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MARYLAND DEPT. OF HUMAN RESOURCES v. SULLIVAN

May 23, 1990

MARYLAND DEPARTMENT OF HUMAN RESOURCES, et al., Plaintiffs,
v.
LOUIS W. SULLIVAN, M.D., Secretary of Health and Human Services, et al., Defendants


Stanley S. Harris, United States District Judge.


The opinion of the court was delivered by: HARRIS

In July of 1989, the Maryland Department of Human Resources filed a complaint challenging defendants' use of Program Instruction No. 82-06 (PI 82-06) as arbitrary and capricious. Defendants filed a motion for judgment on the pleadings and for dismissal. Plaintiffs filed a cross-motion for judgment, asking this Court to invalidate PI 82-06, to remand for further proceedings, and to award to plaintiffs fees and costs incurred as a result of a request under the Freedom of Information Act (FOIA). Upon consideration of defendants' motion, plaintiffs' opposition thereto, plaintiffs' motion, defendants' opposition thereto, and the entire record, defendants' motion is granted.

 Background

 Congress enacted the Adoption Assistance and Child Welfare Act (the Act) in 1980, which amended Title IV-B of the Social Security Act and created Title IV-E to reimburse states for foster care maintenance. Adoption Assistance and Child Welfare Act of 1980, Pub. L. No. 96-272, 94 Stat. 519 (1980) (codified at 42 U.S.C. § 627 (1988)). The Act provides additional appropriations to a state if the state:

 
(1) has conducted an inventory of all children who have been in foster care under the responsibility of the State for a period of six months preceding the inventory, and determined the appropriateness of, and necessity for, the current foster placement, whether the child can be or should be returned to his parents or should be freed for adoption, and the services necessary to facilitate either the return of the child or the placement of the child for adoption or legal guardianship; and (2) has implemented and is operating to the satisfaction of the Secretary --
 
(A) a statewide information system from which the status, demographic characteristics, location, and goals for the placement of every child in foster care or who has been in such care within the preceding twelve months can readily be determined;
 
(B) a case review system (as defined in section 675(5) of this title) for each child receiving foster care under the supervision of the State; and
 
(C) a service program designed to help children, where appropriate, return to families from which they have been removed or be placed for adoption or legal guardianship.

 42 U.S.C. § 627.

 Congress explicitly defined a "case review system" as a procedure for assuring that each state (A) designs a case plan for each child in the child's best interests, (B) periodically reviews the status of each child no less than every six months to determine the necessity and appropriateness of a placement, and (C) holds a dispositional hearing for each child no later than 18 months after an original placement to determine future status. 42 U.S.C § 675.

 In June of 1982, defendants issued PI 82-06. PI 82-06 explicitly sets out the language of § 627 and describes both a sampling method and pass rates based on those samples.

 Pursuant to this guideline, plaintiffs submitted to the regional office of the Administration for Children, Youth and Families (ACYF) certification for eligibility of § 627 funds for fiscal years 1981, 1982, and 1983. *fn1" The regional office recommended eligibility for 1981, but recommended denial of funds for 1982 and 1983. The ACYF Commissioner afforded plaintiffs the opportunity to submit additional information, upon which plaintiffs presented further evidence. The Commissioner's final determination granted plaintiffs § 627 funds for 1981, but denied eligibility for fiscal years 1982 and 1983. Plaintiffs appealed these later two decisions to the Departmental Appeals Board (DAB). After several remands and the submission of more information to ACYF, the DAB affirmed ACYF'S decision as to the 1982 funds and remanded the claim for the 1983 funds. ACYF has made no final decision as to the 1983 funds.

 In March of 1989, plaintiffs requested information pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1988). Defendants responded in full on June 20, 1989, 20 days after plaintiffs filed their complaint with this Court.

 Discussion

 In their motion for summary judgment, defendants ask this Court to affirm the decisions of the DAB and dismiss plaintiffs' complaint with prejudice. In support of their motion, defendants make three arguments. First, they argue that PI 82-06 is an interpretive rule, not subject to notice and comment. Second, defendants claim that any allegations plaintiffs make concerning the 1983 funds are not yet ripe for review. Third, defendants contend that plaintiffs are not entitled to, or eligible for, fees incurred in the FOIA request.

 In their cross-motion for summary judgment, plaintiffs ask this Court to invalidate PI 82-06, to remand for further proceedings, and to award fees and costs under the FOIA. Plaintiffs offer three arguments in support of their motion: (1) PI 82-06 is a legislative rule, and thus defendants were arbitrary and capricious in not utilizing a notice and comment procedure; (2) the 1983 funds claim is timely because it challenges only defendants' reliance on a legally deficient procedure as arbitrary and capricious -- the claim is not a ...


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