July 28, 2008

ASW v. Oregon Settles

The Youth Law Center has settled A.S.W. v. Oregon (aka A.S.W. v. Mink), an Adoption Assistance Program (“AAP”)class action lawsuit filed on behalf of families in Oregon who adopted children from the foster care system and had their AAP payments illegally cut by the state. The law firm of Johnson, Clifton, Larson & Schaller of Eugene, Oregon serves as co-counsel. A.S.W. v. Oregon challenged Oregon’s across-the-board 7.5% “budgetary” reduction in AAP payments for every adoptive family receiving AAP benefits. 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 through a negotiated agreement 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 settlement provides for the repayment to families of AAP funds that were improperly reduced. The parties are awaiting approval of the settlement by the court after a fairness hearing scheduled for October of 2008.

A.S. W. was originally filed in February of 2002 after Oregon implemented an across-the-board reduction in AAP payments and denied adoptive families any administrative appeal rights to challenge the reduction. Eight months after A.S.W. was filed, the state of Oregon restored AAP payments to the pre-reduction levels, but refused to repay the amounts illegally reduced or acknowledge that AAP recipients were entitled to individualized payment determinations and not subject to across-the-board reductions in AAP assistance. We continued to litigate the case. 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 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 9th Circuit denied Oregon’s petition for rehearing en banc(a hearing to reconsider the appeal decision before a larger number of 9th circuit judges) . The United States Supreme Court subsequently declined to hear Oregon’s petition for certiorari to reverse the 9th Circuit decision. The ASW 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, 122 S. Ct. 2268 (2002) ) 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 recipients with the right to sue.