Albiston v. Maine Commissioner of Human Services

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1137

SUSAN ALBISTON, ET AL.,

Plaintiffs, Appellees,

v.

MAINE COMMISSIONER OF HUMAN SERVICES, ET AL.,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]

Before

Selya, Cyr and Boudin,

Circuit Judges.

Christopher C. Leighton, Deputy Attorney General, with whom

Michael E. Carpenter, Attorney General, and Thomas D. Warren, Deputy

Attorney General, were on brief for appellants.
Mary T. Henderson with whom Patrick Ende, Linda Christ, and Pine

Tree Legal Assistance were on brief for appellees.

September 27, 1993

CYR, Circuit Judge. Plaintiffs-appellees Susan Albis-
CYR, Circuit Judge.

ton and Anita Wingert brought a class action, under 42 U.S.C.

1983, to compel timely disbursement of "pass-through" and "gap"

payments under Titles IV-A and IV-D of the Social Security Act.

Defendants-appellants, in their official capacities,1 challenged

plaintiffs' standing. The district court rejected the challenge.

We affirm.

I

BACKGROUND

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

et seq., creates a voluntary, cooperative federal-state program

for Aid to Families With Dependent Children ("AFDC"). The AFDC

program, administered by participating states, provides federal

financial assistance to needy families with children who are

deprived of parental support through death, disability or deser-

tion. States are not required to participate in the AFDC pro-

gram, but must agree to administer it in accordance with a

federally approved AFDC plan if they elect to participate. King

v. Smith, 392 U.S. 309, 316 (1968).

1The nominal defendants are the Commissioner of the Maine
Department of Human Services, 22 M.R.S.A. 3781, and the Commis-
sioner of the Maine Department of Finance, 5 M.R.S.A. 282-283,
1541. Since the State of Maine is the real party in interest,
however, we refer to defendants-appellants collectively as the
"State," or "Maine." See Stowell v. Ives, 976 F.2d 65, 67 n.1

(1st Cir. 1992) ("Stowell I").

2

In 1975, Congress amended Title IV-A, by requiring AFDC

recipients to assign to the State their "rights to support from

any other person" (including the right to child-support payments

from an absent parent), as a condition to their receipt of AFDC

benefits. 42 U.S.C. 602(a)(26)(A). States in turn were

required to amend their Title IV-A plan, see id. at 602(a)(27),

assuming responsibilities for enforcement of absent parents'

child-support obligations [hereinafter "child-support enforce-

ment," or "CSE"], under a program outlined in a new Title IV-D of

the statute, 42 U.S.C. 451 et seq.2 Among other provisions,

Title IV-D requires States to "pass through" to AFDC recipients

the first $50 of each monthly child-support payment the States

recover from absent parents of AFDC recipients. See id. at

657(b); see also Wilcox v. Ives, 864 F.2d 915, 916-17 (1st Cir.

1988) (discussing origins and statutory background of States'

"pass-through" obligation). Moreover, under Title IV-A, a State

which pays out less in AFDC benefits than a family's predeter-
2In order to monitor State performance under Title IV-D,
mined "level of need" is required to provide supplemental monthly
Congress established an Office of Child Support Supervision
["OCSE"], to which it delegated substantial authority for stan-
payments, drawn from its Title IV-D child-support recovery, up to
dard-setting and administrative review. See 42 U.S.C. 652(a);

see also Carelli v. Howser, 923 F.2d 1208, 1213-15 (6th Cir.

the amount necessary to fill the "gap."3 42 U.S.C. 602(a)-
1991) (comprehensive review of OCSE duties and authority).

3In order to offset expenditures made on the AFDC recip-
ient's behalf, the State may retain any child-support recoveries
from the absent parent above the amount required to fund the
"gap" payments to the AFDC recipient. See 42 U.S.C. 602(a)-

(8)(A)(vi); 657(b) (4). If a family is not receiving AFDC, or if
the child-support recovery raises a family above the minimum
income threshold for AFDC eligibility, the State must "pass
through" the support payment in its entirety. See id. at

657(b), 657(c); see also 45 C.F.R. 232.20(b)(1).

3

(28); see also Stowell v. Secretary of HHS, F.2d ,

(1st Cir. 1993) ("Stowell II") (describing "gap-filling" under

the Act); Doucette v. Ives, 947 F.2d 21, 24-25 (1st Cir. 1991)

(discussing origins and statutory background of "gap" payment

obligation); see generally Wehunt v. Ledbetter, 875 F.2d 1558,

1569-70 (11th Cir. 1989) (per curiam) (Clark, J., dissenting)

(comprehensive analysis of Title IV-D legislative history).

"Gap" payments are considered supplemental AFDC

disbursements under Title IV-A, see Fed. Reg. 29223-25 (August

15, 1988), and must be "furnished with reasonable promptness to

all eligible individuals," 42 U.S.C. 602(a)(10), "without any

delay attributable to the [State] agency's administrative pro-

cess." See 45 C.F.R. 206.10(a)(5). The $50 "pass-through"

payments mandated by 657(b) are disbursed under Title IV-D, not

Title IV-A, and therefore are not covered by 602(a)(10)'s

"reasonable promptness" requirement. However, in 1988, respond-

ing to persistent reports of "long delays [by States] in distrib-

uting child support collections," see Cong. Rec. S7993 (June 16,

1988) (remarks of Senator Bradley), Congress amended Title IV-D,

directing OCSE to establish specific time frames for "prompt"

disbursement of "pass-through" payments by the States. 42 U.S.C.

