BRIAN STIANCHI v. NEW JERSEY DEPARTMENT OF HUMAN SERVICES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2360-09T1

BRIAN STIANCHI, Individually

and as Class Representative

on behalf of others similarly

situated,

Plaintiff-Appellant,

v.

NEW JERSEY DEPARTMENT OF HUMAN

SERVICES, DIVISION OF FAMILY

DEVELOPMENT, OFFICE OF CHILD

SUPPORT SERVICES (OCSS),

JENNIFER VELEZ, individually

and as COMMISSIONER of the

NEW JERSEY DEPARTMENT OF

HUMAN SERVICES; JEANETTE

PAGE-HAWKINS, individually

and as DIRECTOR OF THE

DIVISION OF FAMILY DEVELOPMENT,

LISA GRIFFIN, individually

and as DIRECTOR OF THE OCSS,

Defendants-Respondents,

and

TREASURER STATE OF NEW JERSEY,

Defendant.

____________________________________________

March 17, 2011

 

Argued January 14, 2011 Decided

 

Before Judges R. B. Coleman and Lihotz.

 

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-668-09.

 

Lewis G. Adler argued the cause for appellants.

 

Matthew Sapienza, Deputy Attorney General, argued the cause for respondents (Paula T. Dow, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Sapienza, on the brief).

 

PER CURIAM

Plaintiff Brian Stianchi, a non-custodial parent who was arrested as a result of mistakes in records pertaining to his child support obligation, appeals from a December 10, 2009 order of the trial court granting the motion of defendants to dismiss his complaint. We affirm the dismissal.

The New Jersey Department of Human Services, through its Division of Family Development, Office of Child Support Services (the Department or OCSS) is a State agency responsible for establishing and maintaining the State child support registry. The registry includes information on the amount and frequency of support owed and other amounts due or overdue under support orders. New Jersey receives federal funding for the establishment and operation of the computerized child support enforcement system pursuant to Title IV-D of the Social Security Act. Pursuant to N.J.A.C. 10:110-1.2, OCSS is the designated agency for the operation of the Child Support Program as required by Title IV-D of the Social Security Act. N.J.S.A. 2A:17-56.58 provides that:

a. The department shall establish and maintain a State case registry. The department shall regularly monitor cases in the registry with respect to which services are being provided under the State Title IV-D plan. The registry shall include information on:

 

(1) the amount and frequency of support owed and other amounts due or overdue under the support order, including arrearages, interest or late payment penalties and fees;
 
(2) any amounts described in paragraph (1) of this subsection that have been collected;
 
(3) the distribution of collected amounts;
 
(4) the date of birth of any child for whom the support order requires support;

 
(5) the amount of any lien imposed;
 
(6) information on administrative actions and administrative and judicial proceedings and court orders relating to paternity and support;
 
(7) information obtained from comparison with federal, State, or local sources of information; and

 
(8) any other relevant information.

The related federal legislation, 42 U.S.C.A. 654a, provides in pertinent part as follows:

(e) State case registry.

 
(1) Contents. The automated system required by this section shall include a registry (which shall be known as the "State case registry") that contains records with respect to--

. . . .

 

(4) Payment records. Each case record in the State case registry with respect to which services are being provided under the State plan approved under this part [42 U.S.C.[A.] 651 et seq.]; and with respect to which a support order has been established shall include a record of--

 
(A) the amount of monthly (or other periodic) support owed under the order, and other amounts (including arrearages, interest or late payment penalties, and fees) due or overdue under the order;

 

. . . .

 

(5) Updating and monitoring. The State agency operating the automated system required by this section shall promptly establish and update, maintain, and regularly monitor, case records in the State case registry with respect to which services are being provided under the State plan approved under this part [42 U.S.C.[A.] 651 et seq.], on the basis of--

 
(A) information on administrative actions and administrative and judicial proceedings and orders relating to paternity and support;

 
(B) information obtained from comparison with Federal, State, or local sources of information;

 
(C) information on support collections and distributions; and

 

(D) any other relevant information.

 

Additionally, 45 C.F.R. 307.11(4ii) (2011) requires the State's computerized system to record and calculate amounts due or overdue under the order including arrearages, interest or late penalties and fees.

