Opinion
Civil Action No. 01-CV-6788 (DGT)
September 30, 2003
MEMORANDUM AND ORDER
Plaintiff pro se Michael J. Wasser ("Wasser") commenced this action pursuant to the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. (the "Rehabilitation Act") and 42 U.S.C. § 1983 ("§ 1983") against (1) the New York State Office of Vocational and Educational Services for Individuals with Disabilities ("VESID"), (2) Lawrence Gloeckler ("Gloeckler"), the Deputy Commissioner of the New York State Education Department, in his official and individual capacities, and (3) Danna Mitchell, VESID's Brooklyn Office Manager, in her official and individual capacities. Plaintiff, a beneficiary of a federally-funded vocational rehabilitation services program administered by VESID, claims that defendants arbitrarily and capriciously denied him various benefits and services to which he is entitled under Title I of the Rehabilitation Act. The complaint seeks damages in the form of payment or reimbursement for benefits and services VESID did not provide him, as well as declaratory and injunctive relief.
Defendants now move to dismiss the complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, for lack of subject matter jurisdiction, and Rule 12(b)(6), for failure to state a claim for which relief can be granted.
Background (1)
Wasser is 27 years old and suffers from muscular dystrophy, which has rendered him "functionally a quadriplegic." Compl. ¶ 8. He is dependent for all activities of daily living and uses a computerized motorized wheelchair. See id. Wasser graduated from Brooklyn College with high honors in 1996 and was elected to Phi Beta Kappa. See id. In 1999, he graduated from Brooklyn Law School. See id. Thereafter, he sat for (and passed) the New York State Bar Examination. See id. In 2000, he was admitted the to bar, and he is presently employed as an attorney.See id.
Defendant VESID, a subdivision of the New York State Department of Education ("SED"), is a state agency that runs vocational rehabilitation programs funded by the federal government pursuant to Title I of the Rehabilitation Act. The goal of these programs is to provide counseling and other services necessary to enable disabled individuals to "prepare for and engage in gainful employment." 29 U.S.C. § 720(a)(2)(B). Under Title I of the Rehabilitation Act, the federal government provides grants to participating states to assist in the operation of
statewide comprehensive, coordinated, effective, efficient, and accountable programs of vocational rehabilitation [that are] designed to assess, plan, develop, and provide vocational rehabilitation services for individuals with disabilities consistent with their strengths, resources, priorities, concerns, abilities, and capabilities. . . .Id.
A state that elects to received Title I funding is required to abide by federal statutory and regulatory guidelines in implementing the vocational rehabilitation programs. "New York State has opted into the Federal fountainhead, through the Vocational Rehabilitation Law." Murphy v. Office of Vocational Educ. Servs. for Individuals with Disabilities, 92 N.Y.2d 477, 482, 683 N.Y.S.2d 139, 141, 705 N.E.2d 1180, 1182 (1998) (citing Educ. Law § 1001 et seq.). VESID administers New York's vocational rehabilitation programs and promulgates rules, regulations, and policies concerning the implementation of these programs. See id.; Mem. of Law in Support of Defs.' Mot. to Dis. ["Defs.' Mem."] at 3.
Defendant Gloeckler is a Deputy Commissioner of SED, in which capacity he is the head of VESID. See Compl. ¶ 4; Defs.' Mem. at 3. Defendant Mitchell is the Office Manager of VESID's Brooklyn District Office. See Compl. ¶ 5.
Because of his disability, Wasser qualified for participation in VESID's vocational rehabilitation program, and he became a client of VESID in 1992. See id. ¶ 9. As required under Title I, Wasser, in collaboration with VESID staff members, developed an Individualized Written Rehabilitation Plan, the ultimate goal of which was to enable Wasser to secure employment as a corporate lawyer. See id.
Pursuant to 1998 amendments to Title I, the document setting forth the employment goal is termed an Individualized Plan for Employment ("IEP").
In furtherance of his IWRP, plaintiff received counseling services from VESID as well as various other services and benefits, including desktop and laptop computer systems that were appropriately adapted to enable him to use them, transportation for his undergraduate education, sponsorship for internships during college, partial tuition at Brooklyn Law School, and transportation to law school. See Compl. ¶¶ 12, 13.
During the course of his relationship with VESID, Wasser had various disputes with the agency regarding the benefits to which he was entitled under his IWRP. The Rehabilitation Act — and the federal and state regulations promulgated pursuant to it — allow a beneficiary of VESID's vocational rehabilitation program who disagrees with agency determinations concerning the provision of benefits and services to obtain a hearing before an impartial hearing officer. See 29 U.S.C. § 722(c); 34 C.F.R. § 361.57(e); 8 N.Y.C.R.R. § 247.3. In 1993, while he was an undergraduate at Brooklyn college, Wasser initiated a fair hearing, challenging VESID's failure to provide him with a desktop computer equipt with speech recognition software and other devices to accommodate his disability. According to the plaintiff, the hearing officer, who was an attorney, reversed the agency's decision and "found VESID's technology expert as well as the evaluator hired by VESID to be evasive and not credible." Compl. ¶ 10. Plaintiff alleges that following the 1993 hearing, Mitchell "and the entire VESID agency, began to act vindictively and abusively towards [him]," a pattern of behavior that allegedly "continues to this day."Id.
After graduating from college, Wasser requested a fair hearing in 1997, concerning the acquisition and modification of a laptop computer for use during law school. Id. ¶ 11. Wasser alleged that Mitchell "knowingly violated VESID procedures, state and federal laws, regulations and policies by denying [him] an opportunity to meet with the evaluator hired by VESID to determine [his] needs for a laptop computer," and by ignoring letters from his physician and from Brooklyn Law School staff attesting to his needs. Id. Plaintiff further alleges that the hearing officer and VESID representatives engaged in various acts of misconduct during this administrative hearing. See id. According to Wasser, the dispute giving rise to this hearing was ultimately "settled," but nonetheless "VESID had managed to delay the acquisition of a much needed piece of rehabilitative technology for a year." Id.
