FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STATE OF CALIFORNIA 

DEPARTMENT OF SOCIAL SERVICES,

Plaintiff-Appellee,

v.

MIKE LEAVITT, Secretary of Health

and Human Services, No. 06-56136

Defendant-Appellee, D.C. No. 

v. CV-99-00355-FCD

ENEDINA ROSALES, OPINION

Plaintiff-Intervenor-Appellant,

LARRY BUGGS; BRENDA BUGGS;

MARY ELLEN DEEGAN; GLORIA

JEFFERSON; SHAWN SPENCER,

Movants-Appellants. 

Appeal from the United States District Court

for the Eastern District of California

Frank C. Damrell, District Judge, Presiding

Argued and Submitted

October 10, 2007—San Francisco, California

Filed April 25, 2008

Before: David R. Thompson, William A. Fletcher, and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Berzon

4477
COUNSEL

Elliot Silverman (argued), David M. Beckwith, and Catherine

Shiang, of McDermott Will & Emery LLP, and Marjorie

Shelvy (argued), Yolanda Arias, and Silvia Argueta, of the

Legal Aid Foundation of Los Angeles, for plaintiffintervenor-appellant Enedina Rosales and for the movantsappellants. 

Paul Reynaga (argued), Supervising Deputy Attorney General

of the State of California, Thomas R. Yanger, Senior Assistant Attorney General of the State of California, and Edmund

G. Brown, Jr., Attorney General of the State of California, for

plaintiff-appellee State of California Department of Social

Services. 

Jeffrey A. Clair (argued), Barbara C. Biddle, Attorneys, Civil

Division of the United States Department of Justice, McGregor W. Scott, United States Attorney, and Peter D. Keisler,

Assistant Attorney General, for defendant-appellee Mike

Leavitt, Secretary of Health and Human Services. 

OPINION

BERZON, Circuit Judge: 

In State of California Dep’t of Soc. Servs. v. Thompson,

321 F.3d 835, 856-57 (9th Cir. 2003) (referred to as “Rosales,” after intervenor-appellant Enedina Rosales), we

rejected a U.S. Department of Health and Human Services

(“HHS”) interpretation of the statute determining eligibility

for the Aid to Families with Dependent Children-Foster Care

(“AFDC-FC”) program.1See 42 U.S.C. § 672. We remanded

to the district court to implement what we held to be the

1A detailed discussion of the earlier history of this case can be found in

Rosales, 321 F.3d at 838-45. We do not rehearse it here. 

STATE OF CALIFORNIA v. LEAVITT 4481
proper interpretation of the statute. The district court subsequently issued an injunction against HHS and the California

Department of Social Services (“CDSS”) enforcing the

Rosales eligibility standard. We now consider whether HHS

and CDSS are entitled to relief from judgment due to a statute

enacted after Rosales and whether the district court failed to

respond appropriately in the face of evidence that CDSS may

not have complied with the injunction. 

I. Background

On remand, the district court ordered CDSS to provide for

the review of all foster care cases open on or after March 3,

2003, for benefits eligibility under Rosales’s construction of

§ 672.2 CDSS was to pay benefits due “for the entire period,

subsequent to December 23, 1997, in which the child was

entitled to AFDC-FC payments under [Rosales] and was otherwise eligible for such benefits and those payments were not

paid.” New applications were, of course, to be considered

under the statute as construed in Rosales. To begin the process, CDSS was ordered to issue an All County Letter to the

county officials who implement its programs, directing them

to review their cases “to determine eligibility in accordance

with [Rosales] and consistent with [the district court’s] judgment.” The review was to be completed no later than April

17, 2005, with benefits paid within 30 days of an eligibility

finding.3

2The district court filed its first relief order on remand on February 10,

2004. It twice amended the order. The second amended order, filed August

17, 2004, is the one relevant here. 

3The August 2004 Order follows in its entirety: 

1. Judgment is hereby entered in favor of the Plaintiff and PlaintiffIntervenor for the reasons stated in the opinion of the Ninth Circuit, dated

March 3, 2003. 

2. DSS and the Secretary [of HHS] are hereby ordered to comply with

[Rosales]. 

