Jahinnslerth Orozco v. Merrick Garland

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 18, 2022 Decided February 17, 2023

No. 21-5238

JAHINNSLERTH OROZCO,

APPELLANT

v.

MERRICK B. GARLAND, ATTORNEY GENERAL OF THE UNITED

STATES, IN HIS OFFICIAL CAPACITY,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:19-cv-03336)

Karla Gilbride argued the cause for appellant. With her

on the briefs were Timothy Elder, Albert Elia, and Alexandra

Z. Brodsky.

Jane M. Lyons, Assistant U.S. Attorney, argued the cause

for appellee. With her on the brief were R. Craig Lawrence

and April Denise Seabrook, Assistant U.S. Attorneys.

Before: MILLETT, WALKER, and CHILDS, Circuit Judges.

Opinion for the Court filed by Circuit Judge MILLETT.

2

MILLETT, Circuit Judge: Jahinnslerth Orozco, an

intelligence analyst at the FBI, wants his employer to use

available software that is accessible to blind employees like

himself. Both parties agree that Section 794d of the

Rehabilitation Act generally requires federal agencies,

including the FBI, to use technology that is accessible to

employees with disabilities. But the district court dismissed

Orozco’s action on the ground that the Rehabilitation Act does

not give him any right to bring a lawsuit against the FBI to

enforce that obligation.

We reverse. The plain text of Section 794d extends a

private right of action to all persons with disabilities who file

administrative complaints requesting accessible technology

and who seek only injunctive and declaratory relief.

I

A

The Rehabilitation Act of 1973 “‘was the first major

federal statute designed to provide assistance to the whole

population of’ individuals with disabilities.” Solomon v.

Vilsack, 763 F.3d 1, 4 (D.C. Cir. 2014) (quoting Shirey v.

Devine, 670 F.2d 1188, 1193 (D.C. Cir. 1982)). Since its

enactment, the Rehabilitation Act has banned disability-based

employment discrimination in federal agencies, see 29 U.S.C.

§ 791, and disability-based discrimination in federally funded

programs, see id. § 794. See Rehabilitation Act of 1973, Pub.

L. No. 93–112, §§ 501, 504, 87 Stat. 355, 390–394.

In 1986, Congress determined that the federal government

could do more to promote the development of accessible

technology. Specifically, a Senate Report found that “low cost

and no cost modifications” to “standard microcomputer

3

software programs” could “multiply significantly” the share of

individuals with disabilities who would be able to use them.

See S. REP. NO. 388, 99th Cong., 2d Sess. 21 (1986); see also

H.R. REP. NO. 955, 99th Cong., 2d Sess. 72 (1986) (Conf. Rep.)

(adopting the Senate bill’s text). To that end, Congress

required agencies to buy technology that employees with

disabilities could use without needing special adaptive devices.

See Rehabilitation Act Amendments of 1986, Pub. L. No. 99–

506, § 603, 100 Stat. 1829.

Since then, Congress has progressively strengthened the

federal government’s role in procuring accessible technology.

In 1992, Congress broadened its definition of accessibility by

requiring that agencies buy technology that gives users with

and without disabilities “comparable” access to “information

and data.” See Rehabilitation Act Amendments of 1992, Pub.

L. No. 102–569, § 509, 106 Stat. 4344, 4430.

In 1998, Congress extended that comparable-access

mandate to a broader range of activities: “developing,

procuring, maintaining, or using” technology. 29 U.S.C.

§ 794d(a)(1)(A); see Workforce Investment Act of 1998, Pub.

L. No. 105–220, § 408(b), 112 Stat. 936, 1203–1206. Congress

also clarified that the duty to provide comparable access runs

to “individuals with disabilities” who are either “Federal

employees” or “members of the public seeking information or

services.” 29 U.S.C. § 794d(a)(1)(A)(i)–(ii).

Congress’s 1998 amendment also added the enforcement

mechanism at issue in this case, one of several measures meant

to “ensure immediate agency compliance with section [794d].”

