[00:00:00] Speaker 06: The case number 21-5230, Janice Lerch-Orozco, a felon, versus Mary Z. Merlin, attorney general of the United States in his official capacity. [00:00:11] Speaker 06: Ms. [00:00:11] Speaker 06: Gail Brown, a felon. [00:00:25] Speaker 01: Good morning, and may it please the court [00:00:27] Speaker 01: Carla Gilbride on behalf of the appellant, Jehins Lethorosco. [00:00:31] Speaker 01: Good morning. [00:00:32] Speaker 01: Morning. [00:00:34] Speaker 01: Congress amended Section 508 of the Rehabilitation Act in 1998 to ensure that people with disabilities who are federal employees or members of the public seeking information from the government can access and use technology in a manner comparable to people without disabilities. [00:00:54] Speaker 01: And Congress specified within Section 508 itself [00:00:57] Speaker 01: both who has a right to such access, people with disabilities, and who has an obligation to provide it, federal departments and agencies. [00:01:06] Speaker 01: The only thing Congress borrowed from Section 505 of the Rehabilitation Act is language about how that right to technological equality is to be enforced, specifically by incorporating [00:01:21] Speaker 01: the procedures, remedies, and rights first recognized in Title VI of the Civil Rights Act and added to Section 505 in 1978. [00:01:30] Speaker 01: This isn't the first time Congress has incorporated that precise remedial language from Title VI into later civil rights statutes. [00:01:40] Speaker 01: And the Supreme Court explained in consolidated rail court, the daring, how that borrowed language is to be interpreted. [00:01:47] Speaker 01: Only the remedies, procedures, and rights themselves [00:01:50] Speaker 01: are to be borrowed from the earlier statute. [00:01:53] Speaker 01: Who may enforce those rights and against whom they may be enforced is not part of what is borrowed. [00:02:01] Speaker 01: Instead, courts are to look to the more recent borrowing statute for that scope of coverage. [00:02:07] Speaker 01: And here, the more recent borrowing statute is Section 508. [00:02:12] Speaker 01: And when we look to the text of Section 508, we find three references to federal employees, [00:02:18] Speaker 01: and nearly 20 references to federal departments and agencies. [00:02:22] Speaker 01: But we don't find a single reference to federal financial assistance. [00:02:27] Speaker 03: What about the fact that federal department or agency is not referenced in subsection F3, where they talk about civil actions, even though it's mentioned in one and two? [00:02:40] Speaker 03: The government argues that that's significant. [00:02:44] Speaker 01: Well, when we look at section F3 of 508, it refers to individuals with disabilities filing a complaint under section F1. [00:02:55] Speaker 01: And so I think what Congress is saying there is you refer back to section F1 to determine which individuals with disabilities are able to file complaints under that subsection. [00:03:06] Speaker 01: And when we get to F1, we do find federal departments and agencies reference. [00:03:10] Speaker 01: So F3 itself sends you back to F1 [00:03:14] Speaker 01: and is intended to be coextensive in who it is protecting and who it is giving rights to. [00:03:20] Speaker 01: F1 says you have a right to file an administrative complaint. [00:03:24] Speaker 01: The details of that administrative complaint regime are spelled out in more detail in F2. [00:03:29] Speaker 01: And then in F3, the same group of people, the same who, individuals with disabilities alleging that a federal department or agency is not in compliance with Section A1, that same group of people are permitted to file a civil action in federal court [00:03:47] Speaker 01: under, and now here's where we get to the borrowed language, the how language, using the remedies, procedures, and rights available under Section 505A2. [00:03:57] Speaker 01: And that available language is important. [00:04:01] Speaker 01: If you look at the words, the remedies, procedures, and rights available to, you see that same language in Section 508F3, and you see that same language in Section 505A2, [00:04:16] Speaker 01: when it in turn was acting as the borrowing statute, when it in turn was borrowing remedies, procedures, and rights from Title VI and applying those remedies, procedures, and rights to the newly expanded Section 504 of the Rehabilitation Act back in 1978. [00:04:36] Speaker 01: When the Supreme Court looked at that available to language in 1984 in the consolidated rail case, it said, OK, we're going to figure out [00:04:45] Speaker 01: you know, what is borrowed from Title VI? [00:04:48] Speaker 01: That the issue there was only federal agencies and federal grants that were at the primary purpose of aiding employment were covered under court's interpretation of Title VI. [00:05:07] Speaker 04: And what the court was asking is... But here, I would suggest that, you know, we always look at statues and we read the text. [00:05:14] Speaker 04: And the plain language of the text does not reference federal employees, and Congress could have easily added that language and brought it down into statutes instead of us kind of playing this dancing around game looking to the borrowing statutes. [00:05:28] Speaker 