Case3:06-cv-04095-MHP Document1 Filed06/30/06 Page1 of 9

1 Bingham McCutchen LLP WILLIAM F. ABRAMS (SBN 88805)
2 william.abrams@bingham.com 1900 University Avenue
3 East Palo Alto, CA 94303-2223 Telephone: (650) 849-4400
4 Facsimile: (650) 849-4800

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5 Attorneys for Plaintiff CALIFORNIA ALLIANCE OF CHILD AND FAMILY
6 SERVICES
7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIl

10

SAN FRANCISCO DMSION

lV/lip

11

12 CALIFORNIA ALLIANCE OF CHILD AND FAMILY SERVICES,

No.06

4095

13

COMPLAINT FORDECLARATORY

Plaintiff,

AND INJUNCTIVE RELIEF

14

v.

(42 U.S.c. § 1983)

15 CLIFF ALLENBY, Interim Director of the
California Department of Social Services, in his 16 official capacity; MARY AULT, Deputy Direcior
of the Children and Family Services Division of
17 the California Department of Social Services, in her official capacity,
18
Defendants.
19

DEMANDFORJURYTruAL

20 Plaintiff California Alliance of Child and Family Services ("the Alliance") files
21
this Complaint against Cliff Allenby ("Allenby"), in his official capacity as Interim Director of 22
the California Department of Social Services ("DSS"), and Mary Ault ("Ault"), in her official 23
capacity as Deputy Director of the Children and Family Services Division ofDSS ("CFS"), for 24
Declaratory Judgment and Injunctive Relief, and Demand for Jury Trial. 25
This case is brought on behalf of non-profit charitable organizations that care for
26
children who have been removed from their homes and for whom the State of California has 27
failed to provide adequate funding required by the federal Child Welfare Act. This action seeks
28
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COMPLAINT FOR DECLARATORY JUDGMENT AND PERMANENT INJUNCTIVE RELIEF

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1 to prevent further violation of law by the State of California and obtain proper payment to the

2 non-profit organizations sufficient to provide these children the appropriate care and shelter to

3 which they are entitled. Without the State compliance, the non-profit agencies will be forced to

4 choose between providing inadequate care or eliminating services and eventually ceasing

5 operations, to the great detriment of the affected children.

6

In support thereof, the Alliance alleges as follows:

7

PARTIES

8

1. The Alliance is a California corporation with its principal place of business at

9 2201 K Street, Sacramento, California 95816. The Alliance is a non-profit organization that,

10 among other pursuits, represents the interests of group homes that provide care and supervision

11 for foster children as described below.

12

a. The Alliance represents California non-profit agencies offering an array of

13 services to vulnerable children and their families. These services include group home programs.

14 Group homes provide care and supervision for foster children with significant emotional or 15 behavioral problems who cannot live safely in their own homes or in another family setting, and

16 who require more restrictive out-of-home placement environments. DSS licenses, audits, and

17 provides funding to these group homes through the Aid to Families with Dependent Children-

18 Foster Care ("AFDC-FC") program.

19

b. The Alliance's membership includes approximately 150 private, non-

20 profit agencies that provide adoption, foster care, group home, mental health treatment, family

21 preservation and support, wrap-around, educational, and other services.. Approximately 130 of

22 these agencies operate one or more group home programs, with a total licensed capacity for

23 approximately 5,700 children and youth.

24

c. The Alliance is committed to advocating on behalf of foster children and

25 the non-profit agencies that provide care and services for them. This advocacy includes fostering

26 and encouraging the continual improvement of services and outcomes for children and families.

27

d. The Alliance represents the interests of its members with respect to

28 matters relating to the State of California and DSS' administration of the AFDC-FC program.

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1

e. The Alliance is authorized to file this action on behalf of its accredited

2 members, who are and will continue to be affected adversely by the unlawful actions of

3 Defendants, and each of them, alleged herein. Through this Complaint, the Alliance seeks to

4 protect interests that are germaQe to its purpose and affiliation with member group homes. Each

5 group home that is a member of the Alliance has independent standing to bring an action.

6 Nevertheless, the Alliance asserts the claims alleged in this Complaint without the participation

7 of an individual member of the Alliance. Should it be deemed necessary for a group home to

8 participate in this action, the Alliance will seek leave to amend this Complaint to name specific

9 group homes as parties-in-interest.

10

2. Allenby is responsible in his official capacity for the administration of the Child

11 Welfare Act, 42 U.S .C. §§ 670-679b, and the programs related to that Act in California. Further,

12 Allenby is responsible for implementing the policies contained in the approved state plans and

13 assuring DSS' compliance with state and federal law. Allenby is sued only in his official

14 capacity.

15

3. Ault is responsible in her official capacity for implementing the poJicies contained

16 in the approved state plans. Ault is sued only in her official capacity.

17

JURISDICTION AND VENUE .

18

4. The Alliance brings this civil action under 42 U.S.C. § 1983 and seeks a

19 declaratory jUdgment, pursuant to 28 U.S.c. § 2201, that the Rate Classification Level ("RCL")

20 system implemented and applied by Defendants, and each of the them, which establishes the

21 rates of payment to group homes on behalf of foster children, violates Title IV-E of the Social

22 Security Act, 42 U.S .C. §§ 670-679b ("Child Welfare Act"), and its implementing regulations.

23 Further, the Alliance seeks provisional and permanent injunctive relief prohibiting Defendants,

24 and each of them, in their official capacities from using the RCL to establish payment rates. This

25 Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1343(a)(3).

26

5. The Alliance is informed and believes and on that basis alleges that Allenby in his

27 official capacity is a resident of California and works in California.

28

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1

6. The Alliance is informed and believes and on that basis alleges that Ault in her

2 officialcapacity is a resident of California and works in California.

3

7. The Alliance is informed and believes and on that basis alleges that venue is

4 proper in this district pursuant to 28 U.S.c. § 1391(b)(2) because a substantial part of the events

5 or omissions giving rise to the claims in this Complaint occurred in this district.

6

INTRADISTRICT ASSIGNMENT

7

8. This Complaint arises in the County of San Francisco, among other places.

8 Consequently, this action is assigned to either the San Francisco Division or the Oakland

9 Division. Civil Local Rule 3-2 (c)-(d).

10

GENERAL ALLEGATIONS

11

The Child Welfare Act

12

9. Congress enacted the Child Welfare Act in 1980 to address the need for providing

13 an appropriate setting for children who are dependents or wards of the state.

14

10. The Child Welfare Act establishes a cooperative federal-state program that assists

15 states in meeting the costs of providing foster care to children who are dependents and/or wards

16 of the state. Pursuant to this cooperative program, the federal government and the state

17 government share the cost of providing funds for licensed third parties (e.g., group homes) that

18 care for these children.

19

11. The Child Welfare Act and related federal regulations require states receiving

20 federal aid to provide foster care and transitional independent living programs for a child when a

21 court has determined that it is necessary under applicable law that the child be removed from his

22 or her home and placed in out-of-home care.

23

12. To become eligible for federal funding, a state must submit a plan for financial

24 assistance to the Secretary of the U.S. Department of Health and Human Services ("DHHS") for

25 approval. As a prerequisite for DHHS approval, the SUbmitting state must agree, among other

26 conditions, to administer its foster care program pursuant to the Child Welfare Act, related

27 regulations, and policies promulgated by the Secretary ofDHHS. 42 U.S.c. § 671(a), (b); 45

28 C.F.R. §§ 233.110, 1355.21, 1356.20, 1356.21.

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1

13. Pursuant to the Child Welfare Act, a state must designate a state agency to

2 administer and/or supervise the administration of the approved state plan. 42 U.S.C. § 671(a)(2).

3

14. Pursuant to the Child Welfare Act, a state must amend its approved plan by

4 appropriate submission to the Secretary of DHHS whenever, among other instances, necessary to

5 comply with alterations to the Child Welfare Act and/or federal regulations or policies. 45

6 C.F.R. § 1356.20(e)(I).

7

15. The Child Welfare Act requires that states participating in the cooperative

8 program provide "foster care maintenance payments" on behalf of eligible children to child-care

9 institutions, including group homes. 42 V.S.c. §§ 671(a)(2), 672(b)(2); 675(4); 45 C.F.R. §

10 1356.21 (a).

11

16. 'The term 'foster care maintenance payments' means payments to cover the cost

12 of (and the cost of providing) food, Clothing, shelter, daily supervision, school supplies, a child's

13 personal incidentals, liability insurance with respect to a child, and reasonable travel to the

14 child's horne for visitation. In the case of institutional care, [foster care maintenance payments]

15 shall include the reasonable costs of administration and operation of such institution as are

16 necessarily required to provide the items described in the proceeding sentence." 42 U.S.c. § 17 675(4)(A).

18

California 's Approved Child-Care Institution Program

19

17. For all periods relevant to this Complaint, DSS has been the state agency

20 responsible for submitting the California state plan to the Secretary of DHHS for approval and,

21 subsequent to receiving that approval, received federal funding that was intended to cover a

22 portion of the foster care maintenance payment made to group homes on behalf of eligible

23 children. Cal. WeI. & Inst. Code §§ 11229, 11460(a), 11462(a). DSS uses the RCL system to 24 esta.blish payment rates for foster care group homes. See Cal. WeI. & Inst. Code § 11462. A 25 group home is assigned to one of fourteen levels (i.e., RCLs) based on the group home's number 26 of "points." The number of points assigned to a group home is based largely on (1) the number

27 of "paid/awake" hours worked per child, per month, and (2) the qualifications of the staff. All of

28 the group homes in the same RCL receive the same AFDC-FC payment rate based on the

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1 standardized schedule of rates in state law. See Cal. WeI. & lnst. Code § 11462(f). DSS

2 calculates a group home's number of points.

3

18. For all periods of time relevant to this Complaint, DSS, through CFS, has

4 established payment levels for foster care providers, including group homes. The payments

5 established under the RCL system are paid by the county that placed the child with the group

6 home or other foster care provider. Each group home that participates in California's foster care

7 program executes an agreement with the county placement agency to provide and be

8 compensated for care, supervision, and social work services.

9

The RCL System Does Not Comply with

10

the Child Welfare Act

11

19. The RCL system was implemented by state statute, 1989 Cal. Stat. Ch. 1294,

12 during the 1990-1991 state fiscal year. Since that time, foster care rates established under the

13 RCL system have increased by approximately 26%. Since the 1990-1991 fiscal year, however,

14 the increase in actual costs that group homes incur to care for and supervise children greatly

15 exceeds 26%. For example, the California Necessity Index ("CNI")! has increased by 16 approximately 53% through state fiscal year 2005-2006.2

17

20. The percentage of actual costs that group homes recoup through the RCL system

18 has diminished substantially over time due primarily to (1) an increase in the actual costs

19 associated with factors identified as compensable under the Child Welfare Act (i.e., increases not

'20 due solely to inflation?fY pressures), and (2) "new" costs that group homes must incur to satisfy

21 added state and county requirements.

22

23 The CNI is a weighted average of increases in various necessary costs of living for low-

24 income consumers, including food, clothing, fuel, utilities, rent, and transportation. See, e.g., Cal. WeI. & Inst. Code § 11453.

25 2

The Alliance believes that the CNI underestimates the actual increases in costs. The eNI

does not reflect substantial increases over the last few years in the cost of workers' compensation

26 insurance, liability insurance, medical insurance, and utilities. Further, the CN! does not reflect new costs that group homes must incur to satisfy state and county requirements concerning staff

27 training, administrator certification, 1icensing fees, independent financial audits, record-keeping, and other new requirements.

28

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1

21. Several members of the Alliance have ceased operating group homes, or reduced

2 the capacity of their group home programs, due, in substantial part, to the increasing costs that

3 were not covered by payments established by the RCL system. The ever-decreasing percentage

4 of actual costs of care provided under the RCL system jeopardizes the financial viability of

5 group homes and their ability to provide care to foster children.

6

22. There is no administrative process or remedy available for the Alliance or its

7 members to challenge the propriety of the RCL system.

8

COUNT I

9

Declaratory Relief

10

23. The Alliance incorporates Paragraphs 1-22 as though fully set forth herein.

11

24. There is currently an actual controversy between the Alliance and Defendants,

12 and each of them, that is ripe for adjudication as to whether the RCL system fails to comply with

13 federal law in setting rates for foster care maintenance payments.

14

25. The failure of Defendants, and each of them, to comply with the Child Welfare

15 Act's mandated factors in setting rates for foster care maintenance payments deprives the

16 Alliance's member group homes of their federal rights, privileges and immunities under color of

17 state law in violation of 42 U.S.C. § 1983.

18

26. The Alliance is entitled to recover the full costs of this action and reasonable

19 attorneys' fees pursuant to 42 U.S.c. § 1988.

20

COUNT II

21

Permanent Injunctive Relief

22

27. The Alliance incorporates Paragraphs 1-26 as though fully set forth herein.

23

28. The Alliance is informed and believes and on that basis alleges that Defendants,

24 and each of them, will continue to provide foster care maintenance payments that fail to comply

25 with the Child Welfare Act.

26

29. The Alliance and its member group homes have suffered injury that is irreparable

27 in nature as the proximate result of the failure of Defendants, and each of them, to establish

28 properly foster care maintenance payments in a manner that complies with the Child Welfare

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1 Act. The Alliance and its member group homes are without adequate remedy at law.

2

30. The Alliance is entitled to recover the full costs of this action and reasonable

3 attorneys' fees pursuant to 42 U.S.c. § 1988.

4

PRAYER FOR RELIEF

5

Wherefore, the Alliance requests relief as follows:

6

1, That the Court declare that Defendants, and each of them, violated, continue to

7

violate, and/or will violate the Child Welfare Act by failing to establish a payment

8

system adequate to cover the costs incurred by group homes that provide services

9

in accordance with federal and state laws and regulations;

10

2. That the Court declare that Defendants' current and continued use of the RCL

11

system violated, continues to violate, and/or will violate the group homes' federal

12

rights, privileges and immunities under color of state law;

13

3. That Defendants, and each of them, be temporarily and permanently enjoined

14

from currently and continually using the RCL system to establish foster care

15

maintenance payments to group homes;

16

4. That Defendants, and each of them, prepare and implement a payment system that

17

complies with the Child Welfare Act;

18

5. That Defendants be required to adjust payments made between the time that (1)

19

the Court grants provisional relief in favor of the Alliance, and (2) Defendants,

20

and each of them, prepare and implement a payment system that complies with

21

the Child Welfare Act;

22

6. That the Alliance be awarded its reasonable costs of suit and attorney's fees

23

included herein; and

24

7. That this Court award the Alliance such other relief as is warranted by the facts

25

and the law as is just under the circumstances.

26

27

28

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1

DEMAND FOR JURy TRIAL

2 Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure and Local Rule 3-6(a), the

3 Alliance hereby demands a trial by jury for all issues that are so triable.
3 4 DATED: June I:) ,2006

5 Bingham McCutchen LLP
6

7 8

By: LJtU~[~

9

William F. Abrams Attorneys for Plaintiff

CALIFORNIA ALLIANCE OF CHTI.D AND

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FAMILY SERVICES

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COMPLAINT FOR DECLARATORY JUDGMENT AND PERMANENT INJUNCTIVE RELIEF

 
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1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

NORTHERN DISTRICT OF CALIFORNIA

8

9 CALIFORNIA ALLIANCE OF CHILD AND

FAMILY SERVICES,

10

Plaintiff,

11

v.

No. C 06-04095 MHP MEMORANDUM & ORDER

12 CLIFF ALLENBY and MARY AULT,

13

Defendants.

_____________________________________/

14

15 On June 30, 2006 plaintiff California Alliance of Child and Family Services (“California
16 Alliance”) filed a complaint against Cliff Allenby, Interim Director of the California Department of
17 Social Services (“DSS”), in his official capacity and Mary Ault, Deputy Director of the Children and
18 Family Services Division of DSS (“CFS”), in her official capacity, alleging that defendants violated
19 the foster care provider reimbursement provisions of the Child Welfare Act (“CWA”), 42 U.S.C. §§
20 670-679b. Now before the court is defendants’ motion to dismiss under Federal Rule of Civil
21 Procedure 12(b)(6) for failure to state a claim.
22

23 BACKGROUND1
24 Plaintiff California Alliance is a non-profit organization that represents the interests of group
25 homes that provide for the care and supervision of foster children. California Alliance includes
26 approximately 150 non-profit agencies that provide foster care services, 130 of which operate one or
27 more group homes. Defendant Allenby, as the Interim Director of the California Department of
28 Social Services, is responsible for the administration of the CWA as it relates to programs provided

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1 in California. Allenby’s responsibilities include implementing the state plans approved under the

2 CWA and assuring DSS’s compliance with relevant state and federal law. Defendant Ault is the

3 Deputy Director of CFS and is also responsible for implementing policies contained in the California

4 state plan.

5

Plaintiff seeks declaratory and injunctive relief to enforce the foster care provider

6 reimbursement provisions of the Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. §§

7 670-679b (1994 & Supp. V. 1999), also known as Title IV-E of the Social Security Act. Under its

8 Spending Clause powers, Congress enacted the CWA, which creates a joint federal-state program

9 that provides federal monies to participating states for certain costs of administering the foster care

10 system. The CWA authorizes the allocation of funds to states that comply with certain requirements

11 of the Act. States must submit a plan for assistance to the Department of Health and Human

12 Services for approval. 42 U.S.C. § 671(a). Among other requirements, the CWA provides that

13 participating states provide “foster care maintenance payments” on behalf of eligible children to

14 foster care providers. 42 U.S.C. §§ 617(a)(2), 672(b)(2). Section 675(4)(A) of the Act enumerates

15 the costs to be included in foster care maintenance payments:

16

the cost of (and the cost of providing) food, clothing, shelter, daily supervision, school

supplies, a child’s personal incidentals, liability insurance with respect to a child, and

17

reasonable travel to the child’s home for visitation. In the case of institutional care,

such term shall include the reasonable costs of administration and operation of such

18

institution as are necessarily required to provide the terms described in the preceding

sentence.

19

20

Pursuant to the CWA, California has designated DSS as the agency for implementing the

21 state plan approved by the Department of Health and Human Services. DSS receives the federal

22 funds for the foster care maintenance payments and distributes payments to foster care providers.

23 Since it was implemented by state statute, 1989 Cal. Stat. Ch. 1294, the RCL system has determined

24 the payment rates for foster care group homes. See Cal. Wel. & Inst. Code § 11462. The RCL system

25 assigns each group home to one of fourteen levels based on a number of points. The system assigns

26 points based on the number of paid/awake hours worked per child per month and the qualifications

27 of the staff. The homes at each level receive the same payment rate based on a standardized rate

28 2

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1 schedule. Cal. Wel. & Inst. Code § 11462(f).

2

Plaintiff contends that the RCL system violates the foster care maintenance requirements of

3 the CWA, 42 U.S.C. §§ 671(a)(2), 672(b)(2), 675(4). It further contends that under the RCL system

4 foster care rates have increased by only 26% while the increase in costs incurred by group homes has

5 exceeded 26%. Compl. ¶ 19. Because the foster care maintenance payments are insufficient to cover

6 costs, plaintiff alleges that several of its members have ceased operating their group homes or

7 reduced their capacity. In an effort to compel the DSS to comply with the relevant provisions of the

8 CWA, plaintiff brought this action for declaratory and injunctive relief pursuant to 42 U.S.C. § 1983.

9

On August 25, 2006 defendants filed a motion to dismiss under Federal Rule of Civil

10 Procedure 12(b)(6) for failure to state a claim. The crux of the current dispute between the parties is

11 whether the CWA confers a individual right of enforcement upon plaintiff for foster care maintence

12 payments. Defendants assert in their motion to dismiss that because the CWA does not confer such

13 a right upon California Alliance in accordance with the three-prong Blessing test, its claims must

14 fail. In response, plaintiff contends that the disputed provisions of the CWA evince Congress’s

15 unambiguous intent to confer an individual right upon foster care providers.

16

17 LEGAL STANDARD

18

A motion to dismiss will be denied unless it appears beyond doubt that the plaintiff can prove

19 no set of facts which would entitle him or her to relief. Conley v. Gibson, 355 U.S. 41, 45-46

20 (1957); Fidelity Financial Corp. v. Federal Home Loan Bank of San Francisco, 792 F.2d 1432, 1435

21 (9th Cir. 1986), cert. denied, 479 U.S. 1064 (1987). Allegations of material fact are taken as true and

22 construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d

23 336, 337-38 (9th Cir. 1996). Dismissal can be based on the lack of a cognizable legal theory or the

24 absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police

25 Dep't, 901 F.2d 696, 699 (9th Cir. 1990). The court need not, however, accept as true allegations

26 that are conclusory, legal conclusions, unwarranted deductions of fact or unreasonable inferences.

27 See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); Clegg v. Cult Awareness

28 3

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1 Network, 18 F.3d 752, 754-55 (9th Cir. 1994).

2

3 DISCUSSION

4

Defendants argue that plaintiff has failed to demonstrate that it has a private right of action

5 under 42 U.S.C. § 1983 to enforce the provisions of the Child Welfare Act at issue. Plaintiff must

6 show that it has a right to the establishment of rates under Title IV-E of the Social Security Act. To

7 establish that it has such a right, plaintiff must satisfy the three-part test set out in Blessing v.

8 Freestone, 520 U.S. 329 (1997) and refined in Gonzaga v. Doe, 536 U.S. 273 (2002). First, plaintiff

9 must demonstrate that Congress “unambiguously conferred [a] right to support a cause of action

10 brought under § 1983.” Gonzaga, 526 U.S. at 283. Second, it must also show that the right is not so

11 “vague and amorphous that its enforcement would strain judicial competence.” Blessing, 529 U.S. at

12 341 (citation omitted). Finally, the asserted right must be framed in mandatory rather than precatory

13 terms. Id.

14

The Gonzaga court clarified that the first Blessing factor sets a high bar. It requires clear

15 Congressional intent of an unambiguous grant of private right of enforcement. Gonzaga, 536 U.S. at

16 283. While there are no magic words Congress must use, the Supreme Court has pointed to

17 examples of statutes with explicit rights-creating language. These statutes have an “unmistakable

18 focus on the benefitted class” and are phrased in “explicit rights-creating terms.” Id. at 284. The

19 most frequently cited examples are the language in Title VI of the Civil Rights Act of 1964, 42

20 U.S.C. § 2000d, and Title IX of the Education of Amendments of 1972, 20 U.S.C. § 1681(a), both of

21 which mandate that “[n]o person . . . shall . . . be subject to discrimination.” See Gonzaga, 536 U.S.

22 at 284 (relying on both provisions as containing rights-creating language); ASW v. Oregon, 424 F.3d

23 970, 976 (9th Cir. 2005) (comparing the language in these statutes to language in section 673(a)(3)

24 of the CWA). In the instant case, plaintiff claims a right to enforcement of a monetary entitlement

25 conferred by the CWA and not a prohibition on conduct or discrimination.

26

In conferring rights to enforcement, Congressional intent is expressed in different ways when

27 guaranteeing entitlements than when proscribing conduct. In two cases considering the enforcement

28 4

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1 of specific monetary entitlements, the Court looked to whether Congress required the payment of an

2 objective monetary entitlement and whether there was a sufficient administrative mechanism for

3 enforcing states’ compliance. Gonzaga, 536 U.S. at 280 (discussing Wilder v. Virginia Hospital

4 Ass’n, 496 U.S. 498 (1990) and Wright v. Roanoke Redev. and Housing Auth., 479 U.S. 418

5 (1987)).2 Here, the CWA provides objective criteria for foster care maintenance payments. Section

6 675(4)(A) enumerates the costs to be included in the foster care maintenance payments:

7

the cost of (and the cost of providing) food, clothing, shelter, daily supervision, school

supplies, a child’s personal incidentals, liability insurance with respect to a child, and

8

reasonable travel to the child’s home for visitation. In the case of institutional care,

such term shall include the reasonable costs of administration and operation of such

9

institution as are necessarily required to provide the terms described in the preceding

sentence. 42 U.S.C. § 675(4)(A).

10

11 This list provides specific costs to be reimbursed; it is a far cry from language, such as that requiring

12 “substantial compliance,” that would suggest that Congress intended only to provide a “yardstick”

13 for measuring systemwide performance. Blessing, 520 U.S. at 343. In rejecting claims to

14 enforcement of general provisions of Title IV-D of the Social Security Act, the Blessing Court did

15 not foreclose the possibility that other provisions, like those at issue in this case, give rise to

16 individual rights. Id. at 345. As an example of one provision that might confer individual rights, the

17 Court suggested that if one of the Blessing plaintiffs had brought a claim against the state for failure

18 to pay a portion of child support payments owed to her, Title IV-D might “give her a federal right to

19 receive” the monies. Id. at 345–46. Similarly, when considering a provision that enumerated the

20 monetary benefits to which persons were entitled under the Housing and Community Development

21 Act, the Ninth Circuit concluded that an analogous provision evinced a clear Congressional intent to

22 confer individual rights. Price v. City of Stockton, 390 F.3d 1105, 1112 (9th Cir. 2004) (analyzing

23 Section 104(k), which provided for “reimbursement for actual and reasonable moving expenses,

24 security deposit, credit checks and other moving-related expenses, including any interim living

25 costs”). The list of costs presented in section 675(4)(A) is of the same type of specific, objective

26 monetary entitlement as that in Price.

27

Defendants’ reliance on Sanchez v. Johnson, 416 F.3d 1051 (9th Cir. 2005) to support the

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1 contrary position is unpersuasive. That case dealt with section 30(A) of the Medicaid Act, 42 U.S.C.

2 § 1396a(a)(30)(A), a provision of a strikingly different level of generality from the one facing the

3 court here. Section 30(A) requires states to provide “methods and procedures relating to the

4 utilization of, and the payment for, care and services available under the plan.” The list of costs

5 outlined in CWA goes beyond the requirement of methods and procedures for payments; it requires

6 states to reimburse providers for specific, enumerated costs and is more akin to the spending

7 provisions analyzed in Wilder and Wright.

8

Section 675(4)(A)’s list of costs to be reimbursed is directed toward the individual foster care

9 providers. Defendants argue that the purposes of the CWA are aimed at the children in the foster

10 care system and, therefore, that any rights created by the CWA are the rights of the children and not

11 the providers. The court disagrees. Congress’s declaration of the statutory purpose mentions both

12 states and children as beneficiaries. 42 U.S.C. § 670. However, this is not determinative. The Ninth

13 Circuit concluded that the CWA conferred individual rights on adoptive parents, who were similarly

14 absent from the statute’s purpose. ASW, 424 F.3d at 976; see also Wilder, 496 U.S. at 498

15 (concluding that the Medicaid statute confers monetary entitlements on institutional providers). The

16 foster care payments required by section 672(a) serve a similar function to the adoption assistance

17 payments mandated by CWA section 671 in dispute in ASW: they provide for reimbursement of the

18 costs incurred in providing foster care and adoption services to children. Moreover, the CWA

19 provisions are distinguishable from the statutory provisions at issue in Gonzaga. In that case, the

20 Court noted that the focus on the statutory provisions was “two steps removed from the interests” of

21 the person claiming the individual right, 536 U.S. at 287. In contrast, the CWA contemplates

22 payments directly to providers, and the providers seek enforcement of that right.

23

Defendants also contend that plaintiff here, an association of providers, is doubly removed

24 from the intended beneficiaries of the CWA. Plaintiff association represents institutional providers

25 in the state of California—the very entities to whom foster care maintenance payments are made.

26 The association here is of the same type and nature as the Virginia Hospital Association which

27 sought to vindicate the rights of the hospitals of Virginia in Wilder. 496 U.S. at 503; see also

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1 Missouri Child Care Ass'n v. Cross, 294 F.3d 1034, 1036 (8th Cir. 2002) (upholding a similar

2 challenge to section 675(4) brought by an association of institutional foster care providers).

3 Defendants further argue that Congress’s failure to provide for specific enforcement language for the

4 foster care maintenance payments evinces an intent that the provisions not be enforced through

5 actions brought under section 1983. Defendants point to the separate enforcement provision

6 provided in section 674(d) for enforcement of the CWA’s anti-discrimination provision, section

7 671(a)(18). The mere fact that the CWA contains a reference for a remedy for discrimination does

8 not exclude evaluating other statutory provisions under Blessing and Gonzaga. The Congress

9 unambiguously conferred a right to reimbursement of the specific costs outlined in section

10 675(4)(A). The court finds that the first Blessing factor is satisfied.

11

The second factor addresses whether the CWA provisions at issue are so vague and

12 amorphous that they are not judicially enforceable. In a substantially similar challenge brought by a

13 trade association of foster care providers to Missouri’s foster care reimbursement system, the district

14 court concluded that the costs enumerated in section 675(4)(A) were sufficiently defined to permit

15 judicial enforcement. “Payments [in section 675(4)(A)] are based either on itemized costs or

16 reasonable overhead, issues routinely entrusted to the judiciary in both statutory and common law

17 actions.” Missouri Child Care Ass'n v. Martin, 241 F.Supp. 2d 1032, 1041 (W.D. Mo. 2003); see

18 also Wilder, 496 U.S. at 519–20 (determining that rate calculation pursuant to statutory guidelines is

19 enforceable by a court). Indeed, section 675(4)(a) contains an explicit and detailed provision for

20 determining payments to foster care providers. The second Blessing factor is, therefore, satisfied.

21

Finally, the language of disputed statutory provisions must be couched in mandatory terms.

22 Section 671(a)(1) states that “[i]n order for a State to be eligible for payments under this part [42

23 U.S.C. §§ 670 et seq.], it shall have a plan approved by the Secretary which provides for foster care

24 maintenance payments in accordance with [section 672].” (emphasis added) Section 672, in turn,

25 mandates that “each State with a plan approved under this part shall make foster care maintenance

26 payments on behalf of each [eligible] child” (emphasis added). Plaintiff argues that this provision

27 imposes an absolute duty on the State to make foster care maintenance payments similar to that

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1 required by the language of Title IV, “No person shall . . . be subjected to discrimination.” The

2 court agrees. In clear language, the CWA requires states make foster care maintenance payments.

3 Therefore, the third factor is satisfied.

4

Accordingly, the court concludes that CWA confers an individual right on plaintiff’s

5 members for enforcement of the foster care maintenance payments pursuant to section 675(4)(A).

6

7 CONCLUSION

8

For the foregoing reasons, the court hereby DENIES defendants’ motion to dismiss for failure

9 to state a claim.

10

11

IT IS SO ORDERED.

12 Dated:
13
14
15

Oct. 26, 2006

_______________________________ MARILYN HALL PATEL District Judge United States District Court Northern District of California

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1

ENDNOTES

2 1. Unless otherwise noted, the facts provided are taken from the Complaint.
3

4 2. Defendant’s argument that a footnote in Justice Stevens’ dissent in Gonzaga planted the seeds of a major reversal of the Court’s position in Wilder and Wright is misguided. See Gonzaga, 563 U.S.

5 at 300, n.8 (Stevens, J., dissenting). (“Indeed, endorsing such a framework sub silentio overrules

6

cases such as Wright and Wilder. In those cases we concluded that the statutes at issue created rights enforceable under § 1983, but the statutes did not “clear[ly] and unambiguous[ly],” intend

7 enforceability under § 1983.”) (citation omitted). In his opinion for the majority, Justice Rehnquist

made no intimations at overruling Wright or Wilder. By contrast, he discussed the two cases at great 8 length and relied on them to distinguish cases which satisfy the Blessing factors from ones which do

9 not. Gonzaga, 563 U.S. at 280–81. The Sanchez court characterized Justice Stevens’ footnote as nothing more than a “suggestion” of the implications of the Gonzaga majority’s reasoning; it

10 decidedly did not interpret Gonzaga as overruling the two cases. Sanchez v. Johnson, 416 F.3d 1051,

11 1056, n.3 (9th Cir. 2005).

12

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UNITED STATES DISTRICT COURT
For the Northern District of California

1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

NORTHERN DISTRICT OF CALIFORNIA

8

9 CALIFORNIA ALLIANCE OF CHILD AND

FAMILY SERVICES,

10

Plaintiff,

11

v.

12 CLIFF ALLENBY and MARY AULT,

No. C 06-04095 MHP
MEMORANDUM & ORDER Re: Cross-Motions for Summary Judgment

13

Defendants.

_____________________________________/

14

15

On June 30, 2006 plaintiff California Alliance of Child and Family Services (“California

16 Alliance”) filed a complaint against Cliff Allenby, Interim Director of the California Department of

17 Social Services (“CDSS”), in his official capacity, and Mary Ault, Deputy Director of the Children

18 and Family Services Division of CDSS (“CFS”), in her official capacity, alleging that defendants

19 violated the foster care provider reimbursement provisions of the Child Welfare Act (“CWA”), 42

20 U.S.C. sections 670–79b. Now before the court are the parties’ cross-motions for summary

21 judgment. The court has considered the parties’ arguments fully, and for the reasons set forth below,

22 the court rules as follows.

23

24 BACKGROUND

25 I. Federal Law

26

The CWA establishes a cooperative federal-state program that assists states in meeting the

27 costs of providing foster care to children. Pursuant to this federal spending clause legislation, the

28 federal government and the state governments share the cost of providing funds for licensed third

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For the Northern District of California

1 parties (e.g., group homes) that care for these children. The CWA and related federal regulations

2 require states receiving federal aid to provide foster care for a child when a court has determined that

3 it is necessary under applicable law that the child be removed from his or her home and placed in

4 out-of-home care. See, e.g., 42 U.S.C. §§ 670–79b.

5

The CWA requires that states participating in the cooperative program provide “foster care

6 maintenance payments” on behalf of eligible children to child-care institutions, including group

7 homes. 42 U.S.C. §§ 671(a)(2), 672(b)(2); 45 C.F.R. § 1356.21(a). “The term ‘foster maintenance

8 payments’ means payments to cover the cost of (and the cost of providing) food, clothing, shelter,

9 daily supervision, school supplies, a child’s personal incidentals, liability insurance with respect to a

10 child, and reasonable travel to the child’s home for visitation.” 42 U.S.C. § 675(4)(a). “In the case

11 of institutional care, such term shall include the reasonable costs of administration and operation of

12 such institution as are necessarily required to provide the items described in the preceding sentence.”

13 Id.

14

To become eligible for federal funding, a state must submit a plan for financial assistance to

15 the Secretary of the U.S. Department of Health and Human Services (“DHHS”) for approval. As a

16 prerequisite for DHHS approval, the submitting state must agree, among other conditions, to

17 administer its foster care program pursuant to the CWA, related regulations, and policies

18 promulgated by the Secretary of the DHHS. Id. § 671(a), (b); 45 C.F.R. §§ 233.110, 1355.21,

19 1356.20, 1356.21. Pursuant to the CWA, a state must designate a state agency to administer and/or

20 supervise the administration of the approved state plan. 42 U.S.C. § 671(a)(2). The state must also

21 amend its approved plan by appropriate submission to the Secretary of the DHHS whenever, among

22 other instances, necessary to comply with alterations to the CWA and/or federal regulations or

23 policies. 45 C.F.R. § 1356.20(e)(1).

24

25 II. California Law

26

For all relevant periods, the CDSS has been the state agency responsible for submitting the

27 California state plan to the Secretary of the DHHS for approval. Cal. Welf. & Inst. Code §

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1 11460(a). Subsequent to approval, the CDSS receives federal funding intended to cover a portion of

2 the foster care maintenance payment made to group homes on behalf of eligible children. See

3 generally id. § 11462. Over the past seventeen years, the California scheme described below has

4 never been rejected by the DHHS.

5

California law states that “[f]oster care providers shall be paid a per child per month rate in

6 return for the care and supervision of the AFDC-FC child placed with them.” Id. § 11460(a).

7 Further, “care and supervision” is defined as “food, clothing, shelter, daily supervision, school

8 supplies, a child’s personal incidentals, liability insurance with respect to a child, and reasonable

9 travel to the child’s home for visitation.” Id. § 11460(b). Although this is largely similar to the

10 definition of “foster care maintenance payments” found in the CWA, it does not include the “(and

11 the cost of providing)” language found in the federal law. Compare id. with 42 U.S.C. 675(4)(a).

