[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 11-12624 JAN 20, 2012 Non-Argument Calendar JOHN LEY ________________________ CLERK
D.C. Docket No. 9:09-cv-81098-KAM
KELVIN RANCE,
lllllllllllllllllllllllllllllllllllllll lPlaintiff-Appellant,
versus
FLORIDA DEPARTMENT OF EDUCATION, FLORIDA DIVISION OF VOCATIONAL REHABILITATION,
lllllllllllllllllllllllllllllllllllllll lDefendants-Appellees.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(January 20, 2012)
Before CARNES, HULL, and WILSON, Circuit Judges. PER CURIAM:
Plaintiff Kelvin Rance, proceeding pro se, appeals the district court’s grant
of summary judgment to Defendants Florida Department of Education and Florida
Division of Vocational Rehabilitation (collectively, “DVR”)1 in this civil action,
brought under 29 U.S.C. § 722(c)(5)(J), alleging DVR failed to allow additional
evidence in a state administrative proceeding (Count I) and failed to provide
vocational rehabilitation benefits (Count II). After consideration of the briefs and
record, we affirm.
I. EVIDENCE IN THE ADMINISTRATIVE RECORD
A. Plaintiff Rance’s Proposed IPE
Plaintiff Rance worked in the computer field until health problems forced
him to leave his job. Subsequently, Rance contacted Defendant DVR to obtain a
plan to update his computer skills. On April 20, 2005, DVR certified him eligible
for vocational rehabilitation services.
Pursuant to that certification, Rance and one of DVR’s vocational
rehabilitation counselors agreed upon an Individualized Plan of Employment
1 The Florida Division of Vocational Rehabilitation is contained within the Florida Department of Education and thus not a separate entity. See Fla. Stat. § 20.15(3)(d) (2009). However, the district court accepted Rance’s categorization of them as two separate entities because the distinction had no effect upon the case. We find no reason to depart from that reasoning for purposes of this appeal.
2 (“IPE”) for him. Among other things, Rance’s IPE provided that he was to receive
computer training through “PC Professor,” a computer programming company.
On the IPE’s left top corner are the words “pending approval” in bold. The IPE’s
case notes state that the “IPE [was] completed and submitted.” Subsequent case
notes state that Rance was informed that additional information would have to be
obtained prior to his IPE’s approval.
Rance’s DVR counselor apparently sent the IPE for approval to Todd
Sapperstein, DVR’s vocational rehabilitation supervisor. Sapperstein’s
responsibilities included developing and approving IPEs, managing DVR’s
financial resources to ensure efficient provision of services, and having a working
knowledge of pertinent state and federal law. Sapperstein investigated Rance’s
eligibility for the requested computer programming course. Sapperstein asked
Robert Fellman, the co-owner of PC Professor, if Fellman had checked whether
Rance’s computer knowledge was what he claimed. When Fellman replied that he
had not, Sapperstein requested him to do so, as the course was expensive and
DVR’s resources must be managed wisely.
B. Educational and Psychological Assessments
In order to assess Rance’s computer abilities, DVR’s Sapperstein asked
Rance to take the Test of Adult Basic Education (“TABE”). TABE is a “norm-
3 based examination used extensively throughout the United States, especially in
adult-education programs, to determine a person’s approximate grade level.”
Although DVR’s Sapperstein told Rance the TABE was a prerequisite to his
particular IPE being approved, Rance refused to take the test. Rance stated that he
had already taken the TABE through another agency and would send Sapperstein
the results within two weeks. DVR’s Sapperstein sent Rance a letter confirming
their agreement. However, Sapperstein never received the TABE results. Rance
later claimed that Sapperstein had excused him from taking the test, although
Sapperstein disputed Rance’s claim.
While the TABE process was unfolding, Rance had a series of interactions
with other DVR personnel that led Sapperstein to ask Rance to undergo a
psychological evaluation. The purpose of the evaluation was to assess Rance’s
intellectual and emotional ability to complete the computer programming course.