First, Wasser alleges that VESID's attorney, Kenneth Pawson ("Pawson") engaged in an ex parte conversation with the hearing officer (who was not a lawyer), during which Pawson "discussed the computer facilities at Brooklyn Law School, and how to deny [Wasser] the ability to present his case." Id. ¶ 11. Plaintiff further asserts that Mitchell contacted plaintiff's doctor between hearing sessions and created a "business record" purporting to be a summary of her conversation with the doctor. According to Mitchell's record — which was never shown to Wasser's doctor to ensure its truthfulness — "plaintiff could type indefinitely." Id. Pawson proffered this document to the hearing officer as proof that plaintiff did not need the laptop computer he was seeking. See id.
At Wasser's request, a second fair hearing was held in 1997, during which plaintiff sought sponsorship — in the form of ambulette transportation and payment of fees — for attending summer courses at Brooklyn Law School. VESID denied Wasser this sponsorship, even though "it was within VESID policy to provide such transportation and fees, and . . . VESID had established a pattern and practice of sponsoring [Wasser's] internship activities during undergraduate school." Id. ¶ 12. Again, plaintiff alleges acts of misconduct by Pawson and the hearing officer. The hearing officer, who was not an attorney, upheld the agency's decision.
According to Wasser, "Pawson knowingly proffered inaccurate and false testimony from his witness[,] [and he] concealed an internal VESID directive which totally contradicted VESID's position at the hearing."Id. Wasser alleges that the hearing was "truncated" as a result of "an unsafe condition with the wheelchair accessible table which VESID had provided for Plaintiff's use during [the] hearing." First, "the hearing officer prevented [Wasser] from documenting [the] unsafe condition," and "[w]hen [Wasser's] mother attempted to photograph the unsafe condition of the table, the hearing officer lunged at her, pushing her to the ground. The hearing officer made a statement on the record about the events surrounding the unsafe condition, refused [Wasser] an opportunity to make a similar statement, and abruptly ended the hearing." Id.
As noted above, plaintiff graduated from Brooklyn Law School in 1999, and he sat for and passed the bar examination in July 1999. See id. ¶ 8. Prior to commencing employment in September 1999, Wasser informed Mitchell that he had secured employment. See id. ¶ 37. Mitchell asked for details about Wasser's employment. See id. Plaintiff provided some of the requested information, inquired as to the reason for other information and about the intended use of the information. See id. In the same correspondence, Wasser requested further counseling and services. See id.
The complaint does not enumerate the specific services and counseling that Wasser requested at this time.
In a letter dated March 17, 2000, Mitchell informed Wasser that because he had "attained the vocational objective on [his] Plan of Service and [had] been successfully employed for over 90 days," his case was closed.See Compl. ¶ 37; Spann Decl., Ex. 3 at 1. Mitchell acknowledged that VESID's "usual practice is to speak with a customer before closing the case," Spann Decl., Ex. 3 at 2, and explained that such a discussion was not initiated in Wasser's case because he had "made it clear that [he did] not desire to have any counseling contact with VESID staff. . . ."Id. Mitchell noted that, even though Wasser's case had been closed, an evaluation to determine his potential driving capabilities could still be arranged through VESID's Post Employment Services. See id. at 1. Mitchell further stated that other services Wasser might require could also be provided through Post Employment Services, or, if Wasser's needs were extensive, his case could be reopened. See id. at 2. Finally, Mitchell informed Wasser that if he disagreed with the closure of his case, he had the right to request a timely review through mediation or an impartial hearing. See id.
Thereafter, Wasser requested a fair hearing, seeking to have VESID pay (or reimburse him) for a variety of services and equipment. In particular, plaintiff sought:
Wasser has made it clear that he is only challenging this last hearing in the present suit, and that the previous hearings "are included in the complaint as evidence of the systematic abuse, corruption and illegal behavior of the Defendants." Pl.'s Ltr. of May 30, 2002.
• Reimbursement for that portion of his Brooklyn Law School tuition that VESID did not cover, pursuant to its policy and New York state regulations;
• Reimbursement for the 1998 Summer session at Brooklyn Law School, including the payment of a fee as well as transportation expenses for plaintiff's attendance at a summer internship and class;
• Reimbursement for "professional and other expenses," including fees for the bar examination;
• Payment for a "back-up" motorized wheelchair; and
• Payment for a conversion van, including the cost of modifications to the van to enable him to use it as a passenger or a driver.See id. ¶¶ 14-19. Wasser also sought recission of Mitchell's decision to close his case, asserting that the closure was "premature" and was carried out without his "input or consultation." Id. ¶ 20.
The hearing was held in a series of sessions before Hearing Officer David L. Marasciullo ("Marasciullo"), a psychologist, trained by VESID, who, according to plaintiff, is not an attorney and has no legal background. See id. ¶ 15. Wasser asserts that Marasciullo's ultimate decision in favor of the agency is "contrary to law, both substantive and procedural . . . and arises out an abuse of discretion." Id. ¶ 22.
By way of demonstrating the procedural inadequacy of the hearing, Wasser contends that Marasciullo was not impartial. For one thing, Wasser claims the New York State Department of Education is responsible for licensing psychologists, and that "[t]he relation between the State Education Department to the licensure of psychologists, and to VESID are too close for true impartiality." Id. ¶ 23. Plaintiff further alleges that Marasciullo demonstrated that he had "prejudged" the case at the beginning of the first session, when he denied Wasser the opportunity to make an opening statement, stating that Wasser's "claims against the agency were slanderous." Id. ¶ 24. As further evidence of Marasciullo's bias, Wasser alleges that during the hearing:
Marasciullo acted abusively towards [him] and [his] family. He chastised and insulted [Wasser] for requiring physical assistance. This included Marasciullo referring to [Wasser] and his family as clowns. Plaintiff's mother had to stand in front of Marasciullo to prevent him from accosting Plaintiff in the restroom as his father assisted him.Id. ¶ 27. Finally, Wasser contends that Marasciullo ignored Wasser's complaints concerning the unsafe condition of a wheelchair accessible table VESID provided, which was set up improperly causing it to wobble. "It was only after Plaintiff's mother interrupted Marasciullo, that the unsafe condition was addressed." Id.
In addition to the allegations of bias, Wasser asserts that Marasciullo was "incompetent." Id. ¶ 26. According to Wasser, "Marasciullo routinely failed to understand the issues presented at the hearing, failed to allow pertinent evidence to be admitted into the record, failed to understand the facts as they were presented, [and] failed to understand relevant law and policy." Id. For example, Wasser claims that Marasciullo made statements suggesting that "internal VESID policy was in fact federal law." Id.
