No. 12-2498 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT _________________________________ LEISHA TRINGALI, Plaintiff-Appellant, v.

MASSACHUSETTS DEPTARTMENT OF TRANSITIONAL ASSISTANCE; MASSACHUSETTS DEPTARTMENT OF REVENUE / Child Support Enforcement Agency, DOUG COMFORT, in his official and individual capacity; MASSACHUSETTS REGISTRY OF MOTOR VEHICLES, Defendants-Appellees _________________________________ Appeal from the U.S. District Court for the District of New Hampshire Civil Action No. 1:2012cv00124 _________________________________ BRIEF OF PLAINTIFF-APPELLANT LEISHA TRINGALI _________________________________

Leisha Tringali, Plaintiff-Appellant, 11 Indian Valley Road Pelham , New Hampshire 03076 603-864-9785

TABLE OF CONTENTS

TABLE OF AUTHORITIES......................................................................................ii JURISDICTIONAL STATEMENT ............................................................................1 STATEMENT OF ISSUES PRESENTED FOR REVIEW.....................................1 STATEMENT OF THE CASE..................................................................................2 STATEMENT OF FACTS..........................................................................................3 SUMMARY OF THE ARGUMENT ........................................................................5 ARGUMENT ...............................................................................................................8 I. Standard of Review...........................................................................................8 II. Due Process Clause Requires Notice and an Opportunity to be Heard....9 III. The Commonwealth of Massachusetts and its agency are "persons"for purposes of 42 U.S.C. 1983.............................................................................10 IV. Waiver of Immunity is Not Absolute............................................................13 V. The Judicial Power of This Court Has Been Properly Invoked
VI. State officials may be sued for damages in their individual capacity for

17

violations of federal constitutional or statutory rights committed in the course of official duties...............................................................................................18 VII. Relief...............................................................................................................19 CONCLUSION............................................................................................................19 CERTIFICATE OF COMPLIANCE WITH RULE 32(a) (5).................................20 CERTIFICATE OF SERVICE...................................................................................20

TABLE OF AUTHORITIES

CASES

Page(s)

Access Living Metro v. Chicago Transit Authority, 2001 WL 818789 (N.D. Ill. Mar 12, 2001)...............................................................15 Adamowicz v. Town of Ipswich, 395 Mass. 757, 760 (1985).......................................................................................13 Alabama v. Pugh, 438 U.S. 781, 98 S. Ct. 3057 (1978)...................................................................11, 12 Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)....................................................................................17 Assoc. of Health Maintenance Organizations v. Ruthardt, 194 F.3d 176 (1999)..................................................................................................12 Beard Motors, Inc. v. Toyota Motor Distributors, Inc., 395 Mass. 428, 431-432 (1985)................................................................................13 Bell Atlantic Corp. v. Twombly, 550 U.S. at ___, 127 S. Ct. At (1964)......................................................................18 BH v. Johnson, 715 F. Supp. 1387 - Dist. Court, ND Illinois, (1989)...............................................17 Brewer v. Cantrell, 622 F. Supp. 1320 - Dist. Court, WD Virginia, (1985).............................................17 Com. v. Conaghan, 433 Mass. 105, 110...................................................................................................13 COMMITTEE ON JUD., US HOUSE OF REPRES. v. Miers, 558 F. Supp. 2d 53 - Dist. Court, Dist. of Columbia, (2008)...................................18 Collins v. City of Harker Heights, 503 U.S. 115, 125,112 S.Ct. 1061, 1068, 117 L.Ed.2d 261 (1992)............................8 ii

Daniels v. Williams, 47 U.S. 327, 331, 106 S.Ct. 662, 664-65, 88 L.Ed.2d 662 (1986)...........................7, 8 Doe By Fein v. District of Columbia, 93 F. 3d 861 - Court of Appeals, Dist. Of Columbia Circuit, (1996) ....................17
Edelman v. Jordan, 415 U.S. 651 (1974)......................................................................................................3

Elam Const., Inc. v. Regional Transp. Dist., 129 F.3d 1343 (10th Cir. 1997)...................................................................................15 Erickson v. Pardus, 551 U.S. 89, 94 (2007)...............................................................................................18 Estelle v. Gamble, 429 U.S. 97, 106 (1976).............................................................................................18 Ex Parte Virginia 100 U.S. 339, 346., 25 L.Ed. 676 (1880)...................................................................10 Ex parte Young, 209 U.S. 123........................................................................................................18, 19 Fitzpatrick v. Bitzer 427 US 445, 96 S. Ct. 2666, 49 L. Ed. 2d 614 - Supreme Court, (1976)..................16 Griffin v. Strong, 983 F.2d 1544, 1546 (10th Cir. 1993).........................................................................8 Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)..............................................................................18 Irving v. United States, No. 96-2368 (1st Cir. 1998).......................................................................................12 Jones v. Sullivan, (1998).........................................................................................................................15 Lehan v. North Main St. Garage, Inc., 312 Mass. 547, 550 (1942)........................................................................................13 Lizzi v. Alexander, 255 F.3d 128, 132 (4th Cir. 2001)...............................................................................15 iii

