Orozco v. Wray

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JAHINNSLERTH OROZCO,

Plaintiff,

v. Civ. Action No. 19-3336 (EGS)

MERRICK B. GARLAND, Attorney
General of the United States,
in his official capacity, 1

Defendant.

MEMORANDUM OPINION

Plaintiff Jahinnslerth Orozco (“Mr. Orozco”) brings this

suit under Section 508 of the Rehabilitation Act of 1973

(“Section 508”), codified in 29 U.S.C. § 794d. See Compl., ECF

No. 12 ¶ 1. Mr. Orozco, a blind federal employee, alleges that

the Federal Bureau of Investigations (“FBI”), a division of the

Department of Justice headed by Attorney General Merrick B.

Garland (“Defendant” or the “government”), has failed to comply

with the accessibility standards of Section 508 and prevented

blind employees from effectively and independently accessing

critical systems required for employment. See id. Mr. Orozco

asserts that the FBI has procured, maintained, and is using

1 Pursuant to Federal Rule of Civil Procedure 25(d), the Court
substitutes as defendant Merrick B. Garland for Former Attorney
General William P. Barr.

1
software systems that he, as a blind employee, cannot access in

the manner enjoyed by his nondisabled colleagues. See id. ¶ 2,

11.

Pending before the Court is Defendant’s Motion to Dismiss.

See Def.’s Mem. in Supp. of Mot. to Dismiss (“Def.’s Mot. to

Dismiss”), ECF No. 13. Upon careful consideration of the motion,

opposition, the reply, the applicable law, and for the reasons

explained below, Defendant’s Motion to Dismiss is GRANTED.

I. Factual and Procedural Background
Mr. Orozco has been employed by the FBI as an Intelligence

Analyst since July 15, 2012. See Compl., ECF No. 12 ¶ 12. As a

blind computer user, Mr. Orozco uses screen access software that

converts digital information into synthesized speech. See id. ¶

11. Mr. Orozco alleges that several systems used by the FBI are

inaccessible to blind employees who use screen access software.

See id. ¶ 26. These include (1) Sentinel, a “web-based case

management system” used to review and manage case files; (2) the

Enterprise Process Automation System, a “web-based software

system” used “to perform administrative tasks;” (3) Palantir

Analytics Software used “to tie disparate intelligence resources

together, search across and manage those resources, and track

relationships among disparate entities;” (4) Global Mission

Analytics, a web-based system used to “search across internal

and external intelligence sources;” and (5) Virtual Private

2
Networking, a “misattribution software to enable analysts to

securely and anonymously access external data sources without

identifying that access as coming from the FBI.” Def.’s Mot. to

Dismiss, ECF No. 13 at 3 (citing Compl., ECF No. 12 ¶ 27-48).

Mr. Orozco contends that the FBI could have provided him and

other blind employees “with an alternative means of accessing

these systems that allowed them to independently use the

information and data involved, but did not do so.” Compl., ECF

No. 12 ¶ 60.

Consequently, Mr. Orozco filed an administrative complaint

with the FBI on April 29, 2019. Id. ¶ 16 (citing 29 U.S.C. §

794d(f)(2) (Section 508), 28 C.F.R. § 39.170(d)(4) (the

Department of Justice’s (“DOJ”) Equal Employment Opportunity

(“EEO”) regulation), and 28 C.F.R. § 1616.106(a) (Equal

Employment Opportunity Commission (“EEOC”) regulation)). Mr.

Orozco also filed a copy of his complaint with the Accessibility

Program Office of the Office of the Chief Information Officer

(“OCIO”) of the FBI. Id. ¶ 17.