12

CDSS uses a Rate Classification Level (“RCL”) system, which incorporates the requirements

13 above, to establish payment rates for foster care group home programs. See generally Cal. Welf. &

14 Inst. Code § 11462. The RCL system, therefore, also incorporates all of the relevant federal

15 statutory considerations except the “cost of providing” language. The RCL system was

16 implemented during the 1990-91 fiscal year. The CDSS, through the CFS, assigns group home

17 programs to one of fourteen levels (i.e., RCLs)1 and all of the group home programs with the same

18 RCL receive the same payment rate based on the standardized schedule of rates set forth in state

19 law.2

20

The initial standardized schedule of foster care rates for the 1990-91 fiscal year was

21 developed using 1985 calendar year costs. This schedule must be increased each fiscal year in

22 tandem with the California Necessity Index (“CNI”). Id. § 11462(c). The CNI is a weighted

23 average of increases in various necessary costs of living for low-income consumers, including food,

24 clothing, fuel, utilities, rent, and transportation. Id. § 11453(a). State law, however, allows the CNI

25 increase to be circumvented in certain situations. Specifically, “[b]eginning with the 2000-01 fiscal

26 year, the standardized schedule of rates shall be adjusted annually by an amount equal to the CNI

27 computed pursuant to section 11453, subject to the availability of funds.” Id. § 11462(g)(2)

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1 (emphasis added).

2

3 III. Factual Background3

4

Since the 1990-91 fiscal year, the standardized schedule of foster care rates established under

5 the RCL system has been increased by approximately 27 percent, whereas the CNI has increased

6 approximately 59 percent. Concurrently, the increase in actual costs that some group homes incur to

7 care for and supervise children exceeded 27 percent. The last increase in the standardized schedule

8 of foster care rates under the RCL system was in July, 2001.

9

Since 2001, however, the CDSS has not conducted any annual reviews of rates set forth in

10 the RCL system. Dupuy Supp. Dec., ¶ 9. Specifically, the CDSS only re-evaluates the rate schedule

11 when it is provided with funding increases. Id., ¶ 10. The CDSS does, however, provide the

12 legislature with annual reports, entitled “New Foster Care Group Home Requirements/Increases in

13 Industry’s Costs” for use by the legislature in its decision-making process. Id., Exh’s. A–E.

14

The percentage of actual costs that group homes recoup through the RCL system has

15 diminished over time due, in part, to (1) an increase in the actual costs associated with food,

16 clothing, shelter, daily supervision, school supplies, a child’s personal incidentals, liability insurance

17 with respect to a child, and reasonable travel to the child’s home for visitation, and (2) “new” costs

18 that group homes must incur to satisfy added federal, state and county requirements.

19

20 LEGAL STANDARD

21

Summary judgment is proper when the pleadings, discovery and affidavits show that there is

22 “no genuine issue as to any material fact and that the moving party is entitled to judgment as a

23 matter of law.” Fed. R. Civ. P. 56(c). Material facts are those which may affect the outcome of the

24 case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is

25 genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving

26 party. Id. The party moving for summary judgment bears the burden of identifying those portions

27 of the pleadings, discovery and affidavits that demonstrate the absence of a genuine issue of material

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1 fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). On an issue for which the opposing party

2 will have the burden of proof at trial, the moving party need only point out “that there is an absence

3 of evidence to support the nonmoving party’s case.” Id.

4

Once the moving party meets its initial burden, the nonmoving party must go beyond the

5 pleadings and, by its own affidavits or discovery, “set forth specific facts showing that there is a

6 genuine issue for trial.” Fed. R. Civ. P. 56(e). Mere allegations or denials do not defeat a moving

7 party’s allegations. Id.; Gasaway v. Nw. Mut. Life Ins. Co., 26 F.3d 957, 960 (9th Cir. 1994). The

8 court may not make credibility determinations, and inferences to be drawn from the facts must be

9 viewed in the light most favorable to the party opposing the motion. Masson v. New Yorker

10 Magazine, 501 U.S. 496, 520 (1991); Anderson, 477 U.S. at 249.

11

12 DISCUSSION

13

Plaintiff argues that the federal statute is mandatory because it requires that payments for

14 items enumerated in the CWA shall be made. 42 U.S.C. §§ 672(a)(1) (“[e]ach State with a plan

15 approved under this part shall make foster care maintenance payments on behalf of each child who

16 has been removed from the home of a relative . . . .” (emphasis added)). As noted above, California

17 has an approved plan under the CWA. Therefore, in order to receive federal funds, California has a

18 mandatory duty to make foster care maintenance payments. California, however, does not increase

19 the maintenance payments with cost of living increases when funds for the same are not available.

20 Plaintiff’s argument thus boils down to the fact that payments to foster care providers do not always

21 increase in tandem with the CNI. This issue—whether failing to increase foster care payments

22 according to cost of living increases is a violation of the CWA—is an issue of first impression in this

23 Circuit.

24

The State argues that its system for administering and implementing the foster care program

25 is in compliance with federal law because the system was approved by the DHHS. Moreover, in the

26 RCL’s seventeen years of existence, the system has never been rejected by the DHHS. The agency’s

27 approval, however, is not dispositive.4 The CWA’s criteria “are sufficiently detailed to put the State

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1 on notice and to permit a court to review whether the State has based its reimbursement on those

2 statutory criteria.” Missouri Chid Care Ass’n v. Martin, 241 F. Supp. 2d 1032, 1044 (W.D. Mo.

3 2003); see also Orthapedic Hospital v. Belshe, 103 F.3d 1941, 1496 (9th Cir. 1997) (holding that

4 federal courts do not defer to the state to answer whether state law is consistent with federal law).

5 Thus, the court must determine whether the State based its reimbursement standard on the statutory

6 criteria mandated by the federal statute.

7

In Martin, the district court held that when determining reimbursement rates for foster care

8 providers, “the State is obligated to have a process for determining rates that takes into account the

9 statutory criteria mandated by the CWA.” 241 F. Supp. 2d at 1045. In this case, the State has

10 presented uncontroverted evidence that “[i]n fiscal year 1990-91, each [foster care] provider

11 submitted data on rate, costs, and staffing levels from the prior fiscal year that substantiated the RCL

12 at which its program would enter the flat rate system.” Dupry Dec., ¶ 8. This evidence, in

13 conjunction with the California statute implementing the CWA that largely mirrors the CWA’s

14 language, convinces the court that the State took the statutory criteria mandated by the CWA into

15 account.

16

The court also concludes that the lack of the “cost of providing” language in the California

17 statute does not compel an alternate outcome. The Martin court found that the State “need only be

18 in substantial compliance with the CWA.” Martin, 241 F. Supp. 2d at 1046 n.7. Here, the State is in

19 substantial compliance with the CWA because its statute largely mirrors the language in the CWA.

20 The court’s holding is further buttressed by plaintiff’s failure to present any evidence that the State’s

21 initial rate determination, in 1990-91, did not take the CWA factors into account.

22

The court is aware that over time, given a multitude of years with budgetary constraints, the

23 standard rate schedule could become greatly out of synch with the costs of items enumerated in the

24 CWA. In that case, the rate may very well fall to a level that does not satisfy the State’s obligation

25 to “have a process for determining rates that takes into account the statutory criteria mandated by the

26 CWA.” Martin, 241 F. Supp. 2d at 1045. Currently, the RCL system provides payments at 127% of

27 its 1990-91 levels, whereas the CNI is at 159% of its 1990-91 levels. As discussed above, the initial

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1 RCL reflected the costs faced by foster care providers. Therefore, today the RCL provides for at

2 least 80% of the costs associated with the items enumerated in the CWA. Consequently, the process

3 for determining foster care payment rates is still substantially compliant with the statutory criteria

4 outlined in the CWA.5

5

Plaintiff next argues that the CWA requires actual costs of foster care be paid by the State.

6 In response, the State argues that the CWA nowhere mentions actual costs. It is clear that foster care

7 maintenance payments are to include the costs of certain enumerated items, including the costs of

8 “reasonable travel to the child’s home for visitation.” 42 U.S.C. § 675(4)(a). In the case of

9 institutional providers, however, the statute goes on to state that “such term shall include the

10 reasonable costs of administration and operation of such institution as are necessarily required to

11 provide [the enumerated items].”6 Id. Thus, though the statute mentions reasonable costs, it is silent

12 about actual costs. Without explicit statutory authorization or any other evidence in support, the

13 court cannot find the requisite statutory intent to provide payments of actual costs.

14

Finally, plaintiff argues that there is no lack of funds exception to the CWA and thus the

15 State’s budgetary considerations are not an acceptable excuse to avoid increasing payments in line

16 with CNI. Plaintiff cites Blanco v. Anderson, 39 F.3d 969 (9th Cir. 1994), in support. Blanco is

17 inapposite because it dealt with the weekday closings of county welfare offices. It held that the

18 welfare office must be available by phone, on regular working days, to address life threatening

19 emergencies. In this context, it stated that “[l]ack of resources and lack of bad faith on the part of

20 the agency officials [are] no excuse for failing to provide the plaintiffs their statutory entitlements.”

21 Id. at 973 (internal quotation omitted). The case at bar is distinguishable since plaintiff has not cited

22 any emergency situation nor any regulation, as in Blanco, that prohibits the State from taking

23 budgetary considerations into account. See id. (citing to a regulation requiring arrangements to

24 assist applicants and recipients in obtaining medical care and services in emergency situations on a

25 24-hour basis, 7 days a week).

26

Though plaintiff argues there’s no lack of funds exception in the CWA, plaintiff ignores the

27 fact that the CWA does not prohibit taking budgetary considerations into account. Plaintiff claims a

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1 violation of federal law, but is unable to point to any federal statute that compels cost of living

2 increases for payments made to foster care providers. Instead, plaintiff chooses the portions of the

3 State statute that support its position and ignores the rest. Indeed, the lack of funds exception is in

4 the same State statute that guarantees the CNI increases. It is disingenuous for plaintiff to argue that

5 CNI increases are mandatory when the latter half of the very clause that provides for the increases

6 allows budgetary considerations to make the increases discretionary.

7

The Martin court, which is more on point here, stated that the “State may take into

8 consideration budget considerations when setting its reimbursement methodology.” 241 F. Supp. 2d

9 at 1046. This court is persuaded that the Martin court was correct. As stated above and in Martin,

10 while availability of funds cannot be the only consideration when setting reimbursement

11 methodology it may be a consideration. Here, the State statute’s language provides the

12 methodology for determining the rates and adjustments to them and it makes the “resultant amounts”

13 subject to budgetary considerations. The court cannot say that the State’s actions are arbitrary or

14 capricious. Indeed, the State has provided for CNI increases on numerous occasions over the past

15 seventeen years.

16

In sum, with respect to institutional providers, the State’s methodology in determining foster

17 care payments must consider the costs of the items enumerated in the federal statute. See 42 U.S.C.

18 § 675(4)(a). The methodology must also consider the reasonable costs of the administration and

19 operation of such institutions. Id. In addition, the State may account for budgetary considerations as

20 long as payment levels remain in substantial compliance with the costs to be incurred. Since the

21 California scheme takes the appropriate statutory considerations into account and is in substantial

22 compliance with the CWA, federal law has not been violated. Nevertheless, it is worth repeating

23 that without further increases over time, the California system may well be in violation of federal

24 law.

25

The court recognizes the compelling needs of children dependent on group homes and foster

26 care. The court also is aware of the State of California’s budgetary woes. Certainly, it is well known

27 that other governmental departments within the State vociferously lobby for more funds, some with

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For the Northern District of California

1 greater success than others, some with more compelling claims than others. But, nothing could be

2 more compelling than the needs of the State’s children. Although CDSS may be correct in

3 interpreting section 11462(g)(2) as pegging the need for adjustments of rates to availability of funds,

4 conducting an annual review demonstrating the disparity between the adjusted rate provided by the

5 statute with the amount actually being paid may serve the Department and the Legislature well in

6 showing they are shortchanging the State’s neediest children. It behooves the CDSS to adhere to its

7 mandate to protect and care for these children and to vigorously fight for the funds necessary to

8 discharge the Department’s responsibility.

9

10 CONCLUSION

11

For the foregoing reasons, plaintiff’s motion for summary judgment is DENIED and

12 defendants’ motion for summary judgment is GRANTED.

13

IT IS SO ORDERED.

14 Dated: 3/11/2008

15

_______________________________

MARILYN HALL PATEL

16

United States District Court Judge

Northern District of California

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1

ENDNOTES

2 1. The RCL is based on the group home program’s number of “points.” The number of points 3 is based principally on: 1) the number of “paid/awake” hours worked per month by child care and
social work staff; 2) the qualifications of the staff; and 3) the hours of mental health treatment 4 services provided. The total number of points generated equates to a specific RCL and
corresponding payment rate. 5
6 2. Two group homes, however, have grandfathered-in rates of reimbursement.
7 3. Unless otherwise noted, the facts are taken from the Amended Joint Statement of Undisputed Facts (“JSUF”), dated September 12, 2007. See Docket No. 41. For a general overview and
8 background regarding the parties and the proceedings in this action, see the court’s memorandum 9 and order denying defendants’ motion to dismiss. Docket No. 24.

10 4. Chevron U.S.A., Inc. v. Natural Resources Defense Council Inc., 467 U.S. 837, 843 (1984), is not applicable here since no federal agency is interpreting federal statutes. No definition of the
11 CWA’s requirements as defined by the DHHS is in question.
12 5. This is further buttressed by the fact that plaintiff has not presented any evidence that group 13 homes are going out of business.

14 6. Since plaintiff represents institutional providers only, only the institutional provider aspect of 15 42 U.S.C. section 675(4)(a) is discussed.

16

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FILED

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

JAN 1 II 2008

RELATED CASE ORDER

RJ~rt.~f.D~tltb~Ero~~f
NORTHERN 016iRIOT OF CALifORNIA

A Motion for Administrative Relief to Consider Whether Cases Should be Related or a Sua Sponte Judicial Referral for Purpose of Detennining Relationship (Civil L.R. 3-12) has been filed. The time for filing an opposition or statement of support has passed. As the judge assigned to the earliest filed case below that bears my initials, I find that the more recently filed case(s) that I have initialed below are related to the case assigned to me, and such case(s) shall be reassigned to me. Any cases listed below that are not related to the case assigned to me are referred to the judge assigned to the next-earliest filed case for a related case detennination.

C 06-04095 MHP C 07-05086 WHA

California Alliance of Child and Family Services v. Allenby et al California State Foster Parent Association et al v. Waener et aI

I find that the above case is related to the case assigned to me. -----;I"......,

I find that the above case is NOT related to the case assigned to me. -.'71"'-"'-

ORDER

'-'v,......."'"'-Ji~r,e instructed that all future filings in any reassigned case are to bear the initials ofth

assigned judge immedia

e case number. Any case management conference in

gned case will be

rescheduled by the Court. The parties sua'

tes for the co

,sc osures and report required by

FRCivP 16 and 26 accordingly. Unless otherwise

, any

rin noticed motions are vacated and

must be re-noticed by the moving

ore the newly assigned judge; any dea mes

cal Rules

remain in effect; and a

mes established in a case management order continue to govern, except dates for

appearance'

, which will be rescheduled by the newly assigned judge.

Dated:_~ _ _ _ __

-1-

 
 Case3:06-cv-04095-MHP Document83 Filed09/25/09 Page1 of 1
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
RELATED CASE ORDER
A Motion for Administrative Relief to Consider Whether Cases Should be Related or a Sua Sponte Judicial Referral for Purpose of Determining Relationship (Civil L.R. 3-12) has been filed. The time for filing an opposition or statement of support has passed. As the judge assigned to the earliest filed case below that bears my initials, I find that the more recently filed case(s) that I have initialed below are related to the case assigned to me, and such case(s) shall be reassigned to me. Any cases listed below that are not related to the case assigned to me are referred to the judge assigned to the next-earliest filed case for a related case determination.
C 06-04095 MHP California Alliance of Child and Family Services v. Allenby et aI C 09-04398 VRW California Alliance of Child and Famil Services v.
I find that the above case is related to the case assigned to me. -fi,;.<q-¥,-
ORDER
Counsel are instructed that all future filings in any reassigned case are to bear the initials of the newly assigned judge immediately after the case number. Any case management conference in any reassigned case will be rescheduled by the Court. The parties shall adjust the dates for the conference, disclosures and report required by FRCivP 16 and 26 accordingly. Unless otherwise ordered, any dates for hearing noticed motions are vacated and must be renoticed by the moving party before the newly assigned judge; any deadlines set by the ADR Local Rules remain in effect; and any deadlines established in a case management order continue to govern, except dates for appearance in court, which will be rescheduled by the newly assigned judge.
Dated:
-1-

 
 Case: 08-16267 12/14/2009 Page: 1 of 18 ID: 7162739 DktEntry: 21-1

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

 CALIFORNIA ALLIANCE OF CHILD AND
FAMILY SERVICES, Plaintiff-Appellant,

v.

CLIFF ALLENBY, Interim Director of

No. 08-16267

the California Department of Social Services, in his official capacity; MARY AULT, Deputy Director of the Children and

 D.C. No. 3:06-cv-04095-MHP OPINION

Family Services Division of the

California Department of Social

Services, in her official capacity,

 Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California
Marilyn H. Patel, District Judge, Presiding

Argued and Submitted October 7, 2009—San Francisco, California

Filed December 14, 2009

Before: Alfred T. Goodwin and Pamela Ann Rymer, Circuit Judges, and George H. Wu,* District Judge.

Opinion by Judge Rymer; Concurrence by Judge Wu

*The Honorable George H. Wu, United States District Judge for the Central District of California, sitting by designation.
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COUNSEL
William F. Abrams, East Palo Alto, California, for the appellant.
George Prince, Deputy Attorney General, San Francisco, California, for the appellees.
OPINION
RYMER, Circuit Judge:
California Alliance of Child and Family Services, an association of private, non-profit agencies that provide adoption, foster care, and group home services, appeals the summary judgment entered in favor of Cliff Allenby, the interim director of the California Department of Social Services (the State). We must determine whether the State is in compliance with the federal Child Welfare Act’s (CWA) mandate that a participating state “cover the cost” of certain enumerated items for foster care group homes when it pays at a rate that is approximately 80 percent of actual 1986-1987 costs adjusted for inflation. The district court concluded that this substantially complies with the CWA. We disagree; the natural meaning of “cover the cost” is to pay in full, not in part. As the State isn’t doing this, we reverse.
I
The CWA, codified at 42 U.S.C. §§ 670-679b, was enacted in 1980 and creates an opt-in scheme whereby states can

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receive federal funding to assist in the costs associated with raising children who are dependants or wards of the state. To qualify for federal funding, the state agrees to abide by certain requirements.

The state must first submit a plan to the Secretary of the United States Department of Health and Human Services (DHHS). See 42 U.S.C. § 671(a). Among other things, the plan must “provide[ ] for foster care maintenance payments in accordance with” other provisions of the CWA. 42 U.S.C. § 671(a)(1). The state must also designate a state agency to administer the plan once approved, and must agree to amend its plan to comply with any changes made to the CWA or other applicable federal law. 42 U.S.C. § 671(a)(2); 45 C.F.R. § 1356.20(d)(1).

The CWA further provides that any state with an approved plan “shall make foster care maintenance payments on behalf of each” qualifying child. 42 U.S.C. § 672(a)(1). The phrase “foster care maintenance payments” is defined as

payments to cover the cost of (and the cost of providing) food, clothing, shelter, daily supervision, school supplies, a child’s personal incidentals, liability insurance with respect to a child, reasonable travel to the child’s home for visitation, and reasonable travel for the child to remain in the school in which the child is enrolled at the time of placement. In the case of institutional care, such term shall include the reasonable costs of administration and operation of such institution as are necessarily required to provide the items described in the preceding sentence.

42 U.S.C. § 675(4)(A).

California has created its own statutory scheme in an

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attempt to comply with the CWA.1 It has designated the California Department of Social Services (CDSS) as the agency responsible for administering California’s CWA plan. See Cal. Welf. & Inst. Code §§ 11229, 11460(a). The plan calls for CDSS to pay foster care providers on “a per child per month rate in return for the care and supervision of the [ ] child placed with them.” Cal. Welf. & Inst. Code § 11460(a). “Care and supervision” is defined in such a way that it substantially mirrors the federal definition of foster care maintenance payments. It covers “food, clothing, shelter, daily supervision, school supplies, a child’s personal incidentals, liability insurance with respect to a child, and reasonable travel to the child’s home for visitation.” Cal. Welf. & Inst. Code § 11460(b).

California uses the Rate Classification Level system (RCL) to determine the amount of the foster care maintenance payments it makes. See Cal. Welf. & Inst. Code § 11462. The RCL uses a point system that classifies group homes in fourteen categories—the funding they receive depends on the category. See Cal. Welf. & Inst. Code § 11462(b), (d)-(f). A group home’s RCL is based on “the level of care and services that the group home operator projects will be provided during the period of time for which the rate is being established,” Cal. Welf. & Inst. Code § 11462(e), and payments are made on a per child, per month basis, Cal. Welf. & Inst. Code § 11460(a). The rates were initially made effective on July 1, 1990, relying on data from a study of 1985 calendar year costs and since then reflect adjustments made, starting with the 1986-1987 fiscal year, based on the California Necessities Index (CNI). See Cal. Welf. & Inst. Code § 11462(c). The

1California’s Title IV-E State Plan consists of a compilation of California statutes, regulations, All County Letters, All County Information Notices, County Fiscal Letters, and other documents that are intended to implement federal requirements for the federal foster care program in order to claim Federal Financial Participation in payments made under the program.

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CNI is a weighted average of changes in various costs of living for low-income consumers, including food, clothing, fuel, utilities, rent and transportation. See, e.g., Cal. Welf. & Inst. Code § 11453(a). Thus, these annual adjustments reflect any increase or decrease in the cost of living, as measured by one constant calculation of inflation—the CNI. See id. Beginning with the 2000-2001 fiscal year, the California statute has provided that “the standardized schedule of rates [for group homes] shall be adjusted annually by an amount equal to the CNI computed pursuant to Section 11453, subject to the availability of funds. The resultant amounts shall constitute the new standardized schedule of rates.” Cal. Welf. & Inst. Code § 11462(g)(2).2

II

The Alliance accepts the State’s system for calculating costs to be covered, but takes issue with the State’s underfunding of foster care maintenance payments as a result of having failed to adjust the standardized schedule of rates by an amount equal to the CNI since 2001. Accordingly, it brought this action, asserting that the State is violating CWA’s mandate to cover costs, and seeking declaratory and injunctive relief under 42 U.S.C. § 1983.

After discovery, the parties filed cross motions for summary judgment. In a joint statement of undisputed facts they agreed that since the inception of the RCL, the payment schedule has increased by approximately 27 percent; that since the 1990-1991 fiscal year, the actual costs incurred by group homes for the care and supervision of children has

2See also Cal. Welf. & Inst. Code § 11453(c)(3) (“In any fiscal year commencing with the 2000-01 fiscal year to the 2003-04 fiscal year, inclusive, when there is no increase in tax relief pursuant to the applicable paragraph of subdivision (a) of Section 10754 of the Revenue and Taxation Code, then any increase pursuant to subdivision (a) of this section shall be suspended.”).

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increased by more than 27 percent; and that the CNI has increased by approximately 59 percent since the 1990-1991 fiscal year. The State admits that as of 2005-2006, it was making foster care maintenance payments at an amount approximately 80 percent3 of what they would have been had it made yearly CNI adjustments.

The district court granted summary judgment in favor of the State. The court concluded that the State based its initial reimbursement standard on the statutory criteria mandated by the federal statute. Although the court recognized that the standard rate schedule could become so out of sync with the cost of items listed in the CWA that the California system would be in violation of federal law, it concluded that the process for determining foster care payment rates remains substantially compliant given that today, the RCL provides for about 80 percent of the costs associated with those items. Finally, the court held that the CWA does not prohibit the State from taking budgetary considerations into account.4

III

“We review the district court’s decision to grant summary judgment de novo. Thus, viewing the evidence in the light most favorable to the nonmoving party, we must determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law.” Fichman v. Media Center, 512 F.3d 1157, 1159

3127 percent divided by 159 percent (the level payments would have been at had the State followed its initial plan to tie adjustments to the CNI) equals 79.8 percent.
4The Alliance subsequently moved for reconsideration under Federal Rules of Civil Procedure 59(e) and 60(b) on the footing that the State’s new proposed budget would result in payments decreasing to 70 percent of the amount group homes would have been entitled to had the State followed the adjustment scheme it originally implemented. The district court denied leave to file the motion because the proposed budget had not yet been passed, making the Alliance’s new claims unripe.

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(9th Cir. 2008) (internal citation omitted); see also Fed. R. Civ. P. 56(c). We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 1331.5

IV

[1] The threshold question in this case is what the CWA actually mandates the State to do. Section 672(a)(1) provides that the State “shall make foster care maintenance payments on behalf of each” qualifying child—that is, “payments to cover the cost of (and the cost of providing)” various daily living expenses, 42 U.S.C. § 675(4)(A). We therefore must answer two questions: (1) What does it mean to “cover” costs? and (2) how are “costs” defined? We address each question in turn.

[2] In determining what it means to “cover” costs, we look to the relevant statute for context. “In interpreting a statute, we first look to the plain meaning of its text.” See Paul Revere Insurance Group v. United States, 500 F.3d 957, 962 (9th Cir. 2007). Absent a definition in the statute itself, in

5We note that district courts across the country have split on whether the CWA creates a private right of action. Compare Cal. Alliance of Child & Fam. Servs. v. Allenby, 459 F.Supp.2d 919, 922-25 (N.D. Cal. 2006) (finding a private right of action under the CWA); Cal. State Foster Parent Assoc. v. Wagner, No. C 07-05086 WHA, 2008 WL 191283 (N.D. Cal. Jan. 22, 2008) (same); Kenny A. ex rel. Winn v. Perdue, 218 F.R.D. 277, 302-04 (N.D. Ga. 2003) (same); Missouri Child Care Ass’n v. Martin, 241 F.Supp.2d 1032, 1037-42 (W.D. Mo. 2003) (same), with Carson P. ex rel. Foreman v. Heineman, 240 F.R.D. 456, 539-41 (D. Neb. 2007) (finding no private right of action under the CWA); Olivia Y. ex rel. Johnson v. Barbour, 351 F.Supp.2d 543, 564-65 (S.D. Miss. 2004) (same). Yet, the state makes no argument on appeal on this point. If the question were jurisdictional, we would nonetheless be required to raise the concern ourselves; but the Supreme Court has stated explicitly that “whether a cause of action exists is not a question of jurisdiction.” Burks v. Lasker, 441 U.S. 471, 476 n.5 (1979). Accordingly, our familiar rule that issues not raised in the briefing are deemed waived, see United States v. Loya, 807 F.2d 1483, 1486-87 (9th Cir. 1987), is applicable.

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attempting to divine the meaning of a particular word we generally use the “ordinary, contemporary, common meaning.” Wilderness Society v. U.S. Fish & Wildlife Service, 353 F.3d 1051, 1060 (9th Cir. 2003) (en banc) (internal quotation marks omitted); see United States v. Smith, 155 F.3d 1051, 1057 (9th Cir. 1998). Here, the term “cover” and the phrase “cover the costs” are both left undefined by the CWA. In these circumstances, consulting common dictionary definitions is the usual course. See Wilderness Society, 353 F.3d at 1061.

[3] Various dictionaries indicate that to “cover” in the context of costs means an amount sufficient to pay all the costs. See, e.g., Concise Oxford English Dictionary 330 (Catherine Soanes & Angus Stevenson, eds., 11th ed., Oxford Univ. Press 2004) (“(of money) be enough to pay (a cost): there are grants to cover the cost of materials for loft insulation”); Webster’s Third New International Dictionary 524 (MerriamWebster 2002) (“to be adequate to defray or compensate”). This comports with the common understanding of what it means to “cover the cost.” For example, we normally understand an obligation to maintain sufficient funds in a bank account to cover checks as requiring us to provide enough money in reserve to offset the amount of the check. Eighty percent of the amount won’t do. On the other hand, it is easy to imagine an alternate scenario where “cover” is qualified. For example, parents might tell their child they will help cover the cost of college. In such a scenario, the common understanding would be that the parents will cover some, but not all, of their child’s college-related expenses. But here, because the CWA leaves “cover” unqualified, the common understanding is that it must refer to meeting all the costs of food, clothing, shelter, etc. See 42 U.S.C. § 675(4)(A).

[4] The question then becomes one of measuring the cost of those covered items. While the CWA identifies the types of items that must be covered, it does not prescribe any particular metric to measure the cost of those items. Each state

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develops its own plan. California uses the RCL system to make this determination. At the time it implemented its CWA plan, the State looked to 1985 calendar year costs from a pilot study for the various items, see Cal. Welf. & Inst. Code § 11462(c), and created separate levels for different group homes based on the “care and services that the group home operator projects will be provided during the period of time for which the rate is being established,” Cal. Welf. & Inst. Code § 11462(e). The California statute moreover provides for yearly adjustments in the proper RCL calculation, tied to the CNI—in other words, it makes sure if the cost of certain items rise or fall, the RCL takes that change in cost into account. See Cal. Welf. & Inst. Code §§ 11453(a), 11462(c). Thus, California decided that the original RCL, as adjusted by the CNI each year, is the cost of the basket of items the CWA requires to be covered. It is undisputed that the State is no longer paying this amount—rather, it is paying somewhere in the neighborhood of 80 percent of the amount. In other words, the CWA requires California to cover the cost of certain items and California has developed a formula to determine what those items cost, but is now only partially covering the cost of those items. This runs afoul of the CWA’s mandate.

The State’s arguments to the contrary are not persuasive. It points out that the provision for a CNI adjustment in its CWA plan is subject to availability of funds. However, the State disavows relying on this “out” in this case; its brief represents that “California is not using ‘lack of funds’ as an ‘excuse’ to avoid complying with the Act.” In any event, the State developed no record to support the possibility that it skipped a yearly CNI adjustment for lack of funds. Consequently, we decline both parties’ invitation to express an opinion on whether availability of funds is a proper limitation under the CWA on the obligation to cover costs.

The State emphasizes that the CWA does not mandate covering “actual” costs, which is true. However, this is a strawman as the Alliance does not contend that the State must

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cover every dime spent on the care of foster children. Rather, its position is that the State is not paying the amount the State itself treats as costs—that is, the RCL as adjusted each year in accordance with the CNI—and this is what falls short of complying with the CWA.

The State notes that its plan has been approved by DHHS. While also true, the record leaves us unable to say what—if any—significance this has. For instance, the parties indicated at argument that DHHS approves only the structure of California’s plan, and does not audit what the State pays. Beyond this we have been alerted to no action or opinion by DHHS to which we would owe deference. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984); Skidmore v. Swift & Co., 323 U.S. 134 (1944).

[5] In sum, the CWA does not set rates or tell states how they are supposed to cover costs. It does not require states to apply an index such as the CNI, or to adopt any particular system for arriving at the amount to be reimbursed. But the CWA does direct participating states to make foster care maintenance payments that “cover the cost of” listed items such as food, clothing, and shelter. Nothing required California to opt in to the CWA program, but once it agreed to take federal dollars, it is “bound to ‘comply with federally imposed conditions.’ ” Missouri Child Care Ass’n v. Cross, 294 F.3d 1034, 1036 (8th Cir. 2002) (quoting Pennhurst State Sch. & Hospital v. Halderman, 451 U.S. 1, 17 (1981)). In our judgment those conditions are clear—the State must pay for the cost of listed items. 42 U.S.C. § 675(4)(A). And to do so, under the system the State chose to follow, it must make yearly CNI adjustments (or some other inflationary adjustment) to account for the rise (or fall) in its standardized schedule of rates.

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[6] The Alliance and the State dispute whether California is in substantial compliance with the CWA.6 As a general rule, a state that accepts federal funds with conditions attached must strictly comply with those conditions—substantial compliance will not be good enough. See Withrow v. Concannon, 942 F.2d 1385, 1386-87 (9th Cir. 1991) (requiring strict compliance with a requirement in federal regulations of a review hearing within a pre-specified number of days). The CWA plainly attaches the condition that participating states “shall” cover the listed costs. This said, DHHS regulations indicate that the federal government is willing to accept “substantial compliance” at least in some circumstances. See, e.g., 45 C.F.R. §§ 1355.39, 1356.71(c)(5). And it makes sense that compliance cannot, as a practical matter, invariably be strict. Thus, California’s system necessarily averages costs across each of the fourteen categories by which it classifies group homes, and the CNI is just a proxy for actual increases (or decreases) in cost. Likewise, that the State’s definition of covered items for foster care maintenance payments does not precisely mirror the federal statute does not make it noncompliant. Compare 42 U.S.C. § 675(4)(A), with Cal. Welf. & Inst. Code § 11460(b). The State’s plan generally tracks the federal definition of daily living expenses, making the State substantially compliant. Beyond this, however, we have difficulty seeing how payment of approximately 80 percent of the costs of providing the listed items can qualify as substantial compliance. The federal objective is for those costs to be covered. As 80 percent isn’t even close, and the State makes no serious argument that it is, we hold that its foster care maintenance payments do not substantially comply with the CWA.

6The concept appears to have originated in Missouri Child Care Ass’n, 241 F.Supp.2d 1032, 1046 n.7 (W.D. Mo. 2003) (“While it is true that Missouri need only be in substantial compliance with the [Act], a failure to even consider the relevant statutory factors cannot be substantial compliance.”).

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[7] Because the State is not covering the costs required by the CWA, we reverse the district court’s order granting summary judgment to the State and denying summary judgment to the Alliance. There are no factual disputes in this case and therefore, the Alliance is entitled to judgment as a matter of law. We remand to the district court to determine the proper scope of declaratory and injunctive relief.

REVERSED and REMANDED.

WU, District Judge, concurring:
I agree that the district court’s grant of summary judgment should be reversed and remanded but for different reasons than delineated in the majority’s opinion.
Initially, the majority characterizes the Child Welfare Act (“CWA”), 42 U.S.C. §§ 670-79b, as having a “mandate” that a participating State “cover the cost” of certain enumerated items for children’s foster care homes. See 42 U.S.C. § 675(4)(A). It then seems to suggest that it is adopting the “natural meaning” of the term “cover the cost” which is “to pay in full, not in part.” The majority also states that “because the CWA leaves ‘cover’ unqualified, the common understanding is that it must refer to meeting all the costs of food, clothing, shelter, etc. [emphasis added].”1 Later, the majority indicates that it is acceptable under the CWA for a State to create a plan which allows for an estimate of the enumerated
1Paying “in full” “all” of a foster care provider’s costs for supplying food, clothing, shelter, etc. would be comparable to reimbursing the provider’s actual expenditures for such items. However, that is not what the majority ultimately concludes is required by the State Plan or what it finds to be sufficient under the CWA.

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costs for various categories of foster care providers (such as the Rate Classification Level or “RCL” herein) and to pay such estimates where the plan also has a provision for annual adjustments (such as the California Necessities Index or “CNI” herein). I agree with the latter conclusion but cannot concur with the initial ones. More importantly, I differ with the majority in regards to the issues which need to be ruled upon in this appeal.

It is not necessary to decide what “cover the cost” means under the CWA or for this court to determine whether “substantial compliance” with the “CWA’s cost requirements suffices” in order to resolve this appeal. Further, discretion warrants that we not do so herein. Rather, because the State Plan requires annual CNI adjustments and California clearly has not fully complied with that requirement (or obtained relief from that obligation), reversal can and should be based on that ground alone.

