Harvey v. Shalala

HARRY W. WELLFORD, Senior Circuit Judge,

concurring.

I find this case to involve difficult and sensitive issues of federal/state relationship under a program of federal largesse to aid states in assisting children in very troubled and unsatisfactory home situations. I do not find that the district court erred in concluding:

1. The Agency acted within its statutory authority;
2. It was Congress’ intent to leave compliance methods to the Secretary’s discretion;
3. The Agency information memorandum in controversy was not unreasonable, arbitrary, or contrary to statutory require*1254ments with regard to the necessary content of contemporaneous judicial determinations of “reasonable efforts.”

We should not be misunderstood to indicate that nunc pro tunc orders, providing information required by statute, are necessarily or usually insufficient. The Secretary may, in such eases, look to whether the proposed retroactive change “truly record[s] the action already had.” Application of Andrews, 178 Neb. 799, 801, 135 N.W.2d 712, 715 (1965). Such an order is proper to correct the record of judgment, but not to correct the judgment itself. Clerical errors may be corrected by an order mine pro tunc, but judicial errors may not. Larson v. Bedke, 211 Neb. 247, 256, 318 N.W.2d 253, 258 (1982).

I,accordingly, concur in affirming the district court judgment.