UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
MICHELLE CLARK,
Plaintiff, v. Civil Action No. 19-394 (JEB) THOMAS J. VILSACK, et al.,
Defendants.
MEMORANDUM OPINION
Section 508 of the Rehabilitation Act requires federal agencies to ensure that their
electronic information and technology (EIT) is accessible to their employees with disabilities.
Since January 2015, Plaintiff Michelle Clark, who is blind and works at the United States
Department of Agriculture, has been trying to get her employer to comply. Over the past six
years, her administrative complaints have pinballed around numerous offices, and her lawsuit has
bounced between this Court and the agency. While USDA has acknowledged that it violated
section 508, it has yet to complete its self-identified corrective actions. Tired of waiting, Clark
now moves for summary judgment on all counts — one under the Rehabilitation Act and two via
the Administrative Procedure Act. Defendants oppose and cross-move for summary judgment
on the three claims.
Because the current extent of USDA’s remediation is not entirely clear (but is central to
the APA claims), the Court will consider only the Rehabilitation Act count in this Opinion. It
concludes that the Act does not provide Plaintiff with a cause of action and thus grants
Defendants judgment on that count alone. It will set a hearing to discuss the two APA claims 1 that remain.
I. Background
The Court has previously set forth the facts and assumes the reader’s familiarity with that
Opinion. See Clark v. Perdue, 2019 WL 2476614, at *1 (D.D.C. June 13, 2019). In brief, Clark
is employed at the Natural Resources Conservation Service, a division of USDA, in the District
of Columbia. Id.; see also ECF No. 36-2 (Def. Resp. to Pl. Statement of Facts), ¶ 2. She is an
individual with a disability, as defined by the Rehabilitation Act. See DRPSF, ¶ 2. Under
section 508 of that Act, federal agencies must ensure that the EIT that they develop, procure,
maintain, or use “allows . . . individuals with disabilities who are Federal employees to have
access to and use of information and data that is comparable to [that of] . . . Federal employees
who are not individuals with disabilities.” 29 U.S.C. § 794d(a)(1)(A).
In January 2015, Plaintiff filed an administrative complaint alleging that USDA used
several inaccessible software programs, in violation of section 508. See DRPSF, ¶¶ 3–4. When
that complaint went unresolved, she brought suit in this Court in February 2019. See ECF No. 1
(Compl.). She asserted two counts via the APA — one for unlawful agency action and the other
for agency action unlawfully withheld or unreasonably delayed. Id., ¶¶ 35–51. In response,
Defendants asked for a stay and moved for voluntary remand to the agency to allow it to
complete the investigation. See ECF No. 8. The Court found that the remand would not unduly
prejudice Clark and thus granted Defendants’ Motion in June 2019, staying the case. See ECF
No. 13; see also Clark v. Perdue, 2019 WL 2476614, at *1, 4.
USDA then investigated Plaintiff’s administrative complaint and issued a Final Agency
Decision in December 2019. See DRPSF, ¶ 13; ECF No. 45-5, Exh. III (FAD) at 1–14. It
2 concluded that Clark had proven a section 508 violation and required the agency to “address civil
rights deficiencies within the office.” FAD at 9, 12; see also DRPSF, ¶¶ 14–15. The FAD also
instructed Clark to submit a request for equitable relief and attorney fees, which she did in
February 2020. See DRPSF, ¶¶ 18–19. In response, USDA issued a second FAD, granting
Plaintiff a portion of her requested fees. Id., ¶¶ 23–29.
After hearing from the parties, this Court then lifted the stay. See 10/8/2020 Min. Order.
Plaintiff filed an Amended Compliant in November 2020, adding a count under section 508 and
modifying her two APA counts to focus on USDA’s delayed implementation of the relief
ordered in the FAD. See ECF No. 26 (Am. Compl.). She has now moved for summary
judgment on all claims. See ECF No. 32-1 (Pl. MSJ). She seeks declaratory relief as well as “an
injunction requiring Defendants to implement the overdue relief promised by the USDA’s own
decisions.” Id. at 2. In response, USDA — which still has yet to fully comply with the FAD’s
ordered remediation, see ECF No. 47 (May 2021 Compliance Report) at ECF p.2 — has cross-
moved for summary judgment. See ECF No. 36 (Def. MSJ).
