IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

WILLIAM SCOTT BAUMHOFER,

Plaintiff,

v.

STATE OF OREGON DEPARTMENT OF

HUMAN SERVICES (DHS),

Defendant.

3:13-CV-00794-BR

 

OPINION AND ORDER 

WILLIAM SCOTT BAUMHOFER

7583 S.W. 74th Avenue, #F1

Portland, OR 97223

(503) 781-3488 

Plaintiff, Pro Se

ELLEN ROSENBLUM

Attorney General

ANDREW D. CAMPBELL 

Assistant Attorney General

1162 Court Street N.E.

Salem, OR 97301

(503) 947-4700 

Attorneys for Defendant

1 - OPINION AND ORDER

Case 3:13-cv-00794-BR Document 47 Filed 05/28/14 Page 1 of 15
BROWN, Judge.

This matter comes before the Court on Defendant State of

Oregon Department of Human Services’ Motion (#39) for Summary

Judgment. For the reasons that follow, the Court GRANTS

Defendant's Motion and DISMISSES this matter with prejudice. 

BACKGROUND

From 2003 through August 28, 2012, Plaintiff William Scott

Baumhofer was a client of the Oregon Office of Vocational and

Rehabilitation Services (OVRS), which is a unit of the Oregon

Department of Human Services (DHS). While he was enrolled with

OVRS Plaintiff received a Conditional Certification for Work

Opportunity Tax Credit (WOTC), which, according to Defendant, is

a form1 that OVRS clients may present to prospective employers to

inform them that they may be entitled to claim a favorable WOTC

on their tax returns if they hire the OVRS client.

On August 28, 2012, the OVRS closed Plaintiff's case.

On October 3, 2012, Plaintiff filed a Request for Impartial

Fair Hearing requesting a due-process hearing on the August 28,

2012, closure of his case.

On January 29, 2013, a due-process hearing was held as to

1 The Conditional Certification for Work Opportunity Tax

Credit form is published by the United States Department of Labor

pursuant to 26 U.S.C. § 51(d).

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Case 3:13-cv-00794-BR Document 47 Filed 05/28/14 Page 2 of 15
"whether OVRS inappropriately closed [Plaintiff']s file, treated

[Plaintiff] unfairly, or otherwise failed in its mandate." 

Hector Aff., Ex. A at 5.

On March 11, 2013, the hearing officer issued a decision in

which he addressed the following six issues:

1. Did [OVRS] wrongly close [Plaintiff's] file

on August 28, 2013?

2. Has OVRS released a complete copy of

[Plaintiff's] case file to [him]? If not,

must OVRS do so?

3. Has OVRS made the “tape and transcript” from

the pre-hearing conference and the hearing

available to [Plaintiff]? If not, must OVRS

do so?

4. Has OVRS treated [Plaintiff] in an unfair or

unprofessional manner?

5. Must OVRS provide [Plaintiff] with

respiratory therapy or physical therapy

services?

6. Has OVRS informed [Plaintiff] of what

services OVRS will provide? If not, must

OVRS do so?

Hector Aff., Ex. A at 3. The hearing officer concluded: OVRS

properly closed Plaintiff's case file on August 28, 2012; OVRS

must provide Plaintiff with a complete copy of his case file;

OVRS made the audio recording of the hearing available to

Plaintiff and was not required to provide a written transcript of

the hearing; OVRS treated Plaintiff in a fair and professional

manner; OVRS is not required to provide Plaintiff with

respiratory therapy or physical therapy services "in the absence

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Case 3:13-cv-00794-BR Document 47 Filed 05/28/14 Page 3 of 15
of medical documentation of such impairments creating barriers to

[Plaintiff's] employment"; and OVRS has informed Plaintiff of the

services that OVRS will provide. Hector Aff., Ex. A at 6.

On May 10, 2013, Plaintiff filed a pro se Complaint in this

Court asserting this Court has jurisdiction to review due-process

hearing decisions pursuant to 29 U.S.C. § 722(c) and 34 C.F.R. 

§ 361.57. Plaintiff appeared to seek review of the order issued

by DHS on March 11, 2013. In the “Relief” portion of his

Complaint Plaintiff requested the following:

(1) Have single case worker for all services &

benefits at Dept. of Human Service as to I'm

told to go away or get lose as they state I

or we have nothing to do with that issues,

instead of finding the correct Open Door,

staff or set record to give details why other

at Dept of Human Service have handle these

issues.

(2) Get an updated conditional certification from

the state workforce (SWA) or a participating

local agency for the work opportunity credit

as mention on IRS Form 8850 OMB #1545-1500.

