved!

under section 454 [42 USCS § 654).

(5) There is authorized to be

appropriated the sum of $ 7,000,000 for

fiscal year 1985, §$ 12,000,000 for fiscal

year 1986, and $ 15,000,000 for each

fiscal year thereafter, to be used by the

Secretary in making grants under this

subsection.

Ct

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§ 656. Support obligation as obligation to

State; amount; discharge in bankruptcy

(a)(1) The support rights assigned to the

State under section 402(a)(26) [42 USCS §

602(a)(26)]}] or secured on behalf of a child

receiving foster care maintenance payments

shall constitute an obligation owed to such

State by the individual responsible for

providing such support. Such obligation shall

be deemed for collection purposes to be

collectible under all applicable State and

local processes.

(2) The amount of such obligation shall

be--

(A) the amount specified in a court

order which covers’ the assigned

Support rights, or

(B) if there is no court order, an

amount determined by the State in

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accordance with a formula approved

by the Secretary, and

(3) Any amounts collected from an absent

parent under the plan shall _ reduce,

dollar for dollar, the amount of his

obligation under subparagraphs (A) and

(B) of paragraph (2).

(b) A debt which is a child support obligation

assigned to a State under section 402(a) (26)

[42 USCS § 602(a)(26)] is not released by a

discharge in bankruptcy under title 11, United

States Code [11 USCS §§ 101 et seq.]}.

§ 657. Distribution of proceeds

(a) Amount collected during fifteen month

period beginning July 1, 1975. The amounts

collected as child support by a State pursuant

to a plan approved under this part [42 USCS §§

651 et seq.) during the 15 months beginning

July 1, 1975, shall be distributed as follows:

te

A-178

(1) 40 per centum of the first $ 50 of

such amounts as are collected

periodically which represent monthly

Support payments shall be paid to the

family without any decrease in the amount

paid as assistance to such family during

such month;

(2) such amounts as are _ collected

periodically which are in excess of any

amount paid to the family under paragraph

(1) which represent monthly support

payments shall be retained by the State

to reimburse it for assistnace payments

to the family during such period (with

appropriate reimbursement of the Federal

Government to the extent of its

participation in the financing) ;

(3) such amounts as are in excess of

amounts retained by the State under

paragraph (2) and are not in excess of

(b)

A-179

the amount required to be paid during

such period th the family by a court

order shall be paid to the family; and

(4) such amounts as are in excess of

amounts required to be distributed unde

paragraphs (1), (2),a nd (3) shall be (A)

retained by the State (with appropriate

reimbursement of the Federal Government

to the extent of its participation in the

financing) as reimbursement for any past

assistance payments made to the family

for which the State has not. been

reimbursed or (B) if no assistance

payments have been made by the State

which have not been repaid, such amounts

Shall be paid to the family.

Amount collected during fifteen month

period beginning July 1, 1976. The amounts

collected as support by a State pursuant to a

plan approved under this part [42 USCS §§ 651

1g

A-180

seq.) during any fiscal year beginning

after September 30, 1976, shall (subject to

' subsection (d)) be distributed as follows:

(1) of such amounts as are collected

periodically which represent’ monthly

Support payments, the first $ 50 of any

payments for a month received in that

month, and the first $ 50 of payments for

each prior month received in that month

which were made by the absent parent in

the month when due, shall be paid to the

family without affecting its eligibility

for assistance or decreasing any amount

otherwise payable as assistance to such

family during such month;

(2) such amounts as are collected

periodically which are in excess of any

amount paid to the family under paragraph

(1) and which represent monthly support

payments shall be retained by the State

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to reimburse it for assistance payments

to the family during such period (with

appropriate reimbursement of the Federa]

Government to the extent of its

participation in the financing) ;

(3) such amounts as are in excess of

amounts retained by the State under

paragraph (2) and are not in excess of

the amount required to be paid during

such period to the family by a court or

administrative order shall be paid to the

family; and

(4) such amounts as are in excess of

amounts required to be distributed under

paragraphs (1), (2), and (3) shall be (A)

retained by the State (with appropriate

reimbursement of the Federal Government

to the extent of its participation in the

financing) as reimbursement for any past

assistance payments made to the family

ry

i |

A-182

for which the State has not _ been

reimbursed or (B) if no assistance

payments have been made by the State

which have not been repaid, such amounts

shall be paid to the family.

(c) Collection after termination of

assistance; distribution of support proceeds.

Whenever a family with respect to which child

support enforcement services have been

provided pursuant to section 454(4) [42 USCS §

654(4)] ceases to receive assistance under

part A of this title [42 USCS §§ 601 et seq.},

the State shall provide appropriate notice to

|} the family and continue to provide such

services, and pay any amount of support

collected, subject to the same conditions and

on the same basis as in the case of the

individuals to whom services are furnished

pursuant to section 454(6) [42 USCS § 654(6)],

except that no application or other request to

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continue services shall be required of a

family to which this subsection applies, and

the provisions of section 454(6)(B) [42 USCS §

654(6)(B)] may not be applied.

