WERWIE v. MULVANEY et al

Filing 19

MEMORANDUM OPINION regarding the defendants' 11 Motion to Dismiss. See text for details. Signed by Judge Dabney L. Friedrich on November 18, 2020. (lcdlf1)

Case 1:19-cv-03713-DLF Document 19 Filed 11/18/20 Page 1 of 10

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

BERNARD R. WERWIE, JR.,
Plaintiff,
v.

No. 19-cv-3713 (DLF)

RUSSELL VOUGHT, Director, Office of
Management and Budget, et al.,
Defendants.

MEMORANDUM OPINION
Plaintiff Bernard R. Werwie, Jr. brings this suit against Russell Vought,1 in his official
capacity as the Director of the Office of Management and Budget (OMB), and Emily W.
Murphy, in her official capacity as the Administrator of the General Services Administration
(GSA). Werwie claims that the defendants violated § 508 of the Rehabilitation Act by procuring
and using noncompliant online assessment programs to evaluate federal employees who applied
for a cybersecurity training program. Compl. ¶¶ 26–29, 37–42, Dkt. 1. Before the Court is the
defendants’ Motion to Dismiss. Dkt. 11. For the reasons that follow, the Court will grant the
motion.

When this suit began, John Michael “Mick” Mulvaney was the Director of the Office of
Management and Budget. When Russell Vought became the Director, he was automatically
substituted as the named defendant. See Fed. R. Civ. P. 25(d).
1

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I. BACKGROUND2
Werwie works as a contract specialist for the Defense Logistics Agency. Compl. ¶ 3.
Due to a congenital condition, Werwie has been legally blind since birth. Id. ¶ 4. To navigate
computer programs, he uses screen access software that enlarges text, converts text to speech, or
converts text to braille. Id. ¶¶ 14–18. Werwie predominantly uses the screen access program
ZoomText, relying on its text-enlargement and text-to-speech features. Id. ¶¶ 14, 18. For this
technology to work correctly, the underlying computer programs must contain certain elements,
including “alt-text” descriptions for images and keyboard navigation. Id. ¶¶ 16–17.
In 2019, the Defense Logistics Agency gave Werwie permission to apply for the
Cybersecurity Reskilling Academy, a program designed by the Chief Information Officers
Council3 to train nontechnical employees for cybersecurity work. Id. ¶¶ 23–25. To apply,
Werwie was required to take two online assessments: the World of Work Inventory and the
Cyber Aptitude and Talent Assessment. Id. ¶¶ 26–28. During these online assessments,
ZoomText failed to display properly, and as a result, Werwie was unable to use its textenlargement and text-to-speech features. Id. ¶¶ 30–31. He repeatedly sought assistance by
calling the phone number listed for individuals with disabilities, but no one answered. Id. ¶ 32.

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Unless otherwise noted, the factual allegations cited in this opinion are drawn from the
complaint. See Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1129 (D.C. Cir. 2015)
(court considering motion to dismiss must “accept all the well-pleaded factual allegations of the
complaint as true and draw all reasonable inferences from those allegations in the plaintiff’s
favor”).
The CIO Council is an interagency forum tasked with overseeing the Federal government’s
development and use of information resources. Purpose and Vision, CIO Council (last accessed
October 20, 2020), https://www.cio.gov/about/vision/. The Council is chaired and directed by
officers from the Office of Management and Budget. 44 U.S.C. § 3603.
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As a result, Werwie was forced to guess the answers to many questions on the assessments. Id. ¶
31.
After completing the assessments, Werwie emailed the Reskilling Academy and a GSA
employee, noting the accessibility issues he had encountered. Id. ¶ 33. He also communicated
with another GSA employee about his experience and raised the accessibility issues with both his
U.S. congressman and senator. Id. Ultimately, Werwie was not accepted into the Reskilling
Academy. Id. ¶ 34. But he plans to reapply during the next open application cycle. Id. ¶¶ 34,
36.
On December 12, 2019, Werwie filed the instant complaint, alleging a single claim under
§ 508 of the Rehabilitation Act. Id. ¶¶ 37–42. He contends that the defendants violated the
Rehabilitation Act by procuring and using online assessment software that was inaccessible to
him as a blind computer user. See id. And he seeks injunctive relief that, among other things,
requires the defendants to allow him to reapply for the Reskilling Academy, using software
accessible to him. Id. at 9.
On May 21, 2020, the defendants filed a motion to dismiss pursuant to Rule 12(b)(1) of
the Federal Rules of Civil Procedure. Because the defendants do not advance jurisdictional
arguments in their motion, see infra note 4, the Court will consider the motion under Rule
12(b)(6).
II. LEGAL STANDARD
Under Rule 12(b)(6), a party may move to dismiss for failure to state a claim upon which
relief can be granted. Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss, a complaint
“must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

