Case 2:04-cv-00348-MHT-CSC Document 53 Filed 04/12/05 Page 1 of 27
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF ALABAMA
`NORTHERN DIVISION
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`)
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`))
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`))
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`) CIVIL ACTION NO. 2:04cv348-T
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`))
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`)
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`JAMES R. BLACKSTON and
`BRADLEY W. BARBER,
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`Plaintiffs,
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`v.
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`STATE OF ALABAMA, et al.,
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`Defendants.
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`RECOMMENDATION OF THE MAGISTRATE JUDGE
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`I. INTRODUCTION
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`In this pro se 42 U.S.C. § 1983 action, James R. Blackston (“Blackston”) and Bradley
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`W. Barber (“Barber”) claim that the defendants violated their constitutional rights as well as
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`state law by failing to adhere to the terms of a 2003 settlement agreement which terminated
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`a previous case they had filed in this court. The plaintiffs name as defendants Gorman
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`Houston, former Acting Chief Justice of the Alabama Supreme Court; L.E. Gosa, Chairman
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`of the Alabama Supreme Court Advisory Committee on Child Support Guidelines and
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`Enforcement (“the Advisory Committee”); Randy Helms, Director of the Administrative
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`Office of Courts; Alex Jackson, staff attorney for the Alabama Supreme Court; Bob Maddox,
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`an employee of the Administrative Office of Courts; and the State of Alabama. The court
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`has jurisdiction of the plaintiffs’ federal claims pursuant to 28 U.S.C. § 1331 and the
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`plaintiffs’ state law claims pursuant to 28 U.S.C. § 1367. Presently before the court for
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`resolution is the defendants’ motion to dismiss (doc. # 23) supported by their brief (doc. #
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`Case 2:04-cv-00348-MHT-CSC Document 53 Filed 04/12/05 Page 2 of 27
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`24) as well as the plaintiffs’ response in opposition to the motion to dismiss (doc. # 27). For
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`the reasons which follow, the court concludes that the plaintiffs’ claims should be dismissed,
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`some with prejudice and some without prejudice.
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`II. STANDARD OF REVIEW
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`“When a federal court reviews the sufficiency of a complaint, before the reception of
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`any evidence either by affidavit or admissions, its task is necessarily a limited one.” Scheuer
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`v. Rhodes, 416 U.S. 232 (1974). “The issue is not whether a plaintiff will ultimately prevail
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`but whether the claimant is entitled to offer evidence to support the claims. Indeed it may
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`appear on the face of the pleadings that a recovery is very remote and unlikely but that is not
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`the test.” Id. “Moreover, it is well established that, in passing on a motion to dismiss,
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`whether on the ground of lack of jurisdiction over the subject matter or for failure to state a
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`cause of action, the allegations of the complaint should be construed favorably to the
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`pleader.” Id.
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`In appraising the sufficiency of the complaint, courts follow the well-established rule
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`that a complaint should not be dismissed for failure to state a claim unless it appears beyond
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`a doubt that the plaintiffs can prove no set of facts in support of their claims which would
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`entitle them to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957)(footnote omitted); see
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`also Gardner v. Toilet Goods Assn., 387 U.S. 167, 172 (1967). The threshold for a complaint
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`to survive a motion to dismiss is “exceedingly low.” Ancata v. Prison Health Services, Inc.,
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`769 F.2d 700, 703 (11th Cir. 1985).
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`2
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`III. FACTS1 and PROCEDURAL HISTORY
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`A. General Background
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`In 1986, the Chief Justice of the Alabama Supreme Court established the Alabama
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`Supreme Court Advisory Committee on Child Support (“the Advisory Committee”) to study
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`and make recommendations to the state courts on issues concerning the child support
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`guidelines. The plaintiffs are divorced fathers and active members of the National Congress
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`for Fathers and Children. As advocates of this group, the plaintiffs have attended committee
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`meetings and filed lawsuits challenging the Advisory Committee’s determinations regarding
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`the method of calculating the amount of child support payments that non-custodial parents
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`are required to pay as well as challenging the manner in which the committee meetings are
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`conducted.