“In order for a State to be eligible for payments under [the CWA],” it must have a plan approved by the Secretary of the Department of Health and Human Services which contains certain prerequisites, one of which is the provision for foster care maintenance payments. See 42 U.S.C. § 671(a). The State Plan enacted by California and approved by the Secretary requires that “[b]eginning with the 2000-01 fiscal year, the standardized schedule of rates [for the RCL] shall be adjusted annually by an amount equal to the CNI computed pursuant to [Cal. Welf. & Inst. Code] Section 11453, subject to the availability of funds.” Cal. Welf. & Inst. Code § 11462(g)(2). On the merits herein, everyone (including the State) seems to accept that: 1) the State Plan enacted by California pursuant to 42 U.S.C. § 671 passes muster; 2) the State Plan requires California to include annual adjustments to the RCL payments (although a lack of funds can affect the increases under section 11462(g)(2)); and 3) California is not in compliance with its Plan in regards to annual adjustments as structured by the State and approved by the Secretary. Nev-

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ertheless, at best, all that the Plaintiff has actually shown is that the State has failed to comply with its own statute (i.e. Cal. Welf. & Inst. Code § 11462(g)(2)). The State has conceded (and the Plaintiff does not contend otherwise) that California is not using any unavailability of funds contention to justify its failure to pay the adjusted amounts.

The action before the Court is for violation of the CWA. Without a provision in the CWA for a cost-of-living adjustment or its equivalent, it is difficult to see how the CWA itself is violated by the State’s conduct. The majority in fact makes the case for this observation when it states (with emphasis added here):

While the CWA identifies the types of items that must be covered, it does not prescribe any particular metric to measure the cost of those items. Each state develops its own plan. California uses the RCL system to make this determination . . . . The California statute moreover provides for yearly adjustments in the proper RCL calculation, tied to the CNI — in other words, it makes sure if the cost of certain items goes up or down, the RCL takes that rise or fall in cost into account . . . . Thus, California decided that the original RCL, as adjusted by the CNI each year, is the cost of the basket of items the CWA requires to be covered . . . . In other words, the CWA requires California to cover the cost of certain items and California has developed a formula to determine what those items cost, but is now only partially covering the cost of those items.

The opinion later reaffirms this point when it indicates that: “[i]n sum, the CWA does not set rates or tell states how they are supposed to cover costs. It does not require states to apply an index such as the CNI, or to adopt any particular system for arriving at the amount to be reimbursed.”

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Normally, the difficult issue which would have to be resolved herein is whether the violation of the State’s obligations under a cooperative federal-state welfare program could give rise to a federal right enforceable by means of a 42 U.S.C. § 1983 lawsuit.2 See generally Blessing v. Freestone, 520 U.S. 329, 340-48 (1997); Suter v. Artist M, 503 U.S. 347, 350-64 (1992). However, in this case, the State in a motion to dismiss specifically raised the issues of “whether the CWA confers a [sic] individual right of enforcement upon plaintiff for foster care maintenance payments” and whether the Plaintiff “has a private right of action under 42 U.S.C. § 1983 to enforce the provisions of the Child Welfare Act at issue.” California Alliance of Child and Family Services v. Allenby, 459 F.Supp.2d 919, 921-22 (N.D. Cal. 2006). The district court answered “yes” to both of those questions in a published decision. Id. However, the State did not file a cross-appeal as to that decision. Moreover, as noted in footnote 5 of the majority’s opinion, the State raised no argument on appeal as to whether the CWA creates a private right of action in this context. Thus, the State has effectively (but, perhaps unfortunately, given the importance of those questions and that analysis) waived its right to litigate those issues and has conceded them for purposes of this appeal.

As noted in Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 28 (1981), “[i]n legislation enacted pursuant to [Congress’s] spending power, the typical remedy for state noncompliance with federally imposed conditions is not a private cause of action for noncompliance but rather action by the Federal Government to terminate funds to the State.” That is precisely the remedy incorporated into the CWA. Further-

2A “claim for violation of state law is not cognizable under § 1983.” Cornejo v. County of San Diego, 504 F.3d 853, 855 n.3 (9th Cir. 2007). “To state a claim for relief in an action brought under § 1983, [plaintiffs] must establish that they were deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law.” American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999).

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CACFS v. ALLENBY

more, the procedure set out in the statute requires the Secretary to initially consider the question of compliance and only thereafter provides for judicial review.

42 U.S.C. § 1320a-2a(a) and (c) state:

(a) In general

The Secretary, in consultation with the State agencies administering the State programs under parts B and E of subchapter IV of this chapter, shall promulgate regulations for the review of such programs to determine whether such programs are in substantial conformity with —

(1) State plan requirements under such parts B and E,

(2) implementing regulations promulgated by the Secretary, and

(3) the relevant approved State plans.

* * * * *

(c) Provisions for administrative and judicial review

The regulations referred to in subsection (a) of this section shall —

(1) require the Secretary, not later than 10 days after a final determination that a program of the State is not in conformity, to notify the State of —

(A) the basis for the determination; and

(B) the amount of the Federal matching funds (if any) to be withheld from the State;

Case: 08-16267 12/14/2009 Page: 17 of 18 ID: 7162739 DktEntry: 21-1

CACFS v. ALLENBY

16439

(2) afford the State an opportunity to appeal the determination to the Departmental Appeals Board within 60 days after receipt of the notice described in paragraph (1) (or, if later, after failure to continue or to complete a corrective action plan); and

(3) afford the State an opportunity to obtain judicial review of an adverse decision of the Board, within 60 days after the State receives notice of the decision of the Board, by appeal to the district court of the United States for the judicial district in which the principal or headquarters office of the agency responsible for administering the program is located.

Pursuant to Section 1320a-2a(a) and (c), the Secretary has promulgated consistent regulations. See, e.g., 45 C.F.R. §§ 1355.32, 1355.39. A full or partial review can be initiated “at any time, based on any information, regardless of the source that indicates that the State may no longer be operating in substantial conformity.” 45 C.F.R. § 1355.32(c)(1).

Given the statutory scheme whereby the issue of substantial conformity of California’s foster care program with the CWA (42 U.S.C. Chapter 7, Subchapter IV, Part E) and the approved State Plan is to be first considered by the Secretary’s designee and then by the Departmental Appeals Board before review by the district court, we should be somewhat reluctant to reach issues such as the meaning of the term “cover the costs” and whether (and to what extent) “substantial compliance” can satisfy the requirements of 42 U.S.C. § 675(4)(A) before the Secretary has been given the opportunity to initially rule on California’s conformity/compliance. The mere fact that the parties have chosen to litigate this case so as to preclude that appropriate review by the Secretary does not mean that this court should unnecessarily decide issues which are within the Secretary’s expertise.

In sum, it is apparently undisputed that California is not complying with the requirements of the State Plan approved

Case: 08-16267 12/14/2009 Page: 18 of 18 ID: 7162739 DktEntry: 21-1

16440

CACFS v. ALLENBY

by the Secretary because it has failed and is currently failing to provide the full annual adjustments in the form of CNI increases to the RCLs for group foster care maintenance providers as required by Cal. Welf. & Inst. Code § 11462(g)(2). Given that misfeasance/nonfeasance, it is unnecessary to resolve what “cover the cost” in 42 U.S.C. § 675(4)(A) means since, irrespective of any definition which we give it, in the end California is still non-compliant with its own State Plan and California has not sought to raise on this appeal whether the Plaintiff can bring a private action under section 1983 to enforce the provisions of the CWA purportedly at issue herein. Similarly, given that the applicable statute (42 U.S.C. § 1320a-2a) and its concomitant regulations provide that the Secretary is to initially determine whether a State’s program is in “substantial conformity” with the requirements of the CWA, its regulations and the relevant approved State Plan, the issue of whether California’s practice (of providing only about 80% of the full annual adjusted payments to foster care providers) is in “substantial compliance” with the CWA should be addressed by the Secretary before this court interjects itself into the fray.

In light of the above, I agree that the district court’s grant of summary judgment in favor of the State should be reversed and remanded, but for different reasons and on a much more limited basis than pronounced in the majority’s opinion.

 
 Case3:06-cv-04095-MHP Document87 Filed01/15/10 Page1 of 4

1 Bingham McCutchen LLP WILLIAM F. ABRAMS (SBN 88805)
2 william.abrams@bingham.com 1900 University Avenue
3 East Palo Alto, CA 94303-2223 Telephone: (650) 849-4400
4 Facsimile: (650) 849-4800

5 Bingham McCutchen LLP JENNIFER A. LOPEZ (SBN 232320)
6 jennifer.lopez@bingham.com CRAIG A. TAGGART (SBN 239168)
7 craig.taggart@bingham.com MICHAEL D. MORTENSON (SBN 247758)
8 michael.mortenson@bingham.com 600 Anton Boulevard, 18th Floor
9 Costa Mesa, CA 92626-1924 Telephone: 714.830.0600
10 Facsimile: 714.830.0700

11 Attorneys for Plaintiff CALIFORNIA ALLIANCE OF CHILD AND FAMILY
12 SERVICES

13

UNITED STATES DISTRICT COURT

14

NORTHERN DISTRICT OF CALIFORNIA

15

SAN FRANCISCO DIVISION

16

17 CALIFORNIA ALLIANCE OF CHILD AND

FAMILY SERVICES,

18

Plaintiff,

19

v.

20 CLIFF ALLENBY, Interim Director of the California Department of Social Services, in his
21 official capacity; MARY AULT, Deputy Director of the Children and Family Services Division of
22 the California Department of Social Services, in her official capacity,
23 Defendants.
24

CASE NO. CV 06-4095 MHP Related to Case No. CV 09-04398 MHP
[PROPOSED] JUDGMENT FOR PLAINTIFF CALIFORNIA ALLIANCE OF CHILD AND FAMILY SERVICES

25

26

27

28
A/73267325.2/0999995-2960011882

PROPOSED JUDGMENT -- CASE NO. C 06-4095 MHP

Case3:06-cv-04095-MHP Document87 Filed01/15/10 Page2 of 4

1

On December 14, 2009, the Ninth Circuit Court of Appeals ruled that Defendants have

2 violated federal law because “the State is not covering the costs required by the [Child Welfare

3 Act.]” California Alliance of Child and Family Services v. Allenby, -- F.3d ----, 2009 WL

4 4755730, at *5 (9th Cir. Dec. 14, 2009). The Ninth Circuit ordered this Court to enter judgment

5 in favor of Plaintiff California Alliance of Child and Family Services (the “Alliance”) as a matter

6 of law. (Id.) The Ninth Circuit’s Mandate was spread and received by this Court on January 6,

7 2010. (Docket No. 85.) The issues in this matter having been heard and a written Order having

8 been duly rendered and filed by the Ninth Circuit Court of Appeals on December 14, 2009, it is

9 hereby ORDERED and ADJUDGED as follows:

10

1. The Alliance’s motion for summary judgment, filed on July 16, 2007 (Docket No.

11 34) is GRANTED in its entirety and the Court’s prior Order granting Defendants’ cross motion

12 for summary judgment (Docket No. 57) is VACATED.

13

2. The Clerk’s Judgment entered in favor of defendants Cliff Allenby and Mary Ault

14 and against the Alliance, filed on March 12, 2008 (Docket No. 58) is VACATED.

15

3. The Alliance’s request for declaratory relief in its Complaint is GRANTED and

16 the Court hereby finds that the standard rates paid under California’s Rate Classification Level

17 system violate the Child Welfare Act, 42 U.S.C. §§ 670-679b because the State does not “cover

18 the cost” of providing the items and services enumerated in the Act.

19

4. The Alliance’s request for permanent injunctive relief in its Complaint is

20 GRANTED and Defendants Cliff Allenby and Mary Ault, and their successors, including John

21 Wagner and Gregory Rose, and their respective agents, officers, servants, employees, attorneys

22 and representatives, and all persons acting in concert or participating with defendants in their

23 respective official capacities as Director of the California Department of Social Services and

24 Deputy Director of the Children and Family Services Division of the California Department of

25 Social Services, and each of them, are hereby ORDERED to:

26

a. Adjust the current standard rates paid under the Rate Classification Level

27

system to group homes to an amount equal to the standard rates in the

28

original standardized schedule of rates for State fiscal year 1990-91 to

A/73267325.2/0999995-2960011882

- 1 -

PROPOSED JUDGMENT -- CASE NO. C 06-4095 MHP

Case3:06-cv-04095-MHP Document87 Filed01/15/10 Page3 of 4

1

include the 76.25% cumulative increase in the California Necessities

2

Index (CNI) from 1990-91 through 2009-10, effective and to be applied to

3

amounts paid as of December 14, 2009, the date on which the Ninth

4

Circuit entered its Order, for each RCL as follows:

5

6

Rate Classification Level Rate (Effective Dec. 14, 2009)

7

1

$2,085

8

2

$2,605

9

3

$3,125

10

4

$3,643

11

5

$4,159

12

6

$4,681

13

7

$5,199

14

8

$5,719

15

9

$6,237

16

10

$6,757

17

11

$7,274

18

12

$7,795

19

13

$8,319

20

14

$8,835

21

22

b. The standardized schedule of rates shall be adjusted annually, no later than

23

the first day of the State’s fiscal year, July 1, to reflect the change in the

24

CNI for the current fiscal year. Such adjustments are not subject to the

25

availability of funds.

26

c. The new fully-funded standardized schedule of rates, reflected in

27

paragraph 3(a) above, which are adjusted to include the 76.25%

28
A/73267325.2/0999995-2960011882

- 2 -

PROPOSED JUDGMENT -- CASE NO. C 06-4095 MHP

Case3:06-cv-04095-MHP Document87 Filed01/15/10 Page4 of 4

1

cumulative increase in the California Necessities Index (CNI) from 1990-

2

91 through 2009-10, shall be used to establish the AFDC-Foster Care rates

3

paid for both federally-eligible and non-federally children.

4

d. The standardized schedule of rates shall be adjusted annually, no later than

5

the first day of the State’s fiscal year, July 1, to reflect, as described in

6

Welfare and Institutions Code Section 11462 (m), “any new departmental

7

requirements established during the previous fiscal year concerning the

8

operation of group homes, and of any unusual, industrywide increase in

9

costs associated with the provision of group care that may have significant

10

fiscal impact on providers of group homes care,” to the extent that the

11

additional costs of such new departmental requirements and industrywide

12

increase in costs are excluded from the CNI calculations.

13

5. A status conference shall be held on February 22, 2010 to discuss further

14 proceedings on the implementation of a State system that complies with the Child Welfare Act,

15 with this Court retaining jurisdiction over this matter until such a system has been drafted and

16 implemented.

17

6. The Alliance may bring a motion to recover its attorneys’ fees and costs within

18 the statutory time period.

19

7. The Court retains jurisdiction to enforce this Judgment.

20

21

IT IS SO ORDERED.

22

23

DATED:_________________________ _________________________________________

24

THE HONORABLE MARILYN H. PATEL

U.S. DISTRICT COURT JUDGE 25

26

27

28
A/73267325.2/0999995-2960011882

- 3 -

PROPOSED JUDGMENT -- CASE NO. C 06-4095 MHP

 
 Case3:06-cv-04095-MHP Document92 Filed02/24/10 Page1 of 5

....

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UNITED STATES DISTRICT COURT

8

NORTHERN DISTRICT OF CALIFORNIA

9 CALIFORNIA ALLIANCE OF CHILD AND
10 FAMILY SERlCES,

No. C 06-4095 MHP Related to No. C 09-4398 MHP

11

Plaintiff,

12 v.

13 CLIFF ALLENBY, Interim Director of the California Department of Social Services, in

14 his official capacity, and MARY AULT, Deputy Director of the Children and Family

15

Services Division of the California Department of Social Services, in her official capacity,1

16 Defendants.
17 ----------------------------~/

JUDGMENT

18

19

On December 14, 2009, the United States Court of Appeals for the Ninth Circuit ruled that

20 defendants have violated federal law because "the State is not covering the costs required by the 21 [Child Welfare Act.]" California Alliance ofChild & Family Servs. v. Allenby, _ F.3d _ , 2009

22 WL 4755730, at *5 (9th Cir. Dec. 14,2009). The Court of Appeals ordered this court to enter 23 judgment in favor of plaintiff California Alliance of Child and Family Services (the "Alliance") as a 24 matter oflaw. See id. The Ninth Circuit's mandate was received by this court on January 6,2010. 25 Docket No. 85. The issues in this matter having been heard and a written opinion having been duly

26 rendered and filed by the Court of Appeals on December 14, 2009, it is hereby ORDERED and

27 ADJUDGED as follows:

28

Case3:06-cv-04095-MHP Document92 Filed02/24/10 Page2 of 5

...

=;...
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1

1. The Alliance's motion for summary judgment, filed on July 16, 2007, see Docket

2 No. 34, is GRANTED in its entirety, and the court's prior order granting defendants' cross-motion

3 for summary judgment, see Docket No. 57, is VACATED.

4

2. The Clerk's Judgment entered in favor of defendants Cliff Allenby and Mary Ault and

5 against the Alliance, filed on March 12, 2008, see Docket No. 58, is VACATED.

6

3. The Alliance's request for declaratory relief in its complaint is GRANTED. The

7 court hereby finds that the standard rates paid under California's Rate Classification Level ("RCL")

8 system violate the Child Welfare Act ("the Act"), 42 U.S.C. §§ 670-679b, because the State does not

9 "cover the cost" ofproviding the items and services enumerated in the Act.

10

4. The Alliance's request for permanent injunctive relief in its complaint is GRANTED.

11 Defendants Cliff Allenby and Mary Ault, and their successors, including John Wagner and Gregory

12 Rose, and their respective agents, officers, servants, employees, attorneys and representatives, and all

13 persons acting in concert or participating with defendants in their respective official capacities as

14 Director of the California Department of Social Services and Deputy Director ofthe Children and

15 Family Services Division of the California Department of Social Services, and each ofthem, are

16 hereby ORDERED to:

17

aO

Adjust the current standard rates paid under the RCL system to group homes to an

18

amount equal to the standard rates in the original standardized schedule of rates for

19

state fiscal year 1990-91 to include the 76.25% cumulative increase in the California

20

Necessities Index ("CNr') from 1990-91 through 2009-10, effective and to be applied

21

to amounts paid as of December 14, 2009, the date on which the Court of Appeals

22

entered its opinion, for each RCL as follows:

23

24

Rate Classification Level

Rate (Effective December 14, 2009)

25

1

$2,085

26

2

$2,605

27

3

$3,125

28 2

1

2

3

4

5

6

7

8

9

10

....

..=Q
U

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11 12 13 14

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17 18

19

20

21

22

23

24

25

26

27

28

Case3:06-cv-04095-MHP Document92 Filed02/24/10 Page3 of 5

•
4 5 6 7 8 9 10 11 12 13 14

$3,643 $4,159 $4,681 $5,199 $5,719 $6,237 $6,757 $7,274 $7,795 $8,319 $8,835

b. The standardized schedule of rates shall be adjusted annually, no later than the first day of the State's fiscal year, July 1, to reflect the change in the CNI for the current fiscal year. Such adjustments are not subject to the availability of funds.
c. The new fully-funded standardized schedule ofrates, reflected in paragraph 4(a) above, which rates are adjusted to include the 76.25% cumulative increase in the CN! from 1990-91 through 2009-10, shall be used to establish the AFDC-Foster Care rates paid for both federally-eligible and non-federally eligible children?
d. The standardized schedule of rates shall be adjusted annually, no later than the first day of the State's fiscal year, July 1, to reflect, as described at California Welfare and Institutions Code section 11462(m), "any new departmental requirements established during the previous fiscal year concerning the operation of group homes, and of any unusual, industrywide increase in costs associated with the provision of group care that may have significant fiscal impact on providers of group homes care," to the extent that the additional costs of such new departmental requirements and industrywide increase in costs are excluded from the CN! calculations.3
3

Case3:06-cv-04095-MHP Document92 Filed02/24/10 Page4 of 5

1

5. The Alliance may bring a motion to recover its attorneys' fees and costs within the

2 statutory time period.

3

6. The court retains jurisdiction to enforce this Judgment.

4

5

ITIS SO ORDERED.

6
7 D,oc,d~ ;;l'l, 1.910
8
9

LPATEL Uni ed States District Court Judge No hem District of California

10

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11
12
13
14 15 16 17 18

19

20

21

22

23

24

25

26

27

28 4

Case3:06-cv-04095-MHP Document92 Filed02/24/10 Page5 of 5

....

;...

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1

ENDNOTES

2 1. By operation of Federal Rule of Civil Procedure 25(d), the current Director of the California Department ofSocial Services and Deputy Director ofthe Department's Children and Family Services
3 Division are automatically substituted as defendants. To distinguish this action from the related action filed in 2009, the original caption is nevertheless used here.
4 2. The injunction extends to non-federally eligible children for the reasons set forth in this court's
5 order of December 18, 2009, entered in the related California Alliance v. Wagner action. See Case No. C 09-4398 (N.D. Cal.) (Patel, J.), Docket No. 67 (Order Re: Scope ofPreliminary Injunction).
6 3. "[T]he CWA does not set rates or tell states how they are supposed to cover costs. It does not
7 require states to apply an index such as the CN!, or to adopt any particular system for arriving at the amount to be reimbursed. But ... under the system the State chose to follow, it must make yearly CN!
8 adjustments (or some other inflationary adjustment) to account for the rise (or fall) in its standardized schedule of rates." Allenby, 2009 WL 4755730, at *5. The State has the authority to develop an
9 alternate system that meets the requirements of the Child Welfare Act. Counsel for defendants has indicated that the California Department ofSocial Services is considering options for replacing the RCL
10 system with some other system to cover the costs offoster children in group homes. Paragraph 4 ofthis order, including subparagraphs (a) through (d), remains in force until such time as the State-after
11 receiving the approvals required by law, including that of the United States Department of Health and Human Services-implements an alternative system that meets the requirements of the Child Welfare
12 Act.

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 5

 
 Case3:06-cv-04095-MHP Document112 Filed05/04/10 Page1 of 4

United States District Court For the Northern District of California

1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7
NORTHERN DISTRICT OF CALIFORNIA

8

9 CALIFORNIA ALLIANCE OF CHILD AND FAMILY SERVICES,
10 Plaintiff,
11 v.
12 CLIFF ALLENBY, Interim Director of the
13 California Department of Social Services, in his official capacity, and MARY AULT,
14 Deputy Director of the Children and Family Services Division of the California Department
15 of Social Services, in her official capacity,1

No. C 06-4095 MHP Related to No. C 09-4398 MHP
AMENDED JUDGMENT

16

Defendants.

/

17

18 On December 14, 2009, the United States Court of Appeals for the Ninth Circuit ruled that
19 defendants have violated federal law because “the State is not covering the costs required by the
20 [Child Welfare Act.]” California Alliance of Child & Family Servs. v. Allenby, 589 F.3d 1017, 1023
21 (9th Cir. 2009). The Court of Appeals ordered this court to enter judgment in favor of plaintiff
22 California Alliance of Child and Family Services (the “Alliance”) as a matter of law. See id. The
23 Ninth Circuit’s mandate was received by this court on January 6, 2010. Docket No. 85 (Mandate).
24 The issues in this matter having been heard and a written opinion having been duly rendered and
25 filed by the Court of Appeals on December 14, 2009, it is hereby ORDERED and ADJUDGED as
26 follows:
27

28

Case3:06-cv-04095-MHP Document112 Filed05/04/10 Page2 of 4

United States District Court For the Northern District of California

1

1. The Alliance’s motion for summary judgment, filed on July 16, 2007, see Docket

2 No. 34, is GRANTED in its entirety, and the court’s prior order granting defendants’ cross-motion

3 for summary judgment, see Docket No. 57, is VACATED.

4

2. The Clerk’s Judgment entered in favor of defendants Cliff Allenby and Mary Ault

5 and against the Alliance, filed on March 12, 2008, see Docket No. 58, is VACATED.

6

3. The Alliance’s request for declaratory relief in its complaint is GRANTED. The

7 court hereby finds that the standard rates paid under California’s Rate Classification Level (“RCL”)

8 system violate the Child Welfare Act (“the Act”), 42 U.S.C. §§ 670-679b, because the State does not

9 “cover the cost” of providing the items and services enumerated in the Act.

10

4. The Alliance’s request for permanent injunctive relief in its complaint is GRANTED.

11 Defendants Cliff Allenby and Mary Ault, and their successors, including John Wagner and Gregory

12 Rose, and their respective agents, officers, servants, employees, attorneys and representatives, and

13 all persons acting in concert or participating with defendants in their respective official capacities as

14 Director of the California Department of Social Services and Deputy Director of the Children and

15 Family Services Division of the California Department of Social Services, and each of them, are

16 hereby ORDERED to:

17

a. Adjust the current standard rates paid under the RCL system to group homes to an

18

amount equal to the standard rates in the original standardized schedule of rates for

19

state fiscal year 1990-91 to include the 76.25% cumulative increase in the California

20

Necessities Index (“CNI”) from 1990-91 through 2009-10, effective and to be applied

21

to amounts paid as of December 14, 2009, the date on which the Court of Appeals

22

entered its opinion, for each RCL as follows:

23

Rate Classification Level

Rate (Effective December 14, 2009)

24

1

$2,085

25

2

$2,605

26

3

$3,125

27

4

$3,643

28 2

Case3:06-cv-04095-MHP Document112 Filed05/04/10 Page3 of 4

United States District Court For the Northern District of California

1

5

$4,159

2

6

$4,681

3

7

$5,199

4

8

$5,719

5

9

$6,237

6

10

$6,757

7

11

$7,274

8

12

$7,795

9

13

$8,319

10

14

$8,835

11

b. The standardized schedule of rates shall be adjusted annually, no later than the first

12

day of the State’s fiscal year, July 1, to reflect the change in the CNI for the current

13

fiscal year. Such adjustments are not subject to the availability of funds.2

14

c. The new fully-funded standardized schedule of rates, reflected in paragraph 4(a)

15

above, which rates are adjusted to include the 76.25% cumulative increase in the CNI

16

from 1990-91 through 2009-10, shall be used to establish the AFDC-Foster Care rates

17

paid for both federally-eligible and non-federally eligible children.3

18

5. The court retains jurisdiction to enforce this Judgment.

19

20

IT IS SO ORDERED.

21 Dated: April 30, 2010
22
23

MARILYN HALL PATEL United States District Court Judge Northern District of California

24

25

26

27

28 3

Case3:06-cv-04095-MHP Document112 Filed05/04/10 Page4 of 4

United States District Court For the Northern District of California

1

ENDNOTES

2 1. By operation of Federal Rule of Civil Procedure 25(d), the current Director of the California Department of Social Services and Deputy Director of the Department’s Children and Family Services
3 Division are automatically substituted as defendants. To distinguish this action from the related action filed in 2009, the original caption is nevertheless used here.
4
2. “[T]he CWA does not set rates or tell states how they are supposed to cover costs. It does not 5 require states to apply an index such as the CNI, or to adopt any particular system for arriving at the
amount to be reimbursed. But . . . under the system the State chose to follow, it must make yearly CNI 6 adjustments (or some other inflationary adjustment) to account for the rise (or fall) in its standardized
schedule of rates.” Allenby, 589 F.3d at 1022. The State has the authority to develop an alternate 7 system that meets the requirements of the Child Welfare Act. Counsel for defendants has indicated that
the California Department of Social Services is considering options for replacing the RCL system with 8 some other system to cover the costs of foster children in group homes. Paragraph 4 of this order,
including subparagraphs (a) through (c), remains in force until such time as the State—after receiving 9 the approvals required by law, including that of the United States Department of Health and Human
Services—implements an alternative system that meets the requirements of the Child Welfare Act. 10
3. The injunction extends to non-federally eligible children for the reasons set forth in this court’s 11 order of December 18, 2009, entered in the related California Alliance v. Wagner action. See Case
No. C 09-4398 (N.D. Cal.) (Patel, J.), Docket No. 67 (Order Re: Scope of Preliminary Injunction). 12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 4

 
 Case: 08-16267 07/06/2010 Page: 1 of 40 ID: 7394849 DktEntry: 34-1
08-16267
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CALIFORNIA ALLIANCE OF CHILD AND FAMILY SERVICES,
Plaintiff,
v.
CLIFF ALLENBY, Interim Director of the California Department of Social Services, in his official capacity; MARY AULT, Deputy Director of the Children and Family Services Division of the California Department of Social Services, in her official capacity,
Defendants.
On Appeal from the United States District Court for the Northern District of California
No. C 06-4095 MHP The Honorable Marilyn H. Patel, Judge
APPELLANTS’ OPENING BRIEF
EDMUND G. BROWN JR. Attorney General of California SUSAN M. CARSON Supervising Deputy Attorney General GEORGE PRINCE Deputy Attorney General State Bar No. 133877
455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5749 Fax: (415) 703-5480 Email: George.Prince@doj.ca.gov Attorneys for Defendants and Appellants

Case: 08-16267 07/06/2010 Page: 2 of 40 ID: 7394849 DktEntry: 34-1
TABLE OF CONTENTS
Page
Statement of Jurisdiction ............................................................................... 1 Issue Presented............................................................................................... 1 Statement of the Case .................................................................................... 2 Statement of Facts.......................................................................................... 6 “New” Facts ................................................................................................... 6 The Allenby Facts......................................................................................... 10 Summary of the Argument .......................................................................... 13 Argument ..................................................................................................... 16
I. The Judgment Entered By The District Court Exceeds the Scope of the Pleadings, the District Court’s Jurisdiction, and This Court’s Decision....................................................... 16 A. Introduction................................................................... 16 B. Standard of Review....................................................... 18 C. The District Court’s Judgment Exceeds Its Jurisdiction .................................................................... 18 1. The Alliance’s Original Pleading ....................... 18 2. The District Court’s Jurisdiction is Dictated by the Pleadings.................................................. 20 3. Allenby Did Not Increase or Expand the District Court’s Jurisdiction ............................... 21 4. The District Court’s Own Orders Do Not Self-Validate the Judgment ................................ 24 D. The Judgment Violates Principles of Sovereign Immunity Reflected in the Eleventh Amendment ........ 28
Conclusion ................................................................................................... 32 Statement of Related Cases.......................................................................... 33
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TABLE OF AUTHORITIES

Page

CASES
California Alliance of Child and Family Services v. Cliff Allenby, et al. (Allenby), 589 F.3d 1017 (9th Cir. 2009) .................................................... passim
California Alliance of Child and Family Services v. Wagner, et al., Case No. 09-17649 .............................................................................. 4
Caterpillar Inc. v. Williams, 482 U.S. 386 (1987)........................................................................... 18
Edelman v. Jordan, 415 U.S. 651 (1974)..................................................................... 28, 29
Ford Motor Co. v. Department. of Treasury of Indiana, 323 U.S. 459 (1945)........................................................................... 30
Hans v. Louisiana, 134 U.S. 1 (1890)............................................................................... 28
Hess v. Port Authority Trans-Hudson Corp, 513 U.S. 30, 513 U.S. 30 (1994)............................................................................. 30
Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261 (1997)..................................................................... 29, 31
John Wagner et al. v. California State Foster Parent Association, et al., Case No. 09-15051 ........................................................................ 4, 14
Miller v. Youakim, 440 U.S. 125 (1979)........................................................................... 23
Pennhurst State School & Hospital v. Halderman, 451 U.S. 1 (1981)............................................................................... 30
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TABLE OF AUTHORITIES (continued)

