United States District Court, D. Oregon
RENEE M. SNELL, Plaintiff,
STATE OF OREGON, DEPARTMENT OF HUMAN SERVICES, Defendant.
M. Snell, pro se.
F. Rosenblum, Attorney General, and Jesse B. Davis, Senior
Assistant Attorney General, Of Attorneys for Defendant.
OPINION AND ORDER
MICHAEL H. SIMON, UNITED STATES DISTRICT JUDGE
Renee M. Snell seeks judicial review of state administrative
proceedings relating to services that the Oregon Department
of Human Service's Vocational Rehabilitation
(“DHS” or “VR”) provided to
Plaintiff. An independent hearing officer and reviewing
official concluded that VR did not breach its agreement with
Plaintiff by requiring a neurological assessment and VR did
not improperly deny job placement services or a referral for
job development to Plaintiff by requiring a neurological
assessment. After receiving and reviewing the administrative
records pertaining to Plaintiff's case, and considering
additional evidence provided by Plaintiff in this action, the
Court concludes by a preponderance of the evidence that that
the state hearing officer and reviewing official did not err.
See 29 U.S.C. § 722(c)(5)(J). Both parties filed motions
for summary judgment. Defendant's motion for summary
judgment is granted. Plaintiff's motion for summary
judgment is denied.
is entitled to summary judgment if the “movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The moving party has the burden of
establishing the absence of a genuine dispute of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). The court must view the evidence in the light most
favorable to the non-movant and draw all reasonable
inferences in the non-movant's favor. Clicks
Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257
(9th Cir. 2001). Although “[c]redibility
determinations, the weighing of the evidence, and the drawing
of legitimate inferences from the facts are jury functions,
not those of a judge . . . ruling on a motion for summary
judgment, ” the “mere existence of a scintilla of
evidence in support of the plaintiff's position [is]
insufficient . . . .” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252, 255 (1986). “Where the
record taken as a whole could not lead a rational trier of
fact to find for the non-moving party, there is no genuine
issue for trial.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation
and quotation marks omitted).
parties file cross-motions for summary judgment, the court
“evaluate[s] each motion separately, giving the
non-moving party in each instance the benefit of all
reasonable inferences.” A.C.L.U. of Nev. v. City of
Las Vegas, 466 F.3d 784, 790-91 (9th Cir. 2006)
(quotation marks and citation omitted); see also Pintos
v. Pac. Creditors Ass'n, 605 F.3d 665, 674 (9th Cir.
2010) (“Cross-motions for summary judgment are
evaluated separately under [the] same standard.”). In
evaluating the motions, “the court must consider each
party's evidence, regardless under which motion the
evidence is offered.” Las Vegas Sands, LLC v.
Nehme, 632 F.3d 526, 532 (9th Cir. 2011). “Where
the non-moving party bears the burden of proof at trial, the
moving party need only prove that there is an absence of
evidence to support the non-moving party's case.”
In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387
(9th Cir. 2010). Thereafter, the non-moving party bears the
burden of designating “specific facts demonstrating the
existence of genuine issues for trial.” Id.
“This burden is not a light one.” Id.
The Supreme Court has directed that in such a situation, the
non-moving party must do more than raise a
“metaphysical doubt” as to the material facts at
issue. Matsushita, 475 U.S. at 586.
cases involving district court review of an administrative
order under the Rehabilitation Act, district courts apply a
modified de novo standard to review the hearing
officer's decision, similar to the standard district
courts apply to a nearly identical provision of the
Individuals with Disabilities Education Act. Wasser v.
N.Y. State Office of Vocational and Educ. Servs. for
Individuals with Disabilities, 602 F.3d 476, 479 (2d
Cir. 2010) (comparing nearly identical wording of 29 U.S.C.
§ 722(c)(5)(J)(ii) and 20 U.S.C. § 1415(i)(2)(C));
Diamond v. Michigan, 431 F.3d 262, 265 (2005).
Thus, although district courts must engage in an independent
review of the administrative record and render a decision
based on a preponderance of the evidence, the Rehabilitation
Act requires substantial deference to [VR] on matters of
vocational rehabilitation policy and district courts must
give due weight to the findings of the state administrative
Wasser, 602 F.3d at 480.
Vocational Rehabilitation Procedures
order to understand the issues at the heart of this case,
some background on Oregon's vocational rehabilitation
(“VR”) services is helpful. VR is the office
designated by the State of Oregon to administer comprehensive
vocational rehabilitation services for individuals with
disabilities under the federal Rehabilitation Act of 1973. An
individual who receives or is eligible to receive these
services is often referred to as a “VR client.”
Generally, after determining eligibility, the client and the
client's assigned vocational rehabilitation counselor
(“VRC”), prepare an “individualized plan
for employment” (“IPE”). 34 C.F.R. §
361.45(a). The IPE describes the employment outcomes sought
by the client, the rehabilitative services needed to achieve
that outcome, the criteria used to evaluate progress, and it
also designates the client's third-party service
providers, if any, often referred to as job developers.
Id. § 361.46(a)(1)-(7). “To the extent
possible, the employment outcome and the nature and scope of
rehabilitation services to be included in the [client's
IPE] must be determined based on the data for the assessment
of eligibility and priority for services” under federal
regulations.” Id. § 361.45(f)(1). The
state may also conduct its own comprehensive assessment of
the client's strengths, resources, priorities, concerns,
abilities, capabilities, interests and informed choice and
[m]ay include, to the degree needed to make such a
determination, an assessment of the personality, interests,
interpersonal skills, intelligence and related functional
capacities, educational achievements, work experience,
vocational aptitudes, personal and social adjustments, and
employment opportunities of the individual and the medical,
psychiatric, psychological, and other pertinent vocational,
educational, cultural, social, recreational, and
environmental factors that affect the employment and
rehabilitation needs of the individual
Id. § 361.5(c)(5)(ii)(C).
must be reviewed at least annually by the VR and amended if
there are substantive changes in the employment outcome, the
services to be provided, or the providers of the services.
Id. § 361.45(d)(5)-(6). The IPE, and any
amendments to ...