Campbell v. Miller

• Decision Date: 07 December 2011
• Docket Number: Case No. 2:11–cv–381.
• Citation: 835 F.Supp.2d 458
• Parties: Lavieena CAMPBELL, Plaintiff, v. Kevin L. MILLER, in his capacity as Executive Director of the Ohio Rehabilitation Services Commission, Defendant.
• Court: U.S. District Court — Southern District of Ohio

835 F.Supp.2d 458

Lavieena CAMPBELL, Plaintiff,

v.Kevin L. MILLER, in his capacity as Executive Director of the Ohio Rehabilitation Services Commission, Defendant.

Case No. 2:11–cv–381.

United States District Court,

S.D. Ohio,

Eastern Division.

Dec. 7, 2011.

Barbara S. Corner, John Richard Harrison, Ohio Legal Rights Service, Columbus, OH, for Plaintiff.

Melissa Lyn Wilburn, Ohio Attorney General, Columbus, OH, for Defendant.

OPINION AND ORDER

GEORGE C. SMITH, District Judge.

Plaintiff Lavieena Campbell initiated this case on May 3, 2011, seeking declaratory and prospective injunctive relief against Defendant, Kevin Miller, in his capacity as Executive Director of the Ohio Rehabilitation Services Commission.¹ Plaintiff alleges that Defendant's refusal to grant a review by an impartial hearing officer of a decision by a state vocational rehabilitation official regarding the timeliness of her appeal, and Defendant's practice of summarily dismissing appeals violates the vocational rehabilitation provisions of Title I of the Rehabilitation Act of 1973, as amended 29 U.S.C. §§ 701– 753 (hereinafter “Rehabilitation Act” or “the Act”), and her right to procedural due process as guaranteed by the Fourteenth Amendment's Due Process Clause. (Doc. 1, ¶ 6–7). This matter is before the Court on Defendant's Motion to Dismiss (Doc. 6) and Plaintiff's Motion for a Temporary Restraining Order and/or Preliminary Injunction (Doc. 8). For the following reasons, the Court GRANTS Defendant's Motion to Dismiss.

I. BACKGROUND

Plaintiff Lavieena Campbell has a disability and was found eligible to receive vocational rehabilitation services from the state vocational rehabilitation agency. (Doc. 1, ¶ 12). Campbell's disabilities affect her ability to work because she cannot perform physically demanding jobs and stress negatively impacts her concentration, memory, and interpersonal skills. (Doc. 1, ¶ 19). Plaintiff is also susceptible to anger as a result of her disabilities. Id.

The Rehabilitation Act empowers individuals with disabilities to maximize employment, economic self-sufficiency, independence, inclusion, and integration into society. See Jackie S. v. Connelly, 442 F.Supp.2d 503, 507 (S.D.Ohio 2006) (citing 29 U.S.C. § 701). Congress created an interactive federal-state scheme whereby a state may receive federal funding for its vocational rehabilitation programs if it submits to the Commissioner of the Rehabilitation Services Administration a three-year plan that meets federal guidelines. Id., citing § 721(a).

Ohio participates in this program and the Ohio Rehabilitation Services Commission (“ORSC”) is the state unit designated to provide vocational rehabilitation services to people with disabilities pursuant to Sections 720–753 of Title I of the Act. Jackie S., 442 F.Supp.2d at 507. The Bureau of Vocational Rehabilitation (“BVR”) is the division within the ORSC that provides rehabilitation services to individuals with disabilities other than blindness or other visual impairments. Id.

One of the thirty-six explicit requirements for state plans under Title I is an individualized plan of employment (“IPE”). Id., citing 29 U.S.C. § 721(a)(9). An eligible individual and his vocational rehabilitation counselor must jointly develop and agree to an IPE and each IPE must be designed to achieve an individual's employment objective, long-term rehabilitation goals, and intermediate rehabilitation objectives, “consistent with the unique strengths, resources, priorities, concerns, abilities, and capabilities of the individual.” Id., quoting §§ 722(b)(2)(E), (c)(5).

Plaintiff Campbell sought services from the ORSC and the BVR. (Doc. 1, ¶ 14, 16). On February 11, 2009, Campbell was found eligible for ORSC services. (Doc. 1, ¶ 18).² On July 23, 2009, Plaintiff signed an IPE. (Doc. 1, ¶ 20). Her IPE provided services for job development and placement, a job coach, and follow along services. (Doc. 1 ¶ 24). The Defendant has cooperative agreements with various agencies to provide rehabilitation services to eligible individuals, known as the Vocational Rehabilitation Public & Private Partnerships (VRP3). (Doc. 1, ¶ 15). Plaintiff had meetings with her VRP3 counselor and met routinely with her job developer to work on her search for a job. (Doc. 1, ¶ 26, 27). In July 2010, Campbell, her VRP3 counselor, and her job developer met to do an annual review and decided to continue her services. (Doc. 1, ¶ 31).

During the fall of 2010, Plaintiff felt frustrated and had a difficult time motivating herself. (Doc. 8, p. 4). On October 19, 2010, Plaintiff met again with her VRP3 counselor and job developer and vented her frustration about the job search. The VRP3 counselor told Plaintiff that she needed to increase the number of positions she was applying for, and it was agreed Plaintiff's resume would be revised. (Doc. 1, ¶¶ 36–37).

