Williamson v. Sulkin et al
MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 10/13/2017. (PSM)
2017 Oct-13 PM 03:45
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SULKIN, et al.,
MEMORANDUM OF OPINION
The Court has received Plaintiff Williamson’s Complaint (doc. 1), motion
for leave to proceed in forma pauperis (doc. 2), as well as her response (doc. 4) to
the Court’s show cause order (doc. 3). For the reasons stated below, Plaintiff’s
motion for leave to proceed in forma pauperis (doc. 2) is due to be granted and this
action is due to be DISMISSED without PREJUDICE.
Plaintiff is a transgender veteran living in Tuscaloosa, Alabama. Williamson
alleges she has been harmed by the Department of Veteran Affairs’ (“the VA”)
2016 decision to forgo a proposed regulation change which would have reversed its
official policy of not providing gender alterations as a medical service.
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In Spring of 2016, the Department of Veterans Affairs proposed a rule
change entitled “Removing Gender Alterations Restriction From the Medical
Benefits Package” which would enable the VA to begin covering gender transition
surgery for veterans. While the VA “currently provides many services for
preoperative evaluation and long-term care following sex reassignment surgery,”
the Department has been barred from covering the total gender alteration
procedure since 1999. (Doc. 4-1 at 5.) The proposed change was removed from the
official fall 2016 Unified Agenda in November of 2016 due to budget constraints.
See id. In an official statement, the VA indicated that it “has been and will continue
to explore a regulatory change that would allow VA to perform gender alteration
surgery…” and the proposed rule change would be delayed until such a time as
“when appropriate funding [becomes] available.” (Doc. 4-1 at 4.) Plaintiff appears
to seek injunctive relief and requests that the Court “direct the VA to immediately
reverse [the] harmful policy. . . .” (Doc. 4 at 3.)
Williamson argues that because the VA currently provides most transitionrelated medical care for transgender veterans who have been diagnosed with gender
dysphoria, it should also provide and perform gender reassignment surgery.
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Specifically, she avers “there is no rational justification to withhold or limit
necessary or appropriate care for transgender veterans and service personnel,” and
that “by refusing the medically necessary care, as deemed necessary by her
doctors, the VA is causing great and lasting harm to [her] health and well-being. . .
.” (Doc. 1 at 5; Doc. 4 at 3.) She asks this Court to instruct the VA to either
provide the complete medical care for transgender veterans, or if unprepared to
provide these services in house, to provide coverage for the services. Though it is
somewhat unclear, Williamson appears to argue that by providing gender
reassignment surgery, transgender veteran care would be more holistic, and by
enabling the VA to oversee and control all aspects of treatment would in turn
precipitate a decrease in costs overall.
Standard of Review
Article III of the United States Constitution allows federal courts to only
adjudicate “cases or controversies of sufficient concreteness to evidence a ripeness
for review.” Digital Properties, Inc. v. City of Plantation, 121 F.3d 586, 590 (11th Cir.
1997); U.S. Const. art. III, § 2 cl. 1 et seq. When assessing whether a claim is ripe
for judicial review, courts must take both constitutional and prudential concerns
into consideration. A claim for relief is not yet ripe for adjudication when it rests
upon “contingent future events that may not occur as anticipated . . . .” Thomas v.
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Union Carbide, 473 U.S. 568, 581 (1985). In Abbott Laboratories v. Gardner, the
Supreme Court stated that the rationale of ripeness:
is to prevent the courts, through avoidance of premature adjudication,
from entangling themselves in abstract disagreements over administrative
policies, and also to protect the agencies from judicial interference until
an administrative decision has been formalized and its effects felt in a
concrete way by the challenging parties.
387 U.S. 136, 148 (1967) (emphasis added) (overruled on other grounds by Califano v.
Sanders, 430 U.S. 99, 97 (1977)). Engaging in a “[s]trict application of the ripeness
doctrine prevents federal courts from rendering impermissible advisory opinions
and wasting resources through review of potential or abstract disputes.” National
Advertising Co. v. City of Miami, 402 F.3d 1335 (11th Cir. 2005) (citing Digital, 121
F.3d at 590). The ripeness determination “goes to whether the district court ha[s]
subject matter jurisdiction to hear the case.” Digital, 121 F.3d at 591 (citing
Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n. 7 (11th Cir.1989).