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`B. The Initial Lawsuit
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`In 1993, the plaintiffs filed in this court a lawsuit against the State of Alabama and
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`members of the Advisory Committee, alleging civil rights violations arising from a March
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`1993 committee meeting. They claimed that the defendants engaged in a conspiracy and
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`1On a motion to dismiss, the court must take the facts as stated in the complaint as true. Of course,
`the same is not true with respect to the legal conclusions asserted in the complaint.
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`3
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`Case 2:04-cv-00348-MHT-CSC Document 53 Filed 04/12/05 Page 4 of 27
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`violated 42 U.S.C. § 6672 by holding “secret meetings” which deprived non-custodial fathers
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`of equal protection in developing the Alabama Child Support Guidelines. See Blackston v.
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`State of Alabama, No. 2:93cv623-H (M.D. Ala. 1996). Judge Truman M. Hobbs concluded
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`that the conspiracy claim was not cognizable and that 42 U.S.C. § 667 did not create a federal
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`right that the plaintiffs could enforce in federal court. The court also dismissed the plaintiffs’
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`remaining claims under FED.R.CIV.P. 12(b)(6).
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` On appeal, the Eleventh Circuit Court of Appeals affirmed that decision with one
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`exception: the dismissal of the plaintiffs’ First Amendment claim concerning the tape
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`recording of proceedings.3 See Blackston v. State of Alabama, 30 F.3d 117, 120 (11th Cir.
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`1994). In December 1995, the parties entered into a “Release and Settlement Agreement.”
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`(Pls’ Ex. A.) As part of the agreement, the defendants agreed to assign Blackston to the
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`Advisory Committee as a representative of the National Congress for Fathers and Children.4
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`2This statute, 42 U.S.C. § 667, requires as a condition of receipt of federal funds each state to
`“establish guidelines for child support award amounts within the State.”
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`3 The Court specifically determined the following:
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`Judge Durrough did not deny the plaintiffs access to the Committee meeting
`and its deliberations, and did not prohibit them from communicating what
`they observed to others. However, his attempt to prohibit them from
`recording the proceedings did have some impact on how they were able to
`obtain access to and present information about the Committee and its
`proceedings. Thus, Judge Durrough’s actions touched on expressive
`conduct protected by the Free Speech Clause of the First Amendment.
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`Blackston v. State of Alabama, 30 F.3d 117, 120 (11th Cir. 1994).
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`4 In addition, the parties agreed that the agreement “is enforceable as if a contract between the
`parties” and that “a violation of the agreement may be used as grounds for a lawsuit for breach of contract
`in state or federal court.” (Pls’ Ex. A at 6.)
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`(continued...)
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`4
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`Case 2:04-cv-00348-MHT-CSC Document 53 Filed 04/12/05 Page 5 of 27
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`(Id. at 5.)
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`C. The Second Lawsuit
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`Unfortunately, the plaintiffs were dissatisfied with the way the Advisory Committee
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`continued to conduct its meetings and believed that the defendants were violating the terms
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`of the 1995 settlement agreement, the plaintiffs filed another lawsuit in this court against the
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`State of Alabama and several members of the Advisory Committee on March 25, 1999. See
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`Blackston v. State of Alabama, No. 2:99cv295 (M.D. Ala. 2003). In this second lawsuit, the
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`plaintiffs asserted that the defendants violated the First Amendment by entering into a
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`contract agreement with Policy Studies, Inc.5 (“Policy Studies”) without consulting other
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`committee members. The plaintiffs further contended that the defendants violated their
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`constitutional rights by asking Blackston and other members to participate in committee
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`activities by mailing comments about Policy Studies’ report to the Administrative Office of
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`Courts rather than having in-person meetings. The plaintiffs also claimed that the defendants
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`violated state and federal law by breaching several terms of the settlement agreement,
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`misappropriating federal funds, engaging in a conspiracy and pattern of racketeering
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`activities, and committing mail and wire fraud. The court granted the defendants’ motion to
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`dismiss all of the plaintiffs’ claims, except the plaintiffs’ state law claims for breach of
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`4(...continued)
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`5 Policy Studies, Inc., is a business hired by the State of Alabama to update and report on the schedule
`of child support obligations.
