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JONES v. ILLINOIS DEPT. OF REHABILITATION SERV.

January 12, 1981

CHARLES P. JONES, PLAINTIFF,
v.
THE ILLINOIS DEPARTMENT OF REHABILITATION SERVICES AND JAMES S. JEFFERS, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE ILLINOIS DEPARTMENT OF REHABILITATION SERVICES, AND THE ILLINOIS INSTITUTE OF TECHNOLOGY, AND DR. THOMAS L. MARTIN, JR., IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE ILLINOIS INSTITUTE OF TECHNOLOGY, DEFENDANTS.



The opinion of the court was delivered by: Flaum, District Judge:

MEMORANDUM OPINION

This matter comes before the court on cross-motions for summary judgment. For the reasons set forth below, each motion is granted in part and denied in part.

The parties have stipulated to the facts. Plaintiff is a deaf person and therefore is a handicapped individual within the meaning of section 7(7)*fn1 of the Rehabilitation Act of 1973, 29 U.S.C. § 701-794 (1976), as amended by Rehabilitation Act Amendments of 1974, Pub.L.No. 93-516, 88 Stat. 1617 (codified in scattered sections of 29 U.S.C. (1976)), Rehabilitation Act Extension of 1976, Pub.L.No. 94-230, 90 Stat. 211 (codified in scattered sections of 29 U.S.C. (1976)), Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978, Pub.L.No. 95-602, 92 Stat. 2955 (codified in scattered sections of 29 U.S.C. (Supp. 1980)) (the "Act"), and is a qualified handicapped person within the meaning of 45 C.F.R. § 84.3(k) (1979).*fn2 Defendant Illinois Department of Rehabilitation Services ("IDRS") is the agency of the state of Illinois which administers that state's vocational rehabilitation program and receives financial assistance from the Rehabilitation Services Administration*fn3 in order to carry out the state vocational rehabilitation program. Defendant James S. Jeffers ("Jeffers") is the Director of IDRS and as such is responsible for the direction and administration of IDRS. Defendant Illinois Institute of Technology ("IIT") is a not for profit corporation under the laws of the state of Illinois and is a postsecondary educational institution. IIT is a recipient of federal financial assistance and has agreed to comply with section 504 of the Act, 29 U.S.C. § 794,*fn4 and its implementing regulation, 45 C.F.R. §§ 84.41-84.47, as a condition of receiving such financial assistance. Defendant Dr. Thomas L. Martin, Jr. ("Martin"), is the President of IIT and as such is responsible for the administration of IIT.

Plaintiff, who is a student at IIT majoring in mechanical engineering, must have the services of a qualified interpreter in order to effectively participate in and benefit from his classes and to complete his academic program at IIT. IDRS has determined that plaintiff is eligible*fn5 for vocational rehabilitation services,*fn6 as those terms are used in 45 C.P.R. § 1361.1.

On August 10, 1979 Jeffers advised IIT in writing that IDRS could not legally assume the cost of interpreter services for plaintiff's classes at IIT which were to begin in the Fall of 1979. On August 27, 1979 plaintiff began his mechanical engineering classes at IIT and IIT provided a qualified sign language interpreter for plaintiff. On October 4, 1979 IIT wrote Jeffers stating that IIT would not continue to provide interpreter services to plaintiff. IDRS provided interpreter services to plaintiff from October 8, 1979 until October 26, 1979 when Jeffers finally determined that IDRS would make no further payments for interpreter services for plaintiff. On October 29, 1979 IIT resumed providing interpreter services for plaintiff and continued to do so until the end of his first semester on December 18, 1979. On December 11, 1979 IIT informed plaintiff that IIT would not provide interpreter services for plaintiff's second semester classes. Subsequently, IDRS and IIT agreed to share the cost of interpreter services for plaintiff pending determination of the cross-motions for summary judgment.

