McRaniels, Tasha v. United States Department of Veterans Affairs et al

Filing 29

ORDER granting in part and denying in part 13 Motion to Dismiss. Defendants United States Department of Veterans Affairs and Secretary David Shulkin's motion to dismiss is granted as to plaintiff's APA claim and otherwise denied. The clerk of court is directed to amend the docket to reflect the substitution of defendant Robert A. McDonald for David Shulkin. Signed by District Judge William M. Conley on 5/18/2017. (voc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
TASHA McRANIELS,
Plaintiff,

OPINION AND ORDER

v.
UNITED STATES DEPARTMENT OF
VETERANS AFFAIRS and DAVID SHULKIN,
Secretary of Veterans Affairs,

15-cv-802-wmc

Defendants.
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.

ALLEGATIONS OF FACT1
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
In resolving a motion to dismiss under Rule 12(b)(6), the court takes all of the factual
allegations in the complaint as true and draws all inferences in plaintiff’s favor. Killingsworth v.
HSBC Bank Nev., 507 F.3d 614, 618 (7th Cir. 2007).
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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.

OPINION
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
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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 threat of injury [is] both real and immediate, not conjectural
or hypothetical.’” (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983))).
Plaintiff alleges that she “anticipates participating in her husband’s care in the
future but she is deterred from doing so due to the discrimination she faced and expects
Monetary damages against the federal government are not available for violations of the
Rehabilitation Act or the APA. See Lane v. Pena, 518 U.S. 187, 193 (1996) (holding that
Congress did not waive the Federal Government’s sovereign immunity in enacting the
Rehabilitation Act); Depot of Army v. Blue Fox, Inc., 525 U.S. 255, 260 (1999) (holding that the
United States has not waived its sovereign immunity when it comes to APA claims seeking money
damages).
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to face in the future.” (Am Compl. (dkt. #10) ¶ 30.) However, defendants contend that
this allegation is insufficient to “demonstrate a real and immediate threat of future
discrimination by the VA.” (Defs.’ Opening Br. (dkt. #14) 12.) Critically, however, that
is not an accurate description of the standard, at least to overcome a facial challenge on a
motion to dismiss. Instead, plaintiff must simply “plausibly suggest” a future injury.
Berger, 843 F.3d at 289.
Here, plaintiff has done just that, alleging that:

she experienced alleged

discrimination because of a disability; she anticipates returning to the VA for future care
of her spouse; and she has reason to expect the same discrimination going forward. She
further alleges the experience alone has deterred her from participating in her husband’s
care going forward out of concern of future discrimination. This latter allegation alone
may be sufficient to overcome any facial challenge to her standing.

See Scherr v. Marriot

Int’l, Inc., 833 F. Supp. 2d 945, 952 (N.D. Ill. 2011) (noting and applying the “deterrent
effect doctrine,” under which other federal courts of appeal have found standing based on
allegations that “person has actually become aware of discriminatory conditions existing
at a public accommodation, and is thereby deterred from visiting or patronizing that
accommodation”).

In combination with her other allegations, plaintiff has at least

“plausibly suggested” that she faces a real and immediate threat of discrimination the
next time her husband needs to exercise his health care rights at a VA hospital for any
serious conditions.
While this addresses defendants’ facial challenge, there is still a question of
defendants’ purported factual challenge to standing, which they raise by pointing to a
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change in policy to provide “interpretive services” not just to patients but “families” and
attaching the current policy, post-dating the events at issue in this case to their motion to
dismiss.

