Blessing v. Freestone, 520 U.S. 329, 117 S.Ct. 1353 (1997) was a 42 U.S.C. § 1983 action, brought by five Arizona mothers, some of whom were receiving AFDC benefits, against the director of Arizona's child support agency. They sought (1) a declaratory judgment that Arizona's Title IV-D program violated Federal law that created, in the mothers, rights that were enforceable under Section 1983, and (2) injunctive relief that would require the director to achieve substantial compliance with Title IV-D. Section 1983 imposes liability on anyone who, under color of State law, deprives a person "of any rights, privileges or immunities, secured by the Constitution and laws" of the United States. A plaintiff must assert a violation of a Federal right, not merely violation of a Federal law.

The U.S. Court of Appeals for the Ninth Circuit found that the mothers had enforceable individual rights to have the State's program achieve substantial compliance with requirements of Title IV-D of the Social Security Act, Freestone v. Blessing, 116 F.3d 993 (9^th Cir. 1997). The Supreme Court reversed, in a unanimous opinion, and found that Title IV-D did not give the mothers an individualized Federal right, enforceable in an action under Section 1983, to force the State agency to substantially comply with Title IV-D. Although the Court rejected the 9^th Circuit's "blanket approach" it expressly refused to foreclose the possibility that some provisions of Title IV-D give rise to individual rights. (See, Rodriguez v. DeBruno, 44 F. Supp.2d 601, 610 (S.D.N.Y. 1999)). The Blessing court, in fact, suggested that a custodial parent might have an enforceable right to receive a portion of the money collected on her behalf by the State. In addition, Justice Scalia, joined by Justice Kennedy, suggested that the parents might be able to seek redress as third-party beneficiaries of the Federal-State contract.

The court traditionally looks at three factors when determining whether a particular statutory provision gives rise to a Federal right: (1) Congress must intend that the provision benefit the plaintiff; (2) the plaintiff must demonstrate that the right is not so vague or amorphous that its enforcement would strain judicial competence; and (3) the statute must unambiguously impose a binding obligation on the State, in that the provision giving rise to the right must be couched in mandatory, rather than precatory terms. If a plaintiff demonstrates that the statute creates an individual right, then there is a rebuttable assumption that it is enforceable under Section 1983. Dismissal is proper if Congress forecloses a remedy expressly or by providing an alternate remedy.

Prior to Blessing, courts disagreed as to whether or not the Title IV-D child support provisions created rights which AFDC beneficiaries could enforce by means of a private cause of action. A number of courts found that Title IV-D granted a generalized right to compliance or a general right to have each and every Title IV-D requirement fulfilled. (See, e.g., Brinkley v. Hill, 981 F.Supp. 423 (S.D.W.V. 1997)). Other courts found that, as intended beneficiaries of Title IV-D child support provisions, custodial parents could bring a private cause of action seeking particularized individual relief, such as monetary relief, but could not maintain an action to force general compliance with Title IV-D. (See e.g., Carelli v. Howser, 923 F.2d 1208 (6^th Cir. 1991)).

The Carelli court reasoned that Congress did not intend for a court to carry out comprehensive oversight of a State's Title IV-D child support program since Congress delegated that responsibility to the Secretary of the Department of Health and Human Services. The court, nevertheless, expressly stated that such an action was not forever barred. "It is just delayed pending the outcome of another proceeding…that we feel Congress intended under these circumstances to take precedence." The United States Court of Appeals for the First Circuit similarly found that AFDC recipients could sue the Maine Commissioner of Human Services, under 42 U.S.C.S. § 1983, to compel timely disbursement of pass-through and gap payments, as required by Title IV-D of the Social Security Act, Albiston v. Maine Commissioner of Human Services, 7 F.3d 258 (1^st Cir. 1993).

Other courts held that the child support provisions of Title IV-D did not create individually enforceable rights for AFDC beneficiaries. Such provisions, the courts held, were enacted not for the especial benefit of AFDC families but to benefit society as a whole by recovering welfare payments and reducing the welfare rolls, through establishing and enforcing child support obligations. (See e.g., Wehunt v. Ledbetter, 875 F.2d 1558 (11^th Cir. 1989), per curiam).

