Today’s blog entry is on a topic that we have not previously discussed before or certainly we have not discussed much. The topic is §508 of the Rehabilitation Act. Otherwise known as 29 U.S.C. §794d. Case of the day is Orozco v. Merrick Garland decided by the U.S. Court of Appeals for the District of Columbia Circuit on February 17, 2023, here. As usual, the blog entry is divided into categories- with the exception of the last section the blog, the categories track the layout of the opinion-, and they are: introduction to §508; facts; court’s reasoning that §794d(f)(3) provides a private cause of action after exhaustion of administrative remedies; and my thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.
Introduction to §508
- In 1986, Congress required agencies to buy technology that employees with disability could use without needing special adaptive devices.
- In 1992, Congress broadened the definition of accessibility by requiring agencies buying technology to give users with and without disabilities comparable access to information and data.
- In 1998, Congress extended the comparable access mandate to a broader range of activities, i.e. developing, procuring, maintaining, or using technology. Congress also clarified the duty that providing comparable access obligation runs to individuals with disabilities who either are federal employees or members of the public seeking information or services.
- Also in 1998, Congress added an enforcement mechanism. The enforcement mechanism allows any individual with a disability to file an internal administrative complaint with the relevant agency. 29 U.S.C. §794d(f)(1)(A). If such a complaint is filed, Congress required the agency to address it using its procedures for discrimination in federally funded programs rather than its procedures for employment discrimination.
- The enforcement mechanism, through a series of statutory cross references, allows any individual filing an internal administrative complaint about inaccessible technology to utilize remedies and rights set forth in 29 U.S.C. §794a(a)(2). That section in turn makes the remedies, procedures, and rights contained in title VI of the Civil Rights Act of 1964 available to persons aggrieved by any act or failure to act by any recipient of federal assistance or federal provider of such assistance.
- In other words: 1) title VI of the Civil Rights Act of 1964 creates a cause of action to challenge race, color, or national origin discrimination in federally funded programs; 2) §794a(a)(2) of the Rehabilitation Act extend the same cause of action that title VI provides to persons aggrieved by disability discrimination in federally funded programs; and 3) §794d(f)(3) extends that same cause of action to anyone filing an administrative complaint about inaccessible technology under §794d.
Facts (taken directly from the opinion)
Jahinnslerth Orozco joined the FBI as an intelligence analyst in 2012. Because he is blind, Orozco relies on screen access software that “converts visual screen information into synthesized speech or into braille” to perform his job. Compl. ¶ 2, J.A. 8. 1
Such screen access tools, though, can be foiled by poor software design. For example, if a website includes an arrow button, its function might be obvious to a sighted user but difficult for screen access software to navigate without an alternative text description.
In April 2019, Orozco filed a complaint with the Assistant Attorney General for Administration at the Department of Justice, which oversees the FBI, alleging that the FBI had failed to deploy accessible technology in his workplace. The Assistant Attorney General for Administration generally handles complaints about discrimination in programs funded by the Department of Justice, and therefore is responsible for handling complaints about inaccessible technology. See 28 C.F.R. §§ 39.170(d)(4), 42.2(a); 29 U.S.C. § 794d(f)(2). To be 1 Because this case arises from a ruling on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), we take as true the facts from Orozco’s first amended complaint and “matters of which we may take judicial notice,” and we “construe the facts, and reasonable inferences drawn from them, in the light most favorable” to Orozco. Singletary v. Howard Univ., 939 F.3d 287, 293 n.1 (D.C. Cir. 2019). 6 on the safe side, Orozco sent copies of his administrative complaint to both the FBI’s Equal Employment Opportunity Office, which handles employment discrimination complaints, and the FBI’s Chief Information Officer, which is responsible for procuring accessible technology. Orozco’s filing expressly reminded the FBI that it should handle his complaint using its procedures governing discrimination in federally funded programs. Compl. Letter 1–2, J.A. 29–30.
The FBI nonetheless routed Orozco’s complaint through its employee-discrimination process. See Letter from Arlene A. Gaylord to Timothy R. Elder (May 9, 2019), J.A. 33–35 (invoking 29 C.F.R. Part 1614’s employment discrimination procedures). Orozco once again filed his complaint with the Office of the Chief Information Officer, but he never received any response from that Office. Instead, the FBI’s Equal Employment Opportunity Office dismissed the complaint “for failure to state a claim of [employment] discrimination[.]” Letter from Richard Toscano to Timothy R. Elder (Aug. 7, 2019), J.A. 20. In the same letter, the FBI advised Orozco to contact the Office of the Chief Information Officer—which he had already done twice. Id.; see also Decl. Albert Elia Supp. Pl.’s Mem. Opp’n Def.’s Mot. Dismiss ¶¶ 6, 10–13, J.A. 26– 27.
Three months after his administrative complaint was dismissed, and having received no further communications from the FBI, Orozco filed suit in the United States District Court for the District of Columbia. His complaint reasserted the same violations of Section 794d(a) as his administrative filings, and it sought declaratory and injunctive relief against the Attorney General, who oversees the FBI. See Compl. ¶¶ (a)–(h), J.A. 15–16
The district court granted the FBI’s motion to dismiss. While recognizing “the challenges Mr. Orozco faces at his workplace,” the district court held that Section 794d(f)(3) “does not provide a cause of action” because it incorporates only the right to sue a “federal provider of * * * assistance” created by Section 794a(a)(2), and the FBI is not a federal provider of assistance when acting as an employer. Orozco v. Garland, No. 19–3336, 2021 WL 4502072, at *4–6 (D.D.C. Oct. 1, 2021). In a footnote, the district court declined to pass on the government’s separate argument that Orozco had failed to exhaust his administrative remedies. Id. at *6 n.3.