Page

Retail Clerks Union Joint Pension Trust v. Freedom Food Center, Inc., 938 F.2d 136 (9th Cir. 1991) ............................................................. 18
STATUTES
28 U.S.C. § 1291 .................................................................................................. 1 § 1331 .................................................................................................. 1 § 1343 ................................................................................................ 21 § 1343(a) ............................................................................................ 20 § 1343(a)(3) ................................................................................. 19, 20 § 1367 ................................................................................................ 20 § 2201 .......................................................................................... 18, 20
42 U.S.C.
§§ 670-679b ........................................................................................... 2 § 675(4)(A) ........................................................................................ 26 § 1983 .......................................................................................... 18, 19
California Welfare and Institutions Code § 11460 ................................................................................................ 8 § 11460(a) ............................................................................................ 8 § 11460(e) .......................................................................................... 15 § 11462(g)(2) ..................................................................................... 14 § 11462(g)(5) ................................................................................. 7, 27
CONSTITUTIONAL PROVISIONS
Constitution of the United States ............................................................ 21
Eleventh Amendment to the Constitution of the United States......... 28-31
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STATEMENT OF JURISDICTION This is an appeal from a judgment filed on February 24, 20101 by the District Court following the reversal and remand of the District Court’s March 13, 2008 Memorandum & Order re: Cross-Motions for Summary Judgment by this Court’s decision of December 14, 2009 in California Alliance of Child and Family Services v. Cliff Allenby, et al. (Allenby), reported at 589 F.3d 1017 (9th Cir. 2009). The District Court had subject matter jurisdiction of the matter under 28 United States Code section 1331. Defendants/appellants (the State defendants) timely filed their notice of appeal on March 12, 2010; this Court has jurisdiction under 28 United States Code section 1291.
ISSUE PRESENTED Did the District Court enter a judgment exceeding the scope of the pleadings in the original complaint, the District Court’s jurisdiction, and the scope of this Court’s decision in Allenby, because the basis for the District Court’s Judgment requiring the State to increase funding rates for all foster
1 The Judgment from which this appeal was taken (Clerk’s Record (CR) 92 is reproduced at Excerpt of Record (ER) 11. An Amended Judgment was filed on May 5, 2010 (CR 112) (ER 1); the portion amended does not affect the issues in the instant appeal and the Amended Judgment is identical to the Judgment as to those matters at issue in the instant appeal.
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care group home residents in California is the federal Child Welfare Act (Title IV-E of the Social Security Act, 42 United States Code §§ 670-679b), even though only 59 percent of residents of foster care group homes in California are “federally eligible” under the Act and thus subject to the Act for purposes of benefitting from the federal funding it supports?
STATEMENT OF THE CASE The original complaint was filed in this action on June 30, 2006. (California Alliance of Child and Family Services v. Cliff Allenby, et al., U.S. District Court California Northern District 3:06-cv-04095-MHP (Alliance I), CR 1; ER 100.) Following various proceedings, Plaintiff/Appellee (the Alliance) filed its motion for summary judgment on July 16, 2007 (CR 34); the State defendants’ motion for summary judgment was filed July 17, 2007 (CR 37). Oral argument occurred on September 24, 2007. On December 12, 2007, the District Court asked the California Department of Social Services (CDSS) for supplemental evidence regarding its annual assessment of the rate schedules used by it for purposes of ratesetting purposes (CR 54); CDSS submitted the supplemental evidence in the form of a declaration with exhibits on January 24, 2008 (CR 56). On March 12, 2008, the District Court entered its memorandum and order granting summary judgment to the State defendants (CR 57) (ER 90),
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and the clerk entered judgment in favor of the State defendants (CR 58). The Alliance filed a motion for reconsideration and relief on March 21, 2008 (CR 60); the District Court denied that motion on April 9, 2008 (CR 74). The Alliance’s notice of appeal was filed on April 29, 2008 (CR 75).
The Alliance’s opening brief was filed on August 29, 2008 (see Ninth Circuit General Docket report for Court of Appeals Docket #08-16267 (NCGD, reproduced at ER 86-89), item 7 at ER 87). The State defendants filed their answering brief October 14, 2008 (NCGD item 6 at ER 87); the Alliance’s reply was filed October 31, 2008 (NCGD items 8,9, at ER 87).
Oral argument took place in this Court on October 7, 2009, before Judges Alfred T. Goodman, Pamela Ann Rymer, and George H. Wu (NCGD item 19 at ER 88). On December 12, 2009, the Court filed its opinion, which reversed and remanded the case to the District Court (NCGD item 21 at ER 88; ER 74).
Prior to the oral argument and issuance of the Ninth Circuit’s decision, the Alliance filed another action in District Court against the State defendants – California Alliance of Child and Family Services v. Wagner, et al., U.S. District Court California Northern District 3:09-cv-04398-MHP
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(Alliance II).2 In Alliance II, the Alliance sought, inter alia, injunctive relief
to prevent CDSS from implementing a budget cut that stemmed from
California’s fiscal emergency and was scheduled to go into effect on
October 1, 2009, as required by the 2009 Budget Act that revised the State’s
budget for fiscal year 2009-10.
Alliance I and Alliance II involve the same parties and the same basic
Child Welfare Act foster care group home funding issues, the State’s efforts
to meet its funding obligations for its share of the group home costs,3 with
2 Although the named defendants are different in the 2009 action, the parties are essentially identical: the Alliance as an entity again sued the director of the CDSS and his deputy director of the Children and Family Services Division of CDSS. The docket sheet for Alliance II is reproduced at ER 64-73; a notice of appeal on the preliminary injunction issued in that case was filed on November 19, 2009 (ER 71, item 59), and is pending in this Court as California Alliance of Child and Family Services v. Wagner, et al., Case No. 09-17649. An emergency motion for a stay of the preliminary injunction issued in Alliance II was denied by Judges Rymer and Goodwin on December 10, 2009, without prejudice to renewing it after a decision by this Court issues in John Wagner et al. v. California State Foster Parent Association, et al., No. 09-15051 (as to whether a private right of action exists to enforce the Child Welfare Act), which remains pending before this Court following oral argument and submission on December 7, 2009.
3 The costs are shared by the federal government (covering some 50% of total), California’s counties (roughly 30%), and the State (roughly 20%). The attorney for the State defendants informed the District Court that the State defendants estimated that the full financial impact of implementing the District Court’s order – assuming that payments for both eligible and noneligible residents were made at the court-ordered rates – would be roughly a quarter of one billion dollars, with about $77 million coming from the State,
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the primary difference being that Alliance II uses as a springboard California’s Budget Act of 2009, which further reduces State spending in response to the State’s budget crisis and does not spare foster care programs from the broad spending cuts it makes. Despite the Budget Act focus, both Alliance complaints share the identical federal-only statutory bases for their causes of action. Not surprisingly, there has been “cross-pollination” between the cases; specifically, the District Court based a crucial portion of its Judgment in Alliance I – the specific issue raised in this appeal as to the scope of the Judgment – on findings set forth in its “ORDER Re: Scope of Preliminary Injunction,” filed December 18, 2009 in Alliance II (ER 46-50).
In that order, the District Court also informed the parties that it would “schedule a status conference with the parties to solicit their views on the impact upon this action, if any, of the recent decision in California Alliance of Child and Family Services v. Allenby” (i.e., this Court’s December 14, 2009 decision) (ER 48-49). That status conference (“Further Case Management Conference”) was held on January 11, 2010 (ER 45); although the conference was nominally in the Alliance II matter, the District Court (…continued) another $50 million from federal funding participation, and some $115 million from California’s 58 counties, collectively. (See transcript of February 22, 2010 hearing, text at ER 17:20-18:2.)
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used the parties’ presence in court to direct that a proposed judgment for Alliance I, and response to it, be submitted.
The Alliance submitted a proposed judgment on January 15, 2010 (CR 87, ER 41.) The State defendants filed their response and objections to that proposed judgment on January 29, 2010 (CR 88, ER 35); the Alliance replied to the response and objections on February 5, 2010 (CR 89, ER 28). A hearing was held regarding the proposed order on February 22, 2010 (CR 110, ER 16).
The District Court issued its Judgment on February 24, 2010 (CR 92, ER11).4 The State defendants filed their notice of appeal on March 12, 2010 (CR 99, ER 5).
STATEMENT OF FACTS “New” Facts
There is but a single “new” fact germane to this appeal, which is that only 59 percent of the foster care group home residents in California meet the eligibility requirements under the Child Welfare Act such that the State
4 As indicated above, for reasons not implicated in this appeal, an amended judgment was sought and ultimately entered on May 5, 2010 (CR 112, ER 1). Although it does not play a role in this appeal, for purposes of completeness a copy of the memorandum and order re: the amended judgment (CR 111) is provided at ER 8.
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may recover federal funding for these individuals. They are referred to as
are “federally eligible.” (See “ORDER Re: Scope of Preliminary
Injunction,” filed December 18, 2009 in Alliance II, ER 46-50.)
With knowledge of the 59 percent-eligible figure before it, the District
Court entered an order in Alliance II on December 18, 2009, that it thereafter
incorporated into the Judgment on appeal here. The Alliance II order states:
Pending final adjudication of the merits of the instant action, named defendants John Wagner and Gregory Rose, and their successors, agents, officers, servants, employees, attorneys and representatives, and all person acting in concert or participating with defendants in their respective official capacities as Director of the California Department of Social Services and Deputy Director of the Children and Family Services Division of the California Department of Social Services, are HEREBY ENJOINED AND PROHIBITED from implementing the ten percent reduction in the standardized schedule of rates for each RCL provided at California Welfare and Institutions Code § 11462(g)(5), such reduction having been approved in Assembly Bill ABX 4 4, filed with the Secretary of State on July 28, 2009, and Senate Bill 597, filed with the Secretary of State on October 11, 2009, as part of the Budget Act of 2009. Implementation of such reduction is enjoined in relation to federally eligible children and non-federally eligible children.
(“ORDER Re: Scope of Preliminary Injunction” at p. 3, lines 15-25 (ER 48),
emphasis added.)
This directive by the District Court removing any distinction between
non-federally eligible children and federally eligible children for funding
purposes, along with the reference to Alliance II’s reasoning supporting it,
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was thereafter incorporated into the Judgment in Alliance I, on February 24, 2010 (Judgment, p. 3:16-19 (ER 13), and endnote 2 to the Judgment, p. 4 :45 (ER 15); this provision was not altered by the Amended Judgment filed May 4, 2010 (ER 1-4), though the cross-reference to the Alliance II order appears in endnote 3 of the Amended Judgment instead of in endnote 2 in the Judgment.)
As distinct from the 59 percent of foster care group home residents in California who are federally eligible, the remaining 41 percent are not federally eligible, which means that the State may not recover any federal funding for them.5 They are not eligible under the Child Welfare Act to benefit from the federal financial participation afforded by the Child Welfare Act and, necessarily. In other words, the entire amount of foster care maintenance payments for non-federally eligible residents comes from the State and its 58 individual counties, without federal financial participation and outside the purview of the Child Welfare Act. Thus, and necessarily,
5 California’s statutory authority for State and county payments to foster care providers comes from California Welfare and Institutions Code § 11460 (a), which also states that State functions shall be performed by CDSS or by delegation of CDSSto county welfare departments. Although the Alliance made passing reference to §11460 in its complaint (ER 104:23), it did not allege any violation of in the complaint, or include it in any cause of action.
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this non-federal funding is not immune from the State’s budget crisis nor shielded from California’s Budget Act of 2009, which legislated a 10 percent cut in RCL rates as of October 1, 2009.6 The District Court’s order, precluding the State from implementing the the 10 percent budget cut enacted by state law with regard to children for whom neither the State nor its counties receives federal funding because those children do not meet the eligibility requirements of the Child Welfare Act, as grafted onto the Judgment from Alliance II, underpins this appeal.
With this “new” fact in mind, a brief review of the facts underpinning the original case before this Court provides helpful information for purposes of context. The facts set forth below are distilled from the a recitation of the facts first presented as “Defendants’ Statement of Facts Not Reasonably in Dispute” in the State defendants’ August 17, 2007 motion for summary judgment (CR 37, at pp. 3-6), and later produced as the “Statement of Facts” in the answering brief of the State defendants, filed October 14, 2008; these
6 Separate provisions of state regulations specifically crafted to ease the burden on foster care group home providers due to the 10 percent rate reduction -- by granting them higher funding levels than usually allowed without requiring provision of a commensurately higher level of services for residents – are not directly relevant to the issue before the Court in this appeal.
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statements of fact were not disputed by the Alliance in the District Court nor in this Court when recited in the answering brief.
The Allenby Facts Prior to 1990, there had been negotiations and advisory discussions and meetings with stakeholder groups made up of CDSS employees, counties, and provider groups, which studied options for a new rate setting system [for foster care group homes]. Senate Bill (SB) 370 (Chapter 1294, Statutes of 1989) established the Foster Care Group Home Rate structure and was the authority for that initial promulgation of regulations for rate setting for group home programs. In 1990, a group of CDSS employees with the Foster Care Branch worked on the drafting of regulations pursuant to SB 370 that were implemented July 1, 1990. SB 370 established both a standard rate for each of the 14 Residential Care Levels (RCLs) and a rate floor. In fiscal year 1990-1991, each provider submitted data on rate, costs, and staffing levels from the prior fiscal year that substantiated the RCL at which its program would enter the flat rate system. The standard rates were to be phased in over a three-year period beginning July 1, 1990, with a rate floor for each of the three years. The implementing legislation required CDSS to raise the standard rate for each RCL based on information from the California
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Necessities Index (CNI) for fiscal years 1991-1992 and 1992-1993. Thereafter, annual CNI-based rate increases for group homes would become a discretionary item in the State budget process.
The RCL point system measures the number of ”paid/awake” hours worked per month by a program’s child care and social work staff and their first-line supervisors. The point system also counts the number of hours of mental health treatment services received by the children in the program, although these services do not have to be paid for by the provider. These hours are then weighted to reflect the experience, formal education, and ongoing training of the child care staff and the qualifications of the social work and mental health professionals. These “weighted hours” are then divided by 90% of the program’s licensed capacity to compute the program’s RCL points, which are used in the determination of the amount of payments the program receives.
Federal reimbursement funding to states is conditional upon states meeting the requirements of Title IV-E (the Child Welfare Act). The federal government does not prescribe a particular system for payment for children placed in group homes, nor does in set any particular method for determining how costs are to be measured, set, or calculated. However, the State is required to submit a plan that identifies the state law that meets the
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federal requirements. The plan is submitted with a certificate of compliance, which ensures compliance with federal requirements, to the appropriate federal regional office.
California’s Title IV-E State Plan consists of a compilation of California statutes, regulations, All County Letters (ACLs), All County Information Notices (ACINs), County Fiscal Letters (CFLs)7, and other documents that implement federal requirements and instructions for the federal foster care program, which must be followed in order for the State to claim Federal Financial Participation (FFP) in payments made under the program. CDSS amends California’s state plan when the federal Department of Health and Human Services (DHHS) issues new federal requirements, changes existing federal regulations, or when a new state requirement as the result of law or court order substantially affects the state’s foster care program. Updates to the State Plan that are submitted to DHHS in response to such requirements or instructions include any new statutes, regulations, and ACLs that came into effect since the previous update. Any changes to the state plan must be approved by Region IX of
7 These documents are primary means of communication between CDSS and the counties.
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DHHS, the regional division of DHHS that oversees the agencies activities in California and several other states.
The common practice in preparing ACLs that substantially change the way California claims FFP in the foster care program is that CDSS provides drafts to, and consults informally with, Region IX DHHS staff about the contents of the proposed ACL. The purpose of the consultation is to ensure that the ACL will ultimately be approved by DHHS as an amendment to California’s Title IV-E State Plan. If Region IX indicates disagreement with the contents of the ACL, attempts are made to address the federal agency’s concerns by changing the contents of the ACL.
SUMMARY OF THE ARGUMENT In Allenby, this Court ruled that “[b]ecause the State is not covering the costs required by the [Child Welfare Act],” the Court was reversing the District Court’s grant of summary judgment to the State and denying summary judgment to the Alliance, and remanded the case to the District Court “to determine the proper scope of declaratory and injunctive relief.” 589 F.3d at 1023. In its effort to comply with this Court’s decision, the District Court entered a Judgment directing the State to increase its foster care group home rate payment levels to the full amount required by the cost index
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incorporated into the State’s statutory scheme8 for rate setting. However, the District Court’s Judgment goes beyond the scope of its authority, and of this Court’s opinion in Allenby, by requiring that the increased funding be provided to all foster care group home residents, when in fact only 59 percent of those residents are eligible for the federal funding available through the Child Welfare Act.
As to those federally eligible residents there is no issue in this appeal that they are entitled to the increased rates ordered by the District Court.9 However, the District Court’s Judgment specifically requires that the group home rates be increased for all residents, including the 41 percent who are not federally eligible and thus not subject to the requirement that this Court found -- based on the federal Child Welfare Act, and not on any provision of California state law – requiring California to “cover the costs” enumerated in the Child Welfare Act as adjusted by California’s statutory cost index.
8 California Welfare and Institutions Code §11462(g)(2). 9 In a similar case pending before this Court brought on almost precisely similar grounds on behalf of foster care parents in California – as compared to foster care group home operators, as is the Alliance in this case and in Alliance II – the threshold issue is whether a private right of action exists to enforce the Child Welfare Act. As noted -- ante, at note 2 -- that case – John Wagner et al. v. California State Foster Parent Association, et al., No. 09-15051 -- has been under submission since oral argument was heard on December 7, 2009.
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In effect, the District Court’s Judgment requires that the Director and Deputy Director of CDSS ignore the Legislature’s Budget Act of 2009, as approved and signed by the Governor, which requires a 10 percent reduction in the RCL payment levels for foster care group homes. At its essence, the District Court’s Judgment requires the State to pay the increase with the General Fund dollars with a contribution from the counties.10
Because the Judgment entered exceeds the scope of the pleadings, the District Court’s jurisdiction, and this Court’s Allenby opinion, it must be vacated or otherwise amended to reflect the fact that a federal court decision based on the Child Welfare Act alone cannot negate a validly enacted state statute beyond the purview of the Act or federal court decisions based on it.
Additionally, to the extent the Judgment compels the State to pay funds beyond those required under the Child Welfare Act, it is barred by principles of sovereign immunity reflected in the Eleventh Amendment.
10 None of California’s 58 counties is a party to this action. A county may pay rates higher than those dictated by statute; however, the portion of the rate that exceeds the state standard must be paid using county funds: Welfare and Institutions Code § 11460(e) states, “Nothing shall preclude a county from using a portion of its county funds to increase rates paid to family homes and foster family agencies within that county, and to make payments for specialized care increments, clothing allowances, or infant supplements to homes within that county, solely at that county's expense.”
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ARGUMENT I. THE JUDGMENT ENTERED BY THE DISTRICT COURT
EXCEEDS THE SCOPE OF THE PLEADINGS, THE DISTRICT COURT’S JURISDICTION, AND THIS COURT’S DECISION A. Introduction Following a reversal on December 14, 2009 by this Court of the District Court’s March 12, 2008 order granting the State defendants’ motion for summary judgment and denying the Alliance’s motion for summary judgment, this Court remanded the matter to the District Court to determine the proper scope of declaratory and injunctive relief. Allenby, 589 F.3d at 1023. However, the Judgment entered by District Court exceeds the scope of the pleadings in the original complaint, the District Court’s jurisdiction based on those pleadings, and, correspondingly, the scope of this Court’s Allenby decision. In Allenby, this Court ruled that while the Child Welfare Act did not require the State to adopt any particular system for arriving at the amount to be reimbursed for foster care maintenance costs, under the system the State had adopted to meet the requirements of the Child Welfare Act in determining the amount of foster care maintenance payments it made – the
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RCL system -- the State had to cover the costs as they rose over time as determined by the cost index built into the RCL. Allenby,589 F.3d at 1022.
In implementing the Ninth Circuit’s opinion, however , the District Court purports to require the State to increase funding rates for all foster care group home residents in California, even though – as the District Court was informed and recognized -- only 59 percent of residents of foster care group homes in California are “federally eligible” under the standards of the Child Welfare Act. Said another way, the Judgment – based on the federal Child Welfare Act -- requires that California increase its foster care group home maintenance payments rates for not just the 59 percent of residents covered by the Act, but also the 41 percent of residents who are not covered by the Act. Funding for these “federally ineligible” residents is provided by state and county funds alone, without federal financial participation.
Due to their status as being “federally ineligible,” these residents are not covered, at least financially, by the Child Welfare Act, and without that financial coverage they are outside the scope of the financial “protection” sought in the original complaint and thus in all the proceedings that followed it, in both the District Court and this Court. Simply put, the federal courts in these circumstances have no jurisdiction over the state-only funding paid for the federally ineligible residents. Consquently, as draconian as the results
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may be for the non-eligible residents, the non-federal funding that supports them is subject to the budget cuts of California’s 2009 Budget Act.
B. Standard of Review The question of whether a judgment is void is a legal issue subject to de novo review. See Retail Clerks Union Joint Pension Trust v. Freedom Food Center, Inc., 938 F.2d 136, 137 (9th Cir. 1991). The State submits that for purposes of this appeal the Judgment at issue is akin to a void judgment. C. The District Court’s Judgment Exceeds its Jurisdiction
1. The Alliance’s Original Pleading The Alliance’s original complaint framed this action, as does any complaint. In hornbook shorthand, this makes a plaintiff the “master” of the complaint. “The presence or absence of federal-question jurisdiction is governed by the ‘well-pleaded complaint rule,’ which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). Nowhere in the complaint did the Alliance seek to have this matter adjudicated under California’s laws. The Alliance’s original complaint was based entirely on federal law – the provisions of the Child Welfare Act -“under 42 U.S.C. § 1983.” The Alliance sought relief “pursuant to 28
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U.S.C. § 2201” on the sole theory that the RCL system implemented by the State defendants “violates Title IV-E of the Social Security Act, 42 U.S.C. §§ 670-679b . . . and its implementing regulations[,]” and averred that the District Court had jurisdiction pursuant to 28 U.S.C. § 1343(a)(3).” (ER 102:18-25.)
Further, in its specific allegations against the State defendants, the Alliance sought relief only under federal law: First, in Count I, on the issue “as to whether the RCL system fails to comply with federal law in setting rates for foster care maintenance payments[,]” the Alliance alleged that the State defendants violated the Alliance’s “member group homes of their federal rights, privileges and immunities under color of state law in violation of 42 U.S.C. § 1983.” (ER 106:8-17.) Second, in Count II, the Alliance alleged that the State defendants would continue to violate the Child Welfare Act – and that Act alone – if the District Court did not enjoin the State defendants. (ER 106:22-107:1.)
Moreover, in its prayers for relief the Alliance sought relief only under federal law, that law being the Child Welfare Act. (ER 107:5-25.)
These federal-only claims were made notwithstanding the Alliance’s unambiguous averment that State defendant “Allenby is responsible for implementing the policies contained in the approved state plans and assuring
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DSS’ complaince with state and federal law.” (ER 102:12-13.) In that the Alliance is an association, incorporated in California, that represents and advocates for foster care group home operators in a variety of ways, including matters relating to the State of California (ER 101:8-28), it can hardly be gainsaid that it was unaware of the independent significance of California law to the foster care group home industry, or unaware of the fact that not all foster care group home residents in California are eligible for benefits as set forth under the federal Child Welfare Act. Nonetheless, the Alliance’s complaint did not state a cause of action for the direct violation of any state law, and thus did not need to ask the District Court to exercise supplemental jurisdiction under 28 U.S.C. § 1367 or by any other means.
2. The Pleadings Dictate District Court Jurisdiction It is axiomatic that the District Court’s jurisdiction necessarily depends on the pleadings of a party. The Alliance’s complaint, as detailed above, was based on federal law. First, the Alliance sought relief pursuant to 28 U.S.C. § 2201, which by its own terms restricts remedies as to which a federal court can issue declaratory relief to those “within its jurisdiction” (id.) Second, the Alliance based its claim of subject matter jurisdiction in the District Court on 28 U.S.C. § 1343(a)(3), which states -- in concert with 28 U.S.C. § 1343(a) recitation that “district courts shall have original
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jurisdicition of any civil action authorized by law to be commenced by any person” -- that it applies to “any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress . . . .” (Id.) The Child Welfare Act is undeniably an “Act of Congress.” 28 U.S.C. § 1343 itself does not extend a district court’s jurisdiction beyond federal law.
Thus, plainly on the face of the pleadings before it, the District Court’s jurisdiction was limited to provisions of the federal Child Welfare Act, and the District Court’s power to issue relief was likewise limited to that it could issue on the basis of the provisions of the Child Welfare Act.
3. Allenby Did Not Expand District Court Jurisdiction This Court’s decision in California Alliance of Child and Family Services v. Allenby had as its foundation the District Court’s Memorandum and Order of March 12, 2008, which necessarily stemmed from the pleadings in the Alliance’s original complaint. As set forth above, there was nothing in the complaint stating any cause of action under state law and, as follows, there was no state law cause of action for the District Court to rule upon. Consequently, there was no state law cause of action before this Court in Allenby, and nothing in that opinion increased or expanded the jurisdiction of the District Court as to the complaint or provided a basis for
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the District Court to extend its Allenby-based judgment to matters outside the purview of the Child Welfare Act upon which the complaint was based.
As Judge Rymer stated in the opinion, “The CWA, codified as 42 U.S.C. §§ 670-679b, was enacted in 1980 and creates an opt-in scheme whereby states can receive federal funding to assist in the costs associated with raising children who are dependents or wards of the state.” Allenby, 589 F.3d at 1018. She further explained that a state must first submit a plan to the Secretary of DHHS that, among other things, “must ‘provide[] for foster care maintenance payments in accordance with’ other provisions of the CWA[,]” and must also “designate a state agency to administer the plan once approved, and agree to amend its plan to comply with changes made to the CWA or other applicable federal law.” Id.
Judge Rymer then hit the note that sets the tone for the instant appeal: “The CWA further provides that any state with an approved plan ‘shall make foster care maintenance payments on behalf of each’ qualifying child.” Allenby at 1018, emphasis added. This requirement – that for a child to benefit from federal funding under the Act, she or he must qualify for that funding – has always been fundamental to the federal funding participation for state foster care. See, for example, Miller v. Youakim, 440 U.S. 125 (1979), where Justice Marshall wrote -- in ruling that Illinois could not
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exclude from its AFDC-FC (foster care) program children who resided with relatives as compared to those residing with unrelated persons -- that “[a] participating State may not deny assistance to persons who meet eligibility standards defined in the Social Security Act unless Congress clearly has indicated that the standards are permissive.” Id. at 133, emphasis added. Thus, both the broad scope of federal foster care financial funding and the inclusiveness of potential beneficiaries begin with meeting the eligibility standards set by the federal government.
Here, while 59 percent of the group home residents meet those eligibility standards under the Child Welfare Act – and are subject to this Court’s ruling in Allenby that under the system the State has chosen the State must also employ the cost-indexing mechanism built into the system to cover the rising costs of maintenance payments – the remaining 41percent do not meet the standards and are not subject to Allenby. That California has chosen to support foster care services more expansively than required by the Child Welfare Act is laudable, but the federal courts cannot compel further expansiveness of the State’s generosity on the basis of the federal Act.
No other part of the Allenby decision otherwise supports the District Court’s extra-jurisdictional Judgment, either. Again, the basis for this Court’s reversal of the District Court’s grant of summary judgment for the
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State defendants and remand for determination of the proper scope of declaratory and injunctive in Allenby was clear: “Because the State is not covering the costs required by the CWA . . . .” Allenby, 589 F.3d at 1023. The requirements of the Act do not and cannot extend to compelling the State defendants to disregard and violate valid state law as to group home residents who simply do not meet the Act’s eligibility standards.
4. The District Court’s Own Orders Do Not SelfValidate the Judgment
The District Court’s Judgment (CR 92), at p. 4, endnote 2 (ER 15), refers to the order filed December 18, 2009 in Alliance II (ER 46-50)11 as providing the basis for extending the judgment to cover both federally eligible and non-eligible group home residents, stating: “The injunction extends to non-federally eligible children for the reasons set forth in this court’s order of December 18, 2009, entered in the related California Alliance v. Wagner action. See Case No. C 09-4398 (N.D. Cal.) (Patel, J.), Docket No. 67 (Order Re: Scope of Preliminary Injunction).”12
11 See footnotes 2 and 9, ante, as to the pending appeals in Alliance II and in Wagner et al. v. California State Foster Parent Association, et al.
12 The Amended Judgment (CR 112) contains the identical language and reference in its endnote 3, at p. 4 (ER 4). As previously noted, the Amended Judgment differs not from the Judgment as to the issue on appeal.
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In the December 18, 2009 order, Judge Patel first quotes her own November 18, 2009 order entering a preliminary injunction against the State defendants in Alliance II as to how it “prohibits implementation of the reduction only with respect to payments made in connection with children subject to the CWA. Execution of the injunction SHALL NOT be carried out in such a manner that will reduce in any amount the full entitlement to such federally eligible children under this order.” (ER 46.) The December 18, 2009 order then recites the November 18, 2009 order’s directive to the State to submit a plan as to how it would satisfy the order as to foster care group home maintenance payments in view of the federally eligible/noneligible distinction. Id.
The December 18, 2009 order then discusses the All County Letter issued by State defendant CDSS Deputy Director Greg Rose that was submitted to the District Court, “which provided instructions to counties pertaining to the funding of foster care group home programs in light of the preliminary injunction” and contained “two separate tables setting forth RCL schedules for group homes – one schedule for federally eligible children, i.e., those covered by the Child Welfare Act . . . and one schedule for the non-federally eligible children.” (ER 47, lines 3-8.) The District Court then notes that “Plaintiff objects to the State’s ‘plan,’ noting that it does not
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specify how group homes are supposed to implement it in such a way as to ensure that federally eligible children are not subject to additional reductions in foster care maintenance payments, as mandated by the court’s preliminary injunction order.” Id., lines 19-22. Along with these recitations, the District Court noted that the State’s submission had not contested or addressed the preliminary injunction order’s finding that “’group homes do not distinguish between federally eligible and non-federally eligible children in . . . the services provided.’” (ER 47:27-48:2.)
Following these statements, the District Court concluded: “Because group homes do not so distinguish, it is inevitable that simply reimbursing group homes differently for federally eligible and non-federally eligible children will result in a dilution of funds to federally eligible children.” (ER 48, lines 1-4.) After setting out a “for example” arithmetic expression of how the dilution would work, the District Court observed: “In other words, because group homes do not – and likely would not, as a matter of ethics as well as policy – give non-federally eligible children less food, clothing, shelter, or less of any of the other items enumerated in the CWA, see 42 U.S.C. § 675(4)(A), the effect of the State’s current plan is to cut benefits to federally eligible children by 4.1%, in contravention of the court’s preliminary injunction order.” Id., lines 9-13. The District Court then
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declared: “Accordingly, the court HEREBY AMENDS AND
SUPERSEDES the preliminary injunction order currently in effect.” Id.,
lines 13-14. Directly after that declaration came the District Court’s
amended directive to the State defendants:
Pending final adjudication of the merits of the instant action, named defendants John Wagner and Gregory Rose, and their successors, agents, officers, servants, employees, attorneys and representatives, and all person acting in concert or participating with defendants in their respective official capacities as Director of the California Department of Social Services and Deputy Director of the Children and Family Services Division of the California Department of Social Services, are HEREBY ENJOINED AND PROHIBITED from implementing the ten percent reduction in the standardized schedule of rates for each RCL provided at California Welfare and Institutions Code § 11462(g)(5), such reduction having been approved in Assembly Bill ABX 4 4, filed with the Secretary of State on July 28, 2009, and Senate Bill 597, filed with the Secretary of State on October 11, 2009, as part of the Budget Act of 2009. Implementation of such reduction is enjoined in relation to federally eligible children and non-federally eligible children.
(ER 48, lines 15-25, emphasis added.)
The State defendants are mindful of the District Court’s concerns for
group home residents and for the integrity of its preliminary injunction
order. Nevertheless, those concerns are not sufficient to extend the District
Court’s jurisdiction beyond what the complaint before it defined, and what
this Court’s opinion in Allenby did not change: that, in a case based on the
federal Child Welfare Act, the District Court’s jurisdiction cannot extend
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D. The Judgment Violates Principles of Sovereign Immunity Reflected in the Eleventh Amendment
To the extent that it purports to require the State to increase spending on foster care group homes beyond the amount supported by the Child Welfare Act in concert with this Court’s opinion in Allenby, the Judgment violates principles of sovereign immunity reflected in the Eleventh Amendment.
The Eleventh Amendment provides: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
The Eleventh Amendment, and the concept of sovereign immunity inherent in it, “largely shields States from suit in federal court without their consent, leaving parties with claims against a State to present them, if the State permits, in the State’s own tribunals.” Hans v. Louisiana, 134 U.S. 1, 13 (1890). An individual may, in limited circumstances, sue a state official for prospective injunctive relief under the Ex Parte Young exception to the Eleventh Amendment. See Edelman v. Jordan, 415 U.S. 651, 664–65 (1974) (describing the scope of the Young exception). This exception, however, does not apply to the relief ordered by the District Court below.
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Under the Supreme Court’s decision in Young, a state official may, in limited circumstances, be sued for prospective injunctive relief without running afoul of the Eleventh Amendment. The District Court’s Judgment, to the extent it requires increased rate payments to federally ineligible group home residents, does not involve injunctive relief for purposes of the Eleventh Amendment. Rather, it is a bare order to pay group home providers from the State Treasury in contravention of state law. Even though the funding would redound to the benefit of foster care children, it does not change the fact that the District Court’s Judgment is not the sort of ancillary effect on the treasury contemplated by Edelman, 415 U.S. at 667– 68, but is a direct effect on the treasury.
The Supreme Court has cautioned that the Young exception should not be interpreted in such a manner as to eviscerate the underlying protections of the Eleventh Amendment and state sovereign immunity. Even where state officials are being sued, “the State itself will have a continuing interest in the litigation whenever state policies or procedures are at stake.” Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 269 (1997). As a result, the Supreme Court has cautioned that “[t]o interpret Young to permit a federalcourt action to proceed in every case where prospective declaratory and injunctive relief is sought against an officer, named in his individual
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capacity, would be to adhere to an empty formalism. . . .” Id. The proper application of Young in this case must recognize that it is one thing to order something to be done that would necessarily cost money where the cost is supported by the matter that is within the jurisdiction of the District Court; it is another thing to order what amounts to the direct payment of money as to matters beyond the District Court’s reach.
The fact that the District Court’s Judgment as far as it exceeds the Child Welfare Act essentially involves the direct payment of money from the State Treasury weighs heavily in favor of a finding that California’s sovereign interests are implicated. “Courts of Appeals have recognized the vulnerability of the State’s purse as the most salient factor in Eleventh Amendment determinations.” Hess v. Port Authority Trans-Hudson Corp, 513 U.S. 30 at 48; see also id. at 49 (“[T]he state treasury factor is the most important factor to be considered . . . and, in practice, [courts] have generally accorded this factor dispositive weight.”). Consequently, the Judgment should properly be viewed as against the State, not the Director or Deputy Director of CDSS, and thus violates the Eleventh Amendment and California’s sovereign immunity to the extent it lacks a basis in the Child Welfare Act. “[W]hen the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is
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entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants.” Ford Motor Co. v. Department. of Treasury of Indiana, 323 U.S. 459, 464 (1945). Accordingly, even though the Judgment is framed as propsective injunctive relief, the fact remains that it is the State’s interests, not that of the named State defendants, that are paramount in this case. “The general rule is that a suit is against the sovereign if the judgment sought would expend itself on the public treasury…” Pennhurst State School & Hospital v. Halderman, 451 U.S. 1 (1981) at 101, n. 11. To “adher[e] to an empty formalism” in this case would render the Eleventh Amendment ineffective, and contravene the Supreme Court’s instruction “that Eleventh Amendment immunity represents a real limitation on a federal court’s federal question jurisdiction.” Coeur d’Alene, 521 U.S. at 270.
Accordingly, to the extent the District Court’s Judgment exceeds the scope of the Child Welfare Act, on the record before the District Court and this Court, it violates principles of sovereign immunity and violates the Eleventh Amendment.
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CONCLUSION For the reasons set forth above, the District Court’s Jdgment directing an increase in funding levels for all foster care group home residents in California exceeds its jurisdiction. Therefore, this Court should vacate or otherwise alter the District Court’s judgment in this matter to reflect the fact that only 59 percent of California’s foster care group home residents are subject to the District Court’s power to craft a remedy in accordance with and this Court’s opinion in Allenby.

Dated: July 6, 2010
SF2009405073

Respectfully submitted,
EDMUND G. BROWN JR. Attorney General of California SUSAN M. CARSON Supervising Deputy Attorney General
/s/ George Prince GEORGE PRINCE Deputy Attorney General Attorneys for Defendants and Appellants

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08-16267 IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CALIFORNIA ALLIANCE OF CHILD AND FAMILY SERVICES,
Plaintiff, v. CLIFF ALLENBY, Interim Director of the California Department of Social Services, in his official capacity; MARY AULT, Deputy Director of the Children and Family Services Division of the California Department of Social Services, in her official capacity,
Defendants.
STATEMENT OF RELATED CASES To the best of our knowledge, there are two cases with differing degrees of relationship to this case: in California Alliance of Child and Family Services v. Wagner, et al., Case No. 09-17649 (Alliance II), an emergency motion for a stay of the preliminary injunction issued therein on November 18, 2009, was denied by Judges Rymer and Goodwin on December 10, 2009, without prejudice to renewing it after a decision by this Court issues in John Wagner et al. v. California State Foster Parent Association, et al., No. 09-15051 (as to whether a private right of action
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exists to enforce the Child Welfare Act), which remains pending before this

Court following oral argument and submission on December 7, 2009.

Dated: July 6, 2010

Respectfully Submitted,

EDMUND G. BROWN JR. Attorney General of California SUSAN M. CARSON Supervising Deputy Attorney General

/S/ George Prince GEORGE PRINCE Deputy Attorney General Attorneys for Defendants and Appellants

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CERTIFICATE OF COMPLIANCE PURSUANT TO FED.R.APP.P 32(a)(7)(C) AND CIRCUIT RULE 32-1
FOR 08-16267

I certify that: (check (x) appropriate option(s))



1. Pursuant to Fed.R.App.P. 32(a)(7)(C) and Ninth Circuit Rule 32-1, the attached opening/answering/reply/cross-appeal brief is


or is

Proportionately spaced, has a typeface of 14 points or more and contains 7,291 words (opening, answering and the second and third briefs filed in cross-appeals must not exceed 14,000 words; reply briefs must not exceed 7,000 words
Monospaced, has 10.5 or fewer characters per inch and contains ____ words or ___ lines of text (opening, answering, and the second and third briefs filed in cross-appeals must not exceed 14,000 words or 1,300 lines of text; reply briefs must not exceed 7,000 words or 650 lines of text).

2. The attached brief is not subject to the type-volume limitations of Fed.R.App.P. 32(a(7)(B) because

This brief complies with Fed.R.App.P 32(a)(1)-(7) and is a principal brief of no more than 30 pages or a reply brief of no more than 15 pages.
or
This brief complies with a page or size-volume limitation established by separate court order dated ______________ and is

Proportionately spaced, has a typeface of 14 points or more and contains 7,291 words, or is
Monospaced, has 10.5 or fewer characters per inch and contains __ pages or __ words or __ lines of text.

3. Briefs in Capital Cases. This brief is being filed in a capital case pursuant to the type-volume limitations set forth at Circuit Rule 32-4 and is

Proportionately spaced, has a typeface of 14 points or more and contains ______________ words (opening, answering and the second and third briefs filed in cross-appeals must not exceed 21,000 words; reply briefs must not exceed 9,800 words).
or is
Monospaced, has 10.5 or fewer characters per inch and contains __ words or __ lines of text (opening, answering, and the second and third briefs filed in cross-appeals must not exceed 75 pages or 1,950 lines of text; reply briefs must not exceed 35 pages or 910 lines of text).

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4. Amicus Briefs.
Pursuant to Fed.R.App.P 29(d) and 9th Cir.R. 32-1, the attached amicus brief is proportionally spaced, has a typeface of 14 points or more and contains 7,000 words or less, or is Monospaced, has 10.5 or few characters per inch and contains not more than either 7,000 words or 650 lines of text, or is Not subject to the type-volume limitations because it is an amicus brief of no more than 15 pages and complies with Fed.R.App.P. 32 (a)(1)(5).

