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State v. Vilsack

United States District Court, E.D. Wisconsin

September 28, 2016




         The State of Wisconsin and Kitty Rhoades, Secretary of the Wisconsin Department of Health Services (WDHS), sue U.S. Secretary of Agriculture Tom Vilsack and other federal officials at the U.S. Department of Agriculture (USDA) seeking a declaration that Wisconsin's drug testing requirement for food-stamp recipients is valid. The plaintiffs claim that defendants' final agency actions concerning 7 U.S.C. § 2014(b) and 7 C.F.R. § 273.2(a) are arbitrary and capricious, contrary to constitutional right, and in excess of statutory and jurisdictional authority. According to plaintiffs, a real, actual, and continuing controversy exists between the parties as to whether Wisconsin's drug testing requirement, Wis.Stat. § 49.79(9)(d), is preempted by federal law and whether a specific food-stamp provision, 7 C.F.R. § 273.2(a), was amended or invalidated by a superseding federal law regarding welfare recipients, 21 U.S.C. § 862b.

         The defendants move to dismiss under Fed.R.Civ.P. 12(b)(1) and (6). A motion to dismiss under Rule 12(b)(1) challenges the jurisdiction of this court over the subject matter related in the complaint. See Fed. R. Civ. P. 12(b)(1). A Rule 12(b)(6) motion challenges the sufficiency of the complaint to state a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6).

         When examining a complaint respecting a motion to dismiss, all well-pleaded facts are assumed to be true, and all such facts, as well as the reasonable inferences therefrom, are viewed in the light most favorable to the plaintiff. Gutierrez v. Peters, 111 F.3d 1364, 1368-69 (7th Cir. 1997). Any documents attached to the complaint, documents that are critical to the complaint and referred to in it, and information subject to judicial notice may be considered by the court in reviewing a Rule 12(b)(1) or 12(b)(6) motion. See Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012); Matthews v. Hughes, No. 14 C 7582, 2015 WL 5876567, *1 (N.D. Ill. Oct. 5, 2015). However, regarding a Rule 12(b)(1) motion the court may, in addition, take into account evidence submitted with the briefs to determine whether in fact subject matter jurisdiction exists. Evers v. Astrue, 536 F.3d 651 (7th Cir. 2008).


         The federal Supplemental Nutrition Assistance Program (SNAP), created in 1964, provides assistance for low- and no-income individuals to purchase food. (Doc 9, ¶ 24.) SNAP benefits are administered jointly by federal and state officials. (Doc. 9, ¶ 24.) Federal law sets forth various eligibility requirements for recipients of SNAP benefits, including a work requirement for certain able-bodied adults without dependents (ABAWDs). (Doc. 9, ¶ 5.) Wisconsin law then contains a work requirement for certain ABAWDs that can be satisfied through participation in the FoodShare (Wisconsin's name for SNAP) employment training program (FSET). (Doc. 9, ¶ 7.) States are not allowed to impose any additional eligibility conditions upon food-stamp recipients except those expressly permitted by regulation in accordance with 7 C.F.R. § 273.2(a). (Doc. 9, ¶ 31.)

         In 1996, reforms were made to federal welfare programs, including 21 U.S.C. § 862b, which states: “Notwithstanding any other provision of law, States shall not be prohibited by the Federal Government from testing welfare recipients for use of controlled substances nor from sanctioning welfare recipients who test positive for use of controlled substances.” (Doc. 9, ¶¶ 25-29.)

         Wisconsin Act 55 took effect on July 14, 2015. Act 55 set forth new drug screening and testing requirements for certain FoodShare recipients who are ABWADs participating in Wisconsin's FSET program. (Doc. 9, ¶¶ 8, 36.) In particular, Wis.Stat. § 49.79(9)(d)1 provides that WDHS

shall promulgate rules to develop and implement a drug screening, testing, and treatment policy to screen and, if indicated, test and treat participants in an employment and training program under this subsection who are able-bodied adults for use of a controlled substance without a valid prescription for the controlled substance.

(Doc. 9, ¶ 37.) In addition, Wis.Stat. § 49.79(1m) provides that “[a]n individual who is a recipient under the food stamp program is considered to be a welfare recipient for purposes of 21 USC 862b.” (Doc. 9, ¶ 39.)

         On May 27, 2015, prior to the enactment of Act 55, defendant Susan Holzer emailed WDHS, indicating that she was aware of the proposal to require drug testing for certain FoodShare receipients. (Doc. 9, ¶ 43.) She wrote:

As you are aware, States are prohibited under Federal law from imposing any additional eligibility conditions on individuals for the receipt of SNAP benefits. Therefore, [Food and Nutrition Service (FNS)] will continue to monitor closely any action the Wisconsin State Legislature takes on this legislation. If the legislation is subsequently enacted into law, FNS will work with its General Counsel to determine how it interacts with Federal law governing the program and advise the State agency appropriately.

(Doc. 9, ¶ 43, attach. 2.)

         Plaintiffs filed this lawsuit on the same day that Act 55 took effect, i.e., July 14, 2015. As alleged by plaintiffs, on or about July 15, 2015, after the filing of this case, defendant Vilsack “issued a public statement claiming that Wisconsin's FoodShare reforms” as described above “violate federal law.” (Doc. 9, ¶ 45.[1]) However, plaintiffs did not attach to their amended complaint any evidence regarding exactly what Vilsack said. In their opposition brief, plaintiffs indicate that Vilsack's ...

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