As defendants further point out, “courts may properly look beyond the

jurisdictional allegations of a complaint and view evidence to determine whether subject
matter jurisdiction exists in fact.” Ciarpaglini v. Norwood, 817 F.3d 541, 543 (7th Cir.
2016).
Still, “a defendant seeking dismissal based on its voluntary change of practice or
policy must clear a high bar.” Id. at 545. “A case might become moot if subsequent
events made it absolutely clear that the allegedly wrongful behavior could not reasonably
be expected to recur.” Id. (quoting United States v. Concentrated Phosphate Export Ass’n, 393
U.S. 199, 203 (1968) (emphasis added)). Since defendants are alleging mootness, theirs
is a “heavy burden” to persuade the court “that the challenged conduct ‘cannot
reasonably be expected to start up again.’” Id. (quoting Friends of the Earth, Inc. v. Laidlaw
Environmental Services (TOC), Inc., 528 U.S. 167, 189 (2000)).
Under the new policy, adopted March 1, 2016, and attached to the declaration of
Jane Ludwig, the Chief of Social Work and Chaplain Services at the VA Hospital, the
purpose of “interpreter services” is to “assist patients and families in the normal delivery
of medical care when the use of a common language is not possible.” (Ludwig Decl., Ex.
A (dkt. #15-1).) The policy further directs staff to contact Social Work Services to
arrange for interpreters, including sign language interpreters. (Id.) In her declaration,
Ludwig also avers that the VA has four different vendors available to provide in-person,
sign language interpreters, and it is in the process of registering a fifth. (Ludwig Decl.
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(dkt. #15) ¶ 12.) Since the incident precipitating this lawsuit, the VA also represents
that it has implemented VRI services available via computer 24 hours a day, seven days a
week at any VA hospital, and it in the process of finalizing connections and equipment
for the same service at its clinics. (Id. at ¶ 13.)
In response, however, plaintiff filed her own declaration, indicating that she
accompanied her husband for further treatment at the VA hospital in June 2016, after the
new policy was purportedly in place.

Nevertheless, she avers that the VRI device

provided did not work, apparently because both the required software was not installed
and the wireless internet connection was inconsistent throughout the hospital.
(McRaniels Decl. (dkt. #21) ¶¶ 2-6.) Moreover, after plaintiff complained, the hospital
was unable to fix the VRI or to provide an in-person interpreter.

Based on this

experience, plaintiff argues that even if the new policy has been adopted, it is inadequate
as a matter of fact to meet her needs. Therefore, plaintiff asserts, defendants have failed
to meet their “heavy burden” of demonstrating that the policy moots her challenge.
(Pl.’s Opp’n (dkt. #19 8.)
In reply, defendants would have the court extend their pending motion to dismiss
far beyond the scope of a standing challenge, instead arguing what is reasonably required
under the Rehabilitation Act itself. (Defs.’ Reply (dkt. #22) 4-5.) While this argument
may also have merit when timely raised in a motion for summary judgment, defendants
advancing it in reply only underscores their failure to prove “that the challenged conduct
cannot reasonably be expected to start up again” on the limited record at the motion to
dismiss stage. Ciarpaglini, 817 F.3d at 545. Indeed, plaintiff’s experience post-dating the
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adoption of the new policy belies defendants’ position.

As such, the court rejects

defendants’ challenges to standing.
II. Private Right of Action
Next, defendants seek to dismiss plaintiff’s Rehabilitation Act claim on the basis
that there is no private right of action against federal agencies for disability
discrimination in federally-run programs. Section 504 of the Rehabilitation Act prohibits
discrimination “under any program or activity receiving Federal financial assistance or
under any program or activity conducted by any Executive agency or by the United
States Postal Service.” 29 U.S.C. § 794. Section 504, the remedies provision, however,
describes remedies available to persons “aggrieved by any act or failure to act by any
recipient of Federal assistance or Federal provider of such assistance under section 794 of
this title,” 29 U.S.C. § 794a, without mentioning “Executive agency.”

From this,

defendants reason that there is no private right of action.
While the court agrees with defendants -- and plaintiff does not dispute -- that
there is no express private right of action, reading sections 504 and 505 together compels
a finding of an implied private right of action for reasons persuasively set forth in Davis v.
Astrue, No. C-06-6108 EMC, 2011 WL 3651064, at *3-5 (N.D. Cal. Aug. 18, 2011).
Reviewing the Act’s legislative history, the Davis court explained that Congress intended
“to extend section 504’s reach to ensure that no one would be exempt from its
nondiscrimination provision.