652(i). Pursuant to its statutory authority, OCSE adopted

regulations requiring "pass-through" payment disbursements to

eligible AFDC recipients, under 42 U.S.C. 657, within fifteen

days of the State's receipt of child-support payments from an

4

absent parent or collecting agency. See 45 C.F.R. 302.32(f)-

(2).4

II

PROCEDURAL HISTORY

Maine participates in the AFDC program as a "gap"

state, i.e., one whose AFDC benefits do not fully meet the AFDC

recipient's designated "level of need."5 Accordingly, Maine

must make "gap" payments, as well as "pass-through" payments, to

eligible AFDC recipients. Plaintiffs Albiston and Wingert are

eligible AFDC recipients who assigned their child-support rights

to Maine under 602(a)(26)(A), but experienced significant

delays (two and six months, respectively) in receiving "gap" and

"pass-through" payments. Alleging "systemic" administrative

deficiencies, plaintiffs brought the present class action for

4The Secretary subsequently amended the 15-day requirement
to provide that the "pass-through" payment may be made within
fifteen days after the month in which payment was due from the

absent parent. See 57 Fed. Reg. 54519 (Nov. 19, 1992). Unless

otherwise indicated, however, we refer to the version in effect
at the time the present action was initiated.

5When this action was brought, the gap between AFDC benefits
and "level of need" for a family of three (one adult and two
children) was $ 199. Maine subsequently reduced its "level of
need," narrowing the "gap" obligation somewhat. Maine's AFDC
"gap," and its later reduction in the "level of need," are
discussed in Stowell I, 976 F.2d at 67, and in Stowell II,

F.2d at [slip op. at 3-4 & n.1].

5

declaratory and injunctive relief under 42 U.S.C. 1983.6

Although Maine disputes the severity of its "systemic"

problems, it acknowledges that "gap payment" disbursements are

delayed in individual cases by a variety of administrative

factors, including inadequate staffing, computer programming

errors, clerical mistakes, and errors caused either by collection

agencies or other states. Maine also acknowledges that, as of

the initiation of this lawsuit, it missed OCSE's 15-day deadline

for processing "pass-through" payments in approximately 66% of

its qualifying AFDC cases. But it argues that Titles IV-A and

IV-D, which require "substantial compliance" on penalty of

cutbacks in federal funding, see 42 U.S.C. 604(a)(2), 603(h),

impose no corresponding, judicially cognizable obligation to make

timely "gap" and "pass-through" payments in individual cases, and

that plaintiffs therefore lack standing to enforce a timely-

6The district court certified Albiston and Wingert as repre-
sentative of a plaintiff class consisting of

all present, former and future AFDC recipients with a
present entitlement to pass-through and gap payments
within the State of Maine:

(a) who have not received or will not receive their
$ 50.00 pass-through payment under 42 U.S.C. 657(b)-
(1) within 15 days of the date the child support from
which the $ 50.00 payment is derived was received by
the State of Maine; and

(b) who have not received or will not receive their
"GAP" payment pursuant to 42 U.S.C. 602(a)(28) by the
month after the month in which the child support pay-
ment from which the GAP payment is derived was received
by the State of Maine.

6

payment obligation in a private action under 1983.7

III

DISCUSSION

The 1983 remedy presumptively encompasses violations

of federal statutory rights by state officials. See Maine v.

Thiboutot, 448 U.S. 1, 4 (1980) (finding private cause of action

under 1983 to enforce rights conferred by Social Security Act).

Nevertheless, certain post-Thiboutot cases, see, e.g., Suter v.

Artist M., 112 S.Ct. 1360 (1992); Pennhurst State Sch. & Hosp. v.

Halderman, 451 U.S. 1 (1981), have been "difficult for lower

courts to reconcile" with the presumptive availability of a

private right of action for statutory enforcement. See Evelyn V.

v. Kings County Hosp. Center, 819 F. Supp. 183, 190 (E.D.N.Y.

1993) (surveying 1983 caselaw from Thiboutot to Suter).

In Golden State Transit Corp. v. Los Angeles, 493 U.S.

103, 106 (1989), and Wilder v. Virginia Hosp. Ass'n, 496 U.S.

498, 508-09 (1990), the Supreme Court synthesized prior case law,

reaffirming the presumptive availability of a 1983 remedy for

violations of federal statutory rights, but articulating several

7The Secretary is charged with conducting periodic audits of
State performance under Title IV-D and has promulgated regula-
tions deeming a State in "substantial compliance" with Title IV-D
provided the applicable statutory requirements are met in 75% of
the cases reviewed in the particular State. See 45 C.F.R.

305.20.