On November 23, 2010, Campbell met with David Bush, the vocational rehabilitation supervisor whom she had never met before, because her counselor was on leave.³ (Doc. 8, p. 4). Campbell expressed dissatisfaction with the job development services she was receiving, and Bush told her that there were no alternative services that could be offered and that case closure was the only alternative step. (Doc. 1, ¶¶ 40–41). Campbell left the meeting and her case was closed. (Doc. 1, ¶¶ 42–43).

Defendant argues that Mr. Bush informed Plaintiff that the ORSC would close her case at the November 23rd meeting. (Doc. 6, p. 2). Plaintiff left the meeting and ORSC closed her case immediately. (Doc. 6, p. 2). ORSC also argues that it sent a case closure certificate to Plaintiff on November 29, 2010, confirming in writing that her case had been closed. (Doc 6, p. 2).

Plaintiff claims that she learned about her case closure on January 3, 2011, when she went to the VRP3 office to inquire about her case. (Doc. 1, ¶ ¶ 45, 47). Plaintiff asserts that she had not received a copy of the Certificate of Closure before then. (Doc. 1, ¶ 49).

On January 6, 2011, Plaintiff requested an extension of time to file an appeal of her case closure with ORSC, and asserted that she did not learn of her case closure until January 3, 2011. (Doc. 6, p. 2).⁴ ORSC rejected this appeal as untimely. (Doc. 6, p. 2). Both parties agree that Plaintiff had thirty days to file an appeal. Ohio Admin. Code § 3304–2–62; (Doc. 10, p. 1); (Doc. 6, p. 3).

Plaintiff brings this action to stop Defendant's practice of summarily dismissing requests for hearings seeking review of decisions made by state vocational rehabilitation officers. (Doc. 1, ¶ 5). Plaintiff also seeks a remedy for Defendant's refusal to grant review by an impartial hearing officer of a decision by a state vocational rehabilitation official regarding the timeliness of Plaintiff's appeal. (Doc. 1, ¶ 6). Plaintiff alleges the refusal and practice of summarily dismissing appeals violates the vocational rehabilitation provisions of Title I of the Rehabilitation Act of 1973 and her right to procedural due process as guaranteed by the Due Process Clause of the Fourteenth Amendment of the United States Constitution. (Doc. 1, ¶ 7).

II. STANDARD OF REVIEW

Defendant moves to dismiss Plaintiff's claim under Federal Rule of Civil Procedure 12(b)(1) or (6). “We are bound to consider the 12(b)(1) motion first, since the Rule 12(b)(6) challenge becomes moot if this court lacks subject matter jurisdiction.” Moir v. Greater Cleveland Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir.1990).

A. Rule 12(b)(1) Standard

A Rule 12(b)(1) motion can attack a claim of jurisdiction on its face or it can attack the factual basis for jurisdiction. DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir.2004) (citing RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1133–35 (6th Cir.1996) and United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.1994)). If the motion attacks the claim on its face, all allegations of the plaintiff must be considered true. Id. If a claim instead attacks the factual basis for jurisdiction, the trial court must weigh the evidence and the plaintiff bears the burden proving that jurisdiction exists. Id. Claims of factual defects are far more frequent than facial attacks. SeeCharles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (3d ed. 2004).

“A facial attack on the subject matter jurisdiction alleged by the complaint merely questions the sufficiency of the pleading.” Ohio Nat. Life Ins. Co. v. United States, 922 F.2d 320 (6th Cir.1990) (emphasis in original). When reviewing this type of attack, the court must take allegations in the complaint as true and construe the complaint in a light most favorable to the non-moving party. United States v. A.D. Roe Co., Inc., 186 F.3d 717, 721–22 (6th Cir.1999). As Defendant's motion does not allege insufficiency in comporting with Fed.R.Civ.P. 8(a)(1), a facial attack is not implicated and thus the Court analyzes it as a factual challenge.

With a “factual” challenge under Rule 12(b)(1), courts consider evidence to determine if jurisdiction actually exists. See Nichols v. Muskingum Coll., 318 F.3d 674, 677 (6th Cir.2003). Unlike a facial attack, there is no presumption of truthfulness on behalf of the non-moving party with a factual attack. A.D. Roe Co., Inc., 186 F.3d at 722. The burden to prove the court has proper jurisdiction falls on the plaintiff. Golden v. Gorno Bros., Inc., 410 F.3d 879, 881 (6th Cir.2005). When a factual attack raises a controversy as to the facts of the case, the district court must weigh the conflicting evidence to determine whether subject matter does or does not exist. See Gentek Bldg. Products, Inc. v. Sherwin–Williams Co., 491 F.3d 320, 330 (6th Cir.2007). “The Court is free to weigh the evidence and to satisfy itself as to the existence of its power to hear the case.” Jackie S., 442 F.Supp.2d at 512. The Court has wide discretion to allow affidavits, documents, and a limited evidentiary hearing to resolve...