At some point during the proceedings, Wasser's father submitted a petition to Gloeckler to have Marasciullo removed as hearing officer pursuant to Section 303 of the State Administrative Procedure Act. See id. ¶ 27. According to plaintiff, Gloeckler issued a decision finding that Marasciullo was acting properly as a hearing officer. See id. ¶ 31. Wasser also claims that he submitted a request to Gloeckler to "render an opinion as to the effect and meaning of several key sections of the NYCRR of the New York State Education Department." Id. Gloeckler allegedly ignored this request. See id.
In pertinent part, Section 303 of the State Administrative Procedure Act provides that "[u]pon the filing in good faith by a party of a timely and sufficient affidavit of personal bias or disqualification of a presiding officer, the agency shall determine the matter as part of the record in the case, and its determination shall be a matter subject to judicial review at the conclusion of the adjudicatory proceeding."
On March 22, 2001 — while the hearing was still pending, and after Wasser sought Marasciullo's removal as hearing officer — Marasciullo issued an interim decision. See Spann Decl., Ex. 6 ["Interim Dec."]. The interim decision indicated that Wasser had not cooperated with VESID because he failed to undergo a driver evaluation necessary to determine his needs and abilities with respect to transportation. See id. Marasciullo directed Wasser to complete the driver evaluation as soon as possible, and in any event, "before the next scheduled hearing on May 2, 2001." Id.
According to the interim decision, Wasser indicated at the hearing "that he has not undertaken this evaluation as it may affect his SSI Disability." Id.
Marasciullo's interim decision also made the following accusations against plaintiff's mother:
I find that the petitioner's mother, Mrs. Esther M. Wasser, has disrupted the hearing proceedings with repeated emotional outbursts. Mrs. Wasser has made slanderous and malicious character assassinations against the witness, Ms. Dana Mitchell, this hearing officer, Opposing Counsel, and many VESID employees past and present. Mrs. Wasser's inappropriate behaviors have disrupted the hearing process, and she is barred from attending further hearings.Id. Marasciullo further accused Wasser's mother of following him into an elevator after a hearing session on March 21, 2001, and shouting at him in an assaultive manner, "I know where you live. I'll get you. I have your address," and "You're a 75 year old man. You'd sell yourself for $500.00 a day." Id. As a result of this incident, Marasciullo ruled that Wasser's mother could not enter the building where the hearings were taking place, and would not be permitted to appear as a witness "until she obtains a Psychiatric evaluation[,]. . . attest[ing] to the fact that she is not a physical threat to this Hearing Officer, the employees of the VESID Brooklyn District Office, or to VESID counsel." Id.
Wasser asserts that Marasciullo's allegations against his mother are false, and that the interim decision was "beyond the scope of [Marasciullo's] powers." Compl. ¶ 27. Wasser claims that the interim decision prejudiced him in that his mother was prevented from continuing to "assist [him] in presenting the case by acting as his arms and legs," and she was unable to testify on his behalf. Id.
On July 18, 2001, Marasciullo rendered a final decision in Wasser's administrative hearing. Wasser Decl., Ex. 2 ["Final Dec."]. First, Marasciullo found Wasser in default because he failed to appear at a scheduled hearing on June 18, 2001. Marasciullo held that "all of [Wasser's] requests are denied as a result of this default." Interim Dec. at 3.
Nonetheless, Marasciullo proceeded to reach the merits. He found that VESID had provided Wasser "with adequate services within the power and scope of their organization as defined by state and federal law," and that Wasser had not "cooperated with VESID and his VESID counselor in providing the information necessary for his counselor to adequately help and assist him in his career planning." Id. at 1. Marasciullo concluded that Wasser: (1) "did not establish financial need within prescribed guidelines for financial assitance with tuition, a summer internship program in 1998[,] and the cost of the New York Bar Examination"; (2) "did not cooperate with VESID in completing the driver's evaluation"; and (3) "has not established the need for either a modified van or an additional motorized wheelchair." Id. at 1-2. According to Marasciullo, VESID had established that Wasser "may still obtain a driver's evaluation, a modified van (if he can drive) and an additional motorized wheelchair if and when he establishes a need for these items." Id. at 4.
VESID evidently argued that Wasser did not apply for reimbursement for the cost of the internship and the bar exam within established "time lines." Id. at 3 (summary of "Respondent's Position"). However, the final decision appears to rest on Wasser's failure to demonstrate "need" for this reimbursement rather than on timeliness considerations.
Finally, Marasciullo opined that "Wasser and his family (his mother and father) have utilized this hearing as a forum to insult, malign, and slander his past and present counselors, the VESID attorney and the Hearing Officer." Id. at 3. Referring to his interim decision, Marasciullo noted that "[i]t was necessary to bar [Wasser's] mother from the hearings as she threatened the Hearing Officer with bodily harm."Id.
By a letter dated August 13, 2001, Gloeckler informed Wasser of Marasciullo's decision. Gloeckler stated that the hearing constituted "the final review of these issues available to you within the New York State Education Department," and that to continue with his appeal Wasser could "pursue action through a court of competent jurisdiction." Wasser Decl., Ex. 3.
Wasser asserts that "Marasciullo's final decision was not based on facts." Compl. ¶ 30; see also id. ¶ 26 (asserting that Marasciullo "failed to allow pertinent evidence to be admitted into the record"). Wasser further contends that Marasciullo "failed to present any legally valid opinion," and that his ruling did not "follow the prescribed form" set forth in New York State regulations. Id. 30.
As to the finding of default, Wasser contends that his failure to appear on certain hearing dates was the result of Marasciullo's unreasonable refusal to grant Wasser's postponement requests. Id. ¶ 29. Plaintiff alleges that he requested that a hearing session scheduled for March 5, 2001 be postponed because of a forecasted blizzard, which resulted in the closure of the New York City public schools. Marasciullo denied the postponement request, and plaintiff did not attend the hearing. See id. Wasser failed to attend another hearing session because Marasciullo refused to grant a postponement necessitated by a medical appointment. Wasser alleges that Marasciullo held him in default "even when [he] submitted documentation of medical necessity as requested by the hearing officer." Id.
