FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STATE OF CALIFORNIA
DEPARTMENT OF SOCIAL SERVICES,
Plaintiff-Appellee,
v.
MIKE LEAVITT, Secretary of Health
and Human Services, No. 06-56136
Defendant-Appellee, D.C. No.
v. CV-99-00355-FCD
ENEDINA ROSALES, OPINION
Plaintiff-Intervenor-Appellant,
LARRY BUGGS; BRENDA BUGGS;
MARY ELLEN DEEGAN; GLORIA
JEFFERSON; SHAWN SPENCER,
Movants-Appellants.
Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, District Judge, Presiding
Argued and Submitted
October 10, 2007—San Francisco, California
Filed April 25, 2008
Before: David R. Thompson, William A. Fletcher, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Berzon
4477
STATE OF CALIFORNIA v. LEAVITT 4481
COUNSEL
Elliot Silverman (argued), David M. Beckwith, and Catherine
Shiang, of McDermott Will & Emery LLP, and Marjorie
Shelvy (argued), Yolanda Arias, and Silvia Argueta, of the
Legal Aid Foundation of Los Angeles, for plaintiff-
intervenor-appellant Enedina Rosales and for the movants-
appellants.
Paul Reynaga (argued), Supervising Deputy Attorney General
of the State of California, Thomas R. Yanger, Senior Assis-
tant Attorney General of the State of California, and Edmund
G. Brown, Jr., Attorney General of the State of California, for
plaintiff-appellee State of California Department of Social
Services.
Jeffrey A. Clair (argued), Barbara C. Biddle, Attorneys, Civil
Division of the United States Department of Justice, McGre-
gor W. Scott, United States Attorney, and Peter D. Keisler,
Assistant Attorney General, for defendant-appellee Mike
Leavitt, Secretary of Health and Human Services.
OPINION
BERZON, Circuit Judge:
In State of California Dep’t of Soc. Servs. v. Thompson,
321 F.3d 835, 856-57 (9th Cir. 2003) (referred to as “Ros-
ales,” after intervenor-appellant Enedina Rosales), we
rejected a U.S. Department of Health and Human Services
(“HHS”) interpretation of the statute determining eligibility
for the Aid to Families with Dependent Children-Foster Care
(“AFDC-FC”) program.1 See 42 U.S.C. § 672. We remanded
to the district court to implement what we held to be the
1
A detailed discussion of the earlier history of this case can be found in
Rosales, 321 F.3d at 838-45. We do not rehearse it here.
4482 STATE OF CALIFORNIA v. LEAVITT
proper interpretation of the statute. The district court subse-
quently issued an injunction against HHS and the California
Department of Social Services (“CDSS”) enforcing the
Rosales eligibility standard. We now consider whether HHS
and CDSS are entitled to relief from judgment due to a statute
enacted after Rosales and whether the district court failed to
respond appropriately in the face of evidence that CDSS may
not have complied with the injunction.
I. Background
On remand, the district court ordered CDSS to provide for
the review of all foster care cases open on or after March 3,
2003, for benefits eligibility under Rosales’s construction of
§ 672.2 CDSS was to pay benefits due “for the entire period,
subsequent to December 23, 1997, in which the child was
entitled to AFDC-FC payments under [Rosales] and was oth-
erwise eligible for such benefits and those payments were not
paid.” New applications were, of course, to be considered
under the statute as construed in Rosales. To begin the pro-
cess, CDSS was ordered to issue an All County Letter to the
county officials who implement its programs, directing them
to review their cases “to determine eligibility in accordance
with [Rosales] and consistent with [the district court’s] judg-
ment.” The review was to be completed no later than April
17, 2005, with benefits paid within 30 days of an eligibility
finding.3
2
The district court filed its first relief order on remand on February 10,
2004. It twice amended the order. The second amended order, filed August
17, 2004, is the one relevant here.
3
The August 2004 Order follows in its entirety:
1. Judgment is hereby entered in favor of the Plaintiff and Plaintiff-
Intervenor for the reasons stated in the opinion of the Ninth Circuit, dated
March 3, 2003.
2. DSS and the Secretary [of HHS] are hereby ordered to comply with
[Rosales].
