Marshall v. Switzer, 1740

• Decision Date: 17 November 1993
• Docket Number: No. 1740,D,1740
• Citation: 10 F.3d 925
• Parties: Kirk MARSHALL, Plaintiff-Appellant, v. Richard M. SWITZER, former Deputy Commissioner, Office of Vocational Rehabilitation of the New York State Education Department, in his individual capacity, and Lawrence C. Gloeckler, Deputy Commissioner, Office of Vocational and Educational Services for Individuals with Disabilities, New York State Education Department, in his individual and official capacity, Defendants-Appellees. ocket 93-7186.
• Court: U.S. Court of Appeals — Second Circuit

Page 925

10 F.3d 925

Kirk MARSHALL, Plaintiff-Appellant, v. Richard M. SWITZER, former Deputy Commissioner, Office of Vocational Rehabilitation of the New York State Education Department, in his individual capacity and Lawrence C. Gloeckler, Deputy Commissioner, Office of Vocational and Educational Services for Individuals with Disabilities, New York State Education Department, in his individual and official capacity, Defendants-Appellees.

No. 1740, Docket 93-7186.

United States Court of Appeals Second Circuit.

Argued June 17, 1993.

Decided Nov. 17, 1993.

Paul J. Lupia, Legal Aid Soc. of Mid-New York, Inc., Utica, NY (Michael Bagge, Legal Aid Society of Mid-New York, Inc., on the brief), for plaintiff-appellant.

Leslie B. Neustadt, Asst. Atty. Gen., Albany, NY (Robert Abrams, Atty. Gen., Peter H. Schiff, Deputy Sol. Gen., Nancy A. Spiegel, Asst. Atty. Gen., on the brief), for defendants-appellees.

Herbert Semmel, Paula Distabile, Ruth Lowenkron, New York Lawyers for the Public Interest, Inc., New York City, counsel for amici curiae American Medical Ass'n, American Public Health Ass'n, The ARC (formerly, Ass'n for Retarded Citizens of the U.S.), Center for Independence of the Disabled in New York, Inc., National Ass'n of Protection and Advocacy Systems, New York State Com'n on Quality of Care for the Mentally Disabled, Paralyzed Veterans of America, United Cerebral Palsy Ass'n, Inc., United Cerebral Palsy Ass'n of New York State, Inc., in support of plaintiff-appellant.

Before: CARDAMONE and MAHONEY, Circuit Judges, and CEDARBAUM, ^* District Judge.

CEDARBAUM, District Judge:

Kirk Marshall filed this action under 42 U.S.C. Sec. 1983 ¹ to challenge a policy of the New York State Education Department prohibiting reimbursement for "factory-installed" automotive equipment. Marshall claims that the policy violates Title I of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 720 et seq. This is an appeal from a Judgment of the District Court for the Northern District of New York (Frederick J. Scullin, Jr., Judge) granting appellees' motion to dismiss the complaint. The district court held that appellant could not bring this action under Sec. 1983 because Title I does not require a participating state to do anything more than submit a plan satisfying certain criteria, and thus does not create enforceable rights, privileges, or immunities within the meaning of Sec. 1983. Since the district court dismissed the complaint solely on this ground and did not address appellees' other arguments for dismissal, we address only the issue of whether appellant has a right under Sec. 1983 to challenge the State's policy. We hold that he does.

BACKGROUND

Appellant, a quadriplegic, became a client of the Office of Vocational Rehabilitation of the New York State Education Department (subsequently known as the Office of Vocational and Educational Services for Individuals with Disabilities, or VESID) in 1984. Shortly thereafter, a rehabilitation counselor concluded that appellant's vehicle would require many factory-installed options ² to enable appellant to operate the vehicle independently. Appellant then purchased a Ford van with those options.

An individual written rehabilitation program ("IWRP"), dated August 24, 1987, was developed by VESID for appellant. The IWRP stated that VESID would provide for modifications of appellant's van which were "essential, justified, and recommended in writing by a qualified van evaluator," but also expressly stated that VESID would not provide factory-installed equipment available from a dealer. The refusal to provide factory-installed options was based on Sec. 1350 of VESID's Policy Manual.

Two levels of administrative review followed. The application of Sec. 1350 was upheld at both levels. An administrative fair hearing was then held. The hearing officer concluded that VESID should reconsider its policy of not providing factory-installed options. Appellee Switzer, former Deputy Commissioner of the Office of Vocational Rehabilitation, reversed the hearing officer's decision. He concluded that Sec. 1350 was "appropriate as stated and applies to [appellant's] case."

In 1992, appellant filed this Sec. 1983 action against Switzer and Lawrence C. Gloeckler, the Deputy Commissioner of VESID, claiming that VESID's policy deprived him of a right given to him by Title I of the Rehabilitation Act. Appellees moved to dismiss the complaint on the ground that the policy could not be challenged under Sec. 1983. The district court granted the motion, and this appeal followed.

