Orozco v. Garland

• Decision Date: 17 February 2023
• Docket Number: 21-5238
• Parties: Jahinnslerth Orozco, Appellant v. Merrick B. Garland, Attorney General of the United States, in his official capacity, Appellee
• Court: U.S. Court of Appeals — District of Columbia Circuit

Jahinnslerth Orozco, Appellant v. Merrick B. Garland, Attorney General of the United States, in his official capacity, Appellee

No. 21-5238

United States Court of Appeals, District of Columbia Circuit

February 17, 2023

Argued October 18, 2022

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

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 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. 99506, § 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.

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.

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 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. 2627.

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.

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...