DVR’s procedures provided for such an evaluation in appropriate situations, such
as when the applicant displayed volatile behavior jeopardizing his success under
the proposed IPE. DVR’s Sapperstein decided Rance’s case was such a situation.
For example, the case notes for Rance’s IPE describe an interaction with a
DVR staff member in which Rance was “very angry and threaten[ed] to sue”
because he was not furnished with copies of his records, “yelled that he wanted a
4 copy of his file,” and “did not want to set up an appointment” to discuss his
situation. Fellman also indicated that Rance “had an attitude and was pushy.” At
first, Rance appeared to cooperate by going to the psychologist’s office. Once
there, however, Rance refused to sign the consent form and demanded changes to
the form. The changes were not made, and due to Rance’s failure to cooperate, the
psychologist refused to conduct the examination.
Because Rance refused to comply with DVR’s assessment process, DVR
closed his case and Rance’s proposed IPE was never approved. DVR sent Rance a
letter informing him of the closure and of his available remedies.
C. Administrative Appeal
Rance filed an administrative appeal of DVR’s decision to close his case.
The administrative law judge (“ALJ”) held a hearing, during which Rance testified
about the taking of the TABE test. Rance admitted that he previously had taken
the TABE and called the score “bogus” and “not accurate.” Rance also stated that
he “did not physically give” DVR his TABE score.
Rance also testified regarding his appointment with the psychologist, Dr.
Siegel. Rance confirmed that he went to the psychologist’s office and refused to
sign the consent form.
At the same hearing, psychologist Dr. Siegel testified that the consent form
5 was required by the Health Insurance Portability and Accountability Act2 and the
ethics of the profession. Because Rance refused to sign the form, Dr. Siegel did
not evaluate him.
PC Professor’s Fellman also testified at the hearing. According to Fellman,
Sapperstein told him that Rance took the TABE and failed it. However, Rance
was allowed to retake the exam, as DVR deemed it necessary to evaluate Rance’s
ability to enroll in the computer course. Rance refused to retake the TABE test.
Fellman stated that Rance’s failing TABE score was inconsistent with the level of
experience Rance claimed to have.
D. ALJ’s Recommended Order
After the hearing, the ALJ issued a Recommended Order on August 11,
2006. The Recommended Order stated that Rance should “undergo a
psychological evaluation and take the TABE if he desires an IPE that authorizes
funding for computer skills training. If [Rance] refuses to comply, then DVR
should attempt to develop an alternate IPE pursuant to which appropriate services
other than computer skills training might be afforded.”
Rance then sought review by Defendant DVR. On August 28, 2006, Rance
requested approval to file what he termed “exceptions” to the Recommended
2 Pub. L. No. 104-191, 110 Stat. 1936 (codified in scattered sections of 42 U.S.C.).
6 Order out of time. Under the Florida Administrative Code, a party must file
“exceptions to findings of fact and conclusions of law contained in recommended
orders with the agency . . . within 15 days of entry of the recommended order.” 28
Fla. Admin. Code Ann. r. 28-106.217. The rule does not provide for submission
of evidence. See id. DVR granted his request.
Shortly thereafter, however, Rance filed 22 pages containing objections to
the ALJ’s Recommended Order. Rance also filed 146 pages of exhibits as
evidence to support his claims. The exhibits contained these documents: DVR’s
Handbook of Services; DVR’s Preliminary Assessment of Rance; Rance’s IPE,
marked “Pending Approval” on the front page; worksheets from Rance’s IPE;
DVR’s April 6, 2005 Medical/Psychological Consultation with Rance; Rance’s
Certification of Eligibility from DVR; motions and orders related to Rance’s
hearing before DVR; Chapter 4 from DVR’s Operating Procedures manual; and
selections from the Code of Federal Regulations.3
On September 22, 2006, Defendant DVR issued a Final Order in which it
adopted the ALJ’s Recommended Order, overruled Rance’s exceptions to the
Recommended Order, refused to consider Rance’s submission of the above
3 While Rance claims the exhibits are “exceptions,” the fact remains the exhibits are not exceptions but primarily evidence.