STATE OF CALIFORNIA v. LEAVITT 4483
Whether CDSS complied with the district court’s August
2004 Order is the question at the core of this case. It is clear
3. The Secretary shall approve the Title IV-E AFDC Foster Care
(AFDC-FC) State Plan Amendment submitted by DSS as of December 23,
1997.
4. For all foster care cases in which dependency jurisdiction was open
on or after March 3, 2003, DSS shall make AFDC-FC payments for the
entire period, subsequent to December 23, 1997, in which the child was
entitled to AFDC-FC payments under [Rosales] and was otherwise eligi-
ble for such benefits and those payments were not paid. For the purposes
of retroactive payments made under this order, foster homes approved on
or after March 3, 2003, shall be considered to have met the federal
approval standards.
5. The Secretary shall reimburse DSS, and the State of California, at the
federal participation rate, for all AFDC-FC benefits paid by DSS pursuant
to the approved Title IV-E AFDC-FC State Plan Amendment.
6. DSS shall issue a directive to all County Welfare Departments and
Chief Probation Officers and other appropriate parties (“All County Let-
ter”) to review all foster care cases open on or after March 3, 2003 to
determine eligibility in accordance with [Rosales] and consistent with this
judgment. Each such case shall be so reviewed during the next regular six-
month review to which the case would be subjected in the normal course
of business, but no later than eight months from the date of the issuance
of this order. DSS shall pay all benefits which are found to be due as a
result of those reviews within 30 days of the determination of eligibility.
7. Within 10 days of this order, DSS shall submit to the Secretary for
approval a draft All County Letter, consistent with the terms of this order.
Within 10 days of receiving the draft All County Letter, the Secretary
shall [either approve the letter or file objections with the court].
8. Upon receiving approval of the All County Letter from the Secretary,
DSS shall issue the All County Letter to all County Welfare Departments
and Chief Probation Officers and other appropriate parties.
9. DSS shall immediately make AFDC-FC payments to [Enedina Ros-
ales] for the entire period, subsequent to December 23, 1997, in which her
grandson was in her care, was a dependent of the court, and AFDC-FC
benefits were not paid.
(The entity which the district court refers to as DSS is the one which in
this opinion we call CDSS.)
4484 STATE OF CALIFORNIA v. LEAVITT
that CDSS did send an All County Letter in September 2004.
But whether any review was conducted, or any benefits were
paid, has not been documented.4 The All County Letter itself
ordered such steps, requiring that all cases “open on March 3,
2003 shall have the broader eligibility criteria applied retroac-
tively,” recommending that counties “immediately review any
case identified as potentially eligible” (emphasis in original),5
and providing two claim forms — one for administrative costs
associated with implementing the district court’s Order and
one for the Rosales payments themselves. According to the
All-County Letter and accompanying forms, counties were to
record, among other details, the amount of the new federal
AFDC-FC payments they were claiming as a result of the
reviews, along with a “persons count” of parties receiving
payments under county, state, and federal programs as a result
of the reviews, and, if the county sought administrative costs,
“the number of Rosales cases” that were shifted into AFDC-
FC payment eligibility after the reviews. Even if a county had
no costs to report, it was still to “complete and certify the
form indicating zero expenditures.” The forms were to be sub-
mitted “no later than April 30, 2005.” The counties were
ordered to “retain all supporting documentation for audit pur-
poses.”
On April 20, 2005, after the mandated review period ended,
Rosales’s counsel wrote to counsel for CDSS to request “a
county-by-county list of the number of cases reviewed, the
number of cases approved, the number of cases denied and
the reason(s) for the denials,” along with “assurance that
4
The only benefits we know have been paid as a result of the August
2004 Order were those paid to Rosales herself for a period of foster care
ending in July 2001, as specifically required by the ninth paragraph of the
Order.
5
In an earlier All County Letter, issued on December 31, 2003, shortly
after Rosales was decided, CDSS opined that, under Rosales, “[m]ost chil-
dren will be eligible for benefits with a needy or non-needy caretaker rela-
tive unless the child has significant income and resources or some other
factor which would make him/her ineligible.”
