dissenting:
I respectfully dissent.
Congress lodged power in the Secretary of Health and Human Services, and qualified that power by requiring the Secretary to negotiate with the state governments regard*1157ing the terms of its exercise. There is nothing in the law to prevent Governors, Senators and Representatives from telephoning the Secretary to discourage her from overzealous enforcement, which in their view would take too much money away from other important applications.
By creating a private right of action, the majority transfers the power to calibrate the intensity of enforcement efforts from political officials to federal judges. Unlike the Secretary, their decisions cannot be made in a political process, informed by considerations of cost, benefit, and competing claims for money. The people who are to be heard in district court are the lawyers for the parties, not elected officials. Transferring decision making power to the judiciary would be appropriate if there were some law to be enforced for the benefit of a claimant. But there is not. The law at issue says, in substance, that states are supposed to try pretty hard, and do a pretty good job, of enforcing child support, and come up with a plan to try harder if the Secretary thinks they have not been trying hard enough.
What this lawsuit seeks to accomplish is to lodge the power to decide if the states are trying hard enough, and whether their plans to try harder are good enough, in federal judges instead of the Secretary of Health and Human Services. That is contrary to what Congress did. If plaintiffs win the injunction they seek, then probably the district judge will, if the case is handled like many agency continuing injunction cases, appoint a standing master to supervise enforcement. The master will recommend to the district judge how many attorneys and investigators the attorney general should hire and how rapidly the assistant attorneys general should conclude each step of a ease. The state will be required to spend however much money it costs to do what the district court decides would achieve “substantial compliance.”
The district judge, unlike the state legislature, will not be balancing the child support enforcement unit’s requests for money against the requests for money of all the other state agencies. Nor will the judge consider taxpayers’ preferences for keeping more of their money. The judge’s audience will be the legal services lawyers, the assistant state attorneys general, and the judges on our court. That is a different audience, presenting different pressures and incentives, from the elected officials of the state, the federal officials, and the state electorate.
Our analytic task is to reconcile Suter v. Artist M., 503 U.S. 347, 348-54, 112 S.Ct. 1360, 1363-65, 118 L.Ed.2d 1 (1992), with Wilder v. Virginia Hospital Association, 496 U.S. 498, 500, 110 S.Ct. 2510, 2513, 110 L.Ed.2d 455 (1990), and apply the principles of those eases to the statute in this case. In Suter, Congress had provided for federal reimbursement to state foster care and adoption programs. A class action claimed that the state was not making reasonable efforts to prevent removal of children from their families and reunite families after children had been removed, because not enough caseworkers were assigned. The district court, on behalf of the private claimant class, enjoined the state to assign a caseworker to each child within three working days, and the court of appeals had affirmed. Suter, 503 U.S. at 348-54, 112 S.Ct. at 1363-65 (1992).
The Supreme Court reversed in Suter, on the ground that private individuals had no right to sue for enforcement of the statute. Id. at 363, 112 S.Ct. at 1370. The Court assumed that the children were intended beneficiaries of the statute. Id. at 357, 112 S.Ct. at 1367. The Court held that the “reasonable efforts” standard in the act did not “unambiguously confer” enforceable rights. Even if the statutory enforcement mechanism were not so comprehensive as to allow no room for private remedies, the scheme “does not make the reasonable efforts clause a dead letter” without a private remedy. The states had no statutory duty to do anything more than submit a plan for approval of the Secretary of Health and Human Services. Id. at 359-62, 112 S.Ct. at 1368-69.
Our case is like Suter. The “substantial compliance” standard does not “unambiguously confer” enforceable rights on any individual. The federal standards are for such matters as rates of identification of noncustodial parents of illegitimate children and ra-*1158tíos of staff to caseload in state agencies.1 Congress, by the use of the word “substantial,” expressly provides that enforcement need not be 100%. The formulas in the statute and regulations are exceedingly complex, but generally provide for percentages, such as 75%, and say that if the state does what it is supposed to do 75% of the time, that is good enough. See 42 U.S.C. §§ 602(a)(27), 652(g); 45 C.F.R. § 305.20(d)(2). The number and elaborateness of the provisions necessarily makes the decision about whether compliance is “substantial” a highly discretionary one. See 42 U.S.C. § 652(g)-(h); 45 C.F.R. §§ 305.21, 305.24, 305.98. No custodial parent can say, under this statute, “Congress gave me a right to have the state do something in my ease which it is failing to do.” Even if the state substantially complied, one out of four custodial parents would find herself or himself within the unfortunate 25%.