7 additional exhibits as untimely, and denied Rance’s request for relief. The Final
Order noted that the exhibits “constitute[d] an untimely request for consideration
of additional evidence.”
II. DISTRICT COURT PROCEEDINGS
A. Rance’s Complaint
On July 27, 2009, Rance filed a civil complaint against DVR, proceeding
under 29 U.S.C. § 722(c)(5)(J). His complaint alleged three counts, of which only
the first two remain relevant on appeal.4 Liberally construed, Count I alleged that
DVR failed to allow additional evidence in accordance with 34 C.F.R.
§ 361.57(g)(3)(i) because DVR refused to consider Rance’s additional exhibits.
Count II alleged that DVR failed to provide vocational rehabilitation benefits in a
lawful manner consistent with 29 U.S.C. § 722(b)(1)(A)(i) because DVR refused
to execute the purportedly approved IPE.
Attached to Rance’s complaint was his certificate of eligibility from DVR,
case notes from his IPE, an October 13, 2006 letter from DVR informing him that
a final order had been issued from the agency, and a November 6, 2006 letter from
DVR informing him that his file had been closed. The October 13, 2006 letter
4 The district court granted DVR’s Federal Rule of Civil Procedure 12(b)(6) motion to dismiss Count III, and Rance did not appeal that dismissal.
8 stated that, consistent with the administrative determination, Rance would be
required to undergo a psychological exam and to take the TABE if he wished to
pursue the computer course.
After more motions were filed, Rance submitted the exceptions and
additional evidence he had submitted unsuccessfully to DVR. The district court
took judicial notice of the submissions except for the legal authority submissions,
as they were not evidence.
B. DVR’s Motion for Summary Judgment
DVR moved for summary judgment, arguing that Rance’s cause of action
for review was time barred.5 In support of this motion, DVR submitted copies of
the Final Order and the Recommended Order.
The district court notified Rance of DVR’s summary judgment motion and
advised Rance that he should respond to the motion. Further, the district court
noted that “it appears that summary judgment could be entered on the merits of
this case in favor of one party” and DVR “ha[d] raised arguments on the merits.”6
5 The DVR based its argument on the fact that there is no statute of limitations in 29 U.S.C. § 722(c)(5)(J)(i) and that Fla. R. App. P. 9.110(c) only allows thirty days for filing an appeal for review of administrative orders. Rance argued that the four-year catchall provision under 28 U.S.C. § 1658 applied. 6 Contrary to the district court’s interpretation, we read DVR’s summary judgment motion not to raise an argument on the merits, but rather an argument on a procedural issue: the statute of limitations. Nonetheless, the district court did advise Rance that he must address the merits
9 The district court expressly notified Rance that “a party must go beyond the
pleadings and by its own affidavits, or by the depositions, answers to
interrogatories, and admissions on file, designate specific facts showing that there
is a genuine issue for trial.” The district court also encouraged Rance to file any
“necessary sworn affidavits and other material along with his response” to DVR’s
summary judgment motion.
Rance filed an opposition to DVR’s summary judgment motion, arguing
that his action was not time barred. In support of his motion, he attached DVR’s
Final Order. Rance also moved for partial summary judgment, on the ground that
DVR violated federal law by failing to provide a written IPE as required under 34
C.F.R. § 361.45 and 29 U.S.C. § 722(2)(a). Further, Rance argued that the law did
not require the IPE to be approved by a supervisor and thus DVR’s Sapperstein
abused his discretion by not providing a written IPE. Rance attached to his motion
portions of the U.S. Code, his request for admissions to DVR, copies of his IPE’s
case notes, and letters from DVR informing Rance of his case’s closure.
In opposition, DVR argued that summary judgment should not be granted
on Rance’s behalf because Florida law required DVR to assess Rance’s
educational and other abilities as part of the process for developing an IPE.
and establish a genuine issue for trial.