(3) Correctly Advance L.I.S. to Medicare

Saving(s) Program(s) for reimbursement of

Part B or the likes of Qualifying Individual

(QI) Program p99 of Medicare & You 2013 CMS

Product No. 10050-57 September 2012.

(4) Correctly release of files & records.

Compl. at IV.

On August 2, 2013, Defendant filed a Motion to Strike in

which it sought an order striking Plaintiff's First, Third, and

Fourth requests for relief.

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Case 3:13-cv-00794-BR Document 47 Filed 05/28/14 Page 4 of 15
On October 25, 2013, DHS Hearings Officer Lawrence Smith

held a contested case hearing regarding Plaintiff’s “continuing

struggles to comply with OVRS recommendations and directives.” 

Hearings Officer Smith found by clear and convincing evidence

that OVRS lawfully closed Plaintiff’s case file and terminated

its relationship with Plaintiff.

On November 6, 2013, the Court issued an Opinion and Order

in which it granted Defendant’s Motion to Strike.

On November 18, 2013, the Court held a scheduling conference

and directed Plaintiff to file an Amended Complaint no later than

December 20, 2013, clarifying the claims that Plaintiff intended

to pursue against Defendant.

On December 20, 2013, Plaintiff filed an Amended Complaint

in which he seeks review of five aspects of the March 11, 2003,

hearing decision:

1. “Relief of Small Claim amount”;

2. “[E]xplanation of delayied [sic] file(s) record(s)

release”;

3. “[W]hy OVRS staff history of untimely filing ETA form

9062 – Conditional Certificate WOTC”;2

4. “[W]hy decision based with mistakes of understand or

communication are not timely corrected after

2

 Defendant interprets WOTC to mean “Work Opportunity Tax

Credit” from the context of Plaintiff’s Amended Complaint.

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Case 3:13-cv-00794-BR Document 47 Filed 05/28/14 Page 5 of 15
notification was with request for an update decision”;

5. “Reducing number of case worker/counselor to hopefully

reduce errors, file maintain problems & missing records

concerns, (ie L.I.S. – MSPs QI) active Post Employment

Services and/or enrollment into OVRS – VR Services.”

On March 20, 2014, Defendant filed a Motion for Summary

Judgment.

On March 26, 2014, the Court issued a Summary Judgment

Advice Notice to Plaintiff advising him that if he did not submit

evidence in opposition to Defendant’s Motion for Summary

Judgment, summary judgment would be entered against him if it was

appropriate.

On April 16, 2014, Plaintiff filed a Response to Defendant’s

Motion in which he reiterates his claims against Defendant. 

Plaintiff did not submit any evidence in support of his Response.

The Court took Defendant’s Motion for Summary Judgment under

advisement on April 22, 2014.

STANDARDS

Summary judgment is appropriate when “there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Washington Mut. Ins. v. United

States, 636 F.3d 1207, 1216 (9th Cir. 2011). See also Fed. R.

Civ. P. 56(a). The moving party must show the absence of a

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Case 3:13-cv-00794-BR Document 47 Filed 05/28/14 Page 6 of 15
dispute as to a material fact. Rivera v. Philip Morris, Inc.,

395 F.3d 1142, 1146 (9th Cir. 2005). In response to a properly

supported motion for summary judgment, the nonmoving party must

go beyond the pleadings and show there is a genuine dispute as to

a material fact for trial. Id. "This burden is not a light one.

. . . The non-moving party must do more than show there is some

'metaphysical doubt' as to the material facts at issue." In re

Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010)

(citation omitted). 

A dispute as to a material fact is genuine "if the evidence

is such that a reasonable jury could return a verdict for the

nonmoving party." Villiarimo v. Aloha Island Air, Inc., 281 F.3d

1054, 1061 (9th Cir. 2002)(quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986)). The court must draw all

reasonable inferences in favor of the nonmoving party. Sluimer

v. Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010). "Summary

judgment cannot be granted where contrary inferences may be drawn

from the evidence as to material issues." Easter v. Am. W. Fin.,

381 F.3d 948, 957 (9th Cir. 2004)(citation omitted). A “mere

disagreement or bald assertion” that a genuine dispute as to a

material fact exists “will not preclude the grant of summary

judgment.” Deering v. Lassen Cmty. Coll. Dist., No. 2:07-CV1521-JAM-DAD, 2011 WL 202797, at *2 (E.D. Cal., Jan. 20, 2011)

(citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir.

7 - OPINION AND ORDER

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1989)). When the nonmoving party's claims are factually

implausible, that party must "come forward with more persuasive

evidence than otherwise would be necessary." LVRC Holdings LLC

v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009)(citation omitted). 