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`5
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`Case 2:04-cv-00348-MHT-CSC Document 53 Filed 04/12/05 Page 6 of 27
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`contract.6
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`In December 2003, the parties entered into another settlement agreement, in which the
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`defendants agreed to appoint Blackston as a member and Barber as an alternate member of
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`the Advisory Committee. In addition, the defendants agreed to allow the public to attend
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`meetings, convene a new committee, provide an update of the child support schedule, and
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`hold an official meeting within a certain time frame. The parties also agreed that the
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`settlement agreement and release “[were] enforceable as a contract” and that a “violation of
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`the agreement may be used as grounds for a breach of contract suit in federal or state court.”
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`(Pls’ Ex. B at 7.) On that basis, then Chief Judge W. Harold Albritton incorporated the
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`settlement agreement into the final judgment, ordered the parties “to abide by all terms of the
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`Agreement,” and dismissed the case with prejudice.
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`D. The Present Lawsuit
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`According to the plaintiffs’ allegations, their beliefs that the defendants would conduct
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`Advisory Committee meetings in conformance with their wishes and the settlement
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`agreement were short-lived. The defendants failed to convene a new committee meeting
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`until approximately three months after the date specified in the agreement, failed to include
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`Blackston and Barber in the decision to hire a specific vendor, and chose Policy Studies as
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`the sole vendor to update the child support schedule. In addition, the March 2004 meeting
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`6 The District Court declined to adopt the Magistrate Judge’s Recommendation dismissing the breach
`of contract claim pursuant to FED.R.CIV.P. 12(b)(6) because there was “no motion asking the court to re-visit
`the propriety of the breach of contract claim under Rule 12(b)(6).” Blackston v. State of Alabama, No. 99-A-
`295-N (Doc. # 164 at 3).
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`6
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`was held in the Alabama Judicial Building, which was guarded by law enforcement officers
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`who restricted members of the public from entering the building without “good reason” and
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`prevented them from accessing “most of the building.” (Pls’ Comp. at 17.) All guest
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`speakers were allowed only ten minutes to give their presentations during the meeting and,
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`although four of the committee members failed to attend the public hearing on March 11,
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`2004, these members participated in the committee meeting on March 12, 2004. The
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`defendants also failed to notify Barber about an April 2004 meeting. The plaintiffs filed the
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`instant lawsuit on April 14, 2004.
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`III. The Plaintiffs’ Claims
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`In their complaint, the plaintiffs raise the following claims:
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`(1)
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`The defendants acted in contempt of the court’s December 24,
`2003 order because:
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`(a)
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`(b)
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`©
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`(d)
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`(e)
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`They failed to convene a new committee within
`three months.
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`They ensured that Policy Studies would be the
`sole vendor to update the Child Support Schedule
`in violation of the 1999 and 2003 settlement
`agreements.
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`They failed to include the plaintiffs in the vendor
`selection process.
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`They failed to conduct open and public meetings.
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`They failed to follow the “Rules of Order.”
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`Case 2:04-cv-00348-MHT-CSC Document 53 Filed 04/12/05 Page 8 of 27
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`(f)
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`(g)
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`They conducted meetings without a quorum of
`members.
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`They failed to treat Barber as an alternate member
`of the Advisory Committee.
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`(2)
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`(3)
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`The defendants breached the 2003 settlement agreement, acted
`fraudulently and in bad faith, and engaged in intentional
`interference with contractual relations by failing to convene a
`new committee within three months and failing to include the
`plaintiffs in the selection of vendors.