04: So what should we make of that? [00:05:30] Speaker 01: With respect, the borrowing statute here, Section 508, does mention federal. [00:05:35] Speaker 01: I mentioned federal employees right in the beginning in Section A1. [00:05:39] Speaker 01: It talks about two groups of people who must be provided comparable use and access to technology. [00:05:46] Speaker 01: But that language is not carried down further when you get to F3. [00:05:50] Speaker 01: That's true. [00:05:50] Speaker 01: The language in F1 [00:05:53] Speaker 01: And in F3 is any individual with a disability. [00:05:56] Speaker 01: So again, that's very broad language. [00:05:58] Speaker 01: I would say that in A1, any individual with a disability is sort of subdivided into two groups. [00:06:04] Speaker 01: If you look at A1 Roman numeral I, it says individuals with disabilities who are federal employees. [00:06:10] Speaker 01: And then Roman numeral II under A1 is individuals with disabilities who are members of the public. [00:06:15] Speaker 01: So those are the two subsets of individuals with disabilities that Congress was concerned with in Section 508. [00:06:22] Speaker 01: And both of those groups, both of those individuals with disabilities, it's sort of the catch-all term, right? [00:06:27] Speaker 01: Individuals with disabilities who are employees or members of the public are included in provision F, the enforcement provision. [00:06:35] Speaker 03: So part of your argument, I take it, is that if Congress had meant to just limit it to individuals with disabilities or members of the public seeking information or services from an agency, [00:06:49] Speaker 03: They knew how to say that in 794D, or what you call 508A, 1A, romenet 2, and they did not include that same narrowing language in 3. [00:07:02] Speaker 01: Of course, that's exactly right. [00:07:03] Speaker 01: And there are places within Section 508 where Congress [00:07:08] Speaker 01: did want to specify only members of the public. [00:07:11] Speaker 01: We mentioned several of those in our opening brief. [00:07:14] Speaker 01: And where they want to limit to members of the public, they do so by using those specific words. [00:07:20] Speaker 01: But when we get down to section F, we instead have the broad capacious language of individuals with disabilities, all of them. [00:07:29] Speaker 01: And another point that we made in our brief is that if you so limit it to only members of the public, [00:07:39] Speaker 01: add in this additional prerequisite that appears nowhere in Section 508 text that there be some condition of the federal department or agency being acting in its role of a federal provider of financial assistance that would largely write out much of what [00:07:57] Speaker 01: Section 508 was concerned with, which was access to technology for employees with disabilities. [00:08:04] Speaker 03: How do you distinguish our decision in Taylor versus small, which was important to the district court here? [00:08:10] Speaker 01: So Taylor was looking at the coverage of Section 504 and whether it applied to federal employees. [00:08:17] Speaker 01: And it looked at the differences between Section 504 and 501. [00:08:22] Speaker 01: Section 501 provides a scheme for seeking reasonable accommodations. [00:08:29] Speaker 01: for employees with disabilities. [00:08:31] Speaker 01: And here Section 508, in some respects, is different from both 504 and 501. [00:08:36] Speaker 01: It doesn't talk about accommodations like 501 does. [00:08:40] Speaker 01: It talks about procuring, using, developing, and maintaining technology, but it does encompass federal employees within its plain text. [00:08:49] Speaker 01: And federal employees are mentioned repeatedly. [00:08:52] Speaker 01: Certainly, if you look to the legislative history, you know that that is what Congress was concerned about, was barriers faced by employees. [00:08:58] Speaker 01: But even within the text itself, federal employees are called out on multiple occasions. [00:09:05] Speaker 01: And just to quickly finish the point I was making earlier about consolidated rail, there was a distinction made by the Supreme Court in that case between the remedy. [00:09:14] Speaker 01: So the back pay remedy came forward from Title VI [00:09:18] Speaker 01: into section 504 because it was it was a remedy procedural right and that language came forward from title 6 as a which was in that point the the borrowing statute. [00:09:31] Speaker 01: and coming forward into the later enacted statute section 505. [00:09:36] Speaker 01: But what did not come forward was the limitation on what sorts of agencies and what sort of providers of federal financial assistance were covered. [00:09:45] Speaker 01: The court said there for who is covered, we look to the later statute. [00:09:49] Speaker 01: And so here we look to [00:09:51] Speaker 01: who is covered under Section 508, which says nothing about federal financial assistance, providing federal financial assistance. [00:09:58] Speaker 01: It simply refers to federal departments and agencies as the obligation holders and individuals with disabilities, including individuals who are federal employees as the right holders. [00:10:09] Speaker 04: Should we give any deference to the DLJ's past information