The substantive law governing a claim or a defense

determines whether a fact is material. Miller v. Glenn Miller

Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006). If the

resolution of a factual dispute would not affect the outcome of

the claim, the court may grant summary judgment. Id.

DISCUSSION

I. This Court’s review of decisions by DHS Hearings Officers

29 U.S.C. § 722(c) provides in pertinent part: 

Each State shall establish procedures for

mediation of, and procedures for review through an

impartial due process hearing of, determinations

made by personnel of the designated State unit

that affect the provision of vocational

rehabilitation services to applicants or eligible

individuals.

* * *

The procedures shall provide that an applicant or

an eligible individual . . . shall be notified

of-- 

(I) the right to obtain review of

determinations described in paragraph (1) in

an impartial due process hearing.

* * *

A due process hearing . . . shall be conducted by

8 - OPINION AND ORDER

Case 3:13-cv-00794-BR Document 47 Filed 05/28/14 Page 8 of 15
an impartial hearing officer who shall issue a

decision based on the provisions of the approved

State plan. . . . The officer shall provide the

decision in writing to the applicant or eligible

individual. 

* * *

A decision made after a [due process] hearing 

. . . shall be final, except that a party may 

. . . bring a civil action under subparagraph (J).

The provision pertaining to this Court's review of a hearing

officer's decision provides in pertinent part:

Any party aggrieved by a final decision [of an

impartial hearing officer], may bring a civil

action for review of such decision. The action may

be brought in . . . a district court of the United

States of competent jurisdiction without regard to

the amount in controversy. 

* * *

In any action brought under this subparagraph, the

court-- 

* * *

(I) shall receive the records relating to the

hearing . . . if applicable; [and]

* * *

(III) basing the decision of the court on the

preponderance of the evidence, shall grant

such relief as the court determines to be

appropriate.

29 U.S.C. § 722(c)(J)(I).

In addition, 34 C.F.R. § 361.57(I) provides in pertinent

part: "Any party who disagrees with the findings and decision of

an impartial hearing officer . . . [has] a right to bring a civil

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action with respect to the matter in dispute."

II. Plaintiff’s First Claim

In his First Claim Plaintiff seeks an unspecified “small

claims amount,” but Plaintiff does not identify which aspect of

the March 2013 decision by the Hearings Officer that he seeks to

challenge. As noted, this Court’s jurisdiction under § 722(c) is

limited to review of the Hearings Officer’s decision, and the

March 2013 decision did not contemplate any monetary awards. 

Section 722(c), therefore, does not confer jurisdiction to this

Court to decide a small-claims amount. Plaintiff does not

identify any other jurisdictional basis for this Court to hear

such a controversy between Plaintiff and DHS nor is this Court

aware of any authority that does so. The Court, therefore,

concludes it does not have jurisdiction to hear Plaintiff’s First

Claim. 

Accordingly, the Court grants Defendant’s Motion for Summary

Judgment as to Plaintiff’s First Claim.

III. Plaintiff’s Second Claim

In his Second Claim Plaintiff seeks an explanation for the

allegedly delayed release of his files to him. DHS Legal Affairs

Manager Cynthia Haines testifies in her Declaration that DHS has

“continuously attempted to provide [Plaintiff] with all of his”

records. Decl. of Cynthia Haines at ¶ 4. According to Haines,

DHS’s efforts include:

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Case 3:13-cv-00794-BR Document 47 Filed 05/28/14 Page 10 of 15
• on February 26, 2013 Branch Manager Rhonda M.

Meidinger sent Mr. Baumhofer his entire OVRS

file via certified mail;

• on June 10, 2013, OVRS staff provided 

Mr. Baumhofer with his files again;

• on September 4, 2013, Mr. Baumhofer went to

his local OVRS office and reviewed his files

from 2:15 to 4:30 p.m., and was allowed

copies of any documents contained therein;

• on October 17, 2013, Mr. Baumhofer went to

his local OVRS office and reviewed his files

from 3:00 to 4:45 p.m., and was allowed

copies of any documents contained therein.

Haines Decl. at ¶ 4. 

In his Amended Complaint and Response to Defendant’s Motion

for Summary Judgment Plaintiff does not point to any specific

records that he has not received from DHS. Plaintiff, therefore,

has not established there is a genuine dispute of material fact

as to whether DHS has produced all of his DHS records.

Senior Assistant Attorney General Andrew Campbell states in

his Declaration that after the November 18, 2013, hearing he

spoke with Plaintiff about the records that Plaintiff believes he

has not received from DHS. At that point Plaintiff advised

Campbell that he “seeks documents from DHS/OVRS which he believes

will come into the possession of DHS/OVRS at some future date.” 