4482 STATE OF CALIFORNIA v. LEAVITT
Whether CDSS complied with the district court’s August

2004 Order is the question at the core of this case. It is clear

3. The Secretary shall approve the Title IV-E AFDC Foster Care

(AFDC-FC) State Plan Amendment submitted by DSS as of December 23,

1997. 

4. For all foster care cases in which dependency jurisdiction was open

on or after March 3, 2003, DSS shall make AFDC-FC payments for the

entire period, subsequent to December 23, 1997, in which the child was

entitled to AFDC-FC payments under [Rosales] and was otherwise eligible for such benefits and those payments were not paid. For the purposes

of retroactive payments made under this order, foster homes approved on

or after March 3, 2003, shall be considered to have met the federal

approval standards. 

5. The Secretary shall reimburse DSS, and the State of California, at the

federal participation rate, for all AFDC-FC benefits paid by DSS pursuant

to the approved Title IV-E AFDC-FC State Plan Amendment. 

6. DSS shall issue a directive to all County Welfare Departments and

Chief Probation Officers and other appropriate parties (“All County Letter”) to review all foster care cases open on or after March 3, 2003 to

determine eligibility in accordance with [Rosales] and consistent with this

judgment. Each such case shall be so reviewed during the next regular sixmonth review to which the case would be subjected in the normal course

of business, but no later than eight months from the date of the issuance

of this order. DSS shall pay all benefits which are found to be due as a

result of those reviews within 30 days of the determination of eligibility.

7. Within 10 days of this order, DSS shall submit to the Secretary for

approval a draft All County Letter, consistent with the terms of this order.

Within 10 days of receiving the draft All County Letter, the Secretary

shall [either approve the letter or file objections with the court]. 

8. Upon receiving approval of the All County Letter from the Secretary,

DSS shall issue the All County Letter to all County Welfare Departments

and Chief Probation Officers and other appropriate parties. 

9. DSS shall immediately make AFDC-FC payments to [Enedina Rosales] for the entire period, subsequent to December 23, 1997, in which her

grandson was in her care, was a dependent of the court, and AFDC-FC

benefits were not paid. 

(The entity which the district court refers to as DSS is the one which in

this opinion we call CDSS.) 

STATE OF CALIFORNIA v. LEAVITT 4483
that CDSS did send an All County Letter in September 2004.

But whether any review was conducted, or any benefits were

paid, has not been documented.4 The All County Letter itself

ordered such steps, requiring that all cases “open on March 3,

2003 shall have the broader eligibility criteria applied retroactively,” recommending that counties “immediately review any

case identified as potentially eligible” (emphasis in original),5

and providing two claim forms — one for administrative costs

associated with implementing the district court’s Order and

one for the Rosales payments themselves. According to the

All-County Letter and accompanying forms, counties were to

record, among other details, the amount of the new federal

AFDC-FC payments they were claiming as a result of the

reviews, along with a “persons count” of parties receiving

payments under county, state, and federal programs as a result

of the reviews, and, if the county sought administrative costs,

“the number of Rosales cases” that were shifted into AFDCFC payment eligibility after the reviews. Even if a county had

no costs to report, it was still to “complete and certify the

form indicating zero expenditures.” The forms were to be submitted “no later than April 30, 2005.” The counties were

ordered to “retain all supporting documentation for audit purposes.” 

On April 20, 2005, after the mandated review period ended,

Rosales’s counsel wrote to counsel for CDSS to request “a

county-by-county list of the number of cases reviewed, the

number of cases approved, the number of cases denied and

the reason(s) for the denials,” along with “assurance that

4The only benefits we know have been paid as a result of the August

2004 Order were those paid to Rosales herself for a period of foster care

ending in July 2001, as specifically required by the ninth paragraph of the

Order.

5

In an earlier All County Letter, issued on December 31, 2003, shortly

after Rosales was decided, CDSS opined that, under Rosales, “[m]ost children will be eligible for benefits with a needy or non-needy caretaker relative unless the child has significant income and resources or some other

factor which would make him/her ineligible.” 