DISCUSSION

In ruling on a motion to dismiss, a court must accept all material allegations of the complaint as true. See Easton v. Sundram, 947 F.2d 1011, 1014-15 (2d Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1943, 118 L.Ed.2d 548 (1992). The complaint may not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).

1. Section 1983 Jurisprudence

In Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), the Supreme Court held that individuals can sue under Sec. 1983 for violation of statutory as well as constitutional rights. Id. at 4, 100 S.Ct. at 2504. However, Sec. 1983 is available to enforce a violation of a federal statute only if (1) the statute at issue creates " 'enforceable rights, privileges, or immunities within the meaning of Sec. 1983' " and (2) Congress has not " 'foreclosed such enforcement of the statute in the enactment itself.' " Suter v. Artist M., --- U.S. ----, ----, 112 S.Ct. 1360, 1366, 118 L.Ed.2d 1 (1992) (quoting Wright v. Roanoke Redev. and Hous. Auth., 479 U.S. 418, 423, 107 S.Ct. 766, 770, 93 L.Ed.2d 781 (1987)).

A statutory provision creates enforceable rights within the meaning of Sec. 1983 only if it is "sufficiently specific and definite" to be within the competence of the judiciary to enforce. Wright, 479 U.S. at 432, 107 S.Ct. at 775; see also Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 509, 110 S.Ct. 2510, 2517, 110 L.Ed.2d 455 (1990) (citation omitted); Suter, --- U.S. at ----, 112 S.Ct. at 1369. Under Suter, it seems that if a statutory provision grants states significant discretion in meeting the statute's objectives, it is less likely that the provision creates enforceable rights. --- U.S. at ----, 112 S.Ct. at 1368. Cf. Wilder, 496 U.S. at 519, 110 S.Ct. at 2523 ("[t]hat the amendment gives the States substantial discretion in choosing among reasonable methods of calculating rates may affect the standard under which a court reviews whether the rates comply with the amendment, but it does not render the amendment unenforceable by a court"). Lastly, a provision does not create an enforceable right if it reflects a "congressional preference" as opposed to a binding obligation. Wilder, 496 U.S. at 509, 110 S.Ct. at 2517 (quoting Pennhurst State Sch. and Hosp. v. Halderman, 451 U.S. 1, 19, 101 S.Ct. 1531, 1541, 67 L.Ed.2d 694 (1981)). The specific statutory provisions at issue as well as the entire legislative enactment should be analyzed to determine whether 29 U.S.C. Secs. 721(a)(8) & (a)(9) create an enforceable right within the meaning of Sec. 1983. Suter, --- U.S. at ----, 112 S.Ct. at 1367 (citation omitted).

2. Title I of the Rehabilitation Act of 1973

Title I of the Rehabilitation Act of 1973 authorizes grants to assist states in helping handicapped individuals prepare for and engage in gainful employment. 29 U.S.C. Sec. 720(a) (1988 & Supp.1993). ³ States wishing to receive federal funding under Title I must submit to the Commissioner of the Rehabilitation Services Administration a plan for vocational rehabilitation services for a three-year period. Id. Sec. 721(a). State plans "shall" provide, at a minimum, for the provision of specified vocational rehabilitation services. Id. Sec. 721(a)(8). And state plans "shall" provide that an IWRP will be developed for each eligible handicapped individual. Id. Sec. 721(a)(9). Each IWRP "shall" include a statement of the rehabilitation goals for, and the specific vocational rehabilitation services to be provided to, the client. Id. Sec. 722(b)(1). "Vocational rehabilitation services" are defined as "any goods or services necessary to render an individual with handicaps employable, including, but not limited to ... rehabilitation engineering services." Id. Sec. 723(a)(12). "Rehabilitation engineering," in turn, is defined as "the systematic application of technologies, engineering methodologies, or scientific principles to meet the needs of and address the barriers confronted by individuals with handicaps in areas which include ... transportation." Id. Sec. 706(12).

The Commissioner must approve or disapprove state plans, depending upon fulfillment of the conditions outlined in the statute, id. Sec. 721(b), and the Commissioner must cut off funding if, after notice and a hearing, he finds that in the administration of the plan the state is not substantially complying with any provision of the plan, id. Sec. 721(c). A client must be able to appeal to an impartial hearing officer any determination made by the rehabilitation counselor in charge of developing his IWRP. Id. Sec. 722(d). Title I also authorizes grants to enable states to establish "client assistance programs" to help individuals gain access to the services available to them under the statute and state plan. Id. Sec. 732(a).

Viewing appellant's claim in light of this statutory scheme leads to the conclusion that appellant is entitled to bring his claim under Sec. 1983. Appellant does not allege that VESID did not develop any IWRP for him. Nor does appellant take issue with the rehabilitation counselor's determination that he does or does not need a specific vocational rehabilitation service to realize his vocational capabilities. Rather appellant argues that VESID's policy of...