Lombardo v. Pennsylvania, 540 F.3d 190, 195 3d 190 (2008)...............................................................................16 Loudermill, 470 U.S. at 541, 105 S.Ct. At 1492-93................................................................ 8, 10 M.A. ex rel. E.S. v. State-Operated Sch. Dist., 344 F.3d 335, 345 (3d Cir. N.J. 2003)........................................................................16 Marshall v. Jerrico, Inc. 446 U.S. 238, 100 S. Ct. 1610, 64 L.Ed 2nd 182 (1980)........................................... 9 Mass. Assoc. of Health Maintenance Organizations v. Ruthardt, 194 F.3d 176 (1999)...................................................................................................12 Mathews v. Eldridge, 424 U.S. 319, 344 (1976)........................................................................................5, 9 MCI Telecomms. Corp. v. Bell Atlantic-Pennsylvania Serv., 271 F.3d 491, 503 (3d Cir. 2001)...............................................................................16 McKay v. Dallas Independent School District, 2009............................................................................................................................16 McKinney v. Pate, 20 F.3d 1550, 1555 (11th Cir.1994) (en banc),cert. denied,___ U.S.___, 115 S. Ct. 898, 130 L.Ed.2d 783 (1995)..................................................................................... 7 Miller v. Campbell County, 945 F.2d 348, 352 (10th Cir. 1991),cert. denied, ___ U.S.___, 112 S.Ct.1174, 117 L.Ed.2d 419 (1992)....................................................................................................8 Monell v. New York City DSS, 436 U.S. 658, 98 S. Ct. 2018 (1978)...................................................................10, 11 Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S. Ct. 652, 656-57, 94 L.Ed. 865 (1950).........................5, 10 New Hampshire v. Ramsey, 366 F.3d 1, 15 (1st Cir. 2004).....................................................................................16 New York v. United States, et al County of Allegany, -- U.S. --, 112 S.Ct. 2408, 2424 (1992).......................................................................3 iv.

Palko v. Connecticut, 302 U.S. 319, 325, 58 S. Ct. 149, 152, 82 L.Ed. 288 (1937)...................................7 Penhallow v. Doane's Administrators, 3 Dall. 54, 92-93 [1L.Ed. 507] (1795)......................................................................11 Pennhurst II, 465 U.S. at 99 n. 9, 104 S. Ct. at 907 n. 9.................................................................12 Pennsylvania Pharmacists Ass'n v. Houstoun, 283 F. 3d 531 Court of Appeals, 3rd Circuit, (2002).............................................17 Petty v. Tenn.-Mo. Bridge Comm'n, 359 U.S .275, 280-82 (1959)....................................................................................16 Planned Parenthood v. Casey, ___ U.S.___, ___, 112 S. Ct. 2791, 2807, 120 L.Ed.2d 674 (1992)......................7, 8 PORTER v. SINGLETARY 49 F.3rd 1483 (11th Cir. 1995)..................................................................................9 Shabshelowitz v. Fall River Gas Co., 412 Mass. 259, 262 (1992).......................................................................................13 Sossamon v. Texas, 131 S. Ct. At 1658....................................................................................................16 Tulsa Professional Collection Services v. Pope 485 U.S. 478, 108 S. Ct 1340, 1344, 99 L.Ed.2d 565 (1988)" ................................9 United States v. Nordic Village, Inc. 503 U.S. 30, 36 (1992)..............................................................................................13 United States v. Ven-Fuel, Inc., 758 F.2d 741, 751-752 (1st Cir. 1985).......................................................................12 Zinermon v. Burch, 494 U.S.113, 125, 110 S. Ct. 975, 975, 983, 108 L.Ed.2d 100 (1990).......................7 CONSTITUTIONAL PROVISIONS, STATUTES, AND RULES Amendment 11 of the U.S. Constitution.................................................2, 6, 12, 13 Amendment 14 of the U.S. Constitution...............................................2, 10, 12, 15 v.

Article 2 of UIFSA, Part A Sections 201.............................................................15 Article 5 of the Declaration of Rights, Massachusetts Constitution.......2, 3, 6, 12 Article 11 of the Declaration of Rights, Massachusetts Constitution.............6, 11 Article 6 of the U.S. Constitution............................................................................2 Due Process Clause.................................................................................................7, 9 Civil Rights Act of 1871.........................................................................................10 Fed. R. App. P. 32(a)(5)..........................................................................................20 Fed. R. App. P. 32(a)(6)..........................................................................................20 Fed. R. App. P. 32(a)(7)(B)(iii)...............................................................................20 Federal Rule Civil Procedure 8(a)..........................................................................18 Federal Rule Civil Procedure 60(b)........................................................................19 M.G.L. 119A s. 16...............................................................................................3, 4, 13 M.G.L 119A s.3 (B)(e).................................................................................................4 M.G.L. 119A s. 17........................................................................................................4 Rule of Law 56 U. Chi.L.Rev. 1175, 1183 (1989).....................................................12 Title IV Part A of the Social Security Act.......................................................5, 14 Title IV Part D of the Social Security Act.......................................................3, 13 28 U.S.C. 1291........................................................................................................1 28 U.S.C. 1294........................................................................................................1 28 U.S.C. 1295........................................................................................................1 28 U.S.C. 2107........................................................................................................1 42 U.S.C. 1983.................................................................................. 2, 6, 16, 17, 18 42 U.S.C.A. 654.................................................................................................13, 14 vi

OTHER AUTHORITIES Cong. Globe, 42d Cong., 1st Sess., 661-662 (1871)...................................................11 132 Cong. Rec. 28, 624 (1986)...................................................................................14

vii JURISDICTIONAL STATEMENT 1. Jurisdiction of the Court of Appeals arises under 28 U.S.C. 1291, 1294, and 1295. 2. Final judgment dismissing all claims in the District Court, with Memorandum entered on November 13, 2012 [Memorandum / Order ] and Judgment entered on November 13, 2012. [ Judgment ] 3. Petitioner filed her timely appeal of the order/memorandum and order pursuant to 28 U.S.C. 2107.

