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Marino v. Colorado Division of Vocational Rehabilitation

United States District Court, D. Colorado

January 12, 2019

BRETT MARINO, Plaintiff,


          Marcia S. Krieger Chief United States District Judge

         THIS MATTER comes before the Court on the Plaintiff's Complaint (# 1), the Plaintiff's Opening Brief (# 29), the Defendant's Response (# 30), and the Plaintiff's Reply (# 33). For the reasons below, this case is dismissed, without prejudice.


         Brett Marino, appearing pro se, [1] appeals from a final decision of the Colorado Office of Administrative Courts denying him vocational services under the federal Rehabilitation Act of 1973. See 29 U.S.C. §701 et seq. The Rehabilitation Act authorizes Mr. Marino to seek review in a federal court, but Colorado's Division of Vocational Rehabilitation (DVR) claims that it is immune to suit in federal court under the Eleventh Amendment to the Constitution. The DVR thus requests dismissal of this action for lack of subject-matter jurisdiction. This Court exercises jurisdiction to determine whether the action can proceed.


         Mr. Marino receives Social Security benefits and is therefore presumptively eligible to receive vocational rehabilitation services as well. He applied for vocational services with the DVR, which is Colorado's agency for administration of vocational rehabilitation services to individuals with disabilities under the Rehabilitation Act.

         The severity of Mr. Marino's disabilities caused the DVR to question his ability to benefit from vocational rehabilitation services, and his location in Alamosa, Colorado, caused it to question whether the services that he requested, which were located more than 300 miles from his residence, would be beneficial to him. To resolve these questions, the DVR requested additional information, but Mr. Marino refused to provide it. Instead, he brought four appeals before the Colorado Office of Administrative Courts, which rendered a final decision in July 2016 upholding the DVR's questioning of Mr. Marino's eligibility for services and its denial of services provided 300 miles from his residence.


         Mr. Marino brings this action seeking review of the administrative appeal decision. He raises many challenges, but before any can be addressed, the Court must resolve the threshold issue raised by the DVR. The issue is thus whether Colorado waived its Eleventh Amendment immunity from suit in federal court for purposes of an action brought pursuant to § 722 of the Rehabilitation Act (29 U.S.C. § 722(c)(5)(J)(i)).


         The DVR's challenge comes at the intersection of state and federal law. It argues that, although Congress allows for judicial review of DVR decisions in either state or federal court, Colorado must waive its sovereign immunity for the action to proceed in federal court. The DVR contends that Colorado has not waived its sovereign immunity and thus this Court lacks the subject-matter jurisdiction to review the DVR decision, or the appeal decision by the Colorado Administrative Court.

         Generally, the Eleventh Amendment protects states and their agencies from suits brought by state residents in federal court. Sturdevant v. Paulsen, 218 F.3d 1160, 1164 (10th Cir. 2000). However, there are three exceptions to Eleventh Amendment immunity: (1) a state may consent to suit in federal court, (2) Congress may abrogate a state's sovereign immunity by legislation, and (3) a plaintiff may seek prospective relief under Ex parte Young, 209 U.S. 123 (1908). Levy v. Kan. Dep't of Social & Rehab. Servs., 789 F.3d 1164, 1168 (10th Cir. 2015). A state's consent to be sued in federal court may be inferred if it accepts federal funds clearly conditioned upon consent to suit, but, “mere receipt” of federal funds in the absence of a clear condition that acceptance will constitute consent to be sued in federal court is insufficient to establish the state's consent. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 247 (1985). Mr. Marino does not seek prospective relief under Ex parte Young, so the questions are whether either of the first exceptions to Eleventh Amendment immunity are present here.

         The Rehabilitation Act was enacted to serve several purposes. One of its purposes is to prohibit discrimination on the basis of disability in programs conducted by federal agencies, in programs receiving federal financial assistance, in federal employment, and in the employment practices of federal contractors. The anti-discrimination provision, § 504, states that no “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 or under any program or activity conducted by any” federal agency. 29 U.S.C. § 794(a).

         Another purpose of the Rehabilitation Act was to create and fund programs administered by the states to provide rehabilitation and vocational services to persons with disabilities. 29 U.S.C. § 720(a). To obtain federal funding, a state is required to submit a plan for the provision of vocational services. If, in provision of those services, a person is aggrieved by a decision made by the state, the Act states that the person may seek judicial review in either state or federal court. 29 U.S.C. § 722(c)(5)(J)(i). Under Colorado law, however, a person ...

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