(da) Child support enforcement for certain

children in foster care. Notwithstanding the

preceding provisions of this section, amounts

collected by a State as child support for

months in any period on behalf of a child for

whom a public agency is making foster care

maintenance payments under part E [42 USCS §§

670 et seq.)--

(1) shall be retained by the State to the

extent necessary to reimburse it for the

foster care maintenance payments made

with respect to the child during such

period (with appropriate reimbursement of

the Federal Government to the extent ot

its participation in the financing) ;

pa

ie

e

le

A-184

(2) shall be paid to the public agency

responsible for supervising the placement

of the child to the extent that the

amounts collected exceed the foster care

maintenance payments made with respect to

the child during such period but not the

amounts required by a court or

administrative order to be paid as

support on behalf of the child during

such period; and the responsible agency

may use the payments in the manner it

determines will serve the best interests

of the child, including setting such

payments aside for the child's future

needs or making all or a part thereof

available to the person responsible for

meeting the child's day-to-day needs; and

(3) shall be retained by the State, if

any portion of the amounts collected

A-185

remains after making the payments

required under paragraphs (1) and (2), to

the extent that such portion is necessary

to reimburse the State (with appropriate

reimbursement to the Federal Government

to the extent of its participation in the

financing) for any past foster care

maintenance payments (or payments of aid

to families with dependent children)

which were made with respect to the child

(and with respect to which past

collections have not previously been

retained) ;

and any balance shall be paid to the State

agency responsible for supervising the

placement of the child, for use by such agency

in accordance with paragraph (2).

§ 658. Incentive payments to states

(a) In order to encourage and reward State

child support enforcement programs’ which

-S

A-186

perform in a cost-effective and efficient

manner to secure support for all children who

have sought assistance in securing support,

whether such children reside within the State

or elsewhere and whether or not they are

eligible for aid to families with dependent

children under a State plan approved under

part A of this title [42 USCS §§ 601 et seq.],

and regardless of the economic circumstances

of their parents, the Secretary shall, from

support collected which would otherwise

represent the Federal share of assistance to

families of absent parents, pay to each State

for each fiscal year, on a quarterly basis (as

described in subsection (e)) beginning with

the quarter commencing October 1, 1985, an

incentive payment in an amount determined

under subsection (b).

A-187

(b) (1) Except as provided in paragraphs (2),

and (4), the incentive payment shall be

equal to--

(A) 6 percent of the total amount of

support collected under the plan

during the fiscal year in cases in

which the support obligation

involved is assigned to the State

pursuant to section 402(a)(26) or

section 471(a) (17) [42 USCS §§

602(a) (26), 671(a)(17)}] (with such

total amount for any fiscal year

being hereafter referred to in this

section as the _ State's "AFDC

collections" for that year), plus

(B) 6 percent of the total amount of

support collected during the fiscal

year in all other cases under this

part [42 USCS §§ 651 et seq.} (with

such total amount for any fiscal

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year being hereafter referred to in

this section as the State's

"non-AFDC collections" for that

year).

(2) If subsection (c) applies with

respect to a State's AFDC collections or

non-AFDC collections for any fiscal year,

the percent specified in paragraph (1) (A)

or (B) (with respect to such collections)

shall be increased to the higher percent

determined under such subsection (with

respect to such collections) in

determining the State's incentive payment

under this subsection for that year.

(3) The dollar amount of the portion of

the State's incentive payment for any

fiscal year which is determined on the

basis of its non-AFDC collections under

paragraph (1)(B) (after adjustment under

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subsection (c) if applicable) shall in no

case exceed--

(4)

(A) the dollar amount of the portion

of such payment which is determined

on the basis of its AFDC collections

under paragraph (1) (A) (after

adjustment under subsection (c) iff

applicable) in the case of fiscal

year 1986 or 1987;

(B) 105 percent of such dollar

amount in the case of fiscal year

1988; :

(C) 110 percent of such dollar

amount in the case of fiscal year

1989; or

(D) 115 percent of such dollar

amount in the case of fiscal year

1990 or any fiscal year thereafter.

The Secretary shall make such

additional payments to the State under

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this part (42 USCS §§ 651 et seq.], for

fiscal year 1986 or 1987, as may be

necessary to assure that the total amount

of payments under this section and

section 455 (a) (1) (A) [42 USCS 4

655(a)(1)(A)] for such fiscal year is no

less than 80 percent of the amount that

would have been payable to that State and

its political subdivisions for such

fiscal year under this section and

section 455 (a) (1) (A) [42 USCS s

655(a) (1) (A) ] if those sections

(including the amendment made by section

5(c) (2) (A) of the Child Support

Enforcement Amendments of 1984) had

remained in effect as they were in effect

for fiscal year 1985.

