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.