Wasser v. NEW YORK STATE OFFICE OF VOCATIONAL AND EDU. SERVICES

08-4724-cv
Wasser v. New York State Office

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 28th day of April, two thousand ten.

PRESENT:
JOHN M. WALKER, JR.,
CHESTER J. STRAUB,
DEBRA ANN LIVINGSTON ,
Circuit Judges.
____________________________________________________________

MICHAEL J. WASSER,

Plaintiff-Appellant,

-v.- No. 08-4724-cv

NEW YORK STATE OFFICE OF VOCATIONAL AND EDUCATIONAL SERVICES FOR INDIVIDUALS WITH
DISABILITIES, LAWRENCE C. GLOECKLER, Deputy Commissioner New York State Education
Department, Office of Vocational and Educational Services for Individuals with Disabilities, in
his official and individual capacities, DANNA MITCHELL, Brooklyn Office Manager, New York
State Education Department, Office of Vocational and Educational Services for Individuals with
Disabilities, in her official and individual capacities,

Defendants-Appellees.*
____________________________________________________________

*
The Clerk is respectfully directed to amend the official caption as it appears above.
FOR APPELLANT: MICHAEL J. WASSER, pro se, Brooklyn, New York.

FOR APPELLEES: MONICA WAGNER, Assistant Solicitor General (Andrew M.
Cuomo, Attorney General of the State of New York, on the brief,
Barbara D. Underwood, Solicitor General, Michelle Aronowitz,
Deputy Solicitor General, of counsel), New York, New York.

UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND

DECREED that the district court judgment is AFFIRMED.

Plaintiff-Appellant Michael J. Wasser, pro se, appeals from the August 28, 2008

judgment of the United States District Court for the Eastern District of New York (David G.

Trager, Judge) dismissing his complaint. We assume the parties’ familiarity with the underlying

facts, procedural history, and specification of the issues on appeal.

We discuss in a separate opinion filed today the appropriate standard of review for district

courts to apply when a plaintiff commences a civil action under section 102 of the Rehabilitation

Act, 29 U.S.C. § 722(c)(5)(J), seeking review of a final state administrative decision. We find,

for the reasons provided in that opinion, that the District Court stated and applied the appropriate

standard of review under § 722(c)(5)(J) in dismissing plaintiff’s claims.

Having reviewed plaintiff’s remaining contentions on appeal and the record of

proceedings below, we affirm for substantially the same reasons stated by the District Court in its

thorough and well reasoned opinion. See Wasser v. N.Y. State Office of Vocational & Educ.

Servs. for Individuals with Disabilities, --- F. Supp. 2d ----, No. CV-01-6788, 2008 WL 4070263

(E.D.N.Y. Aug. 27, 2008). Specifically, despite plaintiff’s arguments before us to the contrary,

we find that the District Court was correct in holding that (i) the New York State Office of

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Vocational and Educational Services for Individuals with Disabilities (“VESID”) is permitted to

consider cost when determining the vocational rehabilitation services it will provide to disabled

individuals so long as it does not “place absolute dollar limits on specific service categories,” and

it “permits exceptions [to any fee schedules] so that individual needs can be addressed,” 34

C.F.R. § 361.50(c)(2)(ii), (3); see also Murphy v. Office of Vocational & Educ. Servs. for

Individuals with Disabilities, 705 N.E.2d 1180, 1185 (N.Y. 1998); (ii) VESID properly

reimbursed plaintiff for law school tuition rates only up to the cost of a public law school, rather

than the cost of the private law school plaintiff chose to attend; (iii) VESID’s policy not to

purchase base vehicles for clients’ transportation needs is proper; (iv) it was premature for

VESID or the District Court to decide the cost of, and possible reimbursement for, necessary

modifications to a base vehicle in order to enable plaintiff to drive to and from work because

plaintiff has yet to complete the required evaluations; (v) the record supports VESID’s decision

to deny reimbursement to plaintiff for costs he incurred during an internship in the summer of

1998 while he was still a student at Brooklyn Law School; (vi) VESID is not required to provide

plaintiff with a back-up motorized wheelchair; and (vii) VESID properly closed plaintiff’s case.

We have considered all of plaintiff’s arguments and find them to be without merit.

Accordingly, the judgment of the District Court is hereby AFFIRMED.

FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk

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