Orozco v. Garland
This is a D.C. Circuit appeal about the availability of a private right of action to enforce Section 508 of the Rehabilitation Act of 1973, which mandates that federal agencies’ websites and information technology be accessible to people with disabilities.
Jahinnslerth Orozco has worked as an intelligence analyst for the FBI since 2012. Mr. Orozco is blind and relies on screen access software to verbalize electronic text. The FBI has developed Sentinel, a Web-based case management system, for reviewing files and processing incoming leads. Because Sentinel is not compatible with screen access software, in violation of Section 508, which is codified at 29 U.S.C. § 794d, Mr. Orozco cannot use it to perform these vital functions of his job independently. Another software program used by the FBI to process travel requests, expense reimbursements, and other administrative functions, the Enterprise Process Automation System, is also not compatible with screen access software.
After exhausting administrative remedies, Mr. Orozco filed suit under Section 508 in the U.S. District Court for the District of Columbia. He sought injunctive relief, as well as statutorily authorized attorneys’ fees. The district court granted the Department of Justice’s motion to dismiss, holding that Section 508 does not provide a cause of action. The court reached this result based on a daisy chain of statutory cross-references: first to 29 U.S.C. § 794a, whose remedies are mentioned in Section 508, and from there to Title VI of the Civil Rights Act. Because Title VI only authorizes suits against recipients of federal financial assistance, the court read this same restriction into Section 508, suggesting that Mr. Orozco could not sue the FBI because it was a federal agency, rather than a recipient of federal financial assistance—even though the obligations of Section 508 are specifically directed at “federal departments and agencies.”
Public Justice joined the case on appeal, arguing that Supreme Court precedent establishes Section 508 “borrows” only rights and remedies from the cross-referenced statutes, not their limitations on potential defendants. Along with co-counsel from TRE Legal Practice, we also argued that the government’s narrow reading of Section 508 would eviscerate its purpose, since Section 508 was added to the Rehabilitation Act in 1988 specifically to address the technological barriers faced by employees with disabilities and people with disabilities seeking information from federal departments and agencies. The D.C. Circuit heard argument from Public Justice’s Karla Gilbride and opposing counsel on October 18, 2022.
In a per curiam (unanimous) opinion published on February 17, 2023, the D.C. Circuit reversed the opinion below. The court held that, as we had argued, Section 508’s enforcement provision borrowed only the rights and remedies from the earlier statutes it incorporated while Section 508 itself specifies both who may sue and against whom suit may be filed. This is the first circuit court opinion interpreting whether Section 508 provides a private right of action, but it is notable in that all of the district court opinions to decide the issue, like the opinion in this case, had found there was no such cause of action. Because of this opinion, Mr. Orozco can continue pursuing his case in the district court against the FBI. It also means that other federal employees, as well as people with disabilities seeking information from federal government websites, will be able to file suits for injunctive relief when they encounter federal government websites, software programs or other information technology used by a federal department or agency that isn’t accessible to them.