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW There is a well defined community of interest in the questions of law and fact involved in this case. The questions of law and fact which predominate over questions which may effect individual include the following: (I). Whether Defendants have and continue to violate the provisions of the U.S. constitutions in connection with post judgment enforcement of collection of child support; and, specifically, the illegal suspension of licenses and the illegal seizure and taking of private property without due process of law. (II) Whether Defendants have and continue to violate statutory requirements and standards in connection with the post judgment enforcement of collection of child support; and, specifically, the illegal suspension of licenses and the illegal seizure and taking of private property without due process of law. (III) Whether Defendants have and continue to violate the requirements and standards of applicable Court Rules in connection with the post judgment enforcement of collection of child support; and, specifically, the illegal suspension of licenses and the illegal seizure and taking of private property without due process of law. (IV) Whether Defendants know, have reason to know, or, recklessly disregard applicable constitutional, statutory and rule standards, guidelines, protections, and, requirements in the course of post judgment enforcement collection of child support; and, specifically, the illegal suspension of licenses and the illegal seizure and taking of private property without due process of law.

1. (V) Whether Defendants and their agents should be compelled to account for and disgorge illegal profits, payments and revenues generated from and/or in the course of these illegal and unconstitutional actions; and, specifically, the illegal seizure and taking of private property without due process of law. (VI) Whether Defendants and their agents should be compelled to make restitution for all private property illegally seized and taken in violation of constitutionally protected and guaranteed rights to due process of law and/or in violation of applicable standards and procedures imposed by statute and court rule. (VII) Where the Eleventh Amendment has two prongs and it is the second prong (by judicial fiat), which was not duly enacted by the Legislature and upon which the court relied, the Eleventh Amendment can neither override the Commonwealth's constitutional guarantee of accountability nor bestow sovereign immunity on the Commonwealth of Massachusetts or it's agencies where there was no immunity ab initio. (VIII) Where Congress enacted 42 U.S.C. 1983 to enforce provisions of the Fourteenth Amendment, and Massachusetts has explicitly consented to suit at all times, the Fourteenth Amendment effectively overrides the judicially derived prong of the Eleventh Amendment. (IX) The Commonwealth of Massachusetts and its agency are "persons" for purposes of 42 U.S.C. 1983. (X) Where judicial immunity, like the second prong of the Eleventh Amendment, arose from judicial fiat, Article 6 of the U.S. Constitution may not be invoked to make the doctrine of judicial immunity reign supreme over Art. 5 of the Declaration of Rights, Massachusetts Constitution. Likewise, the derivative quasijudicial and qualified immunities may also not reign supreme over the command of accountability in Art. 5 of the Declaration of Rights, Massachusetts Constitution. STATEMENT OF THE CASE 1. This appeal is from the dismissal of the Plaintiff/Appellants' federal claims brought under 42 U.S.C. 1983 for, primarily, relief from violations of procedural due process.

2. 2. The motion judge found that the Plaintiff/Appellant federal claim failed to state a claim upon which relief can be granted. 3. The defendants are authorized agencies regulated under Chapter 119A of the General Laws pursuant to Title IV Part D of the Social Security Act. 4. Procedural due process demands that a party affected by government action be given notice and an opportunity to be heard. 5. The motion judge found sovereignty Edelman v. Jordan, 415 U.S. 651 (1974). a case not cited by either party. In this brief, plaintiff demonstrates that at the confluence of Art. 5 of the Declaration of Rights of the Constitution of the Commonwealth of Massachusetts and the "second prong" -- the judicial-fiat prong -- of the Eleventh Amendment, the Fourteenth Amendment overrides the Eleventh Amendment. 6. The issue as to whether the natural defendants and were state actors was treated variously by the motion judge. Plaintiffs contend that where the determination of state action requires questions mixed with fact and law, the grant of sovereign immunity was, in addition to being unconstitutional, premature and reversible error. 7. At issue in this case is the defendant(s) pursuit of an administrative enforcement actions against the plaintiff which violated her due process rights under the Fifth and Fourteenth Amendment rights under the U.S. Constitution. 8. Situationally, this case arises out of the federal Title IV-D and pursuant to, M.G.L. c. 119A, by which the Commonwealth and/or its agencies receives federal monies by complying with the federally mandated regulatory program. "Where Congress encourages state regulation rather than compelling it, state governments remain responsive to the local electorate's preferences, state officials remain accountable to the people. "New York v. United States,et al, County of Allegany, -- U.S. --, 112 S. Ct. 2408, 2424 (1992). STATEMENT OF FACTS The defendant, DOR/CSE is the duly authorized child support enforcement agency within the Commonwealth of Massachusett designated under Chapter 119A of the General Laws pursuant to Title IV Part D of the Social Security Act.

3. On September 20, 2001 Lucia Miller for the Department of Revenue Child Enforcement Agency ( hereinafter the DOR/CSE ) filed a complaint for modification of Judgment dated August 29,1996 on behalf of the Department of Transitional Assistance ( hereinafter the DTA ) against Leisha Eshbach under docket number 96D 1305. The defendant, DOR/CSE without the express authorization of the plaintiff transferred her personal identifying information ( Social Security Number ) to obtain child support payments under a sythentic identity created by the defendant, DTA. The defendant, DOR/CSE failed to afford plaintiff notice and a hearing before attempting to enforce a temporary child support order against her pursuant to M.G.L 119A s.3 (B)(e). The defendant, DOR / CSE denied the plaintiff the ability to conduct an administrative review thus depriveing her of any meaningful remedy pursuant to M.G.L 119A s. 17. The defendants have and continue to violate statutory requirements and standards designated under Chapter 119A of the General Laws pursuant to Title IV Part D of the Social Security Act. The defendants, violated plaintiffs protected due process rights by a pattern and practice of criminally editing, falsifying, and manipulating a temporary order child support order by creating a synthetic identity then denied plaintiff the ability to conduct an administrative review to deprive her of any meaningful remedy. The defendants, in conspiracy with each other, deprived plaintiff of due process and equal protection of the law by denying her notice, an opportunity to be heard and illegally seizing her property. The plaintiff claims procedural due process demands that a party affected by government action be given notice and an opportunity to be heard before being deprived of a property interest.