Wehunt concerned a suit filed in the United States District Court for the Northern District of Georgia on behalf of AFDC recipients seeking redress under 42 U.S.C. § 1983 and the Administrative Procedure Act for the Georgia Department of Human Resources' failure to operate a statewide child support enforcement program in compliance with Title IV-D requirements. The trial court dismissed the action, pursuant to Rule 12, for failure to state a claim upon which relief could be granted. The court reasoned that: (1) Congress had foreclosed private enforcement of Title IV-D and there was no implied right of action under the statute, and (2) the plaintiffs lacked standing under the APA, Id. at 1562-3. The court gave a great deal of weight to the fact that all of the plaintiffs had assigned their child support rights to the State in exchange for welfare benefits and would have received only nominal amounts if child support had been collected. Thus, the court reasoned, the plaintiffs were injured, not by the State's failure to establish paternity and collect child support, but by the fathers' absence and failure to support their families. The opinion does not indicate whether the outcome would have been different if the plaintiffs had not been welfare recipients, although Judge Clark's dissent suggests that it would.

In the aftermath of Blessing, a number of courts have rejected claims that Federal statutes, such as Title IV-D, give rise to an individual cause of action which can be used to vindicate generalized rights. The courts found that specific provisions of State plans, developed under the Social Security Act, provide private rights of action against State officials under Section 1983. See e.g., Brinkley v. Hill (finding that Title IV-D was intended to provide guidelines to help States improve collections and does not give individuals a Federal right to force a State agency to substantially comply with Title IV-D, but rejecting the child support agency's claim that Congress foreclosed a Section 1983 remedy for specific Title IV-D violations); Charlie & Nadine v. Whitman, 2000 U.S. Dist. LEXIS 774 (D. N.J. Jan. 27, 2000) (finding that Title IV-D does not give individuals a Federal right to force a State agency to substantially comply with its provisions, although plaintiffs could pursue two narrow claims, one for delaying placement on the basis of race, color or national origin, the other on behalf of children involuntarily in State custody who allege that they were denied their due process rights not to be harmed and to receive treatment); Rodriguez v. DeBuono, 44 F.Supp.2d 601 (S.D.N.Y. 1999) (finding that plaintiffs could use Section 1983 to pursue a cause of action to enforce provisions of the Medicaid statute, which required the State to provide comparable assistance to all recipients); Parry v. Crawford, 990 F.Supp. 1250 (D. Nev. 1998) (finding that individuals with conditions related to mental retardation, but not diagnosed as mentally retarded, who allege that they were wrongfully denied Medicaid services, can maintain a § 1983 action against officials of the Illinois Department of Human Resources); Lewis v. Department of Human Services, No. CIV 99-0021 MV/RLP, 2000 U.S.Dist. LEXIS 6025 (D.N.M. Apr. 24, 2000) (finding that plaintiffs with disabilities, who were denied reasonably prompt decisions on access to Medicaid waiver programs could maintain a Section 1983 action); Reynolds v. Giuliani, 35 F.Supp. 331 (S.D.N.Y. 1999) (finding that qualified welfare beneficiaries' allegations that practices at city job centers, such as providing false or misleading information to applicants about their eligibility, arbitrarily denying benefits to eligible individuals, and failing to provide notice of hearing rights, were sufficient to state a viable due process claim under Section 1983); King v. Town of Hemptstead, 116 F.3d 112,114 (2d Cir. 1998) (finding that provisions of the Federal Housing and Community Development Act, which established the objective of providing a suitable living environment for all persons, did not create an individualized right of action); Marie O. v. Edgar, 131 F.3d 610 (7^th Cir. 1997) (finding that disabled infants could bring a class action suit against Illinois State officials alleging that the State was not complying with early intervention requirements of the Individuals with Disabilities Education Act, pursuant to the State plan); Indianapolis Minority Contractors v. Wiley, 1999 U.S.App. LEXIS 18873 (finding that statutes and regulations that simply provide that a State must implement a program and establish certain goals to the satisfaction of the Secretary in order to receive Federal funding and provisions designed to "…guide the State in structuring its system-wide efforts…" may "…ultimately benefit individuals who are eligible for…services," but they are too indirect to give rise to enforceable rights).^[3]

The circuits continue to be divided on the question of whether a Federal regulation, as opposed to a statute, is sufficient to create a Federal right necessary for a Section 1983 suit. Compare, Loschiano v. City of Dearborn, 33 F.3d 555 (6^th Cir. 1994) (holding that a regulation can create a Federal right for purposes of Section 1983) with Smith v. Kirk, 821 F.2d 980, 984 (4^th Cir. 1987) (finding that a regulation cannot create an enforceable Section 1982 right, not already implicit in the applicable statute).