STATE OF CALIFORNIA v. LEAVITT 4485
every county met the mandated deadline.” CDSS’s counsel
replied on May 11, after the deadlines set by the Order and
by the All County Letter had elapsed, that while “claims data”
had been submitted, the information Rosales’s counsel sought
was “not ascertainable from the claims submitted by the coun-
ties,” that CDSS had “no such data,” and that no “such ‘evi-
dence’ of compliance [was] required by the Court’s order in
Rosales.”
Counsel for Rosales served a Request for Production of
Documents on CDSS the following January, requesting, inter
alia, “All Documents relating, regarding or referring to Your
efforts to comply with [Rosales], including, but not limited to,
all Communications regarding Your compliance efforts”; “All
Documents relating, regarding or referring to all payments by
You to all foster care cases in which dependency jurisdiction
was open on or after March 3, 2003, based on the redetermi-
nation of eligibility in accordance with the [district court’s
order]”; “All Documents relating, regarding or referring to
[the All County Letter]”; “any follow-up communications to
anyone after issuance” of the Letter “regarding [its] subject
matter”; and “All Documents relating, regarding or referring
to the contentions set forth in [CDSS’s counsel’s May 2005
letter] that county-by-county data listing the number of cases
reviewed, the number of cases approved, the number of cases
denied, and the reasons for denial was not ascertainable from
claims submitted by the counties.”
CDSS refused to provide the requested information, in part
because “the discovery requests ha[d] been propounded after
entry of judgment,” and “[i]n the absence of threshold deter-
minations by the Court regarding the existence and scope of
an issue that requires resolution and that discovery is neces-
sary to resolution of any such issue, the discovery requests
[were] premature, unauthorized, and unduly burdensome.”
Rosales did not move to compel discovery. See Fed. R. Civ.
P. 37(a).
4486 STATE OF CALIFORNIA v. LEAVITT
On February 8, 2006, Congress passed the Deficit Reduc-
tion Act of 2005 (“DRA”), which, among other effects,
amended § 672 to foreclose the statutory construction set
forth by Rosales. Pub. L. No. 109-171, § 7404-05, 120 Stat.
4, 151-55 (2006). In March, CDSS issued an All County Let-
ter directing that the “counties must immediately ‘track’ all
Rosales cases, for which federal foster care benefits were paid
starting on October 1, 2005, and thereafter until clarification”
on the effects of the statute was received from the district
court and HHS. Not long afterward, both HHS and CDSS
moved under Rule 60(b) for relief from judgment based on
the DRA. While the motions were pending, on June 9, 2006,
HHS directed that the DRA’s eligibility provision should be
implemented on a rolling basis: As cases came up for annual
eligibility reviews, children previously receiving benefits
under Rosales but now ineligible under the DRA would have
their benefits terminated.
Rosales cross-moved to enforce the judgment, joined in a
separate motion by five other foster caregivers.6 In Rosales’s
motion, she requested “[t]hat the Court authorize limited dis-
covery for the purpose of ensuring complete and effective
compliance with this Court’s judgment.” Along with the
motion, she included CDSS’s response, quoted above, declin-
ing to provide the requested discovery. Also accompanying
Rosales’s motion was a declaration by her counsel, Marjorie
Shelvy, stating that, after the judgment on remand, Shelvy had
represented more than a dozen AFDC-FC claimants who had
been denied benefits “in direct contravention [of] the Rosales
decision.” Rosales declared that she had not received pay-
ments she believed she was entitled to for a recent period of
foster care. The five other foster caregivers also supplied dec-
larations that they had been denied benefits owed to them.
6
The other caregivers brought their motion under Fed. R. Civ. P. 71,
which provides that “[w]hen an order grants relief for a nonparty or may
be enforced against a nonparty, the procedure for enforcing the order is the
same as for a party.”
STATE OF CALIFORNIA v. LEAVITT 4487
The motions to enforce the judgment, relying upon
Shelvy’s declaration and upon the individual cases of the
movants, argued that CDSS had not complied with the judg-
ment. Rosales charged that CDSS had a “policy of ignoring
[the district court’s] judgment,” and had “continued to apply
the old, pre-Rosales legal standard” in at least the dozen cases
referred to in Shelvy’s declaration, as well as in her own case.