See S. REP. NO. 166, 105th Cong., 2d Sess. 35 (1998). Codified

at 29 U.S.C. § 794d(f), the enforcement provision lays out a

means by which affected individuals can enforce an agency’s

duty to provide accessible technology.

4

First, “any individual with a disability” may file an internal

administrative complaint with the relevant agency. 29 U.S.C.

§ 794d(f)(1)(A). If such a complaint is filed, Congress requires

the agency to address it using its procedures for discrimination

in federally funded programs, see id. § 794, rather than its

procedures for employment discrimination. Id. § 794d(f)(2).

Second, through a series of statutory cross-references,

Congress vested “any individual” who files an internal

administrative complaint about inaccessible technology, 29

U.S.C. § 794d(f)(3), with those remedies and rights “set forth”

in 29 U.S.C. § 794a(a)(2). Section 794a(a)(2), 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[.]” Id. § 794a(a)(2); see

also Barnes v. Gorman, 536 U.S. 181, 185 (2002).

Put simply:

1. Title VI creates a cause of action to challenge race,

color, or national origin discrimination in federally

funded programs.

2. Section 794a(a)(2) of the Rehabilitation Act extends

the same cause of action that Title VI provides to

persons aggrieved by disability discrimination in

federally funded programs.

3. Section 794d(f)(3) then extends that same cause of

action to anyone who has filed an administrative

complaint about inaccessible technology under

Section 794d.

5

B

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. See Leiterman v. Johnson, 60 F.

Supp. 3d 166, 170 (D.D.C. 2014) (For screen access software

“to successfully ‘read’ computer screens, the information on

the screen must be coded so it is accessible to screen readers.”).

Orozco alleges that much of the software used daily by FBI

analysts suffers from similar problems, rendering it unusable

for blind employees. Compl. ¶ 2, J.A. 7–8.

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.

7

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.

Orozco timely appealed.

II

We have jurisdiction under 28 U.S.C. § 1291. We review

de novo the district court’s dismissal of the case under Federal

Rule of Civil Procedure 12(b)(6) for failure to state a claim.

Webster v. Del Toro, 49 F.4th 562, 565 (D.C. Cir. 2022). We

also review de novo the district court’s interpretation of the

Rehabilitation Act. United States v. Palmer, 35 F.4th 841, 848

(D.C. Cir. 2022).

III

Section 794d(f)(3)—the accessible technology provision

at issue here—says that “any individual with a disability filing

a complaint” shall have the “remedies, procedures, and rights”

laid out in Section 794a(a)(2)—a provision addressing

discrimination in the administration of federal financial

assistance. 29 U.S.C. § 794d(f)(3). The district court ruled that

the only right created in Section 794a(a)(2) is the right to sue a

“federal provider of * * * assistance,” and not the right to sue

a federal employer. That is because the Supreme Court has

8

interpreted the phrase “federal provider of assistance” to mean

“federal funding agencies acting as such.” Lane v. Peña, 518

U.S. 187, 193 (1996). As Orozco concedes, see Orozco

Opening Br. 36–37, federal agencies generally do not provide

“financial assistance” to anyone when they procure technology

for their employees. See Taylor v. Small, 350 F.3d 1286, 1291

(D.C. Cir. 2003).

So the question in this case is whether Section 794d(f)(3)’s

incorporation of the “remedies, procedures, and rights” created

in Section 794a(a)(2) also brings with it the latter Section’s

separate limitations on who can sue—that is, only recipients of

federal financial assistance and not employees.

We hold that Section 794(d)(3) does not bring in those

additional restrictions. Section 794d’s plain language, settled

canons of statutory construction, and precedent establish that

an incorporation of remedies, procedures, and rights means

what it says—it brings forward only those remedial provisions,

and no more.

A

We start, as we must, with “the language of the statute

itself.” Republic of Sudan v. Harrison, 139 S. Ct. 1048, 1056

(2019) (quotation omitted). Section 794d(f)(3) adopts the

“remedies, procedures, and rights set forth in section[]

794a(a)(2).” 29 U.S.C. § 794d(f)(3). The provision then

expressly defines to whom those remedies, procedures, and

rights “shall be * * * available”: “any individual with a

disability filing a complaint under [section 794d(f)(1)].” Id.