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`The defendants violated the First Amendment by sending a
`copyrighted child support schedule to committee members, thus
`preventing the plaintiffs from disseminating information to their
`constituents. In addition, the defendants violated the plaintiffs’
`right to disseminate information by failing to provide them
`copies of the report in “Adobe Acrobat” format.
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`(4)
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`The defendants violated the Fourteenth Amendment and Article
`I, Sections 6 & 13 of the Alabama Constitution because:
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`(a)
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`(b)
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`©
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`They denied the plaintiffs “the right to search the
`PDF formatted files containing Policy Studies
`updated child support schedule while divorce and
`child support attorneys were granted that right.”
`(Pls’ Comp. at 42.)
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`The Advisory Committee gives the President of
`the Alabama Child Support Association
`(“ASCA”) preferential
`treatment over
`the
`President of the National Congress for Fathers
`and Children because the plaintiffs believe that
`the ASCA approved of the policies prior to the
`March 11, 2004 meeting.
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`They failed to assemble a proper quorum for the
`March and April 2004 meetings. Specifically, the
`defendants failed to “select a cross section of
`committee members from all entities concerned
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`Case 2:04-cv-00348-MHT-CSC Document 53 Filed 04/12/05 Page 9 of 27
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`(d)
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`with updating child support guidelines” and
`“padded
`the Committee with unqualified
`individuals,” such as judges, lawyers, and
`Alabama Department of Human Resources
`employees who are untrained in “forensic and
`business economics.” (Id., at 46.)
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`They violated the Due Process Clause and treated
`the plaintiffs “differently from others similarly
`situated” by “fail[ing] to convene Committee
`meetings and public hearings within six (6)
`months” and “fail[ing] to solicit comparable
`entities and include Blackston and Barber in the
`vendor selection process to update the child
`support schedule and failing to properly open the
`Committee meetings to the public and provide
`records on the vendor selection process.” (Id., at
`48.)
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`(5)
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`(6)
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`(7)
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`The defendants violated Alabama’s Open Meetings Law,
`§ 13A-14-2, Ala. Code 1975, by holding committing meetings
`in the Alabama Judicial Building and failing to notify major
`television and radio stations about the event.
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`The defendants violated Alabama’s Open Records Law, § 36-
`12-40, Ala. Code 1975, by refusing to produce correspondence
`allegedly sent to 1100 potential vendors and 29 universities.
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`Alabama’s Child Support Guidelines violate the Equal
`Protection Clause, the Due Process Clause, 42 U.S.C. § 667, and
`45 C.F.R. 302.56(h).
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`III. DISCUSSION
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`A. The First Amendment Claims
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`The court will first address the plaintiffs’ contention that their First Amendment rights
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`were violated because the updated child support schedule prepared by Policy Studies is
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`9
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`Case 2:04-cv-00348-MHT-CSC Document 53 Filed 04/12/05 Page 10 of 27
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`copyrighted. Specifically, the plaintiffs assert that, as a result of the copyright, they were
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`“forced to deny their constituents and the general public of information necessary to make
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`informed decisions about Alabama’s ongoing child support guidelines review.” (Pls’ Comp.
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`at 38.) In addition, the plaintiffs assert that their “right to disseminate information” was
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`violated because the report was not provided to them in “Adobe PDF format.” (Id. at 38.)
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`During oral argument on March 29, 2005, the defendants pointed out that the plaintiffs
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`have never requested permission to distribute the child support schedule and that they had
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`never prohibited the plaintiffs from providing information in the updated child support
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`schedule to members of their group. The plaintiffs argued that they were under the
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`“impression” that the schedule could not be distributed to their constituents because Policy
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`Studies had copyrighted the report.7 After discussion regarding the extent of the copyright,
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`the defendants agreed that they would publish the updated child support schedule prepared
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`by Policy Studies on the Alabama Administrative Office of Court’s web page. On March 29,
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`2005, this court ordered the defendants to notify the court when the plan prepared by Policy
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`Studies was posted in Adobe® PDF format on the Administrative Office of Court’s website.