Court’s Reasoning That §794d(f)(3) Does Provide a Private Cause of Action after Exhausting Administrative Remedies
- 794d(f)(3) adopts the remedies, procedures, and rights set forth in §794a(a)(2). The provision then expressly defines to whom those remedies, procedures, and rights shall be available as being an individual with a disability filing a complaint under §794d(f)(1).
- 794a(a)(2) incorporates a set of remedies and rights found elsewhere-specifically in title VI of the Civil Rights Act of 1964. This particular section likewise separately defines to whom those rights are available as any person aggrieved by any recipient of federal assistance or federal provider of such assistance.
- While both §794d and §794a adopt the same enforcement remedies, rights, and procedures, they each independently define who gets to invoke those provisions to enforce the duty that each Section independently imposes.
- The Supreme Court has held that while §794a(a)(2) expressly incorporates title VI’s rights, remedies, and procedures-including its cause of action-§794a(a)(2) does not carry forward title VI’s separate definition of who can sue under that cause of action. Instead, its own definition of who is an authorized plaintiff governs.
- Congress must be taken at its word that when it incorporates the remedies, procedures, and rights set forth in another part of the Rehabilitation Act. This section of the Rehabilitation Act does that and no more.
- Congress created the cause of action to enforce the technology accessibility requirements of §794d. If Congress had meant also to incorporate §794a’s limits on who may sue, Congress would have said so. It didn’t do that. So, §794d(f)(3)’s own definition of qualifying plaintiff’s-any individual with a disability filing a complaint about technology accessibility-controls. Accordingly, Orozco can file suit.
- Orozco having the ability to file suit is a commonsense conclusion that gives the most natural meaning to each of the words Congress used in §794d((f)(3). That section says that the remedies, procedures, and rights in §794a(a)(2) are available to any individual with a disability filing an administrative complaint. Orozco certainly is an individual with a disability, and as an employee is one of the statutorily specified individuals who compiled the requisite administrative complaint about technology accessibility in the workplace. Holding that one section takes away what another section plainly grants puts the statute at war with itself and makes no sense.
- The district court’s reading of the statute appears to leave no one capable of using the rights, remedies, and procedures that §794d(f)(3) goes to all the trouble of adopting. In particular, this section if directed exclusively at inward facing activities, such as developing, procuring, maintaining, or using accessible technology within an agency.
- At oral argument, the government conceded that its reading of §794d(f)(3) does not leave any class of plaintiffs with a clear right to sue. Reading a statute expressly authorizing civil actions to authorize no civil actions renders that provision a nullity.
- The substantive protections of §794d apply equally to federal employees and to members of the public seeking information or services. All members of both groups are equally entitled to submit administrative complaints. Nothing in the substantive or remedial provisions of §794d even suggests that Congress meant to allow enforcement rights to members of the public seeking assistance, while deliberately withholding any such remedy from employees-especially when that leaves nobody able to sue. For that matter, nothing in the legislative history, executive interpretation, or purpose of this section supports the district court’s reasoning.
- The contemporaneous Executive Branch interpretation of §794d was exactly the opposite of the government’s current position. In 1999, the Atty. Gen. interpreted this section to authorize private lawsuits by employees and members of the public. It makes perfect sense that Congress decided not to incorporate the remedies section of §794a(a)(1) addressing employment discrimination lawsuit by federal employees because Congress specifically forbade agencies from treating administrative complaints about inaccessible technology as if they were about employment discrimination rather than about the failure to ensure federal funds are used in a nondiscriminatory manner.
- A violation of §794d does not resemble employment discrimination in any relevant respect.
- Congress’s purpose with §794d was to spur the innovative use of accessible technology by federal agencies. So, an agency can violate this section by failing to use available accessible technology regardless of whether the situation has anything to do with employment.
- The sovereign immunity argument doesn’t wash, because Congress has waived sovereign immunity when it comes to relief seeking other things than money damages, which is the case here.
- With respect to exhaustion of administrative remedies, it is unnecessary to decide it because it doesn’t affect the district court’s jurisdiction over the case. Orozco’s filing a complaint twice is sufficient to establish jurisdiction. Since any remaining exhaustion issues are not jurisdictional, it is up to the district court to address the question of a exhaustion on remand.
- Congress amended §794d to make sure that agencies would fulfill their responsibility to procure technology allowing employees with disabilities to participate fully in the workplace. To enforce that duty, Congress expressly provided a private right of action to any individual with a disability, including a federal employee, who first files an administrative complaint about inaccessible technology
- A party has 90 days to seek cert. from the Supreme Court. As far as I can tell, no such petition was filed in this case.
- Even if cert. was sought, I am not aware of a United States Court of Appeals split on this issue. It will be interesting to see whether the circuit courts do split on this question. I am not sure they will as the reasoning of this case seems pretty solid. Also, the blowback from disability rights community for the government seeking cert. would be fierce. Since I don’t recall any such blowback occurring and the time for seeking review from the Supreme Court has passed, that makes me believe that Supreme Court review was not sought.
- Administrative exhaustion is required.
- The case is very significant because it creates a private cause of action, admittedly one for injunctive relief due to sovereign immunity, on behalf of a member of the public or an employee of the federal government who runs into an issue with the technology being utilized by the federal government being inaccessible to them. As a result, tester standing may become an issue. For a discussion of tester standing, see this blog entry for example.
- Attorney fees are available for §794d suits per §794a(b).