As noted, Stianchi is a non-custodial parent whose obligation to provide child support payments to the custodial parent is tracked by the State child support registry. He alleges that in December 2005, the Law Division issued an order stating that the Middlesex County Probation Department (the Probation Department) should not "collect any funds from Mr. Stianchi as he was paying directly; to zero out his account balance . . . ." He further alleges that in January 2006, a subsequent order was entered directing the Probation Department to adjust its records to "zero out" all arrearages after crediting thirty-seven months of support payments presumably made directly to the obligee.1

Stianchi was arrested on January 25, 2008, as a result of a warrant initiated by the Probation Department, for contempt of court in failing to pay child support. Stianchi was incarcerated overnight and was required to pay $22,590 as a condition of his release. Following his arrest, Evette Lawson of the Probation Department, confirmed that the "Notice of Arrears," which resulted in Stianchi's January 25, 2008 arrest, was issued in error and that Stianchi's account would be closed.

Thereafter, another mistaken "Notice of Arrears" was issued February 2, 2008, alleging arrears owed by Stianchi totaling $26,565. After Stianchi hired an attorney to resolve the mistake, Abraham Kromah of the Probation Department confirmed by letter March 4, 2008, that the case would be closed and funds owed to Stianchi would be credited.

On January 26, 2009, Stianchi filed a class action complaint against the OCSS, the Treasurer of the State of New Jersey, Jennifer Velez, individually and as Commissioner of the New Jersey Department of Human Services, Jeanette Page-Hawkins, individually and as Director of the Division of Family Development, and Lisa Griffin, individually and as Director of the OCSS. In lieu of an answer, on August 12, 2009, defendants filed a motion to dismiss the complaint pursuant to Rule 4:6-2(e). On September 25, 2009, the trial court granted the motion in part and dismissed the portion of the complaint asserting a cause of action against the State Treasurer for mistaken imprisonment under the Mistaken Imprisonment Act, N.J.S.A. 52:4C-1 to -6. That same order denied, without prejudice, the remaining portion of the motion to dismiss and afforded Stianchi the opportunity to file an amended complaint.

On October 15, 2009, Stianchi filed an amended complaint. In the amended complaint, Stianchi asserted that OCSS's failure to maintain an accurate account of child support records afforded him a cause of action under the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2, N.J.S.A. 2A:17-56.58 and the Federal Civil Rights Act, 42 U.S.C.A. 1983 and 1986, to enforce rights conferred by 42 U.S.C.A. 654a. Additionally, in the amended complaint, Stianchi asserted a new cause of action claiming relief pursuant to the court's prerogative writs jurisdiction. Defendants moved again to dismiss the pleading for failure to state a claim upon which relief could be granted.

On December 10, 2009, after hearing oral arguments, Judge Jamie D. Happas issued an oral opinion, granting defendants' motion to dismiss. In dismissing the complaint, the judge found that neither Title IV-D nor N.J.S.A. 2A:17-56.58 conferred a private cause of action supporting Stianchi's claims. Additionally, she determined the State was immune from a claim for money damages since "the NJCRA does not manifest consent" to allow suit. Further, Stianchi cited no support for his requested injunctive relief, and he had not alleged any substantive due process violation or deprivation of privileges or immunities secured by the Constitution. Stianchi appeals from the order memorializing these holdings.

In deciding a motion to dismiss, "'the inquiry is confined to a consideration of the legal sufficiency of the alleged facts apparent on the face of the challenged claims.'" Rieder v. State Dep't. of Transp., 221 N.J. Super. 547, 552 (App. Div. 1987) (quoting P. & J. Auto Body v. Miller, 72 N.J. Super. 207, 211 (App. Div. 1962)). In turn, the reviewing court "'searches the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary.'" Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989) (quoting Di Cristofaro v. Laurel Grove Mem'l Park, 43 N.J. Super. 244, 252 (App. Div. 1957)). However, if the allegations are "palpably insufficient to support a claim upon which relief can be granted[,]" the court must dismiss the complaint. Rieder, supra, 221 N.J. Super. at 552.

When reviewing a case "on appeal from a grant of a motion to dismiss," the facts presented should be viewed "in a light most favorable to the non-moving party to determine whether a genuine issue of fact exists for trial." Fazilat v. Feldstein, 180 N.J. 74, 78 (2004) (citing Printing Mart-Morristown, supra, 116 N.J. at 746).

I.

At issue in this appeal is whether Stianchi has standing to enforce an asserted cause of action for the State's failure to comply with 42 U.S.C.A. 654a and accompanying federal regulations. We answer that inquiry in the negative.

In Blessing v. Freestone, 520 U.S. 329, 340-41, 117 S. Ct. 1353, 1359, 137 L. Ed. 2d 569, 582 (1997), the United States Supreme Court outlined three factors necessary to determine whether a statutory provision gives rise to a federal right which may be enforced by a private individual.

