Mallett v. Wisconsin Div. of Vocational Rehabilitation

Citation130 F.3d 1245
Decision Date01 December 1997
Docket NumberNo. 94-2601,94-2601
Parties122 Ed. Law Rep. 611, 11 NDLR P 168 Gregory C. MALLETT, Plaintiff-Appellant, v. WISCONSIN DIVISION OF VOCATIONAL REHABILITATION and Judy R. Norman-Nunnery, Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Sheri H. Mecklenburg (argued), Emlin Co., Bensenville, IL, for Gregory C. Mallett.

Michelle L. Ramirez, Nadim Sahar (argued), Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Wisconsin Div. of Vocational Rehabilitation.

Peter J. Cannon, Michelle L. Ramirez, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Judy R. Norman-Nunnery.

Before CUMMINGS, COFFEY and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Gregory C. Mallett instituted this pro se action challenging the decision by the Wisconsin Division of Vocational Rehabilitation and its Administrator, Judy Norman-Nunnery, (collectively, "DVR" 1) to close his file and discontinue the college tuition assistance that he had received under the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701 et seq. The district court granted DVR's motion to dismiss for failure to state a claim. We affirm the district court's order for all but one claim. Mallett has a right under 42 U.S.C. § 1983 to challenge DVR's policy disfavoring funding graduate school education.


The Rehabilitation Act seeks to provide handicapped individuals 2 with certain benefits and rights. The Rehabilitation Act breaks down into seven "Subchapters." Subchapter I, commonly known as "Title I," is labeled "Vocational Rehabilitation Services." 3 Specifically, Title I is intended to

assist States in operating a comprehensive, coordinated, effective, efficient, and accountable program of vocational rehabilitation that is designed to assess, plan, develop, and provide vocational rehabilitation services for individuals with handicaps, consistent with their strengths, resources, priorities, concerns, abilities, and capabilities, so that such individuals may prepare for and engage in gainful employment.

29 U.S.C. § 720(a)(2). To that end, 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 which meets certain federal guidelines. Id. § 721(a). Wisconsin's legislature agreed "to accept the provisions of 29 U.S.C. §§ 701 to 796i, the [R]ehabilitation [A]ct of 1973 as amended, and the provisions of 34 C.F.R. 300 to 399 to carry out the purposes of the [A]ct." Wis. Stat. § 47.02(1). The State of Wisconsin designated DVR as its rehabilitation services agency.

Title I has thirty-six explicit requirements for state plans, one of which is an individualized written rehabilitation program ("IWRP"). See 29 U.S.C. § 721(a)(9). An eligible individual and his or her vocational rehabilitation counselor must jointly develop and agree to an IWRP. See id. § 722(b)(1)(A). Each IWRP must be designed to achieve that 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. § 722(b)(1)(B)(i). The vocational rehabilitation services provided are "any goods or services necessary to render an individual with handicaps employable." Id. § 723(a). If a dispute arises between an individual and his counselor, the individual may exercise his right to an administrative appeal to a DVR supervisor, an impartial hearing officer, and finally DVR's Administrator. See id. § 722(d).

On August 15, 1984, DVR determined that Mallett was eligible to receive benefits under the Vocational Rehabilitation Program as a result of 1) shoulder and back injuries he sustained while employed at Briggs and Stratton Corporation and 2) several psychological disabilities discovered during Mallett's medical evaluations. As a result of his injuries and disabilities, Mallett received book and tuition assistance for classes at the University of Wisconsin-Milwaukee. On March 20, 1989, DVR notified Mallett of its intention to close his file and discontinue his financial assistance. He claims DVR closed his file because he requested additional funds to attend law school.

Mallett then exercised his right to administrative appeals. See 29 U.S.C. § 722(d). First, he appealed this decision to DVR Supervisor Noreen Ryan, who upon review determined that Mallett's file was properly closed. Next, Mallett received a hearing before Impartial Hearing Officer Anne Walden Weiss. On December 28, 1989, Weiss provided a written affirmation of Ryan's decision. It stated that this was a "final decision of the designated State Unit under [34 C.F.R. § ] 361.48(c)(2)(v) unless the Administrator, Dr. Judy Norman-Nunnery, gives notice of intent to review the decision." On February 20, 1990, in response to a letter from Mallett, Norman-Nunnery declined to review the decision, describing it as "consistent and equitable."

