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March 11, 1985

ROBERT PRESLEY, on behalf of himself and all other persons similarly situated, Plaintiffs, v DONALD T. REGAN, as Secretary of the United States Department of the Treasury and MARGARET HECKLER, as Secretary of the United States Department of Health and Human Services, Defendants.

The opinion of the court was delivered by: MCCURN



 Plaintiff Robert Presley brings this action on behalf of himself and others similarly situated for declaratory and injunctive relief against the Secretary of the Treasury and the Secretary of Health and Human Services. *fn1" The action challenges the constitutionality of the federal-state tax intercept program created by section 2331 of the Omnibus Budget Reconciliation Act of 1981, Pub. L. No. 97-35, 95 Stat. 357, 860 (1981) ["tax intercept program" or "program"]. *fn2" Plaintiffs contend that the tax intercept program is unconstitutional because it allows the government to deprive them of their property, namely their tax refunds, without due process of law.Plaintiffs seek injunctive relief prohibiting the defendants from withholding or interfering with their federal tax refunds and a declaratory judgment that the tax intercept program is unconstitutional because it fails to provide plaintiffs with a full and fair hearing prior to interception of their refunds.

 Presently before the court are cross motions for summary judgment. For the reasons set forth below, the plaintiffs' motion for summary judgment is denied and the defendants' motion for summary judgment is granted. The defendants have also made a motion to join the State of Michigan as an indispensable party. The motion to join is denied.


 In 1976 plaintiff Robert Presley married Shirley Ann Smith in Ithaca, New York. They subsequently had two children. In 1977, Mrs. Presley took the children and moved to Michigan where she commenced divorce proceedings against the plaintiff. In 1979, Mr. Presley received two forms in the mail; the forms were related to the Michigan divorce proceeding and were captioned "Consent to Jurisdiction" and "Appearance." Mr. Presley cannot read or write, but he ias able to sign his name. Believing that the forms would allow his wife to obtain a divorce, Mr. Presley signed the forms, apparently unaware that signing would allow the Michigan courts to enter a support judgment against him.

 On March 21, 1980, the Michigan court entered a default judgment of divorce against Presley and ordered him to pay $40 per week support for each of his two children. Mr. Presley never submitted any financial information to the Michigan court, has never been to Michigan, and has never paid any of the support payments ordered by the Michigan court.

 Mrs. Presley applied for welfare benefits in Michigan. As a prerequisite to receiving benefits, she assigned her right to receive child support payments to the State of Michigan. *fn3" As a result, Mr. Presley now owes his past due child support payments to Michigan rather than to his former wife. The support arrearages have continued to accrue, and the latest delinquency notice indicates that he owes more than $15,000 to the State of Michigan.

 In April 1982, Mr. Presley received notification from the Internal Revenue Service ["IRS"] that his 1981 federal income tax refund had been intercepted and sent to the Michigan State welfare agency pursuant to the tax intercept program. *fn4" The tax intercept program authorizes the seizure of federal tax refunds to reimburse state welfare agencies for monies spent to aid families who have not received support payments from a parent obligated to make such payments. Mr. Presley contends that the tax intercept program is constitutionally invalid and that the actions of the defendants in offsetting any overpayment of federal income taxes against past-due child support payments violates the plaintiffs' right to procedural due process of law under the Fifth Amendment of the U.S. Constitution. Plaintiffs maintain that they are entitled to notice and a meaningful opportunity to be heard prior to being deprived of their federal income tax refund. The government contends that Mr. Presley and the class he represents have received all the process they are due.


 Under Fed. R. Civ. P. 56(c), a party is entitled to summary judgment when it has demonstrated "the absence of any material factual issue genuinely in dispute" and, that it is entitled to judgment "as a matter of law." See Universal City Studios, Inc. v. Nintendo Co., Ltd., 746 F.2d 112, 115 (2d Cir. 1984); Project Release v. Prevost, 722 F.2d 960, 968 (2d Cir. 1983). Both parties are essentially in agreement regarding the procedures that were followed in Mr. Presley's case. Before turning to the merits of the plaintiffs' due process claim, a closer examination of the tax intercept program's structure and procedures is warranted.

 The tax intercept program was enacted in 1982 as an amendment to the Child Support Enforcement Act, 42 U.S.C. § 651 et seq. The legislative history of the statute and amendment indicates that Congress was concerned about the growing problem of parents defaulting on their child support obligations with a consequent drain on limited state welfare resources. See S. Rep. No. 93-1356, 93rd Cong., 2nd Sess., reprinted in 1974 U.S. Code Cong. & Ad. News 8133, 8145-50; S. Rep. No. 97-139, 97th Cong., 1st Sess. reprinted in 1981 U.S. Code Cong. & Ad. News 396, 1347. Under the tax intercept program, any tax refund due to the defaulting parent may be intercepted by the IRS and paid to the state agency that has provided aid to the defaulting parent's family. However, before the tax intercept program can be utilized by the States, certain prerequisites have to be met.

 The normal progression of events is as follows. The custodial parent, usually the mother, seeks a divorce from the non-custodial parent. An order of support is entered against the non-custodial parent. The non-custodial parent then defaults on the support payments, often forcing the custodial parent to apply for welfare benefits. The custodial parent then assigns any rights to child support payments to the state as a condition of eligibility for welfare. When the non-custodial parent is more than $500.00 in arrears, the state welfare agency reports his name to the Secretary of Health and Human Services. The Secretary, through the Office of Child Support Enforcement, then ascertains whether a valid support order exists and whether the non-custodial parent is in default. If so, the Secretary of Health and Human Services certifies the delinquent parent's name to the Secretary of the Treasury. The Secretary of the Treasury then directs the IRS to withhold as much of the delinquent parent's federal tax refund as will satisfy the outstanding support payments. The refund is then transferred to the state welfare agency to satisfy the parent's debt. A recent amendment to the statute requires the state to send the delinquent parent notice or the impending intercept before his name is certified to the Secretary of the Treasury. *fn5" This amendment renders Mr. Presley's arguments regarding notice moot as all delinquent parents are now entitled to notice before their tax refunds are intercepted and transferred. *fn6" The notice informs the taxpayer of the amount of his refund, the state agency to which it was sent, and the procedures to be followed to contest the state's determination that past-due support is owned or the amount of past-due support owed. *fn7"

 The tax intercept program does not, however, afford delinquent parents an opportunity for a hearing before the tax refund is transferred to the state agency. Mr. Presley argues that the failure to provide delinquent parents with a pre-transfer ...

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