On May 9, 2019, Mr. Orozco received a letter from the FBI

acknowledging receipt of the EEO complaint and stating that

investigation of the complaint must be completed by October 26,

2019. See Administrative Record (“AR”), Exhibit B, ECF No. 14-1

at 9. On July 25, 2019, the FBI’s Office of the General Counsel

informed Mr. Orozco’s attorney that an assistant general counsel

3
had been assigned to the matter. See AR, Decl. of Albert Elia in

Supp. of Pl.’s Mem. in Opp’n to Def.’s Mot. to Dismiss (“Alia

Decl.”), ECF No. 14-1 ¶ 11. Subsequently, on August 7, 2019, the

FBI’s EEO office dismissed Mr. Orozco’s discrimination complaint

for “failure to state a claim of discrimination within the

federal sector EEO process.” AR, ECF No. 13-1 at 2. The FBI

decision letter added that “the appropriate mechanism for

addressing [Mr. Orozco’s] concerns is to contact the FBI’s

Accessibility Program Office, Office of the Chief Information

Officer (OCIO), and inquire about the status of [Mr. Orozco’s]

pending accessibility complaint.” Id. The letter concluded that

“this final agency decision is being sent pursuant to 29 C.F.R.

§ 1614.110,” and that Mr. Orozco had the right to appeal “within

30 calendar days” of receipt of the “final agency decision,” as

well as the right to file a civil action “180 days from the date

of filing an individual or class complaint if an appeal has not

been filed and final action has not been taken.” Id. Mr. Orozco

and his counsel did not receive any further correspondence from

the OCIO, see Elia Decl., ECF No. 14-1 ¶ 12-13; where Mr.

Orozco’s accessibility complaint was pending, see AR, ECF No.

13-1 at 2.

Mr. Orozco filed his complaint in this Court on November 5,

2019, 180 days after OCIO received a copy of his complaint. See

Pl.’s Mem. in Opp’n to Mot. to Dismiss (“Pl.’s Resp.”), ECF No.

4
14 at 17. He seeks injunctive and declaratory relief as well as

attorney’s fees and other costs of this action. See Compl., ECF

No. 12 at 9-10. The government filed a Motion to Dismiss on

January 28, 2020. See Def.’s Mot. to Dismiss, ECF No. 13. Mr.

Orozco responded on February 11, 2020. See Pl.’s Opp’n, ECF No.

14. The government replied on February 18, 2020. See Reply Supp.

Mot. to Dismiss (“Def.’s Reply”), ECF No. 15. The motion is ripe

and ready for adjudication.

II. Standard of Review
A motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6) tests the legal sufficiency of a complaint.

Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A

complaint must contain “a short and plain statement of the claim

showing that the pleader is entitled to relief, in order to give

the defendant fair notice of what the ... claim is and the

grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). While

detailed factual allegations are not required, a complaint must

contain “sufficient factual matter ... to state a claim to

relief that is plausible on its face.” Ashcroft v. Iqbal, 556

U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009).

“Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements,” are not sufficient to

state a claim. Id.

5
 When ruling on a Rule 12(b)(6) motion, the Court “may

consider only the facts alleged in the complaint, any documents

either attached to or incorporated in the complaint and matters

of which we may take judicial notice.” EEOC v. St. Francis

Xavier Parochial Sch., 117 F. 3d 621, 624 (D.C. Cir. 1997). In

so doing, the court must give the plaintiff the “benefit of all

inferences that can be derived from the facts alleged.” Kowal v.

MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).

III. Analysis

The Defendant argues that Section 508 does not provide Mr.

Orozco with either an explicit or an implicit cause of action,

and alternatively, that he has failed to exhaust his

administrative remedies prior to bringing this action. See

Def.’s Mot. to Dismiss, ECF No. 13 at 2. The Court sets forth

the statutory framework under Section 508 before turning to the

government’s arguments.

A. Statutory Framework
Congress enacted the Rehabilitation Act in 1973 “to ensure

that members of the disabled community could live independently

and fully participate in society.” American Council of the Blind

v. Paulson, 525 F.3d 1256, 1259 (D.C. Cir. 2008). The Act has

the distinction of being the “first major federal statute

designed to protect the rights of and provide assistance to”

6
individuals with disabilities. Smith v. Barton, 914 F.2d 1330,

1338 (9th Cir. 1990).