with respect to federal government employment liability under 508? [00:10:18] Speaker 01: Well, I don't know that it's necessary to give deference where the text is straightforward here, but it is significant, and we mentioned in our brief that the DOJ has previously taken the position that federal employees are covered by Section 508 in their role as federal employers, I should say. [00:10:36] Speaker 01: are covered in their role as employers by 508. [00:10:40] Speaker 01: And the department has previously taken that position. [00:10:43] Speaker 01: I'll reserve the balance of my time for a bottle if there are no other. [00:10:45] Speaker 00: Let me ask you one thing, Ms. [00:10:48] Speaker 00: Kilbride. [00:10:49] Speaker 00: My impression is that this is not entirely unusual for Congress to refer back to Title VI or 505, which then refers to Title VI. [00:11:03] Speaker 00: When they want to create a cause of action, [00:11:06] Speaker 00: Do you have a sense of why they do that rather than just writing a complete cause of action into a section like IOA? [00:11:14] Speaker 01: I think I would want to speak for the intent of Congress, but I think there is a desire for uniformity or consistency across multiple civil rights statutes across time. [00:11:25] Speaker 01: And this is not the only occasion on which Congress has done this. [00:11:29] Speaker 01: and incorporated the specific language from Title VI through Section 505. [00:11:35] Speaker 01: Congress did the same thing when they enacted the ADA in 1990. [00:11:39] Speaker 01: And we point to the shots case in our reply brief from the 11th circuit where the 11th circuit said, because the scope of coverage of the ADA is broader, it doesn't just cover providers, the government when it's providing federal financial assistance, it applies to all state and local public entities. [00:11:59] Speaker 01: If we limited the scope of coverage to what [00:12:02] Speaker 01: 505 and Section and Title VI encompassed, you'd basically make the entire ADA superfluous. [00:12:09] Speaker 01: That certainly wasn't what Congress intended, and that is the same here with Section 508. [00:12:14] Speaker 01: But I think the goal of mentioning those earlier enacted statutes for their remedial provisions is to ensure consistency across statutes with regard to non-discrimination obligations. [00:12:25] Speaker 04: And what do you make that in section F that there, F2, there's administrative complaints, and then next it says civil actions. [00:12:34] Speaker 04: And so there seems to be an intentional distinction between the two. [00:12:38] Speaker 01: I think you're correct that there are two schemes or two methods of seeking enforcement. [00:12:46] Speaker 01: One is directly through the agency with an administrative complaint filed, you know, through the, as Mr. Orozco did here, [00:12:55] Speaker 01: And there's also, that's what F1 and F2 are talking about, and there is also a parallel provision allowing for access to the civil courts through a civil action. [00:13:05] Speaker 01: That's what F3 is talking about. [00:13:07] Speaker 04: So it's a dual track. [00:13:09] Speaker 04: Is that a suggestion that even under the administrative complaint process, there's no exhaustion required? [00:13:15] Speaker 01: I don't think there are. [00:13:18] Speaker 01: was some discussion at the district court about whether there is an exhaustion requirement and whether Mr. Orozco met it. [00:13:26] Speaker 01: We don't think that hasn't been briefed before this court, and it wasn't a basis of the district court's decision. [00:13:32] Speaker 01: But if this court does consider there to be or find the need to reach the question of whether there is an exhaustion requirement, we certainly think Mr. Orozco did all he was required to do. [00:13:43] Speaker 01: before the FBI filing his complaint, both with the Office of the Chief Information Officer and with the EEO office, sent it multiple times and was told that his complaint was dismissed because it was not within the purview. [00:13:59] Speaker 01: of the EEO office to deal with the Section 508 complaints. [00:14:04] Speaker 01: And the sort of unsatisfactory results that Mr. Orozco had when he tried to seek relief through the agency, I think demonstrates why Congress thought the dual track [00:14:16] Speaker 01: having both an administrative complaint procedure, which may work in some circumstances, and a civil action procedure under the statute to add to its enforcement powers. [00:14:26] Speaker 01: That shows why Congress felt that that was necessary in 1998 to strengthen and enhance enforcement under the statute. [00:14:36] Speaker 00: Ms. [00:14:36] Speaker 00: Gilbride, I think that your argument is strong. [00:14:42] Speaker 00: But it's a close question. [00:14:43] Speaker 00: It's a hard statutory interpretation question. [00:14:47] Speaker 00: If we conclude tentatively that the exhaustion question is much more straightforward, what's your best argument for why we shouldn't ask for supplemental briefing on the exhaustion question? [00:15:03] Speaker 00: And then if our instinct is confirmed that the exhaustion question is straightforward, we would affirm on that. [00:15:09] Speaker 00: What's your argument why we shouldn't ask for the