First, Congress must have intended that the provision in question benefit the plaintiff. Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so vague and amorphous that its enforcement would strain judicial competence. Third, the statute must unambiguously impose a binding obligation on the States. In other words, the provision giving rise to the asserted right must be couched in mandatory rather than precatory terms.

[Ibid. (internal citations and quotation marks omitted).]

In Blessing, 1983 claims were brought by five Arizona mothers against state officials on grounds that state child-welfare agencies consistently failed to meet the requirements of Title IV-D of the Social Security Act, which required states receiving federal child-welfare funds to "substantially comply" with the regulations designed to ensure timely payment of child support. Id.at 332-35, 117 S. Ct.at 1356-57, 17 L. Ed. 2d at 577-79. The United States Supreme Court found defendant's action did not assert a violation of a federal right, explaining:

[T]he requirement that a State operate its child support program in "substantial compliance" with Title IV-D was not intended to benefit individual children and custodial parents, and therefore it does not constitute a federal right. Far from creating an individual entitlement to services, the standard is simply a yardstick for the Secretary to measure the systemwide performance of a State's Title IV-D program. Thus, the Secretary must look to the aggregate services provided by the State, not to whether the needs of any particular person have been satisfied.

 

[Id. at 343, 117 S. Ct. at 1361, 137 L. Ed. 2d at 584.]

 

Because the provision of the federal statute cited by the claimants in Blessing focused on "the aggregate services provided by the State," rather than "the needs of any particular person," the Court held it conferred no individual rights and thus could not be enforced by 1983. Id. at 344-45, 117 S. Ct. at 1361-62, 137 L. Ed. 2d at 584-85. The Court emphasized: "To seek redress through 1983 . . . a plaintiff must assert the violation of a federal right, not merely a violation of federal law." Id.at 340, 117 S. Ct. at 1359, 137 L. Ed. 2d at 582.

Significantly, the Court in Blessing, defined the purpose of the detailed statutory requirements imposed upon the states. Id. at 344-45, 117 S. Ct. at 1361, 137 L. Ed. 2d at 584. That purpose was to improve the overall efficiency of the State's child support enforcement scheme. The Court stated:

Title IV-D lays out detailed requirements for the State's data processing system. Among other things, this system must sort information into standardized data elements specified by the Secretary; transmit information electronically to the State's AFDC system to monitor family eligibility for financial assistance; maintain the data necessary to meet federal reporting requirements; and provide for the electronic transfer of funds for purposes of income withholding and interstate collections. 42 U.S.C. 654a (Nov. 1996 Supp.); 45 C.F.R. 307.10 (1995). Obviously, these complex standards do not give rise to individualized rights to computer services. They are simply intended to improve the overall efficiency of the States' child support enforcement scheme.

[Id. at 344-45, 117 S. Ct. at 1361, 137 L. Ed. 2d at 584 (emphasis added).]

In Blessing, the claimants' specific allegation complained not that the agency violated a specific right, but that it did not substantially comply with Title IV-D. Id. at 332-33, 117 S. Ct. at 1356, 137 L. Ed. 2d at 577. The Court, however, did "not foreclose the possibility that some provisions of Title IV-D give rise to individual rights," but emphasized that plaintiffs must be able to "identify with particularity the rights they claimed." Id. at 342-45, 117 S. Ct. at 1360-62, 137 L. Ed. 2d at 583-85.

The Court in Gonzaga Univ. v. Doe, 536 U.S. 273, 122 S. Ct. 2268, 153 L. Ed. 2d 309 (2002), clarified that "it is only violations of rights, not laws, which give rise to 1983 actions," and rejected an interpretation of Blessingthat "our cases permit anything short of an unambiguously conferred right to support a cause of action brought under 1983." Id. at 283, 122 S. Ct.at 2275, 153 L. Ed. 2d at 320-21. Thus, "where the text and structure of a statute provide no indication that Congress intends to create new individual rights, there is no basis for a private suit" under 1983. Id.at 286, 122 S. Ct.at 2277, 153 L. Ed. 2d at 323.

