Marshall v. SwitzerMarshall v. Switzer
Kirk Marshall filed this action under
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 options2 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. Id. 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
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.
The Commissioner must approve or disapprove state plans, depending upon fulfillment of the conditions outlined in the statute,
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 prohibiting reimbursement for “factory-installed” options violates Title I. In other words, appellant seeks a judicial determination of whether factory-installed options are goods which Sec. 721(a)(8) requires participating states to provide if necessary to render clients employable.
As explained above, Title I requires participating states to develop for each eligible client an IWRP that prescribes the “vocational rehabilitation services,” including services in the area of “transportation,” which are necessary to render the client employable. The language of Secs. 721(a)(8) & (a)(9) is specific and definite, and therefore is within the competence of the judiciary to enforce. Indeed, the resolution of appellant‘s claim involves statutory construction, a task peculiarly within the competence of courts. Furthermore, the language of this section is mandatory.4
The district court held, and appellees argue, that appellant cannot bring his claim under Sec. 1983 because, like the statute in Suter, Title I of the Rehabilitation Act requires nothing more of a state than to submit a plan for the Commissioner‘s approval. In Suter, the Supreme Court held that Sec. 1983 could not be used to enforce the provision in the Adoption Assistance and Child Welfare Act of 1980 that “reasonable efforts will be made” to prevent the removal of children from their homes and to facilitate reunification of families where removal has occurred. 112 S.Ct. at 1370. Among a number of other points, the Court did note that the statute in that case did not “provide notice to the States that failure to do anything other than submit a plan with the requisite features, to be approved by the Secretary, [was] a further condition on the receipt of funds from the Federal Government.” Id. at ----, 112 S.Ct. at 1369. But the significant point in Suter was not that the statute in question only required a state to submit a plan to the federal agency but that the statute provided no guidance for measuring “reasonable efforts.” --- U.S. at ----, 112 S.Ct. at 1368; Chan v. City of New York, 1 F.3d 96, 104 (2d Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 472, 126 L.Ed.2d 423 (1993). Section 721(a)(8), by contrast, specifically lists the goods and services that states must furnish to eligible clients, and thus provides a measuring rod for compliance.
Appellees also argue that under Title I states have discretion to determine the manner in which they assist clients, see
Finally, appellees contend that Congress has foreclosed enforcement of Title I under Sec. 1983, pointing out that the Supreme Court has held on two occasions that statutory remedial schemes were so comprehensive as to demonstrate an intent on the part of Congress to preclude enforcement through Sec. 1983. See Smith v. Robinson, 468 U.S. 992, 1009-12, 104 S.Ct. 3457, 3467-69, 82 L.Ed.2d 746 (1984); Middlesex County Sewerage Auth. v. National Sea Clammers Ass‘n, 453 U.S. 1, 20-21, 101 S.Ct. 2615, 2626-27, 69 L.Ed.2d 435 (1981).
It is true that the remedial scheme of Title I consists primarily of oversight by the Commissioner and administrative appeal. The Commissioner must approve a state plan in order for the state to receive funding, and the Commissioner can cut off funding for noncompliance with the plan.
But this remedial scheme does not demonstrate a congressional intent to foreclose enforcement of Secs. 721(a)(8) & (a)(9) under Sec. 1983. As the Supreme Court has stated on numerous occasions, ” ‘We do not lightly conclude that Congress intended to preclude reliance on Sec. 1983 as a remedy’ for the deprivation of a federally secured right.” Wright, 479 U.S. at 423-24, 107 S.Ct. at 770 (quoting Smith v. Robinson, 468 U.S. at 1012, 104 S.Ct. at 3468). In Wright, the Court held that the existence of similar federal oversight and administrative review did not preclude enforcement under Sec. 1983. Id. 479 U.S. at 424-29, 107 S.Ct. at 770-73. The Court distinguished Sea Clammers and Smith v. Robinson as follows: “In both Sea Clammers and Smith v. Robinson, the statutes at issue themselves provided for private judicial remedies, thereby evidencing congressional intent to supplant the Sec. 1983 remedy.” Id. at 427, 107 S.Ct. at 772. Not only does Title I contain no provision authorizing individuals to bring court actions, but courts have refused to imply a right of action under provisions of Title I. See Johnson-Lloyd v. Vocational Rehabilitation Office, 813 F.Supp. 1120, 1123-24 (E.D.Pa.1993); McGuire v. Switzer, 734 F.Supp. 99, 111 & n. 11 (S.D.N.Y.1990); Ryans v. New Jersey Comm‘n for the Blind and Visually Impaired, 542 F.Supp. 841, 845-46 (D.N.J.1982); Jones v. Illinois Dep‘t of Rehabilitation Servs., 504 F.Supp. 1244, 1249-51 (N.D.Ill.1981), aff‘d, 689 F.2d 724 (7th Cir.1982). But see Scott, 422 F.Supp. at 112-13 (sub silentio ). And appellant in effect concedes that there is no implied right of action under Secs. 721(a)(8) or (a)(9).
This concession, however, does not undermine appellant‘s claim under Sec. 1983. As we stated recently in Chan:
The fact that a statute conferring substantive rights does not itself give its beneficiaries a private right of action to enforce it does not mean that the beneficiaries are without a private remedy. Section 1983 ... may be available as a vehicle for remedying violations of federal statutes as well as constitutional violations. And unlike the inquiry into whether a substantive statute confers a direct private right of action, the Sec. 1983 inquiry begins with a presumption in favor of the right to bring suit, for the “general rule” is that Sec. 1983 provides a remedy for violations of federal statutory rights unless “Congress has affirmatively withdrawn the remedy,” Wilder, 496 U.S. at 509 n. 9, 110 S.Ct. at 2517 n. 9.
1 F.3d at 102-03 (citations partially omitted).
McGuire and Ryans make this distinction clear in the Title I context. Both of those cases, as previously noted, held that no direct right of action was available under the applicable provisions of Title I. Both also ruled, however, that those provisions could be enforced by an action under Sec. 1983. See McGuire, 734 F.Supp. at 111-12; Ryans, 542 F.Supp. at 846-49. We reach the same conclusion.
3. Legislative History
A review of the subsequent legislative history of the statute also supports our conclusion. In 1986, Congress amended Title I to remove review by the Secretary of Education of the state director‘s decisions concerning eligibility for Title I assistance and the formulation of IWRPs. Rehabilitation Act Amendments of 1986, Pub.L. No. 99-506, Sec. 203(b), 100 Stat. 1807, 1815-17 (codified as amended at
CONCLUSION
For the foregoing reasons, the Judgment of the district court is vacated and the case is remanded for consideration by the district court of the other grounds of appellees’ motion to dismiss the complaint.
Notes
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.