United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY, District Judge
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.
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.
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
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.
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.
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
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).
plaintiff is pursuing declaratory and injunctive
relief. 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 ...