(2)
In September 2001, Wasser underwent a driver evaluation at the Kessler Institute for Rehabilitation, Inc. See Wasser Decl., Ex. 4. The Driver Rehab Specialist who performed the evaluation indicated that "Michael displays excellent instincts and potential for driving," and recommended "a unilever driving system evaluation to further determine [his] capabilities." Id. at 1. Pending further evaluation, the evaluator recommended "no driving at this time." Id. In a letter dated August 16, 2001, Mitchell contacted Wasser and indicated that further evaluation could be provided through an approved vendor named George Giesenhagen.See Wasser Decl., Ex. 5 at 1. Mitchell informed Wasser that as a prerequisite to "proceeding," he would need to, inter alia, complete a form "indicating that you are prepared to purchase a vehicle, and if there are any constraints on doing so." Id. at 2. It appears that Wasser has not yet completed the driver evaluation process. See Compl. ¶ 38 (seeking the cost of a van "pending the outcome of the evaluation and training").(3)
On October 15, 2001, Wasser filed the instant suit, asking this court to order VESID (1) to reimburse him for the full cost of tuition at Brooklyn Law School, including expenses for the 1998 Summer session; (2) to reimburse him for professional fees; (3) to purchase a van for him, pending the outcome of driving evaluation and training; (4) to pay for modifications to the van so that he can use it as a passenger or driver; and (5) to provide him with a back-up motorized wheelchair. Wasser further requests (6) declaratory and injunctive relief permanently enjoining defendants (a) from discriminating against severely disabled VESID customers by not sponsoring the full cost of education services in a private institution where the choice public institution does not account for the consumer's special needs; (b) from applying a cap on adaptive technology in the form of vehicle modification against plaintiff or any other individual; (c) from discriminating against severely disabled VESID consumers by not sponsoring the cost of a van if it is required due to the consumer's disability; and (d) from appointing hearing officers who are not lawyers.
Finally, Wasser seeks (7) the removal of Gloeckler's authority to appoint train and monitor Hearing Officers; and (8) the permanent removal or Marasciullo from the list of approved hearing officers for VESID and other SED agencies. See Compl. ¶ 38.
Discussion
The standards for evaluating a motion to dismiss are well-established. A complaint may not be dismissed pursuant to Rule 12(b)(6) "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 (1957). In ruling on a 12(b)(6) motion, a court must accept the plaintiff's allegations as true and must view them in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686 (1974).
Under Rule 12(b)(1), it is appropriate for the court to consider evidence dehors the complaint, in order to determine whether jurisdiction is lacking. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)
* * * *
Invoking the Rehabilitation Act and § 1983 as the basis for the court's jurisdiction, Wasser's complaint sets forth detailed factual allegations, but does not break down the relief sought into discrete causes of action. It is, therefore, difficult to discern the precise legal theories that underpin his various claims. Furthermore, it is not entirely clear which claims are asserted against which defendants, or, in the case of the individual defendants, whether relief is sought against them in their official or individual capacities.Fundamentally, Wasser appears to proceed along three avenues of attack. First, plaintiff asserts that, as applied to him, two of VESID's policies — concerning funding for tuition and the purchasing of a van — discriminate against him on the basis of the severity of his disability. Second, Wasser asserts a facial attack on these same VESID policies, as well as another policy that limits expenditures on vehicle modifications, arguing that they contravene Title I of the Rehabilitation Act and federal regulations promulgated pursuant to it. Lastly, plaintiff challenges the adequacy of the administrative hearing he received, and asks the court to countermand the final decision denying him various benefits, and to impose certain requirements on the agency in future administrative hearings — e.g., that the agency appoint only attorneys as hearing officers.
Discrimination Claims
Wasser asserts that defendants discriminated against him on the basis of the severity of his disability in two ways:
1) failing to fund the full amount of his tuition at Brooklyn Law School; and 2) failing to purchase a van to be modified for his use as a driver or passenger.
As for the first claim, New York state regulations provide that, to the extent necessary for an individual to achieve an employment outcome, VESID will pay for university training "in an amount not to exceed the tuition costs of attending the least expensive public institution of higher education within New York offering an academic vocational goal." 8 N.Y.C.R.R. § 247.14. In accordance with this regulation, Wasser was offerred — and evidently received — the equivalent of the full cost of tuition at SUNY Buffalo law school. See Compl. ¶ 14; Final Dec. at 3 (noting respondent's position that "[a]lthough Mr. Wasser was given the opportunity to attend a State Law School, he chose to go to Brooklyn Law School at his own expense"). Wasser contends that because of his disability, attending law school at SUNY Buffalo was not possible because it would have required him to leave "medical equipment, skilled and knowledgeable caretakers (including publicly-funded attendants and family members), and [his] physicians located in New York City." Compl. ¶ 14. Moreover, it would have been difficult for him to endure Buffalo's "harsh climate." Id. In challenging the tuition regulation as discriminatory, Wasser's theory appears to be that less severely disabled VESID clients, who could attend law school at SUNY Buffalo, would not incur any costs in receiving a law school education. However, because of the serverity of his disability, Wasser was forced to bear a significant personal expense, i.e., the difference in cost between tuition at SUNY Buffalo and Brooklyn Law School.
Pursuant to VESID's Policy 13500.00, concerning Vehicle Modifications and Adaptive Equipment (Sept. 1985), VESID covers certain costs associated with modifying a vehicle such that a disabled individual can use it as a driver and/or passenger. However, the policy provides that "[c]onsumers are expected to assume costs of the basic vehicle." See Wasser Decl., Ex. 1. Wasser avers that because of his disability, he is unable to transfer from his wheelchair to an economy car, and, therefore, requires a more expensive conversion van as a base vehicle. See Compl. ¶ 16. The putative discriminatory effect of VESID's blanket policy of not providing vehicles is that Wasser is required to make a more significant expenditure than a less severely disabled client who can transfer to a smaller car.
The statutory basis for these discrimination claims is unclear from the face of the complaint. The complaint suggests that the first discrimination claim is based on § 1983. See Compl. ¶ 14. However, "[i]t is familiar law that § 1983 does not create substantive rights, but simply provides the procedural mechanism through which a plaintiff may bring a suit for violation of a federal right."Bruneau ex rel. Schofield v. South Kortright Cent. School Dist., 163 F.3d 749, 756 (2d Cir. 1998). As for the alleged discrimination concerning the purchase of a van, the complaint does not provide any indication of the basis for the claim. See id. ¶ 16.
