A.S.W. v. Mink Ninth Circuit Opinion

A.S.W. v. Mink, a class action lawsuit, challenged the Oregon Department of Human Services (DHS) actions to unilaterally reduce and, in some cases, end Adoption Assistance Program (AAP) payments for children with special needs and deny families the right to an administrative fair hearing to contest DHS’s actions. Oregon implemented a unilateral across the board reduction in AAP payments and threatened families that did not agree to accept the reduction with termination of payments. AAP is a state and federally funded program designed to encourage the adoption of abused and neglected children in foster care by removing the financial disincentive to adoption and providing adoptive families with financial support to meet these children’s needs. In the absence of this program, many families could not adopt foster children and continue to provide them with the support and services they need.

The District Court of Oregon granted Oregon’s motion to dismiss the case finding that the federal AAP statute gave adoptive families the right to sue on their AAP agreements in state court but did not give adoptive families the right to sue in federal court under the federal statute. The federal district court in Oregon dismissed the case finding that AAP recipients did not have the right to enforce the provisions of the federal AAP statute. The 9th Circuit reversed the district court order finding that the adoptive families have the right to enforce the federal AAP laws requiring that AAP payments be individually determined by agreement and that families be given an opportunity to contest the reduction of benefits in an administrative hearing. The U.S. Supreme Court subsequently denied Oregon’s Petition for Certiorari. The A.S.W. v. Oregon, 424 F.3d 970, 976 (9th Cir. 2005) decision is significant in that it is one of only a few post- Gonzaga (Gonzaga Univ. v. Doe, 536 U.S. 273) cases to find that recipients of a federal program have a right to bring suit to enforce the provisions of the federal statute where the statute does not specifically provide recipient with the right to sue. Ths case has settled.

The law firm Johnson, Clifton, Larson & Schaller of Eugene, Oregon serves as co-counsel.