Blessing does not preclude all § 1983 actions against State IV-D child support agency officials for failure to comply with Title IV-D and State plan requirements. It merely bars generalized suits, such as Blessing and Brinkley, and makes it less likely that future courts will attempt to micromanage State child support agencies, as the U. S. District Court for West Virginia did in Brinkley. Blessing requires future claimants to plead with specificity, identifying the specific rights they claim were denied, as did the Albiston claimants.

Tennessee is now facing a new issue. The first case, claiming that the SDU is not functioning properly, was filed in November 1999, Harp et al v. Metcalf, Davidson County Circuit Court No. 99C-3278. At that time, court clerks were returning checks to obligors and not entering them in the system when received. Delays were endemic. The child support agency had placed employees and computer terminals in the courts, but OCSE told them that they could not use child support funds to pay employees to process child support payments in the court house, as State law requires the clerks to do this job. The clerks won't do it, as they are no longer paid 5% for this service.

The number of complaints arising from problems with the SDU has subsided, although the clerks' discontent continues to be a major problem, which Mr. Wilson-Patton states may affect child support cases in the future.^[9] Nevertheless, the SDU case is progressing through the courts. Rather than granting the State's motion to dismiss for failure to state a claim, the trial court granted the plaintiff's leave to amend their complaint. The plaintiff's attorney expanded his team to include two of the attorneys that represent the Davis plaintiffs.

The amended complaint expands the number of named plaintiffs and a Section 1983 class action. The plaintiffs seek certification as a class action and damages including interest for late payments and claim that the State's failure to send regular accountings to obligees that do not receive welfare payments violates the custodial party's Constitutional rights. They request a declaration that due process requires the child support agency to provide regular statements to all clients. Furthermore, the plaintiffs claim that all clients have a constitutional right to a hearing whenever they believe that they have not received adequate service or believe that their statements reflect accounting errors. The State recently filed its Rule 12 motion to dismiss the amended complaint. A hearing on the State's motion and the plaintiff's request for certification as a class action had been scheduled for June 2, 2000.

Lewis v. New Mexico Dep't. of Health, No. CIV 99-0021 MV/RLP, United States District Court for the District of New Mexico, 2000 U.S. Dist. LEXIS 6025, April 24, 2000. (Court denied defendants' motion to dismiss for failure to state a claim, concluding that the Medicaid Act's "reasonable promptness" requirement was judicially enforceable.)

Johnson v. Guhl, 99-Civ.-5403 (WGB), U.S. District Court for the District of New Jersey, 91 F. Supp. 2d 754; 2000 U.S. Dist. LEXIS 4485, April 7, 2000. (Non-applicants lacked standing to challenge State Medicaid policies. Policy changes did not deny applicants' due process. Defects in the application process were being remedied so they threatened no immediate, irreparable harm.)

Mallo v. Public Health Trust of Dade County, No. 99-0064-CIV-LENARD/TURNOFF, U.S. District Court for the Southern District of Florida, Miami Division, 88 F. Supp. 2d 1376; 2000 U.S. Dist. LEXIS 4299, March 31, 2000. (Defendant's motion to dismiss for failure to state a claim was denied. Plaintiff, a Medicaid recipient, was able to show a privately enforceable right and that the defendant, a governmental unit, infringed on that right.)

Conrad v. Perales, 91-CV-846C, U.S. District Court for the Western District of New York, 92 F. Supp. 2d 175; 2000 U.S. Dist. LEXIS 4887, March 24, 2000. (State official enjoyed U.S. Constitution, Amendment XI immunity from liability with respect to almost all Federal court claims against him in his official capacity, but not 42 U.S.C.S. § 1983 claims against him as an individual.)