II. Legal Standard
“When faced with cross-motions for summary judgment, the court must review each
motion separately on its own merits ‘to determine whether either of the parties deserves
judgment as a matter of law.’” Family Trust of Mass., Inc. v. United States, 892 F. Supp. 2d
149, 154 (D.D.C. 2012) (quoting Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003)). If
it determines that one party is not entitled to summary judgment, it “changes tack on the cross
motion and gives the unsuccessful movant ‘all of the favorable factual inferences that it has just
given to the movant’s opponent.’” Nucap Indus., Inc. v. Robert Bosch LLC, 273 F. Supp. 3d
3 986, 997–98 (N.D. Ill. Mar. 31, 2017) (quoting Hotel 71 Mezz Lender LLC v. Nat’l Ret. Fund,
778 F.3d 593, 603 (7th Cir. 2015)). It is nonetheless still possible for a court to deny summary
judgment to both sides.
Summary judgment must be granted if “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, 477 U.S. 242, 247–48 (1986); Holcomb v.
Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the
substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at
895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Holcomb, 433 F.3d at
895. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion”
by “citing to particular parts of materials in the record” or “showing that the materials cited do
not establish the absence or presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1).
In considering a motion for summary judgment, “[t]he evidence of the non-movant is to
be believed, and all justifiable inferences are to be drawn in his favor.” Liberty Lobby, 477 U.S.
at 255; see also Mastro v. PEPCO, 447 F.3d 843, 850 (D.C. Cir. 2006); Aka v. Wash. Hosp. Ctr.,
156 F.3d 1284, 1288 (D.C. Cir. 1998). The court must “eschew making credibility
determinations or weighing the evidence.” Czekalski v.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
MICHELLE CLARK,
Plaintiff, v. Civil Action No. 19-394 (JEB) THOMAS J. VILSACK, et al.,
Defendants.
MEMORANDUM OPINION
Section 508 of the Rehabilitation Act requires federal agencies to ensure that their
electronic information and technology (EIT) is accessible to their employees with disabilities.
Since January 2015, Plaintiff Michelle Clark, who is blind and works at the United States
Department of Agriculture, has been trying to get her employer to comply. Over the past six
years, her administrative complaints have pinballed around numerous offices, and her lawsuit has
bounced between this Court and the agency. While USDA has acknowledged that it violated
section 508, it has yet to complete its self-identified corrective actions. Tired of waiting, Clark
now moves for summary judgment on all counts — one under the Rehabilitation Act and two via
the Administrative Procedure Act. Defendants oppose and cross-move for summary judgment
on the three claims.
Because the current extent of USDA’s remediation is not entirely clear (but is central to
the APA claims), the Court will consider only the Rehabilitation Act count in this Opinion. It
concludes that the Act does not provide Plaintiff with a cause of action and thus grants
Defendants judgment on that count alone. It will set a hearing to discuss the two APA claims 1 that remain.
I. Background
The Court has previously set forth the facts and assumes the reader’s familiarity with that
Opinion. See Clark v. Perdue, 2019 WL 2476614, at *1 (D.D.C. June 13, 2019). In brief, Clark
is employed at the Natural Resources Conservation Service, a division of USDA, in the District
of Columbia. Id.; see also ECF No. 36-2 (Def. Resp. to Pl. Statement of Facts), ¶ 2. She is an
individual with a disability, as defined by the Rehabilitation Act. See DRPSF, ¶ 2. Under
section 508 of that Act, federal agencies must ensure that the EIT that they develop, procure,
maintain, or use “allows . . . individuals with disabilities who are Federal employees to have
access to and use of information and data that is comparable to [that of] . . . Federal employees
who are not individuals with disabilities.” 29 U.S.C. § 794d(a)(1)(A).