7

broad exclusions.8 First, because "section 1983 speaks in terms

of 'rights, privileges, or immunities, [rather than] violations

of federal law," Golden State, 493 U.S. at 106 (1989) (emphasis

added), private relief is considered unavailable if the federal

statute at issue does not "create enforceable rights." Wilder,

496 U.S. at 519 (citing Wright, 479 U.S. at 423). Whether a

statute creates "enforceable rights"

turns on [A] whether 'the provision in
question was intend[ed] to benefit the
putative plaintiff.' If so, the provision
creates an enforceable right unless it [B]
reflects merely a 'congressional preference'
for a certain kind of conduct rather than a
binding obligation on the governmental unit,
or unless [C] the interest the plaintiff
asserts is 'too vague and amorphous' such
that it is 'beyond the competence of the
judiciary to enforce.'"

Id. at 509 (citations omitted). Second, 1983 may be unavail-

able if "Congress foreclosed [private] enforcement in the enact-

ment" whose enforcement is sought, by providing an alternative,

comprehensive administrative scheme for redressing individual

8The Court in Wilder found a private right to enforce a

Boren Amendment requirement that Medicaid expenses be reimbursed
at rates that a "State finds, and makes assurances satisfactory
to the Secretary, are reasonable and adequate to meet the costs
which must be incurred by efficiently and economically operated
facilities." 496 U.S. at 507. The Court in Golden State upheld

a private right, under 1983, to enforce National Labor Rela-
tions Act provisions against state interference in collective
bargaining procedure. 493 U.S. at 112-13. Both cases cited
approvingly to Wright v. City of Roanoke Redevelopment & Hous.

Auth., 479 U.S. 418, 423 (1987), which upheld a private right to

enforce the Brooke Amendment's statutory directive that public
housing rents incorporate "reasonable" utility rates.

8

plaintiffs' grievances under the statute. Smith v. Robinson, 468

U.S. 1, 10-20 (1981); Middlesex County Sewerage Auth. v. National

Sea Clammers Ass'n, 453 U.S. 1, 20 (1981).

The framework established in Golden State and Wilder

continued to be used for several years in determining whether

1983 permitted a private right of action for the enforcement of

federal "spending" statutes. See, e.g., Playboy Enterprises v.

Public Svce. Com'n, 906 F.2d 25, 32-33 (1st Cir.), cert. denied,

111 S.Ct. 388 (1990) (applying Wilder analysis; upholding private

enforcement of "editorial control" provisions in Cable Communica-

tions Policy Act). Then, the Supreme Court appeared to depart

from this framework in Suter v. Artist M., 112 S.Ct. 1360, where

it considered whether an enforceable private right of action

arose under the "reasonable efforts" provision of the Adoption

Assistance and Child Welfare Act ["AACWA"]. The Suter Court

acknowledged that the AACWA was "mandatory in its terms," in that

it required States to "have a plan approved by the Secretary

which . . . provides that, in each case, reasonable efforts will

be made (A) prior to the placement of a child in foster care, to

prevent or eliminate the need for removal of the child from his

home, and (B) to make it possible for the child to return to his

home." Id. at 1367 (quoting 42 U.S.C. 671(a)(15)). Suter

noted, however, that the States were given "a great deal of

discretion" in defining the terms of their compliance with the

AACWA, since the statute, its legislative history, and the

9

accompanying regulations provided no "further . . . guidance

. . . as to how 'reasonable efforts' [were] to be measured." Id.

at 1368-69. Accordingly, Suter held, Congress intended "to

impose only a rather generalized duty on the State." Id. at

1370. And, this "generalized duty" was too vague to permit an

inference that Congress had intended to "confer upon the child

beneficiaries of the Act a right to enforce the requirement that

the State make 'reasonable efforts' to prevent a child from being

removed from his home, and once removed to reunify the child with

his family." Id. at 1367. Suter's failure explicitly to apply

the framework outlined earlier in Wilder led two dissenting

Justices to assert that the holdings of the two cases were

"plainly inconsistent," and that the Suter majority had "changed

the rules of the game without even minimal justification," in

effect overruling Wilder, sub silentio. 112 S.Ct. at 1371, 1377

(Blackmun, J., dissenting).

In Stowell I, 976 F.2d at 68-70, this court examined

the Suter dissenters' claim that Suter had overruled Wilder.

Stowell I concluded, however, that though Suter "shed new light

on this fuliginous area of the law," it was "much too early to

post epitaphs for Wilder and its kin," and that it was "both

prudent and possible to synthesize the teachings of Suter with

10

the Court's prior precedents." 976 F.2d at 68.9 Revisiting the

issue today, we conclude that Suter left the basic Wilder frame-

work intact, but added a further threshold inquiry, applicable in

cases involving "federal-state funding statutes" enacted pursuant

to the "Spending Clause." See Pennhurst, 451 U.S. at 17-18

(noting special attributes of statutes enacted under Spending

Clause, which assume "the nature of a contract" between state and

federal governments); see also Suter, 112 S.Ct. at 1366 & n.7

(quoting Pennhurst, and noting AACWA's enactment pursuant to

Spending Clause). When federal-state funding statutes enacted

pursuant to the Spending Clause "fail[] to impose a direct

obligation on the States, instead placing the onus of compliance

9 For one thing, Suter offered no analytic

framework to replace the structure erected in
the Court's previous decisions. For another
thing, the Suter Court, while weakening ear-

lier precedents in certain important re-
spects, was careful not to overrule them.
Indeed, the majority relied on those prece-
dents as pertinent authority.