supplemental [00:15:14] Speaker 01: Well, certainly the court could ask for supplemental briefing. [00:15:18] Speaker 01: If you're asking as a legal matter, is exhaustion required? [00:15:22] Speaker 01: I think the record that's already before the court as a factual matter on what Mr. Orozco did to bring his complaints before the agency, I think that's adequately presented to you. [00:15:33] Speaker 01: And I guess my other argument is that the district court did not reach that issue. [00:15:40] Speaker 01: There seems to be uncertainty within the district courts as to the statutory interpretation question about whether a private right of action exists to go to civil court. [00:15:51] Speaker 01: Um, under under Section 508 F three, despite our view that language is straightforward, some courts have reached the opposite conclusion. [00:16:00] Speaker 01: And so we would ask this court to decide the issue, um, to, um, allow litigants to understand what their rights are and that they may proceed accordingly. [00:16:09] Speaker 01: But certainly if this court requests supplemental briefing on administrative exhaustion, we would be happy to provide it. [00:16:15] Speaker 03: It's not jurisdictional. [00:16:16] Speaker 03: He filed a complaint and served it on the chief information officer. [00:16:20] Speaker 03: So there's nothing jurisdictional about it in this case. [00:16:22] Speaker 03: We don't have to decide. [00:16:24] Speaker 03: That's correct, your honor. [00:16:26] Speaker 03: Any questions? [00:16:28] Speaker 01: I'll reserve the balance of my time. [00:16:30] Speaker 03: Well, I think you don't have any left, but we will give you a couple of minutes. [00:16:32] Speaker 03: Thank you for, thank you for. [00:17:02] Speaker 02: Good morning. [00:17:02] Speaker 02: Good morning. [00:17:03] Speaker 02: May it please the court? [00:17:06] Speaker 05: As the court's been discussing this morning, Section 508 of the Rehabilitation Act allows certain members of the public and federal employees with disabilities to file administrative complaints alleging less than comparable access and use of the agency's electronic and information technology. [00:17:24] Speaker 05: Section 508's enforcement provision, as Judge Childs has noted for us, requires the agencies to process these administrative complaints using particular procedures. [00:17:38] Speaker 05: But Section 508's enforcement provision in subsection F3 does not unambiguously waive sovereign immunity for civil actions by employees complaining about the technology systems used in their employment. [00:17:55] Speaker 05: time this morning talking about the incorporation that F3 does to create its rights, remedies, and procedures. [00:18:04] Speaker 05: And that is key language. [00:18:06] Speaker 05: I think it's also key to point out that the limitations to recipient of federal assistance or a federal provider of such assistance, which are part of 794A, [00:18:18] Speaker 05: Those limitations were in existence when the Supreme Court decided Lane versus Peña in 1996, which was two years before the statute was amended by Congress. [00:18:29] Speaker 03: Well, she's not seeking, excuse me, he's not seeking, Nebraska is not seeking damages, which was the issue in Lane versus Peña. [00:18:37] Speaker 03: And in fact, there's no question there that the injunctive action did go forward. [00:18:43] Speaker 03: And your waiver of sovereign immunity, at a bare minimum, would be the Administrative Procedure Act. [00:18:50] Speaker 03: So I don't, I'm not sure how Elaine helps you here. [00:18:52] Speaker 03: Cause it was very much very deliberately repeatedly in the language used in the Supreme court talking about a waiver for money damages, which of course you don't get under the EPA. [00:19:04] Speaker 03: So I'm not sure how that helps you. [00:19:07] Speaker 03: In fact, it probably hurts you because there was also an injunctive action in that case that did go forward. [00:19:14] Speaker 03: There was injunctive action that the government didn't have. [00:19:17] Speaker 03: It said it was appropriate. [00:19:18] Speaker 03: Yeah, it says a lot when the Solicitor General doesn't challenge something. [00:19:20] Speaker 03: I mean, if it was barred by sovereign immunity, the federal government had no choice but to raise the issue. [00:19:27] Speaker 03: It would have been jurisdictional. [00:19:29] Speaker 03: So the Solicitor General obviously was at the position that it wasn't barred because that's why it wasn't raised. [00:19:37] Speaker 03: It wouldn't have been optional for the Solicitor General. [00:19:39] Speaker 05: I can agree with that, Your Honor. [00:19:40] Speaker 05: I think my just general point is that the same language was used in the statute and not clarified by Congress when it amended it further. [00:19:48] Speaker 05: The language at least in that provision stays and it continues the sort of ambiguity that persists to this day. [00:19:57] Speaker 03: That's why I'm confused about the ambiguity because it says, you know, in three now, the Civil Actions, Remedies, Feasures, and Rights, blah, blah, blah, available to, and that's what we're asking is to whom are these civil actions available to? [00:20:09] Speaker 03: And it says, any individual with a disability filing