Section 1983 states:
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. . . .42 U.S.C. § 1983.
It appears that plaintiff's discrimination claims may be based on § 504 of the Rehabilitation Act, 29 U.S.C. § 794, which prohibits any program receiving federal funding from discriminating against an individual on the basis of a disability. Section 504 does not permit individual capacity suits against state officials. See Garcia v. S.U.N.Y. Health Sci. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001) (collecting cases). Thus, this provision cannot be used to assert discrimination claims against Gloeckler or Mitchell in their individual capacities. Defendants further argue that, to the extent Wasser asserts § 504 claims for damages against the individual defendants in their official capacities, or against VESID itself, those claims are barred by the Eleventh Amendment, and, in any event, do not state a claim under the Rehabiliation Act.
Section 504 provides, in relevant part, that
[n]o otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . .29 U.S.C. § 794.
As interpreted by the Supreme Court, the Eleventh Amendment bars all suits by a private person against a state, unless Congress has validly abrogated the state's immunity, or the state has waived its immunity to suit. See Board of Tr. of Univ. of Ala. V. Garrett, 531 U.S. 356, 121 S.Ct. 955 (2001) (holding that Congress man abrogate Eleventh Amendment "immunity when it both unequivocally intends to do so and acts pursuant to a valid grant of constitutional authority.") (internal quotation marks and citations ommitted); Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347 (1974) (holding that a state will be deemed to have waived Eleventh Amendment immunity "only where stated by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction") (internal quotation marks and citation omitted). The Second Circuit has held that SED is entitled to Eleventh Amendment immunity as an arm of the state. See United States v. City of Yonkers, 96 F.3d 600, 619 (2d Cir. 1996). VESID is a subdivision of SED, see Compl. ¶ 3, and is, therefore, likewise immune from suit under the Eleventh Amendment.
In 1986, Congress amended the Rehabilitation Act to provide that "[a] State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal Court for a violation of section 504 of the Rehabilitation Act." 42 U.S.C. § 2000d-7(a)(1). Initially, the Second Circuit upheld this abrogation provision as a valid exercise of Congress' power under § 5 of the Fourteenth Amendment. See Kilcullen v. New York State Dep't of Labor, 205 F.3d 77, 80-82 (2d Cir. 2000). A year later, however, the Second Circuit reversed this holding recognizing that it had been implicitly overruled by the Supreme Court's decision in Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 121 S.Ct. 955 (2001), which found that Congress had exceeded its authority under the Fourteenth Amendment in purporting to abrogate state sovereign immunity under Title I of the ADA. See Garcia, 280 F.3d at 110, 113.
The court in Garcia went on to conclude that, as § 504 was enacted under the Spending Clause of Article I of the Constitution, it could still provide a private cause of action against a state — notwithstanding the Eleventh Amendment — if the state had engaged in a "knowing and intentional waiver" of its sovereign immunity as a condition of accepting federal funds under the Rehabilitation Act. Id. at 113-14 (citing Florida Prepaid Postsecondary Educ. Expense Bd. v. College Savings Bank, 527 U.S. 627, 682, 119 S.Ct. 2199 (1999)). The Second Circuit then found that Congress had clearly expressed its "intent to condition acceptance of federal funds on a state's waiver of its Eleventh Amendment immunity" by enacting 42 U.S.C. § 2000d-7. Id. at 113. Nevertheless, the court concluded that at the time the defendant in Garcia allegedly violated the plaintiff's rights — September 1993 to August 1995 — New York could not have knowingly and intentionally waived its immunity by accepting the federal funds, because at that time, Title II of the ADA, which imposed requirements "virtual identical" to § 504, was "reasonably understood to abrogate New York's sovereign immunity under Congress' Commerce Clause authority." Id. Therefore, "a state accepting conditioned [Rehabilitation Act] funds could not have understood that in doing so it was actually abandoning its sovereign immunity from private damages suits since by all reasonably appearances state sovereign immunity had already been lost." Id.
In 1996, the Supreme Court held that Congress' powers under Article I of the Constitution — including the power to regulate interstate commerce — "cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction" by the Eleventh Amendment. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 72-73, 116 S.Ct. 1114 (1996). In so doing the court reversed its previous precedent indicating that the Commerce Clause granted Congress the authority to abrogate Eleventh Amendment immunity. See Pennsylvania v. Union Gas Co., 491 U.S. 1, 19-20, 109 S.Ct. 2273 (1989).
In a footnote, the Garcia court acknowledged that "the argument could be made that if there is a colorable basis for the state to suspect that an express congressional abrogation is invalid, then the acceptance of funds conditioned on the waiver might properly reveal a knowing relinquishment of sovereign immunity." Id. at 114 n. 4. The Second Circuit went on to state that "even supposing such an argument to have merit" it would still find no waiver of Eleventh Amendment immunity, because during the period of time relevant in that case, "even the most studied scholar of constitutional law would have had little reason to doubt the validity of Congress' asserted abrogation of New York's sovereign immunity to private damage suits under Title II [of the ADA]."Id.
Defendants argue that "because the events at issue in this case occurred prior to the Garcia opinion — at a time when New York reasoably believed its sovereign immunity already had been abrogated by the [ADA] — there was no effective waiver of immunity for claims arising under § 504 arising from New York's acceptance of federal funds" under the Rehabilitation Act. Defs.' Mem. at 9. It appears, however, that a "colorable basis" for New York to have suspected the invalidity of purported Eleventh Amendment abrogation under Title II of the ADA would have arisen at least as early as the Supreme Court decision in Garrett, in February of 2001 — even if the invalidity was not conclusively determined until the Second Circuit issued the Garcia opinion the following September. See Kilcullen v. New York State Dep't of Labor, 2003 WL 1220875, at *3 n. 1 (N.D.N.Y. Mar. 13, 2003) Indeed, one might argue that such a "colorable basis" arose even earlier —e.g., when the Supreme Court granted certiorari in Garrett on April 17, 2000. See 529 U.S. 1065, 120 S.Ct. 1669 (2000). Thus, in this case, it is at least arguable that at the time of Marasciullo's final decision affirming the VESID actions that Wasser challenges as discriminatory — July 18, 2001 — New York state already had good reason to doubt whether Title II of the ADA effectively abrogated its Eleventh Amendment immunity.