In January 2015, Plaintiff filed an administrative complaint alleging that USDA used
several inaccessible software programs, in violation of section 508. See DRPSF, ¶¶ 3–4. When
that complaint went unresolved, she brought suit in this Court in February 2019. See ECF No. 1
(Compl.). She asserted two counts via the APA — one for unlawful agency action and the other
for agency action unlawfully withheld or unreasonably delayed. Id., ¶¶ 35–51. In response,
Defendants asked for a stay and moved for voluntary remand to the agency to allow it to
complete the investigation. See ECF No. 8. The Court found that the remand would not unduly
prejudice Clark and thus granted Defendants’ Motion in June 2019, staying the case. See ECF
No. 13; see also Clark v. Perdue, 2019 WL 2476614, at *1, 4.
USDA then investigated Plaintiff’s administrative complaint and issued a Final Agency
Decision in December 2019. See DRPSF, ¶ 13; ECF No. 45-5, Exh. III (FAD) at 1–14. It
2 concluded that Clark had proven a section 508 violation and required the agency to “address civil
rights deficiencies within the office.” FAD at 9, 12; see also DRPSF, ¶¶ 14–15. The FAD also
instructed Clark to submit a request for equitable relief and attorney fees, which she did in
February 2020. See DRPSF, ¶¶ 18–19. In response, USDA issued a second FAD, granting
Plaintiff a portion of her requested fees. Id., ¶¶ 23–29.
After hearing from the parties, this Court then lifted the stay. See 10/8/2020 Min. Order.
Plaintiff filed an Amended Compliant in November 2020, adding a count under section 508 and
modifying her two APA counts to focus on USDA’s delayed implementation of the relief
ordered in the FAD. See ECF No. 26 (Am. Compl.). She has now moved for summary
judgment on all claims. See ECF No. 32-1 (Pl. MSJ). She seeks declaratory relief as well as “an
injunction requiring Defendants to implement the overdue relief promised by the USDA’s own
decisions.” Id. at 2. In response, USDA — which still has yet to fully comply with the FAD’s
ordered remediation, see ECF No. 47 (May 2021 Compliance Report) at ECF p.2 — has cross-
moved for summary judgment. See ECF No. 36 (Def. MSJ).
II. Legal Standard
“When faced with cross-motions for summary judgment, the court must review each
motion separately on its own merits ‘to determine whether either of the parties deserves
judgment as a matter of law.’” Family Trust of Mass., Inc. v. United States, 892 F. Supp. 2d
149, 154 (D.D.C. 2012) (quoting Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003)). If
it determines that one party is not entitled to summary judgment, it “changes tack on the cross
motion and gives the unsuccessful movant ‘all of the favorable factual inferences that it has just
given to the movant’s opponent.’” Nucap Indus., Inc. v. Robert Bosch LLC, 273 F. Supp. 3d
3 986, 997–98 (N.D. Ill. Mar. 31, 2017) (quoting Hotel 71 Mezz Lender LLC v. Nat’l Ret. Fund,
778 F.3d 593, 603 (7th Cir. 2015)). It is nonetheless still possible for a court to deny summary
judgment to both sides.
Summary judgment must be granted if “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, 477 U.S. 242, 247–48 (1986); Holcomb v.
Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the
substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at
895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Holcomb, 433 F.3d at
895. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion”
by “citing to particular parts of materials in the record” or “showing that the materials cited do
not establish the absence or presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1).
In considering a motion for summary judgment, “[t]he evidence of the non-movant is to
be believed, and all justifiable inferences are to be drawn in his favor.” Liberty Lobby, 477 U.S.
at 255; see also Mastro v. PEPCO, 447 F.3d 843, 850 (D.C. Cir. 2006); Aka v. Wash. Hosp. Ctr.,
156 F.3d 1284, 1288 (D.C. Cir. 1998). The court must “eschew making credibility
determinations or weighing the evidence.” Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir.
2007). The non-moving party’s opposition, however, must consist of more than mere
unsupported allegations or denials and must be supported by affidavits, declarations, or other
competent evidence, setting forth specific facts showing that there is a genuine issue for trial.
4 See Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The non-movant,
in other words, is required to provide evidence that would permit a reasonable jury to find in his
favor. See Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987).