10 Without the assessment, the IPE could not be approved. DVR’s proposed
assessment—the TABE and the psychological evaluation—was reasonable given
that Rance’s requested computer course was rigorous and costly and that Rance
displayed volatile behavior. Because Rance refused to cooperate, DVR lacked the
information necessary to approve the IPE. Based on DVR’s established
procedure, DVR lawfully closed Rance’s case because of his protracted failure to
comply with DVR’s reasonable requests for diagnostic assessments.
Along with its opposition to Rance’s motion, DVR filed a statement of
undisputed material facts and supporting documents. The documents included
Sapperstein’s affidavit, which reiterated his administrative hearing testimony; a
printout of Rance’s IPE, which stated in bold typeface that the IPE was “pending
approval”; copies of DVR’s case notes for Rance’s case, which indicated that the
IPE was pending approval and described some of Rance’s interactions with DVR;
and copies of Chapters 18 and 4 of DVR’s Operating Procedures manual. DVR
also submitted the administrative-hearing transcript.
The district court notified Rance that DVR raised arguments on the merits in
its response to Rance’s summary judgment motion and gave Rance fourteen days
to respond. In the notice, the district court specifically referenced Rance’s partial
summary judgment motion, DVR’s opposition to Rance’s motion, and DVR’s
11 statement of undisputed material facts. The notice informed Rance that it
appeared summary judgment “could be entered on the merits of this case in favor
of one party” and gave Rance the opportunity to respond to the arguments on the
merits raised by DVR.
Rance filed a response to DVR’s opposition. Rance argued that he had
moved for summary judgment on only one issue, and if the entire case was
adjudicated, there would be unanswered issues.
After considering both parties’ summary judgment motions, the district
court granted summary judgment to DVR. As an initial matter, the district court
concluded that Rance’s action was not time barred and that DVR was not entitled
to summary judgment on that basis.
The district court then examined the merits of Rance’s claims. As to Count
I (failure to allow additional evidence), the district court reviewed Rance’s
additional evidence that he had sought to file with DVR. The court determined
that even if DVR had considered the evidence, it did not support Rance’s claim
and would not have changed the Final Order’s outcome.
As to Count II (failure to provide vocational rehabilitation benefits), the
district court concluded that Rance failed to demonstrate DVR should have
approved the proposed IPE prior to receiving the TABE results and psychological
12 evaluation. Both exams would have helped determine whether the proposed IPE
was consistent with Rance’s “unique strengths, priorities, concerns, abilities, and
capabilities.” Further, based on the record, both assessments were reasonable.
DVR thus did not violate the law in closing Rance’s case without approving the
proposed IPE because it acted consistently with its written policy found in Chapter
18 of DVR’s Operating Procedures manual.
Accordingly, the district court denied Rance’s partial summary judgment
motion and granted summary judgment on DVR’s behalf.
After the district court entered final judgment, Rance filed a motion to
reconsider and reopen the case, but did not submit any new evidence. The district
court denied his motion, and this appeal followed.
III. DISCUSSION
A. Summary Judgment on Count I
On appeal, Rance argues that the district court erred by sua sponte granting
summary judgment on his failure-to-allow-additional-evidence claim in Count I.
We review a district court’s grant of summary judgment de novo, viewing all
evidence and factual inferences reasonably drawn from the evidence in the light
13 most favorable to the non-moving party.7 Crawford v. Carroll, 529 F.3d 961, 964
(11th Cir. 2008).
A district court grants summary judgment sua sponte when it addresses a
claim or an issue not presented in a summary judgment motion. See Byars v.
Coca-Cola Co., 517 F.3d 1256, 1264 (11th Cir. 2008). A district court “may enter
summary judgment sua sponte if the parties are given adequate notice that they
must present all of their evidence.” Imaging Bus. Machs., LLC v. BancTec, Inc.,
459 F.3d 1186, 1191 (11th Cir. 2006) (internal quotation mark omitted).
However, even if no formal notice was provided, when a purely legal issue “has
been fully developed, and the evidentiary record is complete, summary judgment
is entirely appropriate.” Artistic Entm’t, Inc. v. City of Warner Robins, 331 F.3d
1196, 1202 (11th Cir. 2003).