Section 794a(a)(2), in turn, incorporates a set of remedies

and rights found elsewhere—specifically, in “title VI of the

Civil Rights Act of 1964[.]” 29 U.S.C. § 794a(a)(2). And

9

Section 794a(a)(2) likewise separately defines to whom those

rights are available for purposes of Section 794a: “any person

aggrieved by * * * any recipient of Federal assistance or

Federal provider of such assistance[.]”

So while both Sections 794d and 794a adopt the same

enforcement remedies, rights, and procedures, they each

independently define who may invoke those provisions to

enforce the duties that each Section independently imposes.

The Supreme Court has ruled that the Rehabilitation Act

gives full effect to that careful distinction between incorporated

remedies and limitations on who may exercise those remedies.

In Consolidated Rail Corp. v. Darrone, 465 U.S. 624 (1984),

the question before the Court was whether Section 794a(a)(2)’s

cross-reference to Title VI’s remedies, procedures, and rights

also brought with it Title VI’s restrictions on who could sue

under that statute. (Title VI prohibits employment

discrimination suits against federally funded entities unless the

federal funding had boosting employment as its “primary

objective,” see 42 U.S.C. § 2000d–3.) The Supreme Court held

that, while Section 794a(a)(2) expressly incorporated Title VI’s

rights, remedies, and procedures—including its cause of

action—Section 794a(a)(2) did not carry forward Title VI’s

separate definition of who could sue under that cause of action.

Instead, Section 794a(a)(2)’s own definition of who is an

authorized plaintiff governs. Darrone, 465 U.S. at 635.

So too here. We take Congress at its word that, when it

incorporated the “remedies, procedures, and rights” set forth in

another part of the Rehabilitation Act, it did that and no more.

It created a cause of action to enforce the technology-

accessibility requirements of Section 794d. If Congress had

meant also to incorporate Section 794a’s limits on who may

sue, Congress would have said so. It did not, so Section

10

794d(f)(3)’s own definition of qualifying plaintiffs—any

individual with a disability who has filed a complaint about

technology accessibility—controls, permitting Orozco to file

suit.

That common-sense conclusion gives the most natural

meaning to each of the words Congress used in Section

794d(f)(3). Section 794d(f)(3) says that the “remedies,

procedures, and rights” in Section 794a(a)(2) shall be

“available to any individual with a disability filing” an

administrative complaint. 29 U.S.C. § 794d(f)(3) (emphasis

added). Orozco certainly counts as “any individual with a

disability,” and as an employee, he is one of the statutorily

specified individuals who can file the requisite administrative

complaint about technology accessibility in the workplace. Id.

§§ 794d(a)(1)(A)(i), (f)(1)(A). To hold that Section

794a(a)(2)’s incorporated cause of action takes away what

Section 794d(f)(3)’s plain text expressly grants would be to put

the statute at war with itself.

In fact, the district court’s reading would appear to leave

no one capable of using the rights, remedies, and procedures

that Section 794d(f)(3) goes to all the trouble of adopting. As

Lane held, a federal agency like the FBI generally is not acting

as a “‘Federal provider’ of financial assistance” within the

meaning of the Rehabilitation Act when it manages its own

employees or other internal affairs. 518 U.S. at 195. Yet

Section 794d is directed exclusively at these kinds of inward-

facing activities: “developing, procuring, maintaining, or

using” accessible technology within the agency. See 29 U.S.C.

§ 794d(a); see also 28 C.F.R. § 41.3(e) (Department of Justice

definition of “Federal financial assistance” excluding

“procurement contract[s]”).

11

So agencies would seem to be incapable of violating

Section 794d while acting in their external grantmaking and

financial-assistance-giving capacities—the only capacities for

which the district court’s reading would allow suit. Tellingly,

at oral argument, counsel for the government conceded that its

reading of Section 794d(f)(3) does not leave any class of

plaintiffs with a “clear” right to sue. Oral Arg. Tr. 27:14–29:2.