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`(Doc. # 49.) On May 31, 2005, the defendants provided notice that they had made the
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`updated child support schedule accessible on their web page at the following address:
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`7 The court notes that the plaintiffs did not name Policy Studies, Inc., as a defendant in this case and
`that the plaintiffs have failed to allege that they requested permission from Policy Studies to photocopy or
`disseminate the copyrighted materials. “The use of a copyrighted work in any way listed in the Copyright
`Act without permission of the copyright owner constitutes actionable copyright infringement.” See Playboy
`Enterprises, Inc. v. Starware Publ’g Corp., 900 F.Supp. 433, 438 (S.D. Fla. 1995) (citing 17 U.S.C. §§ 106
`& 501). See also Pacific and Southern Co., Inc. v. Duncan, 744 F.2d 1490, 1494 (11th Cir. 1984) (noting
`that a copyright owner possesses the exclusive right to reproduce and distribute copies to the public).
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`Case 2:04-cv-00348-MHT-CSC Document 53 Filed 04/12/05 Page 11 of 27
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`http://www.alacourt.gov/ (Doc. # 51.) Because the report is currently published on the
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`Administrative Office of Court’s website, the plaintiffs and the members of their group have
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`the access they sought to the updated child support schedule in searchable Adobe® PDF
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`format. In addition, the plaintiffs may distribute materials by notifying their constituents
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`regarding information on the website. Based on the foregoing, the court concludes that the
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`plaintiffs’ First Amendment claims are due to be dismissed as moot.
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`A case is moot when the issues presented are no longer "live" or the parties lack a
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`legally cognizable interest in the outcome. County of Los Angeles v. Davis, 440 U.S. 625
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`(1979). The test is (1) there is no reasonable likelihood of a recurrence of the alleged
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`violation and (2) interim relief or events have completely and irrevocably eradicated the
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`effects of the alleged violation. Id. Because the defendants are government officials, the
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`court may safely presume that the defendants will continue to publish the updated child
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`support schedule reports on the Administrative Office of Court’s website or will otherwise
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`ensure that all citizens of Alabama will continue to have access to this information. See
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`Troiano v. Supervisor of Elections in Palm Beach Co., 382 F.3d 1276, 1283 (11th Cir. 2004)
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`(“[W]hen the defendant is not a private citizen but a government actor, there is a rebuttable
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`presumption that the objectionable behavior will not recur.”); Coral Springs St. Sys., Inc. v.
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`City of Sunrise, 371 F.3d 1320, 1328-29 (11th Cir. 2004) (“Governmental entities and
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`officials have been given considerably more leeway than private parties in the presumption
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`that they are unlikely to resume illegal activities.”). Consequently, the defendants’ motion
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`11
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`Case 2:04-cv-00348-MHT-CSC Document 53 Filed 04/12/05 Page 12 of 27
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`to dismiss these claims should be granted on the basis that the claims are moot.
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`B. The Fourteenth Amendment Claims
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`(1)
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`The Equal Protection Clause
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`To establish a claim cognizable under the Equal Protection Clause, a plaintiff must,
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`at the very least, allege that he is similarly situated with other persons who were treated
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`differently and that the reason for the differential treatment was based on race, religion,
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`national origin, poverty or some other constitutionally protected interest. Damiano v. Florida
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`Parole and Prob. Comm’n, 785 F.2d 929 (11th Cir. 1986). Additionally, to ultimately
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`succeed on an equal protection challenge, a plaintiff must demonstrate the existence of
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`discriminatory intent; mere arbitrary action without discriminatory intent is insufficient to
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`support a claim of a violation of the Equal Protection Clause. E & T Realty v. Strickland, 830
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`F.2d 1107 (11th Cir. 1987). For the reasons which follow, the plaintiffs’ Equal Protection
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`claims are due to be dismissed.
