The opinion of the court was delivered by: GEORGE W. LINDBERG
Plaintiffs, Mollie King, Bobby Dunbar, Sharon Murphy, and their children, are clients of Illinois' Title IV-D child support enforcement program. They are seeking to bring a class action under 42 USC § 1983 to enjoin defendants, Philip Bradley, Director of Illinois Department of Public Aid ("IDPA"), and Isabel Blanco, Acting Administrator of the IDPA's Division of Child Support Enforcement ("DCSE"), to comply with the statutory requirements of the Child Support Enforcement Act ("Title IV-D"), 42 USC § 651, et seq, and with regulations promulgated by the Secretary thereunder. Plaintiffs seek to represent a class of all Cook County residents who have been, are, or will be clients of Illinois' IV-D program and "obligees under judicial child support orders with respect to which required payments have not been, are not being, or will not be collected from the obligors." Plaintiffs allege that defendants have a "custom and practice" of failing to operate Illinois' Title IV-D program in compliance with federal law. Plaintiffs specifically allege that defendants have a custom and practice of failing to:
(1) serve orders for withholding on obligors' employers in cases involving child support orders entered on or after November 1, 1990 and in which there are immediate orders for withholding;
(2) serve Notices of Delinquency on obligors for months and even years in cases involving child support orders entered before November 1, 1990 and in which the obligor's wages were not subject to immediate withholding;
(3) take the necessary further action to implement withholding within 25 days after serving the Notices of Delinquency on obligors in cases in which the obligors do not file a Petition to Stay Service within 20 days in cases involving child support orders entered before November 1, 1990 and in which the obligor's wages were not subject to immediate withholding;
(4) resolve disputes and take the necessary steps to implement withholding within 45 days of serving the Notices of Delinquency on the obligors in cases in which the obligors do file a Petition to Stay Service within 20 days in cases involving child support orders entered before November 1, 1990 and in which the obligor's wages were not subject to immediate withholding;
(5) use court time effectively by sending obligors Notices of Delinquency and following applicable state law;
(6) take any action to enforce child support; and
(7) locate the obligor's physical whereabouts and/or sources of income or other assets on a quarterly basis in the absence of new information.
Each named plaintiff also claims to have been individually injured by defendants' failure to comply with federally required procedures. Plaintiffs King and Dunbar, through services provided under the Title IV-D program, obtained court orders on April 25, 1989, and September 1, 1989, respectively, for immediate withholding of child support payments. King does not receive AFDC benefits and is a "non-assistance" IV-D client. The father of each plaintiff's child was identified and employed, and each father's employer was known to defendants. As of April 22, 1992, the defendants had failed to serve withholding orders on either father's employer. King claims, as a result, to have lost the full amount of monthly child support payments to which she was entitled as a "non-assistance" client. Dunbar claims, as a result, to have lost the $ 50 pass-through to which she was entitled.
Plaintiff Murphy obtained a conditional income withholding order against Dwight Ballinger on October 29, 1987. As of April 22, 1992, defendants had not taken steps to obtain or serve an immediate income withholding order despite the fact that Ballinger has never made any scheduled support payments. Murphy claims to have lost the $ 50 pass-through as a result.
Defendants have filed a motion to dismiss both for lack of subject matter jurisdiction, FRCP 12(b)(1), and for failure to state a claim upon which relief may be granted, FRCP 12(b)(6). Defendants contend that this court lacks subject matter jurisdiction because plaintiffs lack standing. Alternatively, they argue that no actionable claim exists because Title IV-D does not create an enforceable right for purposes of § 1983.
On reference from this judge, the Magistrate Judge issued a Report and Recommendation recommending that defendants' motion be granted. Plaintiffs have objected to that recommendation and to the Magistrate Judge's recommendation that their motion for class certification be denied.
Title IV-A of the Social Security Act, Aid to Families with Dependent Children ("AFDC"), 42 USC § 601, et seq, is a federal state public assistance program that provides cash assistance and other benefits to needy dependent children and the caretaker relatives or guardians with whom they live. State participation in the program is voluntary, but States that choose to participate in AFDC are required to have a child support enforcement program in effect that complies with the requirements of Title IV-D. 42 USC § 602(a)(27). Services provided by the Title IV-D program are available not only to AFDC families, but also to families that do not currently receive (42 USC § 657(c)), or who may never have received (42 USC § 654(6)), AFDC benefits. Illinois participates in the AFDC program and operates a Title IV-D child support enforcement program. Illinois' Title IV-D program is overseen by IDPA and is administered by DCSE.
Among other things, Title IV-D programs are required to establish child support obligations by court or administrative order, to collect and distribute support payments, and to enforce support orders. 42 USC § 654(4),(6),(8). In Illinois, Title IV-D clients may choose to procure either an order for immediate income withholding or a conditional order for income withholding in the event the obligor defaults on payments. SHA 750 ILCS 5/706-1(B)(1). An obligor under a conditional order who fails to make a monthly payment within 30 days is served with a Notice of Delinquency ("NOD"). SHA 750 ILCS 5/706-1(C)(1). The obligee then files an affidavit which states that an NOD was served on the obligor and the obligor did not file a Petition to Stay. SHA 750 ILCS 5/706-1(E)(1). The Court can then issue an order for immediate income withholding. SHA 750 ILCS 706-1(E)(2). According to federal regulations, ...