Plaintiff contends that the failure of IDRS and Jeffers to provide plaintiff with interpreter services violates section 103(a)(6) of the Act, 29 U.S.C. § 723(a)(6),*fn7 and the regulation promulgated thereunder, 45 C.F.R. § 1361.1(ee);*fn8 section 504 of the Act, 29 U.S.C. § 794,*fn9 and the regulations promulgated thereunder, 45 C.F.R. § 84.4*fn10 and 84.52;*fn11 and the equal protection clause of the fourteenth amendment to the United States Constitution.*fn12 Plaintiff contends that the failure of IIT and Martin to provide plaintiff with interpreter services violates section 504 of the Act*fn13 and the regulation promulgated thereunder, 45 C.F.R. § 84-44(d).*fn14 IIT and Martin contend that the primary obligation for provision of interpreter services to plaintiff is imposed upon IDRS, relying upon the Analysis of the Final Regulations, 45 C.F.R. pt. 84, app. A, ¶ 31.*fn15 With respect to the claim under section 103(a) of the Act, IDRS and Jeffers contend that there is no private right of action under title I of the Act, 29 U.S.C. § 720-751, that plaintiff failed to exhaust his administrative remedies, that the court lacks subject matter jurisdiction, and that claims for monetary relief against IDRS and Jeffers are barred by the eleventh amendment to the United States Constitution.*fn16 With respect to the claims under section 504 of the Act, IDRS and Jeffers contend that sections 101(a)(8), 101(a)(12), and 103(a)(3) of the Act, 29 U.S.C. § 721(a)(8), 721(a)(12)*fn17 and 723(a)(3),*fn18 prohibit IDRS from providing interpreter services to plaintiff, that IIT and Martin do not have standing, and that claims for monetary relief against IDRS and Jeffers are barred by the eleventh amendment.

The court will first address plaintiff's claim under title I of the Act. The purpose of title I is to authorize grants to assist states in meeting the current and future needs of handicapped individuals, so that such individuals may prepare for and engage in gainful employment to the extent of their capabilities. Section 100(a) of the Act, 29 U.S.C. § 720(a).*fn19 Under part A of title I each state is required to submit to the Commissioner of the Rehabilitation Services Administration (the "Commissioner") a state plan for vocational rehabilitation services for a three-year period in order to be eligible to participate in programs under title I. Section 101 of the Act, 29 U.S.C. § 721(a).*fn20 Part A of title I also specifies the contents of each state plan (section 101(a) of the Act, 29 U.S.C. § 721(a))*fn21 and requires the Commissioner to insure that the individualized written rehabilitation program for each handicapped individual developed jointly by the vocational rehabilitation counselor or coordinator and the handicapped individual meets certain enumerated requirements (section 102(a)-(b) of the Act, 29 U.S.C. § 722(a)-(b)).*fn22 Finally, part A of title I defines the scope of vocational rehabilitation services provided to individuals under title I as any goods or services necessary to render a handicapped individual employable and gives a noninclusive list of such goods or services. Section 103(a) of the Act, 29 U.S.C. § 723(a).*fn23

Any discussion of whether a private cause of action is implied under a statute must begin with the factors identified in Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975):

    In determining whether a private remedy is
  implicit in a statute not expressly providing
  one, several factors are relevant. First, is the
  plaintiff "one of the class for whose
  especial benefit the statute was enacted," . . . —
  that is, does the statute create a federal right in
  favor of the plaintiff? Second, is there any
  indication of legislative intent, explicit or
  implicit, either to create such a remedy or to deny
  one? . . . Third, is it consistent with the
  underlying purposes of the legislative scheme to
  imply such a remedy for the plaintiff? . . . And
  finally, is the cause of action one traditionally
  relegated to state law, in an area basically the
  concern of the States, so that it would be
  inappropriate to infer a cause of action based
  solely on federal law?

The Supreme Court has decided that each of these factors is not entitled to equal weight and has indicated that in appropriate cases it is necessary to consider only the first two or three factors. Touche Ross & Co. v. Redington, 442 U.S. 560, 575-76, 99 S.Ct. 2479, 2489, 61 L.Ed.2d 82 (1979); Davis v. Ball Memorial Hospital Ass'n, 640 F.2d 30, at 44, (7th Cir. 1980).

The first question, whether the statute was enacted for the benefit of a special class of which plaintiff is a member, is answered by looking to the language of the statute itself. Cannon v. University of Chicago, 441 U.S. 677, 689, 99 S.Ct. 1946, 1953, 60 L.Ed.2d 560 (1979). Language in the statute which expressly identifies the class Congress intended to benefit and which confers a right directly on a class of persons that includes the plaintiff or creates a duty in favor of the plaintiff is generally the most accurate indicator of the propriety of implication of a cause of action. Id. at 690 & n. 13, 99 S.Ct. at 1954 & n. 13; Simpson v. Reynolds Metals Co., Inc., 629 F.2d 1226, 1239 (7th Cir. 1980). The purpose of title I

  is to authorize grants to assist States to meet
  the current and future needs of handicapped
  individuals, so that such individuals may prepare
  for and engage in gainful employment to the
  extent of their capabilities. Section 100 of the
  Act, 29 U.S.C. § 720.