July 6, 2010 Dated

/s/ George Prince
GEORGE PRINCE Deputy Attorney General

 
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C.A. NO. 10-15593

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CALIFORNIA ALLIANCE OF CHILD AND FAMILY SERVICES,

USDC Case No. 3:06-cv-04095-MHP

Plaintiff/Appellee,

v.

CLIFF ALLENBY, Interim Director of the California Department of Social Services, in his official capacity; MARY AULT, Deputy Director of the Children and Family Services Division of the California Department of Social Services, in her official capacity,

Defendants/Appellants.

On Appeal From the United States District Court for the Northern District of California Honorable Judge Marilyn Hall Patel
APPELLEE’S ANSWERING BRIEF

Bingham McCutchen LLP William F. Abrams (SBN 88805) Craig A. Taggart (SBN 239168) Michael D. Mortenson (SBN 247758) 1900 University Avenue East Palo Alto, CA 94303-2223 Telephone: 650.849.4400 Facsimile: 650.849.4800
Attorneys for Appellant CALIFORNIA ALLIANCE OF CHILD AND FAMILY SERVICES

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CORPORATE DISCLOSURE STATEMENT PURSUANT TO FRAP 26.1
Pursuant to Rule 26.1(a) of the Federal Rules of Appellate Procedure, Plaintiff-Appellant California Alliance of Child and Family Services (“the Alliance”) states the following: the Alliance has no parent companies, and no publicly-held corporation owns 10% or more of its stock.
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TABLE OF CONTENTS
Page
CORPORATE DISCLOSURE STATEMENT .........................................................i I. STATEMENT REQUESTING ORAL ARGUMENT...................................1 II. STATEMENT OF JURISDICTION ..............................................................1
A. District Court’s Jurisdiction .................................................................1 B. Court of Appeals’ Jurisdiction .............................................................1 C. Timeliness of Appeal ...........................................................................2 III. ISSUES PRESENTED ON APPEAL ............................................................2 IV. STATEMENT OF FACTS .............................................................................2 A. The Child Welfare Act .........................................................................5 B. California’s Plan Under The Child Welfare Act..................................6 C. The Alliance Sues The State For Failure To Comply With The
Child Welfare Act ................................................................................8 D. The State Attempts To Implement An Additional 10% Rate Cut
And The Alliance Initiates A Separate Action And Obtains A Preliminary Injunction........................................................................11 E. This Court Reverses The District Court’s Summary Judgment Order In Alliance I And Remands With Instructions To Enter Judgment For The Alliance And Determine The Proper Scope Of Injunctive Relief............................................................................14 F. The District Court Issues Judgment For The Alliance And Grants Permanent Injunctive Relief ...................................................15 V. SUMMARY OF THE ARGUMENT...........................................................18 VI. ARGUMENT................................................................................................22 A. The District Court Correctly Entered Judgment And Tailored Injunctive Relief In Favor Of The Alliance .......................................22 1. Standard of Review..................................................................22 2. The State Waived Its Objections To The Judgment’s
Inclusion Of Rate Increases For Non-Federally Eligible Children....................................................................................23
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TABLE OF CONTENTS (continued) Page
a. The State Waived Any Argument That The Judgment Is Void And Should Be Vacated...................24
b. The State Waived Any Objection To The Judgment’s Inclusion of Federally Ineligible Children .........................................................................26
3. The District Court Did Not Abuse Its Discretion In Ordering The State To Increase Funding To Federally Eligible And Non-Federally Eligible Children........................29
VII. CONCLUSION.............................................................................................39 STATEMENT OF RELATED CASES ..................................................................40 CERTIFICATE OF COMPLIANCE PURSUANT TO FRAP 32(A)(7)(C) &
CIRCUIT RULE 32-1 ......................................................................................

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TABLE OF AUTHORITIES Page
FEDERAL CASES
Beech Aircraft Corp. v. United States, 51 F.3d 834 (9th Cir. 1995) ................................................................................28
California Alliance of Child and Family Services v. Allenby, 589 F.3d 1017 (9th Cir. 2009) ................................................3, 14, 15, 18, 32, 35
Carroll v. Nakatani, 342 F.3d 934 (9th Cir. 2003) ..............................................................................28
Chicago Downs Ass'n, Inc. v. Chase, 944 F.2d 366 (7th Cir. 1991) ..............................................................................25
Coca-Cola Co. v. Overland, Inc., 692 F.2d 1250 (9th Cir. 1982) ............................................................................30
Dream Palace v. City of Maricopa, 384 F.3d 990 (9th Cir. 2004) ..............................................................................25
Duarte v. Bardales, 526 F.3d 563 (9th Cir. 2008) ..............................................................................22
Ex Parte Young, 209 U.S. 123 Ex Parte Young (1908) .................................................................38
Gieg v. DDR, Inc., 407 F.3d 1038 (9th Cir. 2005) ............................................................................24
Idaho Watersheds Project v. Hahn, 307 F.3d 815 (9th Cir. 2002) ........................................................................25, 28
Janes v. Wal-Mart Stores, Inc., 279 F.3d 883 (9th Cir. 2002) ..............................................................................28
Orantes-Hernandez v. Thornburgh, 919 F.2d 549 (9th Cir. 1990) ..............................................................................30
Palmer v. U.S. Internal Revenue Serv., 116 F.3d 1309 (9th Cir. 1997) ............................................................................25

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Sharp Structural, Inc. v. Franklin Mfg., 283 Fed. Appx. 585 (9th Cir. 2008)....................................................................28
Singleton v. Wulff, 428 U.S. 106 (1976)............................................................................................24
United States v. AMC Entertainment, Inc., 549 F.3d 760 (9th Cir. 2008) ........................................................................23, 30
Western Mohegan Tribe and Nation v. Orange County, 395 F.3d 18 (2d Cir. 2004) .................................................................................38
Whittaker Corp. v. Execuair Corp., 953 F.2d 510 (9th Cir. 1992) ..............................................................................24
FEDERAL STATUTES 28 U.S.C. § 1291........................................................................................................1 28 U.S.C. §§ 1331 and 1343(a)(3).............................................................................1 42 U.S.C. §§ 670-679b ..........................................................................................2, 5 42 U.S.C. § 671(a) .....................................................................................................5 42 U.S.C. § 671(a)(1).................................................................................................6 42 U.S.C. § 671(a)(2).................................................................................................5 42 U.S.C. § 671(a), (b)...............................................................................................5 42 U.S.C. § 672..........................................................................................................6 42 U.S.C. § 672(a)(1).................................................................................................6 42 U.S.C. § 673..........................................................................................................6 42 U.S.C. § 675(A)(4)................................................................................................6 42 U.S.C. § 1983........................................................................................................9 42 United States Code §§ 670-679b ..........................................................................2 STATE STATUTES Cal. Welf. & Inst. Code §§ 11229 .............................................................................7
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Cal. Welf. & Inst. Code § 11453 ...............................................................................8 Cal. Welf. & Inst. Code § 11460(a) ...........................................................................7 Cal. Welf. & Inst. Code § 11460(b)...........................................................................7 Cal. Welf. & Inst. Code § 11462 ...............................................................................7 Cal. Welf. & Inst. Code §§ 11462(b).........................................................................7 Cal. Welf. & Inst. Code § 11462(e) .......................................................................7, 8 Cal. Welf. & Inst. Code § 11462(f) ...........................................................................7 Cal. Welf. & Inst. Code § 11462(g)(2) ......................................................................8 Cal. Welf. & Inst. Code § 11462(m)..................................................................17, 27 RULES Federal Rule of Civil Procedure 59(e) ..................................17, 19-20, 22, 23, 26-28 Federal Rule of Civil Procedure 60(b).........................................................20, 23, 25 REGULATIONS 45 C.F.R. § 1356.20(d)(1)..........................................................................................5

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I. STATEMENT REQUESTING ORAL ARGUMENT Counsel for Plaintiff-Appellee California Alliance of Child and Family
Services (“the Alliance”) respectfully requests twenty minutes of oral argument to assist the Court in evaluating the issues presented herein. II. STATEMENT OF JURISDICTION
A. District Court’s Jurisdiction The district court had subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3) because the Alliance’s Complaint against the California Department of Social Services (“the State” or “CDSS”) raised claims under Title IV-E of the Social Security Act, 42 U.S.C. §§ 670-679b (hereafter, “the Child Welfare Act” or “the Act”), and its implementing regulations. B. Court of Appeals’ Jurisdiction This Court has jurisdiction pursuant to 28 U.S.C. § 1291 based on the district court’s May 4, 2010 entry of the amended judgment. (ER 1; CR 112.)1 The State’s appeal is from a final judgment disposing of all claims in this case.
1 “CR” refers to the Clerk’s Record in Alliance I and is followed by pertinent docket number(s), and “AIICR” refers to the Clerk’s Record in Alliance II and is followed by pertinent docket number(s). “ER” refers to Appellant the State’s Excerpt of Record and is followed by the relevant page number(s). “SER” refers to Appellee California Alliance of Child and Family Services’ Supplemental Excerpt of Record and is followed by the relevant page number(s).
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C. Timeliness of Appeal The district court entered judgment on February 24, 2010. (ER 11; CR 92.) The State subsequently sent the district court a letter on February 26, 2010, which purported to assert objections to the judgment that were not included in its objections to the Proposed Judgment. (CR 93.) On March 18, 2010, the State filed its Notice of Appeal on the Judgment. On May 4, 2010, the district court entered an amended judgment. (ER 1; CR 112.) The State did not file a notice of appeal relating to the Amended Judgment. III. ISSUES PRESENTED ON APPEAL Did the district court’s judgment requiring the State to increase funding rates for all foster care group home residents in California under the Child Welfare Act (Title IV of the Social Security Act, 42 United States Code §§ 670-679b), exceed the scope of the pleadings in the original complaint, the district court’s jurisdiction, and the scope of this Court’s decision in Allenby because not all residents of foster care group homes in California are “federally eligible” under the Act? IV. STATEMENT OF FACTS The State of California’s appeal to this Court continues the State’s effort to illegally balance the budget in violation of Federal law by depriving California’s most vulnerable foster care children of funds sufficient to cover life’s basic necessities, including food, shelter and clothing. The children in California’s
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group homes are among the most at risk people in the state. Many suffer from behavioral and emotional problems and have become a part of the group home system as a last resort. If they cannot receive the care that they need and are entitled to at a group home, they will deteriorate further and have even more significant problems or, worse, will be doomed to a cycle of institutionalization in California’s prisons and mental hospitals. Unlike most citizens lobbying for California’s scarce resources, the collective voices of these children are little more than a whisper, which the State has ignored for years.
This Court’s decision in California Alliance of Child and Family Services v. Allenby, 589 F.3d 1017 (9th Cir. 2009) changed things. For the first time, the State was held accountable to these children and was forced to comply with the Child Welfare Act. The district court’s Amended Judgment puts this Court’s Order into effect. Thus, for the first time in almost twenty years, California’s foster care providers will finally receive enough money to actually cover the costs of caring for their children.
Unfortunately, the State is again attempting to underfund California’s foster care children by arguing that it is only required to provide an increase in funding to only some of California’s foster care children -- the “federally eligible” ones. Through this appeal, the State is fighting to continue its underfunding of California’s foster care children. The State’s ideal treatment of its foster care
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children is not only “draconian,” as the State admits, it is impractical. 2 As the district court found, because California does not distinguish between federally and non-federally eligible children when placing them, the underfunding for one segment of the children will undoubtedly result in underfunding for all children (both federally and non-federally eligible). 3 As a practical matter, foster care providers will not feed one child three meals a day and feed the other child only two meals, simply because the State pays the foster care provider different amounts for each child. The foster care provider will treat both children the same by splitting the funds received for both equally between the two; thus spending less on the federally eligible child than what this Court and the Child Welfare Act require. Therefore, should the State prevail on this appeal, California will once again fall out of compliance with the Child Welfare Act, and California’s foster care children
2 (Opening Brief at 17-18.) 3 The Amended Judgment set the rate for an RCL 14 group home program at $8,974 per month, effective July 1, 2010, for both federally-eligible and nonfederally eligible children. If the State is successful in this appeal, the rate paid for non-federally eligible children placed in RCL 14 programs would drop to $6,025 per month, or 67% of the amount paid for a federally-eligible child placed in the same program. Assuming that the mix of children in an RCL 14 program is 59% federally-eligible and 41% non-federally eligible, the average weighted payment for each child would be $7,765 per month, thus covering only 86.5% of the costs of care required to be paid by the Child Welfare Act.
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will once again be forced to endure the suffering that California’s deliberate underfunding causes.
A. The Child Welfare Act The Child Welfare Act, 42 U.S.C. §§ 670-679b, was enacted in 1980 to address the need to provide an appropriate setting for children who California and other states have made dependents or wards of the state. Recognizing the importance of helping these children, Congress created a cooperative program in which the federal government provides federal funding to assist the states in meeting the costs of providing the basic necessities enumerated in the Act. To become eligible for federal funding, a state must submit a plan for financial assistance to the Secretary of the United States Department of Health and Human Services (“DHHS”) for approval. 42 U.S.C. § 671(a). As a prerequisite to DHHS’s approval, the submitting state must agree, among other conditions, to administer its foster care program pursuant to the Child Welfare Act, related regulations and policies. 42 U.S.C. § 671(a), (b). A state must also designate a state agency to administer or supervise the administration of the state plan and amend its approved plan by appropriate submission to DHHS whenever necessary to comply with alterations to the Child Welfare Act and/or federal regulations or policies. 42 U.S.C. § 671(a)(2); 45 C.F.R. § 1356.20(d)(1). Furthermore, to ensure the funds actually reach the intended beneficiaries, each participating state’s
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plan must “provide for foster care maintenance payments in accordance with [42 U.S.C. § 672] and for adoption assistance in accordance with [42 U.S.C. § 673].” 42 U.S.C. § 671(a)(1).
The Child Welfare Act also sets forth specific requirements that each participating state must follow when implementing its plan. Among these requirements, the Child Welfare Act commands that “[e]ach State with a plan approved . . . shall make foster care maintenance payments on behalf of each child who has been removed from the home of a relative . . . .” 42 U.S.C. § 672(a)(1) (emphasis added). The Child Welfare Act defines “foster care maintenance payments” as
payments to cover the cost of (and the cost of providing) food, clothing, shelter, daily supervision, school supplies, a child’s personal incidentals, liability insurance with respect to a child, and reasonable travel to the child’s home for visitation. In the case of institutional care, such term shall include the reasonable costs of administration and operation of such institution as are necessarily required to provide the items described in the preceding sentence. 42 U.S.C. § 675(A)(4) (emphasis added). B. California’s Plan Under The Child Welfare Act Following the enactment of the Child Welfare Act, California, like most states, attempted to create a statutory scheme that complies with the Act’s express requirements. California designated the California Department of Social Services
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(“CDSS”) as the state agency responsible for submitting California’s plan to DHHS for approval. Cal. Welf. & Inst. Code §§ 11229, 11460(a), 11462(a).
California law provides that “[f]oster care providers shall be paid a per child per month rate in return for the care and supervision of the AFDC-FC child placed with them.” Cal. Welf. & Inst. Code § 11460(a). The phrase “care and supervision” is defined as “food, clothing, shelter, daily supervision, school supplies, a child’s personal incidentals, liability insurance with respect to a child, and reasonable travel to the child’s home for visitation.” Cal. Welf. & Inst. Code § 11460(b).
To determine the amount of foster care maintenance payments for foster care group homes, California uses the Rate Classification Level System (“RCL”). Cal. Welf. & Inst. Code § 11462. Under the RCL, a group home is assigned to one of fourteen levels based on the group home’s number of “points.” Cal. Welf. & Inst. Code §§ 11462(b), (e). The number of points assigned to a group home is based largely on (1) the number of “paid/awake” hours worked per child, per month, and (2) the qualifications of the staff. Cal. Welf. & Inst. Code § 11462(e). All of the group homes in the same RCL receive the same AFDC-FC payment rate based on the standardized schedule of rates. Cal. Welf. & Inst. Code § 11462(f). CDSS determines the RCL for each group home, and its AFDC-FC payment rate, using
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information submitted by each group home in a rate application. Cal. Welf. & Inst. Code § 11462(e).
California law further requires that “the standardized schedule of rates shall be adjusted annually by an amount equal to the [California Necessity Index] CNI computed pursuant to section 11453, subject to the availability of funds.” Cal. Welf. & Inst. Code § 11462(g)(2). The CNI is a weighted average of increases in various costs of living for low-income consumers, including food, clothing, fuel, utilities, rent and transportation. See, e.g., Cal. Welf. & Inst. Code § 11453.
Importantly, California law also provides for care for foster care children that might not be federally eligible under the Child Welfare Act. Indeed, California law does not distinguish between federally eligible children and nonfederally eligible children, and federally eligible and non-federally eligible children are inextricably mixed within California’s foster care group homes because placements are made based on location and needs of the specific foster care children -- not on their federal eligibility status. (See Preliminary Injunction Order at 14; SER 23; AIICR 57.)
C. The Alliance Sues The State For Failure To Comply With The Child Welfare Act
The Alliance is a non-profit association of private, non-profit agencies that provide adoption, foster care, group home and other services. At the time the
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lawsuit was originally filed in 2006, the Alliance had approximately 150 member agencies, with approximately 130 of these agencies operating one or more group home programs, which had a total licensed capacity of approximately 5,700 children and youth. (Compl., at ¶ 4(b); ER 53; CR 1.) These agencies rely on California’s foster care maintenance payments required under the Child Welfare Act to pay their operating costs and provide basic necessities to the children in their group homes. (Compl., at ¶ 21; ER 57; CR 1.)
On June 30, 2006, the Alliance filed this action under 42 U.S.C. § 1983 against CDSS in the Northern District of California because the State of California has violated and continues to violate the commands of the Child Welfare Act. (ER 51; CR 1.) From State fiscal year 1990-1991 to 2005-2006 the costs of providing the basic necessities enumerated in the Child Welfare Act increased by approximately 53%, yet California’s foster care payments increased only 27%. (Compl., at ¶ 19; ER 57; CR 1.) As a result, there was a substantial gap between the costs that foster care providers must incur to provide basic care to California’s children and the payments these providers receive from the State under its system.
California’s deliberate underfunding of foster care maintenance payments has had catastrophic effects on foster care providers in California. Several members of the Alliance ceased operating their group homes or reduced the capacity of their group home programs. (Compl., at ¶ 21; ER 57; CR 1.) To
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prevent the closure of more homes and to protect the rights of the innocent children, the Alliance initiated this lawsuit, seeking declaratory and injunctive relief against the State of California to force it to comply with the Child Welfare Act’s requirements. (Compl., at ¶¶ 23-30; ER 59-61; CR 1.)
On July 16, 2007, the Alliance filed its Motion for Summary Judgment. (CR 34.) On July 17, 2007, the State filed its Motion for Summary Judgment. (CR 37.) The Alliance asserted, among other things, that California violated, and continues to violate, federal law by failing to the cover the cost of (and the cost of providing) the enumerated items set forth in the Child Welfare Act. (CR 34.) In its crossmotion, the State acknowledged that it fails to do so. The State argued, nonetheless, that California is compliant with the Child Welfare Act because the Act does not require states to pay the actual costs of providing the enumerated items. (Def.’s Mot. Summ. J. at p. 7; CR 37.) The State also argued that the Child Welfare Act permits states to take budgetary considerations into account in determining the amount of foster care maintenance payments. (Def.’s Mot. Summ. J. at p. 8; CR 37.)
The district court heard oral arguments on September 24, 2007, and on March 11, 2008 issued an order granting the State’s Motion for Summary Judgment and denying the Alliance’s Motion for Summary Judgment. (ER 90; CR 57.) The district court entered judgment on March 12, 2008. (CR 58.)

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Following the issuance of the district court’s March 12, 2008 order, the Alliance appealed to this Court, which, as set forth below, was reversed.
D. The State Attempts To Implement An Additional 10% Rate Cut And The Alliance Initiates A Separate Action And Obtains A Preliminary Injunction
While the Alliance’s appeal was pending in Alliance I, the State initiated an additional 10% cut to the already deficient rates paid to foster care group homes as part of its 2010 budget. This additional rate cut significantly threatened the closure of foster care group homes across California as they would no longer have enough funding to provide the most basic care to California’s most vulnerable children.
In response to the State’s 10% cut, the Alliance initiated a separate action in the United States District Court for the Northern District of California on September 18, 2009. (AIICR 1.) The Alliance’s lawsuit in Alliance II sought to enjoin the State of California from implementing the 10% cut to the already deficient RCL rates. (Id.) To that end, the Alliance moved to preliminarily enjoin the State’s rate cuts from taking effect. (Id.)
On November 13, 2009, the district court held its hearing on the Alliance’s Motion for Preliminary Injunction. On November 18, 2009, the district court issued its Order granting the Alliance’s Motion for Preliminary Injunction. (AIICR 57.)

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In its preliminary injunction order, the district court ordered that the “injunction prohibits implementation of the reduction only with respect to payments made in connection with children subject to the CWA. Execution of the injunction SHALL NOT be carried out in a manner that will reduce in any amount the full entitlement to such federally eligible children under this order.” (SER 23; AIICR 57) (emphasis added). The district court also noted that “[c]ounsel for the parties agreed at oral argument that the RCL system and group homes do not distinguish between federally eligible and non-federally eligible children in the rates set or the services provided.” (SER 23; AIICR 57) (emphasis added). The district court then explained: “This raises the question [of] whether any funding scheme for foster care maintenance payments that discriminates among federally eligible and non-federally eligible children can be carried out under California’s system.” (SER 23; AIICR 57.) The district court then asked the State to inform it how the State planned to determine the amount of foster care maintenance payments that will satisfy the order. (SER 23; AIICR 57.)
In response to the district court’s request, the State merely submitted a plan with two different tables of rates -- one for federally eligible children and one for non-federally eligible children. (SER 3; AIICR 63.) The federally-eligible children's rates were those that were in effect prior to the 10% rate reduction implemented by the State on October 1, 2009. The non-federally eligible

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children's rates were those which reflected the 10% rate reduction. (SER 7-8; AIICR 63.) The Alliance objected to the State’s plan on the grounds that “it does not specify how group homes are supposed to implement it in such a way as to ensure that federally eligible children are not subject to additional reductions in foster care maintenance payments, as mandated by the court’s preliminary injunction order.” (ER 47; AIICR 67.)
On December 18, 2009, the district court issued its Order in Alliance II, and enjoined the State from implementing rate cuts rates for federally eligible and nonfederally eligible children. The district court explained: “[a]t the preliminary injunction hearing, plaintiff represented to the court that group homes are required to provide the same basic level of care to all children placed with the home, regardless whether the children are federally eligible. The State did not dispute this characterization.” (ER 47; AIICR 67) (internal citations omitted). The district court also noted that “nothing in the State’s submission contests or even addresses the preliminary injunction order’s finding that ‘group homes do not distinguish between federally eligible and non-federally eligible children in . . . the services provided.’” (ER 47-48; AIICR 67.) The district court then concluded:
Because group homes do not so distinguish, it is inevitable that simply reimbursing group homes differently for federally eligible and nonfederally eligible children will result in the dilution of funds to federally eligible children. For instance, a group home operating at an RCL 14 level would receive $6,694 per month for each federally eligible child and $6,025 per month for each non-federally eligible

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child. According to the State, approximately 59% of children statewide are federally eligible whereas 41% are non-federally eligible. A group home whose population reflected this breakdown would receive an average of $6,419.71 per child. For a federally eligible child, this amounts to a funding level of 95.9% of that to which the child is entitled. In other words, because group homes do not -- and likely would not, as a matter of ethics as well as policy -give non-federally eligible children less food, clothing, shelter, or less of any of the other items enumerated in the CWA, see 42 U.S.C. § 675(A)(4), the effect of the State’s current plan is to cut the benefits to federally eligible children by 4.1%, in contravention of the court’s preliminary injunction order.
(ER 48, AIICR 67) (emphasis added). The district court then held that
“[i]mplementation of such reduction is enjoined both in relation to federally
eligible children and non-federally eligible children.” (ER 48, AIICR 67.)
E. This Court Reverses The District Court’s Summary Judgment Order
In Alliance I And Remands With Instructions To Enter Judgment For
The Alliance And Determine The Proper Scope Of Injunctive Relief
After hearing oral argument on October 7, 2009, this Court issued its
Opinion in Alliance I on December 14, 2009. See California Alliance of Child and
Family Services v. Allenby, 589 F.3d 1017 (9th Cir. 2009) (ER 74; CR 84.) In
reversing the district court’s order denying the Alliance’s motion for summary
judgment and granting summary judgment in favor of the State, the Court agreed
with the Alliance’s interpretation of the Child Welfare Act.
This Court’s Opinion in Alliance I made clear that the State was not in
compliance with the Child Welfare Act because it did not “cover” the costs of

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providing the enumerated items to the federally eligible children. Allenby, 589 F.3d at 1021. The Court explained: “It is undisputed that the State is no longer paying this amount -- rather, it is paying somewhere in the neighborhood of 80 percent of the amount. In other words, the CWA requires California to cover the cost of certain items and California has developed a formula to determine what those items cost, but is now only partially covering the cost of those items. This runs afoul of the CWA’s mandate.” Id. (emphasis added). The Court held that the State “must make yearly CNI adjustments (or some other inflationary adjustment) to account for the rise (or fall) in its standardized schedule of rates.” Allenby, 589 F.3d at 1023.
The Court concluded that “[b]ecause the State is not covering the costs required by the CWA, we reverse the district court’s order granting summary judgment to the State and denying summary judgment to the Alliance.” Id. at 1023. The Court further directed the district court to enter judgment for the Alliance and to determine the proper scope of declaratory and injunctive relief. Id.
F. The District Court Issues Judgment For The Alliance And Grants Permanent Injunctive Relief
On January 15, 2010, the Alliance submitted a proposed judgment to the district court in light of this Court’s December 14, 2009 Order in Alliance I. (ER 41; CR 87.) The Alliance’s Proposed Judgment included rate increases in

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accordance with the CNI for both federally eligible and non-federally eligible children based on the district court’s conclusion in Alliance II that (1) California’s RCL System does not distinguish between federally and non-federally eligible children, and (2) without increasing rates for both federally and non-federally eligible children, the enumerated costs under the Child Welfare Act would not be covered for federally eligible children. (Id.)
On January 29, 2010, the State submitted its Response and Objections to Plaintiff’s Proposed Judgment. (ER 35; CR 88.) The State neither objected to nor even mentioned the inclusion of rate increases for non-federally eligible children in the Proposed Judgment. (Id.)
The district court entered Judgment on February 23, 2010. (ER 11; CR 92.) The district court’s Judgment included rate increases for both federally eligible and non-federally eligible children. (ER 15; CR 92.) The district court explained: “The injunction extends to non-federally eligible children for the reasons set forth in this court’s order of December 18, 2009, entered in the related California Alliance v. Wagner action.” (Judgment at 5 n.2; ER 15; CR 92.) The State filed its Notice of Appeal of the district court’s Judgment on February 22, 2010.
Following the district court’s entry of judgment, on February 26, 2010, the State submitted a procedurally improper letter to the district court asserting new objections to the Judgment that were not made (and therefore waived) before it was

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entered on February 23, 2010. (CR 93.) Specifically, the State objected to (1) the inclusion of rate increases for non-federally eligible children, and (2) the inclusion of a reference to a “list” that the CDSS submits to the Legislature on an annual basis under Welfare and Institutions Code section 11462(m). (CR 93.)
On March 12, 2010, the district court issued an order requiring additional briefing from the parties relating to the State’s February 26, 2010 letter to the district court requesting amended judgment. (SER 1; CR 98.) However, the district court’s Order did not mention the inclusion of non-federally eligible children, but only requested additional briefing on the issue regarding the State’s assertion that Welfare and Institutions Code section 11462(m) is not part of the RCL rate-setting methodology.” (Id.)
On May 5, 2010, the district court issued an order granting the State’s request for an amended judgment. (ER 8; CR 111.) The district court stated that it treated the State’s February 26, 2010 letter “as a motion to amend the judgment under Federal Rule of Civil Procedure 59(e).” (ER 8; CR 111.) The district court modified the Judgment so that “Paragraph 4(d) of the judgment entered on February 24, 2010 is stricken.” (ER 10; CR 111.) The district court did not mention or address the State’s belated objection to the inclusion of rate increases for non-federally eligible children. That same day, the district court issued its

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Amended Judgment, which did not modify the portion of the Judgment regarding the inclusion of rate increases for non-federally eligible children. (ER 1; CR 111.) V. SUMMARY OF THE ARGUMENT
The State of California’s appeal comes on the heels of the district court’s entry of judgment and permanent injunctive relief in favor of the Alliance following this Court’s holding that the State was out of compliance with the Child Welfare Act in California Alliance of Child and Family Services v. Allenby, 589 F.3d 1017 (9th Cir. 2009) (ER 74; CR 84). In response to this Court’s Order, the district court ordered the State to provide the requisite rate increases to federally and non-federally eligible children under California’s Rate Classification System to ensure that the State’s foster care maintenance payments “cover” the costs of providing the enumerated items set forth in the Child Welfare Act.
In this appeal, the State concedes that federally eligible children “are entitled to the increased rates ordered by the District Court.” (Opening Brief at 14.) However, the State asserts that the district court erred in requiring that “the group home rates be increased for all residents, including the 41 percent who are not federally eligible . . . .” (Id.) The State’s argument is meritless for several reasons, including the State’s clear and intentional waiver on this issue, and the fact that the district court did not abuse its discretion in tailoring the injunctive relief to provide

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rate increases to both federally eligible and non-federally eligible children to ensure that the cost of caring for the federally eligible children is covered. 4
As a threshold matter, the Court need not address the merits of this appeal to
affirm the district court’s Amended Judgment. Rate increases for both federally
eligible and non-federally eligible children were included in the Alliance’s
Proposed Judgment. The State failed to object to the inclusion of rate increases for
non-federally eligible children before the Judgment was entered, and therefore
waived the issue. Furthermore, the State’s belated, procedurally improper letter to
the district court after the Judgment was entered -- which was treated as a Federal
Rule of Civil Procedure 59(e) motion -- is insufficient to preserve this issue on
appeal as this Court has long-held that objections made for the first time in post-
judgment motions are not preserved.
4 The State admits in its brief that what it is attempting to accomplish through its appeal is “draconian.” The State is attempting to treat federally and non-federally eligible children differently. Federal eligibility is only relevant for determining whether the federal government provides funding for the specific child and whether the child falls under the Child Welfare Act. While California removes both federally and non-federally eligible children from their homes and places them into foster care group homes without providing them any choice, California has deliberately chosen not to provide sufficient funding for their care. Although the Court’s Order in Alliance I alleviated this concern for federally eligible children, the State is now attempting to continue to underfund the care for both federally and non-federally eligible children by underfunding the cost to care for the non-federally eligible children.

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Even if this Court turns to the merits, the State fares no better. The State misapprehends the appropriate standard of review on this appeal. The State asks the Court to apply a de novo standard on the grounds that the Amended Judgment is void. However, the State never moved for relief under Federal Rule of Civil Procedure 60(b), and therefore the State’s assertion that the Amended Judgment is void is not properly before this Court. The issue regarding the inclusion of rate increases for non-federally eligible children was only presented (if at all) in the State’s Rule 59(e) motion, which is reviewed for an abuse of discretion.
Turning to the substance, the entirety of the State’s argument is predicated on the State’s incorrect assertion that the district court found that non-federally eligible children are entitled to rate increases under the federal Child Welfare Act. The district court found no such thing. Rather, the district court concluded that, under California’s current RCL system, the State must raise rates for federally eligible and non-federally eligible children because (1) the RCL System does not distinguish between federally and non-federally eligible children, which are grouped together in foster care group homes, and (2) “it is inevitable that simply reimbursing group homes differently for federally eligible and non-federally

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eligible children will result in the dilution of funds to federally eligible children.” 5 (ER 47-48; AIICR 67). The State does not argue that either of these findings is erroneous.
Relying entirely on the incorrect premise that the district court concluded that non-federally eligible children are entitled to rate increases under the Child Welfare Act, the State makes several arguments in support of its position that the Amended Judgment is “void.” Each argument fails.
The State argues that the district court exceeded its jurisdiction because the Child Welfare Act only applies to federally eligible children. However, the district court did not provide relief under state law, and it did not expand its own jurisdiction. Rather, the district court tailored the relief consistent with this Court’s Order in Alliance I to ensure that California’s system covers the costs for the federally eligible children. The district court only found that even if the State raises rates for the federally eligible children, unless rates are also increased for the non-federally eligible children, the result is that the average rate per child (federally eligible and non-federally eligible) is below the amount necessary to cover the costs of providing the enumerated items in the Child Welfare Act.
5 The district court made clear that the State is free to develop a new system that distinguishes between federally eligible and non-federally eligible children. (ER 18.) To date, the State has declined to create a new system.

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In addition, while the State does not dispute that the Amended Judgment, as it relates to federally eligible children, does not violate the Eleventh Amendment, it argues that the inclusion of non-federally eligible children pushes it over the threshold into impermissibility. (Opening Brief at 28.) But again, the Amended Judgment does not require the State to increase spending on foster care group homes beyond the amount the Child Welfare Act supports. It only requires that rates be increased for both federally eligible and non-federally eligible children to ensure that the rates for the federally eligible children comply with the Child Welfare Act and are consistent with this Court’s Order in Alliance I. (ER 4; CR 112.)
Accordingly, based on the foregoing reasons, the Alliance respectfully requests that the district court’s Amended Judgment be affirmed. VI. ARGUMENT
A. The District Court Correctly Entered Judgment And Tailored Injunctive Relief In Favor Of The Alliance 1. Standard of Review
The Court reviews an order denying a Federal Rule of Civil Procedure 59(e) motion to amend the judgment under the abuse of discretion standard. Duarte v. Bardales, 526 F.3d 563, 567 (9th Cir. 2008). Furthermore, the Court reviews an injunction order for “an abuse of discretion or an erroneous application of legal

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principles.” United States v. AMC Entertainment, Inc., 549 F.3d 760, 768 (9th Cir. 2008).
The State argues that the standard of review is de novo because it asserts that the Amended Judgment is “void.” (Opening Brief at 18.) However, the State’s only objection to the Court’s inclusion of non-federally eligible children was presented to the district court in a procedurally defective post-judgment letter that the district court treated as a motion under Federal Rule of Civil Procedure 59(e). (CR 93.) The State never moved for relief under Federal Rule of Civil Procedure 60(b) on the grounds that the Amended Judgment is void, and therefore the State’s assertion that the Amended Judgment is void is not properly before this Court.
As explained below, the district court did not abuse its discretion in (1) denying the State’s motion under Federal Rule of Civil Procedure 59(e), and (2) fashioning the appropriate injunctive relief in response to this Court’s order in Alliance I.
2. The State Waived Its Objections To The Judgment’s Inclusion Of Rate Increases For Non-Federally Eligible Children
The State improperly seeks relief from this Court that it never sought from the district court. The State asks this Court to vacate or amend the district court’s judgment because the district court’s judgment applies to non-federally eligible

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foster children,6 which the State argues exceeds the scope of the original pleadings, the district court’s jurisdiction and this Court’s decision in Alliance I. (Opening Brief at 14, 16.) This Court should deny the State’s requests to vacate or amend the judgment because the State (1) never moved to vacate the judgment in the district court, and (2) never objected to the district court’s inclusion of nonfederally eligible children in the judgment before its entry.
a. The State Waived Any Argument That The Judgment Is Void And Should Be Vacated
The State asks this Court to vacate the district court’s judgment on the grounds that it is void. (Opening Brief at 18.) The State, however, waived this issue because it never raised it with the district court. “It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below.” Singleton v. Wulff, 428 U.S. 106, 120 (1976); see also Gieg v. DDR, Inc., 407 F.3d 1038, 1046 n.10 (9th Cir. 2005) (“An appellate court will not consider arguments not first raised before the district court unless there are exceptional circumstances.”); Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 515 (9th Cir. 1992) (“As a general rule, an appellate court will not hear an issue raised for the
6 The State concedes that “[a]s to those federally eligible residents there is no issue in this appeal that they are entitled to the increased rates ordered by the District Court.” (Opening Brief at 14.)