This issue need not be resolved, however, because, even if Wasser could overcome the barrier of Eleventh Amendment immunity, his discrimination claims fail on the merits. In order to state a discrimination claim under § 504, a plaintiff must show: (1) that he has a disability; (2) that he is otherwise qualified for the benefit that has been denied; (3) that he has been denied the benefit solely by reason of his disability; and (4) that the benefit is part of a program or activity receiving federal financial assistance. See Flight v. Gloeckler, 68 F.3d 61, 63 (2d Cir. 1995).
As an initial matter, the Second Circuit has held that the Rehabilitation Act does not
clearly establish an obligation to meet [a disabled person's] particular needs vis-à-vis the needs of other handicapped individuals, but mandates only that services provided nonhandicapped individuals not be denied [to a disabled person] because he is handicapped. . . . Thus, challenges to the allocation of resources among the disabled under the Rehabilitation Act are disfavored.Id. at 63-64 (internal quotation marks omitted) (quoting P.C. v. McLaughlin, 913 F.2d 1033, 1041 (2d Cir. 1990)). VESID's vocational rehabilitation programs are available only to individuals who meet the disability requirements set forth in the Rehabiliation Act. Therefore, plaintiff's assertion that he was discriminated against in the provision of services under Title I simply does not implicate the central concern animating § 504, viz. "to assure that disabled individuals receive evenhanded' treatment in relation to the able-bodied." Doe v. Pfrommer, 148 F.3d 73, 83 (2d Cir. 1999).
Moreover, even if it were theoretically possible to state a claim under § 504 for discrimination against the severely disabled in favor of the less-severely disabled, see, e.g., Messier v. Southbury Training School, 916 F. Supp. 133 (D. Conn. 1996), it is difficult to see how the challenged policies in this case are in fact discriminatory. Indeed, both the regulatory formula used to determine tuition funding and VESID's policy of not purchasing base vehicles apply to all VESID clients. Thus, Wasser is not challenging the discriminatory distribution of rehabilitation services among VESID clients with differing disabilities; rather, he seeks services that the agency simply does not provide. Insofar as plaintiff seeks to compel VESID to modify its policies to provide him additional benefits in light of the particular needs created by his disability, he is in essence challenging "the adequacy of his VESID services, not illegal disability discrimination." Doe, 148 F.3d at 82.
For these reasons, defendants' motion to dismiss Wasser's discrimination claims is granted. Judicial Review of Administrative Hearing: 29 U.S.C. § 722(c)(5)(J)(i)
As amended in 1998, the Rehabilitation Act provides a mechanism for an individual "aggrieved by a final decision" under the administrative review process established by the state agency to bring a civil action in a United States district court "for review of such decision." 29 U.S.C. § 722(c)(5)(J)(i). The statute further indicates that a reviewing court "shall receive the records relating to the [administrative hearing]," and "shall hear additional evidence at the request of a party to the action." Finally, the court is directed to base its decision on "the preponderance of the evidence" and to "grant such relief as the court determines to be appropriate." Id. § 722(c)(5)(J)(i)(I), (II), (III). Neither the statute nor the administrative regulations promulgated under it, see 34 C.F.R. § 361.57, provide any further guidance as to who is a proper defendant in a civil action filed under § 722 or specifically what type of relief the court may grant. Cf. 42 U.S.C. § 405(g) (providing for judicial review of the final decision of the Commissioner of Social Security regarding applications for Social Security benefits). The parties have not briefed these issues, and the court has not located any federal case law applying the appeal provisions.
Defendants argue that Wasser is not entitled to initiate a civil action seeking review of the hearing officer's decision for three reasons: 1) he failed to exhaust administrative remedies; 2) his request for administrative review was untimely as to some of his claims; 3) his claim for a modified van is not ripe.
Exhaustion
The private right of action under § 722 of the Rehabilitation Act is available only to a party aggrieved by a "final" decision in administrative proceedings concerning "determinations made by" VESID.See 29 U.S.C. § 722(c)(1). Defendants assert that the exhaustion of administrative remedies is a prerequisite to federal court review under this statute.
Defendants claim that Wasser never applied for reimbursement for professional expenses, such as the cost of taking the bar examination, and therefore VESID made no determination at all for plaintiff to challenge.See Defs.' Mem. at 13. Wasser counters that he did request such reimbursement. Although defendants may have an argument that Wasser's request for these benefits was untimely, it cannot be said that he failed to exhaust administrative remedies with respect to his claims for reimbursement when the agency held a hearing and issued a final decision on the merits addressing the issue.
As to Wasser's other claims, defendants assert that plaintiff failed to exhaust his administrative remedies under Title I by failing to appear at scheduled hearing sessions, thus "pull[ing] out of the administrative hearings which are a prerequisite under the Act" to obtaining judicial review. Def.'s Mem. at 13. Citing case law from suits under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq. (the "IDEA"), defendants argue that Wasser's failure to appear at his administrative hearing bars him from seeking relief in this court.
The allegations in Wasser's complaint paint a different picture: Wasser claims that he attempted to avail himself fully of the administrative hearing, but was unreasonably denied postponments of hearing sessions, and was arbitrarily held in default before the hearing was properly concluded. The facts and circumstances surrounding Marasciullo's determination that Wasser was in default are in dispute and cannot properly be determined on the pleadings. However, crediting Wasser's version of events — and assuming that a failure to adequately exhaust administrative remedies would bar recourse to the federal courts through the private right of action now available under § 722 of the Rehabilitation Act — the IDEA cases cited by defendants are clearly distinguishable. Each of those cases involves a situation in which the plaintiff either failed to initiate administrative action altogether before filing suit, see Polera v. The Bd. of Educ. of the Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 480 (2d Cir. 2002) ("[Plaintiff] never sought relief for her grievances through the administrative process."), or attempted to file suit after unilaterally withdrawing from pending administrative proceedings. See Sabur v. Brosnan, 203 F. Supp.2d 292, 300 (E.D.N.Y. 2002) (holding that parents failed to exhaust administrative remedies for claim brought on behalf of child under IDEA when they "unilaterally withdrew" from an administrative hearing and proceeded to file suit in federal district court); Kielbus v. New York City Bd. of Educ., 140 F. Supp.2d 284, 289 (E.D.N.Y. 2001) (holding that plaintiff failed to exhaust administrative remedies when he "withdrew from the administrative hearing process during the final stages of negotiations just at the point where proposed settlements would have yielded the result he sought . . .").