4484 STATE OF CALIFORNIA v. LEAVITT
every county met the mandated deadline.” CDSS’s counsel

replied on May 11, after the deadlines set by the Order and

by the All County Letter had elapsed, that while “claims data”

had been submitted, the information Rosales’s counsel sought

was “not ascertainable from the claims submitted by the counties,” that CDSS had “no such data,” and that no “such ‘evidence’ of compliance [was] required by the Court’s order in

Rosales.” 

Counsel for Rosales served a Request for Production of

Documents on CDSS the following January, requesting, inter

alia, “All Documents relating, regarding or referring to Your

efforts to comply with [Rosales], including, but not limited to,

all Communications regarding Your compliance efforts”; “All

Documents relating, regarding or referring to all payments by

You to all foster care cases in which dependency jurisdiction

was open on or after March 3, 2003, based on the redetermination of eligibility in accordance with the [district court’s

order]”; “All Documents relating, regarding or referring to

[the All County Letter]”; “any follow-up communications to

anyone after issuance” of the Letter “regarding [its] subject

matter”; and “All Documents relating, regarding or referring

to the contentions set forth in [CDSS’s counsel’s May 2005

letter] that county-by-county data listing the number of cases

reviewed, the number of cases approved, the number of cases

denied, and the reasons for denial was not ascertainable from

claims submitted by the counties.” 

CDSS refused to provide the requested information, in part

because “the discovery requests ha[d] been propounded after

entry of judgment,” and “[i]n the absence of threshold determinations by the Court regarding the existence and scope of

an issue that requires resolution and that discovery is necessary to resolution of any such issue, the discovery requests

[were] premature, unauthorized, and unduly burdensome.”

Rosales did not move to compel discovery. See Fed. R. Civ.

P. 37(a). 

STATE OF CALIFORNIA v. LEAVITT 4485
On February 8, 2006, Congress passed the Deficit Reduction Act of 2005 (“DRA”), which, among other effects,

amended § 672 to foreclose the statutory construction set

forth by Rosales. Pub. L. No. 109-171, § 7404-05, 120 Stat.

4, 151-55 (2006). In March, CDSS issued an All County Letter directing that the “counties must immediately ‘track’ all

Rosales cases, for which federal foster care benefits were paid

starting on October 1, 2005, and thereafter until clarification”

on the effects of the statute was received from the district

court and HHS. Not long afterward, both HHS and CDSS

moved under Rule 60(b) for relief from judgment based on

the DRA. While the motions were pending, on June 9, 2006,

HHS directed that the DRA’s eligibility provision should be

implemented on a rolling basis: As cases came up for annual

eligibility reviews, children previously receiving benefits

under Rosales but now ineligible under the DRA would have

their benefits terminated. 

Rosales cross-moved to enforce the judgment, joined in a

separate motion by five other foster caregivers.6 In Rosales’s

motion, she requested “[t]hat the Court authorize limited discovery for the purpose of ensuring complete and effective

compliance with this Court’s judgment.” Along with the

motion, she included CDSS’s response, quoted above, declining to provide the requested discovery. Also accompanying

Rosales’s motion was a declaration by her counsel, Marjorie

Shelvy, stating that, after the judgment on remand, Shelvy had

represented more than a dozen AFDC-FC claimants who had

been denied benefits “in direct contravention [of] the Rosales

decision.” Rosales declared that she had not received payments she believed she was entitled to for a recent period of

foster care. The five other foster caregivers also supplied declarations that they had been denied benefits owed to them. 

6The other caregivers brought their motion under Fed. R. Civ. P. 71,

which provides that “[w]hen an order grants relief for a nonparty or may

be enforced against a nonparty, the procedure for enforcing the order is the

same as for a party.” 

4486 STATE OF CALIFORNIA v. LEAVITT
The motions to enforce the judgment, relying upon

Shelvy’s declaration and upon the individual cases of the

movants, argued that CDSS had not complied with the judgment. Rosales charged that CDSS had a “policy of ignoring

[the district court’s] judgment,” and had “continued to apply

the old, pre-Rosales legal standard” in at least the dozen cases

referred to in Shelvy’s declaration, as well as in her own case.