Here, we recognize that (1) DVR’s sole argument in its summary judgment
motion was that Rance’s complaint was time barred, and (2) Rance’s sole
7 Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Crawford v. Carroll, 529 F.3d 961, 964 (11th Cir. 2008). “The moving party bears the initial burden of showing the court . . . that there are no genuine issues of material fact that should be decided at trial.” Allen v. Bd. of Pub. Educ. for Bibb Cnty., 495 F.3d 1306, 1313 (11th Cir. 2007). In opposing a motion for summary judgment, the non-moving party may not rely solely on the pleadings, but must show by evidence that specific facts exist demonstrating a genuine issue for trial. See Fed. R. Civ. P. 56(c), (e); see also Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 2553 (1986).
14 argument in his motion was that summary judgment should be granted on Count II
because a supervisor was not required to sign the IPE for it to be approved.
Nonetheless, we cannot say the district court’s grant of summary judgment
on the merits, even if sua sponte, was error, for the issue was a purely legal
question, and the evidentiary record on the issue was complete. See Artistic, 331
F.3d at 1202. The legal question was simply whether the agency erred by refusing
to consider Rance’s additional evidence as untimely filed. The evidentiary record
before the district court included the entire administrative record, and the district
court took judicial notice of Rance’s additional evidence disallowed by the
agency. As the district court noted, the exhibits Rance submitted were materials
already familiar to DVR and did not support Rance’s claims. Simply put, even
when viewing the additional evidence in the light most favorable to Rance, he has
raised no genuine issue of material fact precluding summary judgment on Count I.
Further, in Rance’s post-summary judgment filings—which included his
motion to reconsider the court’s summary judgment ruling—he did not submit any
new evidence or even allege what evidence the district court failed to consider in
granting summary judgment on Count I. See Flood v. Young Woman’s Christian
Ass’n, 398 F.3d 1261, 1267 (11th Cir. 2005) (concluding a sua sponte grant of
summary judgment was appropriate where the plaintiff failed to present new
15 evidence in post-summary judgment filings). Accordingly, we affirm the district
court’s grant of summary judgment on Count I.
B. Summary Judgment on Count II
Rance also contends that the district court erred in granting summary
judgment to DVR on Rance’s failure-to-provide-vocational-rehabilitation-benefits
claim in Count II. Specifically, Rance argues that (1) an issue of material fact
exists as to whether the IPE was pending or approved, (2) the regulations do not
mention the need for a supervisor, as opposed to a counselor, to approve an IPE,
and (3) no law exists authorizing DVR to require Rance to take the TABE and
undergo a psychological evaluation for his IPE to be approved. We are not
persuaded.
The Rehabilitation Act authorizes federal grants “to assist [s]tates in
operating statewide . . . programs . . . [d]esigned to assess, plan, develop, and
provide vocational rehabilitation services for individuals with disabilities,
consistent with their strengths, resources, priorities, concerns, abilities,
capabilities, interests, and informed choice,” with the goal of preparing and
enabling such individuals to “engage in gainful employment.” 34 C.F.R. § 361.1.
Further, the Act’s purpose includes helping states operate programs of vocational
rehabilitation that are “comprehensive, coordinated, effective, efficient, and
16 accountable.” 29 U.S.C. § 720(a)(2).
To be eligible for these federal grants, states must submit plans that comply
with 29 U.S.C. § 721. Id. § 721(a)(1)(A). The state plans under § 721 must
provide for the development and implementation of IPEs for eligible disabled
individuals. See id. § 721(a)(9); 34 C.F.R. § 361.45. The regulations make clear,
however, that states may assess an individual’s ability to succeed with the IPE,
including through intellectual, medical, and psychological evaluations. See 34
C.F.R. § 361.5(b)(6)(ii)(c) (providing that the agency may assess “the
personality, . . . intelligence and related functional capacities, . . . and the medical,
psychiatric, psychological, and other pertinent . . . factors that affect the
employment and rehabilitation needs of the individual”). Additionally, the
regulations require states to create written policies for providing services to
persons with disabilities. Id. § 361.50.