a complaint on paragraph one. [00:20:14] Speaker 03: And your argument was, look, if Congress had said in that case, in the statute, use the same federal department or agency language it used in one and two, then you would have no issue with there being an action by federal employees. [00:20:32] Speaker 03: That's correct. [00:20:33] Speaker 03: My question is why isn't that exactly what Congress did when it said file on a complaint under paragraph one? [00:20:38] Speaker 03: That means the statute reads any individual filing a complaint and what they mean when you substitute in the language of paragraph ones, it means any individual with a disability filing a complaint alleging that a federal department or agency fails to comply with subsection A1. [00:20:54] Speaker 03: That's exactly what's incorporated because that's what the complaint language this reference there is. [00:20:58] Speaker 03: Anyone filing a complaint under paragraph one. [00:21:01] Speaker 03: Those are complaints against federal department or agencies for failure to comply. [00:21:05] Speaker 03: So this is unlike other cases. [00:21:08] Speaker 03: It's not silent. [00:21:09] Speaker 03: Congress specifically included that reference back to the very people who sue or who file administrative complaints against federal departments or agencies. [00:21:19] Speaker 03: It seems a very strong textual hooker. [00:21:22] Speaker 03: Why isn't that a strong textual hooker? [00:21:25] Speaker 05: I think because it overlooks the structure and purpose of the entire Rehabilitation Act and the important differences between employment and public access to information provided for federal agencies. [00:21:41] Speaker 05: And part of the answer to this is that Section 501 of the Rehabilitation Act, before you get to Section 508, is what governs employment. [00:21:49] Speaker 05: And employment relationship is the primary one [00:21:54] Speaker 05: You can file a section 508 complaint. [00:21:56] Speaker 05: There is no question about that. [00:21:58] Speaker 05: Federal employees may do that, but when they come to subsection two of 508F, that is where the line stops. [00:22:09] Speaker 05: The agency has to process those complaints. [00:22:13] Speaker 03: But it's completely unreviewable. [00:22:15] Speaker 05: But it doesn't provide then a remedy for section 508 of the Rehabilitation Act for federal. [00:22:21] Speaker 03: So if the administrative agency said, [00:22:24] Speaker 03: We're not going to accommodate in the in the exhaustion process and we're not going to accommodate you because we don't like blind people. [00:22:30] Speaker 03: There'd be no judicial review of that. [00:22:33] Speaker 05: Absolutely not, Your Honor, but would it be under Section 501 because a refusal for 501 just gets you accommodations. [00:22:39] Speaker 03: It doesn't get 508 is a much stronger requirement imposed on federal agencies than just reasonable accommodation. [00:22:47] Speaker 03: We agree with that. [00:22:48] Speaker 05: Not precisely, because both concepts recognize undue burden and that there can be exceptions. [00:22:56] Speaker 03: So it's not... So 501 is much narrower obligation on the government. [00:23:01] Speaker 05: Now I don't believe that either. [00:23:02] Speaker 05: I'm sorry. [00:23:03] Speaker 05: No, don't be sorry. [00:23:05] Speaker 03: Just explain it to me. [00:23:06] Speaker 05: We're trying to be respectful. [00:23:08] Speaker 05: I think what I mean is, I think for federal employees, it's a routing mechanism, if you will. [00:23:15] Speaker 05: It's like a channeling mechanism. [00:23:17] Speaker 05: Because if you have mechanisms, both of which ended up in federal court for slightly different claims, but they were heavily overlapping, because if the systems are being used in employment and they're critical in the accomplishment of employees' duties, you would risk inconsistent judgment. [00:23:40] Speaker 05: You would risk all kinds of administrative havoc in the meantime. [00:23:44] Speaker 05: I mean, not that you can't. [00:23:45] Speaker 05: You can do both. [00:23:47] Speaker 05: But there has to be sort of one outcome for federal employees. [00:23:50] Speaker 05: The clearer path is under section 501. [00:23:53] Speaker 05: And I think Taylor versus Small is instructive. [00:23:57] Speaker 05: You asked about that when you were talking to my friend on the other side. [00:24:01] Speaker 05: The analysis there is similar. [00:24:04] Speaker 05: There are good reasons why Congress would choose to limit the pathways. [00:24:09] Speaker 05: You have to remember that the Rehabilitation Act does a whole lot of things in a whole lot of different relationships that the federal agencies hold. [00:24:16] Speaker 05: And when they've got their employer hat on, section 501 is the route. [00:24:22] Speaker 05: Section 508 gets you an administrative complaint, but no more. [00:24:26] Speaker 03: Congress enacted 508 long after it enacted 501. [00:24:31] Speaker 03: And in part enacted 508 because it was quite dissatisfied with the progress of adopting technology that would work for everybody, for all employees, including those with disabilities. [00:24:47] Speaker 03: And so if we just say, well, for federal employees with disabilities, all you get is 