The other caregivers similarly argued that CDSS “continues

to ignore [the district court’s] judgment compelling compliance with [Rosales]” and that “CDSS continues to deny

proper review [of] open benefit cases and denies benefits to

foster care families” entitled to benefits under the Rosales

standard, including in their own cases. Rosales asked, at a

minimum, that the court ensure that “all claims for past due

benefits be reviewed consistent with [the court’s] prior judgment . . . and past due benefits be promptly paid.” In this

regard, in their consolidated reply in support of their motions

to enforce the judgment, Rosales and the other caregivers

argued that “[l]imited discovery is necessary in order to learn

what the CDSS and the Counties did to implement the Court’s

judgment, as well as what the State decided to forego in

enforcing the judgment.” 

As one way of protecting claimants’ rights and of gathering

reliable compliance data, Rosales and the other caregivers

also asked that the court require CDSS to provide Notices of

Action (“NOAs”), which are formal statements of the agency’s benefits decision, to all AFDC-FC program applicants

who had been denied benefits before Rosales and who were

again denied during the review. See CAL. DEP’T OF SOC.

SERVS. MANUAL OF POLICIES AND PROCEDURES § 22-071

(describing notice requirements). Rosales also opposed granting relief from judgment with regard to parties receiving, or

entitled to receive, benefits under Rosales, arguing that such

relief would be an impermissibly retroactive application of the

DRA. 

STATE OF CALIFORNIA v. LEAVITT 4487
The district court granted CDSS and HHS relief from judgment as of June 9, 2006, the date of HHS’s directive concerning the implementation of the DRA, forward. The court

largely denied the motions to enforce the judgment.7 Looking

for evidence of noncompliance in the denial of benefits to

Rosales and the other caregivers, the district court held that in

three of the cases “the materials submitted indicate that the

child was not entitled to AFDC-FC benefits,” and that in the

remaining two cases the evidence was “insufficient to determine whether the parties are eligible for AFDC-FC benefits.”

8

The court also opined that “if [CDSS] wrongly denied AFDCFC benefits in two or potentially five individual cases, this

showing is insufficient to demonstrate that [CDSS] has failed

to comply.” Not mentioning Shelvy’s declaration indicating

that CDSS had failed to apply Rosales in more than a dozen

cases, the district court concluded that “neither Rosales nor

[the other caregivers] have provided any evidence that

[CDSS] has not complied with the court’s order.” The court

refused to require NOAs, as they were not “explicitly require-

[d]” by its Order. The court did not expressly discuss the

request to authorize discovery, but also did not order discovery, thereby implicitly denying the request. 

Rosales and the other caregivers timely appealed. They

argue that (1) relief from judgment should not have been

granted with regard to claimants who received, or were entitled to, benefits under Rosales before the passage of the DRA,

because such relief would impermissibly apply the DRA

7The district court did grant the motions to enforce the judgment in one

respect, not at issue here: In its March 2006 All County letter, CDSS

directed its officers immediately to implement the DRA. The court held

that CDSS should not have so directed without first seeking relief from the

injunction and therefore set the June date, which was after the motions for

relief from judgment were filed, as the trigger date for relief from judgment. 

8Although there are six caregivers on the motions — Rosales and five

others — two of the caregivers are a couple. As a result, there were only

five foster care cases in the record before the district court. 

4488 STATE OF CALIFORNIA v. LEAVITT
retroactively; (2) the district court should require NOAs for

parties who were ineligible pre-Rosales and who were still

deemed ineligible after the court-ordered review; and (3) the

court should at least require CDSS to “provide verification of

its compliance with the Rosales decision, including (i) the

number of cases reviewed, (ii) the number of cases denied

pursuant to the review, and (iii) the number of cases approved

pursuant to the review.” 

II. Analysis

A. Standard of Review

We review the grant or denial of Rule 60(b) motions for

relief from judgment, as well as the grant or denial of motions

to enforce injunctions, for abuse of discretion. See United

States v. Asarco, Inc., 430 F.3d 972, 978 (9th Cir. 2005) (Rule

60(b) motions are reviewed for abuse of discretion); Paulson

v. City of San Diego, 294 F.3d 1124, 1128 (9th Cir. 2002) (en

banc) (same for decisions concerning enforcing injunctions).