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`(a) PDF Formatted Files
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`The plaintiffs assert that the defendants violated the Equal Protection Clause because
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`they treated them differently from divorce and child support lawyers by distributing copies
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`of the Policy Studies report in PDF format to lawyers but giving them only typewritten
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`copies of the report. The plaintiffs contend that providing the report in PDF format gave the
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`lawyers an unfair advantage because they had the ability to search terms in the report on a
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`computer system.
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`Case 2:04-cv-00348-MHT-CSC Document 53 Filed 04/12/05 Page 13 of 27
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`The plaintiffs fail to allege facts demonstrating that the reason for the differential
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`treatment was based on a constitutionally protected interest. Thus, the plaintiffs have failed
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`to state a claim upon which relief may be granted. Consequently, the plaintiffs’ claim that
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`the defendants treated them differently from divorce and child support lawyers should be
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`dismissed.
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`(b) The President of the Alabama Child Support Association
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`The plaintiffs assert that the Advisory Committee gives the President of the ASCA
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`preferential treatment over the President of the National Congress for Fathers and Children.8
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`Specifically, the plaintiffs assert that they “believe a conscience [sic] decision to approve
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`Policy Studies, Inc.’s update to the child support schedule was made at the ASCA
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`Conference before the Committee convened on 11-12 March 2004” and that this
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`“prearranged knowledge . . . violate[d] [their] right to equal information, equal access to
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`Committee, equal protection and equal treatment.” (Pls’ Comp. at 44-45.) In addition, they
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`contend that the defendants violated their constitutional rights because the President of the
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`ASCA is an ex-officio member of the Committee, but that the President of the Congress for
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`Fathers and Children does not have ex-officio member status.
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`The plaintiffs fail to allege facts demonstrating that the reason for differential
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`treatment between the President of the ASCA and the President of the National Congress for
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`Fathers and Children was based on a constitutionally protected interest. Additionally, the
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`8 The pleadings indicate that Blackston is the President of the National Congress for Fathers and
`Children.
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`Case 2:04-cv-00348-MHT-CSC Document 53 Filed 04/12/05 Page 14 of 27
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`plaintiffs’ mere, factually unsupported belief9 that the ASCA approved of the child support
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`schedule prior to the Advisory Committee meeting is purely speculative and fails to allege
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`a constitutional violation. The court therefore concludes that these claims should be
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`dismissed because the plaintiffs’ assertions fail to state a claim upon which relief may be
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`granted. See FED.R.CIV.P. 12(b)(6).
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`(c) A Cross-Section of Committee Members
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`The plaintiffs assert that the defendants violated the Equal Protection Clause by failing
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`to assemble a proper quorum for the March and April 2004 meetings. Specifically, they
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`assert that the defendants “padded the Committee with unqualified individuals,” such as
`
`lawyers, judges, and DHR employees, and, therefore, failed to “select a cross section of
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`committee members from all entities concerned with updating child support guidelines.”
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`(Pls’ Comp. at 46.) The plaintiffs have failed to allege facts demonstrating that the reasons
`
`for the defendants’ actions were based on a constitutionally protected interest.
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`Consequently, the defendants’ motion to dismiss this Equal Protection claim should be
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`granted. See FED.R.CIV.P. 12(b)(6).
`
`(d)
`
`The Failure to Convene Meetings
`
`The plaintiffs assert that the defendants violated their right to equal protection by
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`failing to convene a Committee meeting within three months of September 25, 2003, and
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`9All of the defendants, with the exception of the State of Alabama, are persons within the meaning
`of § 1983 and are state officials who have asserted their absolute immunity in their official capacity and their
`qualified immunity in their individual capacity. Consequently, the plaintiffs have the burden of a heightened
`pleading requirement which their mere beliefs are insufficient to support. See e.g., Swann v. Southern Health
`Partners, Inc., 388 F.3d 834 (11th Cir. 2004).