The other caregivers similarly argued that CDSS “continues
to ignore [the district court’s] judgment compelling compli-
ance with [Rosales]” and that “CDSS continues to deny
proper review [of] open benefit cases and denies benefits to
foster care families” entitled to benefits under the Rosales
standard, including in their own cases. Rosales asked, at a
minimum, that the court ensure that “all claims for past due
benefits be reviewed consistent with [the court’s] prior judg-
ment . . . and past due benefits be promptly paid.” In this
regard, in their consolidated reply in support of their motions
to enforce the judgment, Rosales and the other caregivers
argued that “[l]imited discovery is necessary in order to learn
what the CDSS and the Counties did to implement the Court’s
judgment, as well as what the State decided to forego in
enforcing the judgment.”
As one way of protecting claimants’ rights and of gathering
reliable compliance data, Rosales and the other caregivers
also asked that the court require CDSS to provide Notices of
Action (“NOAs”), which are formal statements of the agen-
cy’s benefits decision, to all AFDC-FC program applicants
who had been denied benefits before Rosales and who were
again denied during the review. See CAL. DEP’T OF SOC.
SERVS. MANUAL OF POLICIES AND PROCEDURES § 22-071
(describing notice requirements). Rosales also opposed grant-
ing relief from judgment with regard to parties receiving, or
entitled to receive, benefits under Rosales, arguing that such
relief would be an impermissibly retroactive application of the
DRA.
4488 STATE OF CALIFORNIA v. LEAVITT
The district court granted CDSS and HHS relief from judg-
ment as of June 9, 2006, the date of HHS’s directive concern-
ing the implementation of the DRA, forward. The court
largely denied the motions to enforce the judgment.7 Looking
for evidence of noncompliance in the denial of benefits to
Rosales and the other caregivers, the district court held that in
three of the cases “the materials submitted indicate that the
child was not entitled to AFDC-FC benefits,” and that in the
remaining two cases the evidence was “insufficient to deter-
mine whether the parties are eligible for AFDC-FC benefits.”8
The court also opined that “if [CDSS] wrongly denied AFDC-
FC benefits in two or potentially five individual cases, this
showing is insufficient to demonstrate that [CDSS] has failed
to comply.” Not mentioning Shelvy’s declaration indicating
that CDSS had failed to apply Rosales in more than a dozen
cases, the district court concluded that “neither Rosales nor
[the other caregivers] have provided any evidence that
[CDSS] has not complied with the court’s order.” The court
refused to require NOAs, as they were not “explicitly require-
[d]” by its Order. The court did not expressly discuss the
request to authorize discovery, but also did not order discov-
ery, thereby implicitly denying the request.
Rosales and the other caregivers timely appealed. They
argue that (1) relief from judgment should not have been
granted with regard to claimants who received, or were enti-
tled to, benefits under Rosales before the passage of the DRA,
because such relief would impermissibly apply the DRA
7
The district court did grant the motions to enforce the judgment in one
respect, not at issue here: In its March 2006 All County letter, CDSS
directed its officers immediately to implement the DRA. The court held
that CDSS should not have so directed without first seeking relief from the
injunction and therefore set the June date, which was after the motions for
relief from judgment were filed, as the trigger date for relief from judg-
ment.
8
Although there are six caregivers on the motions — Rosales and five
others — two of the caregivers are a couple. As a result, there were only
five foster care cases in the record before the district court.
STATE OF CALIFORNIA v. LEAVITT 4489
retroactively; (2) the district court should require NOAs for
parties who were ineligible pre-Rosales and who were still
deemed ineligible after the court-ordered review; and (3) the
court should at least require CDSS to “provide verification of
its compliance with the Rosales decision, including (i) the
number of cases reviewed, (ii) the number of cases denied
pursuant to the review, and (iii) the number of cases approved
pursuant to the review.”
II. Analysis
A. Standard of Review
We review the grant or denial of Rule 60(b) motions for
relief from judgment, as well as the grant or denial of motions
to enforce injunctions, for abuse of discretion. See United
States v. Asarco, Inc., 430 F.3d 972, 978 (9th Cir. 2005) (Rule
60(b) motions are reviewed for abuse of discretion); Paulson
v. City of San Diego, 294 F.3d 1124, 1128 (9th Cir. 2002) (en
banc) (same for decisions concerning enforcing injunctions).