Decl. of Andrew Campbell at ¶ 4. To the extent that Plaintiff

seeks records that he speculates might come into the possession

of DHS at some future point, any decision by this Court related

to any such documents would be an advisory opinion, which this

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Court is not empowered to issue. See, e.g., Thomas v. Anchorage

Equal Rights Comm’n, 220 F.3d 1134, 1138 (9th Cir. 2000)(A

federal court’s “role is neither to issue advisory opinions nor

to declare rights in hypothetical cases, but to adjudicate live

cases or controversies consistent with the powers granted the

judiciary in Article III of the Constitution.”). 

Accordingly, the Court grants Defendant’s Motion for Summary

Judgment as to Plaintiff’s Second Claim.

IV. Plaintiff’s Third Claim

Plaintiff also appears to assert that OVRS did not or has

not timely produced WOTC forms to Plaintiff. Plaintiff, however,

did not specifically raise the issue of production of WOTC forms

at the March 2013 administrative hearing. Thus, Plaintiff’s

Third Claim raises a new substantive issue rather than

requesting review of the hearing officer's March 11, 2013,

decision. The Court, therefore, lacks jurisdiction to hear these

issues. See, e.g., Haranzo v. Dep't of Rehab. Serv., No. Civ. A.

7:04-CV- 00326, 2005 WL 3019240, at *4 (W.D. Va. Nov. 10, 2005)

("parties must exhaust the admin-istrative remedies available

before they have a right to bring a civil action" pursuant to 

§ 722(c)(J)(I) and 34 C.F.R. § 361.57(I)).

Even if the issue of production of WOTC forms could be

considered to have been before the Hearings Officer as part of

the question whether “OVRS treated [Defendant] in an unfair or

12 - OPINION AND ORDER

Case 3:13-cv-00794-BR Document 47 Filed 05/28/14 Page 12 of 15
unprofessional manner,” that issue is moot. Absent specific

exceptions not applicable here, an issue becomes moot when

“changes in the circumstances that prevailed at the beginning of

litigation have forestalled any occasion for meaningful relief.” 

Center for Bio. Diversity v. Lohn, 511 F.3d 960, 963 (9th Cir.

2007). The Internal Revenue Code requires a person to be

“certified by the designated local agency” (OVRS in this case) in

order to be eligible for the WOTC program and form. 26 U.S.C. 

§ 51(d)(6). As noted, however, Plaintiff is no longer a client

of OVRS, and, therefore, he is not eligible for WOTC. Thus, this

Court cannot direct OVRS to provide Plaintiff with WOTC forms.

Accordingly, the Court grants Defendant’s Motion for Summary

Judgment as to Plaintiff’s Third Claim.

V. Plaintiff’s Fourth Claim

In his Fourth Claim Plaintiff seeks an explanation from

Defendant regarding unspecified mistakes or decisions made by

OVRS and/or DHS. Plaintiff’s Fourth Claim is not sufficiently

specific for Defendant to substantively respond to it or for the

Court to determine the specific decisions that Plaintiff

challenges or for which Plaintiff alleges he is entitled to

relief. Plaintiff’s Fourth Claim, therefore, fails to comply

with Federal Rule of Civil Procedure 8(a)(2), which requires “a

short and plain statement of the claim showing that the pleader

is entitled to relief.” Moreover, Plaintiff did not submit any

13 - OPINION AND ORDER

Case 3:13-cv-00794-BR Document 47 Filed 05/28/14 Page 13 of 15
evidence in support of his Fourth Claim.

The Court already provided Plaintiff with the opportunity to

amend his Complaint to comply with Rule 8 and advised Plaintiff

that he would have to submit evidence in opposition to

Defendant’s Motion in order to support each of his claims. 

The Court, therefore, grants Defendant’s Motion for Summary

Judgment as to Plaintiff’s Fourth Claim. 

VI. Plaintiff’s Fifth Claim

In his Fifth Claim Plaintiff appears to request OVRS to

assign one caseworker and/or counselor to oversee Plaintiff at

OVRS. The Court, however, already struck this Claim in its

November 6, 2013, Opinion and Order on the ground that

Plaintiff’s request for a single caseworker or counselor

represents a new substantive issue rather than a review of the

hearing officer's March 11, 2013, decision, and, therefore, this

Court lacks jurisdiction to hear that issue. Plaintiff has not

asserted any rationale for the Court to revise its November 6,

2013, decision. 

Accordingly, the Court grants Defendant’s Motion for Summary

Judgment as to Plaintiff’s Fifth Claim.

CONCLUSION

For these reasons, the Court GRANTS Defendant’s Motion (#39) 

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for Summary Judgment and DISMISSES this matter with prejudice.

IT IS SO ORDERED.

DATED this 28th day of May, 2014.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

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