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first time on appeal.”).7 Indeed, this Court and other circuit courts have consistently held that where a party fails to seek relief from a judgment in the district court, “it is waived and [appellate courts] decline to consider it.” See Idaho Watersheds Project v. Hahn, 307 F.3d 815, 830 (9th Cir. 2002); see also Palmer v. U.S. Internal Revenue Serv., 116 F.3d 1309, 1312-13 (9th Cir. 1997) (Holding that an issue not raised in the district court is waived on appeal) ); Chicago Downs Ass'n, Inc. v. Chase, 944 F.2d 366, 370-71 (7th Cir. 1991) (Holding that a party’s failure to file a Rule 60(b) motion with the district court waived the issue for purposes of appeal.).
Because the State did not file a motion to vacate the judgment under Rule 60(b) in the district court, it cannot now raise the issue for the first time on appeal. Therefore, the issue is waived and the district court’s Amended Judgment should be affirmed.

7 The longstanding prohibition against considering issues raised for the first time on appeal exists “to ensure that legal arguments are considered with the benefit of a fully developed factual record, offers appellate courts the benefit of the district court’s prior analysis, and prevents parties from sandbagging their opponents with new arguments on appeal.” Dream Palace v. City of Maricopa, 384 F.3d 990, 1005 (9th Cir. 2004). Entertaining the State’s request to vacate deprives this Court of a complete factual record and the district court’s analysis, and deprives the Alliance of an opportunity to offer a complete defense thereto.

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b. The State Waived Any Objection To The Judgment’s Inclusion of Federally Ineligible Children
Although the State does not directly appeal the district court’s denial of its Rule 59(e) motion to amend, it does ask this Court to amend the district court’s judgment because, as the State alleges, it improperly applies to “federally ineligible” children.8 (Opening Brief at 17.) The State’s request that this Court amend the Judgment is improper because, despite ample opportunity to raise the issue in a timely manner, the State did not argue that it would be improper for the Judgment to impact federally ineligible children until after the Judgment was entered.
The Alliance filed its Proposed Judgment, which included rate increases for both federally eligible and non-federally eligible children on January 15, 2010. (ER 41; CR 87.) In its Response and Objections filed two-weeks later, the State did not object to (or even mention) the inclusion of federally ineligible children in the Proposed Order. (CR 88; ER 35.) Nor did the State object in open court during the February 22, 2010 hearing on the proposed order, despite the district court explicitly noting that it would “add a footnote -- at Subparagraph C of
8 Since the federally ineligible children issue was presented to the district court for the first time in the State’s Rule 59(e) motion, the district court’s refusal to amend the Judgment based on the State’s Rule 59(e) motion presumably provides the State’s platform for attempting to raise this issue on appeal.

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Paragraph 4, relating to the . . . non[-]federally eligible children . . . .” (ER 25.) The district court entered judgment on February 24, 2010. (ER 11; CR 92.) The State immediately appealed. (ER 5; CR 99.)
Two days after the judgment was entered, and the day after it filed its notice of appeal, the State, in a procedurally improper letter to the district court, objected for the first time to the judgment’s inclusion of federally ineligible children. (CR 93.)9 The district court considered the letter a Rule 59(e) motion. (ER 8; CR 111.) On May 4, 2010, the district court amended the Judgment with respect to an issue not on appeal, but left undisturbed the judgment’s application to nonfederally eligible children. 10 The State did not amend its notice of appeal or file a new one.
The State asks this Court to consider arguments that were not raised in the district court prior to the entry of judgment. The State argues that because the judgment includes rate increases for non-federally eligible children, it exceeds (1) district court’s jurisdiction; (2) the scope of the pleadings and; (3) this Court’s
9 Specifically, the State objected to the inclusion of (1) rate increases for non-federally eligible children, and (2) a reference to a “list” that the CDSS submits to the Legislature on an annual basis under Welfare and Institutions Code section 11462(m). (CR 93.)
10 The district court’s only modification to the judgment was to strike “Paragraph 4(d) of the judgment entered on February 24, 2010 . . ..” (ER 10; CR 111).

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decision in Alliance I. (Opening Brief at 15.) However, by failing to make these arguments in the district court before judgment was entered, the State failed to preserve them on appeal. See e.g., Janes v. Wal-Mart Stores, Inc., 279 F.3d 883, 887 (9th Cir. 2002) (“Issues raised for the first time on appeal usually are not considered.”).
Moreover, the State’s eventual inclusion of these arguments in its postjudgment letter to the district court does not preserve them for appeal either. See, e.g., Beech Aircraft Corp. v. United States, 51 F.3d 834, 841 (9th Cir. 1995) (“That Plaintiffs raised the issue in a post-judgment motion does not save this issue for appeal for the Plaintiffs.”); see also Sharp Structural, Inc. v. Franklin Mfg., 283 Fed. Appx. 585, 588 (9th Cir. 2008) (“A Rule 59(e) motion may not be used to raise arguments . . . for the first time when they could reasonably have been raised earlier in the litigation.”); Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003) (same).
Accordingly, the State waived these arguments by failing to make them in the district court before the judgment was entered. See Idaho Watersheds Project, 307 F.3d at 830 (“Because the [Appellants] did not raise this argument below . . . it is waived and we decline to consider it.”) The State’s arguments that the district court erred in failing to amend the judgment are, therefore, waived. The Court should decline to consider them and should affirm the Judgment.

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3. The District Court Did Not Abuse Its Discretion In Ordering The State To Increase Funding To Federally Eligible And NonFederally Eligible Children
Even assuming that the State properly preserved its arguments for appeal -which it did not -- the district court did not abuse its discretion in ordering the State to increase funding to both federally and non-federally eligible children. The State concedes in its appeal that federally eligible children “are entitled to the increased rates ordered by the District Court.” (Opening Brief at 14.) However, the State asserts that the district court erred in requiring that “the group home rates be increased for all residents, including the 41 percent who are not federally eligible . . . .” (Opening Brief at 14.) The State’s argument is meritless. The district court acknowledged and the Alliance concedes for purposes of this appeal that non-federally eligible children are not subject to the contours of the Child Welfare Act. However, the district court did not abuse its discretion in concluding that under the State’s current RCL system the State of California must also increase funding for federally and non-federally eligible children to ensure that the State of California covers “the cost of (and the cost of providing)” the enumerated

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items set forth in Section 675 of the Child Welfare Act to the federally eligible children. 11
It is well established that “[t]he district court has substantial discretion in defining the terms of an injunction and appellate review is correspondingly narrow.” Coca-Cola Co. v. Overland, Inc., 692 F.2d 1250, 1256 n.16 (9th Cir. 1982) (citing Lemon v. Kurtzman, 411 U.S. 192, 200 (1973) (“In shaping equity decrees, the trial court is vested with broad discretionary power; appellate review is correspondingly narrow”)); Orantes-Hernandez v. Thornburgh, 919 F.2d 549, 558 (9th Cir. 1990) (“Once plaintiffs establish they are entitled to injunctive relief, the district court has broad discretion in fashioning a remedy.”); United States v. AMC Entertainment, Inc., 549 F.3d at 768 (“A district court has considerable discretion in granting injunctive relief and in tailoring its injunctive relief.”).
The district court did not abuse its discretion in tailoring the appropriate injunctive relief in response to this Court’s Order in Alliance I, as demonstrated by its sound reasoning for requiring the State to increase rates for federally eligible and non-federally eligible children to ensure the federally eligible children get the full amount of funds to which they are entitled under federal law. Noticeably
11 The district court made clear that the State is free to develop a new system that distinguishes between federally eligible and non-federally eligible children. (ER 18.)

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absent from the State’s brief is any substantive discussion of the district court’s reasoning for requiring the State to increase rates for federally eligible and nonfederally eligible children to ensure the federally eligible children get the full amount of funds to which federal law entitles them. The State buries the district court’s reasoning for including non-federally eligible children at page 26 of its Opening Brief, with much of it left out entirely. Furthermore, although the State quotes the district court’s reasoning, the State never addresses it (therefore conceding it is correct) other than to note that “[t]he State defendants are mindful of the District Court’s concerns” but that such concerns “are not sufficient to extend the District Court’s jurisdiction beyond what the complaint before it defined . . . .” (Opening Brief at 27.) The State’s jurisdictional argument is both misplaced and specious.
The Alliance’s lawsuit was premised on allegations that the State of California failed to comply with the Child Welfare Act because it failed to make “foster care maintenance payments” for qualifying children (i.e., federally eligible children) that “cover the cost of (and the cost of providing)” the basic necessities set forth in Section 675. Based on the undisputed facts, this Court agreed: “It is undisputed that the State is no longer paying this amount -- rather, it is paying somewhere in neighborhood of 80 percent of the amount. In other words, the CWA requires California to cover the cost of certain items and California has

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developed a formula to determine what those items cost, but is now only partially covering the cost of those items. This runs afoul of the CWA’s mandate.” Allenby, 589 F.3d at 1021 (emphasis added). Thus, this Court in Alliance I directed the district court to enter judgment for the Alliance and to determine the proper scope of declaratory and injunctive relief. Id. at 1023.
Following this Court’s Opinion, the district court entered judgment for the Alliance, which required the State to make the requisite CNI rate increases to federally eligible and non-federally eligible children. (ER 11; CR 92.) In ordering the State to raise rates for the non-federally eligible children, the district court incorporated its analysis from Alliance II, where the issue was extensively briefed in connection with the district court’s Order enjoining the State from implementing further cuts to the already deficient rates that were in effect at that time. (Id.)
In Alliance II, the district court enjoined the State of California’s 10% rate cut to foster care group home rates on the grounds that it rendered the rates out of compliance with the requirements of the federal Child Welfare Act. In analyzing the proper scope of the injunctive relief, the district court recognized that the State of California has set up a foster care system (i.e., the RCL System) that does not distinguish between federally eligible and non-federally eligible children. The Court invited the State in Alliance II to present a plan for implementing the rate cuts to the non-federally eligible children under the State’s current RCL system

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that would not also result in a rate cut to the federally eligible children. (SER 23;
CR 57). In response, the State only presented a chart setting forth different foster
care rates to federally eligible and non-federally eligible children, but without
offering any explanation of how such different rates were to be applied. (SER 3;
CR 63).
The district court in Alliance II correctly concluded that merely providing
different rates was insufficient to protect the federally eligible children. (ER 48;
AIICR 67). The district court explained: “At the preliminary injunction hearing,
plaintiff represented to the court that group homes are required to provide the same
basic level of care to all children placed with the home, regardless whether the
children are federally eligible. The State did not dispute this characterization.”
(ER 47; AIICR 67) (internal citations omitted). The district court also noted that
“nothing in the State’s submission contests or even addresses the preliminary
injunction order’s finding that ‘group homes do not distinguish between federally
eligible and non-federally eligible children in . . . the services provided.’” (ER 47;
AIICR 67.) The district court then concluded:
Because group homes do not so distinguish, it is inevitable that simply reimbursing group homes differently for federally eligible and nonfederally eligible children will result in the dilution of funds to federally eligible children. For instance, a group home operating at an RCL 14 level would receive $6,694 per month for each federally eligible child and $6,025 per month for each non-federally eligible child. According to the State, approximately 59% of children statewide are federally eligible whereas 41% are non-federally

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eligible. A group home whose population reflected this breakdown would receive an average of $6,419.71 per child. For a federally eligible child, this amounts to a funding level of 95.9% of that to which the child is entitled. In other words, because group homes do not -- and likely would not, as a matter of ethics as well as policy -give non-federally eligible children less food, clothing, shelter, or less of any of the other items enumerated in the CWA, see 42 U.S.C. § 675(A)(4), the effect of the State’s current plan is to cut the benefits to federally eligible children by 4.1%, in contravention of the court’s preliminary injunction order.12
(ER 48, AIICR 67.) The district court then ordered that “[i]mplementation of such
reduction is enjoined both in relation to federally eligible and non-federally eligible
children.” (ER 48, AIICR 67.)
The district court correctly incorporated its analysis from Alliance II in
entering judgment in favor of the Alliance in Alliance I. This Court’s Opinion in
Alliance I made clear that the State was not in compliance with the Child Welfare
12 As a result of the implementation of the Amended Judgment, the rate for an RCL 14 group home program became $8,974 per month, effective July 1, 2010, for both federally-eligible and non-federally eligible children. If the State is successful in this appeal, the rate it would pay for non-federally eligible children placed in RCL 14 programs would be only $6,025 per month, taking into account the 10% rate reduction which the State attempted to implement effective October 1, 2009. This would mean that the amount paid for a non-federally eligible child placed in an RCL 14 program would be only 67% of the amount paid for a federally-eligible child placed in the same program. Assuming that the mix of children in an RCL 14 program is 59% federally-eligible and 41% non-federally eligible, the average weighted payment would be $7,765 per month, which would cover only 86.5% of the costs of care to which federally-eligible children are entitled and which would provide substantial federal Title IV-E funding to illegally subsidize the State for the care of non-federally eligible children.

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Act because it did not “cover” the costs of providing the enumerated items for the federally eligible children. Allenby, 589 F.3d at 1023. The Court held that the State “must make yearly CNI adjustments (or some other inflationary adjustment) to account for the rise (or fall) in its standardized schedule of rates.” Id. However, as the district court concluded, given the fact that the State does not distinguish between federally eligible and non-federally eligible children, “simply reimbursing group homes differently for federally eligible and non-federally eligible children will result in the dilution of funds to federally eligible children.” (ER 48; AIICR 67). In other words, because California does not distinguish between federally eligible and non-federally eligible children, providing a rate increase to only federally eligible children will render the funding to federally eligible children insufficient to “cover” the costs of providing the enumerated items since those funds will also be used to care for the non-federally eligible children.
The State did not disagree with the district court’s analysis and conclusion that in order to be in compliance with the Child Welfare Act and “cover” the costs enumerated therein under the State’s current system, the State must provide CNI rate increases to federally eligible and non-federally eligible children. Instead, the State mischaracterizes the district court’s conclusion and presents several arguments that are meritless.

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First, the State argues that the district court exceeded its jurisdiction. (Opening Brief 18-27.) The Alliance agrees that it sought relief under only federal law, and that the Court’s Opinion in Allenby did not expand the district court’s jurisdiction. However, the district court did not provide relief under state law, and it did not expand its own jurisdiction. Rather, the district court tailored the relief consistent with this Court’s Order in Alliance I to ensure that California’s system covers the costs for the federally eligible children.
Second, the State argues that the Child Welfare Act only applies to the federally eligible children, and therefore including the non-federally eligible children renders the Judgment extra-jurisdictional. (Opening Brief at 23.) But, yet again, the State mischaracterizes and never addresses the district court’s reasoning for including the non-federally eligible children. The district court did not find that the Child Welfare Act requires California and other states to make foster care maintenance payments to cover the costs for children that are not federally eligible. Rather, the district court found that under the current system that California has created, federally eligible children and non-federally eligible children are, among other things, mixed together, housed together and fed together. Thus, even if the State raises rates for the federally eligible children, unless rates are also increased for the non-federally eligible children, the result is that the average rate per federally eligible child will fall below the amount necessary to “cover” the costs

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required by the Child Welfare Act. Consequently, California will continue to deprive federally eligible children of the full amount of money mandated by the Child Welfare Act. The State created the RCL system, and it decided to treat federally eligible and non-federally eligible children the same. While the State certainly has the ability to create a new system, it cannot operate the current system in a way that deprives federally eligible children of the full funding required by the Child Welfare Act.
Third, while the State devotes approximately four pages to the district court’s orders in Alliance II, which provides the basis for the district court’s inclusion of non-federally eligible children, the State never explains how the district court’s reasoning is flawed or incorrect. Instead, the State merely asserts that the State is “mindful of the District Court’s concerns . . . .” (Opening Brief at 27.) The State then asserts, in conclusory fashion, that “those concerns are not sufficient to extend the District Court’s jurisdiction beyond what the complaint before it defined . . . that, in a case based on the federal Child Welfare Act, the District Court’s jurisdiction cannot extend beyond the federal law it is empowered to enforce.” (Opening Brief at 27.) However, again, the district court did not extend its jurisdiction or federal law beyond the Child Welfare Act. The district court entered relief to ensure that California is in compliance with the Child Welfare Act for federally eligible children.

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Finally, the State asserts that “[t]o the extent that [the Amended Judgment] purports to require the State to increase spending on foster care group homes beyond the amount supported by the Child Welfare Act . . . , the Judgment violates principles of sovereign immunity reflected in the Eleventh Amendment.” (Opening Brief at 28.) In other words, the State does not argue that the Amended Judgment as it relates to federally eligible children violates the Eleventh Amendment, but merely suggests that the inclusion of non-federally eligible children pushes it over the threshold into impermissibility. The State both misinterprets and mischaracterizes the district court’s reasoning. The Amended judgment does not require the State to increase spending on foster care group homes beyond the amount the Child Welfare Act supports. Rather, the district court held that, under the State’s current RCL system, rates must be increased for both federally eligible and non-federally eligible children to ensure that the rates for the federally eligible children comply with the Child Welfare Act and are consistent with this Court’s Order in Alliance I. This is entirely consistent with the Ex Parte Young exception to the Eleventh Amendment.13
13 See Ex Parte Young, 209 U.S. 123, 155-56 (1908). The Ex Parte Young doctrine is an exception to the general principle of Eleventh Amendment sovereign immunity. Western Mohegan Tribe and Nation v. Orange County, 395 F.3d 18, 22 (2d Cir. 2004). It allows a suit for injunctive or declaratory relief challenging the constitutionality of a state official’s actions where the complaint alleges an ongoing violation of federal law and seeks only prospective relief. Id.

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In sum, while the State makes several arguments in its Opening Brief, it never addresses the district court’s reasoning for requiring the State to raise rates for federally eligible and non-federally eligible children. The district court did not find any right to rate increases for the non-federally eligible children or any basis in state law, but rather determined that under the State’s current system rates must be raised for all children in foster care homes in order for California to ensure federally eligible children receive the full amount of funds required by the Child Welfare Act. This was not an abuse of discretion. VII. CONCLUSION
Based on the foregoing, the Alliance respectfully requests that the Court affirm the district court’s Amended Judgment.

DATED: August 19, 2010

Bingham McCutchen LLP

By: s/ William F. Abrams
William F. Abrams Attorneys for Appellee CALIFORNIA ALLIANCE OF CHILD AND FAMILY SERVICES

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STATEMENT OF RELATED CASES To the knowledge of counsel, the following cases are related to this case: (1) California Alliance of Child and Family Services v. Allenby et al., Case No. 08-16267, an earlier appeal in from the same district court case, wherein this Court reversed district court order granting summary judgment in favor of defendants and directed the district court to enter an order granting summary judgment in favor of plaintiff; (2) California Alliance of Child and Family Services v. Wagner et al., Case No. 09-17649 (Alliance II), an emergency request for a stay of the preliminary injunction issued by the district court in a related case filed after California imposed additional cuts to funding for group homes. Alliance II raises questions under the Child Welfare Act that are similar to those at issue in this case.

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CERTIFICATE OF COMPLIANCE PURSUANT TO FRAP 32(A)(7)(C) & CIRCUIT RULE 32-1
I certify that:
; 1. Pursuant to Fed. R. App. P. 32 (a)(7)(C) and Ninth Circuit Rule
32-1, the attached opening brief is
; Proportionately spaced, has a typeface of 14 points or more and
contains 8,545 words (opening, answering, and the second and third briefs filed in cross-appeals must not exceed 14,000 words; reply briefs must not exceed 7,000 words),
or is
 Monospaced, has 10.5 or fewer characters per inch and contains
_______ words or ________ lines of text (opening, answering, and the second and third briefs filed in cross-appeals must not exceed 14,000 words or 1,300 lines of text; reply briefs must not exceed 7,000 words or 650 lines of text).
 2. The attached brief is not subject to the type-volume limitations
of Fed. R. App. P. 32(a)(7)(B) because
 This brief complies with Fed. R. App. P. 32(a)(1)-(7) and is a
principal brief of no more than 30 pages or a reply brief of no more than 15 pages;
 This brief complies with a page or size-volume limitation
established by separate court order dated ____________ and is
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 Proportionately spaced, has a typeface of 14 points or more and
contains _______ words, or is
 Monospaced, has 10.5 or fewer characters per inch and contains
______pages or_______ words or ________ lines of text.

DATED: August 19, 2010

Bingham McCutchen LLP

By: s/ William F. Abrams
William F. Abrams Attorneys for Appellee CALIFORNIA ALLIANCE OF CHILD AND FAMILY SERVICES

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9th Circuit Case Number(s) C.A. NO. 10-15593

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Case: 10-15593 08/19/2010 Page: 1 of 1 ID: 7446098 DktEntry: 17-3

 
 Case3:06-cv-04095-MHP Document112 Filed05/04/10 Page1 of 4

United States District Court For the Northern District of California

1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

NORTHERN DISTRICT OF CALIFORNIA

8

9 CALIFORNIA ALLIANCE OF CHILD AND FAMILY SERVICES,
10 Plaintiff,
11 v.
12 CLIFF ALLENBY, Interim Director of the
13 California Department of Social Services, in his official capacity, and MARY AULT,
14 Deputy Director of the Children and Family Services Division of the California Department
15 of Social Services, in her official capacity,1

No. C 06-4095 MHP Related to No. C 09-4398 MHP
AMENDED JUDGMENT

16

Defendants.

/

17

18 On December 14, 2009, the United States Court of Appeals for the Ninth Circuit ruled that
19 defendants have violated federal law because “the State is not covering the costs required by the
20 [Child Welfare Act.]” California Alliance of Child & Family Servs. v. Allenby, 589 F.3d 1017, 1023
21 (9th Cir. 2009). The Court of Appeals ordered this court to enter judgment in favor of plaintiff
22 California Alliance of Child and Family Services (the “Alliance”) as a matter of law. See id. The
23 Ninth Circuit’s mandate was received by this court on January 6, 2010. Docket No. 85 (Mandate).
24 The issues in this matter having been heard and a written opinion having been duly rendered and
25 filed by the Court of Appeals on December 14, 2009, it is hereby ORDERED and ADJUDGED as
26 follows:
27

28

Case3:06-cv-04095-MHP Document112 Filed05/04/10 Page2 of 4

United States District Court For the Northern District of California

1

1. The Alliance’s motion for summary judgment, filed on July 16, 2007, see Docket

2 No. 34, is GRANTED in its entirety, and the court’s prior order granting defendants’ cross-motion

3 for summary judgment, see Docket No. 57, is VACATED.

4

2. The Clerk’s Judgment entered in favor of defendants Cliff Allenby and Mary Ault

5 and against the Alliance, filed on March 12, 2008, see Docket No. 58, is VACATED.

6

3. The Alliance’s request for declaratory relief in its complaint is GRANTED. The

7 court hereby finds that the standard rates paid under California’s Rate Classification Level (“RCL”)

8 system violate the Child Welfare Act (“the Act”), 42 U.S.C. §§ 670-679b, because the State does not

9 “cover the cost” of providing the items and services enumerated in the Act.

10

4. The Alliance’s request for permanent injunctive relief in its complaint is GRANTED.

11 Defendants Cliff Allenby and Mary Ault, and their successors, including John Wagner and Gregory

12 Rose, and their respective agents, officers, servants, employees, attorneys and representatives, and

13 all persons acting in concert or participating with defendants in their respective official capacities as

14 Director of the California Department of Social Services and Deputy Director of the Children and

15 Family Services Division of the California Department of Social Services, and each of them, are

16 hereby ORDERED to:

17

a. Adjust the current standard rates paid under the RCL system to group homes to an

18

amount equal to the standard rates in the original standardized schedule of rates for

19

state fiscal year 1990-91 to include the 76.25% cumulative increase in the California

20

Necessities Index (“CNI”) from 1990-91 through 2009-10, effective and to be applied

21

to amounts paid as of December 14, 2009, the date on which the Court of Appeals

22

entered its opinion, for each RCL as follows:

23

Rate Classification Level

Rate (Effective December 14, 2009)

24

1

$2,085

25

2

$2,605

26

3

$3,125

27

4

$3,643

28 2

Case3:06-cv-04095-MHP Document112 Filed05/04/10 Page3 of 4

United States District Court For the Northern District of California

1

5

$4,159

2

6

$4,681

3

7

$5,199

4

8

$5,719

5

9

$6,237

6

10

$6,757

7

11

$7,274

8

12

$7,795

9

13

$8,319

10

14

$8,835

11

b. The standardized schedule of rates shall be adjusted annually, no later than the first

12

day of the State’s fiscal year, July 1, to reflect the change in the CNI for the current

13

fiscal year. Such adjustments are not subject to the availability of funds.2

14

c. The new fully-funded standardized schedule of rates, reflected in paragraph 4(a)

15

above, which rates are adjusted to include the 76.25% cumulative increase in the CNI

16

from 1990-91 through 2009-10, shall be used to establish the AFDC-Foster Care rates

17

paid for both federally-eligible and non-federally eligible children.3

18

5. The court retains jurisdiction to enforce this Judgment.

19

20

IT IS SO ORDERED.

21 Dated: April 30, 2010
22
23

MARILYN HALL PATEL United States District Court Judge Northern District of California

24

25

26

27

28 3

Case3:06-cv-04095-MHP Document112 Filed05/04/10 Page4 of 4

United States District Court For the Northern District of California

1

ENDNOTES

2 1. By operation of Federal Rule of Civil Procedur e 25(d), the current Director of the California Department of Social Services and Deputy Directorof the Department’s Children and Family Services
3 Division are automatically substituted as defendants. To distinguish this action fromthe related action filed in 2009, the original caption is nevertheless used here.
4
2. “[T]he CWA does not set rates or tell states how they are supposed to cover costs. It does not 5 require states to apply an index suc h as the CNI, or to adopt any particular system for arriving at the
amount to be reimbursed. But . . . under the systemthe State chose to follow, it must make yearly CNI 6 adjustments (or some other inflationary adjustment) to account for the rise (or fall) in its standardized
schedule of rates.” Allenby, 589 F.3d at 1022. The St ate has the authority to develop an alternate 7 system that meets the requirements of the Child Welfare Act. Counsel for defendants has indicated that
the California Department of Social Services isconsidering options for replacing the RCL systemwith 8 some other system to cover the costs of foster children in group hom es. Paragraph 4 of this or der,
including subparagraphs (a) through (c), remains in force until such time as the State—after receiving 9 the approvals required by law, including that of the United States Departm ent of Health and Human
Services—implements an alternative system that meets the requirements of the Child Welfare Act. 10
3. The injunction extends to non-federally eligible children for the reasons set forth in this court’s 11 order of December 18, 2009, entered in the related California Alliance v. Wagner action. See Case
No. C 09-4398 (N.D. Cal.) (Patel, J.), Docket No. 67 (Order Re: Scope of Preliminary Injunction). 12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 4

 
 CaCsaes: e039:-0167-6c4v9-040049/50-5M/2H0P11 DPocaugme:e1nto1f154 FIDile: d70740/40983/181 DPkatEgnet1ryo: f357-1
FILED

NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS

APR 05 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CALIFORNIA ALLIANCE OF CHILD AND FAMILY SERVICES,
Plaintiff - Appellee,
v.

No. 09-17649 D.C. No. 3:09-cv-04398-MHP MEMORANDUM*

JOHN A. WAGNER, Director of the California Department of Social Services, in his official capacity; GREGORY ROSE, Deputy Director of the Children and Family Services Division of the California Department of Social Services, in his official capacity,

Defendants - Appellants.

CALIFORNIA ALLIANCE OF CHILD AND FAMILY SERVICES,
Plaintiff - Appellee,
v.

No. 10-15593 D.C. No. 3:06-cv-04095-MHP MEMORANDUM*

JOHN WAGNER, Director of the California Department of Social Services, in his official capacity; GREGORY ROSE,

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

CaCsaes: e039:-0167-6c4v9-040049/50-5M/2H0P11 DPocaugme:e2nto1f154 FIDile: d70740/40983/181 DPkatEgnet2ryo: f357-1
Deputy Director of the Children and Family Services Division of the California Department of Social Services, in his official capacity,
Defendants - Appellants. Appeals from the United States District Court for the Northern District of California
Marilyn H. Patel, Senior District Judge, Presiding Argued and Submitted January 12, 2011 San Francisco, California
Before: HUG, SCHROEDER, and RAWLINSON, Circuit Judges. These appeals concern the same parties and legal issues and have been
consolidated for the purpose of disposition. In Appeal No. 10-15593, Defendant-Appellants John Wagner, Director of
the California Department of Social Services, and Gregory Rose, Deputy Director of the Children and Family Services Division of the California Department of Social Services, state officials named in their official capacities (State), appeal the scope of the district court’s judgment in favor of Plaintiff-Appellee California Alliance of Child and Family Services (Alliance), entered on remand from this
* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
2

CaCsaes: e039:-0167-6c4v9-040049/50-5M/2H0P11 DPocaugme:e3nto1f154 FIDile: d70740/40983/181 DPkatEgnet3ryo: f357-1
court in Cal. Alliance of Child and Family Services v. Allenby, 589 F.3d 1017 (9th Cir. 2009) (Allenby).
In Appeal No. 09-17649, the State appeals the scope of the district court’s preliminary injunction order in favor of Alliance that enjoins the implementation of a ten percent reduction in foster care maintenance payment rates mandated by recently-enacted state legislation. See Cal. Welf. & Inst. Code §§ 11462(g)(5), (f)(2)(A).
We review the scope of injunctive relief for abuse of discretion. See Internet Specialties West, Inc. v. Milon-DiGiorgio Enterprises, Inc., 559 F.3d 985, 993 (9th Cir. 2009). In both appeals, the State contends that the district court abused its discretion by granting injunctive relief that requires California to increase funding for the approximately forty-one percent of resident foster children who do not meet the eligibility criteria of the Child Welfare Act, 42 U.S.C. § 670 et seq. See 42 U.S.C. § 672(a)(1)-(3) (defining eligibility criteria). This argument fails.
The State did not waive its objection to the district court’s inclusion of nonfederally eligible children within the terms of the injunction. The State’s Eleventh Amendment challenge may be raised at any time. See Oregon v. Legal Services Corp., 552 F.3d 965, 969 (9th Cir. 2009); see also Edelman v. Jordan, 415 U.S. 651, 678 (1974) (“[T]he Eleventh Amendment defense sufficiently partakes of the
3

CaCsaes: e039:-0167-6c4v9-040049/50-5M/2H0P11 DPocaugme:e4nto1f154 FIDile: d70740/40983/181 DPkatEgnet4ryo: f357-1
nature of a jurisdictional bar so that it need not be raised in the trial court[.]”). “We review de novo whether Eleventh Amendment immunity applies.” Nat’l Audubon Soc’y, Inc. v. Davis, 307 F.3d 835, 846 (9th Cir. 2002).
The district court’s judgment and preliminary injunction order did not exceed its jurisdiction, the scope of the pleadings, or our remand in Allenby, 589 F.3d at 1023. “In determining the scope of an injunction, a district court has broad latitude, and it must balance the equities between the parties and give due regard to the public interest.” California ex rel. Lockyer v. U.S. Dept. of Agriculture, 575 F.3d 999, 1020 (9th Cir. 2009), as amended (citation omitted). The district court extended injunctive relief to all California foster children based on our interpretation of the Child Welfare Act in Allenby, 589 F.3d at 1023. The district court’s undisputed finding was that because the State does not distinguish between federally-eligible and non-federally eligible children when making group home program placements or setting payment rate levels, reimbursing foster care providers at lower rates for non-federally eligible children inevitably dilutes funds for federally-eligible children.
There was no violation of the Eleventh Amendment because the district court’s preliminary injunction order and judgment fall squarely within the doctrinal exception of Ex Parte Young, 209 U.S. 123, 159-60 (1908). See, e.g., Cardenas
4

CaCsaes: e039:-0167-6c4v9-040049/50-5M/2H0P11 DPocaugme:e5nto1f154 FIDile: d70740/40983/181 DPkatEgnet5ryo: f357-1 v. Anzai, 311 F.3d 929, 934-35 (9th Cir. 2002). A district court may enjoin state officials from future violations of a federal statute, “even if it might require substantial outlay of funds from the state treasury, provided that it does not award retroactive relief for past conduct.” Natural Resources Def. Council v. Cal. Dept. of Transp., 96 F.3d 420, 422 (9th Cir. 1996) (citation omitted).
The district court’s permanent injunction in Appeal No. 10-15593 is AFFIRMED. The district court’s preliminary injunction order in Appeal No. 0917649 is AFFIRMED.
5

 
 1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6 CALIFORNIA ALLIANCE OF CHILD AND
7 FAMILY SERVICES,

No. C 06-4095 MHP

8

Plaintiff,

MEMORANDUM & ORDER

United States District Court For the Northern District of California

9 v.

10 CLIFF ALLENBY, Interim Director of the

California Department of Social Services, in

11 his official capacity; MARY AULT, Deputy

Director of the Children and Family Services

12 Division of the California Department of Social

Services, in her official capacity,

13

Defendants.

14

/

Re: Defendants’ Request for an Amended Judgment

15 On February 24, 2010, this court issued a judgment in this action. Docket No. 92
16 (Judgment). Two days later, counsel for defendants requested that the court modify the judgment.
17 Docket No. 93 (Request). The court treats this request as a motion to amend the judgment under
18 Federal Rule of Civil Procedure 59(e). The court sought further briefing from the parties, and the
19 parties complied. See Docket Nos. 98, 101, 103. Having considered the parties’ arguments and
20 submissions and for the reasons stated below, the court enters the following memorandum and order.
21

22

DISCUSSION

23

California Welfare and Institutions Code section 11462(m) requires the California

24

Department of Social Services (“CDSS”) to annually submit a list to the California Legislature

25

specifying new group home requirements and industrywide increases in costs. The subsection

26

states:

27

(m) The department shall, by October 1 of each year, commencing October 1, 1992,

28

provide the Joint Legislative Budget Committee with a list of any new departmental

1

requirements established during the previous fiscal year concerning the operation of

group homes, and of any unusual, industrywide increase in costs associated with the

2

provision of group care that may have significant fiscal impact on providers of group

homes care. The committee may, in fiscal year 1993-94 and beyond, use the list to

3

determine whether an appropriation for rate adjustments is needed in the subsequent

fiscal year.

4

The subsection allows, but does not require, the legislature to use this list to determine rate

5

adjustments for group care providers.

6

The court’s February 24, 2010 judgment, however, relies upon section 11462(m) to require,

7

to the extent not already incorporated through the California Necessities Index (“CNI”), that costs

8

reported in this list be included when group care rates are adjusted. It states, in paragraph 4(d), that:

9

The standardized schedule of rates shall be adjusted annually, no later than the first

10

day of the State’s fiscal year, July 1, to reflect, as described at California Welfare and

Institutions Code section 11462(m), ‘any new departmental requirements established

11

during the previous fiscal year concerning the operation of group homes, and of any

unusual, industrywide increase in costs associated with the provision of group care

12

that may have significant fiscal impact on providers of group homes care,’ to the

extent that the additional costs of such new departmental requirements and

13

industrywide increase in costs are excluded from the CNI calculations.

United States District Court For the Northern District of California

14

Defendants correctly claim that Welfare and Institutions Code section 11462(m) is not part of

15 the Rate Classification Level (“RCL”) methodology, and consequently, need not be considered when

16 the standardized schedule of rates is set. Welfare & Institutions Code section 11462(m) is simply a

17 reporting requirement regarding expenses which may or may not be reflected in the CNI, and does

18 not require that the enumerated expenses be incorporated into the RCL. Indeed, plaintiff agrees that

19 “[s]ection 11462(m) requires the Department of Social Services to report to the Legislature increases

20 in certain costs that are not reflected in the California Necessities Index (“CNI”), and thus provides a

21 way for the Legislature to adjust rates to account for such increased costs.” Docket No. 101

22 (Opposition) at 1:4-7. There is no requirement that this list, created for the convenience of the

23 legislature, be incorporated into the RCL.