A denial of a request for discovery is also ordinarily
reviewed for abuse of discretion. Hallett v. Morgan, 296 F.3d
732, 751 (9th Cir. 2002). Here, however, because the district
court only implicitly denied the request to authorize discov-
ery, it did not exercise its discretion. See Garrett v. City and
County of San Francisco, 818 F.2d 1515, 1518 n.3 (9th Cir.
1987). In the Rule 56(f) context, where “the district court did
not exercise its discretion [concerning ordering discovery],
the issue of whether or not it should have presents a legal
question which is subject to de novo review.” Garrett, 818
F.2d at 1518 n.3; see also Clark v. Capital Credit & Collec-
tion Servs., Inc., 460 F.3d 1162, 1178-79 (9th Cir. 2006).9 The
9
At times we appear to have passed directly on the merits of such dis-
covery requests when affirming a district court’s implicit denial. See Mar-
golis v. Ryan, 140 F.3d 850, 853-54 (9th Cir. 1998) (considering the
“merits of the motion”); Kennedy v. Applause, Inc., 90 F.3d 1477, 1482
4490 STATE OF CALIFORNIA v. LEAVITT
district court’s failure here to exercise its discretion by
addressing the merits of the request to authorize discovery
before considering whether to enforce its judgment presents
an analytically identical question. We therefore review de
novo whether the district court should have addressed the
merits of the request.
B. Motions for Relief from Judgment
[1] Turning to the merits, we first address CDSS’s and
HHS’s motions for relief from judgment. We cannot say that
the district court abused its discretion by granting the relief
requested — namely, allowing CDSS and HHS to use the eli-
gibility standard mandated by the DRA for all cases going
forward. The DRA removed the legal basis for the continuing
application of the court’s Order.10 A “change in law” of this
type “entitles petitioners to relief under Rule 60(b)(5).” Agos-
tini v. Felton, 521 U.S. 203, 237 (1997).
Rosales and the other caregivers nonetheless argue that
CDSS and HHS are implementing the DRA “retroactively” by
applying it to existing AFDC-FC benefits cases. This pur-
(9th Cir. 1996) (“affirm[ing] the district court’s implicit denial” of a dis-
covery request because the appellant identified “no potential evidence that
would support her claim”); Qualls v. Blue Cross of California, 22 F.3d
839, 844 (9th Cir. 1994) (determining that a motion was “properly
denied”). So far as we are aware, however, there is no case addressing the
merits of a discovery request and reversing a district court’s failure to
order discovery. We need not now decide when such a reversal would be
appropriate.
10
HHS disputes the standing of Rosales and the other caregivers to chal-
lenge the application of the DRA, as the district court held that none of
them had proved that they were entitled to benefits in the future. We agree
with the district court that Rosales and the other caregivers have standing
as to this question. Several of them have not yet received final benefits
decisions, and the application of the DRA may be dispositive in their
cases.
STATE OF CALIFORNIA v. LEAVITT 4491
ported “retroactive” application, they argue, is impermissible.
We disagree.
[2] There is, in the first place, no per se rule barring retro-
active application of statutes, although retroactive application
is generally disfavored. See Landgraf v. USI Film Products,
511 U.S. 244, 280 (1994). More importantly, the DRA is not
being applied “retroactively” in the sense contemplated by
Landgraf. The statute does not “impair rights a party pos-
sessed when he acted, increase a party’s liability for past con-
duct, or impose new duties with respect to transactions
already completed.” Id. AFDC-FC beneficiaries have no right
to continued payments based on their past eligibility. Con-
gress’s power to define the scope of statutory entitlements
going forward is plenary. See Bowen v. Gilliard, 483 U.S.
587, 598 (1987). The district court therefore did not abuse its
discretion by allowing the agencies to implement the DRA as
Congress intended.
C. Motions to Enforce the Judgment
We next consider the motions to enforce the judgment,
addressing both the NOA and discovery issues.