Stowell I, 976 F.2d at 68. Other courts of appeals also have

found Suter reconcilable with "Wilder and its kin." See, e.g.,

Procopio v. Johnson, 994 F.2d 325, 331 n.9 (7th Cir. 1993);

Clifton v. Schaefer, 969 F.2d 278, 283-85 (7th Cir. 1993); Dorsey

v. Housing Auth. of Baltimore, 984 F.2d 622, 631 (4th Cir. 1993).

Some further confirmation of this position may have been offered
last Term, when Justice White, a member of the Suter majority,

cited Suter alongside Wilder and Wright in a dissenting opinion

a juxtaposition which went unremarked by the majority. See

New York v. United States, 112 S. Ct. 2408, 2445 (1992) (White,

J., dissenting) ("we have upheld 1983 suits to enforce certain
rights created by statutes pursuant to the Spending Clause
[citing Wilder and Wright], though Congress must be cautious in

spelling out the federal rights clearly and distinctly [citing
Suter]").

11

with the statute's substantive provisions on the federal govern-

ment, no cause of action cognizable under section 1983 can

flourish." Stowell I, 976 F.2d at 70 (emphasis added).

Viewed in this light, Suter's impact on our 1983

jurisprudence is neither particularly "far-reaching" nor "plainly

inconsistent" with prior precedent. Since Suter, 1983 cog-

nizability in the ambiguous context of shared state-federal

obligations contemplates that the alleged breach of statutory

rights shall have resulted from some impermissible "state ac-

tion," rather than from a mere default in the performance of a

federally-retained obligation. This said, however, two other

aspects of Suter's holding require our consideration.

First, although a congressional intent to create

"enforceable rights" may be presumed simply from the enactment of

a federal statute mandating performance of specific duties, see

Golden State, 493 U.S. at 112-13, a congressional intent to

impose those obligations on participating States may not be

presumed, but must be demonstrated by the 1983 plaintiff.

Suter, 112 S.Ct. at 1367-68. Second, and equally important, in

order to "impose a direct obligation on the States," the plain-

tiff must show that Congress has delineated the obligation

"unambiguously," i.e., with sufficient specificity to permit

States to "exercise their choice [to participate in the statutory

scheme] knowingly, cognizant of the consequences of their partic-

ipation." See Pennhurst, 451 U.S. at 17. A federally-imposed

12

statutory obligation is not enforceable in a private action

against the State under 1983 if its terms are so vague and

generalized that their "meaning will . . . vary with the circum-

stances of each case" so as to be insusceptible to judicial

enforcement. See Suter, 112 S.Ct. at 1368-70; see also Penn-

hurst, 451 U.S. at 17 ("The legitimacy of Congress' power to

legislate under the spending power . . . rests on whether the

State voluntarily and knowingly accepts the terms of the 'con-

tract.' There can . . . be no knowing acceptance if a State is

unaware of the conditions or is unable to ascertain what is

expected of it") (citations omitted).

13

A. A Statute Enacted Under the Spending Power Must
Delegate a Mandatory Duty Directly to the States

We agree with plaintiffs that the challenged statute

and its implementing regulations satisfy Suter's threshold

mandate by imposing reasonably clear, judicially enforceable

obligations directly on the participating States. We begin with

the statutory provisions covering gap payments. Under Title

IV-A, in order to receive federal subsidies under the AFDC

program, a State is obligated to adopt a plan, see King v. Smith,

392 U.S. at 333, which ". . . provide[s] that aid to families

with dependent children shall be furnished with reasonable

promptness." See 42 U.S.C. 602(a) (10)(A) (emphasis added).

Moreover, the State's obligation does not cease once it obtains

initial administrative approval of its plan; even after the

Secretary has given administrative approval, the State must also

"comply substantially with [all] provisions required by section

602(a) . . . to be included in the plan," id. at 604(a)(2). If

a State is not in compliance with the terms of its plan, the

Secretary "shall make no further payments to such State (or shall

limit payments to categories under or parts of the State plan not

affected by such failures)." 42 U.S.C. 604(a) (emphasis

added). Like the "reasonable efforts" requirement in Suter,

these requirements are "mandatory in [their] terms," 112 S.Ct. at

1367. Indeed, then-Justice Rehnquist's Pennhurst opinion quoted

the statutory predecessor to 602(a)(10), including its "reason-

14

able promptness" language, as an example of an "instance[] where

Congress . . . intended the States to fund certain entitlements

as a condition of receiving federal funds, . . . [and] proved

capable of saying so explicitly." 451 U.S. at 17-18. See also,

e.g., Carleson v. Remillard, 406 U.S. 598, 600 (1972) (stating

that 602(a)(10) "places on each State participating in the AFDC

program the requirement that 'aid to families with dependent

children shall be furnished with reasonable promptness to all

eligible individuals") (emphasis added); King v. Smith, 392 U.S.

at 333 (asserting that State of Alabama "breached its federally

imposed obligation [under statutory predecessor to 602(a)(10)]

to furnish 'aid . . . with reasonable promptness to all eligible

individuals'") (emphasis added).