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`Case 2:04-cv-00348-MHT-CSC Document 53 Filed 04/12/05 Page 15 of 27
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`failing to convene Committee meetings and public hearings within six months, in violation
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`of the settlement agreement. Again, the plaintiffs fail to allege facts demonstrating that they
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`were treated differently from others who were similarly situated and that the reason for the
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`differential treatment was based on a constitutionally protected interest. Furthermore,
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`although the plaintiffs couch their argument in terms of equal protection, their assertion is
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`more properly construed as a claim that the defendants breached the terms of the settlement
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`agreement. Consequently, the motion to dismiss the plaintiffs’ claim that the defendants
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`violated the Equal Protection Clause by failing to convene public meetings within a certain
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`period of time should be granted.
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`(e) Conclusion To Equal Protection Claims Discussion
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`The court has discussed seriatim each of the plaintiffs’ separate Equal Protection
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`claims and concluded they fail to state a claim on which relief may be granted. In the ususal
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`circumstances, the court would be constrained to afford the plaintiffs an opportunity to
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`amend their complaint because the law generally does not countenance dismissal for mere
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`pleading deficiencies. However, this court has extensive experience with the plaintiffs and
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`their continued challenges to the process, procedures and substance of the work of the
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`Advisory Committee on Child Support. Nothing in the record before the court supports in
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`any way the notion that any alleged differential treatment of the plaintiffs or the creation or
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`application of the child support guidelines is based on race, religion, national origin, poverty
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`or some other constitutionally protected interest within the meaning of the Equal Protection
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`Case 2:04-cv-00348-MHT-CSC Document 53 Filed 04/12/05 Page 16 of 27
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`Clause. Under these unique circumstances, the court finds that there is no need to permit the
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`plaintiffs to amend their Equal Protection claims which fail is a matter of law.
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`(2)
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`Due Process
`
`The plaintiffs assert that the defendants violated the Due Process Clause by secretly
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`contracting with Policy Studies in violation of the 1995 and 2003 settlement agreements.
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`Specifically, the plaintiffs assert that the defendants failed to “solicit comparable entities”
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`or hold a meeting or public hearing regarding the choice of an appropriate vendor in violation
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`of the settlement agreement. The defendants argue that the plaintiffs’ assertion should be
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`dismissed because there is no “fundamental right” to choose vendors and that they are
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`entitled to absolute legislative immunity.
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`The court concludes that the plaintiffs’ Due Process claim is merely an attempt to
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`frame as a constitutional violation their argument that the defendants violated the terms of
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`the 1995 and 2003 settlement agreements. The alleged breach of the contractual settlement
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`agreement does not in this case implicate the plaintiffs’ substantive or procedural due process
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`rights especially when the plaintiffs have a complete remedy through the contempt processes
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`of the court as discussed elsewhere in this recommendation. See Medical Laundry Service
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`v. Bd. of Trustees, 840 F.2d 840, 842 n. 12 (11th Cir. 1988). In addition as the defendants
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`point out, to the extent the plaintiffs challenge the actions of the defendants with respect to
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`their roles in promulgating the child support guidelines, the defendants are entitled to
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`absolute legislative immunity. See McFarland v. Folsom, 854 F.Supp. 862, 875-76 (M.D.
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`16
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`Case 2:04-cv-00348-MHT-CSC Document 53 Filed 04/12/05 Page 17 of 27
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`Ala. 1994). Consequently, the defendants’ motion to dismiss this claim should be granted.
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`C. Contempt and Breach of Contract
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`The plaintiffs assert that the defendants are in breach of contract and should be held
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`in contempt of this court’s order in Blackston v. State of Alabama, No. 2:99cv295-A (M.D.