Congress amended the Act in 1986 by adding section 508,

which required the Executive Branch to develop guidelines to

ensure that electronic information and technology (“EIT”) would

be accessible to people with disabilities. See Rehabilitation

Act Amendments of 1986, Pub. L. No. 99-506, § 603, 100 Stat.

1807, 1830-31; Clark v. Vilsack, Civ. Action No. 19-394 (JEB),

2021 WL 2156500, at *3 (D.D.C. May. 27, 2021); Werwie v. Vought,

Civ. Action No. 19-713, 2020 WL 6781220, at *3 (D.D.C. Nov. 18,

2020). However, the 1986 amendment lacked an independent

enforcement mechanism, see Pub. L. No. 99-506, § 603; see

also Werwie, 19-713, 2020 WL 6781220, at *3; which Congress

added in 1998, see Workforce Investment Act of 1998, Pub. L. No.

105-220, § 408(b), 112 Stat. 936, 1203-06; see also Werwie, 19-

713, 2020 WL 6781220, at *3.

Section 508(a), codified in 29 U.S.C. § 794d(a), now

requires:

When developing, procuring, maintaining, or
using electronic and information technology,
each Federal department or agency, including
the United States Postal Service, shall
ensure, unless an undue burden would be
imposed on the department or agency, that the
electronic and information technology allows,
regardless of the type of medium of the
technology—

7
 (i) individuals with disabilities who are
Federal employees to have access to and use of
information and data that is comparable to the
access to and use of the information and data
by Federal employees who are not individuals
with disabilities....

29 U.S.C. § 794d(a)(1)(A)(i). Central to the parties’ dispute,

Section 508(f) of the Rehabilitation Act, codified as 29 U.S.C.

§ 794d(f) and titled “Enforcement,” provides in relevant part:

(3) Civil Actions. The remedies, procedures,
and rights set forth in sections 794a(a)(2)
and 794a(b) [sections 505(a)(2) and 505(b) of
the Rehabilitation Act] shall be the remedies,
procedures, and rights available to any
individual with a disability filing a
complaint under paragraph (1). 2

29 U.S.C. § 794d(f)(3) (emphasis added). In turn, the relevant

parts of § 794a, which guide civil actions under Section 508,

state that:

(a)(2) The remedies, procedures, and rights
set forth in title VI of the Civil Rights Act
of 1964 (42 U.S.C. 2000d et seq.) (and in
subsection (e)(3) of section 706 of such Act
(42 U.S.C. 2000e-5), applied to claims of
discrimination in compensation) shall be
available to any person 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.

2 Section 508(f) also sets out a method of enforcement under
“Administrative Complaints.” See § 508(f)(2). Since the parties
ostensibly agree that § 508(f)(2) is not relevant for the motion
to dismiss and focus on “Civil Actions” under § 508(f)(3), the
Court does the same.

8
 (b) In any action or proceeding to enforce or
charge a violation of a provision of this
subchapter, the court, in its discretion, may
allow the prevailing party, other than the
United States, a reasonable attorney's fee as
part of the costs.

29 U.S.C. § 794a (emphasis added). Finally, 42 U.S.C. §2000d

prevents discrimination “under any program or activity receiving

Federal financial assistance” while § 2000e-5 contains

enforcement provisions for the EEOC.

B. Section 508 Does Not Provide an Express Cause of
Action
The government argues that Mr. Orozco’s claim should be

dismissed because § 794d does not provide him with a cause of

action. See Def.’s Mot. to Dismiss, ECF No. 13 at 6. The

government points out that § 794d(f)limits the available

remedies to § 794a(a)(1) and (b), not § 794a(a)(2), which

provides remedies for a government employee alleging workplace

discrimination. See id. at 7. Further, it asserts that as a

government employee, Mr. Orozco does not have a cause of action

under 42 U.S.C. § 2000d; nor does he have one under § 2000e-5,

because he “has not pleaded that the Commission has sued on his

behalf.” Id. at 8. Since there is no other cause of action under

§794(a), the government concludes there is “therefore by

extension no available cause of action under section 594d

[sic].” Id.

