The opinion of the court was delivered by: DEBEVOISE
Plaintiff, Gerald J. Ryans, a handicapped individual, brings this action against the New Jersey Commission for the Blind and Visually Impaired and Norma Krajczar, the Commission's Executive Director, alleging that defendants have unlawfully denied him rehabilitative services and benefits to which he is entitled under Title I of the Rehabilitation Act of 1973, 29 U.S.C. §§ 720-750. The matter is now before the court on motions which raise important questions of federal jurisdiction and procedure relevant to plaintiff's right to proceed with the action in this forum.
The parties are in agreement on the essential background facts.
Plaintiff is legally blind and has been a client of the New Jersey Commission for the Blind and Visually Impaired at periodic intervals for a number of years. He most recently applied to the Commission for rehabilitative services in 1978, and over the course of the next three years received vocational training and assistance in seeking employment.
During the summer of 1981, plaintiff became embroiled in a dispute with the Commission over his cooperation with the authorities in charge of his program. In letters dated August 15, 1981 and September 2, 1981, defendant Krajczar notified plaintiff that the Commission had established certain conditions to his continued participation in the program, including his release of medical records for use by the Commission, his strict adherence to the recommendations of his professional counsellors and the cessation of phone calls to others for help in dealing with the Commission.
On October 1, 1981, plaintiff was afforded an informal "administrative review" with respect to the conditions set forth in defendant Krajczar's letters. Plaintiff indicated during the review that he did not intend to comply with the conditions. The presiding agency official then recommended in a written opinion that "the agency stick to its guns and that the steps outlined be followed absolutely before further work is attempted with this man." (Defendants' Exhibit Da-6).
On November 4, 1981, plaintiff filed the present action. Contending that defendants had violated his rights under § 103 of the Rehabilitation Act of 1973, 29 U.S.C. § 723, plaintiff sought an order requiring that his file with the Commission be reopened, an order requiring defendants to furnish him with a CCTV Video Tech Machine for use as a reading aid, money damages and the costs of suit.
In a motion originally returnable May 17, 1982, defendants moved to dismiss plaintiff's complaint on the ground that he had failed to exhaust administrative remedies. By letter of May 13, 1982, I notified the parties that certain issues raised by the complaint had not been adequately addressed and adjourned the motion for submission of further briefing. In particular, I requested the parties to brief the issue whether, in view of the fact that Congress had provided no express right of action for judicial enforcement of Title I of the Rehabilitation Act of 1973, plaintiff was entitled to assert an implied private right of action or, alternatively, an action pursuant to 42 U.S.C. § 1983. The parties have complied with my request, and I am now prepared to resolve all outstanding motions.
The following motions are now before the court. Defendants move to dismiss the complaint on the ground that no private right of action exists to enforce the provisions of 29 U.S.C. § 723 or, in the alternative, on the ground that plaintiff has failed to exhaust state and federal administrative remedies. In addition, defendants move to dismiss the action as to defendant Krajczar on the ground that she is immune from suit under the New Jersey Tort Claims Act, N.J.S.A. 59:3-2(b). Plaintiff cross-moves for leave to file an amended complaint setting forth an additional count under the Privacy Act of 1974, 5 U.S.C. § 552a.
2. Private Right of Action
The federal statute at issue in this action, Title I of the Rehabilitation Act of 1973, contains no express provision authorizing an aggrieved handicapped individual, such as plaintiff, to institute a court action for the purpose of enforcing its provisions.
If plaintiff is to pursue the action, therefore, it must be determined either that he is entitled to an implied private right of action under the Act or, alternatively, a private right of action under 42 U.S.C. § 1983, the general federal statute authorizing actions against state officials for violations of federal laws and the Constitution.
A. Implied Private Right of Action
Where Congress has passed a statute creating rights and obligations, yet remained silent as to whether those rights and obligations can be judicially enforced, the courts have traditionally inquired whether Congress, despite the absence of an explicit statement, impliedly intended a private right of action to exist. See, e.g., Cannon v. University of Chicago, 441 U.S. 677, 99 S. Ct. 1946, 60 L. Ed. 2d 560 (1979).
In the leading case of Cort v. Ash, 422 U.S. 66, 95 S. Ct. 2080, 45 L. Ed. 2d 26 (1975), the Supreme Court identified four considerations relevant to a determination whether an implied private right of action should be found, only one of which directly involved an investigation into congressional intent.
The Court has emphasized in more recent cases, however, that "the question whether a statute creates a private right of action is ultimately "one of congressional intent, not one of whether this Court thinks that it can improve upon the statutory scheme that Congress enacted into law.' " Universities Research Association v. Coutu, 450 U.S. 754, 770, 101 S. Ct. 1451, 1461, 67 L. Ed. 2d 662 (1981), quoting Touche Ross & Co. v. Redington, 442 U.S. 560, 578, 99 S. Ct. 2479, 2490, 61 L. Ed. 2d 82 (1979); see also Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 639, 101 S. Ct. 2061, 2066, 68 L. Ed. 2d 500 (1981). The key question to be determined here, therefore, is whether the nature of Title I and the circumstances under which it was passed indicate an intention on the part of Congress to permit handicapped individuals to assert a private right of action directly under the Act.
In the only reported opinion to date expressly analyzing the question, Jones v. Illinois Department of Rehabilitation Services, 504 F. Supp. 1244 (N.D.Ill.1981), Judge Flaum concluded after an extensive survey of the statutory provisions, that it was not Congress' intention to extend handicapped individuals a right of action to enforce the provisions of Title I.
I find the reasoning of the Jones opinion persuasive and believe that it correctly states the law.
I also note an additional basis for concluding that Congress did not intend to create a private right of action directly under Title I. In Jones, Judge Flaum based his analysis primarily upon the structure of the statute, finding "no indication whatever in the legislative history of title I which suggests a Congressional intention to create or deny a private cause of action." Id. at 1249. I believe, however, that there is legislative history which sheds light on the question.
In the original version of the Act, as passed in 1973, Congress provided no procedures, administrative or otherwise, by which a handicapped individual denied services or otherwise aggrieved within the meaning of Title I could obtain review. Pub.L.No.93-112, § 103, 87 Stat. 355 (1973). When Congress amended the Act in 1978, however, it expressly added administrative procedures by which a handicapped individual could seek review of "determinations made by the rehabilitation counselor or coordinator." Pub.L.No.95-602, § 103, 92 Stat. 2959 (1978) (codified at 29 ...