Seemingly no less clear is the delegation to the States

of the Title IV-D mandated obligation to disburse "pass-through"

payments in a timely fashion. Section 654(13) provides that a

State child-support plan must provide, in pertinent part, "that

the State will comply with such other requirements and standards

as the Secretary determines to be necessary." Section 657(b) of

Title IV-D governs the terms under which "amounts collected as

support by a State . . . shall . . . be distributed" by the

collecting State. (Emphasis added.) The 1988 amendments to

Title IV-D require OCSE, as part of its "standards for State

programs," 42 U.S.C. 652(a)(1), to promulgate mandatory regula-

tions which "shall include standards establishing time limits

15

governing the period or periods within which a State must dis-

tribute, in accordance with section 657 of this section, amounts

collected as child-support pursuant to the State's plan." Id. at

652(i) (emphasis added). The OCSE regulations in effect at the

commencement of this litigation provided that

Amounts collected by the IV-D agency on be-
half of recipients of aid under the State's
title IV-A . . . plan . . . shall be distrib-

uted as follows:

(i) . . . When the IV-A agency sends payments
to the family under 302.51(b)(1) of this
part, the IV-D agency must forward any amount

due the family under 302.51(b)(1) to the
IV-A agency within 15 calendar days of the
date of initial receipt in the State of the
first $ 50 of support collected in a month,
or, if less than $ 50 is collected in a
month, within 15 calendar days of the end of
the month in which the support was collected.

45 C.F.R. 302.32(f)(2) (later revised; see 57 Fed. Reg. 54519

(November 19, 1992)) (emphasis added). In addition, a State that

fails to achieve "substantial compliance" with the Title IV-D

requirements, including its 657 distribution obligations and

OCSE's 15-day "promptness" provision, shall have "amounts other-

wise payable . . . reduced." 42 U.S.C. 603(h)(1) (emphasis

added). We conclude that these provisions impose a specific,

definite and mandatory obligation directly on participating

States. See generally Howe v. Ellenbecker, 774 F. Supp. 1224,

1230 (D.S.D. 1991) (considering Title IV-D in light of Pennhurst;

"The language in Title IV-D is mandatory and set[s] out in

specific and definite terms . . . . what states must do to

16

participate in the program"); Behunin v. Jefferson Cty. Dept. of

Social Servs., 744 F. Supp. 255, 258 (D. Colo. 1990) ("The

mandatory language of Title IV-D, and its clear intent to benefit

children and their families[,] distinguish this statute from the

statute considered in Pennhurst"); Carelli v. Howser, 733 F.-

Supp. 271, 276 (S.D. Ohio 1990) (citing 654(13); "the language

of Title IV-D is clearly mandatory rather than precatory," and

creates "specific and definite benefits"), rev'd on other

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

It is the imposition of mandatory obligations directly

on the States, as distinguished from the Secretary, that sepa-

rates the "promptness" obligations under Titles IV-A and IV-D

from the statutory provisions considered in Suter and Stowell I.

In Suter, the Court concluded that the AACWA requirement of

"reasonable efforts" was "mandatory," and "does place a require-

ment on the States," but held that because of its vagueness "that

requirement only goes so far as to ensure that the State have a

plan approved by the Secretary which contains the 16 listed

features." 112 S.Ct. at 1367 (emphasis added). Likewise, in

Stowell I, 976 F.2d at 69, plaintiffs sought 1983 enforcement

of a statutory provision which

simply and forthrightly provides, in haec

verba, that 'the Secretary shall not approve

any State plan for medical assistance' if the
State has reduced AFDC payment levels below
the level prevailing on May 1, 1988. 42
U.S.C. 1396a(c)(1). By its express terms,
section 1396a(c)(1) obliges the federal gov-

17

ernment, in the person of the Secretary of
Health and Human Services not the State
to take action. The statute could scarcely be
clearer.

In the present case, on the other hand, although the

Secretary retains oversight responsibility for monitoring "sub-

stantial compliance" with the State's plan, plaintiffs do not

base their statutory claim on the Secretary's nonperformance of

these oversight obligations, but on the State's separate "com-

pliance" obligations as mandated. And, as discussed in Part D,

infra, the Secretary's oversight responsibilities are neither

incompatible with, nor exclusive of, Congress' imposition upon

the participating State of the direct responsibility for fulfill-

ing its plan obligations to the statute's intended beneficiaries.

Rosado v. Wyman, 397 U.S. 397, 420 (1970); Lynch v. Dukakis, 719

F.2d 504, 511, 512 (1st Cir. 1983).10

B. The State's Obligation Must Be "Unambiguous"

10Although further discussion of this issue is reserved for
Part D, infra, we pause to note one additional point. We do not

read Suter as disturbing the principle, articulated in Wilder and

other cases, that a statute may impose obligations on the States
despite the existence of a parallel administrative scheme for the
enforcement of overall compliance with statutory provisions. See

Wilder, 496 U.S. at 512. Although Suter cited the AACWA's

administrative enforcement mechanisms in passing, to "show that
the absence of a remedy to private plaintiffs under 1983 does
not make the reasonable efforts clause [of the AACWA] a dead
letter," it made clear that its brief discussion of this subject
was intended as an "aside," and not to supplant the more detailed
inquiry required by Smith v. Robinson, supra, and Middlesex

County Sewerage Authority, supra. See 112 S.Ct. at 1368-69 &

n.11.