9
 Mr. Orozco responds that Section 508 incorporates Section

504’s comprehensive disability rights enforcement scheme in

actions by federal employees regarding the EIT of federal

agencies. Pl.’s Opp’n, ECF No. 14 at 7. He points out that

“Section 508’s enforcement provisions explicitly state that “any

individual with a disability may file a complaint alleging that

a Federal department or agency fails to comply.” Id. at 7

(citing 29 U.S.C. § 794d(f)(1)(A)). Mr. Orozco consequently

interprets the statutory scheme as one that requires federal

employees to bring general employment discrimination claims

under Section 501, and inaccessible EIT claims under Section

508. See id. The Court disagrees.

As a preliminary matter, Section 504, which prohibits

recipients of federal financial assistance as well as executive

agencies from conducting programs or activities that

discriminate based on a disability, see 29 U.S.C. § 794(a); does

not contain a “comprehensive disability rights enforcement

scheme” of the sort suggested by Mr. Orozco, see Pl.’s Opp’n,

ECF No. 14 at 7. As Mr. Orozco acknowledges, “Section 504 does

not on its face apply to federal employees,” and does not

provide a “route for relief [for federal employees] under the

Rehabilitation Act.” Taylor v. Small, 350 F.3d 1286, 1291 (D.C.

Cir. 2003) (quoting Rivera v. Heyman, 157 F.3d 101, 104 (2d Cir.

1998)).

10
 Nor is the Court persuaded by Mr. Orozco’s response to the

government’s argument about the exclusion of employment

discrimination remedies (captured in § 794a(a)(1) but not

referred to in §794d). Mr. Orozco explains this discrepancy by

asserting that “Section 508’s role is to extend federal

agencies’ barrier-removal obligations under Section 504, instead

of extending their employment anti-discrimination obligations

under Section 501 of the Rehabilitation Act, 29 U.S.C. § 791.”

Id. at 8. As the government responds—and the Court agrees—this

argument “ignores the explicit language in the statute that

define the available causes of action by their references to

other statutory provisions.” Def.’s Reply, ECF No. 15 at 4. Mr.

Orozco’s “broad point” that Section 508 provides for “civil

actions” cannot rebut the “specific point” that it does not

provide a cause of action in this instance. See id.

This view aligns with persuasive authority which holds that

“section 508 provides no express cause of action.” Clark, 19-

394, 2021 WL 2156500, at *4. The District Court in Clark

reasoned that the “Civil Actions” remedies in § 794(f)(3) are

explicitly limited to a “person aggrieved by any act or failure

to act by any recipient of Federal assistance or Federal

provider of such assistance.” Id. (citing § 794a(a)(2))

(emphasis added). However, the FBI is not a provider of federal

assistance. See Lane v. Pena, 518 U.S. 187, 193 (1996)

11
(considering section 505's use of the term “Federal provider”

and reading it to mean “federal funding agencies acting as

such”). Thus, the remedies contained in Section 505 are not

available to persons aggrieved by the FBI acting in its capacity

as an employer. See Clark, 19-394, 2021 WL 2156500, at *4. Mr.

Orozco does not distinguish Clark, id., or present an argument

for why it is not persuasive. See generally ECF No. 20.

Mr. Orozco further contends that the plain text of Section

508 supports a private right of action against federal agencies,

arguing that the heading “Civil Actions” demonstrates that

Congress intended Section 508 to be enforced by lawsuits. See

Pl.’s Opp’n, ECF No. 14 at 9; 29 U.S.C. § 794(f)(3). In support,

he first argues that federal agencies are covered under Section

508, as under section 504, within the definition of federal

providers of assistance. Id. at 10. He then asserts that

Sections 504 and 508 both explicitly apply to “any program or

activity conducted by any Executive agency or by the United

States Postal Service.” Id. at 11 (citing 29 U.S.C. § 794(a)).