501, it seems there was no point to Congress saying 508 covers federal employees. [00:25:04] Speaker 03: Nor would there have been any reason for Congress to have created a separate administrative complaint group for federal employees, would there? [00:25:12] Speaker 05: Yes, of course. [00:25:13] Speaker 05: And so Section 508 comes into the statute in 1986. [00:25:17] Speaker 05: I think it can be hard now to remember what the world was like in 1986, but I don't believe I had sent an email yet. [00:25:25] Speaker 05: I believe I had not yet taken a computer science class in school. [00:25:29] Speaker 05: Technology was not common in federal government and it's [00:25:33] Speaker 05: and the resources necessary to invest in that type of technology, Congress had a role in through the Appropriations Authority, but putting that aside, Section 508 does represent a comprehensive obligation of the federal government to develop standards and to have an access board. [00:25:54] Speaker 05: That's what the other surrounding provisions in the statute talk about, this access board that will establish standards and then agencies will be held to them. [00:26:03] Speaker 05: unless they create an undue burden. [00:26:06] Speaker 03: They didn't use undue burden in 508. [00:26:08] Speaker 03: They don't have that language. [00:26:10] Speaker 03: It's not the same as 501. [00:26:12] Speaker 03: And it was after, in the 90s, I think, when they added this cause of action. [00:26:20] Speaker 03: into 508, correct? [00:26:21] Speaker 03: That was in 1998. [00:26:22] Speaker 03: Okay, so, well, there's technology changed a lot by then. [00:26:26] Speaker 03: I'm an old dinosaur, but I remember, you know, by then we were all emailing, so. [00:26:31] Speaker 03: I was just barely emailing. [00:26:33] Speaker 05: And I was like, you're younger. [00:26:35] Speaker 05: And it was a new thing. [00:26:37] Speaker 05: Right, so. [00:26:38] Speaker 05: What I would point out, your honor, is that the words unto burden do appear. [00:26:41] Speaker 05: What do you mean? [00:26:42] Speaker 05: In section 508 and section A, one, B, A. [00:26:49] Speaker 05: And that's sort of a, you know, the beginning of all this says when we're 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. [00:27:06] Speaker 05: That's fair. [00:27:07] Speaker 05: It goes on and on. [00:27:08] Speaker 03: That's fair, but there isn't, it's not reasonable accommodation language. [00:27:12] Speaker 03: It's not reasonable accommodation language. [00:27:14] Speaker 05: All I was really pointing out is that reasonable accommodation also recognizes an undue burden concept. [00:27:20] Speaker 05: They go together in a consistent manner. [00:27:24] Speaker 05: And this sort of obligation to process an administrative complaint is not the same as authorizing a civil action. [00:27:32] Speaker 03: Under 501, where do you file to exhaust your complaint? [00:27:37] Speaker 03: For federal employees under 501, where do you file an administrative complaint for exhaustion purposes? [00:27:44] Speaker 05: I believe they file at the agency of the Department of Justice, because FBI is a component of the Department of Justice. [00:27:51] Speaker 03: With the EEO? [00:27:52] Speaker 05: At the EEO. [00:27:52] Speaker 03: Correct. [00:27:53] Speaker 03: But that's not where you file under 508. [00:27:57] Speaker 05: No, your 508 under the regulations goes to both that office. [00:28:00] Speaker 05: It does go there, but it also goes to the Office of the Chief. [00:28:03] Speaker 03: The EEO here said, we can't handle your 508 complaint. [00:28:07] Speaker 03: That's what they said in this case. [00:28:08] Speaker 05: The EEO office dismissed it as not a 501 complaint, because it was very expressly [00:28:14] Speaker 05: Only wrote under Section 508. [00:28:17] Speaker 03: But they refused to handle it. [00:28:20] Speaker 03: If he had said under 508, they would have handled it? [00:28:23] Speaker 05: No, they dismissed a 508 complaint. [00:28:25] Speaker 03: And told him to go talk to the Office of Chief Information Officer and check on the status of your pending complaint. [00:28:30] Speaker 03: Yes. [00:28:31] Speaker 03: So it seems like Congress has already set up [00:28:34] Speaker 03: a distinct route for 508 claims that is different than 501 claims. [00:28:40] Speaker 03: Through the regulations. [00:28:41] Speaker 03: Yes, I agree with that. [00:28:42] Speaker 03: That's the intent of the provision. [00:28:45] Speaker 05: An employee can do either. [00:28:46] Speaker 05: I don't think there's an election of remedies. [00:28:48] Speaker 05: I think you can do both. [00:28:50] Speaker 05: But you can't come into court after you file a section 508 claim with a judicial remedy. [00:28:55] Speaker 00: That's all. [00:28:57] Speaker 00: Who, under your theory, who can sue in court [00:29:04] Speaker 00: under 508. [00:29:06] Speaker 05: Who can sue under 508? [00:29:10] Speaker 05: Well, that would be an individual who is agreed by an act or failure to act by a recipient of federal assistance or provider of such assistance. [00:29:35] Speaker 00: I would have thought it's, you start with 508A and it talks about two groups of people. [00:29:44] Speaker 00: It talks about disabled federal