MEMORANDUM OPINION
JAMES
E. BOASBERG UNITED STATES DISTRICT JUDGE
Plaintiff
Michelle Clark, who is blind, has been trying - for over four
years - to get the Department of Agriculture to resolve her
administrative complaint related to the accessibility of
electronic and information technology (EIT). Rather than
complete its investigation by the 180-day regulatory
deadline, USDA spent over 1, 400 days bouncing
Plaintiff's complaint around to several offices.
Understandably frustrated, Clark filed this suit, seeking an
order declaring the agency's actions unlawful and
requiring it to complete the necessary inquiry. Defendants
have now moved for a remand so that the agency can finally
address her complaint. Plaintiff, however, opposes that
course entirely; in the alternative, she requests the Court
to impose certain restrictions on the remand, including an
exceedingly accelerated timetable. While the Court is
sympathetic to Plaintiff's frustration flowing from the
agency's handling of her complaint, it ultimately agrees
with Defendants that a remand is proper here along the lines
USDA proposes and will, accordingly, grant the Motion.
I.
Background
Plaintiff
is employed full time in the District of Columbia at the
Natural Resources Conservation Service, which is a division
of USDA. See ECF No. 1 (Complaint), ¶¶
8-9. She “is blind and is thus an individual with a
disability” as defined by the Rehabilitation Act.
Id., ¶ 7. On January 8, 2015, she filed a
formal administrative complaint alleging violations of
Section 508 of that Act. Id., ¶ 4.
Specifically, she believed that USDA used several
inaccessible software programs that were not compliant with
Section 508. See ECF No. 9 (Plaintiff's
Opposition), Attach. 2 (Declaration of Anna Levine), Exh. 1
(Administrative Complaint) at 1.
Section
508 requires, in relevant part, that every federal agency
ensure that EIT that it develops, procures, maintains, or
uses is accessible to “individuals with disabilities
who are Federal employees.” 29 U.S.C. §
794d(a)(1)(A)(i). Section 504 of the Act outlines complaint
procedures that apply to resolve allegations of
discrimination under Section 508. Id. §
794d(f)(2). USDA regulations implementing Section 504 direct
that those complaints should be filed with the Office of the
Assistant Secretary for Civil Rights (OASCR) to investigate
and to make a final determination as to the merits and any
necessary corrective action. See 7 C.F.R. §
15d.5(b). Specifically, OASCR has 180 days after receiving
the complaint to ensure that the complainant is notified by
letter of the results of the investigation and the remedy for
any violations found. See 7 C.F.R. §§
15d.5(c), 15e.170(g).
The
process Clark went through, however, did not much resemble
the one laid out by the statute and regulations. In response
to the complaint she filed, OASCR sent her a letter on
February 24, 2015, directing her to contact USDA's
Natural Resources Conservation Civil Rights Office.
See Compl., ¶ 26. Plaintiff, accordingly,
“re-submitted her complaint as directed, by letter
dated March 3, 2015.” Id., ¶ 27. By a
missive she received on March 23, 2015, the Natural Resources
Conservation Service rejected jurisdiction over Clark's
complaint and returned it to OASCR. Id., ¶ 28.
Plaintiff then waited for OASCR to act for over three years.
On July 20, 2018, she wrote a letter to OASCR demanding that
the agency notify her of the results of its investigation
within 21 days. Id., ¶ 29. OASCR responded by
letter on September 13, directing her to contact instead
USDA's Office of the Chief Information Officer
“directly to file a complaint or discuss her
concerns.” Id., ¶ 30. To date, Plaintiff
has still received no notice as to USDA's commencing,
processing, or concluding an investigation. Id.,
¶ 33.
Throwing
up her hands, Clark understandably filed this suit on
February 14, 2019. She “seeks an order declaring
USDA's actions unlawful, requiring it to send her the
written investigation report notification mandated in
response to her Section 508 complaint, and requiring it to
set aside any past responses inconsistent with the procedure
required by law, ” including its “unlawful
refusal to investigate [her] complaint.” Id.,
¶¶ 5, 55. Perhaps realizing it has been derelict in
its duties, the Government now moves for a voluntary remand
to the agency to allow it to complete the investigation and
for a stay of this case. See ECF No. 8
(Defendants' Motion for Voluntary Remand and Stay) at
1-2. Plaintiff opposes such a remand and believes that the
Court should instead deny the Motion and direct Defendants to
respond to the Complaint within fourteen days. See
Pl. Opp. at 11 & Attach. 3 (First Proposed Order). In the
alternative, should the Court decide a remand is proper,
Clark requests that it deny the stay, “vacate
Defendants' prior unlawful decisions” in not
accepting and timely addressing her complaint, and remand to
USDA with specific instructions - including that
OASCR must accept the complaint and complete an investigation
within thirty days. See Pl. Opp. at 11 & Attach.