We agree. Reading a statute expressly authorizing “civil

actions” to authorize no civil actions would be to render that

provision a nullity. Workforce Investment Act of 1998

§ 408(b), 112 Stat. at 1206; see generally Ysleta Del Sur

Pueblo v. Texas, 142 S. Ct. 1929, 1939 (2022) (“[W]e must

normally seek to construe Congress’s work ‘so that effect is

given to all provisions, so that no part will be inoperative or

superfluous, void or insignificant.’”) (quoting Corley v. United

States, 556 U.S. 303, 314 (2009)).

B

Section 794d’s structure confirms that Congress extended

the remedies of Title VI to “any” person with a disability,

including an employee, who files an administrative complaint

about inaccessible technology. See Epic Sys. Corp. v. Lewis,

138 S. Ct. 1612, 1619 (2018) (Courts have a “duty to interpret

Congress’s statutes as a harmonious whole[.]”).

In Darrone, the Supreme Court relied in part on structural

principles to hold that Section 794a(a)(2)’s cross-reference to

the “remedies, procedures, and rights set forth in title VI of the

Civil Rights Act of 1964” did not also bring with it Title VI’s

“primary objective” limitation on employment discrimination

suits, 42 U.S.C. § 2000d–3. See 465 U.S. at 633–635. Darrone

emphasized that, unlike Title VI, the Rehabilitation Act’s

substantive protections placed no such limitation on funding

agencies’ duty to prevent employment discrimination. See id.

12

at 632–633 (citing 29 U.S.C. § 794(a)). Further, the Court

found no indication in the “legislative history, executive

interpretation, [or] purpose” of the statute that any such

limitation was intended. Id. at 633.

Likewise here. The substantive protections of Section

794d apply equally to federal employees and to “members of

the public seeking information or services[.]” 29 U.S.C.

§ 794d(a)(1)(A). And all members of both groups are equally

entitled to submit administrative complaints. Id. § 794d(f)(1)–

(2). Nothing in the substantive or remedial provisions of

Section 794d hints that Congress meant to confine its

enforcement rights to members of the public seeking

assistance, while deliberately withholding any such remedy

from employees—especially when that might leave nobody

able to sue. Nor does any “legislative history, executive

interpretation, [or] purpose” support the district court’s

reading. Cf. Darrone, 465 U.S. at 633. 2

In fact, the contemporaneous Executive Branch

interpretation of Section 794d was exactly the opposite of the

government’s current position. In 1999, just after Section

794d(f)(3) was enacted, the Attorney General interpreted

Section 794d(f) to authorize “private lawsuits by employees

and members of the public.” Department of Justice,

Information Regarding Section 508 of the Rehabilitation Act at

2 (April 2, 1999), https://www.justice.gov/sites/default/

files/crt/legacy/2009/02/18/oldinfo.pdf (last accessed Feb. 8,

2023); see also Department of Justice, Executive Summary, in

Information Technology and People With Disabilities: The

2

Section 794d creates exceptions for users of “national security

systems,” see 29 U.S.C. § 794d(a)(5), and for situations where

procuring accessible technology would pose an “undue burden,” id.

§ 794d(a)(1)(A), but the government has not argued that either

exception applies here.

13

Current State of Federal Accessibility at 11-2 (April 2000)

(“Members of the public and employees with disabilities * * *

may * * * file private lawsuits in Federal district court.”)

(emphasis added).

The government attaches significance to Congress’s

decision not to incorporate the remedies of Section 794a(a)(1),

which addresses employment discrimination lawsuits by

federal employees. See Gov’t Br. 15.

But that makes perfect sense. Remember, 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 non-discriminatory manner.

29 U.S.C. § 794d(f)(2). Given that, Congress understandably

eschewed a cause of action crafted to deal with employment

discrimination.

Nor does a violation of Section 794d resemble

employment discrimination in any relevant respect.

Congress’s purpose was to spur the innovative use of

accessible technology by federal agencies. So an agency can

violate Section 794d by failing to use available accessible

technology, regardless of whether, for example, that omission

was tied to an individual “adverse personnel decision or other

term or condition of employment[,]” as it would have to be to

state a claim of employment discrimination, see, e.g., Marshall

v. Federal Express Corp., 130 F.3d 1095, 1099 (D.C. Cir.