employees. [00:29:46] Speaker 00: And we've been talking today and you've made very clear they can never sue federal agency under 508, disabled federal. [00:29:53] Speaker 00: Under 508 directly. [00:29:54] Speaker 00: Right. [00:29:55] Speaker 00: And then 508A talks about a second category. [00:29:59] Speaker 00: And the second category is disabled members of the public seeking information from federal agencies. [00:30:05] Speaker 00: So if anybody can sue under 508, it's got to be some people in that category. [00:30:10] Speaker 00: Yes. [00:30:11] Speaker 05: Members of the public who are seeking information from a federal agency. [00:30:14] Speaker 00: But under your theory, they can only sue federal funding provider or recipient. [00:30:23] Speaker 00: And I think it's Lane talks about how that means a federal funding provider acting as a funding provider. [00:30:32] Speaker 00: So it seems to me that if anybody under your theory can sue, it has to be disabled member of the public seeking information from the federal agency who is suing federal funding provider acting as a funding provider. [00:30:48] Speaker 05: Yes, I agree with that. [00:30:51] Speaker 00: OK, and I'm not sure that there's anyone in the world who meets that criteria. [00:30:59] Speaker 05: Oh, [00:31:01] Speaker 05: Well, let me see if I can think of an example about someone who is seeking tax information from the IRS or how to file tax returns. [00:31:18] Speaker 00: The IRS is not a federal funding provider acting as a funding provider in that scenario, I don't think. [00:31:24] Speaker 05: But if the IRS were using an outside third party, [00:31:29] Speaker 05: that it has a contract with for that service, something like that. [00:31:34] Speaker 00: And I, I apologize. [00:31:34] Speaker 00: I cut you off. [00:31:35] Speaker 00: Let me let you spell out that scenario as much as much detail as you want. [00:31:39] Speaker 00: And then I'm going to go back and think about it. [00:31:42] Speaker 00: And if I think it doesn't match up with your theory, that's going to be hard for me to get on board with your theory. [00:31:48] Speaker 00: I'll let you spell it out as much detail as you want the scenario you're describing. [00:31:52] Speaker 05: And now that you've given me a second to think about it, I'm not sure I want to go all the way down that road because it is not something I thought deeply about, Your Honor. [00:32:03] Speaker 05: And the idea of Section 508 is that the government can use it when it's involved in making grants and giving money to people. [00:32:19] Speaker 05: So maybe like a FEMA disaster. [00:32:21] Speaker 05: where it's giving grants to local relief organizations, things like that would be a better example. [00:32:30] Speaker 00: And who is the disabled member of the public seeking information from FEMA? [00:32:37] Speaker 00: Who would be able to sue FEMA in its role as a funding provider? [00:32:42] Speaker 05: I don't think the statute is super clear about who you can sue exactly, but perhaps. [00:32:47] Speaker 00: I think that's sort of plaintiff's point. [00:32:51] Speaker 05: Well, but our point is that the sort of, and my friend on the other side described it as very broad language and also section 508 is creating obligations. [00:33:02] Speaker 05: And those are simply not meeting the standard of an unequivocal expression of congressional intent to waive sovereign immunity. [00:33:10] Speaker 05: And any doubt of course has to be resolved in favor of finding no claims. [00:33:15] Speaker 03: And it's also- [00:33:18] Speaker 03: Why do we have a waiver of sovereign? [00:33:19] Speaker 03: Why isn't the APA the waiver of sovereign immunity for this for injunctive actions? [00:33:23] Speaker 05: That's not an issue before the court based on how the claim has been presented. [00:33:28] Speaker 03: The APA waves claims not just under the APA. [00:33:33] Speaker 05: I'm not arguing with you about that. [00:33:35] Speaker 03: Okay. [00:33:35] Speaker 03: Well, I just, I don't understand why we have to construe this narrowly as a waiver of sovereign immunity when we've already got the waiver of sovereign immunity. [00:33:42] Speaker 03: I'm just misunderstanding your point. [00:33:44] Speaker 05: This claim, the claim in this case is brought directly under section 508 and the plaintiff has disclaimed any intent to proceed under the APA. [00:33:52] Speaker 03: So the issue- The APA waiver is broader than suits under the administrative procedure. [00:33:57] Speaker 03: That's my point. [00:33:58] Speaker 03: So it doesn't matter that it can still waive sovereign immunity for a suit just under 508 by its terms and for injunctive action only, of course. [00:34:08] Speaker 03: But to say that the agency here acted contrary to law, [00:34:12] Speaker 03: the law being 508, we've already got a waiver of sovereign immunity. [00:34:16] Speaker 03: So I don't understand why we're construing it. [00:34:19] Speaker 03: That's just what I'm misunderstanding. [00:34:21] Speaker 05: Of course we don't have the predicates here because we don't have a final agency decision. [00:34:24] Speaker 05: We don't have all of the prerequisites met for a valid APA claim in this case, because we don't have final agency action. [00:34:34] Speaker 05: The APA claim