18

Invoking Suter's requirement that delegated obligations

be not only "mandatory" but "unambiguous," the State raises two

additional arguments concerning the alleged vagueness of the

obligations imposed by Titles IV-A and IV-D. First, the State

argues, the statutory requirement of "substantial" rather than

"total" compliance with a Title IV-D plan, see 42 U.S.C. 602(a)

(27), renders the State's "promptness" obligation under the plan

ambiguous in individual cases, and therefore unenforceable in a

private action under 42 U.S.C. 1983. See Mason v. Bradley, 789

F. Supp. 273 (N.D. Ill. 1992) ("full compliance with the regula-

tions in every case is clearly not required"); Oliphant v.

Bradley, No. 91-C3055, 1992 U.S. Dist. LEXIS 8975, at *23 (N.D.

Ill. 1992) ("had Congress intended to mandate compliance [in

individual cases] with the time frames set out in the regula-

tions, it would have conditioned receipt of federal funds on

total, rather than substantial, compliance") (emphasis add-

ed).11

11But see King v. Bradley, No. 92-C1564, 1993 U.S. Dist.

LEXIS 11041, at *16-17 (N.D. Ill. Aug. 9, 1993), at *17 ("al-
though no individual plaintiff or class of plaintiffs has an
enforceable right or guarantee to be among the 75 percent of
cases that must be handled in conformance with federally regulat-
ed procedures . . . [,] [a]ny plaintiff or class of plaintiffs
that fails to receive services in compliance with federal regula-
tions when the state is running a Title IV-D program which does
not substantially comply with federal procedures does have the
right to sue to enjoin the State to improve its level of confor-
mance until it is in substantial compliance."). In the present
case, the district court's factual findings suggest that Maine
had not achieved "substantial compliance" with the relevant
statutory provision. Compare, e.g., Shands v. Tull, 602 F.2d

19

We think Maine misapprehends the import of the 602(a)

(27) "substantial compliance" requirement in this case. By its

terms, the "substantial compliance" obligation applies only to

the State's compliance with the terms of the State plan itself,

as defined in 42 U.S.C. 654. However, the 15-day compliance

time frame imposed by OCSE under 45 C.F.R. 302.32(f)(2) is not

directly imposed as part of the State's plan, but stems from a

separate statutory provision, 42 U.S.C. 652(i), which specifi-

cally relates the OCSE 15-day regulation to "the period or

periods within which the State must distribute [amounts collected

as child-support], in accordance with section 657 of this sec-

tion." As 657 itself is mandatory, the 15-day compliance

requirement imposed thereunder takes precedence over the more

general "substantial compliance" directive made applicable to the

State's plan by 602(a)(27).

Alternatively, it may be possible, of course, to

construe Maine's "substantial compliance" argument as resting on

the provisions of sections 604(a)(2) and 603(h), which authorize

the Secretary to withhold funds from States which do not "comply

substantially" with Titles IV-A and IV-D. But if this is Maine's

position, it too must fail. For one thing, with respect to the

1156, 1160-61 (3d Cir. 1979) (barring private suit for enforce-
ment of AFDC statute, where State was in "substantial compliance"
with statutory provisions, but indicating that injunctive suits
may be permissible where "agencies have failed to reach even
substantial compliance with statutory standards").

20

Secretary's argument under Title IV-D, 603(h)(3) provides that

"for purposes of section 602(a)(27) of this title, . . . a State

which is not in full compliance with the requirements of this

part shall be determined to be in substantial compliance only if

the Secretary determines that any noncompliance is of a technical

nature which does not adversely affect the performance of the

child-support enforcement program" (emphasis added). More

generally, however, the "substantial" compliance required to

avoid administrative penalties under both provisions is indepen-

dent of, and narrower than, the State's direct obligation to AFDC

recipients. See Wilder, 496 U.S. at 514-15 & n.11 (findings and

assurances to Secretary, prior to plan approval, are separate

from subsequent obligation to comply with assurances). As the

Ninth Circuit has stated, in an analogous context, "[t]he funding

standard [of 'substantial compliance'] is not . . . the measure

of what the regulations require; it is intended to measure how

great a failure to meet those requirements should cause funds to

be cut off." Withrow v. Concannon, 942 F.2d 1385, 1387 (9th Cir.

1991).

Indeed, the AACWA, construed in Suter, also contained a

provision, 42 U.S.C. 671(b), requiring "substantial compliance"

with the terms of the State-presented plan, or face cutbacks in

aid. Although Suter cited this statutory provision for a differ-

ent proposition, 112 S.Ct. at 1368-69 (discussing alternative

"enforcement mechanisms" under the AACWA), the Suter majority

21

nowhere intimated that it thought the administrative requirement

of "substantial compliance" contributed to the ultimate ambigu-

ousness of the States' "reasonable efforts" obligation.