24

The composition of costs included in the RCL is not at issue here. According to the Ninth

25 Circuit, “Alliance accepts the State’s system for calculating costs to be covered, but takes issue with

26 the State’s underfunding of foster care maintenance payments as a result of having failed to adjust

27 the standardized schedule of rates by an amount equal to the CNI since 2001.” California Alliance

28 2

1 of Child & Family Servs. v. Allenby, 589 F.3d 1017, 1019 (9th Cir. 2009). The Ninth Circuit

2 recognized that “Alliance does not contend that the State must cover every dime spent on the care of

3 foster children. Rather, its position is that the State is not paying the amount the State itself treats as

4 costs—that is, the RCL as adjusted each year in accordance with the CNI—and this is what falls

5 short of complying with the CWA.” Id. at 1022. There is no evidence here that California has

6 determined that new group home requirements or industrywide cost increases necessitate a rate

7 adjustment. In other words, the State has yet to find these expenses to be reimbursable. Thus, the

8 RCL need not necessarily be adjusted based on these expenses. The Ninth Circuit’s decision

9 specifically does not require the State to cover every dime spent on the care of foster children;

10 instead, the State is only required to cover the expenses it has found to be reimbursable.

United States District Court For the Northern District of California

11

Plaintiff contends that without reference to section 11462(m), the State could impose “new

12 requirements with new costs on group homes in the future” without adjusting the RCL. Opposition

13 at 2:21-24. This amorphous future possibility is not yet ripe for review. Moreover, the State is not

14 required to cover all actual costs borne by foster care providers. The Ninth Circuit has found that

15 even though “the State’s definition of covered items for foster care maintenance payments does not

16 precisely mirror the federal statute,” the same “does not make it noncompliant.” Id. at 1023. “The

17 State’s plan generally tracks the federal definition of daily living expenses, making the State

18 substantially compliant.” Id. Plaintiff does not argue that the exclusion of expenses enumerated in

19 the list required by section 11462(m) make the State not substantially compliant with federal

20 requirements. In sum, section 11462(m) does not require that costs reported in this list be included

21 when the RCL is adjusted. Paragraph 4(d) of the February 24, 2010 judgment is stricken.

22

23 CONCLUSION

24

Paragraph 4(d) of the judgment entered on February 24, 2010 is stricken. An amended

25 judgment will be entered.

26

IT IS SO ORDERED.

27 Dated: April 30, 2010 28

MARILYN HALL PATEL United States District Court Judge Northern District of California
3

 
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FILED

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

JUN 13 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

CALIFORNIA ALLIANCE OF CHILD AND FAMILY SERVICES,
Plaintiff - Appellant,
v.
JOHN WAGNER, Director of the California Department of Social Services, in his official capacity; GREG ROSE, Deputy Director of the Children and Family Services Division of the California Department of Social Services, in his official capacity,
Defendants - Appellees.

No. 08-16267 D.C. No. CV-06-4095-MHP Northern California (San Francisco)
ORDER

Before: Peter L. Shaw, Appellate Commissioner I
Background The California Alliance of Child and Family Services (“the Alliance”) filed this action against officials of the California Department of Social Services (“California”) alleging non-compliance with certain requirements of the federal Child Welfare Act (“CWA”), which provides federal funding to the states for

CCasaes:e038:0-61-6c2v6-07400965/-1M3/H2P011DoPcaugmee:n2t1o1f522FileIDd:077/0812/71417 PDakgteE2notrfy2: 236
foster care costs.1 The district court granted California’s motion for summary judgment, finding that the state had substantially complied with the CWA.
The Alliance appealed, and this court reversed the district court’s judgment, holding that California’s payment rate failed to “cover the cost” of group home expenses as required by the CWA. See Cal. Alliance of Child & Fam. Servs. v. Allenby, 589 F.3d 1017, 1018 (9th Cir. 2009). The court held that there were no factual disputes and therefore the Alliance was entitled to judgment as a matter of law, and remanded to the district court to determine the proper scope of declaratory and injunctive relief. Id. at 1023.
On remand, the district court entered a permanent injunction requiring California to increase its payment rates for group home expenses and to adjust those rates annually. See Cal. Alliance of Child & Fam. Servs. v. Allenby, No. CV06-4095-MHP (N.D. Cal. May 4, 2010) (Amended Judgment). The Alliance filed a motion for an award of attorneys’ fees in the amount of $606,005.50 and expenses in the amount of $24,241.20 under the Civil Rights Attorney’s Fees Award Act, 42 U.S.C. § 1988. See Cal. Alliance of Child & Fam. Servs. v. Allenby, No. CV-06-4095-MHP (N.D. Cal. May 4, 2010) (Memorandum & Order).
1 The caption has been amended to reflect the substitution of John Wagner and Greg Rose as defendants-appellees in place of their predecessors, Cliff Allenby and Mary Ault. See Fed. R. App. Proc. 43.
2

CCasaes:e038:0-61-6c2v6-07400965/-1M3/H2P011DoPcaugmee:n3t1o1f522FileIDd:077/0812/71417 PDakgteE3notrfy2: 236
The district court awarded attorneys’ fees in the amount of $506,000 and expenses in the amount of $4,000 for the district court representation. Id. California filed a notice of appeal from the judgment, No. 10-15593, but neither party appealed the district court’s attorneys’ fees and expenses award.2
The Alliance filed a motion in this court for an award of attorneys’ fees and expenses on appeal, also pursuant to section 1988. California acknowledges that the Alliance prevailed on appeal and does not oppose the Alliance’s entitlement to an award of attorneys’ fees and expenses on appeal. California opposes, however, the amount of attorneys’ fees and expenses requested by the Alliance. This court referred the Alliance’s motion to the Appellate Commissioner for disposition. See 9th Cir. R. 39-1.9. The Alliance also filed a bill of costs and this court taxed costs in the amount of $301.30 against California.
2 California’s appeal from the judgment on remand, no. 10-15593, was argued together with appeal no. 09-17649, California’s appeal from the entry of a preliminary injunction in a related action by the Alliance to enjoin foster care group home payment rate cuts. The court consolidated the appeals and affirmed the district court’s judgments in both cases. See Cal. Alliance of Child & Family Servs. v. Wagner, Nos. 09-17649, 10-15593, 2011 WL 1252455, at *1, *2 (9th Cir. Apr. 5, 2011).
3

CCasaes:e038:0-61-6c2v6-07400965/-1M3/H2P011DoPcaugmee:n4t1o1f522FileIDd:077/0812/71417 PDakgteE4notrfy2: 236
II Analysis A. Attorneys’ Fees The purpose of section 1988 is to ensure “effective access to the judicial process” for persons with civil rights grievances. See Hensley v. Eckerhart, 461 U.S. 424, 429 (1983). The statute provides that in federal civil rights actions “the court in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” Id. at 426. “The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Id. at 433. The Alliance requests attorneys’ fees in the amount of $388,660 for 819.6 hours of work by the law firm of Bingham McCutchen LLP (“Bingham”) at rates of $300 to $850 per hour. California objects that the number of hours and the hourly rates requested are excessive. 1. Number of Hours a. Hours Requested On Ninth Circuit Form 9, the Alliance claims the attorneys’ hours were spent on the various tasks as follows:
4

CCasaes:e038:0-61-6c2v6-07400965/-1M3/H2P011DoPcaugmee:n5t1o1f522FileIDd:077/0812/71417 PDakgteE5notrfy2: 236

Task

CAT

Int/Conf 10.3

Records 16.7

Research 45.8

Briefs 155.4

Oral Arg 10.1

Total

238.3

DBS 0 0.5 0
14.0 0
14.5

JAL 5.3
25.6 54.8 195.2 22.5 303.4

JAMS 1.0 0
14.1 9.5 0
24.6

MDM 13.8 12.1 23.4 71.8 24.8
145.9

WFA 10.5 0 0 47.4 35.0 92.9

Total 40.9 54.9
138.1 493.3
92.4 819.6

In an alternate format, the Alliance claims the attorneys’ hours were spent on the various tasks as follows:

Task

CAT

Not App 1.1

Open Br 146.0

Reply Br 60.7

Mot Exp 2.5

Citation

4.4

Oral Arg 16.4

Mot Fees 7.2

Total

238.3

DBS 0
14.0 0 0 0 0 0.5
14.5

JAL 0
159.7 50.2 0 9.0 22.5 62.0
303.4

JAMS 0 0 0 0 0 1.0
23.6 24.6

MDM 15.4 46.5 44.7 1.6 8.7 24.8 4.2
145.9

WFA 0
34.0 8.5 0 2.0
35.0 13.4 92.9

Total 16.5
400.2 164.1
4.1 24.1 99.7 110.9 819.6

The Alliance filed a notice of appeal, a civil appeals docketing statement, a 45-page opening brief, two volumes of excerpts of the record, a 20-page reply brief, a two-page letter containing supplemental authority, and the 16-page fee

5

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motion with supporting materials. The Alliance obtained one telephonic extension of time to file the opening brief and appeared at oral argument in San Francisco.
In support of the fee motion, the Alliance presents the declaration of William F. Abrams, Esq., a Bingham partner and the lead counsel on this case, who states that he reviewed the hours recorded by his firm’s attorneys in this matter and, based on more than 30 years of litigation experience, he believes that the work performed was necessary for the appeal. Abrams states that he delegated work to lower-billing attorneys and to staff. Abrams also states that he wrote off hours that were duplicative or not necessary, and those hours are not included in the fee request. Abrams does not specify the number of hours by which the fee request was reduced.
b. California’s Objections i. Inflation
California objects that the Alliance’s requested hours are inflated, excessive, and not reasonably expended. California argues that the requested hours equal 201/2 weeks, or more than five months, of full-time, 40-hours-per-week work, and that its own attorney spent only 138.25 hours, or 17 percent of the Alliance’s requested hours, on the appeal. California also argues that “the novelty and difficulty here was not high,” and the issues on appeal were “uncomplicated.”
6

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Bingham represented the Alliance on a pro bono, contingency basis, and achieved excellent results on an issue of first impression in the Ninth Circuit. This court reversed the district court order granting summary judgment in favor of California, holding that California was not permitted under the CWA to partially “cover the cost” of foster care group home expenses. See Cal. Alliance of Child & Fam. Servs. v. Allenby, 589 F.3d at 1023. On remand, the district court entered a permanent injunction requiring California to adjust its group home payment rates annually. See Cal. Alliance of Child & Fam. Servs. v. Allenby, No. CV-06-4095MHP (N.D. Cal. May 4, 2010) (Amended Judgment). The district court also awarded attorneys’ fees and expenses for Bingham’s district court representation of the Alliance. See Cal. Alliance of Child & Fam. Servs. v. Allenby, No. CV-064095-MHP (N.D. Cal. May 4, 2010) (Memorandum & Order).
“Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee.” Hensley, 461 U.S. at 435. California argues, however, that excessive fee awards against government agencies should be avoided because they may adversely affect the people helped by the agencies and divert scarce resources away from beneficial programs. Nevertheless, California’s litigation of this case also depleted scarce government resources, and California’s people and programs will be served by a fully compensatory fee award that permits the
7

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Alliance and its attorneys to bring this and other necessary public interest litigation.
California questions the assertion by Alliance’s attorneys that this work precluded them from taking other cases, arguing that “during one of the worst economic downturns in United States history . . . one might fairly wonder whether the lack of other paying clients actually encouraged the excessive hours Bingham put into this appeal.” California also argues that, despite the contingent nature of the fee recovery here, the Alliance’s attorneys obtained non-monetary value from the good will and publicity that this case generated. The district court rejected these arguments, noting that the Alliance brought this action in 2006, before the current economic downturn began in 2008, and that the Alliance’s attorneys took a financial risk in bringing this litigation regardless of the goodwill and publicity generated. This court also has noted that it is highly unlikely for lawyers to inflate their fees during contingency fee civil rights representations like Bingham’s representation of the Alliance:
It must . . . be kept in mind that lawyers are not likely to spend unnecessary time on contingency fee cases in the hope of inflating their fees. The payoff is too uncertain, as to both the result and the amount of the fee. It would therefore be the highly atypical civil rights case where plaintiff’s lawyer engages in churning. By and large, the court should defer to the winning lawyer’s professional judgment as to how much
8

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time he was required to spend on the case; after all, he won, and might not have, had he been more of a slacker. Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008). In civil rights cases like this one, where the plaintiffs seek injunctive relief to advance the public interest, “there is no monetary light at the end of the litigation tunnel,” and the court “must strike a balance between granting sufficient fees to attract qualified counsel . . . and avoiding a windfall to counsel.” Id. at 1111. The court strikes this balance by evaluating the requested hours and the record in light of fee requests in similar appeals and California’s objections to the requested hours. “If opposing counsel cannot come up with specific reasons for reducing the fee request that the . . . court finds persuasive, [the court] should normally grant the award in full, or with no more than a haircut. . . . [I]f [the court] is going to make substantial cuts to a winning lawyer’s fee request, it needs to explain why with sufficient specificity.” Moreno, 534 F.3d at 1116.3
3 California states in the February 5, 2010 opposition that counsel has “not had time to review . . . in minute detail” Bingham’s lengthy and complex billing statements, but that “such a review could be fruitful and militates for submission” of the attorneys’ fees and expenses determination to the Circuit Mediator. The Appellate Commissioner referred the question of the fees and expenses award to the Circuit Mediator on March 12, 2010, and the mediation concluded on October 20, 2010. But California never filed or requested leave to file supplemental opposition to the Alliance’s motion for attorneys’ fees and expenses, and supplementation now would be untimely.
9

CCasaes:e038:0-61-6c2v6-07400965/-1M3/H2P011DoPcaugmee:n1t011o5f 22FiledID0:77/0718/217147PaDgket1E0notrfy2: 236
ii. Staffing California argues that the Alliance overstaffed the case with six attorneys and contrasts California’s representation, which required only one deputy attorney general who was minimally supervised. The Alliance’s appeal was staffed by Abrams, the Bingham lead partner with 30 years of experience in federal child welfare litigation; David B. Salmons, Esq., a Washington-based partner with 14 years of appellate expertise; and four lower-billing associates with complex commercial litigation experience: Jennifer A. Lopez, Esq., who was admitted to practice in 2001; Craig A. Taggart, Esq., who was admitted to practice in 2005; Michael D. Mortenson, Esq., who was admitted to practice in 2006; and Jessica A. Mahon Scholes, Esq., who was admitted to practice in 2008. The Alliance states that “[t]he use of resources and time spent on the case were managed carefully to be as efficient and effective as possible. . . . Where possible, work was delegated to lower-billing attorneys and staff.” As in the district court, the Alliance does not request fees for time spent by Bingham’s non-attorney staff. Contrary to California’s objection, the court may not set the fee based on speculation as to how other firms might have staffed the case. See Moreno, 534 F.3d at 1114-15 (district court fee reduction impermissibly based on speculation
10

CCasaes:e038:0-61-6c2v6-07400965/-1M3/H2P011DoPcaugmee:n1t11o5f 22FiledID0:77/0718/217147PaDgket1E1notrfy2: 236
that other firms would have used a less skilled attorney, rather than lead counsel, to perform document review). Indeed,
the cost effectiveness of various law firm models is an open question. . . . Modeling law firm economics drifts far afield of the Hensley calculus and the statutory goal of sufficiently compensating counsel in order to attract qualified attorneys to do civil rights work. . . . The [court’s] inquiry must be limited to determining whether the fees requested by this particular legal team are justified for the particular work performed and the results achieved in this particular case. The court . . . may not attempt to impose its own judgment regarding the best way to operate a law firm, nor to determine if different staffing decisions might have led to different fee requests. Id. Thus, the Alliance’s requested hours may not be reduced for overstaffing alone without evidence in the record, or an objection by California to specific time entries, that the Alliance’s attorneys engaged in inefficient, unnecessary, or duplicative work, such as excessive intra-firm conferencing or document review. See, e.g., Welch v. Metropolitan Life Ins. Co., 480 F.3d 942, 949 (9th Cir. 2007). To the extent that California also argues that the Alliance’s attorneys’ experience and knowledge should have allowed them to pursue the appeal with fewer attorneys and less attorney time, California’s objection has merit. A review of the attorneys’ time sheets, the breakdowns of the attorneys’ hours spent on various tasks presented on Ninth Circuit Form 9 and in the alternative format, and the record, in light of the review of many similar fee requests, reveals that the
11

CCasaes:e038:0-61-6c2v6-07400965/-1M3/H2P011DoPcaugmee:n1t211o5f 22FiledID0:77/0718/217147PaDgket1E2notrfy2: 236
Alliance’s attorneys spent an excessive amount of time -- 564.3 hours -- in preparing the 45-page opening brief and the 20-page reply brief, and that using less-experienced attorneys for these tasks may have resulted in inefficiency. The Alliance’s attorneys reasonably should have required no more than 450 hours to perform this work.
For the opening and reply briefs, Lopez (an eighth-year associate) billed 209.9 hours, Taggart (a fourth-year associate) billed 200.7 hours, Mortenson (a third-year associate) billed 91.2 hours, Abrams (the lead partner and child welfare expert) billed 42.5 hours, and Salmons (the appellate partner) billed 14 hours. Because the time entries by Lopez, Abrams, and Salmons are vague, the court cannot discern the amount of time these more experienced attorneys spent reviewing and editing drafts prepared by Taggart and Mortenson, the least experienced attorneys. Lopez and Taggart engaged in the largest expenditures of time on the opening and reply briefs -- a combined 410.6 hours between them. Lopez’s time entries for the reply brief and Taggart’s time entries for both briefs show large expenditures of time on single issues and sections of the briefs.
In light of Lopez’s and Taggart’s expenditure of the greatest number of hours on the briefs, it is reasonable to apply the 114.3 hour reduction to their hours alone. Accordingly, the Alliance’s requested hours are reduced by 57.15 hours
12

CCasaes:e038:0-61-6c2v6-07400965/-1M3/H2P011DoPcaugmee:n1t311o5f 22FiledID0:77/0718/217147PaDgket1E3notrfy2: 236
billed by Lopez in 2008 ($27,717.75) and 57.15 hours billed by Taggart in 2008 ($21,717) to account for inefficiency in preparing the opening and reply briefs.
c. Block Billing The review of the Alliance’s attorneys’ time sheets also reveals many instances where the attorneys billed multiple tasks in large blocks of time, making it impossible to evaluate the reasonableness of the time spent on distinct tasks and justifying a reduction in the requested hours. See Welch, 480 F.3d at 948 (citing Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 971 (D.C. Cir. 2004)). Block billing rather than itemizing each task individually may increase the time billed by 10 to 30 percent, and this court implicitly has approved a district court’s 20 percent reduction of block-billed hours. Id. In addition, the district court imposed a 20 percent reduction on the Alliance’s attorneys’ block-billed hours for the district court representation, and neither party sought review by this court of the district court’s determination. Here, the Alliance’s attorneys’ block-billed entries are not reduced where the attorneys combine the complementary tasks of researching and drafting a single document, but are reduced where the attorneys combine tasks such as document preparation or review with distinct activities like intra-firm conferencing, client correspondence, or preparation of a different document. In particular, the latter
13

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entries prevented identifying how much time was spent in unnecessary and duplicative intra-firm conferencing. See, e.g., Welch, 480 F.3d at 949.
Accordingly, in addition to the reduction of Lopez’s and Taggart’s hours for the opening and reply briefs, as discussed above, the following time entries are reduced by 20 percent ($17,993) to account for block billing of multiple tasks:

Date 07/07/2008 07/08/2008 07/21/2008 07/22/2008 07/24/2008 07/31/2008 08/01/2008 08/04/2008 08/06/2008 08/22/2008 08/26/2008 08/27/2008 08/28/2008 09/05/2008 10/08/2008 10/13/2008

Attorney Taggart Taggart Taggart Taggart Taggart Taggart Taggart Taggart Taggart Taggart Taggart Taggart Taggart Taggart Taggart Taggart

Hours 9.60 1.70 5.40 8.70 5.50 1.50 0.40 0.60 0.70 5.30 6.70 5.90 8.20 1.10 2.50 0.90

Amount $ 3,648.00
646.00 2,052.00 3,306.00 2,090.00
570.00 152.00 228.00 266.00 2,014.00 2,546.00 2,242.00 3,116.00 418.00 950.00 342.00

14

CCasaes:e038:0-61-6c2v6-07400965/-1M3/H2P011DoPcaugmee:n1t511o5f 22FiledID0:77/0718/217147PaDgket1E5notrfy2: 236

10/15/2008 10/17/2008 10/20/2008 10/22/2008 10/24/2008 10/30/2008 10/31/2008 11/03/2008 01/06/2009 03/30/2009 09/29/2009 09/30/2009 10/02/2009 12/14/2009 08/26/2008 10/20/2008 09/30/2009 10/02/2009 10/06/2009 10/07/2009 01/10/2010 09/29/2009 03/25/2008 03/26/2008

Taggart Taggart Taggart Taggart Taggart Taggart Taggart Taggart Taggart Taggart Taggart Taggart Taggart Taggart Lopez Lopez Lopez Lopez Lopez Lopez Lopez Mahon Scoles Mortenson Mortenson

2.20 5.40 1.10 7.40 6.50 7.30 6.20 2.00 0.90 2.40 3.00 1.80 3.90 4.30 4.30 8.00 2.00 1.50 10.00 11.00 5.00 1.00 3.10 1.00

15

836.00 2,052.00
418.00 2,812.00 2,470.00 2,774.00 2,356.00
760.00 396.00 1,056.00 1,320.00 792.00 1,716.00 1,892.00 2,085.50 3,880.00 1,060.00 795.00 5,300.00 5,830.00 2,650.00 300.00 1,069.50 345.00

CCasaes:e038:0-61-6c2v6-07400965/-1M3/H2P011DoPcaugmee:n1t611o5f 22FiledID0:77/0718/217147PaDgket1E6notrfy2: 236

04/07/2008 04/08/2008 04/11/2008 04/21/2008 07/01/2008 08/01/2008 08/26/2008 10/17/2008 10/30/2008 12/17/2008 09/28/2009 10/01/2009 10/06/2009 10/07/2009 12/15/2009 04/11/2008 04/13/2008 04/23/2008 07/04/2008 07/08/2008 08/26/2008 12/14/2009 Total 20% Reduction

Mortenson

0.50

Mortenson

0.50

Mortenson

3.10

Mortenson

1.00

Mortenson

1.40

Mortenson

0.40

Mortenson

1.20

Mortenson

7.30

Mortenson

2.90

Mortenson

0.90

Mortenson

3.10

Mortenson

1.10

Mortenson

5.40

Mortenson

3.20

Mortenson

2.70

Abrams

1.20

Abrams

0.70

Abrams

1.00

Abrams

1.20

Abrams

1.50

Abrams

2.00

Abrams

2.00

16

172.50 172.50 1,069.50 345.00 483.00 138.00 414.00 2,518.50 1,000.50 310.50 1,240.00 440.00 2,160.00 1,280.00 1,080.00 930.00 542.50 775.00 930.00 1,162.50 1,550.00 1,700.00 $89,965.00 $17,993.00

CCasaes:e038:0-61-6c2v6-07400965/-1M3/H2P011DoPcaugmee:n1t711o5f 22FiledID0:77/0718/217147PaDgket1E7notrfy2: 236

d. Hours Summary The remaining hours requested by the Alliance were reasonably expended and they are awarded. In particular, the Alliance does not request any hours here that were also requested in the subsequently filed motion for attorneys’ fees and expenses in the district court. 2. Hourly Rates The Alliance requests the award of fees at Bingham’s 2008 and 2009 hourly billing rates, as follows:

Attorney Abrams Salmons Lopez Taggart Mortenson Mahon Scoles

Admitted 1979 1996 2001 2005 2006 2008

2008 Rate $775 $685 $485 $380 $345 N/A

2009 Rate $850 N/A $530 $440 $400 $300

The district court awarded Bingham’s billing rates, except for Abrams,

subject to an across-the-board 10 percent reduction based on a finding that the Alliance failed to present adequate evidence of the prevailing market rate in the Northern District of California and in light of the involvement of the state’s coffers. See Blum v. Stenson, 465 U.S. 886, 895 & n.11 (1984) (“‘reasonable fees’

17

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under § 1988 are to be calculated according to the prevailing market rates in the relevant commuity”); see also Carson v. Billings Police Dept., 470 F.3d 889, 892 (9th Cir. 2006) (“[t]hat a lawyer charges a particular hourly rate, and gets it, is evidence bearing on what the market rate is”).4 The district court found that Abrams’s statement that “the rates charged . . . are commensurate with the rates charged by other firms with similar reputation, skill, and level of expertise” did not specifically discuss the rates in the relevant community. The district court reduced the requested billing rates for Abrams to $725, based on its approval of a $745 hourly rate for an attorney with 47 years’ experience in a different civil rights case.
But the Alliance also cited in the district court and cites here, in support of the reasonableness of the requested billing rates, California State Foster Parent Ass’n v. Wagner, No. CV-07-5086-WHA, 2009 WL 4823193, *8, *12 (N.D. Cal. Dec. 10, 2009), where the Northern District of California awarded and California conceded the reasonableness of comparable requested billing rates of $350 to $875 for the Northern District of California law firm of Morrison & Foerster LLP. Rate determinations in other cases are satisfactory and relevant evidence of the prevailing market rate in a relevant community, and therefore no reduction for
4 Only Abrams and Mortenson participated in both the district court and the court of appeals representations.
18

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insufficiency of the evidence is warranted here. See Welch, 480 F.3d at 947; United Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 406 (9th Cir. 1990). The Appellate Commissioner’s experience reviewing many similar fee requests also suggests that the requested billing rates are in line with prevailing market rates in the relevant community. See Blum, 465 U.S. at 895 & n.11; Carson, 470 F.3d 891-92.
California argues that the reasonable hourly rates should be determined with reference to a matrix developed from hourly rates for the District of Columbia that were approved in Laffey v. Northwest Airlines, Inc., 746 F.2d 4, 13-25 (D.C. Cir. 1984), with adjustments for economic differences between the District of Columbia and the Northern District of California based on federal locality pay differentials, and that the resulting lower rates should be awarded. After California’s fee response was filed, however, the Ninth Circuit approved a district court’s decision not to use the Laffey matrix to determine reasonable hourly rates for the Northern District of California legal market. See Prison Legal News v. Schwarzenegger, 608 F.3d 446, 454 (9th Cir. 2010) (“But just because the Laffey matrix has been accepted in the District of Columbia does not mean that it is a sound basis for determining rates elsewhere, let alone in a legal market 3,000 miles away.”). California has not addressed the Prison Legal News case, and
19

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California’s argument for applying the Laffey matrix here is unpersuasive. The Alliance’s requested hourly rates are awarded.
3. Fees Summary The Alliance’s request for attorneys’ fees in the amount of $388,660 is reduced by $27,717.75 for Lopez and $21,717 for Taggart to account for inefficiency in the preparation of the opening and reply briefs, and by $17,993 to account for block billing of multiple tasks. The total reduction of $67,427.75 is proportional to the district court’s reduction of the Alliance’s requested fees for the district court representation. The Alliance is awarded attorneys’ fees for the court of appeals representation in the amount of $321,232.25. B. Expenses The Alliance requests the award of travel, computerized legal research, copying, messenger, delivery, and postage expenses incurred during the appeal in the amount of $5,520.12. California objects only to the request for round-trip air fare from Southern California to San Francisco, airport parking, and cab fare for Lopez’s and Mortenson’s attendance at oral argument, when neither associate presented argument and Lopez also billed her travel and other time expended on the day before the hearing and the day of the hearing. California does not cite legal authority in support of the objection, and it lacks merit.
20

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Under section 1988, the Alliance may recover reasonable out-of-pocket litigation expenses that its attorneys would normally charge to a fee paying client, including travel expenses and computer assisted legal research. See Trs. of the Constr. Indus. & Laborer’s Health & Welfare Trust v. Redland Ins. Co., 460 F.3d 1253, 1257-59 (9th Cir. 2006) (collecting cases). Unlike in the district court, the Alliance’s evidence in support of the requested expenses here is adequate to determine the expenses’ reasonableness, and there is no evidence in the record or objection from California that the Alliance or other Northern District of California law firms would not normally bill the expenses to paying clients. In the Appellate Commissioner’s experience, Northern District of California law firms often bill these expenses to clients.
In addition, it was reasonable for Lopez and Mortenson, who drafted the briefs, to travel from Southern California to participate in the oral argument preparation and attend the oral argument. Although it is not clear from Lopez’s block-billed entries what portion of her time was spent on oral argument preparation on October 6 and 7, 2009, or whether she worked on oral argument preparation during travel time, the reductions above for block billing address this concern.
21

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Accordingly, the Alliance’s requested expenses in the amount of $5,520.12 are reasonable and the requested expenses are awarded in full.
III Conclusion Attorneys’ fees and expenses in the amount of $326,752.37 are awarded in favor of the California Alliance of Child and Family Services and against John Wagner, Director of the California Department of Social Services, and Greg Rose, Deputy Director of the Children and Family Services Division of the California Department of Social Services. This order amends the court’s mandate.

MH/APPCOMM

22

08-16267

 
 Case: 3:06-cv-4095 As of: 05/07/2013 10:36 AM PDT 1 of 12
ADRMOP,CLOSED,E−Filing,RELATE
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:06−cv−04095−MHP

California Alliance of Child and Family Services v. Allenby et al Date Filed: 06/30/2006

Assigned to: Hon. Marilyn H. Patel

Date Terminated: 02/24/2010

Relate Case Case: 3:09−cv−04398−MHP

Jury Demand: Plaintiff

Case in other court: 08−16267 10−15593

Nature of Suit: 444 Civil Rights: Welfare Jurisdiction: Federal Question

Cause: 42:1983 Civil Rights Act

Plaintiff

California Alliance of Child and Family Services

represented by William Frederick Abrams King &Spalding LLP 333 Twin Dolphin Drive, Suite 400 Redwood Shores, CA 94065 650−590−0703 Fax: 650−590−1900 Email: wabrams@kslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew B. Ellsworth Bingham McCutchen LLP Three Embarcadero Center San Francisco, CA 94111−4067 (415) 393−2000 Fax: (415) 393−2286 Email: andrew.ellsworth@bingham.com ATTORNEY TO BE NOTICED

Craig Allen Taggart Bingham McCutchen LLP 600 Anton Blvd. 18th Floor Costa Mesa, CA 92626 714−830−0600 x20628 Fax: 714−830−0700 Email: craig.taggart@bingham.com ATTORNEY TO BE NOTICED

George Dey Prince California Dept. of Justice 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102−7004 (415) 703−5749 Fax: (415) 703−5480 Email: george.prince@doj.ca.gov ATTORNEY TO BE NOTICED

Michael Donn Mortenson Bingham McCutchen LLP 600 Anton Blvd 18th Floor Costa Mesa, CA 92626 714−830−0656 Fax: 714−830−0756 Email: michael.mortenson@bingham.com ATTORNEY TO BE NOTICED

Roxanne Torabian−Bashardoust

Case: 3:06-cv-4095 As of: 05/07/2013 10:36 AM PDT 2 of 12
Bingham McCutchen 355 South Grand Ave. Suite 4400 Los Angeles, CA 90071−3106 213−830−5324 Fax: 213−830−8753 Email: roxanne.t@bingham.com ATTORNEY TO BE NOTICED
Stephen Zak Smith Natural Resources Defense Council 1314 Second Street Santa Monica, CA 90401 310−434−2300 Fax: 310−434−2399 Email: zsmith@nrdc.org ATTORNEY TO BE NOTICED

V. Defendant Cliff Allenby Interim Director of the California Department of Social Services, in his official capacity
Defendant Mary Ault Deputy Director of the Children and Family Services Division of the California Department of Social Services, in her official capacity
Defendant John Wagner Director of the California Department of Social Services
Defendant Gregory Rose Deputy Director of the Children and Family Services Division of the California Department of Social Services

represented by George Dey Prince California Dept. of Justice Attorney Generals Office 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102−7004 (415) 703−5749 Fax: (415) 703−5480 Email: george.prince@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Donn Mortenson (See above for address) ATTORNEY TO BE NOTICED
represented by George Dey Prince (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Donn Mortenson (See above for address) ATTORNEY TO BE NOTICED
represented by George Dey Prince CA State Attorney General's Office 455 Golden Gate Avenue Suite 11000 San Francisco, CA 94102−7004 (415) 703−5749 Fax: (415) 703−5480 Email: george.prince@doj.ca.gov ATTORNEY TO BE NOTICED
represented by George Dey Prince (See above for address) ATTORNEY TO BE NOTICED

Case: 3:06-cv-4095 As of: 05/07/2013 10:36 AM PDT 3 of 12

Interested Party California State Foster Parent Association
Interested Party California State Care Providers Association
Interested Party Legal Advocates for Permanent Parenting

represented by Kimberly Nicole VanVoorhis Morrison &Foerster LLP 755 Page Mill Road Palo Alto, CA 94304 650−813−4262 Fax: 650−251−3895 Email: kvanvoorhis@mofo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kimberly Nicole VanVoorhis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kimberly Nicole VanVoorhis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/30/2006
06/30/2006 06/30/2006 06/30/2006 07/19/2006 07/19/2006 07/25/2006 07/26/2006 08/25/2006 08/25/2006

# Docket Text
1 COMPLAINT for Declaratory and Injunctive Relief; Demand for Jury Trial against Cliff Allenby, Mary Ault (Filing fee $ 350.00, receipt number 3387292.). Filed byCalifornia Alliance of Child and Family Services. (gba, COURT STAFF) (Filed on 6/30/2006) Additional attachment(s) added on 10/16/2006 (gba, COURT STAFF). (Entered: 06/30/2006)
2 ADR SCHEDULING ORDER: Case Management Statement due by 10/23/2006. Case Management Conference set for 10/30/2006 04:00 PM. (Attachments: # 1 Standing Order)(gba, COURT STAFF) (Filed on 6/30/2006) (Entered: 06/30/2006)
Summons Issued as to Cliff Allenby, Mary Ault. (gba, COURT STAFF) (Filed on 6/30/2006) (Entered: 06/30/2006)
CASE DESIGNATED for Electronic Filing. (gba, COURT STAFF) (Filed on 6/30/2006) (Entered: 06/30/2006)
3 SUMMONS Returned Executed by California Alliance of Child and Family Services. Cliff Allenby served on 7/5/2006, answer due 7/25/2006. (gba, COURT STAFF) (Filed on 7/19/2006) (Entered: 07/19/2006)
4 SUMMONS Returned Executed by California Alliance of Child and Family Services. Mary Ault served on 7/5/2006, answer due 7/25/2006. (gba, COURT STAFF) (Filed on 7/19/2006) (Entered: 07/19/2006)
5 STIPULATION and [proposed] order by California Alliance of Child and Family Services, Cliff Allenby, Mary Ault. (Prince, George) (Filed on 7/25/2006) (Entered: 07/25/2006)
6 STIPULATION AND ORDER extending time to and including 8/25/2006 for defendants to file responsive pleading; Signed by Judge Marilyn Hall Patel on 7/26/2006. (awb, COURT−STAFF) (Filed on 7/26/2006) (Entered: 07/26/2006)
7 First MOTION to Dismiss filed by Cliff Allenby, Mary Ault. Motion Hearing set for 10/2/2006 02:00 PM in Courtroom 15, 18th Floor, San Francisco. (Prince, George) (Filed on 8/25/2006) (Entered: 08/25/2006)
8 Proposed Order re 7 First MOTION to Dismiss by Mary Ault. (Prince, George) (Filed on 8/25/2006) (Entered: 08/25/2006)