The statute and regulations establish certain requirements for an IPE. It
must be a written document (prepared on forms provided by the state unit) that has
been approved and signed by a “qualified vocational rehabilitation counselor.” 29
U.S.C. § 722(b)(2)(A), (C)(ii); 34 C.F.R. § 361.45(d)(1), (3)(ii). In developing an
IPE, the state unit in charge of such services must “complete an assessment for
determining eligibility and vocational needs, as appropriate.” 29 U.S.C.
17 § 722(b)(1); Fla. Stat. § 413.30(5). If additional information is needed to
determine the nature and scope of the IPE’s services, the state unit should
“conduct a comprehensive assessment of the unique strengths, resources,
priorities, concerns, abilities, capabilities, interests, and informed choice” of the
eligible individual. 34 C.F.R. § 361.45(f)(2)(i).
The dispositive question here is whether Rance’s IPE was indeed approved
within the meaning of the relevant statute. Rance’s only support for his assertion
that the IPE was approved and not pending is his own assertion in his brief that it
is so. However, the only available evidence—including Sapperstein’s affidavit,
the IPE’s case notes, and the IPE printout—shows that Rance’s IPE was pending.
Rance submitted no evidence showing that his IPE was approved and signed by
even his counselor. The statute and regulations plainly state the IPE must be
approved and signed by a qualified vocational rehabilitation counselor before
being executed. 29 U.S.C. § 722(b)(2)(A), (C)(ii); 34 C.F.R. § 361.45(d)(1),
(3)(ii). Because Rance failed to present any evidence showing that the IPE was
approved, summary judgment was proper.
As to Rance’s argument that, as a matter of law, the statute and regulations
do not require a supervisor, as opposed to a counselor, to approve the IPE, that
much is true. But neither the statute nor the regulations forbid a state’s requiring a
18 supervisor to approve the IPE. Indeed, having a supervisor review a counselor’s
work merely ensures that Florida’s vocational rehabilitation program is
“comprehensive, coordinated, effective, efficient, and accountable.” See 29
U.S.C. § 720(a)(2). Rance has not shown how the supervisor-approval
requirement violates or is inconsistent with the statute, regulations, or even the
Rehabilitation Act’s purpose. And at the crux of the matter, DVR—whether
through a supervisor or counselor—never approved and signed Rance’s IPE.
Rance’s final argument that DVR violated the law by requiring him to take
the TABE and undergo a psychological evaluation is also without merit. Again,
Rance is correct that no statute or regulation required that he undergo those
particular examinations. However, both the federal statute and the applicable state
statute provide that once a person is deemed eligible for vocational rehabilitation
services, the state unit in charge of the services must assess that individual to
determine his eligibility and vocational rehabilitation needs. 29 U.S.C.
§ 722(b)(1); Fla. Stat. § 413.30(5). In fact, the regulations specifically allow the
state unit to conduct a comprehensive assessment of an eligible individual to
determine what services should be included in the IPE. See 34 C.F.R.
§§ 361.45(f)(2)(i), 361.5(b)(6). This may include “an assessment of the
personality . . . intelligence and related functional capacities, . . . and the medical,
19 psychiatric, psychological, and other pertinent . . . factors that affect the
employment and rehabilitation needs of the individual.” Id. at § 361.5(b)(6)(ii)(c).
The TABE and psychological examination were authorized under the statutory
scheme.
The evidentiary record also supports DVR’s use of the TABE and
psychological evaluation. DVR submitted evidence showing that the use of the
TABE and the psychological evaluation was reasonable considering Rance’s
desired course. Rance failed to present any evidence showing that DVR’s
requirements violated the statute, the regulations, or DVR’s own policies or
operating procedures.
For all the above reasons, we affirm the district court’s grant of summary
judgment in favor of DVR on Counts I and II of Rance’s complaint.
AFFIRMED.