Our ease is also like Suter in that the statute does not become a “dead letter” without private enforcement. The Secretary has the power to take away enormous amounts of money from states which do not do what she says. It is also like Suter in that Congress provided that even if the state is not in “substantial compliance,” it need not achieve “substantial compliance” to keep the money. The state need only satisfy the Secretary that its “corrective action plan” is “sufficient to achieve substantial compliance.” 42 U.S.C. § 603(h); 45 C.F.R. § 305.99. The State governments have no reason to suppose, from the text of the statute, that they have to satisfy federal judges as well as the Secretary of Health and Human Services with their child support collection procedures, or else lose AFDC money.
Wilder is not like the case at bar. In Wilder; the federal money at issue was going to private health care providers, not, as in the case at bar, to state governments. Wilder, 496 U.S. at 500, 110 S.Ct. at 2513 (1990). Congress said that the amount had to be “reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities.” Id. (citing 42 U.S.C. § 1396a(a)(13)(A)). The Virginia Hospital Association sued for an injunction to require higher rates, claiming that they were being paid too little money per day. If they won, the practical effect, unlike the case at bar, would be that the plaintiffs would get more money.
The Supreme Court held in Wilder that the health care providers could sue for enforcement under section 1983, because they were a class meant to be benefitted by the statute, and the right was not so “vague and amorphous such that it is beyond the competence of the judiciary to enforce.” Wilder notes that lack of a private remedy would render the scheme “essentially meaningless,” “a dead letter” Id. at 509-15, 110 S.Ct. at 2517-20 (internal quotations omitted); cf. Su*1159ter, 503 U.S. at 359-61, 112 S.Ct. at 1368-69 (“absence of a remedy to private plaintiffs under § 1983 does not make the reasonable efforts clause a dead letter”). The Secretary had “limited oversight,” so would not be assuring that the rates were adequate. The state administrative procedure allowed health care providers to challenge only their individual payments, not the method by which the rates were determined. These limitations would make the statutory rate standard, “reasonable and adequate to meet the costs,” a “dead letter” if the private right of action were not allowed. Id.
Evidently legal services offices around the country have been bringing test cases like the one at bar in numerous circuits, and have won some and lost some. The Eleventh and Sixth Circuits have held that the statute does not create a private cause of action. Wehunt v. Ledbetter, 875 F.2d 1558 (11th Cir.1989); Carelli v. Howser, 923 F.2d 1208 (6th Cir.1991). The First and Eighth Circuits have found a private cause of action. Albiston v. Maine Commissioner of Human Services, 7 F.3d 258 (1st Cir.1993); Howe v. Ellenbecker, 8 F.3d 1258 (8th Cir.1993).
The First Circuit ease, which held that there was a private right of action, is like Wilder and unlike the ease at bar in a significant way. The section at issue in Albiston entitles custodial parents on welfare to “prompt payment” of the first $50 of each child support payment the state collects from the noncustodial parent. 42 U.S.C. § 652(i). The Secretary defined “prompt payment” as payment within 15 days. 45 C.F.R. § 302.32(f)(2). Maine was taking two to six months to send the custodial parents their $50 checks. The court held that the custodial parents had standing to sue the Maine Commissioner to get their $50 pass through payments. The First Circuit found that a different statute did not give rise to a private right of action, where the duties it imposed were on the Secretary to make the states do a good job, rather than on the states, a situation more analogous to the case at bar. Stowell v. Ives, 976 F.2d 65 (1st Cir.1992).
Albiston is like Wilder in that there was (1) a standard capable of judicial application, (2) a law benefitting the individuals bringing the lawsuit, and (3) the claim by their lawyer would cause money to which they were entitled to be paid to the members of the class represented. It is also like Wilder in that, if plaintiffs won, they would get money.