A denial of a request for discovery is also ordinarily

reviewed for abuse of discretion. Hallett v. Morgan, 296 F.3d

732, 751 (9th Cir. 2002). Here, however, because the district

court only implicitly denied the request to authorize discovery, it did not exercise its discretion. See Garrett v. City and

County of San Francisco, 818 F.2d 1515, 1518 n.3 (9th Cir.

1987). In the Rule 56(f) context, where “the district court did

not exercise its discretion [concerning ordering discovery],

the issue of whether or not it should have presents a legal

question which is subject to de novo review.” Garrett, 818

F.2d at 1518 n.3; see also Clark v. Capital Credit & Collection Servs., Inc., 460 F.3d 1162, 1178-79 (9th Cir. 2006).9

 The

9At times we appear to have passed directly on the merits of such discovery requests when affirming a district court’s implicit denial. See Margolis v. Ryan, 140 F.3d 850, 853-54 (9th Cir. 1998) (considering the

“merits of the motion”); Kennedy v. Applause, Inc., 90 F.3d 1477, 1482

STATE OF CALIFORNIA v. LEAVITT 4489
district court’s failure here to exercise its discretion by

addressing the merits of the request to authorize discovery

before considering whether to enforce its judgment presents

an analytically identical question. We therefore review de

novo whether the district court should have addressed the

merits of the request. 

B. Motions for Relief from Judgment

[1] Turning to the merits, we first address CDSS’s and

HHS’s motions for relief from judgment. We cannot say that

the district court abused its discretion by granting the relief

requested — namely, allowing CDSS and HHS to use the eligibility standard mandated by the DRA for all cases going

forward. The DRA removed the legal basis for the continuing

application of the court’s Order.10 A “change in law” of this

type “entitles petitioners to relief under Rule 60(b)(5).” Agostini v. Felton, 521 U.S. 203, 237 (1997). 

Rosales and the other caregivers nonetheless argue that

CDSS and HHS are implementing the DRA “retroactively” by

applying it to existing AFDC-FC benefits cases. This pur-

(9th Cir. 1996) (“affirm[ing] the district court’s implicit denial” of a discovery request because the appellant identified “no potential evidence that

would support her claim”); Qualls v. Blue Cross of California, 22 F.3d

839, 844 (9th Cir. 1994) (determining that a motion was “properly

denied”). So far as we are aware, however, there is no case addressing the

merits of a discovery request and reversing a district court’s failure to

order discovery. We need not now decide when such a reversal would be

appropriate. 

10HHS disputes the standing of Rosales and the other caregivers to challenge the application of the DRA, as the district court held that none of

them had proved that they were entitled to benefits in the future. We agree

with the district court that Rosales and the other caregivers have standing

as to this question. Several of them have not yet received final benefits

decisions, and the application of the DRA may be dispositive in their

cases. 

4490 STATE OF CALIFORNIA v. LEAVITT
ported “retroactive” application, they argue, is impermissible.

We disagree. 

[2] There is, in the first place, no per se rule barring retroactive application of statutes, although retroactive application

is generally disfavored. See Landgraf v. USI Film Products,

511 U.S. 244, 280 (1994). More importantly, the DRA is not

being applied “retroactively” in the sense contemplated by

Landgraf. The statute does not “impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions

already completed.” Id. AFDC-FC beneficiaries have no right

to continued payments based on their past eligibility. Congress’s power to define the scope of statutory entitlements

going forward is plenary. See Bowen v. Gilliard, 483 U.S.

587, 598 (1987). The district court therefore did not abuse its

discretion by allowing the agencies to implement the DRA as

Congress intended. 

C. Motions to Enforce the Judgment

We next consider the motions to enforce the judgment,

addressing both the NOA and discovery issues. 