4. The plaintiff declares any order that names Leisha Eshbach can not be enforceable upon plaintiff without violating her due process rights. [ Complaint at ] The defendant is the duly authorized Department of Transitional Assistance, an agency within the Commonwealth designated under to Title IV Part A.

SUMMARY OF ARGUMENT I. The applicability of principles of due process on administrative proceedings. The plaintiff addresses the question of whether, and if so, to what extent, the principles of due process are applicable in the course of administrative proceedings. Due process requires that the procedures by which laws are applied must be evenhanded, so that individuals are not subjected to the arbitrary exercise of government power. The requirements of due process are determined in part by an examination of proceedings of the common and statutory law. "[p]rocedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property. "Mathews v. Eldridge, 424 U.S. 319, 344 (1976) Thus, the required elements of due process are those that "minimize substantively unfair or mistaken deprivations" by enabling persons to contest the basis upon which a State proposes to deprive them of protected interests II. The core of the due process clause requirements is notice and a hearing Procedural due process demands that a party affected by government action be given notice and an opportunity to be heard before being deprived of a property interest. Those "constitutionally adequate procedures" require notice and an opportunity to be heard. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S. Ct. 652, 656-57, 94 L.Ed. 865 (1950);

5. The neutrality requirement helps to guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law. At the same time, it preserves both the appearance and reality of fairness.
III. The Commonwealth of Massachusetts has made itself accountable for suit

in Federal Court. The Commonwealth of Massachusetts, by virtue of Articles V and XI of the Massachusetts Declaration of Rights, has made itself accountable for suit in Federal Court, precluding immunity under the Eleventh Amendment of the United States Constitution. Article V. All power residing originally in the people, and being derived from them, the several magistrates and officers of government, vested with authority, whether legislative, executive, or judicial, are their substitutes and agents, and are at all times accountable to them . Article XI. Every subject of the commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which she may receive in her person, property, or character. She ought to obtain right and justice freely, and without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws.

IV. The Commonwealth of Massachusetts and its agency are "persons"for purposes of 42 U.S.C. 1983. Where the Fourteenth Amendment overrides the Eleventh Amendment here, the argument as to whether a State is a "person" for purposes of sec. 1983 must also fail. ". . . the prohibitions of the Fourteenth Amendment are addressed to the States. They are, 'No State shall make or enforce a law which shall abridge the privileges or immunities of citizens of the United States, . . . nor deny to any person within its jurisdiction the equal protection of the laws.'"

6. Given that accountability is constitutionally mandated in Massachusetts, there is no need for the sovereign to "waive" immunity, for the sovereign's unrepealed, unaltered, or unamended constitutional consent to suit has been in place for more than two centuries. ARGUMENT I. A. Standard of Review

Due Process: Substantive and Procedural

The Due Process Clause of the Fourteenth Amendment provides "nor shall any State deprive any person of life, liberty, or property, without due process of law...." U.S. Const. amend. XIV, 1. The Due Process clause provides two different kinds of constitutional protection: procedural due process and substantive due process. Zinermon v. Burch,494 U.S. 113, 125, 110 S.Ct. 975, 983, 108 L.Ed.2d 100 (1990);McKiney v. Paten,20 F.3d 1550, 1555 (11th Cir.1994) (en banc),cert. denied,___ U.S. ___, 115 S.Ct. 898, 130 L.Ed.2d 783 (1995). A violation of either of these kinds of protection may form the basis for a suit under Section 1983. B. Substantive Due Process

The substantive component of the Due Process Clause protects those rights that are "fundamental," that is, rights that are "implicit in the concept of ordered liberty. "Palko v. Connecticut, 302 U.S. 319, 325, 58 S. Ct. 149, 152, 82 L.Ed. 288 (1937). The Supreme Court has deemed that most but not all of the rights enumerated in the Bill of Rights are fundamental; certain unenumerated rights also merit protection.. See Planned Parenthood v. Casey, ___ U.S. ___, ___, 112 S. Ct. 2791, 2807, 120 L.Ed.2d 674 (1992). It is in this framework that fundamental rights are incorporated in the Fourteenth Amendment prohibitions against the states. A finding that a right merits substantive due process protection means that the right is protected "against` certain government actions regardless of the fairness of the procedures used to implement them. '"Collins v. City of Harker Heights, 503 U.S. 115, 125, 112 S. Ct. 1061, 1068, 117 L.Ed.2d 261 (1992) (quoting Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 664-65, 88 L.Ed.2d 662 (1986)).

7. C. Procedural Due Process

The Supreme Court has made clear that, although the preliminary question of whether a property right exists may be one of state law, federal law governs the analysis of whether the procedures by which the property right or interest was deprived comport with the requirements of procedural due process. Loudermill, 470 U.S. At 541, 105 S. Ct. at 1492-93. The right to due process is conferred, not by legislative grace, but by constitutional guarantee. While the legislature may elect not to confer a property interest in [public] employment, it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards. Loudermill, 470 U.S. at 541, 105 S. Ct. at 1493 (internal quotations and citations omitted). The Due Process Clause "is the source of three different kinds of constitutional protection. "Daniels 474 U.S. at 337, 106 S. Ct. at 677. First, it provides a "guarantee of fair procedure, ... referred to as `procedural due process,'" in connection with any deprivation of life, liberty or property by a state. This is "the most familiar office" of the Clause. Collins v. Harker Heights, ___ U.S. ___, ___, 112 S. Ct. 1061, 1068, 117 L.Ed.2d 261 (1992). Second, the Clause contains a substantive component "that protects individual liberty against `certain government actions regardless of the procedures used to implement them. '"(quoting Daniels, 474 U.S. at 331, 106 S. Ct. at 665). This substantive component is referred to as substantive due process. Third, the Clause incorporates the specific protections of most of the Bill of Rights against the states. These, too, are referred to as "substantive" rights, and are comprised within the "liberty" provision of the Clause. Planned Parenthood of S.E. Pa. v. Casey, ___ U.S. ___, ___, 112 S. Ct. 2791, 2804, 120 L.Ed.2d 674 (1992). See Daniels, 474 U.S. at 3 37, 106 S. Ct. at 677; Griffin v. Strong, 983 F.2d 1544, 1546 (10th Cir. 1993); Miller v. Campbell County, 945 F.2d 348, 352 (10th Cir. 1991), cert. denied, ___ U.S. ___, 112 S.Ct. 1174, 117 L.Ed.2d 419 (1992). D. Three factors are to be considered in determining whether a particular procedure satisfies due process:

8. "[D]ue process is flexible and calls for such procedural protections as the particular situation demands, "Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976) (citation omitted). Three factors are to be considered in determining whether a particular procedure satisfies due process: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. II. Due Process Clause Requires

Notice and an Opportunity to be Heard The Due process Claus entitles a person to an impartial and disinterested tribunal in both civil and criminal cases. This requirement of neutrality in adjudicative proceedings safeguards the two central concerns of procedural due process, the prevention of unjustified or mistake deprivations and the promotion of participation and dialogue by affected individual in the decision making process. The neutrality requirement helps to guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law. At the same time, it preserves both the appearance and reality of fairness, generating the feeling, so important to a popular government, that justice has been done, by ensuring that no person will be deprived of his interested in the absence of a proceeding in which he may present his case with assurance that the arbiter is not predisposed to find against him. PORTER v. SINGLETARY 49 F.3rd 1483 (11th Cir. 1995) Quoting Marshall v. Jerrico, Inc. 446 U.S. 238, 100 S. Ct. 1610, 64 L.Ed 2nd 182 (1980). As the Supreme Court so aptly wrote: "The point is straightforward: the Due Process Clause provides that certain substantive rights life, liberty, and property cannot be deprived except pursuant to constitutionally adequate procedures. Tulsa Professional Collection Services v. Pope 485 U.S. 478, 108 S. Ct 1340, 1344, 99 L.Ed.2d 565 (1988)"

9. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 541, 105 S. Ct. 1487, 1493, 84 L.Ed.2d 494 (1985). Those "constitutionally adequate procedures" require notice and an opportunity to be heard. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S. Ct. 652, 656-57, 94 L.Ed. 865 (1950); see also . Notice must be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane, 1052* 1052 339 U.S. at 314, 70 S. Ct. At 657. III. The Commonwealth of Massachusetts and its agency are "persons"for purposes of 42 U.S.C. 1983 Where the Fourteenth Amendment overrides the Eleventh Amendment here, the argument as to whether a State is a "person" for purposes of sec. 1983 must also fail. ". . . the prohibitions of the Fourteenth Amendment are addressed to the States. They are, 'No State shall make or enforce a law which shall abridge the privileges or immunities of citizens of the United States, nor deny to any person within its jurisdiction the equal protection of the laws.'" Quern v. Jordan, 440 U.S. 332, 355 n. 10, 99 S. Ct. 1139, 1152 n 10 (1979) (Brennan, J., with whom Marshall, J. joins, Concurring) (emphasis supplied), quoting Ex parte Virginia, 100 U.S 339, 346., L.Ed. 676 (1880). Mr. Justice Brennan continued: The prohibitions of the Fourteenth Amendment and Congress' power of enforcement are thus directed at the States themselves, not merely at state officers. It is logical to assume, therefore, that sec. 1983, in effectuating the provisions of the Amendment by "interpos[ing] the federal courts between the States and the people, as guardians of the people's federal rights" [cite omitted], is also addressed to the States themselves. Certainly Congress made this intent plain enough on the face of the statute. Monell, [infra,] held that "[s]ince there is nothing in the 'context' of the Civil Rights Act [of 1871] calling for a restricted interpretation of the word 'person,' the language of that section should prima facie be construed to include 'bodies politic' among the entities that could be sued." [Cites omitted.]

10. Even the Court's opinion today does not dispute the fact that in 1871 the phrase "bodies politic and corporate" would certainly have referred to the States. [Cites omitted.] Penhallow v. Doane's Administrators, 3 Dall. 54, 92-93 [1 L.Ed. 507] (1795) (Iredell, J.); Mass. Const., Preamble. Indeed, during the very debates surrounding the enactment of the Civil Rights Act, States were referred to as bodies politic and corporate. See, e. g., Cong. Globe, 42d Cong., 1st Sess., 661-662 (1871) (hereinafter Globe) (Sen. Vickers) ("What is a State? Is it not a body politic and corporate?"); cf.id., at 696 (Sen. Edmunds). Thus the expressed intent of Congress, manifested virtually simultaneously with the enactment of the Civil Rights Act of 1871, was that the States themselves, as bodies corporate and politic, should be embraced by the term "person" in sec. 1 of that Act. Quern, 440 U.S. at 355-357, 99 S. Ct. at 1152-1154 (1979) (Brennan, J., with whom Marshall, J. joins, Concurring). The case relied upon by the motion judge, Alabama v. Pugh, 438 U.S. 781, 98 S. Ct. 3057 (1978) "does not stand for the proposition that a State is not a `person' for purposes of sec. 1983. "Quern, 440 U.S. at 352, 99 S. Ct. at 1151. In fact, Pugh fails even to mention sec. 1983. Apologetically, the Court in Quern wrote: "The parsing of Pugh is strengthened by a consideration of the circumstances surrounding that decision. Pugh, a short per curiam, was issued on the last day of the Term [months before Monell v. New York City DSS, 436 U.S. 658, 98 S. Ct. 2018 (1978), was announced] without the assistance of briefs on the merits or argument." Quern, 440 U.S. at 353, 99 S. Ct. at 1151. Mr. Justice Brennan continued: They were thus necessarily without the benefit of Monell's major re-evaluation of the legislative history of sec. 1983. Respondents did not even raise the possibility that Alabama might be a "person" for purposes of sec. 1983. Since the issue is not, as the Court now phrases it, whether the Members of this Court were then aware of Monell, ante, at 1145 n. 9, but rather whether they had before them briefs and arguments detailing the implications of Monell for the question of whether a State is a "person" for purposes of sec. 1983, it is not anomalous that the Court's opinion in Pugh failed to address or consider this issue. Quern, 440 U.S. at 352-354, 99 S. Ct. at 1151-1152. Thus, the Court today decides a question of major significance without ever having had the assistance of a considered presentation of the issue, either in briefs or in arguments.