Moreover, notwithstanding his ruling that Wasser was in default based on nonappearances, Marasciullo also ruled on the merits — providing the "final decision" necessary to trigger federal district court review under § 722.
Timeliness
New York State regulations promulgated under Title I of the Rehabilitation Act require that a request for an impartial hearing regarding VESID actions or decisions "shall be made no later than 90 days after the individual is informed of the agency's decision or action which the individual seeks to review." 8 N.Y.C.R.R. § 247.4. New York's administrative review procedures were promulgated under an explicit grant of authority from Congress. See 29 U.S.C. § 722(c)(1) (stating that each state shall establish procedures for administrative review of determinations by agency personnel). Defendants argue that Wasser's reimbursement claims are "grossly untimely" under New York's regulations: VESID paid the challenged tuition rates between 1996 and 1999; the summer school session for which Wasser seeks reimbursement was in 1998; and, according to the complaint, Wasser took the bar examination in July 1999. However, Wasser did not initiate administrative hearing seeking review of VESID's denial of these benefits until 2000 — well after the 90-day time limit established in the state regulations.
Defendants assert that "[p]laintiff's failure to make a timely request for administrative review bars his challenges to these VESID decision." Def.'s Mem. at 16. Although the limitations period set forth in the federal reguations may well have justified VESID's refusal to provide an administrative hearing with regard to Wasser's reimbursement claims, the fact is that the agency chose to arrange a hearing, and the hearing officer issued a final decision on the merits. Thus, the only statutory prerequisite to judicial review, viz. a "final decision" of the agency, has been met. See 29 U.S.C. § 729(c)(5)(J) ("Any party aggrieved by a final decision . . . may bring a civil action for review of such decision.").
Wasser's failure to request a timely administrative hearing as to some of his claims does not bar this suit given that an administrative hearing was held and a final decision on the merits was issued as to those claims for which VESID now claims the original request for administrative review was untimely. Ripeness
Defendants assert that Wasser's claims concerning the provision of a modified van equipt to enable plaintiff to use it as a passenger or driver are not ripe for judicial review.
Defendants' argument is that until Wasser completes the driver evaluation process outlined in Mitchell's letter of August 16, 2001, there is no evidence that plaintiff will, in fact, be able to drive the van. It appears, however, that before it will provide the evaluation, VESID requires Wasser to purchase (or commit to purchasing) the van to be modified. See Wasser Decl., Ex. 5. As discussed above, pursuant to VESID's vehicle modifications policy, VESID does not purchase the basic vehicle to be modified. See Wasser Decl., Ex. 1. One of Wasser's arguments is that the van constitutes "rehabilitative technology," which, he maintains, VESID is required to provide under Title I. In the end, this dispute concerning the scope of services required under the Rehabilitation Act is justiciable, and, it would seem, could be resolved on judicial review under § 722.
* * * *
In sum, Wasser is entitled to seek review in this court of the final administrative decision issued by Marasciullo on July 18, 2001. VESID is, accordingly, ordered to submit to the court a copy of the record of the administrative proceedings conducted in Wasser's final fair hearing, including the transcripts of the hearing sessions, and any documentary or other evidence entered into the record. Both parties are further directed to submit any additional evidence they wish the court to consider pursuant to 29 U.S.C. § 722(c)(5)(J)(i)(I). Because, as noted above, the proper defendant in an action for judicial review under § 722, the standard of review, and the nature and scope of available remedies appear to be matters of first impression, the parties shall file supplemental briefs addressing these issues. The court notes that it will be necessary to determine how, if at all, Eleventh Amendment immunity limits the court's discretion in granting appropriate relief. § 1983
Because Wasser has made it clear that he does not seek judicial review of the other hearings referenced in the complaint, the record of those proceedings need not be submitted.
As noted above, Wasser's complaint invokes § 1983 as one of the bases for the court's jurisdiction over this action — albeit without providing much guidance as to the applicability of the statute.See Compl. ¶¶ 7, 14. Prior to the 1998 amendments to Title I of the Rehabilitation Act, the Second Circuit held that a client of VESID could bring an action under § 1983 to challenge a state policy on the grounds that it is inconsistent with "Title I's federal rules and regulations." Doe, 148 F.3d at 78 (citing Marshall v. Switzer, 10 F.3d 925, 929 (2d Cir. 1993)); see also Mallett v. Wisconsin Div. of Vocational Rehabilitation, 130 F.3d 1245 (7th Cir. 1997) (same).
Construing the complaint liberally, it appears that Wasser challenges two VESID policies and one New York state regulation on the ground that they contravene the requirements of Title I. First, Wasser asserts that the state regulation limiting tuition funding, see N.Y.C.R.R. § 247.14, fails to account for his "particular needs" as required by Title I. See Compl. ¶ 38; Pl.'s Reply Mem. in Opp'n to Defs.' Mot. to Dis. ["Pl.'s Mem."] at 9; Marshall, 10 F.3d at 929-30 (noting the limitations placed on state agency discretion by "Title I's pervasive policy of tailoring the provision of services to meet the individual needs of each client."). Second, Wasser challenges VESID's policy of not purchasing base vehicles for modification, asserting that the vehicle itself constitutes "rehabilitation technology," the availability of which federal regulations require VESID to "ensure." 34 C.F.R. § 361.48(q); Compl. ¶ 15 (asserting that "a vehicle equipped [for plaintiff's use] as a driver or passenger," constitutes "rehabilitative technology"); Pl.'s Mem. at 9-10. Lastly, Wasser claims that VESID's policy capping expenditures on vehicle modifications conflicts with a federal regulation that prohibits "absolute dollar limits on specific service categories." 34 C.F.R. § 361.50.
