The D.C. Circuit issued four opinions last week, and the lesson is to remember to file in the right place at the right time. The first opinion concerns a private right of action under the Rehabilitation Act, and the remaining three each rejects the respective appellants’ claims as filed too late, too early, in the wrong forum, or some combination of those defects.
1. In Orozco v. Garland, Judge Millett (joined by Judges Walker and Childs) concluded that the Rehabilitation Act “extends a private right of action to all persons with disabilities who file administrative complaints [with their agencies] requesting accessible technology and who seek only injunctive and declaratory relief.” Op. 2. The statutes at issue form a bit of a thicket, but in short the Rehabilitation Act bans disability-based employment discrimination in federal agencies and in federally funded programs. See Op. 2. One provision of the Rehabilitation Act, see 29 U.S.C. § 794d(f), allows “any individual” who has filed an administrative complaint to invoke the remedies and rights “set forth” in another provision, see 29 U.S.C. § 794a(a)(2). That latter provision, in turn, makes the “remedies, procedures, and rights” in Title VI of the Civil Rights Act of 1964 available to persons “aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance.” Id. § 794a(a)(2). And Title VI creates a cause of action for discrimination in federally funded programs.
Evaluating the text and structure of the Act, the panel held that plaintiff-appellant Jahinnslerth Orozco—a blind intelligence analyst at the FBI—could invoke that cause of action adopted by reference from Title VI to “assert his claim for accessible technology.” Op. 14-15. The panel rejected the Government’s argument that the cause of action in § 794d incorporated the limitation in § 794a that the plaintiff be a “recipient of Federal assistance,” noting that the Government’s position would read a provision “authorizing ‘civil actions’ to authorize no civil actions.” Op. 11. The court left open, however, whether Orozco exhausted administrative remedies such that the suit could proceed, and the panel remanded to the district court to resolve any issues of exhaustion in the first instance.
2. In PF Sunset Plaza, LLC v. Department of Housing & Urban Development, Judge Sentelle (joined by Judges Pillard and Childs) denied two petitions for review of Housing and Urban Development orders imposing civil money penalties. The legislative scheme at issue allows HUD to assess civil monetary penalties for the failure to keep Section 8 housing “decent, safe, and sanitary.” 42 U.S.C. §§ 1437f, 1437z-1(b). The statute imposes a strict 15-day deadline to respond to a “complaint” by HUD: “If a hearing is not requested before the expiration of the 15-day period . . . the imposition of a penalty . . . shall constitute a final and unappealable determination.” 42 U.S.C. § 1437z-1(c)(2)(A) (emphasis added). Petitioners in these cases failed to request a hearing within that 15-day timeline, and the ALJ dismissed both efforts to obtain a hearing after time expired. The panel reasoned that the statute was unequivocal that failure to request a hearing made the imposition of the penalty “final and unappealable.” Op. 8-12. So the court dismissed the petitions for review. The court noted, however, that petitioners had not attempted to develop “any kind of ultra vires, due process, or other constitutional claim.” Op. 11.
3. In Fraunhofer-Gesellschaft Zur Forderung Der Angewand v. Sirius XM Radio Inc., Judge Edwards (joined by Judges Srinivasan and Henderson) dismissed an appeal from an order holding the appellant in contempt for failing to sit for a deposition. The appeal arose out of a patent infringement suit between the named parties in the District of Delaware. One of the party’s former employees, appellant My-Chau Nguyen, failed to appear for the deposition. After competing motions to quash the subpoena and compel the deposition were filed in the District Court for the District of Columbia, that court held Nguyen in contempt, ordered Nguyen to sit for the deposition, and expressed an intent to enter sanctions if Fraunhofer (the party seeking to compel the deposition) submitted documentation on its fees and costs. Nguyen was deposed and then appealed.
The panel held that Nguyen could not appeal the contempt order because the Federal Circuit has exclusive jurisdiction over “any civil action arising under . . . any Act of Congress relating to patents,” 28 U.S.C. § 1295(a)(1), and the court concluded that such language included “appeals of discovery orders ancillary to a patent suit,” Op. 7. The panel also declined to transfer the appeal to the Federal Circuit, reasoning that the appeal could not “have been brought at the time it was filed or noticed,” 28 U.S.C. § 1631, because the Federal Circuit has held that a contempt order is not appealable until a sanction has been imposed, Op. 9-10. The court reiterated that Nguyen could appeal again to the Federal Circuit if the district court actually imposed sanctions. Op. 11.
4. Scott-Anderman v. Martinez arose out of a dispute over control of a local chapter of the International Machinist Union under the Labor-Management Reporting and Disclosure Act, 29 U.S.C. §§ 401 et seq. The international union imposed a trusteeship on the local chapter and suspended two of the chapter’s officers. The officers filed suit and sought a preliminary injunction to end the trusteeship, schedule elections, and reinstate the officers. Judge Randolph (joined by Judges Wilkins and Rogers) held that the requests to end the trusteeship and schedule elections were moot because, well, the trusteeship had ended and elections had occurred. And the panel concluded that the request for reinstatement would require the panel to “invalidate the results of the just-completed elections;” the court held it could not do so unless the plaintiff followed certain procedures and exhausted certain remedies under Title IV of the LMRDA. See Op. 5-6. Because the officers failed to pursue their remedies under Title IV, the Court affirmed the district court’s denial of a preliminary injunction.