924 F.2d 1059
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.OHIO DEPARTMENT OF HUMAN SERVICES, Petitioner,v.UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES,OFFICE OF CHILD SUPPORT ENFORCEMENT,
No. 90-4106.
United States Court of Appeals, Sixth Circuit.
Feb. 4, 1991.

Before BOYCE F. MARTIN, Jr. and BOGGS, Circuit Judges, and ENGEL, Senior Circuit Judge.

ORDER

1
The Ohio Department of Human Resources seeks review of a decision of the Departmental Appeals Board (Board) of Health and Human Services (HHS) in which the Board upheld a 1% penalty reduction against Ohio's Aid to Families with Dependent Children (AFDC) program.  The penalty had been imposed by HHS' Office of Child Support Enforcement (OCSE), following an audit of Ohio's child support enforcement program.  Ohio has filed an emergency motion for stay of the penalty and has filed supplemental authority in support.  The OCSE has filed a response in opposition and also moves for dismissal of the appeal for lack of jurisdiction.  Ohio responds in opposition to the motion to dismiss.


2
Pursuant to 42 U.S.C. Sec. 1316(a)(3), the courts of appeals have jurisdiction in appeals from a final determination made by the Secretary of HHS on reconsideration of certain decisions under Sec. 1316(a)(1) or from final determinations made pursuant to 42 U.S.C. Sec. 604.  Section 1316(a)(3) permits appeals from plan-conformity decisions.  Decisions in disallowance proceedings made pursuant to 42 U.S.C. Sec. 1316(d) are not immediately appealable to the court of appeals.    See Michigan Dep't of Human Services v. Sec'y of HHS, 744 F.2d 32 (6th Cir.1984).  In Michigan Dep't. of Human Services, this court gave substantial deference to the Secretary's characterization of the proceedings.  Giving such deference in the instant case leads to the conclusion that this Board's decision was made in a disallowance proceeding.  The regulations adopted by HHS treat these proceedings as a disallowance by providing that states may seek reconsideration of penalties imposed under 42 U.S.C. Sec. 1316(d).  See 45 C.F.R. Sec. 205.146(d).  The Board's decision also refers to the proceeding as review of a disallowance penalty.  Further, the decision in question is not considered a final decision pursuant to 42 U.S.C. Sec. 604 since the guidance for imposition of such a penalty is found at the preceding section, 42 U.S.C. Sec. 603.  There being no plan-conformity decision nor a final determination under Sec. 604, this court lacks jurisdiction.


3
It is therefore, ORDERED that the motion to dismiss the appeal is granted.  The motion to stay the penalty is moot.