11. The result is pure judicial fiat. This fiat is particularly disturbing because it is most likely incorrect. Id, at 354, 99 S. Ct. at 1152. Thus Pugh is not exactly the type of case upon which to rely for dismissing a complaint as important as the plaintiffs', a complaint about which the motion judge wrote: " Regardless of what the merits are on the motion to dismiss, if that were true it would seem to me that the Attorney General's Office would have interest in trying to explore that matter with her and trying to resolve it, because I assume the Attorney General's Office doesn't support government takings of peoples property that's not owed. Is that a fair assumption? " [Transcritpt ] Plaintiffs further contend that where the Eleventh Amendment cannot be implicated, where the Fourteenth Amendment must be followed, and where the Commonwealth consents to suit, the Commonwealth would still be liable for relief. Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi.L.Rev. 1175, 1183 (1989) ("Even where a particular area is quite susceptible of clear and definite rules, we Judges cannot create them out of whole cloth, but must find some basis for them in the text that Congress or the Constitution has provided."). . . . In short, we have no authority to bar a claim that Congress, the United States Supreme Court, and the Supreme Court of New Hampshire would permit. Irving v. United States, No. 96-2368 (1st Cir. 1998). Given that accountability is constitutionally mandated in Massachusetts, there is no need for the sovereign to "waive" immunity, for the sovereign's unrepealed, unaltered, or unamended constitutional consent to suit has been in place for more than two centuries. Although the defendants can argue that Massachusetts' consent to suit in its own courts is not a waiver of Eleventh Amendment immunity in federal court see Pennhurst II, 465 U.S. at 99 n. 9, 104 S. Ct. 907 n. 9. Plaintiff insist that every word of a statute must be given meaning and therefore that the words "at all times" in Art. 5 be interpreted as including suit in federal courts as well as in State courts. Mass. Assoc. of Health Maintenance Organizations v. Ruthardt, 194 F.3d 176 (1999), quoting United States v. Ven-Fuel, Inc., 758 F.2d 741, 751-752 (1st Cir. 1985)

12. ("All words and provisions of statutes are intended to have meaning and are to given effect, and no construction should be adopted which would render statutory words or phrases meaningless, redundant, or superfluous"); United States v. Nordic Village, Inc., 503 U.S. 30, 36 (1992). Therefore, this court must "attempt to ascertain legislative intent first, as [it does] with all statutes, `from the words used.'" Lehan v. North Main St. Garage, Inc., 312 Mass. 547, 550 (1942). Com. v. Conaghan, 433 Mass. 105, 110 (2000) ("A statute is to be interpreted according to the plain and ordinary meaning of its words"). Shabshelowitz v. Fall River Gas Co., 412 Mass. 259, 262 (1992) (the language of a statute is the best indication of legislative intent). Adamowicz v. Town of Ipswich, 395 Mass. 757, 760 (1985) (a statute must not be interpreted so as to render it or any portion of it meaningless). Beard Motors, Inc. v. Toyota Motor Distributors, Inc., 395 Mass. 428, 431-432 (1985) (to determine the intent of the legislature, the reviewing court looks to both language and purposes of an act). IV.Waiver of Immunity is Not Absolute A. The Commonwealth of Massachusetts has made itself accountable for suit in Federal Court. The Commonwealth of Massachusetts, by virtue of Articles V and XI of the Massachusetts Declaration of Rights, has made itself accountable for suit in Federal Court, precluding immunity under the Eleventh Amendment of the United States Constitution. Article V. All power residing originally in the people, and being derived from them, the several magistrates and officers of government, vested with authority, whether legislative, executive, or judicial, are their substitutes and agents, and are at all times accountable to them . Article XI. Every subject of the commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which she may receive in her person, property, or character. She ought to obtain right and justice freely, and without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws.
B. The Eleventh Amendment does not bar plaintiffs claims because defendants