1. The NOAs

[3] We first conclude that the district court did not abuse

its discretion by declining to require CDSS to provide NOAs

to previously ineligible parties who remained ineligible after

the court-ordered review. The August 2004 Order, issued after

substantial opportunity for comment by the parties, did not

require NOAs in such circumstances.11 NOAs might well have

11We note that, under the state regulations governing NOAs, it is not

clear whether denial of benefits to a previously ineligible party after courtordered review would be considered a new benefits decision, requiring an

NOA, or simply a continued denial, which apparently would not require

an NOA. See CAL. DEP’T OF SOC. SERVS. MANUAL OF POLICIES AND

PROCEDURES § 22-071 (notice requirements). We need not, however,

resolve the question. As the judgment itself is silent on NOAs, any error

in applying state law is not a violation of the judgment. 

STATE OF CALIFORNIA v. LEAVITT 4491
served a useful notice function, as Rosales and the other caregivers argue. But that potential utility does not convert the

district court’s refusal to import an NOA requirement into its

judgment after the fact into an abuse of discretion.

2. The Request to Authorize Discovery

As part of her motion to enforce the judgment, Rosales

requested permission to engage in limited discovery. The

request was tailored to determining whether reviews had

occurred as ordered and whether claimants eligible under Rosales were, in fact, paid retroactive benefits for the period

before the DRA was given effect. Although the district court

opined that there was not “any evidence” that CDSS was not

in compliance, it did not directly address the question whether

discovery should have been allowed, as requested, to develop

admissible evidence regarding compliance. We conclude on

de novo review that the district court should have addressed

the merits of the request to authorize discovery before denying the bulk of the motions to enforce the judgment. 

[4] In so determining, we begin from the recognition that

“[t]here is no question that courts have inherent power to

enforce compliance with their lawful orders through civil contempt.” Shillitani v. United States, 384 U.S. 364, 370 (1966)).

Here, Rosales requested limited discovery to aid the court in

determining whether CDSS had complied with a judgment in

her favor. The request was one the district court could have

granted, as part of its inherent power to enforce its judgments.

Cf. Richmark Corp. v. Timber Falling Consultants, Inc., 937

F.2d 1444, 1449 (9th Cir. 1991) (referencing post-judgment

discovery); Wilkinson v. FBI, 922 F.2d 555, 556-58 (9th Cir.

1991) (same), abrogated on other grounds by Kokkonen v.

Guardian Life Ins. Co. of America, 511 U.S. 375 (1994); Flores v. Arizona, 480 F. Supp. 2d 1157, 1159-60 (D. Ariz.

2007). See also, e.g., Natural Gas Pipeline Co. v. Energy

Gathering, Inc., 2 F.3d 1397, 1408-09 (5th Cir. 1993) (discussing the inherent power to order discovery and various

4492 STATE OF CALIFORNIA v. LEAVITT
exercises of that power); cf. Fed. R. Civ. P. 69(a)(2) (permitting discovery “[i]n aid of the judgment or execution” for

money judgments). 

[5] Indeed, a district court should give careful attention to

a request for discovery to establish noncompliance with one

of its judgments. Hallett, which is, as far as we can determine,

the only case of this court to address a failure to allow discovery concerning noncompliance with a judgment, demonstrates

as much. That case concerned a civil contempt motion for

noncompliance with a prison reform consent decree, filed

along with a motion to compel discovery. 296 F.3d at 739,

751. The district court held an evidentiary hearing on compliance, id. at 739, and further reviewed the materials subject to

the discovery request in camera, determining them to be

“minimally relevant,” before denying the discovery motion,

id. at 751. In that context, where evidence of compliance and

noncompliance had been throughly aired and the remaining

evidence was barely relevant, denying further discovery was

not an abuse of discretion. See also, e.g., Fehlhaber v. Fehlhaber, 664 F.2d 260, 263 (11th Cir. 1981) (finding no abuse

of discretion in a Rule 69 case where the district court denied

the request after conducting a “full adversary hearing” and

entering an injunction providing relief to the movant). Here,

however, there is no indication that the district court

addressed the discovery issue at all, much less with similar

care. 

[6] Given the posture of this case, we decide only whether

the district court should have exercised its discretion by

addressing the merits of the request to authorize discovery.

