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Clark v. Perdue

United States District Court, District of Columbia

June 13, 2019

MICHELLE CLARK, Plaintiff,
v.
SONNY PERDUE, et al., Defendants.

          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., ...


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