Here, in dismissing the claims arising pursuant to federal law, the trial court relied on Blessing and Gonzaga and held that "the portion of Title IV-D that plaintiff relies upon does not contain the individually focused rights creating language necessary to confer the individual right." Stianchi argues this was error and contends that he "specifically identified a right at issue." Distinguishing his claim from that rejected in Blessing, Stianchi states the child support registry is to include the amount of support owed including arrearages as well as support owed under the order. In support of his claim to a private cause of action under 42 U.S.C.A. 654a and N.J.S.A. 2A:17-56.58, Stianchi relies on Bennett v. White, 865 F.2d 1395, 1405 (3d. Cir. 1989), cert. denied, 492 U.S. 920, 109 S. Ct. 3247, 106 L. Ed. 2d 593 (1989), where the Third Circuit Court of Appeals held that the failure of the trial court to include the State agency's calculations in a Federal Aid to Families with Dependent Children (AFDC) benefits termination notice violates procedural due process. That reliance is misplaced.

Bennettdoes not support Stianchi's claim that the relevant portions under Title IV-D provide him with a private cause of action. As the Tenth Circuit, explained:

Bennett deals with the retention by the state of monthly support collections in excess of public assistance rendered, retention of current monthly support payments after public assistance has terminated (as opposed to collection on a judgment for arrearages owed the state), and refusal of the state to provide current (as opposed to former) AFDC recipients with periodic accountings of monies collected and public assistance expended.

 

[Hill v. Ibarra, 954 F.2d 1516, 1525 (10th Cir. 1992).]

Significantly, the State's failure to provide periodic statements to the plaintiffs resulted in an unlawful "taking" under the United States Constitution, which is not analogous to the facts here.

Stianchi also cites the Third Circuit decision in Grammer v. John J. Kane Reg'l Centers, 570 F.3d 520 (3d. Cir. 2009), cert. den., ___ U.S.___, 130 S. Ct. 1524, 176 L. Ed. 2d 113 (2010) to support his claim that Title IV-D creates a private cause of action. Grammerexamined whether the Federal Nursing Home Reform Amendments (FNHRA), 42 U.S.C.A. 1396r, supported a private right of action pursuant to 1983 against a nursing home for the negligent care and treatment of a resident. In holding that 1396 allows for a federal cause of action, Grammerstated:

The [FNRA] are replete with rights-creating language. The amendments confer upon residents of such facilities the right to choose their personal attending physicians, to be fully informed about and to participate in care and treatment, to be free from physical or mental abuse, to voice grievances and to enjoy privacy and confidentiality.

 

. . . .

 

The provisions at issue here are mandatory. For example, by stating "a nursing home must care for its residents in such a manner and in such an environment as will promote maintenance or enhancement of the quality of life of each resident," the mandatory nature of the provision is apparent.

 

[Grammer, supra, 570 F.3d at 529 (internal citations omitted).]

 

The court noted that "the FNHRA are constructed in such a way as to stress that these 'residents' have explicitly identified rights." Id.at 530. Further, the court concluded that 1983 provided the proper avenue for relief because the nursing home failed to demonstrate that Congress foreclosed that option by adopting another, more comprehensive enforcement scheme. Id.at 522. Thus, the FNHRA was "concerned with 'whether the needs of any particular person have been satisfied,' not solely with an aggregate institutional policy and practice." Id.at 527 (quoting Gonzaga, supra, 536 U.S. at 288, 122 S. Ct. at 2278, 153 L. Ed. 2d at 324).

We do not agree that Bennettor Grammersupport the argument that the language of 42 U.S.C.A. 654a and the accompanying regulations create a private right of action. The language in 42 U.S.C.A. 654a does not appear to create private right of action under which individuals may seek relief. It instead imparts a "systemwide" non-personal right, not amounting to a private cause of action. See also Hughlett v. Romer-Sensky, 497 F.3d 557, 563-64 (6th Cir. 2006) (holding that the timing of the distribution of support payments under 42 U.S.C.A. 654b does not create a private cause of action); Walters v. Weiss, 392 F.3d 306 (E. D. Ark. 2003) (stating defendants were entitled to summary judgment on plaintiffs' claim that 42 U.S.C.A. 654b(c) and 657(a) conferred an individual right because the statutes were intended to improve overall efficiency of the states' child support enforcement scheme).

Additionally, there is no support for the claim that the "recordkeeping" language of the statute imparts a private individual right. After viewing the facts in a light most favorable to Stianchi, we conclude he does not have standing to claim a violation of a federally conferred right of action.

Likewise, Stianchi lacks standing to enforce an individual claim under N.J.S.A. 2A:17-56.58. We agree with the trial court, which stated:

[N.J.S.A. 2A:17-56(a)] is directed toward the administering body that does not contain any language suggesting an individual right. Indeed, plaintiff points to no provision of state law providing or suggesting that the legislature, in seeking to comply with this federal program, intended to afford a private cause of action where federal law failed to do so. Rather, the state legislature effected the program to comply with federal mandates to receiving federal funds.