have waived their immunity by accepting federal funds ie; Title IV Part A and

Title IV Part D. 13. The relevant question, then, is whether Massachusetts has waived its immunity. In determining whether an agency is entitled to Eleventh Amendment immunity, the courts consider various factors, including whether payment of a judgment resulting from the suit would come from the state treasury , the status of the agency under state law, and the agencys degree of autonomy. The Eleventh Amendment does not, however, immunize local governments from private suits. There are three ways that states waive their immunity: (1) by state legislation explicitly waiving immunity from suit; (2) by accepting federal funds that have been provided on the condition that sovereign immunity is waived; and (3) by removing state court litigation to federal court. Congress has enacted a clear statement that accepting federal funds would constitute a waiver of Eleventh Amendment immunity. Laws that waive immunity based on the acceptance of federal funds have a wide applicability. Because most state agencies receive some federal funds, it is generally not difficult to establishthe state's acceptance of federal assistance. The Department of Justice explained to Congress while the legislation was under consideration, [t]o the extent that the proposed amendment is grounded on congressional spending powers, [it] makes it clear to [S]tates that their receipt of Federal funds constitutes a waiver of their [E]leventh [A]mendment immunity. 132 Cong. Rec. 28 , 624 (1986). Defendant is the duly authorized child support enforcement agency within the Commonwealth designated under Chapter 119A of the General Laws pursuant to Title IV Part D of the Social Security Act. The structure of each State's Title IV-D agency, like the services it provides, must conform to federal guidelines. For example, States must create separate units to administer the plan, 654(3), and to disburse collected funds, 654(27), each of which must be staffed at levels set by the Secretary, 45 CFR 303.20 (1995). If a State delegates its disbursement function to local governments, it must reward the most efficient local agencies with a share of federal incentive payments. 42 U.S.C.A. 654(22) (Nov.1996 Supp.). To maintain detailed records of all pending cases, as well as to generate the various reports required by federal authorities, States must set up computer

systems that meet numerous federal specifications. 42 U.S.C.A. 654a. 14. Finally, in addition to setting up this administrative framework, each participating State must enact laws designed to streamline paternity and child support actions. 42 U.S.C.A. 654(20), 666. The jurisdictional rules are set out in Part A of Article 2 of UIFSA, Sections 201 and 202. Section 201 establishes UIFSA's bases for jurisdiction over a nonresident, i.e., long-arm jurisdiction, by providing that a state may exercise jurisdiction over an individual if (1) the individual has been properly served in the state. Plaintiff is aggrieved by the defendant's final determination regarding actions taken in collecting and disbursing child support. Procedural due process demands that a party affected by government action be given notice and an opportunity to be heard before being deprived of a property interest. In this case, the DOR / CSE failed to afford either of these aspects of due process to plaintiff when deciding the amount of her child support obligation. Plaintiff alleges she was deprived of a full and fair opportunity to be heard. Defendant is the duly authorized Department of Transitional Assistance, an agency within the Commonwealth designated under to Title IV Part A. States are not required to participate in the AFDC program, but if they choose to do so, they must operate a program which meets the statutory requirements in 42 U.S.C. 602, as well as the provisions of detailed federal regulations promulgated by the Secretary. AFDC, also known as Title IV-A of the Social Security Act, is a federal-state cooperative effort administered by the states. Jones v. Sullivan, (1998). For the RMV to suspend the plaintiffs driver license or any other license by a request from the DOR/CSE or any other third party with no valid court order would violate plaintiffs due process under the Fifth and Fourteenth Amendment the United State Constitution. Plaintiff was denied the renewal of her license / operating privileges. The New Hampshire Registry of Motor Vehicles declared that plaintiffs right to operate was under suspension by the Commonwealth of Massachusetts in a National Database Registry. Transit systems- Lizzi v. Alexander, 255 F.3d 128, 132 (4th Cir. 2001) (WMATA is an arm of the state), Elam Const., Inc. v. Regional Transp. Dist., 129 F.3d 1343 (10th Cir. 1997) (not an arm of the state); Access Living Metro v. Chicago Transit Authority, 2001 WL 818789 (N.D. Ill. Mar 12, 2001) (not an arm of the state).

15. Leaving to one side waivers that occur by reason of a state's participation in federal programs that require a surrender of sovereign immunity, see, e.g., Petty v. Tenn.-Mo. Bridge Comm'n, 359 U.S . 275, 280-82 (1959), a state may waive immunity in one of two ways. First, a state may waive its immunity expressly; that is, by unequivocally expressing its consent to suit. Sossamon v. Texas, 131 S. Ct. at 1658. Second, a state may waive its immunity impliedly; that is, by engaging in affirmative conduct during litigation sufficient to evince consent to suit. See New Hampshire v. Ramsey, 366 F.3d 1, 15 (1st Cir. 2004). The dispute in this case centers on waiver by conduct. However, "[a]Cir. 2008). "[T]here are only three narrowly circumscribed exceptions to Eleventh Amendment immunity: (1) abrogation by Act of Congress, (2) waiver by state consent to suit; and (3) suits against individual state officials for prospective relief to remedy an ongoing violation of federal law. " M.A. ex rel. E.S. v. State-Operated Sch. Dist., 344 F.3d 335, 345 (3d Cir. N.J. 2003) (citing MCI Telecomms. Corp. v. Bell Atlantic-Pennsylvania Serv., 271 F.3d 491, 503 (3d Cir. 2001), cert. denied, 537 U.S. 941 (2002)). Plaintiff does not argue that defendants are without entitlement to immunity based on Congressional abrogation. Indeed, it is "black-letter law that while Congress may abrogate a state's sovereign immunity under certain circumstances, it did not do so when enacting 42 U.S.C. 1983. "State's immunity from suit is not absolute. "Lombardo v. Pennsylvania, 540 F.3d 190, 195 3d 190 (2008) In Fitzpatrick v. Bitzer (1976), however, the Court made an exception to that usual rule. Fitzpatrick held that Congress could use its power under section 5 of the Fourteenth Amendment which allows Congress to enforce the substantive terms of the Fourteenth Amendment, including the Equal Protection Clause, by positive legislation to override state sovereign immunity. Fitzpatrick v. Bitzer 427 US 445, 96 S. Ct. 2666, 49 L. Ed. 2d 614 - Supreme Court, (1976) C. Section 1983 provides a federal cause of action for the deprivation, under color of law, of a citizen's rights, privileges, or immunities secured by the Constitution and laws of the United States. Section 1983 provides a federal cause of action for the deprivation, under color of law, of a citizen's rights, privileges, or immunities secured by the Constitution and laws of the United States. See McKay v. Dallas Independent School