that would be closest, I suppose, would be an unreasonable delay type of claim. [00:34:39] Speaker 05: and the six months and a couple of weeks that the plaintiff waited before filing would be difficult under this court's jurisprudence to find to be an unreasonable delay. [00:34:49] Speaker 03: You're not arguing any jurisdictional barrier. [00:34:52] Speaker 03: So again, it's not a sovereign immunity issue. [00:34:54] Speaker 03: You're not arguing that the thought you said it wasn't a jurisdictional barrier as long as a complaint was filed with the chief information officer as it was, there's no jurisdictional barrier here. [00:35:05] Speaker 03: this case going forward. [00:35:07] Speaker 05: I think that it's a failure to state a claim because there's no- Okay, but that's not before us. [00:35:11] Speaker 03: That is not before us and hasn't been argued so far. [00:35:17] Speaker 05: I think it's important just in struggling with the interpretation of the statute, which we've now been talking about for a while, to remember that where a statute provides some remedies expressly, then implying particular other remedies is something the court should hesitate before doing. [00:35:34] Speaker 05: If the court has no further questions, we ask that the judgment below be affirmed. [00:35:41] Speaker 03: Any questions? [00:35:42] Speaker 03: All right, thank you very much. [00:35:43] Speaker 03: Appreciate your help. [00:35:46] Speaker 03: Okay, Ms. [00:35:48] Speaker 03: Gilbride, we'll give you your two minutes back that we took away from you. [00:35:53] Speaker 01: Thank you, Judge Mott. [00:35:55] Speaker 01: Just a couple of points in rebuttal. [00:35:58] Speaker 01: I think Judge Walker's question about [00:36:01] Speaker 01: Who would be able to sue and for what under the government's strained reading of section five away is very illustrative because there is no reference to. [00:36:13] Speaker 01: to federal financial assistance recipients or providers within the text of Section 508, yet that is what the government would sort of hinge everything on, is whether the government agency from which the member of the public is seeking information happens to be acting in its role as a federal provider of financial assistance [00:36:35] Speaker 01: In that moment, when I guess it developed the technology or used the technology, that seems like a very difficult standard to administer. [00:36:45] Speaker 01: Just to figure out as a factual matter, what is the stream of federal financial assistance? [00:36:50] Speaker 01: Was it being used for this particular piece of technology? [00:36:53] Speaker 01: I mean, websites are not usually developed for one purpose only. [00:36:57] Speaker 01: They serve many purposes. [00:36:59] Speaker 01: And when the government agency procures or develops technologies, [00:37:04] Speaker 01: It's doing so for multiple reasons. [00:37:06] Speaker 01: And then to try to trace that back to whether it happened to be acting in the role of a provider of federal financial assistance. [00:37:14] Speaker 01: And the IRS example that my counterpart gave is if the government didn't want to have liability under Section 508, it could simply never contract with any third party or provide any federal financial assistance with regard to tax preparation. [00:37:32] Speaker 01: would no longer have any obligations under section 508 under the civil action provision. [00:37:37] Speaker 01: I mean Congress had the statute was in place, section 508 was in place for 12 years and in 1998 Congress strengthened it by adding an enforcement provision including a civil action provision that specifically said you know civil action. [00:37:53] Speaker 01: It knew about [00:37:56] Speaker 01: Section 501 and reasonable accommodations at that time that had been in place for many years did not reference that. [00:38:03] Speaker 01: But what it did reference was federal employees on multiple occasions. [00:38:08] Speaker 01: And it simply does not, it would be a perverse and absurd result to write federal employees out of the enforcement provision that Congress enacted in 1998 to give them more protections, more tools of enforcement, because the previous tools of enforcement were not satisfactorily meeting their needs for equal access to technology. [00:38:32] Speaker 01: And the last point I would make is that language about who is something available to [00:38:37] Speaker 01: Everything that my colleague on the other side read from section 505 comes after the words available to you. [00:38:45] Speaker 01: That is language about who can enforce the rights, who are the rights available to you. [00:38:49] Speaker 01: And the Supreme Court said unequivocally in consolidated rail court that you look to the later enacted statute to figure out who has the rights. [00:38:59] Speaker 01: The only thing you borrow from the earlier statute, which here is 505, is how those rights are to be enforced. [00:39:06] Speaker 01: And that is not part of what, you know, the federal financial assistance language is not part of what was borrowed. [00:39:14] Speaker 01: Who can enforce the rights is specified within Section 508 itself. [00:39:18] Speaker 01: Thank you. [00:39:19] Speaker 01: Thank you very much. [00:39:20] Speaker 01: The case is submitted.