Therefore, failing to interpret Section 508 as granting a

private right of action against federal agencies would render

the “Civil Actions” portion of section 508 “surplusage.” Id. at

10 (citing TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (internal

quotations and citation omitted) (“Statutory terms should not be

treat[ed] as surplusage in any setting.”)). The Court is

12
unpersuaded by the premise of this argument for the reasons

explained below.

The government’s arguments do not suggest that Section 508

does not support any civil actions or that Section 508 does not

apply to “any program or activity conducted by any Executive

agency or by the United States Postal Service,” 29 U.S.C. §

794(a); rather, the Court reads the government’s argument to be

that Mr. Orozco’s claim specifically “does not fit within either

of the two permissible causes of action under the statute.”

Def.’s Mot. to Dismiss, ECF No. 13 at 2. This reading does not

render the term “Civil Actions” surplusage because Section 505

(which guides “Civil Actions” under Section 508) does provide

for civil actions, but only against recipients and providers of

federal assistance, not persons aggrieved by the Government

acting in its capacity as an employer. See Clark, 19-394, 2021

WL 2156500, at *4.

Moreover, it is not the case, as Mr. Orozco asserts, that

no court has “addressed the question presented here: whether

Section 508(f)(3) authorizes an independent right of action for

injunctive relief against a federal agency.” Compare Pl.’s

Opp’n, ECF No. 14 at 9, with Clark, 19-394, 2021 WL 2156500, at

*4; Gonzalez v. Perdue, No. 18-459, 2020 WL 1281237, at *9 (E.D.

Va. Mar. 17, 2020) (considering section 508 claim and concluding

that it does not provide a private cause of action); Latham v.

13
Brownlee, No. 03-933, 2005 WL 578149, at *9 (W.D. Tex. Mar. 3,

2005) (finding section 508 “does not authorize a private, non-

administrative right [of] action”); cf. Leiterman v. Johnson, 60

F. Supp. 3d 166, 177 (D.D.C. 2014) (finding no section 508 cause

of action for federal employee to sue federal employer and

noting plaintiff conceded that section 505 did not provide cause

of action). For these reasons, the Court holds, as have other

District Courts that have considered the issue, that the text of

Section 508 does not expressly support a private right of

action.

C. Section 508 Does Not Provide an Implicit Cause of
Action
The government also argues that Mr. Orozco cannot rely on

an implicit cause of action because the United States as

sovereign has not waived its immunity from suit, nor has Mr.

Orozco brought his claim under the Administrative Procedure Act

to challenge the agency’s determination of his administrative

complaint. See Def.’s Mot. to Dismiss, ECF No. 13 at 8-9. The

government points out that any waiver of immunity must be

“unequivocally expressed in statutory text,” and “will be

strictly construed, in terms of its scope, in favor of the

sovereign.” Id. at 8 (citing Pena, 518 U.S. at 192). Mr. Orozco

responds that his claims under Section 508 meet the test for an

implied right of action. See Pl.’s Opp’n, ECF No. 14 at 12. He

also asserts that Courts have established that Congress waived

14
sovereign immunity with respect to actions for equitable relief

and attorney’s fees under the Section 504 remedies incorporated

by reference into Section 508. See id. at 14.

“[T]he fact that a federal statute has been violated and

some person harmed does not automatically give rise to a

private cause of action in favor of that person.” Touche Ross &

Co. v. Redington, 442 U.S. 560, 568 (1979) (internal citation

and quotation marks omitted). Accordingly, “[i]n determining

whether an implied cause of action exists, ‘the judicial task is

to interpret the statute Congress has passed to determine

whether it displays an intent to create not just a private right

but also a private remedy. Statutory intent on this latter point

is determinative.’” Int’l Union, Sec., Police & Fire Prof’ls of

Am. v. Faye, 828 F.3d 969, 972 (D.C. Cir. 2016) (quoting

Alexander v. Sandoval, 532 U.S. 275, 286 (2001)). Courts

consider three factors in evaluating statutory intent.