1. The NOAs
[3] We first conclude that the district court did not abuse
its discretion by declining to require CDSS to provide NOAs
to previously ineligible parties who remained ineligible after
the court-ordered review. The August 2004 Order, issued after
substantial opportunity for comment by the parties, did not
require NOAs in such circumstances.11 NOAs might well have
11
We note that, under the state regulations governing NOAs, it is not
clear whether denial of benefits to a previously ineligible party after court-
ordered review would be considered a new benefits decision, requiring an
NOA, or simply a continued denial, which apparently would not require
an NOA. See CAL. DEP’T OF SOC. SERVS. MANUAL OF POLICIES AND
PROCEDURES § 22-071 (notice requirements). We need not, however,
resolve the question. As the judgment itself is silent on NOAs, any error
in applying state law is not a violation of the judgment.
4492 STATE OF CALIFORNIA v. LEAVITT
served a useful notice function, as Rosales and the other care-
givers argue. But that potential utility does not convert the
district court’s refusal to import an NOA requirement into its
judgment after the fact into an abuse of discretion.
2. The Request to Authorize Discovery
As part of her motion to enforce the judgment, Rosales
requested permission to engage in limited discovery. The
request was tailored to determining whether reviews had
occurred as ordered and whether claimants eligible under Ros-
ales were, in fact, paid retroactive benefits for the period
before the DRA was given effect. Although the district court
opined that there was not “any evidence” that CDSS was not
in compliance, it did not directly address the question whether
discovery should have been allowed, as requested, to develop
admissible evidence regarding compliance. We conclude on
de novo review that the district court should have addressed
the merits of the request to authorize discovery before deny-
ing the bulk of the motions to enforce the judgment.
[4] In so determining, we begin from the recognition that
“[t]here is no question that courts have inherent power to
enforce compliance with their lawful orders through civil con-
tempt.” Shillitani v. United States, 384 U.S. 364, 370 (1966)).
Here, Rosales requested limited discovery to aid the court in
determining whether CDSS had complied with a judgment in
her favor. The request was one the district court could have
granted, as part of its inherent power to enforce its judgments.
Cf. Richmark Corp. v. Timber Falling Consultants, Inc., 937
F.2d 1444, 1449 (9th Cir. 1991) (referencing post-judgment
discovery); Wilkinson v. FBI, 922 F.2d 555, 556-58 (9th Cir.
1991) (same), abrogated on other grounds by Kokkonen v.
Guardian Life Ins. Co. of America, 511 U.S. 375 (1994); Flo-
res v. Arizona, 480 F. Supp. 2d 1157, 1159-60 (D. Ariz.
2007). See also, e.g., Natural Gas Pipeline Co. v. Energy
Gathering, Inc., 2 F.3d 1397, 1408-09 (5th Cir. 1993) (dis-
cussing the inherent power to order discovery and various
STATE OF CALIFORNIA v. LEAVITT 4493
exercises of that power); cf. Fed. R. Civ. P. 69(a)(2) (permit-
ting discovery “[i]n aid of the judgment or execution” for
money judgments).
[5] Indeed, a district court should give careful attention to
a request for discovery to establish noncompliance with one
of its judgments. Hallett, which is, as far as we can determine,
the only case of this court to address a failure to allow discov-
ery concerning noncompliance with a judgment, demonstrates
as much. That case concerned a civil contempt motion for
noncompliance with a prison reform consent decree, filed
along with a motion to compel discovery. 296 F.3d at 739,
751. The district court held an evidentiary hearing on compli-
ance, id. at 739, and further reviewed the materials subject to
the discovery request in camera, determining them to be
“minimally relevant,” before denying the discovery motion,
id. at 751. In that context, where evidence of compliance and
noncompliance had been throughly aired and the remaining
evidence was barely relevant, denying further discovery was
not an abuse of discretion. See also, e.g., Fehlhaber v. Fehl-
haber, 664 F.2d 260, 263 (11th Cir. 1981) (finding no abuse
of discretion in a Rule 69 case where the district court denied
the request after conducting a “full adversary hearing” and
entering an injunction providing relief to the movant). Here,
however, there is no indication that the district court
addressed the discovery issue at all, much less with similar
care.
[6] Given the posture of this case, we decide only whether
the district court should have exercised its discretion by
addressing the merits of the request to authorize discovery.
