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McRaniels v. United States Department of Veterans Affairs

United States District Court, W.D. Wisconsin

May 18, 2017



          WILLIAM M. CONLEY, District Judge

         Plaintiff Tasha McRaniels is deaf and communicates primarily in American Sign Language (“ASL”). During her husband's treatment at William S. Middleton Memorial Veterans Hospital, she contends that the United States Department of Veterans Affairs discriminated against her by failing to provide auxiliary aids and service to accommodate her disability in violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, despite her repeated requests for assistance. Plaintiff also asserts a claim for violation of the Administrative Procedure Act, 5 U.S.C. § 701 et seq., based on defendants' failure to carry out a required act. Pending before the court is defendants' motion to dismiss for both a lack of standing under Federal Rule of Civil Procedure 12(b)(1) and failure to state a claim under Rule 12(b)(6). (Dkt. #13.) The court will grant defendants' motion to dismiss plaintiff's APA claim because the actions involved were discretionary in nature, but will deny the motion in all other respects for the reasons that follow.


         As a profoundly deaf individual, plaintiff Tasha McRaniels primarily relies on ASL. Within the meaning of the Rehabilitation Act, there is no dispute that she is substantially limited in the major life activities of hearing and speaking. Because the United States Department of Veterans Affairs is an Executive Agency of the United States of America, it is subject to the requirements of the Rehabilitation Act and the APA. Plaintiff also named defendant Robert A. McDonald, who, at all times relevant to the complaint, was the United States Secretary of Veterans Affairs. Obviously, defendant Secretary McDonald is being sued in his official capacity only. Therefore, the court will substitute McDonald with the current Secretary of Veteran Affairs, David Shulkin, as now reflected in the caption above. Defendants operate William S. Middleton Memorial Veterans Hospital in Madison, Wisconsin.

         Upon information and belief, the hospital does not have or utilize Video Remote Interpreting (“VRI”) services for deaf individuals. While the hospital provides foreign language interpretation services, it does not provide ASL interpretation services.

         On or about June 12, 2015, plaintiff's husband, a veteran of the United States armed forces, was transferred from another hospital to Middleton Memorial for medical treatment. With plaintiff accompanying him to the hospital, he requested a sign language interpreter for plaintiff. The hospital nevertheless refused this request on the basis that the plaintiff was neither a veteran nor a patient. The hospital also failed to provide her any other auxiliary aids or services to facilitate better communication in light of plaintiff's disabilities. As a result, throughout her husband's hospitalization, up to and including his discharge on June 15, plaintiff had little to no understanding of her husband's medical condition, tests, medication, or the instructions on follow-up care.


         Defendants move to dismiss plaintiff's claims for lack of standing under Fed.R.Civ.P. 12(b)(1). In the alternative, they seek dismissal for failure to state a claim under Rule 12(b)(6). The court will first turn to the subject matter jurisdiction challenge, as it must.

         I. Standing

         Article III of the Constitution confines federal courts' jurisdiction to the resolution of “cases and controversies.” Davis v. Federal Election Commission, 554 U.S. 724, 732 (2008). One element of this requirement is that of standing -- “the personal interest that must exist at the commencement of the litigation.” Id. (internal citation omitted). “Because standing is ‘an essential and unchanging part of the case-or-controversy requirement of Article III, [a court] must consider [that] jurisdictional issue even if the parties have not raised it.” Shirmer v. Nagode, 621 F.3d 581, 584 (7th Cir. 2010) (internal citation omitted).

         To establish standing a plaintiff must have:

(1) an ‘injury in fact--an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical'; (2) a causal connection between the injury and the conduct complained of, that is, the injury is fairly traceable to the challenged action of the defendant, not the result of the ‘independent action of some third party not before the court'; and (3) a favorable decision likely will redress the injury.

O'Sullivan v. City of Chi., 396 F.3d 843, 854 (7th Cir. 2005) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). “To meet this burden and to survive a challenge to standing under Rule 12(b)(1), a plaintiff must plead sufficient factual allegations, taken as true, that plausibly suggest each of these elements.” Berger v. Nat'l Collegiate Athletic Ass'n, 843 F.3d 285, 289 (7th Cir. 2016) (internal citation and quotation marks omitted).

         Here, plaintiff is pursuing declaratory and injunctive relief.[2] To do so, plaintiff cannot merely rely on a past injury; instead, she must allege that she is in immediate danger of sustaining a future injury. Bell v. Keating, 697 F.3d 445, 451 (7th Cir. 2012) (“When the plaintiff applies for prospective relief against a harm not yet suffered-or one [s]he believes [s]he will suffer again-[plaintiff] must establish that [s]he ‘is immediately in danger of sustaining some direct injury as the result of the challenged official conduct [, ] and [that] the injury or ...

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