(Cc) If the total amount of a State's AFDC

collections or non-AFDC collections for any

fiscal year bears a ratio to the total amount

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expended by the State in that year for the

operation of its plan approved under section

454 [42 USCS § 654) for which payment may be

made under section 455 [42 USCS § 655] (with

the total amount so expended in any fiscal

year being hereafter referred to in this

section as the State's “combined AFDC/non-AFDC

administrative costs" for that year) which is

equal to or greater than 1.4, the relevant

percent specified in subparagraph (A) or (B)

of subsection (b)(1) (with respect to such

collections) shall be increased to--

(1) 6.5 percent, plus

(2) one-half of 1 percent for each full

two-tenths by which such ratio exceeds

1.4; a

except that the percent so specified shall in

no event be increased (for either AFDC

collections or non-AFDC collections) to more

than 10 percent. For purposes of the

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preceding sentence, laboratory costs incurred

in determining paternity in any fiscal year

may at the option of the State be excluded

from the State's combined AFDC/non-AFDC

administrative costs for that year.

(d) In computing incentive payments under this

section, support which is collected by one

State at the request of another State shall be

treated as having been collected in full by

each such State, and any amounts expended by

the State in carrying out a special project

assisted under section 455(e) [42 USCS §

655(e)]}] shall be excluded.

(e) The amounts of the incentive payments to

be made to the various States under this

section for any fiscal year shall be estimated

by the Secretary at or before the beginning of

such year on the basis of the best information

available. The Secretary shall make such

payments for such year, on a quarterly basis

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(with each quarterly payment being made no

later than the beginning of the quarter

involved), in the amounts’ so estimated,

reduced or increased to the extent of any

overpayments or underpayments which _ the

Secretary determines were made under this

section to the States involved for prior

periods and with respect to which adjustment

has not already been made under this

subsection. Upon the making of any estimate by

the Secretary under the preceding sentence,

any appropriations available for payments

under this section shall be deemed obligated.

§ 659. Enforcement of individual's legal

obligations to provide child support or make

alimony payments

(a) United States and District of Columbia to

be subject to legal process. Notwithstanding

any other provision of law (including section

207 [42 USCS § 407]), effective January 1,

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1975, moneys (the entitlement to which is

based upon remuneration for employment) due

from, or payable by, the United States or the

District of Columbia (including any agency,

subdivision, or instrumentality thereof) to

any individual, including members of the armed

services, shall be subject, in like manner and

to the same extent as if the United States or

the District of Columbia were a private

person, to legal process brought for the

enforcement, against such individual of his

legal obligations to provide child support or

make alimony payments.

(b) Methods of service of legal process.

Service of legal process brought for the

enforcement of an individual's obligation to

provide child support or make alimony payments

Shall be accomplished by certified or

registered mail, return receipt requested, or

by personal service, upon the appropriate

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agent designated for receipt of such service

of process pursuant to regulations promulgated

pursuant to section 461 [42 USCS § 661] (or,

if no agent has been designated for the

governmental entity having payment

responsibility for the moneys involved, then

upon the head of such governmental entity).

Such process shall be accompanied by

sufficient data to permit prompt

identification of the individual and _ the

moneys involved.

(c) Disclosure of information in answering

interrogatories; disciplinary action or civil

or criminal liability or penalty prohibited.

No Federal employee whose duties include

responding to interrogatories pursuant to

requirements imposed by section 461(b)(3) [42

USCS § 661(b)(3)] shall be subject under any

law to any disciplinary action or civil or

criminal liability or penalty for, or on

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account of, any disclosure of information made

by him in connection with the carrying out of

any of his duties which pertain (directly or

indirectly) to the answering of any such

interrogatory.

(d) Notice. Whenever any person, who is

designated by law or regulation to accept

service of process to which the United States

is subject under this section, is effectively

served with any such process or with

interrogatories relating to an individual's

child support or alimony payment obligations,

such person shall respond thereto within

thirty days (or within such longer period as

may be prescribed by applicable State law)

after the date effective service thereof is

made, and shall, as soon as possible but not

later than fifteen days after the date

effective service is so made of any such

process, send written notice that such process

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has been so served (together with a copy

thereof) to the individual whose moneys are

affected thereby at his duty station or

last-known home address.

(e) Variance in normal pay and disbursement

cycles not required. Governmental entities

affected by legal processes served for the

enforcement of an individual's child support

or alimony payment obligations shall not be

required to vary their normal pay = ané

disbursement cycles in order to comply with

any such legal process.

(f) Non-liability of United States, disbursing

officers, and governmental entities with

respect to payments. Neither the United

States, any disbursing officer, nor

governm

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