We also reject Stianchi's reliance on a footnote in Pryce v. Scharff, 384 N.J. Super. 197 (App. Div. 2006), to support the proposition that a private cause of action exists under N.J.S.A. 2A:17-56(a). In Pryce, the court rejected the argument that the State had authority under N.J.S.A. 2A:17-56.20 to set a zero interest rate on child support arrearage judgments. Id. at 200. The court in Pryceafforded the plaintiff a private cause of action under the statute since the State legislature did not give any Title IV-D agency discretion to decide whether child support judgments may carry post-judgment interest. Id.at 214. Pryce further noted:

We reject the argument by the Board of Social Services that plaintiff lacks standing. Unlike the plaintiffs in Blessing v. Freestone, 520 U.S. 329 (1997), plaintiff here is not seeking to enforce a general right to effective enforcement of Title IV-D. Rather, she is seeking to enforce her right, under the aegis of this State's statutes and Court Rules, to have post-judgment interest added to the Probation arrears account.

[Id. at 202 n.1.]

Pryce does not support the notion that N.J.S.A. 2A:17-56.8(e), confers a legal right to Stianchi's circumstances. Although it is quite reasonable that Stianchi asks for "his account to be accurately maintained and that he be compensated for his false arrest and incarceration," unlike Pryce, a claim to enforce the maintenance of the account "seek[s] to enforce a general right to effective enforcement of Title IV-D" which was precisely held in Blessing not to confer a private right of action. See Pryce, supra, 784 N.J. Super. at 202 n.1.

Additionally, we reject Stianchi's argument that the legislative history behind the New Jersey Child Support Program Improvement Act (the Act), N.J.S.A. 2A:17-56.7a to -56.25 supports his claim to a private cause of action. The legislative findings of the Act state the purpose in pertinent part as:

e. The efficient establishment of paternity and support obligations, and the effective enforcement and collection of child support obligations pursuant to the provisions of [42 U.S.C.A. 666], will maximize the federal funding available to New Jersey for these services; and

f. The provisions of this act incorporate and expand the fundamental concepts of P.L. 1981, c. 417 (C. 2A:17-56.8 et seq.) and comply with the federal initiatives embodied in [42 U.S.C.A. 666].

 

[N.J.S.A. 2A:17-56.7b.]

 

This language evinces a legislative intent to improve the efficiency of the system and not to provide a private cause of action to non-custodial parents.

II.

Stianchi contends that defendants are not entitled to qualified immunity pursuant to N.J.S.A. 59:3-3. A government official is entitled to qualified immunity from liability for civil damages under 1983 unless his conduct violated "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396, 410 (1982) (citations omitted). A right is clearly established when it is "sufficiently clear that a reasonable official would understand that his act violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039, 97 L. Ed. 2d 523, 531 (1987). It is not necessary for the plaintiff to prove that the precise act in question was previously held to be unlawful but rather, whether the law was apparent in relation to specific facts confronting the defendants when they acted. Ibid.

Stianchi asserts that N.J.S.A. 2A:17-56.53 clearly requires that the registry be updated after the entry of each court order and that the registry is not maintained accurately if such updates are not posted. By contrast, N.J.S.A. 59:3-3 provides for good faith immunity, stating "[a] public employee is not liable if he acts in good faith in the execution or enforcement of any law." The record here does not carry proof that defendants held any unreasonable belief as to their duties under the law nor that they were acting in bad faith. Failing to maintain accurate and timely records is at worse a mistake and as such, defendants had an objectively reasonable belief that their actions were not violating Stianchi's individual rights.

Finally, Stianchi argues that since the trial court found that defendants were entitled to qualified immunity without "any factual or legal basis in the record," discovery should have been allowed and the motion to dismiss was granted prematurely. We disagree. Since qualified immunity is an immunity from suit rather than a defense to liability, the immunity is lost if the case is allowed to go to trial. Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 2815, 86 L. Ed. 2d 411, 425 (1985). "Unless the plaintiffs' allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before commencement of discovery." Ibid. Accordingly, we reject Stianchi's argument that he was entitled to discovery before the court dismissed the individuals based on qualified immunity.

To the extent that we have not specifically addressed issues or arguments advanced by defendant, we deem them to be without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

A

ffirmed.

 

1 In his appendix, Stianchi has not included either of these mentioned orders.