When answering the parallel question in the Rule 56(f) con-
text, we bear in mind that “summary judgment should not be
granted while [an] opposing party timely seeks discovery of
potentially favorable information.” Clark, 460 F.3d at 1178
(quotation marks and citation omitted). To decide whether a
district court should have addressed such a request on the
merits, we therefore ask only whether the discovery request
4494 STATE OF CALIFORNIA v. LEAVITT
could have “provided potentially favorable information,” id.
at 1178 (internal quotation marks omitted), rendering sum-
mary judgment inappropriate. See also Qualls v. Blue Cross
of California, 22 F.3d 839, 844 (9th Cir. 1994) (considering
whether discovery would “have shed light on any of the issues
upon which the summary judgment decision was based”).
[7] We hold that a similar analysis applies in the context of
a motion to enforce a judgment. When considering whether to
permit discovery prior to resolution of such a motion, the kind
and amount of evidence of noncompliance required to justify
discovery is, necessarily, considerably less than that needed to
show actual noncompliance. If significant questions regarding
noncompliance have been raised, appropriate discovery
should be granted.12 And, just as a 56(f) movant need only
show that his or her discovery request could have “provided
potentially favorable information,” Clark, 460 F.3d at 1178
(internal quotation marks omitted), to warrant a remand on
appeal for a merits consideration of the discovery request, so
a movant who requested permission to engage in discovery as
part of a motion to enforce a judgment need only show on
appeal that the request might have generated information that
could raise significant questions concerning compliance.
[8] Here, that standard is abundantly met. Information
already present in the record raises questions of noncompli-
ance, quite possibly sufficient to justify granting the request
to authorize discovery. See Garrett, 818 F.2d at 1519 n.4
(“Without passing on the merits of plaintiff’s discovery
motion (a matter which should be addressed first by the dis-
trict court), we note that the motion, on its face, does not
12
Compare H. K. Porter Co. v. Goodyear Tire & Rubber Co., 536 F.2d
1115, 1122 (6th Cir. 1976) (approving a district court’s decision to deny
a request for post-judgment discovery arising from a fraud on the court
claim, and noting that “[t]o permit discovery after judgment in addition to
the extensive discovery ordered during the trial . . . it was at least neces-
sary for the [defendant requesting discovery] to present some proof to
establish its . . . charges [of fraud].”).
STATE OF CALIFORNIA v. LEAVITT 4495
appear to be entirely without merit.”). That information was
certainly sufficient at least to require the district court directly
to address the merits of the request. We set out the pertinent
information here, both to demonstrate that the request to
authorize discovery warranted careful consideration and to
provide some guidance to the district court as it considers
whether to permit limited discovery on remand:
[9] First, as noted, Rosales’s counsel, an experienced
AFDC-FC benefits attorney, reported that in at least twelve
cases she had handled after the judgment on remand, officials
were still using pre-Rosales eligibility requirements.
[10] Second, after the court-ordered eligibility review was
supposed to have been completed, CDSS stated that it did not
have the data Rosales’s counsel had requested demonstrating
that the review had occurred. But the All County Letter,
required by the August 2004 Order, directed the filing of
detailed claims forms with CDSS by April 30, 2005. Even
counties bearing no costs were directed to “complete and cer-
tify the form indicating zero expenditures.” So, if any pay-
ments were made pursuant to Rosales, at least some pertinent
data — namely, the number of people receiving payments as
a result of the reviews and the number of Rosales cases for
which AFDC-FC administrative costs were sought after the
reviews — should have been available from the forms. Also,
additional information should have been retained by the coun-
ties and available to CDSS, as the counties were ordered in
the All County Letter to “retain all supporting documentation
for audit purposes.” The record reflects that CDSS nonethe-
less maintained that the data was “not ascertainable from the
claims submitted by the counties,” that CDSS had “no such
data,” and that it had no obligation to collect evidence of com-
pliance. The report of a complete information vacuum when
some information should have been available or obtainable is
itself indicative of possible noncompliance with the judgment.13
13
At the time of the district court’s ruling, additional compliance infor-
mation should have been available as a result of CDSS’s March 2006 All
4496 STATE OF CALIFORNIA v. LEAVITT