Case: 3:06-cv-4095 As of: 05/07/2013 10:36 AM PDT 4 of 12

08/25/2006
08/25/2006 08/29/2006 09/08/2006
09/11/2006
09/11/2006 09/19/2006
10/09/2006 10/09/2006 10/09/2006 10/11/2006 10/16/2006 10/19/2006
10/20/2006 10/20/2006 10/24/2006

9 First MOTION for Leave to File Motion to Dismiss in Advance of Initial Case Management Conference filed by Cliff Allenby, Mary Ault. Motion Hearing set for 10/2/2006 02:00 PM in Courtroom 15, 18th Floor, San Francisco. (Prince, George) (Filed on 8/25/2006) (Entered: 08/25/2006)
10 Proposed Order re 9 First MOTION for Leave to File Motion to Dismiss in Advance of Initial Case Management Conference by Cliff Allenby, Mary Ault. (Prince, George) (Filed on 8/25/2006) (Entered: 08/25/2006)
11 ORDER by Judge Marilyn Hall Patel granting 9 defendants' Motion for Leave to File motion to dismiss prior to initial case management conference (awb, COURT−STAFF) (Filed on 8/29/2006) (Entered: 08/29/2006)
12 STIPULATION TO CONTINUE HEARING DATE RE DEFENDANTS' MOTION TO DISMISS AND [PROPOSED] ORDER GRANTING CONTINUANCE by California Alliance of Child and Family Services. (Abrams, William) (Filed on 9/8/2006) (Entered: 09/08/2006)
13 AMENDED DOCUMENT by California Alliance of Child and Family Services. Amendment to 12 Stipulation AMENDED STIPULATION TO CONTINUE HEARING DATE RE: DEFENDANTS' MOTION TO DISMISS; AND, [PROPOSED] ORDER GRANTING CONTINUANCE. (Abrams, William) (Filed on 9/11/2006) (Entered: 09/11/2006)
14 Memorandum in Opposition re 7 First MOTION to Dismiss Complaint filed byCalifornia Alliance of Child and Family Services. (Lee, Hwannie) (Filed on 9/11/2006) (Entered: 09/11/2006)
15 STIPULATION AND ORDER AMENDING BRIEFING SCHEDULES AND RESETTING Hearing on Motion 7 First MOTION to Dismiss; Motion Hearing reset for 10/23/2006 02:00 PM in Courtroom 15, 18th Floor, San Francisco; Signed by Judge Marilyn Hall Patel on 9/18/2006. (awb, COURT−STAFF) (Filed on 9/19/2006) (Entered: 09/19/2006)
16 Reply to Opposition filed byCliff Allenby, Mary Ault. (Prince, George) (Filed on 10/9/2006) (Entered: 10/09/2006)
17 ADR Certification (ADR L.R. 3−5b) of discussion of ADR options By Parties and Counsel (Torabian−Bashardoust, Roxanne) (Filed on 10/9/2006) (Entered: 10/09/2006)
18 NOTICE of need for ADR Phone Conference (ADR L.R. 3−5 d) (Torabian−Bashardoust, Roxanne) (Filed on 10/9/2006) (Entered: 10/09/2006)
19 CLERK'S NOTICE re: Failure to E−File and/or Failure to Register as an E−Filer re: #1 Complaint (gba, COURT STAFF) (Filed on 10/11/2006) (Entered: 10/11/2006)
20 ADR Certification (ADR L.R. 3−5b) of discussion of ADR options for CA Dept of Social Services (Prince, George) (Filed on 10/16/2006) (Entered: 10/16/2006)
21 MOTION to Appear by Telephone /[Proposed] Order filed by California Alliance of Child and Family Services. Motion Hearing set for 10/30/2006 04:00 PM in Courtroom 15, 18th Floor, San Francisco. (Torabian−Bashardoust, Roxanne) (Filed on 10/19/2006) (Entered: 10/19/2006)
22 ADR Clerks Notice Setting ADR Phone Conference on 10/25/06 at 2:30 p.m. Please take note that plaintiff's counsel initiates the call to all parties. (tjs, COURT STAFF) (Filed on 10/20/2006) (Entered: 10/20/2006)
ADR Remark: The ADR Phone Conference has been rescheduled to 10/25/06 at 2:30 p.m. (tjs, COURT STAFF) (Filed on 10/20/2006) (Entered: 10/20/2006)
23 Minute Entry: Motion Hearing held on 10/23/2006 before Hon Marilyn Hall Patel (Date Filed: 10/24/2006) re 7 First MOTION to Dismiss; Case Management Conference reset for 11/13/2006 03:00 PM. (Court Reporter Juanita Gonzales.) (awb, COURT−STAFF) (Date Filed: 10/24/2006) (Entered: 10/24/2006)

Case: 3:06-cv-4095 As of: 05/07/2013 10:36 AM PDT 5 of 12

10/27/2006 11/06/2006 11/06/2006 11/13/2006
12/12/2006 01/22/2007 02/07/2007 03/14/2007 03/16/2007
07/11/2007 07/16/2007 07/17/2007 07/17/2007
07/17/2007

24 ORDER by Judge Marilyn H. Patel denying 7 Motion to Dismiss. Signed by Judge Marilyn H. Patel 10/26/06. (epb, COURT STAFF) (Filed on 10/27/2006) (Entered: 10/27/2006)
25 CASE MANAGEMENT STATEMENT AND PROPOSED ORDER filed by California Alliance of Child and Family Services. (Torabian−Bashardoust, Roxanne) (Filed on 11/6/2006) (Entered: 11/06/2006)
26 ANSWER to Complaint byCliff Allenby, Mary Ault. (Prince, George) (Filed on 11/6/2006) (Entered: 11/06/2006)
27 Minute Entry: Status Conference before the Hon. Marilyn Hall Patel; (Date Filed: 11/13/2006(Date Filed: 11/13/2006)Cross Motions for Summary Judgment to be filed by 4/2/2007; Responses due by 4/16/2007; Motion Hearing set for 5/7/2007 02:00 PM in Courtroom 15, 18th Floor, San Francisco. (Court Reporter Leo Mankiewicz.) (awb, COURT−STAFF) (Date Filed: 11/13/2006) (Entered: 11/13/2006)
28 STATUS REPORT Joint Report On Status Of Mediation by California Alliance of Child and Family Services. (Abrams, William) (Filed on 12/12/2006) (Entered: 12/12/2006)
29 NOTICE by California Alliance of Child and Family Services Joint Report on Scheduling of Mediation (Torabian−Bashardoust, Roxanne) (Filed on 1/22/2007) (Entered: 01/22/2007)
30 STATUS REPORT ON COMPLETION OF MEDIATION by California Alliance of Child and Family Services. (Torabian−Bashardoust, Roxanne) (Filed on 2/7/2007) (Entered: 02/07/2007)
31 STIPULATION TO CONTINUE MOTION AND HEARING DATES RE: CROSS−MOTIONS FOR SUMMARY JUDGMENT; [PROPOSED] ORDER GRANTING CONTINUANCE by California Alliance of Child and Family Services. (Torabian−Bashardoust, Roxanne) (Filed on 3/14/2007) (Entered: 03/14/2007)
32 STIPULATION AND ORDER: Cross Motions to be filed by 7/16/2007; Oppositions to be filed 8/13/2007; No replies; Motion Hearing set for 8/27/2007 02:00 PM in Courtroom 15, 18th Floor, San Francisco; Signed by Judge Marilyn Hall Patel on 3/16/2007. (awb, COURT−STAFF) (Filed on 3/16/2007) (Entered: 03/16/2007)
33 STIPULATION to Further Continue Motion and Hearing Dates Re: Cross Motions for Summary Judgment; [Proposed] Order Granting Continuance by California Alliance of Child and Family Services. (Torabian−Bashardoust, Roxanne) (Filed on 7/11/2007) (Entered: 07/11/2007)
34 First MOTION for Summary Judgment filed by California Alliance of Child and Family Services. Motion Hearing set for 8/27/2007 02:00 PM in Courtroom 15, 18th Floor, San Francisco. (Attachments: # 1 Proposed Order CACFS's Proposed Order)(Smith, Stephen) (Filed on 7/16/2007) (Entered: 07/16/2007)
35 STIPULATION AND ORDER CONTINUING CROSS MOTION BRIEFING DEADLINES; Motions for Summary Judgment to be heard 9/24/2007 at 2:00 pm; Signed by Judge Marilyn Hall Patel on 7/17/2007. (awb, COURT−STAFF) (Filed on 7/17/2007) (Entered: 07/17/2007)
36 MOTION for Leave to File filed by Cliff Allenby, Mary Ault. Motion Hearing set for 8/27/2007 02:00 PM in Courtroom 15, 18th Floor, San Francisco. (Attachments: # 1 Proposed Order proposed order re late filing# 2 Affidavit decl in support of request for late filing)(Prince, George) (Filed on 7/17/2007) (Entered: 07/17/2007)
37 MOTION for Summary Judgment filed by Cliff Allenby, Mary Ault. Motion Hearing set for 8/27/2007 02:00 PM in Courtroom 15, 18th Floor, San Francisco. (Attachments: # 1 Affidavit decl of Sheilah Dupuy in support of MSJ# 2 Proposed Order [proposed] order granting dfdnts' MSJ)(Prince, George) (Filed on 7/17/2007) (Entered: 07/17/2007)

Case: 3:06-cv-4095 As of: 05/07/2013 10:36 AM PDT 6 of 12

09/04/2007 09/04/2007 09/04/2007 09/12/2007 09/26/2007 10/12/2007 10/12/2007 10/12/2007 10/17/2007 10/17/2007 10/17/2007 10/17/2007 10/17/2007 10/17/2007

38 Memorandum in Opposition re 34 First MOTION for Summary Judgment filed byCliff Allenby, Mary Ault. (Prince, George) (Filed on 9/4/2007) (Entered: 09/04/2007)
39 Memorandum in Opposition to 37 Defendants' Motion for Summary Judgment filed by California Alliance of Child and Family Services. (Mortenson, Michael) (Filed on 9/4/2007) Modified on 9/6/2007 (gba, COURT STAFF). (Entered: 09/04/2007)
40 Joint Statement of Undisputed Facts Regarding Parties' Cross Motions for Summary Judgment by California Alliance of Child and Family Services. (Mortenson, Michael) (Filed on 9/4/2007) Modified on 9/6/2007 (gba, COURT STAFF). (Entered: 09/04/2007)
41 AMENDED Joint Statement of Undisputed Facts Regarding Parties' Cross Motions for Summary Judgment re 39 Memorandum in Opposition, 38 Memorandum in Opposition filed by California Alliance of Child and Family Services, Cliff Allenby, Mary Ault. (Related document(s) 39 , 38 ) (Prince, George) (Filed on 9/12/2007) Modified on 9/19/2007 (gba, COURT STAFF). (Entered: 09/12/2007)
42 Minute Entry: Motion Hearing held on 9/24/2007 before Hon Marilyn Hall Patel (Date Filed: 9/26/2007) re 34 37 motions for Summary Judgment (Court Reporter Margo Gurule.) (awb, COURT−STAFF) (Date Filed: 9/26/2007) (Entered: 09/26/2007)
43 MOTION to Relate Case Administrative Motion to Consider Whether Cases Should Be Related filed by California State Foster Parent Association, California State Care Providers Association, Legal Advocates for Permanent Parenting. (Attachments: # 1 Proposed Order)(VanVoorhis, Kimberly) (Filed on 10/12/2007) (Entered: 10/12/2007)
44 Declaration of Kimberly N. Van Voorhis in Support of 43 MOTION to Relate Case Administrative Motion to Consider Whether Cases Should Be Related filed byCalifornia State Foster Parent Association, California State Care Providers Association, Legal Advocates for Permanent Parenting. (Related document(s) 43 ) (VanVoorhis, Kimberly) (Filed on 10/12/2007) (Entered: 10/12/2007)
45 CERTIFICATE OF SERVICE by California State Foster Parent Association, California State Care Providers Association, Legal Advocates for Permanent Parenting re 43 MOTION to Relate Case Administrative Motion to Consider Whether Cases Should Be Related, 44 Declaration in Support, (VanVoorhis, Kimberly) (Filed on 10/12/2007) (Entered: 10/12/2007)
46 Memorandum in Opposition to 43 Motion to Relate Case filed by Cliff Allenby, Mary Ault. (Prince, George) (Filed on 10/17/2007) Modified on 10/18/2007 (gba, COURT STAFF). (Entered: 10/17/2007)
47 Memorandum in Opposition to 43 Administrative Motion to Consider Whether Cases Should be Related filed by California Alliance of Child and Family Services. (Mortenson, Michael) (Filed on 10/17/2007) Modified on 10/18/2007 (gba, COURT STAFF). (Entered: 10/17/2007)
48 Declaration of Carroll Schroeder In Support of 47 Plaintiff's Opposition to Administrative Motion to Consider Whether Cases Should Be Related filed by California Alliance of Child and Family Services. (Mortenson, Michael) (Filed on 10/17/2007) Modified on 10/18/2007 (gba, COURT STAFF). (Entered: 10/17/2007)
49 Declaration of Michael D. Mortenson In Support of 47 Plaintiff's Opposition to Administrative Motion to Consider Whether Cases Should Be Related filed by California Alliance of Child and Family Services. (Mortenson, Michael) (Filed on 10/17/2007) Modified on 10/18/2007 (gba, COURT STAFF). (Entered: 10/17/2007)
50 CERTIFICATE OF SERVICE by California Alliance of Child and Family Services (Mortenson, Michael) (Filed on 10/17/2007) (Entered: 10/17/2007)
51 Proposed Order Denying Administrative Motion to Consider Whether Cases Should Be Related by California Alliance of Child and Family Services. (Mortenson,

Case: 3:06-cv-4095 As of: 05/07/2013 10:36 AM PDT 7 of 12

11/13/2007
11/13/2007 12/11/2007 01/14/2008 01/24/2008 03/12/2008 03/12/2008 03/12/2008 03/21/2008 03/21/2008
03/21/2008
03/21/2008
03/21/2008

Michael) (Filed on 10/17/2007) (Entered: 10/17/2007)
52 SUPPLEMENTAL Memorandum Regarding Additional Evidence in Support of 43 Administrative Motion to Consider Whether Cases Should Be Related filed by California State Foster Parent Association, California State Care Providers Association, Legal Advocates for Permanent Parenting. (Attachments: # 1 Exhibit A)(VanVoorhis, Kimberly) (Filed on 11/13/2007) Modified on 11/16/2007 (gba, COURT STAFF). (Entered: 11/13/2007)
53 CERTIFICATE OF SERVICE by California State Foster Parent Association, California State Care Providers Association, Legal Advocates for Permanent Parenting re 52 Memorandum in Support, (VanVoorhis, Kimberly) (Filed on 11/13/2007) (Entered: 11/13/2007)
54 ORDER re 34 , 37 CROSS− MOTIONS for Summary Judgment. Signed by Judge Marilyn Hall Patel on 12/10/2007. (awb, COURT−STAFF) (Filed on 12/11/2007) (Entered: 12/11/2007)
55 ORDER by Judge Marilyn Hall Patel denying 43 Motion to Relate Cases C 06−4095 MHP and C 07−5086 WHA (awb, COURT−STAFF) (Filed on 1/14/2008) (Entered: 01/14/2008)
56 Declaration of Sheilah Dupuy re: California Welfare and Institutions Code section 11462(g)(2) filed byCliff Allenby, Mary Ault. (Prince, George) (Filed on 1/24/2008) (Entered: 01/24/2008)
57 MEMORANDUM AND ORDER by Judge Marilyn Hall Patel denying 34 Plaintiff's Motion for Summary Judgment and granting 37 defendants' Motion for Summary Judgment (awb, COURT−STAFF) (Filed on 3/12/2008) (Entered: 03/12/2008)
58 CLERK'S JUDGMENT entered in favor of defendants Cliff Allenby, Mary Ault against plaintiff California Alliance of Child and Family Services (awb, COURT−STAFF) (Filed on 3/12/2008) (Entered: 03/12/2008)
59 NOTICE by Cliff Allenby re 58 Clerk's Judgment Notice of Entry of Judgment (Prince, George) (Filed on 3/12/2008) (Entered: 03/12/2008)
60 MOTION for Reconsideration re 57 Order on Motion for Summary Judgment, Order on Motion for Leave to File, 58 Clerk's Judgment filed by California Alliance of Child and Family Services. Motion Hearing set for 5/5/2008 02:00 PM in Courtroom 15, 18th Floor, San Francisco. (Mortenson, Michael) (Filed on 3/21/2008) (Entered: 03/21/2008)
61 Declaration of Michael D. Mortenson in Support of 60 MOTION for Reconsideration re 57 Order on Motion for Summary Judgment, Order on Motion for Leave to File, 58 Clerk's Judgment MOTION for Reconsideration re 57 Order on Motion for Summary Judgment, Order on Motion for Leave to File, 58 Clerk's Judgment filed byCalifornia Alliance of Child and Family Services. (Related document(s) 60 ) (Mortenson, Michael) (Filed on 3/21/2008) (Entered: 03/21/2008)
62 Declaration of Doug Johnson in Support of 60 MOTION for Reconsideration re 57 Order on Motion for Summary Judgment, Order on Motion for Leave to File, 58 Clerk's Judgment MOTION for Reconsideration re 57 Order on Motion for Summary Judgment, Order on Motion for Leave to File, 58 Clerk's Judgment filed byCalifornia Alliance of Child and Family Services. (Related document(s) 60 ) (Mortenson, Michael) (Filed on 3/21/2008) (Entered: 03/21/2008)
63 Declaration of Walter Grubbs in Support of 60 MOTION for Reconsideration re 57 Order on Motion for Summary Judgment, Order on Motion for Leave to File, 58 Clerk's Judgment MOTION for Reconsideration re 57 Order on Motion for Summary Judgment, Order on Motion for Leave to File, 58 Clerk's Judgment filed byCalifornia Alliance of Child and Family Services. (Related document(s) 60 ) (Mortenson, Michael) (Filed on 3/21/2008) (Entered: 03/21/2008)
64 Declaration of Beverly Boone in Support of 60 MOTION for Reconsideration re 57 Order on Motion for Summary Judgment, Order on Motion for Leave to File, 58 Clerk's Judgment MOTION for Reconsideration re 57 Order on Motion for

Case: 3:06-cv-4095 As of: 05/07/2013 10:36 AM PDT 8 of 12

03/21/2008 03/21/2008 03/21/2008 03/21/2008 03/21/2008 03/21/2008 03/21/2008 03/24/2008 03/24/2008 04/10/2008 04/29/2008

Summary Judgment, Order on Motion for Leave to File, 58 Clerk's Judgment filed byCalifornia Alliance of Child and Family Services. (Related document(s) 60 ) (Mortenson, Michael) (Filed on 3/21/2008) (Entered: 03/21/2008)
65 Declaration of George Siler in Support of 60 MOTION for Reconsideration re 57 Order on Motion for Summary Judgment, Order on Motion for Leave to File, 58 Clerk's Judgment MOTION for Reconsideration re 57 Order on Motion for Summary Judgment, Order on Motion for Leave to File, 58 Clerk's Judgment filed byCalifornia Alliance of Child and Family Services. (Related document(s) 60 ) (Mortenson, Michael) (Filed on 3/21/2008) (Entered: 03/21/2008)
66 Declaration of Christine Stoner−Mertz in Support of 60 MOTION for Reconsideration re 57 Order on Motion for Summary Judgment, Order on Motion for Leave to File, 58 Clerk's Judgment MOTION for Reconsideration re 57 Order on Motion for Summary Judgment, Order on Motion for Leave to File, 58 Clerk's Judgment filed byCalifornia Alliance of Child and Family Services. (Related document(s) 60 ) (Mortenson, Michael) (Filed on 3/21/2008) (Entered: 03/21/2008)
67 Declaration of Ivelise Markovits in Support of 60 MOTION for Reconsideration re 57 Order on Motion for Summary Judgment, Order on Motion for Leave to File, 58 Clerk's Judgment MOTION for Reconsideration re 57 Order on Motion for Summary Judgment, Order on Motion for Leave to File, 58 Clerk's Judgment filed byCalifornia Alliance of Child and Family Services. (Related document(s) 60 ) (Mortenson, Michael) (Filed on 3/21/2008) (Entered: 03/21/2008)
68 Declaration of John Neiuber in Support of 60 MOTION for Reconsideration re 57 Order on Motion for Summary Judgment, Order on Motion for Leave to File, 58 Clerk's Judgment MOTION for Reconsideration re 57 Order on Motion for Summary Judgment, Order on Motion for Leave to File, 58 Clerk's Judgment filed byCalifornia Alliance of Child and Family Services. (Related document(s) 60 ) (Mortenson, Michael) (Filed on 3/21/2008) (Entered: 03/21/2008)
69 Declaration of John L. Peel in Support of 60 MOTION for Reconsideration re 57 Order on Motion for Summary Judgment, Order on Motion for Leave to File, 58 Clerk's Judgment MOTION for Reconsideration re 57 Order on Motion for Summary Judgment, Order on Motion for Leave to File, 58 Clerk's Judgment filed byCalifornia Alliance of Child and Family Services. (Related document(s) 60 ) (Mortenson, Michael) (Filed on 3/21/2008) (Entered: 03/21/2008)
70 Declaration of David Darrah in Support of 60 MOTION for Reconsideration re 57 Order on Motion for Summary Judgment, Order on Motion for Leave to File, 58 Clerk's Judgment MOTION for Reconsideration re 57 Order on Motion for Summary Judgment, Order on Motion for Leave to File, 58 Clerk's Judgment filed byCalifornia Alliance of Child and Family Services. (Related document(s) 60 ) (Mortenson, Michael) (Filed on 3/21/2008) (Entered: 03/21/2008)
71 Proposed Order re 60 MOTION for Reconsideration re 57 Order on Motion for Summary Judgment, Order on Motion for Leave to File, 58 Clerk's Judgment MOTION for Reconsideration re 57 Order on Motion for Summary Judgment, Order on Motion for Leave to File, 58 Clerk's Judgment by California Alliance of Child and Family Services. (Mortenson, Michael) (Filed on 3/21/2008) (Entered: 03/21/2008)
72 MOTION for Leave to File Motion For Reconsideration And Relief From Judgment filed by California Alliance of Child and Family Services. (Mortenson, Michael) (Filed on 3/24/2008) (Entered: 03/24/2008)
73 Proposed Order re 72 MOTION for Leave to File Motion For Reconsideration And Relief From Judgment by California Alliance of Child and Family Services. (Mortenson, Michael) (Filed on 3/24/2008) (Entered: 03/24/2008)
74 MEMORANDUM AND ORDER by Judge Marilyn Hall Patel DENYING 72 plaintiff's Motion for Leave to File motion for reconsideration and relief from judgment (awb, COURT−STAFF) (Filed on 4/10/2008) (Entered: 04/10/2008)
75 NOTICE OF APPEAL as to 74 Order on Motion for Reconsideration 57 Order on Motion for Summary Judgment 58 Clerk's Judgment by California Alliance of

Case: 3:06-cv-4095 As of: 05/07/2013 10:36 AM PDT 9 of 12

05/09/2008 05/21/2008
05/21/2008
05/29/2008 06/30/2008
07/02/2008 09/18/2009 09/25/2009 01/06/2010 01/07/2010 01/07/2010 01/15/2010 01/29/2010

Child and Family Services. Filing fee $ 455.00. Receipt Number 34611018623. (gba, COURT STAFF) (Filed on 4/29/2008) (Entered: 05/21/2008)
78 TRANSCRIPT DESIGNATION and Ordering Form by California Alliance of Child and Family Services for proceedings held on 9/24/07 before Judge Marilyn H. Patel. (gba, COURT STAFF) (Filed on 5/9/2008) (Entered: 05/21/2008)
76 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 75 Notice of Appeal. (gba, COURT STAFF) (Filed on 5/21/2008) (gba, COURT STAFF). (Additional attachment(s) added on 5/21/2008: # 1 Order Docket No. 57, # 2 Order Docket No. 58, # 3 Order Docket No. 74) (gba, COURT STAFF). (Additional attachment(s) added on 5/21/2008: # 4 Docket Sheet) (gba, COURT STAFF). (Additional attachment(s) added on 5/21/2008: # 5 Amended Docket Sheet) (gba, COURT STAFF). (Additional attachment(s) added on 5/21/2008: # 6 Notice of Appeal Notification Form) (gba, COURT STAFF). (Entered: 05/21/2008)
77 Copy of Notice of Appeal and Docket sheet mailed to all counsel (gba, COURT STAFF) (Filed on 5/21/2008) (Additional attachment(s) added on 5/21/2008: # 1 Docket Sheet) (gba, COURT STAFF). (Additional attachment(s) added on 5/21/2008: # 2 Amended Docket Sheet) (gba, COURT STAFF). (Entered: 05/21/2008)
79 USCA Case Number 08−16267 for 75 Notice of Appeal filed by California Alliance of Child and Family Services. (gba, COURT STAFF) (Filed on 5/29/2008) (Entered: 06/02/2008)
80 Transcript of Proceedings held on 09/24/07, before Judge Marilyn H. Patel. Court Reporter/Transcriber Margaret "Margo" Gurule, Telephone number 415−504−4204. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 9/25/2008. (mng, COURT STAFF) (Filed on 6/30/2008) (Entered: 06/30/2008)
81 NOTICE of Appearance by Craig Allen Taggart (Taggart, Craig) (Filed on 7/2/2008) (Entered: 07/02/2008)
82 MOTION to Relate Case filed by California Alliance of Child and Family Services. (Attachments: # 1 Affidavit Declaration of Craig A. Taggart)(Taggart, Craig) (Filed on 9/18/2009) (Entered: 09/18/2009)
83 ORDER RELATING CASE C 09−4398 VRW to this action; Signed by Judge Marilyn Hall Patel on 9/24/2009. (awb, COURT STAFF) (Filed on 9/25/2009) (Entered: 09/25/2009)
84 OPINION of USCA as to 75 Notice of Appeal, filed by California Alliance of Child and Family Services (gba, COURT STAFF) (Filed on 1/6/2010) (Entered: 01/06/2010)
85 MANDATE of USCA as to 75 Notice of Appeal, filed by California Alliance of Child and Family Services (gba, COURT STAFF) (Filed on 1/7/2010) (Entered: 01/07/2010)
86 CLERKS Letter Spreading Mandate to Counsel (gba, COURT STAFF) (Filed on 1/7/2010) (Entered: 01/07/2010)
87 Proposed Order Proposed Judgment for Plaintiff by California Alliance of Child and Family Services. (Mortenson, Michael) (Filed on 1/15/2010) (Entered: 01/15/2010)
88 Response and Objections to 87 Plaintiff's [Proposed] Judgment filed by Cliff Allenby, Mary Ault. (Prince, George) (Filed on 1/29/2010) Modified on 2/2/2010 (gba, COURT STAFF). (Entered: 01/29/2010)

Case: 3:06-cv-4095 As of: 05/07/2013 10:36 AM PDT 10 of 12

02/05/2010 02/22/2010 02/22/2010 02/24/2010 02/26/2010 03/09/2010
03/09/2010 03/09/2010
03/10/2010
03/11/2010 03/12/2010 03/12/2010 03/17/2010
03/17/2010

89 Reply Memorandum to 88 DEFENDANTS RESPONSE AND OBJECTIONS TO PROPOSED JUDGMENT filed by California Alliance of Child and Family Services. (Mortenson, Michael) (Filed on 2/5/2010) Modified on 2/8/2010 (gba, COURT STAFF). (Entered: 02/05/2010)
90 ORDER of USCA as to 75 Notice of Appeal, filed by California Alliance of Child and Family Services (gba, COURT STAFF) (Filed on 2/22/2010) (Entered: 02/22/2010)
91 ORDER of USCA as to 75 Notice of Appeal, filed by California Alliance of Child and Family Services (gba, COURT STAFF) (Filed on 2/22/2010) (Entered: 02/22/2010)
92 JUDGMENT: Signed by Judge Marilyn Hall Patel on 2/23/2010. (awb, COURT STAFF) (Filed on 2/24/2010) (Entered: 02/24/2010)
93 Letter from George Prince, on behalf of defendants. (Prince, George) (Filed on 2/26/2010) (Entered: 02/26/2010)
94 MOTION for Attorney Fees filed by California Alliance of Child and Family Services. Motion Hearing set for 4/12/2010 02:00 PM in Courtroom 15, 18th Floor, San Francisco. (Attachments: # 1 Affidavit Declaration of William F. Abrams in Support of Motion, # 2 Exhibit A, Part I to Abrams Decl., # 3 Exhibit A, Part II to Abrams Decl., # 4 Exhibit B to Abrams Decl., # 5 Affidavit Declaration of Michael D. Mortenson in Support of Motion, # 6 Exhibit A to Mortenson Decl., # 7 Exhibit B to Mortenson Decl.)(Mortenson, Michael) (Filed on 3/9/2010) (Entered: 03/09/2010)
95 BILL OF COSTS after judgment entered 02/23/2010 by California Alliance of Child and Family Services. (Mortenson, Michael) (Filed on 3/9/2010) (Entered: 03/09/2010)
96 Declaration of Michael D. Mortenson to replace document erroneously filed as No. 94−5 filed by California Alliance of Child and Family Services. Motion Hearing set for 4/12/2010 02:00 PM in Courtroom 15, 18th Floor, San Francisco. (Attachments: # 1 Exhibit Exhibit A to Mortenson Declaration, # 2 Exhibit B to Mortenson Declaration)(Mortenson, Michael) (Filed on 3/9/2010) Modified on 3/10/2010 (gba, COURT STAFF). (Entered: 03/09/2010)
97 RENOTICE motion hearing from 4/12/10 to 4/19/10 at 2:00 PM 94 MOTION for Attorney Fees filed by California Alliance of Child and Family Services. Motion Hearing set for 4/19/2010 02:00 PM in Courtroom 15, 18th Floor, San Francisco. (Mortenson, Michael) (Filed on 3/10/2010) Modified on 3/11/2010 (gba, COURT STAFF). (Entered: 03/10/2010)
Set/Reset Deadlines as to 94 MOTION for Attorney Fees. Motion Hearing set for 4/19/2010 02:00 PM in Courtroom 15, 18th Floor, San Francisco. (gba, COURT STAFF) (Filed on 3/11/2010) (Entered: 03/11/2010)
98 ORDER re 2/26/2010 Letter; plaintiff to file written response within ten days; Defendants to file a written response within ten days thereafter; Signed by Judge Marilyn Hall Patel on 3/10/2010. (awb, COURT STAFF) (Filed on 3/12/2010) (Entered: 03/12/2010)
99 NOTICE OF APPEAL as to 92 Judgment by John Wagner, Gregory Rose. Filing fee $ 455.00.; Receipt Number 34611043514. (gba, COURT STAFF) (Filed on 3/12/2010) (Entered: 03/17/2010)
100 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 99 Notice of Appeal (Attachments: # 1 Notice of Appeal Notification Form, # 2 Notice of Appeal) (gba, COURT STAFF) (Filed on 3/17/2010) (Additional attachment(s) added on 3/17/2010: # 3 Docket Sheet) (gba, COURT STAFF). (Entered: 03/17/2010)
Copy of Notice of Appeal and Docket sheet mailed to all counsel (gba, COURT STAFF) (Filed on 3/17/2010) (Entered: 03/17/2010)

Case: 3:06-cv-4095 As of: 05/07/2013 10:36 AM PDT 11 of 12

03/22/2010 03/29/2010 04/01/2010 04/05/2010 04/05/2010
04/09/2010 04/12/2010 04/14/2010 04/27/2010 04/27/2010
05/04/2010 05/04/2010 05/04/2010 04/08/2011 07/01/2011 07/06/2011

101 RESPONSE to re 98 Terminate Deadlines and Hearings, Order, 93 Letter by California Alliance of Child and Family Services. (Mortenson, Michael) (Filed on 3/22/2010) (Entered: 03/22/2010)
102 Memorandum in Opposition to 94 Motion for Attorneys Fees filed byGregory Rose, John Wagner. (Prince, George) (Filed on 3/29/2010) (Entered: 03/29/2010)
103 Reply Memorandum REPLY TO PLAINTIFF'S RESPONSE TO DEFENDANTS' FEBRUARY 29, 2010 LETTER REQUESTING AMENDED JUDGMENT filed byCliff Allenby, Mary Ault, Gregory Rose, John Wagner. (Prince, George) (Filed on 4/1/2010) (Entered: 04/01/2010)
104 NOTICE of Appearance by Andrew B. Ellsworth (Ellsworth, Andrew) (Filed on 4/5/2010) (Entered: 04/05/2010)
105 Reply Memorandum in Support of 94 Motion for Attorneys' Fees filed by California Alliance of Child and Family Services. (Attachments: # 1 Affidavit Supplemental Declaration of William Abrams, # 2 Exhibit A, Alliance's Motion for Attorneys' Fees on Appeal, # 3 Exhibit B, Spreadsheet of Alliance Time)(Taggart, Craig) (Filed on 4/5/2010) (Entered: 04/05/2010)
106 USCA Case Number 10−15593 for 99 Notice of Appeal filed by John Wagner, Gregory Rose. (gba, COURT STAFF) (Filed on 4/9/2010) (Entered: 04/10/2010)
107 Transcript Designation and Ordering Form for proceedings held on February 22, 2010 before Judge The Hon. Marilyn H. Patel, (Prince, George) (Filed on 4/12/2010) (Entered: 04/12/2010)
108 Transcript Designation and Ordering Form for proceedings held on February 22, 2010 before Judge the Hon. Marilyn H. Patel, re 99 Notice of Appeal Transcript due by 4/12/2010. (Prince, George) (Filed on 4/14/2010) (Entered: 04/14/2010)
109 *** FILED IN ERROR. PLEASE DISREGARD. *** Transcript of Proceedings held on 4−22−2010, before Judge Marilyn Hall Patel. (ck, COURT STAFF) (Filed on 4/27/2010) Modified on 4/27/2010 (feriab, COURT STAFF). (Entered: 04/27/2010)
110 Transcript of Proceedings held on 2−22−2010, before Judge Marilyn Hall Patel. Court Reporter/Transcriber Connie Kuhl, Telephone number 415−431−2020. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 7/26/2010. (ck, COURT STAFF) (Filed on 4/27/2010) (Entered: 04/27/2010)
111 MEMORANDUM AND ORDER GRANTING 93 DEFENDANTS' request to amend judgment; Signed by Judge Marilyn Hall Patel on 4/30/2010. (awb, COURT STAFF) (Filed on 5/4/2010) (Entered: 05/04/2010)
112 AMENDED JUDGMENT; Signed by Judge Marilyn Hall Patel on 4/30/2010. (awb, COURT STAFF) (Filed on 5/4/2010) (Entered: 05/04/2010)
113 MEMORANDUM AND ORDER re Plaintiffs' Motion for Attorneys' Fees by Judge Marilyn Hall Patel: Plaintiff is awarded $506,000 in attorneys' fees, with an additional $4,000 in costs, for a total of $510,000 (awb, COURT STAFF) (Filed on 5/4/2010) (Entered: 05/04/2010)
114 USCA Memorandum as to 99 Notice of Appeal filed by John Wagner, Gregory Rose (gba, COURT STAFF) (Filed on 4/8/2011) (Entered: 04/08/2011)
115 ORDER of USCA as to 75 Notice of Appeal, filed by California Alliance of Child and Family Services (gba, COURT STAFF) (Filed on 7/1/2011) (Entered: 07/01/2011)
116 MANDATE of USCA as to 99 Notice of Appeal filed by John Wagner, Gregory Rose (gba, COURT STAFF) (Filed on 7/6/2011) (Entered: 07/06/2011)

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117 CLERKS Letter Spreading Mandate to Counsel (gba, COURT STAFF) (Filed on 7/6/2011) (Entered: 07/06/2011)
118 MOTION to Relate Case filed by California Alliance of Child and Family Services. (Taggart, Craig) (Filed on 3/29/2012) (Entered: 03/29/2012)