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Twombly, 550 U.S. 544, 570 (2007)). Although “detailed factual allegations” are not required, a
plaintiff must provide “more than an unadorned, the-defendant-unlawfully-harmed-me
accusation,” id., and must “raise a right to relief above the speculative level,” Twombly, 550 U.S.
at 555. To state a facially plausible claim, the plaintiff must plead “factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. This standard does not amount to a “probability requirement,”
but it does require more than a “sheer possibility that a defendant has acted unlawfully.” Id. A
complaint alleging “facts [that] are ‘merely consistent with’ a defendant’s liability . . . ‘stops
short of the line between possibility and plausibility of entitlement to relief.’” Id. (quoting
Twombly, 550 U.S. at 557).
When evaluating a Rule 12(b)(6) motion, the court “must construe the complaint in favor
of the plaintiff, who must be granted the benefit of all inferences that can be derived from the
facts alleged.” Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012) (quoting Schuler v.
United States, 617 F.2d 605, 608 (D.C. Cir. 1979)). Conclusory allegations, however, are not
entitled to an assumption of truth, and even allegations pleaded with factual support need only be
accepted insofar as “they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 678–
79. In determining whether a complaint states a claim, the court can consider the allegations
within the four corners of the complaint as well as “any documents either attached to or
incorporated in the complaint and matters of which [it] may take judicial notice.” EEOC v. St.
Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).
III. ANALYSIS
The defendants raise two principal arguments in their motion: (1) § 508 of the
Rehabilitation Act does not provide Werwie with a cause of action, see Mot. to Dismiss at 4–6,

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and (2) Werwie is barred from bringing suit because he failed to exhaust his administrative
remedies, see id. at 6–8. The Court will grant the defendants’ motion because, even assuming
that § 508 grants Werwie a cause of action, he failed to exhaust his administrative remedies.4
A.

Section 508 of the Rehabilitation Act

In 1973, Congress passed the Rehabilitation Act to “ensure that members of the disabled
community could live independently and fully participate in society.” Am. Council of the Blind
v. Paulson, 525 F.3d 1256, 1259 (D.C. Cir. 2008). In 1986, Congress amended the
Rehabilitation Act of 1973 by adding § 508, which requires agencies to comply with guidance
documents developed to ensure electronic equipment accessibility for individuals with
disabilities. See Rehabilitation Act Amendments of 1986, Pub. L. No. 99-506, § 603, 100 Stat.
1807, 1830 (1986). The Workforce Investment Act of 1998 amended § 508 by, among other
things, creating an enforcement mechanism for the substantive portions of § 508. See Pub. L.
No. 105-220, § 408(b), 112 Stat. 936, 1203 (1998). The contours of this enforcement
mechanism are central to this dispute.
Section 508(a) sets out accessibility requirements for federal agencies when developing,
procuring, maintaining, or using information technology. 29 U.S.C. § 794d(a). As relevant here,
§ 508(a)(1)(A) provides that each federal agency shall ensure that federal employees “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 do not have disabilities. 29 U.S.C.
§ 794d(a)(1)(A)(i). Section 508(f) provides “individuals with a disability” two methods to

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Whether § 508 provides a cause of action is not a jurisdictional issue. See Sacks v. Reynolds
Sec., Inc., 593 F.2d 1234, 1238–39 (D.C. Cir. 1978); Eagle Tr. Fund v. U.S. Postal Serv., 365 F.
Supp. 3d 57, 64 (D.D.C. 2019), aff'd, 811 F. App'x 669 (D.C. Cir. 2020). Because the issue is
not jurisdictional, it need not “precede merits determinations in dispositional order.” Sinochem
Int'l Co. Ltd. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 431 (2007).

