basis for federal jurisdiction. See Hampshire, 892 F. Supp. at 1330.
Secondly, the "domestic relations exception," even when applicable, is not an absolute exception. The Supreme Court has made clear that the exception would prevent a federal court sitting in diversity from deciding core issues of family law such as issuing a divorce, alimony, or child support decrees. Ankenbrandt v. Richards, 504 U.S. 689, 703, 119 L. Ed. 2d 468, 112 S. Ct. 2206 and n.6 (1992). Enforcing such a decree, however, was found not to cut to the core of domestic relations issues and therefore need not be precluded. Id. at 701 (discussing Barber v. Barber, 62 U.S. (21 How.) 582, 16 L. Ed. 226 (1858)). Nor does this exception preclude a federal court sitting in diversity from hearing a tort claim for personal injury brought by a child for injury inflicted by a parent. Id. at 704. The purpose and scope of the CSRA, and the role of the court in deciding a case brought under it, is clearly more akin to an enforcement action or child-against-parent personal injury action than a core matter of family law. See Kegel, 916 F. Supp. at 1235; Hopper, 899 F. Supp. at 394. Defendant insists, in his papers and again at oral argument, that it is traditionally left to the states to regulate matters of "individual acts within the household." Passing on Congress's plenary Commerce Clause power, the facts of this case belie that description.
Defendant argues that the CSRA could, though not necessarily in his case, require a federal court to go behind the support order itself, especially when it has been entered on default. Defendant, however, is mistaken because collateral attack of state court orders which are elements in federal criminal statutes is exceedingly limited. See, e.g., Custis v. United States, 511 U.S. 485, 128 L. Ed. 2d 517, 114 S. Ct. 1732, 1738 (1994) (denying right to collaterally attack prior convictions used for sentencing enhancement beyond Sixth Amendment right to counsel); Lewis v. United States, 445 U.S. 55, 65, 63 L. Ed. 2d 198, 100 S. Ct. 915 (defendant charged under federal statute with unlawful possession of firearm by a felon will not be heard to collaterally attack the constitutionality of underlying state conviction).
Defendant next argues that the CSRA should be void for vagueness because it is "void on its face and devoid of the jurisdictional element required to bring on Federal intervention." Deft. Reply Mem. of Law at 7. I cannot agree with either assertion. First, as noted above, the CSRA, unlike the School Zones Act, contains an express jurisdictional element. Second, as stated in Lopez, the purpose of the jurisdictional element is to "ensure, through a case-by-case inquiry, that the [regulated activity] in question affects interstate commerce." Lopez, 115 S. Ct. at 1631 (emphasis added). Nichols, however, posits this aspect of his motion on an inquiry into a hypothetical case which, in this regard, is diametrically opposed to his own, namely a case in which it is the custodial parent who leaves the state which issued the order of support while the non-custodial parent remains. I need not decide that hypothetical case. See Chapman v. United States, 500 U.S. 453, 467, 114 L. Ed. 2d 524, 111 S. Ct. 1919 (vagueness challenges not invoking the First Amendment must be examined in light of the facts of the case presented), reh'g denied, 501 U.S. 1270, 115 L. Ed. 2d 1101, 112 S. Ct. 17 (1991). Before me today is a defendant who, not once but twice, has fled to another state to avoid court-ordered child-support payments. As to that defendant, that is, Nichols, there is no articulated challenge that the CSRA is vague. His argument on this point is a non-starter. See United States v. Raines, 362 U.S. 17, 21, 4 L. Ed. 2d 524, 80 S. Ct. 519 (1960); United States v. Salerno, 481 U.S. 739, 745, 95 L. Ed. 2d 697, 107 S. Ct. 2095 (1987). I nevertheless find affirmatively that the CSRA contains a clear and readily comprehensible statement of sufficient definiteness to allow an ordinary person to understand the conduct it forbids and that the language of the CSRA does not lend itself to arbitrary or discriminatory enforcement. See Kolender v. Lawson, 461 U.S. 352, 357, 75 L. Ed. 2d 903, 103 S. Ct. 1855 (1983); United States v. Nadi, 996 F.2d 548, 550 (2d Cir.), cert. denied, 510 U.S. 933, 126 L. Ed. 2d 311, 114 S. Ct. 347 (1993).
V. Equal Protection
Defendant offers a final challenge to the CSRA based on the Equal Protection Clause of the Fourteenth Amendment, claiming that the Act "promotes selective prosecution of males." Deft. Mem. in Support at 11. In support, defendant asserts that approximately 86% of non-custodial parents are male, that all the cases he has reviewed in preparing his defense involve male defendants, and that the CSRA is therefore "aimed precisely at men." Id. This argument fails.
The CSRA is a gender-neutral statute, targeting non-custodial parents regardless of their sex. An equal protection challenge to a facially neutral statute triggers a two-pronged analysis. "The first question is whether the statutory classification is indeed neutral in the sense that it is not gender-based. If the classification itself, covert or overt, is not based upon gender, the second question is whether the adverse effect reflects invidious gender-based discrimination." Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256, 274, 60 L. Ed. 2d 870, 99 S. Ct. 2282 (1979) (citing Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 50 L. Ed. 2d 450, 97 S. Ct. 555 (1977)); see also Washington v. Davis, 426 U.S. 229, 239-42, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (1976).
Even if I found defendant's bare statistics and factfinding to constitute a reliable reflection of gender-based adverse impact, which is relevant but not determinative, id., there is not one scintilla of evidence that the CSRA reflects invidious discrimination on the part of its framers. See Washington, 426 U.S. at 242.
Defendant, citing Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971), submits that I should refrain from deciding this case "in furtherance of the promotion of federal-state comity," Deft. Mem. in Support at 9. Defendant argues that in light of the recent New York State Supreme Court settlement agreement and order retaining exclusive jurisdiction over that matter -- only reached after defendant had been arrested and returned to this district as a part of the prosecution of the present matter -- proceeding in this forum would "possibly frustrate ongoing State Court jurisdiction." Id. at 10. I disagree.
I have considered the facts of this case in light not only of the abstention doctrine as articulated in Younger, but as articulated in Burford v. Sun Oil, 319 U.S. 315, 87 L. Ed. 1424, 63 S. Ct. 1098, reh'g denied, 320 U.S. 214, 87 L. Ed. 1851, 63 S. Ct. 1442 (1943), Railroad Comm'n of Texas v. Pullman, 312 U.S. 496, 85 L. Ed. 971, 61 S. Ct. 643 (1941), and Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 47 L. Ed. 2d 483, 96 S. Ct. 1236, reh'g denied sub. nom., Akin v. United States, 426 U.S. 912 (1976). I find that abstention in this case would be inappropriate and therefore retain jurisdiction. See Collins, 1996 WL 189727, at *3-5 (refusing to abstain from CSRA case); Hopper, 899 F. Supp. at 393 (same); Hampshire, 892 F. Supp. at 1331 (same).
For the reasons stated above, defendant's motion to dismiss is denied. The parties are directed to appear for a conference at 500 Pearl Street, Courtroom 12A, on June 6, 1996 at 3:00 pm.
Dated: New York, New York
May 31, 1996
LORETTA A. PRESKA, U.S.D.J.