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