III. Analysis
Defendants concede that they violated the Rehabilitation Act and are in the process of
implementing EIT changes for Plaintiff’s benefit. See FAD at 10, 12; see also DRPSF, ¶¶ 14–
15; see Def. MSJ at 1–2 (discussing findings in FAD). They nonetheless contend that her claim
under section 508 cannot cross the starting line because that section does not provide her with a
cause of action. Disputing this conclusion, Clark argues that section 508 expressly permits her to
sue, and she alternatively falls back on an implied right to do so. As the parties’ dispute centers
on the interaction of some of the Rehabilitation Act’s sections, the Court will kick off with a
quick tour of the statute before addressing Plaintiff’s theories.
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). It was the “first major federal statute
designed to protect the rights of and provide assistance to” 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 then required the Executive Branch to develop guidelines to ensure that 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; Werwie v. Vought, 19-713, 2020 WL
6781220, at *3 (D.D.C. Nov. 18, 2020). While that version of section 508 required each federal
5 agency to comply with the developed guidelines, it lacked an independent enforcement
mechanism. See Pub. L. No. 99-506, § 603; see also Werwie, 19-713, 2020 WL 6781220, at *3.
Congress gave section 508 a full makeover in 1998. As part of the Act’s glow-up, the
legislature rewrote the accessibility mandate and added a subsection entitled “Enforcement.”
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.
The mandate in section 508(a) now requires:
When developing, procuring, maintaining, or using electronic and information technology, each Federal department or agency . . . 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—
(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). A separate subsection provides the same for “members of the public
seeking information or services from” federal agencies. Id. § 794d(a)(1)(A)(ii).
Section 508’s enforcement mechanism — central to the parties’ dispute — provides
aggrieved individuals with two remedies. First, “any individual with a disability may file a
complaint alleging that a Federal department or agency fails to comply with [section 508(a)]” —
the block quote above — “in providing electronic information and technology.” Id.
§ 794d(f)(1)(A). Such a complaint is an administrative one, as it “shall be filed with the Federal
department or agency alleged to be in noncompliance” and processed pursuant to “the complaint
procedures established to implement” another section of the Act. Id. § 794d(f)(2). Second,
6 under the header “Civil Action,” section 508 guarantees that “[t]he remedies, procedures, and
rights set forth in [section 505(a)(2)] . . . shall be the remedies, procedures, and rights available
to any individual with a disability filing a complaint” via the administrative-complaint process.
Id. § 794d(f)(3). In turn, section 505(a)(2) — the last stop on this tour (for now) — provides that
Title VI’s comprehensive remedial scheme “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.”
Id. § 794a(2).
B. Cause of Action
Plaintiff first argues that the “Civil Action” provision of section 508 expressly furnishes a
private right of action that authorizes her suit. See ECF No. 39 (Pl. Reply) at 1, 3, 5–7.
Although the government agrees that section 508 authorizes lawsuits in some circumstances, it
rejoins that the section does not allow federal employees to sue the federal government as an
employer. See Def. MSJ at 9–10. To sue, then, USDA contends that Clark must seek relief
either via section 501 — which prohibits employment discrimination by federal agencies against
individuals with disabilities — or the APA. Compare Def. MSJ at 9 (positing that “Clark, as a
federal employee, is required to file any Rehabilitation Act claim under Section 501 of the
[Act]”), with Def. Reply at 6 (“After filing a Section 508 administrative complaint, the vehicle
for a federal employee to file suit in federal court is to seek review under [the APA].”); see also
29 U.S.C. § 791. While the Court need not decide the proper mechanism for this suit, it agrees
with Defendants that section 508 is not one.
As mentioned above, that section provides for a “Civil Action,” but limits the available
“remedies, procedures, and rights” to those listed in section 505(a)(2). See 29 U.S.C.
7 § 794d(f)(3). The remedies in that latter subsection are available only to a “person aggrieved by
any act or failure to act by any recipient of Federal assistance or Federal provider of such
assistance.” Id. § 794a(a)(2) (emphasis added). In Lane v. Pena, 518 U.S. 187 (1996), the
Supreme Court considered section 505’s use of the term “Federal provider” and read it to mean
“federal funding agencies acting as such.” Id. at 193 (determining whether Congress waived
sovereign immunity); see also Berke v. Fed. Bureau of Prisons, 942 F. Supp. 2d 71, 82 (D.D.C.