Because this action is due to be dismissed as not yet ripe, this Opinion does
not reach whether the pro se Plaintiff has stated a claim or whether the action is
frivolous under 28 U.S.C. § 1915(e)(2).
See 28 U.S.C. § 1915(e)(2)
(“Notwithstanding any filing fee, or any portion thereof, that may have been paid,
the court shall dismiss the case at any time if the court determines that . . . the
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action is frivolous or malicious [or]. . . fails to state a claim on which relief may be
Williamson attempts to maintain this suit on her belief that the VA should
have gone through with its proposed rule change removing the restriction which
prevents the VA from performing gender reassignment surgery to veterans.
Williamson avers the VA is denying her medically necessary care by refusing to
provide her with total sex reassignment surgery. (Doc. 4-1 at 5.) However, the
Department has not definitively precluded a rule change in the future. On the
contrary, it has indicated it will only delay pursuit of such a change until funding is
available. Consequently, Williamson’s claims are unripe for review and action by
this Court on this matter improper.
A 2011 executive order requires agencies to take costs into account when
considering rule changes. See Exec. Order No. 13,563, 76 Fed. Reg. 3,821, 3,823
(Jan. 18, 2011) (“[E]ach agency must, among other things: (1) propose or adopt a
regulation only upon a reasoned determination that its benefits justify its costs . . .
[and] use the best available techniques to quantify anticipated present and future
benefits and costs as accurately as possible.”) (citing Exec. Order No. 12866 (Sept.
30, 1993)). The VA’s reasoning for not moving forward with their proposed rule
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change in 2016 appears to have been based upon the financial infeasibility of the
change at present, and was in no way aimed to discriminate against or harm
transgender individuals or veterans like Williamson by depriving them of necessary
medical care. On the contrary, as shown in Williamson’s complaint and
attachments, she has received numerous consultations from the VA, her requests
for a referral to a psychologist have been honored and the VA has provided her with
the care and treatment it is authorized to provide. See 38 C.F.R. § 17.38 (c)(4) (VA
medical benefits packages available to veterans expressly “does not include . . .
The possibility that the VA will include a similar rule change in its next
Unified Agenda, whether funding will become available to make such a change, and
whether such a change will be approved and ultimately put into effect, are each
contingent upon one another and are altogether tenuous. Thus, Williamson’s claim
for relief is based upon “contingent future events that may not occur as
anticipated. . .”and is not ripe for review. The tenuous nature of these claims
“counsel” in favor of an exercise of “judicial restraint” in this matter. See Digital,
121 F.3d at 589 (quoting Action Alliance of Senior Citizens v. Heckler, 789 F.2d 931,
940 n. 12 (D.C.Cir.1986)).
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No final agency decision has been reached regarding the possible future
policy change. Consequently, granting review of this matter would improperly
involve this Court in “disagreements over [Department of Veteran Affairs]
administrative policies,” which would result in a failure to “protect the agenc[y]
from judicial interference until an administrative decision has been formalized . . .
.” Abbott Labs., 387 U.S. at 148. The withdrawal of a proposed rule change is not
“a binding conclusive administrative decision” therefore, “no tangible controversy
exists and, thus, [this Court] ha[s] no authority to act.” Digital, 121 F.3d at 590
(citing Hallandale, 922 F.2d at 762–63).
“[I]t is clear that an unripe claim, like a claim outside this court's
jurisdictional ambit, must be dismissed without prejudice.” Shinnecock Indian
Nation v. United States, 782 F.3d 1345, 1350 (Fed. Cir. 2015). Because Williamson
does not present an actual case or controversy that is ripe for judicial review, her
claims are due to be DISMISSED without PREJUDICE. Additionally, her Motion
for Leave to Proceed in forma pauperis is due to be granted.
DONE and ORDERED on October 13, 2017.
L. Scott Coogler
United States District Judge
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