When answering the parallel question in the Rule 56(f) context, we bear in mind that “summary judgment should not be

granted while [an] opposing party timely seeks discovery of

potentially favorable information.” Clark, 460 F.3d at 1178

(quotation marks and citation omitted). To decide whether a

district court should have addressed such a request on the

merits, we therefore ask only whether the discovery request

STATE OF CALIFORNIA v. LEAVITT 4493
could have “provided potentially favorable information,” id.

at 1178 (internal quotation marks omitted), rendering summary judgment inappropriate. See also Qualls v. Blue Cross

of California, 22 F.3d 839, 844 (9th Cir. 1994) (considering

whether discovery would “have shed light on any of the issues

upon which the summary judgment decision was based”).

[7] We hold that a similar analysis applies in the context of

a motion to enforce a judgment. When considering whether to

permit discovery prior to resolution of such a motion, the kind

and amount of evidence of noncompliance required to justify

discovery is, necessarily, considerably less than that needed to

show actual noncompliance. If significant questions regarding

noncompliance have been raised, appropriate discovery

should be granted.12 And, just as a 56(f) movant need only

show that his or her discovery request could have “provided

potentially favorable information,” Clark, 460 F.3d at 1178

(internal quotation marks omitted), to warrant a remand on

appeal for a merits consideration of the discovery request, so

a movant who requested permission to engage in discovery as

part of a motion to enforce a judgment need only show on

appeal that the request might have generated information that

could raise significant questions concerning compliance. 

[8] Here, that standard is abundantly met. Information

already present in the record raises questions of noncompliance, quite possibly sufficient to justify granting the request

to authorize discovery. See Garrett, 818 F.2d at 1519 n.4

(“Without passing on the merits of plaintiff’s discovery

motion (a matter which should be addressed first by the district court), we note that the motion, on its face, does not

12Compare H. K. Porter Co. v. Goodyear Tire & Rubber Co., 536 F.2d

1115, 1122 (6th Cir. 1976) (approving a district court’s decision to deny

a request for post-judgment discovery arising from a fraud on the court

claim, and noting that “[t]o permit discovery after judgment in addition to

the extensive discovery ordered during the trial . . . it was at least necessary for the [defendant requesting discovery] to present some proof to

establish its . . . charges [of fraud].”). 

4494 STATE OF CALIFORNIA v. LEAVITT
appear to be entirely without merit.”). That information was

certainly sufficient at least to require the district court directly

to address the merits of the request. We set out the pertinent

information here, both to demonstrate that the request to

authorize discovery warranted careful consideration and to

provide some guidance to the district court as it considers

whether to permit limited discovery on remand: 

[9] First, as noted, Rosales’s counsel, an experienced

AFDC-FC benefits attorney, reported that in at least twelve

cases she had handled after the judgment on remand, officials

were still using pre-Rosales eligibility requirements. 

[10] Second, after the court-ordered eligibility review was

supposed to have been completed, CDSS stated that it did not

have the data Rosales’s counsel had requested demonstrating

that the review had occurred. But the All County Letter,

required by the August 2004 Order, directed the filing of

detailed claims forms with CDSS by April 30, 2005. Even

counties bearing no costs were directed to “complete and certify the form indicating zero expenditures.” So, if any payments were made pursuant to Rosales, at least some pertinent

data — namely, the number of people receiving payments as

a result of the reviews and the number of Rosales cases for

which AFDC-FC administrative costs were sought after the

reviews — should have been available from the forms. Also,

additional information should have been retained by the counties and available to CDSS, as the counties were ordered in

the All County Letter to “retain all supporting documentation

for audit purposes.” The record reflects that CDSS nonetheless maintained that the data was “not ascertainable from the

claims submitted by the counties,” that CDSS had “no such

data,” and that it had no obligation to collect evidence of compliance. The report of a complete information vacuum when

some information should have been available or obtainable is

itself indicative of possible noncompliance with the judgment.13

13At the time of the district court’s ruling, additional compliance information should have been available as a result of CDSS’s March 2006 All