Mallett then pursued judicial remedies pro se. On August 17, 1990, he filed a complaint in federal district court, which he amended on July 29, 1992. Mallett contends that DVR has violated his substantive and procedural rights under the Rehabilitation Act. Specifically, he argues: 1) that a DVR policy disfavoring funding graduate school education offends his right to an individualized rehabilitation plan under § 722(b); 2) that DVR failed to establish that he would be unable to meet his career goal in violation of § 722(c); and 3) that DVR did not provide proper administrative remedies by refusing his request to submit additional evidence in contravention of § 722(d). Title I, however, does not explicitly provide for a private right of action. Thus, Mallett asserts his claims under § 722, arguing it creates an implied private right of action; under 42 U.S.C. § 1983, arguing § 722 establishes enforceable rights; and under § 504 of the Rehabilitation Act, 29 U.S.C. § 794, alleging that DVR discriminated against him because of his handicap.

On August 28, 1992, DVR filed a motion to dismiss Mallett's case for failure to state a claim, arguing in the alternative that the doctrine of immunity shielded it from suit or that Mallett had failed to state a claim as no private right of action exists for his claims. Pursuant to Fed.R.Civ.P. 12(b)(6), the district court granted DVR's motion to dismiss. The court concluded that Title I of the Rehabilitation Act does not contain a private right of action; that Title I does not confer enforceable "rights" under § 1983; and that a plaintiff may not assert a § 504 claim of discrimination against the state agency dedicated to aiding handicapped individuals for alleged violations of Title I.

A. Standard of Review

We review a district court's decision to grant a motion to dismiss under Rule 12(b)(6) de novo, accepting the well-pleaded allegations in the complaint as true and drawing all reasonable inferences in favor of the plaintiff. See Porter v. DiBlasio, 93 F.3d 301, 305 (7th Cir.1996). A dismissal under Rule 12(b)(6) is proper only where the plaintiff can prove no set of facts that would entitle him to relief. See id.; see also Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). Furthermore, we construe complaints drafted by pro se plaintiffs liberally. See Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 175-76, 66 L.Ed.2d 163 (1980); Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972).

B. Implied Private Right of Action Under § 722

In the seminal case of Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), the Supreme Court identified four factors that courts should consider in determining whether an implied cause of action exists under a statute. They are: 1) whether the plaintiff is a member of the class for whose benefit the statute was enacted; 2) whether there is any indication of legislative intent to create or deny such a remedy; 3) whether an implied remedy is consistent with the underlying purposes of the statutory scheme; and 4) whether the cause of action is one traditionally relegated to the states so that it would be inappropriate to infer a federal remedy. See id. at 78, 95 S.Ct. at 2087-88. The Cort approach, however, has fallen under severe criticism, and questions linger whether the four factor test remains a viable approach. See Thompson v. Thompson, 484 U.S. 174, 189, 108 S.Ct. 513, 521, 98 L.Ed.2d 512 (1988) (Scalia, J., concurring in judgment) ("It could not be plainer that we effectively overruled the Cort v. Ash analysis...."); Touche Ross & Co. v. Redington, 442 U.S. 560, 575, 99 S.Ct. 2479, 2488-89, 61 L.Ed.2d 82 (1979) (refusing to afford the four factors equal weight and stressing that "the central inquiry remains whether Congress intended to create, either expressly or by implication, a private cause of action"); Cannon v. University of Chicago, 441 U.S. 677, 731, 99 S.Ct. 1946, 1975, 60 L.Ed.2d 560 (1979) (Powell, J., dissenting) ("The 'four factor' analysis of [Cort] is an open invitation to federal courts to legislate causes of action not authorized by Congress. It is an analysis not faithful to constitutional principles and should be rejected."). The Supreme Court has even questioned the approach lower courts have taken in establishing congressional intent. See, e.g., Central Bank of Denver v. First Interstate Bank of Denver, 511 U.S. 164, 184-87, 114 S.Ct. 1439, 1451-53, 128 L.Ed.2d 119 (1994) (rejecting "broad-based notion[s] of congressional intent" derived from subsequent committee reports, congressional acquiescence to judicial interpretation through silence, and failed legislative proposals).

Although the Supreme Court has refused to overrule the Cort v. Ash test explicitly,...

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