Citing Suter's disapproval of the "reasonable efforts"

provision, Maine also argues that the Title IV-A obligation of

"reasonable promptness," 42 U.S.C. 602(a)(10), is "'too vague

and amorphous,'" placing it "'beyond the competence of the

judiciary to enforce.'" Wright, 479 U.S. at 431-32. Again,

however, Maine misapprehends Suter's holding. A statute is not

impermissibly vague simply because it requires judicial inquiry

into "reasonableness." See, e.g., Wilder, 496 U.S. at 519-20

("reasonable and adequate rates"); Wright, 479 U.S. at 437

("reasonable" utilities allowance); see generally, e.g., Virginia

R. Co. v. System Fed'n No. 40, 300 U.S. 515 (1937) ("whether

action taken or omitted is . . . reasonable [is an] everyday

subjec[t] of inquiry by courts in framing and enforcing their

decrees"). Rather, the relevant question is whether the action

or purpose whose "reasonableness" is commanded has been clearly

delineated and is susceptible of judicial ascertainment. See

Suter, 112 S.Ct. at 1368 (distinguishing Wilder as "set[ting]

forth in some detail the factors to be considered in determining

the methods for calculating rates") (emphasis added). Here, like

the "rates" considered in Wilder, or the utility allowance in

Wright and unlike the "efforts" prescribed, without elabora-

tion, in the AACWA "promptness of payment" presents a straigh-

22

tforward, identifiable standard which we previously have found

readily susceptible of judicial evaluation. Coalition for Basic

Human Needs v. King, 654 F.2d 838, 841 (1st Cir. 1981) (finding

AFDC plaintiffs "likely to succeed" on 1983 claim based on

violation of "reasonable promptness" provisions in 602(a)(10)).

Moreover, to the extent further guidance may be re-

quired to demarcate the contours of reasonable "promptness" in

the Title IV-A context, the regulations promulgated by the

Secretary state that "financial assistance [under the AFDC

program] . . . shall be furnished promptly to eligible individu-

als without any delay attributable to the agency's administrative

process." 45 C.F.R. 206.10(a)(5)(i) (emphasis added). We are

not persuaded by Maine's contention that "the language of the

regulation offers no . . . assistance in determining the differ-

ence between necessary processing time and administrative delay."

Cf. California Dept. of Human Resources Development v. Java, 402

U.S. 121, 133 (1971) (relying on purposes of Social Security Act

to construe statutory requirement that state unemployment compen-

sation programs be "reasonably calculated to insure full payment

of unemployment compensation when due"). Rather, this inter-

pretation plainly equates reasonable "promptness" in furnishing

financial assistance with an absence of delay due to the State's

administrative process. We think it clear, therefore, that the

reference to "delay," considered in context, means "unreasonable

delay," excluding whatever reasonable processing time is required

23

to credit the child-support received, determine the amount of the

gap payment, and issue a check. Cf. Beasley v. Harris, 671

F. Supp. 911, 915-16 (D. Conn. 1987) (similar argument).12

C. Section 1983 Plaintiffs Must Be Intended
Beneficiaries of Delegated Obligations

As we conclude that the relevant Title IV-A and IV-D

provisions satisfy the threshold test under Suter, by directly

delegating to the States an unambiguous statutory obligation to

make reasonably "prompt" payments to AFDC recipients, we turn

next to Wilder's three-part test for determining whether the

statutory "rights, privileges and immunities" afforded AFDC

recipients under the Social Security Act are of a kind Congress

meant to be enforceable under 1983. Since we have determined

that the statutory responsibilities imposed upon the States by

the CSE program are "unambiguous" and "mandatory" within the

meaning of Suter, the second and third parts of the Wilder test,

requiring a similar analysis, seem clearly to be met. According-

ly, the Wilder "enforceable right" determination, "as reconfig-

ured by the neoteric principles announced in Suter," see Stowell

I, 976 F.2d at 68, turns largely on the first part of the Wilder

12We are not suggesting that error-free compliance is likely
to be achieved in administering this program, any more than in
other programs administered by agencies with limited resources.
But this reality does not afford the State a safe harbor merely
because its overall rate of compliance is adequate to avoid the
ultimate program sanction a cutoff of federal funding.
Moreover, if plaintiffs' allegations are to be credited, Maine
falls below even that level of compliance.

24

test: "whether 'the provision in question was intend[ed] to

benefit the putative plaintiff.'" 496 U.S. at 509.

Maine concedes, for purposes of this appeal, that the

plaintiff class is comprised of "intended beneficiaries" of the

requirement that Title IV-D child-support be "promptly" distri-

buted. Although the Eleventh Circuit has held otherwise, see

Wehunt v. Ledbetter, 875 F.2d 1558, 1565-66 (11th Cir. 1989)

(Title IV-D's collection provisions primarily intended to benefit

"the public fisc," not individual claimants, and therefore do not

give rise to enforceable private rights), we accept Maine's

concession, which conforms in any event with the conclusion

reached by most courts that have considered the issue, and with

our prior characterizations of Title IV-D in dictum. See, e.g.,

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

Wehunt; finding that Title IV-D was intended both "to protect

needy families with children [and to protect] the public fisc");

see also Doucette v. Ives, 947 F.2d at 24 (dictum) ("the CSE

program [was] designed both to assist parents in collecting child

support . . . and to reduce state and federal government AFDC

expenditures") (emphasis added); accord, Howe v. Ellenbecker, 774

F. Supp. 1224 (D. S.D. 1991) (same); Behunin v. Jefferson County

Dept. of Social Services, 744 F. Supp. 255, 257-58 (D. Colo.

1990) (same).