Redington, 442 U.S. at 575-76. First, courts consider the

language and focus of the statute to determine whether it

creates a federal right in favor of the plaintiff because he is

someone for whose particular benefit the statute was enacted.

Id. Second, courts consider the legislative history of the

statute to determine whether Congress gave any implicit or

explicit indication of its intent to create or deny a private

judicial remedy. Id. Third, courts consider the statute’s

15
underlying purpose to determine whether it would be consistent

with the legislative scheme to imply such a remedy. Id.

Persuasive authority establishes that Section 508 does not

contain an implicit cause of action. See Clark, 19-394, 2021 WL

2156500, at *4. Although Mr. Orozco, as a blind federal

employee, is someone for whose particular benefit the statute

was enacted, see Redington, 442 U.S. at 575-76; a private right

of action would be inconsistent with the intent demonstrated by

Congress. As discussed above, Congress specifically amended

Section 508 to create an enforcement scheme. See supra; 29

U.S.C. § 794d(f) (entitled “Enforcement”). “The comprehensive

character of the remedial scheme expressly fashioned by Congress

strongly evidences an intent not to authorize additional

remedies.” Clark, 19-394, 2021 WL 2156500, at *4 (citing Nw.

Airlines, Inc. v. Transp. Workers Union of Am., AFL-CIO, 451

U.S. 77, 93-94 (1981)); see also Karahalios v. Nat'l Fed'n of

Fed. Emps., Loc. 1263, 489 U.S. 527, 533 (1989) (“It is also an

'elemental canon' of statutory construction that where a statute

expressly provides a remedy, courts must be especially reluctant

to provide additional remedies.”); Johnson v. Interstate Mgmt.

Co., LLC, 849 F.3d 1093, 1098 (D.C. Cir. 2017) (declining “to

recognize a new implied cause of action” when “text of [statute]

specifically addresses who may sue”).

16
 Although the Court is sympathetic to the challenges Mr.

Orozco faces at his workplace, Mr. Orozco does not point to

“strong indicia of a contrary congressional intent that would

enable the Court to escape the conclu[sion] that caselaw

compel[s].” Clark, 19-394, 2021 WL 2156500, at *4 (internal

quotations and citation omitted). The Congressional debates from

1978 that Mr. Orozco references-which took place 20 years prior

to the latest amendment in 1998-suggest that the federal

government’s exemption was lifted to allow administrative

complaints and certain civil actions, but not a civil action

brought by federal employees. See Pl.’s Opp’n, ECF No. 14 at 13;

see also Karahalios, 489 U.S. at 533 (stating that “neither the

language nor the structure of the Act shows any congressional

intent to provide a private cause of action” for federal

employees to enforce federal agencies’ violations of section

508).

The Court concludes that “Congress provided precisely the

remedies it considered appropriate” for this statute. Middlesex

County Sewerage Authority v. Sea Clammers, 453 U.S. 1,

15 (1981). The Court notes that although Section 508 does not

provide a right for Mr. Orozco to sue, “the Government must, of

course, comply with the Rehabilitation Act,” Clark, 19-394, 2021

WL 2156500, at *4; which requires that the FBI provide

“individuals with disabilities who are Federal employees to have

17
access to and use of information and data that is comparable to

the access to and use of the information and data by Federal

employees who are not individuals with disabilities.” 29 U.S.C.

§ 794d(a)(1)(A)(i). 3

IV. Conclusion
For the foregoing reasons, the Court GRANTS the government’s

motion to dismiss. An appropriate Order accompanying this

Memorandum Opinion was issued on September 30, 2021.

SO ORDERED.

Signed: Emmet G. Sullivan
United States District Judge
October 01, 2021

3 Since the Court holds that there is no implied cause of action
available, it need not reach the defense of sovereign immunity.
See Def.’s Mot. to Dismiss, ECF No. 13 at 8. The Court
similarly need not address whether Mr. Orozco has satisfied his
administrative remedies. See id. at 9.

18