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`Ala. 2003) for violating the terms of the 2003 settlement agreement. The defendants argue
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`that this court should not consider the plaintiffs’ state law breach of contract claims in this
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`proceeding because there is no federal question and that the plaintiffs’ attempt to enforce the
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`court’s order to abide by the terms of the 2003 agreement can be challenged only in the
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`previous case as a contempt action. The plaintiffs contend that this court has jurisdiction
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`over their claims because the parties stipulated that the settlement agreement could be
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`enforced in a breach of contract action in state or federal court.
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`In its December 24, 2003 order, the court ordered that “[f]inal judgment is entered in
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`accordance with the Settlement Agreement and Release, and the parties are ORDERED to
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`abide by all terms of the Agreement.” (Id.) While the parties may have agreed that the
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`settlement agreement could be enforced through a breach of contract action in federal court,
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`it is well settled that “parties cannot create federal jurisdiction by agreement.” Kirkland v.
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`Midland Mort. Co., 243 F.3d 1277, 1279 n. 1 (11th Cir. 2001); Morrison v. Allstate Indem.
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`Co., 228 F.3d 1255, 1261 (11th Cir. 2000). See Am. Fire & Cas. Co. v. Finn, 341 U.S. 6, 18
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`n. 17 (1951) (quoting People’s Bank v. Calhoun, 102 U.S. 256, 260-61 (1880)) (“It needs no
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`citation of authorities to show that the mere consent of parties cannot confer upon a court of
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`Case 2:04-cv-00348-MHT-CSC Document 53 Filed 04/12/05 Page 18 of 27
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`the United States jurisdiction to hear and decide a case.”). Thus, the parties’ agreement10
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`that any breach of contract claims may be raised in federal court does not itself create an
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`independent federal action for breach of contract.
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`Nonetheless, there are circumstances in which parties may seek to enforce a settlement
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`agreement in federal court. “[I]f the parties’ obligation to comply with the terms of the
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`settlement agreement [are] made part of the order of dismissal . . . a breach of the agreement
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`would be a violation of the order, and ancillary jurisdiction to enforce the agreement would
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`therefore exist.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994).
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`If the parties wish to provide for the court’s enforcement of a
`dismissal-producing settlement agreement, they can seek to do
`so. When the dismissal is pursuant to Federal Rule of Civil
`Procedure 41(a)(2), . . . the parties’ compliance with the terms
`of the settlement contract (or the court’s “retention of
`jurisdiction” over the settlement contract) may, in the court’s
`discretion, be one of the terms set forth in the order. Even
`when, as occurred here, the dismissal is pursuant to Rule
`41(a)(1)(ii) . . . we think the court is authorized to embody the
`settlement contract in its dismissal order (or, what has the same
`effect, retain jurisdiction over the settlement contract) if the
`parties agree. Absent such action, however, enforcement of the
`settlement agreement is for state courts, unless there is some
`independent basis for federal jurisdiction.
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`Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994).
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`Plainly, the court in Blackston v. State of Alabama, No. 2:99cv295-A (M.D. Ala.
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`2003), “embodied the settlement contract in its dismissal order” by ordering the parties to
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`10For the purpose of this discussion, the court will assume without deciding that the parties did agree
`that a breach of their settlement agreement was enforceable in this court.
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`Case 2:04-cv-00348-MHT-CSC Document 53 Filed 04/12/05 Page 19 of 27
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`“abide by the terms of the Agreement . . . ” and incorporating the agreement into the final
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`judgment. See Kokkonen, supra. Because compliance with the agreement is one of the terms
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`of the order, the plaintiffs may challenge the alleged violations of the 2003 settlement
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`agreement in the previous Blackston case, however not in a separate lawsuit.
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`Injunctions, including consent decrees, are enforced through the trial court’s civil
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`contempt power. Reynolds v. Roberts, 207 F.3d 1288, 1298 (11th Cir. 2000); In re Grand
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`Jury Proceedings, 142 F.3d 1416, 1424 (11th Cir. 1998); Newman v. Alabama, 683 F.2d
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`1312, 1317-19 (11th Cir. 1982). “[T]he filing of a civ