D. Congress Must Not Have Expressed Intent
to Preclude Recourse to Private Remedies

25

Maine's final salvo is that Congress preempted private

enforcement actions under Titles IV-A and IV-D by establishing in

the governing statute a comprehensive and exclusive administra-

tive enforcement scheme. Wilder, 496 U.S. at 520-21. The

Supreme Court repeatedly has stated that it "will not lightly

conclude that Congress intended to preclude reliance on 1983 as

a remedy for the deprivation of a federally secured right,"

Wright, 479 U.S. at 423. Accordingly, where a federal statute

erects an administrative scheme for its enforcement, the Court

has required States to demonstrate, "by express provision or

other specific evidence from the statute itself," id., a congres-

sional intent to preclude private enforcement actions. On only

two occasions, however, has the Court found "express preclusion"

of the 1983 remedy. In both instances the challenged statute

itself expressly included remedies permitting private citizens to

compel State compliance with the statutory scheme. Smith v.

Robinson, 468 U.S. 992, 1009-13 (1984) (statute provided indivi-

dualized administrative hearings and judicial review for individ-

ual beneficiaries); Sea Clammers, 453 U.S. 1, 20 (1981) (statute

created "quite comprehensive enforcement scheme," with "many

specific statutory remedies, including the two citizen-suit

provisions").

In the present case, Maine does not claim that Titles

IV-A and IV-D contain express provisions foreclosing private

enforcement actions. Nor does it contend that the statute

26

provides a specific statutory remedy enabling aggrieved AFDC

recipients to obtain redress for wrongfully-delayed payments.

Instead, it argues that "express preclusion" of a private 1983

remedy is demonstrated by the statute's establishment of OCSE;

the grant to OCSE of responsibility for setting and monitoring

standards for "substantial compliance" with the statutory scheme;

and OCSE's administrative responsibility under the statute for

imposing financial sanctions on States whose programs do not

"substantially comply." 42 U.S.C. 652(a).

Although one court of appeals has accepted a similar

argument, finding it unlikely "that Congress intended to occupy

the same ground at the same time and in the same manner as the

Secretary," Carelli, 923 F.2d at 1215-16, we respectfully dis-

agree. In our view, the OCSE administrative enforcement scheme,

authorizing penalties against participating States for "substan-

tial noncompliance," seems intended to protect important federal

interests, including prompt disbursement of federal funds to

needy AFDC recipients as mandated by Congress, by ensuring that

overall performance by the participating State does not fall

below federally-prescribed levels. The private remedy afforded

by 1983, on the other hand, safeguards the individual AFDC

recipient's interests in the timely receipt of the mandated

federal benefits. Though coexistent, at best these interests

overlap imperfectly. For example, a State may avoid coercive

administrative penalties by disbursing "pass-through" and "gap"

27

payments reasonably promptly in 76% of its AFDC cases, while

violating the statutory rights of the other 24% of eligible AFDC

recipients. Cf. Wehunt, 942 F.2d at 1387 ("From the standpoint

of the applicants or recipients who are denied [statutory bene-

fits] within the time mandated by federal regulations, it is no

comfort to be told that there is no federal remedy because the

state is in 'substantial compliance' with the federal require-

ments") (footnote omitted).

Accordingly, the Supreme Court repeatedly has held that

administrative enforcement schemes must be presumed to parallel

the private 1983 enforcement remedy, rather than to "occupy

the same ground" as the State contends. Rosado v. Wyman, 397

U.S. 397, 420 (1970) (Secretary's authority to withhold funds

under 604(a) does not preclude private actions to enforce

individual rights under Title IV-A; "we are most reluctant to

assume Congress has closed the avenue of effective judicial

review to those individuals most directly affected by the admin-

istration of its program"); Howe, 774 F. Supp. at 1230 (rejecting

argument that Title IV-D rights are unenforceable under Sea

Clammers); see also Wright, 479 U.S. at 428 (Secretary's "author-

ity to audit, enforce annual contributions contracts, and cut off

federal funds . . . [are] generalized powers [which] are insuffi-

cient to indicate a congressional intention to foreclose 1983

remedies"); see generally Ashish Prasad, Note, Rights Without

Remedies: Section 1983 Enforcement of Title IV-D of the Social

28

Security Act, 60 U. Chi. L. Rev. 197, 221 (1993) ("without a

1983 remedy, needy families with children are completely

deprived of access to the federal courts to secure child support

enforcement services granted them by Title IV-D"). Indeed,

Wilder suggests that in certain circumstances an administrative

enforcement scheme may even support the finding of a private

right. See 496 U.S. at 514-15 ("If the Secretary is entitled to

reject a state plan upon concluding that a State's assurances of

compliance are unsatisfactory . . . a State is on notice . . . .

[of] the concomitant obligation [to beneficiaries] to adopt

reasonable and adequate rates"). Accordingly, we decline to

disturb the presumption, articulated in Rosado, Wilder and

earlier cases, that the OCSE administrative enforcement scheme

parallels and does not displace the private 1983 enforcement

remedy.

IV

CONCLUSION

We hold that individual AFDC recipients possess stand-

ing to bring a private action against the State, under 42 U.S.C.

1983, to enforce their right to prompt disbursement of their

child-support entitlements under Titles IV-A and IV-D of the

Social Security Act.

The judgment of the district court is affirmed.

29