2013) (finding that section 505’s remedies are limited to claims against recipients and providers
of federal assistance). Plaintiff offers this Court no basis to deviate from that determination. It
thus concludes, in harmony with courts that have considered the issue, that section 505’s
remedies are not available to persons aggrieved by the Government acting in its capacity as an
employer. Gonzalez v. Perdue, No. 18-459, 2020 WL 1281237, at *9 (E.D. Va. Mar. 17, 2020)
(considering section 508 claim and concluding same); Latham v. 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). While the
Government must, of course, comply with the Rehabilitation Act, section 508 thus does not
expressly provide Clark with the right to sue.
Beyond disagreeing with this understanding of “Federal provider,” Plaintiff contends that
because USDA must comply with the Act and because section 508 provides for both
administrative complaints and civil actions to remedy violations, the Court must permit her to
maintain this count. See Pl. Reply at 5–6. Failing to do so, her argument runs, would render the
8 “Civil Actions” portion of section 508 surplusage. Id. at 6. Not at all. Congress can provide
different enforcement mechanisms for different aggrieved individuals. Whereas section
508(f)(1) enables federal employees and private parties to file administrative complaints against
federal agencies, section 508(f)(3) — via its reliance on the remedies available in section 505 —
provides for civil actions only against recipients and providers of federal assistance. This
understanding of the “Enforcement” provision does limit the availability of private suits, but it
does not render section 508’s “Civil Actions” subsection superfluous; instead, that provision
directly applies to providers of federal funding, who can be sued. See 29 U.S.C. § 794d. It is
manifest, therefore, that section 508 provides no express cause of action.
In the alternative, Clark contends that it affords her an implied right of action. See Pl.
Reply at 7–9. This long putt comes up short. As just explained, it is clear that Congress created
a thorough enforcement scheme for section 508. See 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.” Nw. Airlines, Inc.
v. Transp. Workers Union of Am., AFL-CIO, 451 U.S. 77, 93–94 (1981); e.g., 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”). Plaintiff does not point to “strong indicia
of a contrary congressional intent” that would enable the Court to escape the “conclu[sion]” that
9 caselaw “compel[s]”: “Congress provided precisely the remedies it considered appropriate” for
this statute. Middlesex County Sewerage Authority v. Sea Clammers, 453 U.S. 1, 15 (1981).
She instead contends that section 508 “incorporates Section 504’s comprehensive
disability rights enforcement scheme in actions by federal employees” against federal agencies
and thus provides her with a cause of action. See Pl. Reply at 2; see also id. at 6–7. Section 504
prohibits recipients of federal financial assistance as well as executive agencies from conducting
programs or activities that discriminate on the basis of a disability. See 29 U.S.C. § 794(a). To
the extent that she is right about such incorporation of remedies, her argument runs headlong into
Circuit precedent holding that, like section 508, section “504 does not provide federal
employees” with a “‘route for relief under the Rehabilitation Act,’” even as it does offer other
people the right to sue. Taylor v. Small, 350 F.3d 1286, 1291 (D.C. Cir. 2003) (quoting Rivera
v. Heyman, 157 F.3d 101, 104 (2d Cir. 1998)) (collecting cases); see also Anderson v. Duncan,
20 F. Supp. 3d 42, 53 (D.D.C. 2013), amended, No. 06-1565, 2013 WL 12328768 (D.D.C. Nov.
15, 2013) (“Section 501 of the Rehab Act provides the exclusive cause of action for a federal
employee alleging disability discrimination by a federal agency.”).
Similarly, her appeal to the legislative record from the passage of section 504, see Pl.
Reply at 8–9 — enacted 20 years prior to the 1998 amendments that include section 508’s
“Enforcement” provisions, see Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978, Pub. L. No. 95–602, § 504, 92 Stat. 2955 (Nov. 6, 1978) —
provides limited, if any, indicia of congressional intent related to section 508. Here, “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. See
10 Karahalios, 489 U.S. at 533. The Court, accordingly, finds that Plaintiff may not bring suit under
that section.
IV. Conclusion
For the aforementioned reasons, the Court will deny Plaintiff’s Motion for Summary
Judgment on the Rehabilitation Act count and grant Defendants’ on that count only. It will set a
hearing to discuss the two Administrative Procedure Act claims. A separate Order so stating will
issue this day.
/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: May 27, 2021