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April 20, 1992

ANNA MASON, on her own behalf and as next friend of Romeshia Mason and Charles Mason, Plaintiff,
PHIL BRADLEY, in his official capacity as Director of the Illinois Department of Public Aid; MARY SUE MORSCH, in her official capacity as Director of the Child Support Division of the Illinois Department of Public Aid; and JACK O'MALLEY, in his official capacity as the State's Attorney for the County of Cook in the State of Illinois, Defendants.

The opinion of the court was delivered by: CHARLES RONALD NORGLE, SR.


 Before the court are the defendants' motions to dismiss. For reasons that follow, the motions are granted.


 This lawsuit stems from plaintiff Anna Mason's ("Mason") allegedly unsuccessful efforts to spur the Illinois Department of Public Aid ("IDPA") and the Cook County State's Attorney's office ("State's Attorney") to obtain a child support order from Mason's former husband, Arthur Burrell ("Burrell"). Mason and Burrell were divorced in September 1982, with Mason receiving custody of their two children, Romeshia and Charles. The divorce decree made no provision for support of the children.

 The State of Illinois is a participant in the federal Aid to Families with Dependent Children ("AFDC") program, set up under Title IV-A of the Social Security Act, 42 U.S.C. § 601 et seq. Illinois is required, as a condition of its AFDC participation, to operate a child support program as provided in Title IV-D of the Social Security Act, 42 U.S.C. § 651 et seq. The Title IV-D program in Illinois is overseen by IDPA's Child Support Enforcement Division ("Child Support Enforcement"). That program must offer services to locate absent parents who may be liable for child support payments. 42 U.S.C. § 654(8).

 Federal regulations required that, prior to October 1, 1990, attempts to locate absent parents must have been made within 60 days of an application for such services. 45 C.F.R. § 303.3. Current regulations require that such attempts must be made within 75 days after it is determined that such services are necessary. Id. When location attempts have failed, repeat attempts must be made quarterly, but if new information is received, immediate repeat attempts are required. Id. If an absent parent is located or paternity is established, the state's Title IV-D agency must either issue, or initiate legal proceedings seeking, a child support order within 90 days. 45 C.F.R. § 303.4(d). Continued federal funding of a state's AFDC program requires "substantial compliance" with the regulations, which is defined as 75 percent compliance in cases audited by the federal Department of Health and Human Services. 45 C.F.R. § 305.20.

 Mason receives AFDC payments from IDPA on behalf of her children. Those payments are conditioned upon Mason's assignment of her child support rights to IDPA, which can utilize money collected from absent parents to recoup amounts paid out in AFDC or related benefits. The first $ 50 of any amounts collected from an absent parent each month, however, must be paid to the custodial parent without affecting the level of aid to the parent or children. 42 U.S.C. § 657(b)(1).

 About June 30, 1987, Mason went to a Child Support Enforcement office to request services to locate Burrell. Child Support Enforcement and other responsible state agencies, however, allegedly failed to follow the federal regulations. Not all available resources were used to find Burrell and repeat efforts were not made in a timely manner, according to Mason's complaint. There have allegedly been no enforcement actions taken against Burrell since the summer of 1987, and no child support order has been entered against Burrell. IDPA allegedly failed to follow-up adequately after identifying two of Burrell's employers in 1990, and after Mason's attorney informed IDPA of Burrell's then-current job around February 15, 1991.

 Mason filed the present lawsuit on June 19, 1991 asserting two claims. Count I asserts an action directly under Title IV-D for the defendants' alleged failure to follow the requirements of that statute and the allegedly resultant emotional distress and financial hardship Mason has suffered. Count II asserts that Mason's 14th Amendment due process rights were violated by the defendants' failure to provide her with child support services to which she is entitled under federal law and the Illinois Public Aid Code, Ill. Rev. Stat. ch. 23, P10-1 et seq. The complaint seeks a declaration that Mason's rights were violated, an order directing the defendants to provide Mason with child support services in a timely manner, and an injunction barring future violations of Mason's rights, as well as other relief.


 Defendants Phil Bradley and Mary Sue Morsch, respectively the director of IDPA and the administrator of IDPA's Child Support Enforcement Division, together filed a motion to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). They contend that Mason lacks standing, and her complaint should therefore be dismissed under Rule 12(b)(1) for lack of subject matter jurisdiction. Alternatively, they seek dismissal under Rule 12(b)(6) for failure to state an actionable claim, arguing that Title IV-D creates neither a private right of action nor rights actionable under 42 U.S.C. § 1983. Defendant Jack O'Malley, the State's Attorney of Cook County, filed a separate motion to dismiss under Rule 12(b)(6) on essentially the same grounds as those argued by Bradley and Morsch.

 On a motion to dismiss under both Rule 12(b)(1) for lack of subject matter jurisdiction and under Rule 12(b)(6) for failure to state a claim, the court should decide the 12(b)(1) issues first and, only if it finds jurisdiction, proceed to the 12(b)(6) issues. Winslow v. Walters, 815 F.2d 1114, 1116 (7th Cir. 1987); Oliphant v. Bradley, 1992 U.S. Dist. LEXIS 8975, slip op. at 9 (N.D. Ill. 1992).

 The court therefore turns first to the jurisdiction/standing issue. Federal judicial power is limited under Article III of the Constitution to adjudication of "cases and controversies." Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982). That limitation includes a requirement that the plaintiff have standing to bring the action, which in turn requires that the plaintiff "personally has suffered some actual or threatened injury." Id. at 471-72 (quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 60 L. Ed. 2d 66, 99 S. Ct. 1601 (1979)).

 Analysis of a party's standing is "gauged by the specific common-law, statutory or constitutional claims that a party presents. . . . [with] 'careful judicial examination . . . to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted.'" International Primate Protection League v. Administrators of Tulane Educ. Fund, 114 L. Ed. 2d 134, 111 S. Ct. 1700, 1704 (1991) (emphasis in original) (quoting Allen v. Wright, 468 U.S. 737, 752, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984)). Where, as here, the claims are based on statutorily created rights, "the standing question . . . is whether the . . . statutory provision on which the claim rests properly can be understood as granting persons in the plaintiff's position a right to judicial relief." Warth v. Seldin, 422 U.S. 490, 500, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975). Moreover, the plaintiff must have suffered, or be about to suffer, a "demonstrable, particularized" injury, Id. at 508, which is "fairly traceable" to the ...

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