There is thus no doubt that plaintiff is among the class for whose especial benefit this legislation was enacted. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 61, 98 S.Ct. 1670, 1678, 56 L.Ed.2d 106 (1978). While handicapped individuals are the class for whose especial benefit title I was enacted, by its terms, the language of title I does not manifestly endow any handicapped individual with a private judicial remedy. Simpson v. Reynolds Metals Co., Inc., 629 F.2d at 1239. Rather, the language permits: (1) a state, if the Commissioner has disapproved a plan because it does not fulfill the considerations specified in section 101(a) or if the Commissioner has found either that a state plan has been so changed that it no longer complies with the requirements of section 101(a) or that in the administration of the plan there is failure to comply substantially with any provision of the plan, to obtain judicial review of the Commissioner's determination in the United States Court of Appeals for the circuit in which the state is located, section 101 of the Act, 29 U.S.C. § 721;*fn24 and (2) a handicapped individual, who is not satisfied with the review by the director of the state agency designated to administer the state plan of the determination made by the rehabilitation counselor or coordinator regarding his individualized written rehabilitation program, to request the Secretary to review the decision of the director, section 102(d) of the Act, 29 U.S.C. § 722(d).*fn25 The lack of any right- or duty-creating language in title I makes implication of a private judicial remedy difficult. Id. at 1240.

The second question, whether there is any indication of legislative intent either to create such a remedy or to deny one, must be answered in the negative. There is no indication whatever in the legislative history of title I which suggests a Congressional intention to create or deny a private cause of action under title I. While the absence of anything in the legislative history that indicates an intention to confer any private right of action is hardly helpful to plaintiff, it does not automatically undermine his position. Transamerica Mortgage Advisors, Inc. (TAMA) v. Lewis, 444 U.S. 11, 18, 100 S.Ct. 242, 246, 62 L.Ed.2d 146 (1979). Here Congress has expressly provided both judicial and administrative means for enforcing compliance with title I. Where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it. Id. at 19. "When a statute limits a thing to be done in a particular mode, it includes the negative of any other mode." Id. at 20 (quoting Botany Worsted Mills v. United States, 278 U.S. 282, 289, 49 S.Ct. 129, 132, 73 L.Ed. 379 (1929)). Furthermore, in 1978 when Congress amended the Act to expressly provide that the same remedies, procedures and rights set forth in title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d to 2000d-4, were applicable to any person aggrieved by any act or failure to act by any recipient of federal assistance or federal provider of such assistance under section 504 of the Act, section 505 of the Act, 29 U.S.C. § 794a,*fn26 it amended section 102 of the Act to provide for review of final decisions of a director by the Commissioner, 29 U.S.C. § 722(d)(2).*fn27 These amendments indicate an intention not to extend a private right of action to such cases under title I. Davis v. Ball Memorial Hospital Ass'n, slip op. at 45.

The provision of an express judicial remedy for a state which is unsatisfied with the Commissioner's determination and of an express administrative remedy for a handicapped individual who is unsatisfied with his individualized written rehabilitation program indicates that the third question, whether it is consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff, must also be answered in the negative.

  [U]nder Cort, a private remedy should not be
  implied if it would frustrate the underlying
  purpose of the legislative scheme. On the other
  hand, when that remedy is necessary or at least
  helpful to the accomplishment of the statutory
  purpose, the Court is decidedly receptive to its
  implication under the statute. Cannon v. University
  of Chicago, 441 U.S. at 703, 99 S.Ct. at 1961
  (footnote omitted).

The express provision of both judicial and administrative remedies, insofar as it discloses the underlying purposes of the legislative scheme, suggests that implication of a private right of action would be inconsistent with the legislative scheme. Simpson v. Reynolds Metals Co., Inc., 629 F.2d at 1243.

After considering the first three factors enunciated in Cort v. Ash, the court concludes that a private right of action cannot be implied under title I.*fn28 Therefore, with respect to title I of the Act, the motion of IDRS and Jeffers for summary judgment is ...


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