4 (Alternate Proposed Order). In its Reply, as discussed
below in detail, USDA offers some particulars on how it
agrees to proceed on remand. See ECF No. 10
(Defendants' Reply).
II.
Legal Standard
Courts
“have broad discretion to grant or deny an agency's
motion to remand.” Util. Solid Waste Activities
Grp. v. EPA, 901 F.3d 414, 436 (D.C. Cir. 2018). They
“generally grant an agency's motion to remand so
long as the agency intends to take further action with
respect to the original agency decision on review.”
Id. (internal quotation marks and citation omitted).
Remand “allow[s] ‘agencies to cure their own
mistakes rather than wasting the courts' and the
parties' resources reviewing a record that both sides
acknowledge to be incorrect or incomplete.'”
Id. (quoting Ethyl Corp. v. Browner, 989
F.2d 522, 524 (D.C. Cir. 1993)). An agency may also
“request a remand (without confessing error) in order
to reconsider its previous position.” Id.
(quoting SKF USA Inc. v. United States, 254 F.3d
1022, 1029 (Fed. Cir. 2001)).
“In
deciding a motion to remand, ” a court
“consider[s] whether remand would unduly prejudice the
non-moving party.” Id. And, “if the
agency's request appears to be frivolous or made in bad
faith, it is appropriate to deny remand.” Id.
III.
Analysis
Plaintiff
opposes the agency's request for a remand on the grounds
that USDA has not been clear enough about the process it will
use to address her complaint; that a remand will waste
judicial resources given the parties' disagreement about
the proper procedures; that it will not cure the defects she
is challenging because her dispute is not about the
substantive disposition of her complaint but rather about the
agency's arbitrary and capricious failure to treat her
complaint with the legally proper process; and that it would
chill her exercise of her civil rights. See Pl. Opp.
at 2, 6-10. These rationales notwithstanding, however, there
does not appear to be much daylight - as a practical matter -
between the parties' positions. To explain why, the Court
addresses in turn each of Clark's arguments opposing a
voluntary remand. Doing so reveals why a remand is proper
insofar as it would conserve resources without unduly
prejudicing her. See Util. Solid Waste, 901 F.3d at
436.
Plaintiff's
first two points can be grouped. She maintains, essentially,
that the parties still have a lingering disagreement about
the proper procedure for the agency to apply to her
complaint, and, as a result, a remand will protract
litigation and expend, rather than conserve, resources. In
its Reply brief and attached declaration, however, USDA has
averred that OASCR will accept Plaintiff's 2015 complaint
within 7 days of a remand and will issue a letter to Clark to
that effect. See Def. Reply at 2-3 & Attach. 1
(Declaration of Winona Lake Scott), ¶ 8. The agency has
also committed to completing the investigation within the
180-day timeframe contemplated by the statute. Id.
In light of these promises to process Clark's complaint
according to what is, in her view, the lawful procedure,
see Compl., ¶¶ 5, 56; see also
Pl. Opp. at 11, it is not clear what beef she would retain on
this question. Given the lack of dispute, it is more likely
that a remand now would conserve, rather than waste, the
parties' and judicial resources.
Clark
next contends that a remand will not cure the defects she
challenges in this suit because she is not contesting the
substantive resolution of her complaint - which would be
disposed of on remand - but the agency's failure to treat
her complaint by way of the proper procedures. See
Pl. Opp. at 7; see also ECF 11 (Plaintiff's
Surreply) at 1 (“Plaintiff's claims for relief in
this current action are not about the substantive outcome of
her administrative complaint”; “[r]ather,
Plaintiff seeks to have the court find that . . . [OASCR] . .
. must accept responsibility for Section 508 complaints it
receives, and that the 180-day deadline for doing so is
mandatory and enforceable.”). Consonant with that
understanding of her suit, she requests as relief that the
Court “[v]acate and set aside USDA's unlawful
refusal to investigate [her] complaint as required by
law” and “[p]reliminarily and permanently enjoin
Defendants . . . to apply the complaint procedures”
described above. See Compl., ¶¶ 55-56.
Here, however, it is not clear what agency action Plaintiff
believes the Court could set aside. More importantly, her
distinction - that she challenges a procedural deficiency
rather than a substantive disposition - does not retain its
force at the remedial phase, where the typical redress for an
agency's procedural deficiency would be to remand to that
agency to have it decide the substance of the dispute in a
procedurally proper manner. Here, the agency has agreed to do
just that, see Scott Decl., ...