Section 505’s remedy therefore must be available to

victims of discrimination by federal agencies in their programs and activities brought
within section 504’s umbrella by the 1978 amendment.” Id. at 4 (quoting Doe v. Attorney
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General, 941 F.2d 780, 785 (9th Cir.1991), overruled on other grounds by Lane v. Pena, 518
U.S. 187, 191 (1996)).

Of course, as the Court in Lane held, there is no right to

monetary damages against the federal government under the Rehabilitation Act. Lane,
518 U.S. at 200.
The cases cited in support of defendants’ contrary position are distinguishable
either because: (1) those cases concerned whether there is a private right of action to
require a federal agency to respond to an administrative complaint, e.g., SAI v. Dep’t of
Homeland Sec., 149 F. Supp. 3d 99, 110 (D.D.C. 2015) (holding that “Plaintiff does not
have a cause of action under the Rehabilitation Act for the agency’s failure to respond to
the SFO complaint in a timely manner”); or (2) the holding was limited to claims against
the United States in a regulatory capacity, e.g., Kinneary v. City of New York, 358 F. Supp.
2d 356, 360 (S.D.N.Y. 2005) (“[T]here is no implied private right of action in the
Rehabilitation Act against the United States when acting as a regulator.”); Cousins v. Sec’y
of the U.S. Dep’t of Transp., 880 F.2d 603, 605 (1st Cir. 1989) (same). As such, the court
rejects this basis for dismissal.
III. Exhaustion
Defendants also seek to dismiss plaintiff’s Rehabilitation Act claim on the basis
that she failed to exhaust her administrative remedies. This argument never gets off the
ground. In Adashunas v. Negley, 626 F.2d 600 (7th Cir. 1980), the Seventh Circuit held
“the Rehabilitation Act does provide the handicapped with affirmative rights, does create
a private right of action and does not require exhaustion of administrative remedies.” Id.
at 603 (emphasis added).

While the court cited to Lloyd v. Regional Transportation
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Authority, 548 F.2d 1277 (7th Cir. 1977), for support, and defendants attempt to
distinguish Lloyd on the basis that that court hinted exhaustion may be required once
regulations are in place, the Adashunas court held three years later that exhaustion was
not required, outside of the employment context, without any such reservation. Even if
this were an open question at the time defendants filed the motion to dismiss, the United
States Supreme Court’s recent decision in Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743, 758
(2017), would appear to put their challenge to rest.
IV. APA Claim
Finally, defendants seek to dismiss plaintiff’s APA claim on the basis that she
failed to identify an “agency action” as defined in 5 U.S.C. § 551(13). Plaintiff contends,
in response, that when an action is required (as compared to simply discretionary), “the
failure to take such action constitutes a reviewable final action under the APA.” (Pl.’s
Opp’n (dkt. #19) 19.)

Here, however, the regulations at issue requiring the VA to

furnish auxiliary aids provide for significant discretion in their implementation. (Defs.’
Reply (dkt. #22) 11-12.)

As such, the court agrees with defendants that plaintiff’s

complaint does not implicate a legally required, discrete action, such as a failure to issue a
rule within a specified period of time, but rather concerns ministerial or nondiscretionary acts. See Nortan v. S. Utah Wilderness Alliance, 542 U.S. 55, 64 (2004).
Accordingly, the court will dismiss plaintiff’s APA claim.

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ORDER
IT IS ORDERED that:
1) Defendants United States Department of Veterans Affairs and Secretary David
Shulkin’s motion to dismiss is GRANTED as to plaintiff’s APA claim and
otherwise DENIED.
2) The clerk of court is directed to amend the docket to reflect the substitution of
defendant Robert A. McDonald for David Shulkin.
Entered this 18th day of May, 2017.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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