1997).

Anyhow, the government’s reading cannot rest on some

perceived desire to cut out only federal employees from

enforcement efforts, since its reading leaves no one capable of

suing, employee or otherwise.

14

C

The government separately argues that we should read

Section 794d to foreclose employee (or apparently any other)

lawsuits because we must construe “any ambiguity” in Section

794d “against a waiver of sovereign immunity.” Southwestern

Power Admin. v. FERC, 763 F.3d 27, 32 (D.C. Cir. 2014); see

Gov’t Br. 24.

That canon of statutory construction is of no help here. To

start, there is no relevant ambiguity because the plain text of

Section 794d forecloses the government’s preferred reading.

Beyond that, Congress already “waive[d] the Government’s

immunity from actions seeking relief ‘other than money

damages’” in Section 702 of the Administrative Procedure Act.

Department of the Army v. Blue Fox, Inc., 525 U.S. 255, 260–

261 (1999). That waiver, we have “repeatedly” held, “applies

to any suit whether under the APA or not.” Perry Capital LLC

v. Mnuchin, 864 F.3d 591, 620 (D.C. Cir. 2017) (quoting

Trudeau v. Federal Trade Comm’n, 456 F.3d 178, 186 (D.C.

Cir. 2006)); see also Gov’t Br. at 43 n.17, Lane v. Peña, 518

U.S. 187 (1996) (No. 95–365), 1996 WL 115795, at *27 n.17

(recognizing that Section 702 waived sovereign immunity for

Lane’s non-monetary declaratory and injunctive relief). Nor,

for the reasons canvassed above, does Section 794d contain any

explicit “limitation on suit[]” that would limit Section 702’s

reach. Cf. Match-E-Be-Nash-She-Wish Band of Pottawatomi

Indians v. Patchak, 567 U.S. 209, 215–216 (2012).

*****

To sum up, the plain text and structure of 29 U.S.C.

§ 794d(f)(3) grant Orozco the right to use the “remedies,

procedures, and rights” of Title VI to assert his claim for

15

accessible technology. Neither sovereign immunity nor any

other structural or textual feature confines Section 794d(f)(3)’s

cause of action to plaintiffs aggrieved by federal providers of

assistance—which under this statutory provision governing

internal agency administration would seem to be no one. The

government should have stuck with its original reading of

Section 794d(f)(3): The statute affords federal employees like

Orozco their day in court.

IV

Lastly, the parties disagree whether Orozco—having

already filed his complaint once with the Justice Department’s

Assistant Attorney General for Administration, and twice with

the FBI’s Office of the Chief Information Officer, and having

received a response from neither—was required to do still more

to exhaust his administrative remedies before filing suit.

Compare Orozco Reply Br. 3 n.1 with Gov’t Br. 12 n.6; see

generally Doak v. Johnson, 798 F.3d 1096, 1103–1104 (D.C.

Cir. 2015); Bartlett v. IRS, 749 F.3d 1, 8 & n.28 (1st Cir. 2014).

We need not decide that issue because it does not affect

our or the district court’s jurisdiction over this case. Section

794d(f)(3) gives a cause of action to persons “filing a complaint

under paragraph [794d(f)(1)].” Orozco did file such a

complaint—twice. See Compl. Letter, J.A. 21; Decl. Albert

Elia Supp. Pl.’s Mem. Opp’n Def.’s Mot. Dismiss ¶¶ 6, 10–13

J.A. 26–27. That is enough to establish jurisdiction. See Doak,

798 F.3d at 1104.

Because any remaining exhaustion issues are non-

jurisdictional, we remand them to the district court to be

addressed in the first instance.

16

V

Congress amended 29 U.S.C. § 794d to make sure that

agencies would fulfill their responsibility to procure

technology that allows 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 group of which Orozco is undoubtedly a

member.

For that reason, we reverse the decision of the district court

and remand for further proceedings consistent with this

opinion.

So ordered.