STATE OF CALIFORNIA v. LEAVITT 4495
It is significant in this regard that CDSS, in both the district

court and this court, insisted that it bore no direct responsibility under the judgment to make sure that eligible applicants

are paid. Instead, CDSS has consistently maintained that it

was required only to issue directives to the counties to review

files and to make retroactive benefits payments to eligible

applicants, and then to pay for whatever benefits the counties

determined were due. In fact, the August 2004 Order imposes

an obligation on CDSS itself to pay retroactive Rosales benefits to all eligible applicants. The Order provides that, “[f]or

all foster care cases in which dependency jurisdiction was

open on or after March 3, 2003, [CDSS] shall make AFDCFC payments for the entire period subsequent to December

23, 1997, in which the child was entitled to AFDC-FC payments under [Rosales] and was otherwise eligible for such

benefits and payments were not paid.” As the Order did not

make that independent obligation delegable, CDSS was

obliged to comply with it, whether or not the counties carried

out the responsibilities placed upon them by the All County

Letter, and to develop or obtain the information needed to do

so. That CDSS has such a fundamental misunderstanding of

the Order is itself suggestive of noncompliance, and could

thus provide an additional basis for further inquiry into what

the agency did to comply with the judgment, other than sending out the All County Letter.14

[11] Third, the district court recognized that two of the five

cases of the moving caregivers might have ended in a wrongful benefits denial, but, after finding the evidence submitted

insufficient to determine whether they did or not, opined that

“if [CDSS] wrongly denied” benefits in “two or potentially

County Letter. That Letter, as we have noted, ordered the counties to “immediately ‘track’ all Rosales cases, for which federal care benefits were

paid starting on October 1, 2005, and thereafter.” 

14At oral argument, counsel for CDSS could not assure this Court that

any benefits had been paid as a result of the court-ordered review. 

4496 STATE OF CALIFORNIA v. LEAVITT
five cases,” it could still be in compliance with the court’s

Order. CDSS, however, was, as we have noted, ordered to pay

retroactive benefits for “all foster care cases . . . open on or

after March 3, 2003” (emphasis added) in which the child was

eligible under Rosales. So, a failure to pay in “two or potentially five cases” would be indicative of noncompliance. Notably, the district court could not, and did not, conclude from

the record that these two cases did not meet eligibility requirements. 

Fourth, it is noteworthy that in refusing to respond to the

request for production of documents that could have illuminated its compliance record, CDSS relied on the fact that the

district court had not authorized post-judgment discovery. It

should therefore have been clear to the court that Rosales and

the other caregivers could not come forward with further evidence of noncompliance without an order authorizing discovery. 

[12] In sum, Rosales appears to have a strong case for further discovery, although we need not now decide the merits

of that question. See Clark, 460 F.3d at 1178. It is at least

clear that, given the indications of noncompliance, and given

that Rosales has made some specific discovery requests and

thereby indicated the nature of the discovery sought, the district court should not have implicitly denied the request to

authorize discovery without any merits consideration of the

request. 

[13] We therefore reverse the district court’s denial of the

motions to enforce judgment filed by Rosales and the other

caregivers insofar as the court failed to address the request to

authorize discovery, and remand for consideration of the

request in light of this opinion.15 We affirm the Order granting

15On remand, the district court could appropriately decide to allow discovery directed towards determining what steps, if any, CDSS took to

ascertain which children were “entitled to AFDC-FC payments under

STATE OF CALIFORNIA v. LEAVITT 4497
relief from judgment prospectively from June 9, 2006, and the

refusal to require that CDSS issue NOAs. 

If the district court allows discovery and that discovery provides evidence of noncompliance, Rosales and the other caregivers may, of course, renew their motions to enforce the

judgment as appropriate. 

The parties shall bear their own costs.

AFFIRMED in part, REVERSED in part, and

REMANDED.

[Rosales]” and so should have been paid by CDSS under the terms of the

judgment; whether all eligible applicants were in fact paid benefits pursuant to the judgment; and whether CDSS received the information from the

counties required by the All County Letter and, if so, what that information conveys regarding the reviews conducted, the determinations made,

and the benefits paid. 

4498 STATE OF CALIFORNIA v. LEAVITT