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enforce the substantive requirements. Id. § 794d(f). First, § 508(f)(1) provides that “any
individual with a disability may file a complaint alleging that a Federal department or agency
fail[ed] to comply” with § 508(a). Id. Such complaints must “be filed with the Federal
department or agency alleged to be in noncompliance.” Id. Second, in addition to the
administrative complaint process, § 508(f)(3) declares that the “remedies, procedures, and rights”
provided in § 505(a)(2) are available to individuals “filing a complaint under paragraph (1).” Id.
The parties disagree about the scope of § 508(f)’s civil action enforcement provision.
The defendants contend that § 508(f)’s civil action provision applies only to those “aggrieved
by . . . recipient[s] of Federal assistance or Federal provider[s] of such assistance,” Reply at 3,
Dkt. 16, while Werwie argues that § 508(f) grants him either an express or an implied private
right of action enforceable against federal agencies. Opp’n at 6, 9, Dkt. 14. As noted, the Court
need not resolve this dispute because even assuming that § 508(f) provides Werwie with a cause
of action, his claim fails because he failed to exhaust his administrative remedies.
B.

Exhaustion of Administrative Remedies

“The doctrine of exhaustion of administrative remedies is one among related doctrines—
including abstention, finality, and ripeness—that govern the timing of federal-court
decisionmaking.” McCarthy v. Madigan, 503 U.S. 140, 144 (1992). Whether the doctrine
applies “is purely a question of statutory interpretation.” Avocados Plus Inc. v. Veneman, 370
F.3d 1243, 1247 (D.C. Cir. 2004) (citing Madigan, 503 U.S. at 144). Courts presume exhaustion
is nonjurisdictional, unless the statute contains “sweeping and direct statutory language
indicating that there is no federal jurisdiction prior to exhaustion.” Id. at 1248 (alterations and
internal quotation marks omitted) (citing Madigan, 503 U.S. at 144). “Absent a clear statement
from Congress, exhaustion requirements will be found to be nonjurisdictional.” Munsell v. Dep’t
of Agriculture, 509 F.3d 572, 579 (D.C. Cir. 2007).
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Unlike other provisions of the Rehabilitation Act,5 § 508’s enforcement provisions
contain no such clear statement. The “General” subsection, § 508(f)(1), provides that “any
individual with a disability may file a complaint alleging that a Federal department or agency
fails to comply with [§ 508(a)(1)] in providing electronic and information technology.” 29
U.S.C. § 794d(f)(1). Subsection 508(f)(2), “Administrative complaints”, makes clear that
complaints filed under the general subsection, § 508(f)(1) “shall be filed with the Federal
department or agency alleged to be in noncompliance.” Id. § 794d(f)(2) (emphasis added). And
finally, the “Civil actions” subsection, § 508(f)(3), provides, in part, that “the remedies,
procedures, and rights set forth in [Title VI of the Civil Rights Act] shall be the remedies,
procedures, and rights available to any individual with a disability filing a complaint under
[§ 505(f)(1), the General subsection].” Id. § 794d(f)(3). Although these enforcement provisions
cross-reference one another and clearly “create[] an administrative procedure for challenging
[government action],” Avocados Plus, 370 F.3d at 1248, none contain “sweeping and direct
statutory language” indicating that exhaustion is a jurisdictional requirement, see Munsell, 509
F.3d at 579.
Even so, “the existence of an administrative remedy automatically triggers a nonjurisdictional exhaustion inquiry.” Avocados Plus, 370 F.3d at 1248. And “[c]ourts should infer
a infer a non-jurisdictional exhaustion requirement whenever Congress provides an
administrative avenue for relief” as Congress has done here through § 508(f)(1)’s administrative
complaint process. Holmes v. PHI Serv. Co., 437 F. Supp. 2d 110, 121 (D.D.C. 2006).

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Section 505(a)(1) of the Rehabilitation Act, for example, contains a jurisdictional exhaustion
requirement because it limits “judicial review to employees ‘aggrieved by the final disposition’
of their administrative ‘complaint.’” Spinelli v. Goss, 446 F.3d 159, 162 (D.C. Cir. 2006)
(emphasis added) (quoting 29 U.S.C. § 794a(a)(1)).

