Labor & Employment Law Daily Wrap Up, PROCEDURE—D.D.C.: Visually impaired FBI analyst’s claims concerning software dismissed for lack of jurisdiction, (Mar 6, 2025)

By Todd Harrison, J.D.

He cannot pursue his Section 508 claims related to four systems used by the FBI as the law expressly exempts national security systems from its accessibility requirements.

Granting the Attorney General’s motion for partial dismissal of an FBI analyst’s Section 508 claims for lack of jurisdiction under Fed. R. Civ. P. 12(b)(1), a federal district court in the District of Columbia found that the agent’s claims as they related to four software systems were exempt from accessibility requirements. On remand from the D.C. Circuit, which determined that Section 508 of the Rehabilitation Act provides a private right of action to any individual with a disability, including federal employees, the court here found that four of the security systems at issue were national security systems that Congress had exempted from Section 508 and the agent’s claims were thus barred by sovereign immunity (Orozco v. Bondi, No. 19-3336 (LLA) (D.D.C. Mar. 4, 2025)).

Section 508 imposes requirements on the accessibility of technologies for individuals with disabilities. However, “national security systems” are expressly exempt from its accessibility requirements.

Accessibility complaints. The intelligence analyst who brought this action joined the FBI in 2012. Because he is blind, he uses screen access software that converts digital information to synthesized speech to perform his job. He alleged that several technologies used by the FBI are inaccessible to blind employees who use screen access software, including Sentinel, Palantir Technologies software, Global Mission Analytics system, and VPN misattribution software.

Administrative complaint. In April 2019, the analyst filed an administrative complaint with the FBI’s EEO office alleging discrimination on the basis of Section 508 of the Rehabilitation Act. In August 2019, the FBI issued a final agency decision dismissing the complaint for lack of jurisdiction.

Lawsuit. Subsequently, the analyst filed this action in November 2019. In October 2021, the court dismissed the suit on the grounds that Section 508 does not provide a cause of action for a federal employee to bring suit against his employer. In February 2023, the U.S. Court of Appeals for the D.C. Circuit reversed and remanded, holding that Section 508 “provide[s] a private right of action to any individual with a disability, including a federal employee, who first files an administrative complaint about inaccessible technology” and then seeks injunctive and declaratory relief.

On remand, the Attorney General moved to partially dismiss the analyst’s complaint for lack of jurisdiction under Fed. R. Civ. P. 12(b)(1), arguing that the four aforementioned systems are “national security systems” that Congress exempted from Section 508, meaning the analyst’s claims are barred by sovereign immunity.

Summary judgment conversion? According to the analyst, the court cannot or should not decide whether the four systems at issue are “national security systems” on a Rule 12(b)(1) motion to dismiss. Specifically, he argued that the court must resolve factual issues to answer that question, meaning the court should convert the motion into one for summary judgment. The court was not moved.

“To begin, there is no basis to convert the motion to dismiss under Rule 12(b)(1) into a motion for summary judgment under Rule 56,” said the court. Although a court may convert a Rule 12(b)(6) motion into a motion for summary judgment, there is little precedent for converting a Rule 12(b)(1) motion into a motion for summary judgment, explained the court.

Further, the court did not find any basis to defer the jurisdictional question raised in the Attorney General’s Rule 12(b)(1) motion until after discovery, which may be appropriate where the jurisdictional question is inextricably intertwined with the merits of the case.

Jurisdictional, substantive issues. Here, the court found the line between the jurisdictional and substantive issues to be cut and dry. The analyst’s substantive claim turned on whether the FBI allows him “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.”

The jurisdictional question that was presently before the court was whether some of the technologies used by the analyst at work are “national security systems” and are thus excluded from Section 508’s accessibility mandate.

“While both questions concern the same statute, that is not enough,” said the court. The loadbearing question was whether resolution of the jurisdictional question requires the resolution of an aspect of the substantive claim.

In this instance, the court determined that it did not, and the court could decide the jurisdictional question without broaching the substantive requirements of Section 508.

National security systems. According to declarations provided by the Acting Authorizing Official in the FBI’s Office of the Chief Information Officer and the FBI’s Chief Information Officer and Assistant Director over the FBI’s Office of Chief Information Officer, each of the four systems at issue “meets one or more of the criteria specified in 40 U.S.C. § 11103(a) and therefore qualifies as a national security system.”

In response, the analyst argued that the declarations fell short of what Section 508 requires and proffered a declaration of his own, explaining that his work does not involve national security and that he routinely uses the four systems at issue to access non-classified information.

“It is well-established that courts will defer to the executive branch in cases implicating national security,” explained the court. The analyst did not provide any reason to deviate from this deferential approach here, continued the court. The determination of what constitutes a “national security system” falls to agency management, and the FBI had submitted documentation that it had classified these systems as “national security systems.” As such, the systems at issue were exempt from Section 508’s coverage, the U.S. had not waived its sovereign immunity as it pertained to the systems, and the analyst’s claims relating to the four systems were dismissed.

The case is No. 19-3336 (LLA).

Judge: AliKhan, L.

Attorneys: Anisha Shanae Queen (Brown, Goldstein & Levy) for Jahinnslerth Orozco. Alan Burch, U.S Department of Justice, for Pamela Bondi.

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