By contrast, in the case at bar, if the nominal clients asked their lawyers what was in it for them if they won, their lawyers would have to tell them that win or lose, they could not be assured of any money. Their lawyers ask for a declaratory judgment that Arizona is not in “substantial compliance,” and an injunction requiring “affirmative measures sufficient to achieve as well as sustain substantial compliance.” They seek attorneys’ fees, but no money for their clients.
Even if the plaintiffs won, and even if the district judge or special master turned out to be a far better administrator of the child support enforcement division than the state Attorney General, no particular custodial parent could be assured of a dollar more than he or she gets now. A substantially complying child support enforcement unit would still fail to collect from a noncustodial parent who could not be located, or who was dead, unable to pay, or successful in avoiding collection attempts. Most of us who, as attorneys, have attempted collection work for clients have sometimes failed, and few of us have collected 100% of the money due 100% of the time.
The clients in this litigation provide a platform on which their lawyers can stand to have their voices heard in the administrative decisionmaking for the agency, and to collect attorneys’ fees. This is what legal services lawyers call “impact litigation,” designed to change social policy, not to get something for a client. Cf. Snake River Farmers Assn. v. Department of Labor, 9 F.3d 792, 798 (9th Cir.1993). By contrast, in the First Circuit ease, if the very poor clients asked “what’s in it for me if we win,” the lawyers could say “$50, right away, for each of you.” Likewise, in Wilder, the lawyers could tell their clients that if they won, they would get higher fees.
The absence of any assured private benefit from the remedy suggests that no private remedy was intended by Congress. Compare the proposition, in the law of standing, *1160that “it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’ ” Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). Suter says that “the burden is on respondents to demonstrate that Congress intended to make a private remedy available.” Suter, 503 U.S. at 363, 112 S.Ct. at 1370. Wilder says that a person can sue under § 1983 unless that statute does not create an enforceable right under § 1983, as where “the interest the plaintiff asserts is ‘too vague and amorphous’ such that it is ‘beyond the competence of the judiciary to enforce.’ ” Wilder, 496 U.S. at 509, 110 S.Ct. at 2517. Where the lawsuit would not produce a probable concrete benefit for the plaintiff, we can infer that Congress did not create a private right of action for that plaintiff. This factual distinction distinguishes Suter from Wilder in a manner which makes sense of both cases.
Plaintiffs’ lawyers do not, in their complaint, ask for an award of money to then-clients. Instead, they ask for a “declaratory judgment determining that operation of the Arizona Title IV-D program violates controlling substantive provisions of federal law creating rights,” and for a permanent injunction with continuing supervision to bring about substantial compliance.
Plaintiffs did not sue the Secretary, and claim that she is not performing her duty to muscle the state into substantial compliance. Yet Congress gave to the Secretary, not the courts, the authority and discretion to decide whether state governments were substantially complying, and to negotiate plans to bring them into substantial compliance if they were not. Inferring a private right of action, as the majority opinion does, subverts this scheme, and gives the district courts power parallel or superior to the Secretary’s to supervise state child support enforcement divisions. Congress established a political process, not a judicial one, to manage this administrative task.
. Under 42 U.S.C. § 652(a), the Secretary has the duty to establish a unit in the Department of Health and Human Services to perform the following tasks, among others:
(1) establish such standards for the State programs for locating absent parents, establishing paternity, and obtaining child support and support for the spouse (or former spouse) with whom the absent parent’s child is living as he determines to be necessary to assure that such programs will be effective;
(2) establish minimum organizational and staffing requirements for State units engaged in carrying out such programs under plans approved under this part;
(3) review and approve plans for such programs;
(4) evaluate the implementation of State programs established pursuant to such plan, conduct such audits of State programs established under the plan approved under this part as may be necessary....
(5) assist States in establishing adequate reporting procedures....
(6) maintain records of all amounts collected and disbursed under programs established pursuant to the provisions of this part and of the costs incurred in collecting such amounts;
(7) provide technical assistance to the States to help them establish effective systems for collecting child and spousal support and establish paternity;
(8) receive applications from States for permission to utilize the courts of the United States to enforce court orders for support against absent parents and, upon a finding that (A) another State has not undertaken to enforce the court order of the originating state against the absent parent within a reasonable time, and (B) that utilization of the Federal courts is the only reasonable method of enforcing such order, approve such applications.