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Requiring individuals to exhaust that process is consistent with the three functions that underlie
nonjurisdictional exhaustion: “giving agencies the opportunity to correct their own errors,
affording parties and courts the benefits of agencies’ expertise, and compiling a record adequate
for judicial review.” Avocados Plus, 370 F.3d at 1247 (alterations, citations, and internal
quotation marks omitted).
Here, Werwie communicated with both GSA and OMB about the accessibility issues that
he experienced while taking the online assessments, but he did not initiate § 508(f)(1)’s
administrative complaint process before filing suit. Werwie does not dispute this. Instead, he
argues that § 508 does not contain any exhaustion requirement at all. But because § 508(f)(1)’s
complaint process triggers a presumption of nonjurisdictional exhaustion, Holmes, 437 F. Supp.
2d at 121, Werwie must show that his “interest in an immediate judicial forum clearly outweighs
the institutional interests underlying the exhaustion requirement,” Ass’n of Flight AttendantsCWA v. Chao, 493 F.3d 155, 159 (D.C. Cir. 2007).
Courts generally excuse an exhaustion requirement “if delaying judicial review would
cause irreparable injury, if the agency is not competent to address the issue or to grant effective
relief, or if further pursuit of an administrative remedy would be futile.” Id. at 159. None of
those concerns are present here. To start, Werwie has not alleged that “delaying judicial review
would cause irreparable injury.” Id. Nor has he alleged that the “agency is not competent to
address the issue or grant effective relief” through § 508(f)(1)’s administrative complaint
process. See id. In fact, it seems that much of the relief Werwie seeks could be accomplished
through unilateral agency action without judicial involvement. See Compl. at 9 (requesting that
the defendants ensure that “all software used” in the Reskilling Academy and its application
process is fully accessible to blind users); id. (seeking another opportunity for Werwie to

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participate in the Reskilling Academy, or for him to be provided with “equivalent training”).
Further, Werwie has made no showing that “pursuit of an administrative remedy would be
futile,” Ass’n of Flight Attendants-CWA, 493 F.3d at 159, which would require showing that the
administrative remedy is “clearly useless,” William Loveland Coll. v. Distance Educ.
Accreditation Comm’n, 347 F. Supp. 3d 1, 15 (D.D.C. 2018) (internal quotation marks omitted);
see also id. (noting the futility exception to exhaustion is “quite restricted”).
Werwie contends that the defendants’ procurement and use of allegedly noncompliant
online assessment programs constitutes the type of “system-wide, unrevealed policy of agency
action” that the Supreme Court excused from an exhaustion requirement in Bowen v. City of New
York. See Opp’n at 13 (quoting Bowen v. City of New York, 476 U.S. 467, 485 (1986)). But
Bowen involved a claim that the Social Security Administration had “adopted an unlawful
unpublished policy,” Bowen, 476 U.S. at 473, which was applied “systemwide” when reviewing
applications for disability benefits, see id. at 485, and Werwie does not allege that GSA or OMB
have practiced an unrevealed policy of ignoring § 508 and its applicable regulations systemwide.
Moreover, the Supreme Court found that the purposes of exhaustion would not have been served
in Bowen, in part, because the unrevealed policy in that case not only constituted a clear and
significant departure from the applicable regulations but also could be evaluated without
reference to any specific factual circumstances. See id. By contrast, § 508 and its applicable
regulations offer broad guidelines that do not mandate compatibility with specific accessibility
products. And Werwie is challenging a particular error—the defendants’ procurement and use of
online assessment programs for the Reskilling Academy that allegedly do not comply with those
guidelines—that does turn on specific factual circumstances.

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Finally, although the Court agrees with Werwie that the doctrine of administrative
exhaustion “should not be invoked where it serves no practical purpose,” Opp’n at 13 (internal
quotation marks omitted), exhaustion of § 508(f)(1)’s administrative complaint process does
serve a practical purpose: it “afford[s] the agency an opportunity to resolve the matter internally”
and “avoid[s] unnecessarily burdening the courts,” Wilson v. Pena, 79 F.3d 154, 165 (D.C. Cir.
1996). Werwie’s failure to file an administrative complaint with either GSA or OMB prevented
the agencies from “acting on the merits” of his complaint internally. See id. As such, the Court
“sees little risk and potentially substantial benefit,” Adamski v. McHugh, 304 F. Supp. 3d 227,
239 (D.D.C. 2015), in requiring Werwie to exhaust the administrative complaint process that
Congress created before pursuing any cause of action available to him as an “individual with a
disability filing a complaint under [§ 508(f)(1)],” 29 U.S.C. § 794d(f).
CONCLUSION
For the foregoing reasons, the defendants’ motion to dismiss is granted. A separate order
consistent with this decision accompanies this memorandum opinion.

________________________
DABNEY L. FRIEDRICH
United States District Judge

November 18, 2020

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