It is significant in this regard that CDSS, in both the district
court and this court, insisted that it bore no direct responsibil-
ity under the judgment to make sure that eligible applicants
are paid. Instead, CDSS has consistently maintained that it
was required only to issue directives to the counties to review
files and to make retroactive benefits payments to eligible
applicants, and then to pay for whatever benefits the counties
determined were due. In fact, the August 2004 Order imposes
an obligation on CDSS itself to pay retroactive Rosales bene-
fits to all eligible applicants. The Order provides that, “[f]or
all foster care cases in which dependency jurisdiction was
open on or after March 3, 2003, [CDSS] shall make AFDC-
FC payments for the entire period subsequent to December
23, 1997, in which the child was entitled to AFDC-FC pay-
ments under [Rosales] and was otherwise eligible for such
benefits and payments were not paid.” As the Order did not
make that independent obligation delegable, CDSS was
obliged to comply with it, whether or not the counties carried
out the responsibilities placed upon them by the All County
Letter, and to develop or obtain the information needed to do
so. That CDSS has such a fundamental misunderstanding of
the Order is itself suggestive of noncompliance, and could
thus provide an additional basis for further inquiry into what
the agency did to comply with the judgment, other than send-
ing out the All County Letter.14
[11] Third, the district court recognized that two of the five
cases of the moving caregivers might have ended in a wrong-
ful benefits denial, but, after finding the evidence submitted
insufficient to determine whether they did or not, opined that
“if [CDSS] wrongly denied” benefits in “two or potentially
County Letter. That Letter, as we have noted, ordered the counties to “im-
mediately ‘track’ all Rosales cases, for which federal care benefits were
paid starting on October 1, 2005, and thereafter.”
14
At oral argument, counsel for CDSS could not assure this Court that
any benefits had been paid as a result of the court-ordered review.
STATE OF CALIFORNIA v. LEAVITT 4497
five cases,” it could still be in compliance with the court’s
Order. CDSS, however, was, as we have noted, ordered to pay
retroactive benefits for “all foster care cases . . . open on or
after March 3, 2003” (emphasis added) in which the child was
eligible under Rosales. So, a failure to pay in “two or poten-
tially five cases” would be indicative of noncompliance. Nota-
bly, the district court could not, and did not, conclude from
the record that these two cases did not meet eligibility require-
ments.
Fourth, it is noteworthy that in refusing to respond to the
request for production of documents that could have illumi-
nated its compliance record, CDSS relied on the fact that the
district court had not authorized post-judgment discovery. It
should therefore have been clear to the court that Rosales and
the other caregivers could not come forward with further evi-
dence of noncompliance without an order authorizing discov-
ery.
[12] In sum, Rosales appears to have a strong case for fur-
ther discovery, although we need not now decide the merits
of that question. See Clark, 460 F.3d at 1178. It is at least
clear that, given the indications of noncompliance, and given
that Rosales has made some specific discovery requests and
thereby indicated the nature of the discovery sought, the dis-
trict court should not have implicitly denied the request to
authorize discovery without any merits consideration of the
request.
[13] We therefore reverse the district court’s denial of the
motions to enforce judgment filed by Rosales and the other
caregivers insofar as the court failed to address the request to
authorize discovery, and remand for consideration of the
request in light of this opinion.15 We affirm the Order granting
15
On remand, the district court could appropriately decide to allow dis-
covery directed towards determining what steps, if any, CDSS took to
ascertain which children were “entitled to AFDC-FC payments under
4498 STATE OF CALIFORNIA v. LEAVITT
relief from judgment prospectively from June 9, 2006, and the
refusal to require that CDSS issue NOAs.
If the district court allows discovery and that discovery pro-
vides evidence of noncompliance, Rosales and the other care-
givers may, of course, renew their motions to enforce the
judgment as appropriate.
The parties shall bear their own costs.
AFFIRMED in part, REVERSED in part, and
REMANDED.
[Rosales]” and so should have been paid by CDSS under the terms of the
judgment; whether all eligible applicants were in fact paid benefits pursu-
ant to the judgment; and whether CDSS received the information from the
counties required by the All County Letter and, if so, what that informa-
tion conveys regarding the reviews conducted, the determinations made,
and the benefits paid.