Presumably, these issues may be raised in connection with the judicial review of plaintiff's administrative hearing under § 722 of Title I. However, in light of the 1998 amendments to Title I, it is unclear whether a separate § 1983 remedy remains viable in Wasser's case. In general, § 1983 may be used to redress a state agency's violation of a federal statute only when two requirements are met: 1) the statutue at issue must create "`eforceable rights, privileges, or immunities within the meaning of § 1983'"; and 2) Congress must not have "`foreclosed such enforcement of the statute in the enactment itself.'" Suter v. Artist M., 503 U.S. 347, 355, 112 S.Ct. 1360 (1992) (quoting Wright v. Roanoke Redev. Hous. Auth., 479 U.S. 418, 423, 107 S.Ct. 766 (1987)). As far as the first prong of this test is concerned, under the version of Title I in effect prior to 1998, § 721 required that the state plan submitted for federal approval by each participating state provide, at a minimum, for the provision of specified vocational rehabilitation services enumerated in § 723 of the statute. See 29 U.S.C. § 721(a)(8) (1994); id. § 723 (1994). The Second Circuit found that this version of Title I created "enforceable rights" because the statute "specifically list[ed] the goods and services that states must furnish . . . thus provid[ing] a measuring rod for compliance." Marshall, 10 F.3d at 929. Moreover, the mandatory language of the statute seemed to reflect a congressional intent to curtail agency discretion in determining the scope of services required under the federal mandate. Id. at 929.
As amended in 1998, § 723 continues to list vocational rehabilitation services that are available under the statute. Significantly, however, the amended version of § 721 omits the explicit mandate that a state plan must, at a minimum, provide the services set forth in § 723. At first blush, this omission would seem to reflect Congress' intent to increase the autonomy and discretion of state agencies in determining the scope of services provided. Confusingly, however, the currently effective federal regulations promulgated under Title I provide that the state agency "must ensure" that a series of enumerated "rehabilitation services" — including, inter alia, "rehabilitation technology" — is available "to assist the individual with a disability in preparing for, securing, retaining, or regaining an employment outcome that is consistent with the individual's strengths, resources, priorities, concerns, abilities, and informed choice." 34 C.F.R. § 361.48. While the regulations do contemplate that the state agencies will implement policies "concerning the nature and scope of each of the [enumerated] vocational rehabilitation services," id. § 361.50(a), these policies "must ensure the provision of services is based on the rehabilitation needs of each individual as identified in that individual's [Individualized Plan for Employment] and is consistent with the individual's informed choice." Id. Thus, the federal regulations promulgated under the amended version of Title I apparently continue to mandate the provision of specific services, and to limit state agency discretion in establishing policies that govern the availability of these services. Even if it were determined that the 1998 amendments to Title I eliminated whatever "enforceable rights" previously existed under the statute, it would not necessarily follow that Wasser lacks effective recourse to § 1983 simply because his lawsuit was initiated after 1998. Indeed, plaintiff has been a client of VESID since 1992, and his IWRP was developed prior to the amendments to Title I. It is, therefore, by no means clear that the amendment would apply retroactively to divest Wasser of enforceable rights that may have accrued with respect to his IWRP prior to the effective date of the amendments. The newly-minted private cause of action for judicial review of a final agency determination under § 722 raises further questions as to the continued availability of a § 1983 remedy in this case — insofar as the courts have viewed express or implied private rights of action under a statute as evidencing a congressional intent to foreclose a § 1983 remedy. See, e.g., Bruneau, 163 F.3d at 756 ("The availability of a private judicial remedy is . . . evidence of a congressional intent to supplant a § 1983 remedy.") (citing Wright, 479 U.S. at 427, 107 S.Ct. at 772); Doe, 10 F.3d at 81 (noting that the Second Circuit recognized a right to a assert a § 1983 claim based on a violation of Title I "because no private right of action existed under Title I"). Moreover, because the private right of action now available under Title I arises from an amendment to the statute, this case appears to raise a further complication — namely, whether a congressional amendment providing a private cause of action operates, in the absence of language specifically directed to the issue, to supplant a § 1983 remedy recognized by the courts prior to the amendment, at a time when no private cause of action was thought to be available.
It appears that the list is non-exhaustive. Indeed, the statute broadly defines vocational rehabilitation services as "any services described in an individualized plan for employment necessary to assist an individual with a disability in preparing for, securing, retaining, or regaining an employment outcome that is consistent with the strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice of the individual. . . ." 29 U.S.C. § 723(a).
The parties' briefs do not touch on these questions, which appear to be matters of first impression. In order to facilitate the proper adjudication of plaintiff's claims, the court directs the parties to submit supplemental briefs addressing the availability of a claim under § 1983 in light of the 1998 amendments to Title I. The court, accordingly, reserves decision on Wasser's § 1983 claims challenging VESID policies on the ground that they contravene the requirements of Title I.
Third Party Standing
Plaintiff's complaint purports to assert several claims for relief on behalf of VESID clients other than himself. See Compl. ¶ 38 (seeking declaratory and injunctive relief on behalf of "severely disabled VESID customers"); id. (seeking declaratory and injunctive relief on behalf of "plaintiff or any other individual . . ."). In general, litigants lack standing to raise claims on behalf of other individuals. Under Supreme Court precedent, a plaintiff must meet three requirements in order to establish such third-party standing. First, the plaintiff must have suffered an injury in fact; second, the litigant must have a close relationship with the third party; third, there must exist some hindrance to the third parties' ability to protect their own interests. See Powers v. Ohio, 499 U.S. 400, 410, 111 S.Ct. 1364 (1991). Here, Wasser's complaint does not establish any basis for inferring that the third parties he purports to represent are in any way hindered from pursuing judicial remedies on their own — just as he has. Accordingly, Wasser lacks standing to pursue any claims that are asserted on behalf of others, and those claims are, accordingly, dismissed.
Conclusion
For the reasons stated above, defendants' motion to dismiss plaintiff's discrimination claims is granted. The court concludes that plaintiff is entitled to judicial review of the final administrative decision issued on July 18, 2000. VESID is directed to submit to the court a copy of the administrative record. Both parties are to submit any further evidence they wish the court to consider, as well as supplemental briefs concerning the proper defendants, standard of review and available remedies under § 722.The motion to dismiss the § 1983 claims is denied at this time, pending the submission of supplemental briefs addressing the issues raised in this memorandum and order. However, to the extent plaintiff seeks relief on behalf of third-parties, those claims are dismissed for lack of standing.