District, (2009)
16. Section 1983 provides a private right of action against any person who, acting

under the color of state or territorial law, abridges "rights, privileges, or immunities secured by the Constitution and laws" of the United States. See Pennsylvania Pharmacists Ass'n v. Houstoun, 283 F. 3d 531- Court of Appeals, 3rd Circuit, (2002) "[T]he 1983 remedy broadly encompasses violations of federal statutory as well as constitutional rights."- See Brewer v. Cantrell, 622 F. Supp. 1320 - Dist. Court, WD Virginia, (1985). " `We do not lightly conclude that Congress intended to preclude reliance on 1983 as a remedy' for the deprivation of a federally secured right. " See Doe By Fein v. District of Columbia, 93 F. 3d 861 - Court of Appeals, Dist. Of Columbia Circuit, (1996) In a 1983 action, defendant has the burden of demonstrating "by express provision or other specific evidence from the statute itself that Congress intended to foreclose such private enforcement. `We do not lightly conclude that Congress intended to preclude reliance on 1983 as a remedy' for the deprivation of a federally secured right. "- See BH v. Johnson, 715 F. Supp. 1387 - Dist. Court, ND Illinois, (1989) Plaintiff claims that her rights under the due process clause were violated by failing to give her notice or an opportunity to be heard. Plaintiff had alleged sufficient facts to state a claim that without a hearing, the defendant(s) had deprived of a liberty interest without due process. V. The Judicial Power of This Court Has Been Properly Invoked. In the course of a generation, the Court has transformed the test for qualified immunity from one that turns on the officials subjective good faith to an objective test that focuses on the clarity of the constitutional right at issue. One can see the conclusion of this transformative series of decisions in the Courts description of the issue in Iqbal: did the plaintiff plead sufficient factual matter that, if taken as true, states a claim that [government officials] deprived him of his clearly established constitutional rights. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). the Court has discretion with respect to any implied cause of action that arises from equitable powers and the Supreme Court's instruction that a

17. "remedy for a claimed constitutional violation has to represent a judgment about the best way to implement a constitutional guarantee.- in COMMITTEE ON JUD., US HOUSE OF REPRES. v. Miers, 558 F. Supp. 2d 53 - Dist. Court, Dist. of Columbia, 2008 A. Subject Matter Jurisdiction Is Properly Vested in This Court. Federal Rule Civil Procedure 8(a) sets out the plaintiff's requirements claim: a "short and plain statement" of jurisdiction, a "short and plain of the claim, and a demand for judgment. It also allows relief in the so the plaintiff does not have to pre-guess the remedy most likely to by the court. for a statement" alternative, be accepted

The United States Court of Appeals for the Ninth Circuit has instructed, courts must "continue to construe pro se filings liberally. " Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A "complaint [filed by a pro se prisoner] `must be held to less stringent standards than formal pleadings drafted by lawyers.' " (quoting). Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) The court is obliged to give the plaintiff's pro se allegations, "however in artfully pleaded, " a liberal construction. See Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2200 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). "Specific facts are not necessary; the statement need only `give the defendant fair notice of what the claim is and the grounds upon which it rests. '" Erickson v. Pardus, ___ U.S. ___, ___, 127 S. Ct. 2197, 2200 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. at ___, 127 S. Ct. at 1964).
VI. State officials may be sued for damages in their individual capacity

for violations of federal constitutional or statutory rights committed in the course of official duties Federal courts have supplemental jurisdiction to hear state law claims against state officials sued in their individual capacity if the federal claims arise from the same subject matter and provide the federal court with jurisdiction. Ex parte Young, 209 U.S. 123 Individual capacity suits against the defendant Doug Comfort arises out of official acts may be limited to suits under 42 U.S.C. 1983. 18.

VII Relief The plaintiff's complaint is based upon notice and an opportunity to be heard. The defendant, DOR/CSE has and continues to harm plaintiff through fraud by the use of temporary child support order in which the plaintiff is not named. Pursuant to Fed.R.Civ.P. 60(b), alleging that the temporary child support order was obtained through fraud. Such a fraud suffices as a basis to set aside the temporary child support order under F.R.C.P. 60(b). Plaintiffs respectfully request that the Court grant her relief under F.R.C.P. 60(b) Under Ex parte Young, private parties can sue state officials in their official capacity to enforce federal laws and regulations, but only for prospective injunctive and declaratory relief. Plaintiff is a prose litigant with no legal education to assist in drafting of her pleading and pleads with this court to hold her pleadings with less stringent standards and construe her filings liberally.

CONCLUSION For the foregoing reasons the Appellants requests this Honorable Court to: order the temporary child support order set aside; remand the cases for the evidentiary hearing in which she was denied;

Leisha Tringali, Plaintiff-Appellant, _____________________________ 11 Indian Valley Road Pelham, New Hampshire 03076 603-864-9785 19.

CERTIFICATE OF COMPLIANCE PURSUANT TO FED. R. APP. P. 32(a)(7)(C) I, LEISHA TRINGALI, the Plaintiff-Appellant, hereby certify, pursuant to Fed. R. App. P. 32(a)(7)(C), as follows: (1) This brief complies with the type-volume limitation of Fed. R. App.P. 32(a)(7) (B) because this brief contains 6564 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). (2) This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Open Office in Times New Roman 14 point type.

Leisha Tringali, Plaintiff-Appellant,

_____________________________

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Brief has been mailed to the Attorney James A. Sweeny, Deputy Division Chief at One Ashburton Place, Boston, Massachusetts 02108 on this the __ day of ___________, 2013.

Leisha Tringali, Plaintiff-Appellant,

_____________________________

20.